Human Rights Bill for Scotland: discussion paper

2.3 ICESCR Requirements

2.3.1 Overall approach

Following commencement of the relevant provisions, the intention is that the Bill will ultimately require duty-bearers to comply with the ICESCR core requirements through a Compliance Duty. The Compliance Duty would follow an initial period of preparation time during which a Consideration Duty would apply, to build consideration of these rights into public authority decision making.

Proposals also seek to require certain duty-bearers, through an Equality Duty, to consider how they can deliver the incorporated ICESCR rights without discrimination, and in doing so (and generally) to consider the requirements of the GPTs for the groups they specifically protect. Finally, we propose that the Bill places a duty on Scottish Ministers to establish a participatory process to help inform domestic minimum standards of the incorporated economic, social and cultural rights.

2.3.2 Application

We propose for the duties here to apply in different ways to different duty-bearers (referred to as the ‘scope’ of a proposed duty). This is to balance competence considerations with securing breadth of coverage and to create a clear, workable framework for the realisation of the incorporated economic, social and cultural rights. Annex B provides an overview of how we propose for each ICESCR duty to apply to the different types of duty-bearers that deliver devolved public functions in Scotland. Further explanation on application is contained alongside the specific proposals for each ICESCR duty.

2.3.3 ICESCR Compliance Duty

The Compliance Duty is intended to reflect established international law concepts, where economic, social, and cultural rights are broadly understood as requiring states to set – and meet – basic minimum thresholds for delivering the rights; as well as to progressively realise the rights over time, using maximum available resources. This is based on the understanding that economic, social and cultural rights, such as the right to health and the right to an adequate standard of living, can and should be continuously improved (or “progressively realised”) over time and in line with a state’s resources (which are also subject to change over time), whilst also meeting basic minimum standards that every human being is entitled to. The Compliance Duty in the Bill is therefore comprised of both a minimum standards element and a progressive realisation element.

The Compliance Duty is intended to apply to public authorities exercising devolved public functions conferred by, or under, ASPs, SSIs and common law powers. This application (which is narrower than originally intended, following the UK Supreme Court judgment and subsequent UNCRC Reconsideration) mirrors the application of the compatibility duty under section 6 of the UNCRC Act 2024 following reconsideration stage of the UNCRC Bill, where the Scottish Government settled on drafting that balanced maximising rights protection while minimising the likelihood of another referral to the Supreme Court for reasons of legislative competence and making the law as accessible as possible.^[26]

The minimum standards element of the duty is also intended to apply to private actors who are delivering such devolved public functions on behalf of a public authority through a contract, grant or other arrangement (the progressive realisation element would not apply in these instances).

Progressive realisation as a concept is defined in Article 2(1) of ICESCR.^[27] It is intended that the Bill’s provisions will draw on this definition, so that duty-bearers are required to progressively realise the ICESCR core requirements, by:

• taking deliberate, practical and targeted steps towards realising the right without unnecessary delay, meaning duty-bearers move as effectively and efficiently as possible towards the full realisation of these rights.
• using maximum available resources towards realising the right. This would generally require an assessment of the resources mobilised, allocated, and spent in relation to specific economic, social and cultural rights. It may include taking actions like assessing budgetary commitments and ensuring transparency, participation and accountability when mobilising resources, allocating funding and making spending decisions. This element does not require all resources to be utilised for the sole purpose of advancing specific economic, social and cultural rights, but rather that the maximum resources available are directed towards realisation of economic, social and cultural rights whilst balancing other commitments and without detrimentally impacting on other essential services.
• ensuring no regression in realising the right. This means duty-bearers must not act in a way which reduces access to or delivery of the right. Regression is permissible in certain circumstances but must be clearly justified (section 2.6.4 sets out a structured, multi-factored test, to be built into the Compliance Duty, regarding potential justifications for a regressive measure or action, drawn from international jurisprudence and best practice).

It is intended that the Bill will make provision so that, in considering whether a particular act or failure to act by a public authority is in compliance with the duty, a court or tribunal may take into account the wider context such as any other acts or failures to act of the authority which are relevant to its implementation of the ICESCR core requirements.

