Human Rights Bill for Scotland: discussion paper

2.2 Interpretation of the Treaty Requirements

2.2.1 Interpretative provision

The intention is that the Bill includes an interpretative provision to direct courts and tribunals to certain international sources, which will in turn encourage public authorities to consider these sources when fulfilling their duties regarding the rights. In directing the courts to these sources, our aim is for proposals to maintain a strong link to the international human rights system and to place the concept of dignity at the heart of the understanding of the framework.

The provision would be made up of a list of sources courts may consider when determining a question in connection with the rights in the Bill which has arisen in proceedings. Such sources could include General Comments and Concluding Observations from relevant UN Treaty Bodies. This includes allowing the courts to consider the principle of human dignity as it is reflected in the treaties.^[25] We do not intend for the provision to create a duty on courts to consider the matters set out in the list of interpretative sources, but rather that they are directed to a list of optional sources and the concept of dignity, as they consider relevant. This reflects the fact that much of the guidance issued by the various UN Committees is not directed to any particular (domestic) legal system, and that UN Committees do not examine issues before them with the same degree of detail and intensity as a domestic court would. It also reflects the fact that these sources are not binding in international law. We intend for the provision to be drafted in such a way to ensure that readers – including public authorities – do not infer a greater weight is attributed to any particular source. In a judicial setting, the courts themselves will decide what weight to place on a particular source, even if not stated within the list.

Respondents to the 2023 consultation were generally supportive of the proposal to prompt courts to consider dignity and agreed with inclusion of the suggested interpretative sources in the provision.

2.2.2 Alternative approaches

2.2.2.1 Purpose Clause

The Taskforce recommended that consideration be given to reflecting dignity via a “purpose clause” in the Bill. We understand that this would be to aid interpretation of the framework created by the Bill, and to enhance public awareness by explicitly stating its intended purpose on the face of the legislation. We have decided that this would not be a suitable approach for the Bill. This is due to the fact that, whilst purpose clauses at the beginning of a legal text generally aim to set out the intent of the legislation, they do not determine the interpretation of the legislation. A purpose clause at the start of the Bill has been discounted in favour of a clearer and more concise interpretative provision within the Bill framework. Additionally, it was found that it was difficult to cohesively include a provision of this kind as it is not a commonly used legislative mechanism in ASPs.

2.2.2.2 Mandating consideration

Some respondents to the 2023 consultation felt that the courts should be obligated to consider interpretative sources (rather than simply directed to them). Our view is that this would be inappropriate since most UN guidance – such as General Comments – is not specific to any domestic legal system; and, importantly, none are binding as a matter of international law. Mandating their consideration by public authorities and domestic courts may therefore lead to misinterpretation. Applying a ‘may’ strength of consideration to the interpretive provision in the Bill would mean that the domestic courts would have the autonomy to disregard that which is unclear or misaligned in these international ‘soft law’ instruments. In relation to the concept of dignity, a ‘may’ consideration also means that the domestic courts are not tied to purely international definitions of the concept, and could interpret it to fit within the Scottish context.