Human Rights Bill for Scotland: discussion paper

2.4 Group Protection Treaty Requirements

2.4.1 Group Protection Duty

We propose that the Bill places a duty on certain public authorities to give active consideration to the GPT requirements in the Bill, and we refer to this as the Group Protection Duty. This seeks to ensure that the GPT requirements are actively considered by duty-bearers in their decision making (when delivering all of their devolved functions). One way of drafting for this could be through use of a ‘regard’ duty, such as a duty to “have due regard”. In the same way as the Equality Duty, the Group Protection Duty is proposed to apply to Scottish public authorities or cross-border public authorities that are exercising Scottish functions, due to the need to keep the Group Protection Duty within devolved competence. Therefore private actors may not be subject to the Group Protection Duty.

It is proposed that duty-bearers will be required to consider the GPT requirements in the Bill in their entirety, which will include the rights that are not in ICESCR, such as civil and political rights and freedoms. The intention is that this will serve to encourage duty-bearers to see all of the rights in the Bill holistically, and recognise that all human rights are indivisible and interdependent. It will encourage duty-bearers to recognise that rights-holders can have different and intersecting characteristics and statuses that affect how they access their human rights, and to consider how public services can be delivered to them in a way that reflects their particular circumstances. The standalone Group Protection Duty aims to work alongside the proposed Equality Duty, which will require duty-bearers to take into account the GPT requirements when considering the requirements of Articles 2(2) and 3 of ICESCR (as provided for in the Bill) in delivering the ICESCR core requirements. Both duties taken together are intended to help duty-bearers consider what a substantive equality (outcomes-focussed) approach could look like when delivering the rights for disabled people, women and racialised minorities.

There are two principal reasons underpinning our proposed approach for the Group Protection Duty. The first relates to the need to ensure the provisions of the Bill are within the legislative competence of the Scottish Parliament. All the GPT articles could be seen to potentially engage the reserved matter of “equal opportunities”, when incorporated via the Human Rights Bill for the reasons set out in alternative approaches of this section. In addition, Scottish Parliament legislation may not modify the law on reserved matters (including “equal opportunities”) or protected enactments (including the HRA 1998). We are also mindful that section 35 of the Scotland Act 1998 provides a mechanism to block Acts of the Scottish Parliament which modify the law as it applies to reserved matters and where there are reasonable grounds to believe that would have an adverse effect on the operation of the law as it applies to reserved matters. The procedural nature of the proposed Group Protection Duty (requiring the GPTs to be considered in decision making but not requiring any particular substantive outcome to be delivered) alongside a savings provision^[40], helps to navigate these important competence considerations in a straightforward manner. In the event of a complex interface between what is required by a GPT requirement and what is required by reserved law (such as the EA 2010 or the HRA 1998), the requirements of the reserved law would prevail. This would simplify decision-making for duty-bearers, and ensure the proposed Bill is clearly within competency parameters.

The second reason underpinning our proposed approach here is connected to the need to deliver accessible and workable law and related concerns over the complexity that requiring compliance with overlapping rights could create. As noted, we are seeking to use the Bill to create a robust framework which allows for overlapping rights to be read, applied and interpreted clearly and coherently together. The four treaties we want to incorporate each include rights that overlap thematically, yet are intended for different groups, use different language and definitions, and go into different levels of detail as to what is required by states (or duty-bearers once the rights are incorporated into domestic law). The proposed model allows for the rights to be read and applied together, by requiring compliance with the rights that apply to everyone (i.e. those in ICESCR) in a way which, at the same time, actively considers the overlapping rights for particular groups (i.e. those in the GPTs). A Compliance Duty applied more directly to all four treaties would mean we would be asking duty-bearers to comply with all the rights simultaneously when – even at the international level – there is not always clear agreement about how the treaties interact with each other. This would be a complex task and would be compounded when a duty-bearer was faced with intersectional rights-holders. Our proposed approach to the Bill’s duties therefore aims to promote coherency and minimise the complexity that arises from these overlaps by creating a tiered approach to the duties.

In relation to accessibility, we consider that the best way to minimise complexity of the framework overall is to bring the GPTs collectively within the same proposed exception to the “equal opportunities” reservation of the Scotland Act 1998 and have a single type of duty with the same duty-bearers. This is preferable to subjecting different articles in the three different treaties to different exceptions and duties, which would significantly increase the complexity of the framework. This could mean that private actors delivering devolved public functions may not be subject to the Group Protection Duty. There is more information on exceptions to the “equal opportunities” reservation in the Equality Duty section 2.3.5.

In our view, this approach provides for a clear, strong, deliverable framework for rights protection, where the rights can be read and applied together consistently with the underpinning international human rights framework, within the legislative competence of the Scottish Parliament.

The GPT requirements are referred to in other parts of the proposed Bill to help duty-bearers consider and embed those requirements when making decisions and delivering services. For example, draft proposals for what must be included in the Human Rights Scheme currently includes the GPT requirements. The GPT requirements are also part of the Equality Duty.

Our aim is that the GPT requirements taken as a whole, alongside the Equality Duty, will drive advancement of the rights of disabled people, racialised minorities and women, in a proactive way.

2.4.2 Alternative approaches

2.4.2.1 Compliance Duty on Group Protection Treaty requirements

Strong views were expressed by some civil society organisations for a compliance duty rather than a procedural (consideration) duty to be attached to the GPTs, or specific rights within the GPTs. Our view is the rights in the GPTs potentially engage the reserved matter of “equal opportunities” when incorporated via the Bill, particularly when read alongside their preambles and overarching provisions (as the Bill’s proposed interpretative provision specifically envisages). In addition, a number of rights within the GPTs are drawn from the ICCPR^[41] or contain civil and political elements similar to those in the ECHR as incorporated by the HRA 1998. Scottish Parliament legislation cannot modify the law on reserved matters (including ”equal opportunities”; legislated for at a UK level by the EA 2010) or protected enactments (including the HRA 1998). A procedural duty helps to navigate those competence constraints by mitigating the risk of inadvertently modifying the HRA 1998 or the EA 2010. In the event of a complex interface between a GPT requirement and what is required by reserved law, a procedural type duty helps to ensure that the requirements of the reserved law would prevail. We have also outlined in the first part of this section why a unitary compliance duty would not work for multiple treaties due to overlapping rights and their interpretations.

2.4.3 Further considerations

We recognise the strength of feeling from stakeholders on the need to maximise the impact of the GPTs for the people they are designed to protect. We intend to use the forthcoming period to continue to explore options for how we might go further in this area.