The intention is to set out further in guidance how duty-bearers might achieve progressive realisation. The courts would be able to adjudicate on whether duty-bearers have progressively realised these rights in the Bill (once law), and may take into account guidance and international standards.

2.3.4 ICESCR Consideration Duty

The Consideration Duty is intended to support duty-bearers to prepare for the Compliance Duty coming into force. It aims to balance the need to ensure rights-holders have meaningful protection of their rights from as early as possible following passage of the Bill, with the need to ensure that duty-bearers have time to adequately prepare for the Compliance Duty coming into force. This reflects previous learning in relation to children’s rights, where the Children and Young People (Scotland) Act 2014 acted as a precursor to the compatibility duty in the UNCRC Act 2024. The Consideration Duty (before the Compliance Duty comes into force) is intended to apply to all public authorities exercising devolved public functions (regardless of the legislative source of that function), as well as private actors delivering devolved public functions under contract, or other arrangements such as a grant, with a public authority.

This duty will seek to require those delivering public services to give active consideration to the ICESCR core requirements in their decision-making processes. In practice, this is intended to mean that these rights would need to be considered by public authorities in the development and scrutiny of legislation, strategies and service design, planning, policies, action plans and budgetary decision-making. It is not intended to require any substantive outcomes to be delivered. One way of drafting for this could be through use of a ‘regard’ duty, such as a duty to “have due regard”.

Following stakeholder feedback, we intend for the Consideration Duty to continue to operate in respect of devolved functions derived from UK Acts, once the Compliance Duty is in force for devolved functions derived from ASPs, SSIs and common law. This seeks to reduce any ‘gap’ in coverage, ensuring that duty-bearers will always have to, at a minimum, consider the ICESCR core requirements in respect of functions derived from UK Acts (even if not fully comply with them).

This staggered approach to compliance is intended to create a space for rights-based culture change to begin to develop at the earliest possible point, and to encourage effective embedding of rights-respecting practices and policies across public service delivery and design, in a proportionate and managed way, before the Compliance Duty takes effect. Respondents to the consultation generally supported this approach.

2.3.5 Equality Duty

We propose that the Bill places a duty on certain public authorities to consider how to deliver the ICESCR core requirements in a non-discriminatory way. We refer to this as the Equality Duty.^[28]

In designing policy and delivering services in line with the ICESCR Consideration and Compliance Duties, we propose that to meet the Bill’s Equality Duty, duty-bearers will have to:

• consider the equality and non-discrimination provisions in ICESCR (Articles 2(2) and 3), regarding how to deliver the ICESCR core requirements without discrimination on a number of listed grounds (which are discussed directly below);
• taking into account the requirements of the GPTs. This is intended to ensure duty-bearers consider any GPT requirements that expand on or interpret the ICESCR requirements with measures for the groups they specifically protect.

We propose that the Bill incorporates the Article 2(2) grounds of discrimination as set out in ICESCR, which are race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status.^[29] Based on Taskforce recommendations, stakeholder feedback and responses to the consultation,^[30] our proposals have evolved to explicitly include in the Equality Duty the additional grounds of sexual orientation, gender identity, age, ethnic origin and disability, which have been drawn from the international framework (from General Comment 20 of the UN Committee^[31]). The intention here would be to help protect the further ‘at risk’ groups identified by the Taskforce (which were older people and LGBTQI+ people), and align with the GPTs (‘ethnic origin’ aligns with ICERD and ‘disability’ aligns with CRPD).

Keeping the grounds in the Equality Duty aligned with international human rights law mitigates the risk of divergence from the underpinning international human rights framework. We do not propose providing definitions of the express grounds of discrimination in the Bill, which will be left to their natural and ordinary meaning for interpretation by the Courts.^[32] We propose a regulation-making power in the Bill for Scottish Ministers to add or remove grounds in future, in consultation with SHRC and other bodies – for example, to take account of changes in international human rights law.

