Human Rights Bill for Scotland: discussion paper

2.1 The Treaties & Treaty Requirements

2.1.1 Direct Treaty Text Approach

One of our key aims in developing the Bill is for it to provide a clear, accessible and navigable human rights framework for both rights-holders and duty-bearers. We want to enable all of the rights to be read, interpreted and applied consistently together, in line with the underpinning international framework and alongside other legislation incorporating international human rights treaties, particularly the UNCRC Act 2024. The Bill must operate within the limits of devolved competence. In particular, careful consideration must be given to ensuring it operates effectively within those limits, where the subject matter of the treaties interacts with matters reserved to the UK Parliament, which the Scottish Parliament cannot legislate for. There is broad acknowledgement amongst academics and experts of the challenges faced in incorporating these treaties given the overarching constraints on the competence of the Scottish Parliament.

Proposals for the Bill therefore seek to incorporate the treaties in a way that can provide for consistency of interpretation with the underpinning international framework, in what is known as a ‘direct treaty text’ approach, similar to the UNCRC Act 2024. To do this, we propose that the text from all four treaties is reproduced in the schedules to the Bill in direct form. Any material relating to reserved matters will be removed (an approach we refer to as “carving out”). It is likely that material carved out from the text will include anything relating to, for example, employment conditions, financial credit, maternity leave, health and safety, intellectual property, nationality and immigration status, electricity and telecommunications. Based on this approach, it is likely that some articles will be excluded in their entirety (particularly ICESCR Articles 7 and 8 on just and favourable conditions of work and trade unions and CEDAW Article 9 on nationality) while other Articles will have the relevant material removed.

Proposals include a regulation making power to allow Scottish Ministers to add treaty text not already in the Bill’s schedules, and to take account of any Optional Protocols or any amendments (at the international level) to the treaties or their Optional Protocols^[20] being incorporated. This would enable further treaty articles to be incorporated in the future, such as in the event the Scottish Parliament gains additional devolved powers or where any of the treaties themselves are altered within areas of devolved competence.

Reproducing the text of the treaties in this way will allow the rights which are being incorporated by the Bill to be interpreted and applied in line with the rights as they are provided for in the international treaties themselves. This, in turn, will help to provide clarity for rights-holders, duty-bearers and the courts as to the meaning and content of the rights and the international framework from which they are drawn. This will provide for a degree of consistency in approach to the reading, interpreting and applying of the rights, alongside the other rights incorporation frameworks that already exist in domestic law now (i.e. the UNCRC Act 2024 and the HRA 1998). This approach is consistent with UN guidance on the approach to incorporation; the UN Committee on Economic Social and Cultural Rights (CESCR) has noted that “direct incorporation avoids problems that might arise in the translation of treaty obligations into national law and provides a basis for the direct invocation of the Covenant rights by individuals in national courts.”^[21] There was general support in the consultation with using the direct text of the treaties, with consultees broadly agreeing with the benefits of allowing for greater consistency and coherence among the Bill’s provisions.

The obligations in the international treaties are drafted to apply to States in international law. By contrast, the rights and duties in the Bill are intended to apply to the range of bodies delivering devolved public functions in Scotland. Therefore, a ‘legislative gloss’ is proposed, following the UNCRC Act 2024 approach (see Section 2 of the UNCRC Act 2024^[22]). This would mean that references to ‘States Parties’ in the international treaties would be read, in the Bill, as references to relevant public authorities in Scotland. This would enable the incorporated treaty text to be read and understood in the domestic context as applicable to domestic duty-bearers, thereby helping the Bill to achieve its policy objective of embedding a human rights culture in the delivery of public services.

2.1.2 Alternative approaches

2.1.2.1 Transposition/Adaptation/Amalgamation Model

Some civil society organisations and academics have suggested a model of incorporation whereby the rights in the treaties being incorporated are drawn together and rationalised from across the various treaties into a single expression of the right. They take the view that if a single list of rights could be created this could potentially be more understandable and accessible for users of the framework, and would allow the language of rights to be modernised and adapted to be more appropriate to the domestic context.

We have carefully considered this approach, and have concluded that it would potentially present a number of challenges. The rights often appear across the treaties in complex ways with a number of concepts grouped together, making them difficult to disentangle for domestic purposes. Creating a single expression of a right runs the risk that aspects of the treaties would be omitted or otherwise not amalgamated in the way intended by international law, such as where a right could not be connected easily to another right, or where it does not have a clear thematic home. This approach would potentially mean a loss of specificity and visibility of the GPT rights (for disabled people, racialised minorities, and women), given the need to amalgamate these into single expressions of the right. Taking this into account, such an approach risks divergence from the underpinning international framework, which could make it more challenging for duty-bearers and the courts to interpret the rights in line with international standards and could restrict the usefulness of ‘soft law’ instruments such as General Comments^[23] and Concluding Observations.^[24] The approach would also represent a distinct departure from the approach taken by the existing rights incorporation frameworks, as both the UNCRC Act 2024 and the HRA 1998 take a direct treaty text approach.

In addition, combining ICESCR and GPT rights could mean that the combined rights could relate to the reserved matter of “equal opportunities”. We would then need to bring the combined rights within an exception to the “equal opportunities” reservation, which would result in a less ambitious approach for the rights in ICESCR, and could limit the range of duty-bearers who would be required to comply with those rights. It could also exclude making private actors delivering devolved public functions subject to the Bill’s duties (in respect of the rights in ICESCR).

Finally, taking this approach would necessitate a further lengthy and potentially resource-intensive participative stakeholder engagement to build consensus around what any transposed/amalgamated rights should look like. This would likely lead to a substantial further delay in introducing a Bill to Parliament.

2.1.2.2 Civil and Political Rights

The Taskforce recommended that the Bill restate the rights in the HRA 1998, so that all rights could be found in one place (i.e. in the Human Rights Bill). Given the status of the HRA 1998 as an enactment which is protected from modification under the Scotland Act 1998, the Bill cannot have any substantive effect on those rights. We are concerned that attempting to restate the rights protected by the HRA 1998 could be seen as seeking to have an effect on those rights and could place the Bill at risk of challenge on legislative competence grounds, with no benefit in relation to clarity, accessibility and the enjoyment of the rights. We therefore do not propose to restate the rights in the HRA 1998 in the Bill.

The Taskforce suggested that further consideration be given to incorporation of the CAT, and some stakeholders are in favour of this. We do not intend to take this forward, as the principles of CAT are already well-protected by Scotland’s existing constitutional settlement and other legislative provision. Article 3 of the ECHR (“No one shall be subjected to torture, inhuman or degrading treatment or punishment”) is already given domestic legal effect in the HRA 1998 and is embedded in the devolution settlement via the Scotland Act 1998. The principles that underpin specific articles of CAT are given domestic effect in Scotland through a range of legal provision including in relation to extradition and common law.

Noting the above and the point in particular about ensuring overall understanding and coherence of the human rights framework amongst rights-holders and duty-bearers, we will continue to consider ways to build this including through our implementation work.