Our proposals to link the GPTs to equality considerations, in combination with the interpretative provision (see section 2.2.1), aim to help promote both a formal and substantive equality approach in the delivery of ICESCR requirements, in line with the approach taken at the international level. This would require consideration of the outcome-focussed measures in the GPTs (which in some cases includes temporary special measures^[33]) and is intended to encourage duty-bearers to consider action that will improve outcomes and promote equal access to the ICESCR rights in the Bill for those groups.

A key consideration in our development of the Equality Duty has been to ensure the provisions work clearly within the “equal opportunities” reservation in the Scotland Act 1998^[34], and do not modify reserved law (the EA 2010). This is required in order to ensure that the Bill is within the legislative competence of the Scottish Parliament. To ensure this, the Equality Duty is proposed to be procedural in nature (a consideration duty, meaning that no specific outcome is required). One way of drafting for this could be through use of a “regard” type duty, such as a duty to “have due regard” (like for the proposed ICESCR Consideration Duty – see section 2.3.4). The Equality Duty is proposed to operate within an exception to the reservation on “equal opportunities” in the Scotland Act 1998.^[35]

We have proposed structuring the Equality Duty in this way to ensure that, should there be any potential complex interface between the duties in the Bill and the requirements of the EA 2010, the procedural nature of the Equality Duty (alongside a ‘savings provision’^[36]) means that the requirements of the EA 2010 will clearly prevail (as required by the terms of the devolution settlement). When delivering the ICESCR core requirements, duty-bearers would need to ensure they comply with the EA 2010, and must also consider (and be able to evidence that they have considered) the terms of the Equality Duty, which includes taking into account the GPT requirements. Duty-bearers can take any steps to do so, provided this does not conflict with their duties under the EA 2010.

It is proposed that the Equality Duty will attach to the same functions as the ICESCR duty being exercised. In other words, it will activate when a relevant authority is exercising the ICESCR duties. As a result of the need to keep the Equality Duty within devolved competence, as mentioned, it is proposed that the Duty will operate within an exception to the reservation on “equal opportunities” in the Scotland Act 1998. This could mean that it applies to a narrower set of duty-bearers (Scottish public authorities and cross-border public authorities exercising Scottish functions) than those that are within scope of the proposed ICESCR Consideration Duty or Compliance Duty. This may mean that private actors delivering devolved public functions may not be subject to the Equality Duty because certain exceptions only apply to the Scottish functions of Scottish public authorities and cross-border public authorities.

2.3.6 Establishment of minimum standards through a participatory process

It is proposed that the Bill will place a duty on Scottish Ministers to establish an inclusive and accessible participatory process to help inform the minimum standards of the ICESCR core requirements, taking into account already existing international and domestic standards. It is envisaged that this participatory process would be repeated at a time when Scottish Ministers feel it appropriate, and, at a minimum, every ten years.The participatory process is intended to provide recommendations to Scottish Ministers, with appropriate Parliamentary oversight, to inform the minimum standards element of the Compliance Duty in the Bill.

2.3.7 Alternative approaches

2.3.7.1 Discontinue the ICESCR Consideration Duty once the Compliance Duty has been commenced

This is an option, albeit we are mindful that a number of stakeholders and consultation respondents have suggested that the Consideration Duty should continue alongside the Compliance Duty. Discontinuation would result in a loss of coverage due to the fact that the Compliance Duty is only proposed to apply to functions under ASPs, SSIs and common law, whereas the scope of the Consideration Duty is proposed to be much wider as it includes all devolved functions, irrespective of their source.

2.3.7.2 Applying an incompatibility duty

We had considered mirroring the approach taken in section 6 of the UNCRC Act 2024 (which itself was based on the approach taken in section 6 of the HRA 1998), by applying a duty ‘not to act incompatibly’ and leaving flexibility for the courts to determine what that will require of public authorities within the domestic context, on the assumption that courts would apply the international understanding of progressive realisation and minimum standards. Our view is that the proposed Compliance Duty promotes a greater degree of clarity for public authorities as to what is required to demonstrate compliance with the ICESCR core requirements, by ensuring that the international understanding of progressive realisation and minimum standards is clearly reflected in the Bill and applied by the domestic courts. Leaving this solely to the courts would provide less clarity for duty-bearers, and then only in the longer term as case law developed.

2.3.7.3 Applying progressive realisation limb to private actors

We had considered requiring private actors to progressively realise the ICESCR core requirements in addition to meeting minimum standards. However, it is unclear how such an approach would work in practice. Taking deliberate and targeted steps, utilising maximum available resources and avoiding regression are ‘limbs’ that more usefully sit under the purview of the ‘State’, in this case, Ministers and public bodies.

2.3.7.4 Modelling the approach to the equality provision solely on Article 2(2) of ICESCR, or Article 14 of ECHR, or the protected characteristics in the EA 2010

As outlined in the consultation, we considered modelling the Equality Duty solely on Article 2(2) of ICESCR or Article 14 of the ECHR. However, using either approach would rely on the use of the term ‘other status’ to protect disabled people, older people and LGBTQI+ people. A key risk of this approach is that ‘other status’ would rely on judicial interpretation and determination of which grounds come under ‘other status’, which may take some time to ascertain.

Some respondents also suggested using the protected characteristics in the EA 2010 as the listed grounds because they are already familiar to duty-bearers. We are not proposing this approach. This is because the Bill’s Equality Duty is intended to stand to one side of the domestic equality framework set out in the EA 2010, which it cannot modify. Whilst many of the grounds proposed in the Equality Duty align with the EA 2010 protected characteristics,^[37] they are intended to operate in relation to the ICESCR core duties only. Protected characteristics of marriage and civil partnership, and pregnancy and maternity have not been proposed for inclusion in the Bill because they did not form part of the Taskforce recommendations or the grounds in the treaties being included in the Bill.

2.3.7.5 Strength of Equality Duty

Deliberation was given to including a duty to “ensure” equal access to the rights in the Bill without discrimination (rather than a procedural consideration duty as has now been proposed). Given the complexity of the framework and the need for the Bill to operate effectively within legislative competence and alongside (while not modifying) existing UK equality law, this approach is not considered viable.

2.3.7.6 Additional grounds in Equality Duty

Some consultation respondents and stakeholders called for additional grounds of discrimination to be included in the proposed Equality Duty, seeking to protect and increase visibility for particular groups. Suggestions included care experienced people, people with health issues, unpaid carers, families affected by imprisonment, people subject to immigration control, Gypsy/Travellers and people with drug and/or alcohol dependence^[38], amongst others.

In framing the Equality Duty we are trying, as far as possible, to ensure an approach which explicitly aligns with the international framework and allows for coherency of interpretation with the underpinning treaties. Adding further grounds of discrimination not covered by ICESCR Article 2(2) or General Comment 20 runs counter to this approach. We are not therefore currently proposing this but given the strength of feeling expressed through the consultation we remain open to consideration of including a further ground of care experienced people. As outlined in more detail in section 2.3.5 on the Equality Duty, we propose including a regulation-making power to allow Scottish Ministers to add or remove grounds of discrimination. Any proposed changes to the grounds in future would require careful examination of the relevant evidence, rationale, coherence, workability and competence parameters.

Certain grounds of discrimination which were suggested during the consultation or which feature in the international human rights framework are not able to be included in the Equality Duty because of the need to ensure the Bill’s provisions are within the legislative competence of the Scottish Parliament (for example, nationality citizenship, refugees, asylum seekers, migrants or those with insecure immigration status). Immigration and nationality is reserved to the Westminster Parliament.

2.3.8 Further considerations

In the upcoming period, we intend to:

• Test the approach to continuing the proposed ICESCR Consideration Duty alongside the Bill’s ICESCR Compliance Duty. We plan to develop practical case studies to test this with duty-bearers and COSLA.
• Continue to explore options regarding section 28(7) of the Scotland Act 1998, that could allow us to bring devolved functions deriving from UK Acts within the scope of the Bill’s ICESCR Compliance Duty.
• Continue to engage with stakeholders on the potential for listing care experience as a further ground of discrimination in the Equality Duty. We are also mindful of the work on an approach to the definition of care experience as part of Keeping the Promise.^[39]
• Continue to consider options for how to determine the meaning, scope and content of minimum standards, as well as the approach we want to take to a participatory process.