Human Rights Bill for Scotland: discussion paper

2.7 Legislation & Compliance Questions

2.7.1 Reading legislation

We propose to require that ASPs and SSIs be read and given effect to, so far as possible, in a way that supports compliance with both elements of the Bill’s Compliance Duty^[48] by placing an interpretative obligation on public authorities, including the courts. Where the court finds that legislation cannot be read in a way which is consistent with compliance, this part of the Bill would provide superior courts with a power of declarator, whereby the court identifies the inconsistent words but defers to Parliament or Government to provide the solution. Specifically, we propose a provision akin to that contained in Section 3 of the HRA 1998, requiring that, so far as possible, legislation falling within the ambit of the Bill must be read and given effect in a way which is consistent with the duties to comply with, and continuously improve (’progressively realise’) the ICESCR core requirements. This should enable domestic courts to apply existing legislation of the Scottish Parliament in ways that reflect the Bill’s proposed duties, will support the Bill’s implementation, secure non-repetition of potential breaches for other rights-holders in the future, and thus represents an efficient route to justice. It is important to note that this interpretative obligation applies not just to courts but to all public authorities. This means that where a public authority’s legal obligations can be interpreted in different ways, the interpretation which more fully realises the ICESCR core requirements is to be preferred.

There may be circumstances in which the Compliance Duty may require an action which is expressly prohibited by existing legislation, or conflicts with a requirement in existing legislation. If a consistent reading is not possible, then we propose public authorities will have a defence (akin to section 6(2) HRA 1998) where they were compelled to act incompliantly by a conflicting statutory duty. A key consideration in this context (as in many others in developing the Bill) has been how proposals for the Bill interact with reserved law, particularly the EA 2010. Our proposals include explicit provision to make clear that statutory requirements take precedence over Bill duties whenever irreconcilable tensions or conflicts in the requirements of the two frameworks cannot be resolved through the interpretative obligation. Furthermore, as with the UNCRC Act 2024, the interpretative obligation cannot be applied to UK enactments.

2.7.2 Questions of Compliance

We propose including sections in the Bill which would perform the same function as Part 5 of the UNCRC Act 2024 (noting that ‘compatibility’ plays a similar role in the UNCRC Act 2024 to the concept of ‘compliance’ in our proposals). Part 5 of the UNCRC Act 2024 makes provision for a system for the courts to consider compatibility questions (in civil proceedings) and UNCRC compatibility issues (in criminal proceedings) relating to the compatibility of legislation with the UNCRC requirements and public authorities’ compliance with those. In the context of the Human Rights Bill, we propose making provision to define a compliance question as being a question whether a public authority is in breach of either limb of the ICESCR Compliance Duty. Given that it is not our intention that the rights and duties created by the Bill should be considered and applied by courts in the context of criminal proceedings, we do not intend to make provision for an equivalent to ‘compatibility issues’. We also propose powers for the Lord Advocate to institute proceedings to determine a compliance question or intervene in proceedings where a compliance question arises. Finally, we propose provision for courts or tribunals to refer compliance questions to higher courts and for direct reference to the Supreme Court, with appropriate provision made for any additional expenses arising as a result of the Lord Advocate’s involvement in proceedings. We consider that these measures are necessary to ensure the coherence of the Bill with the wider incorporation landscape.

2.7.3 Power of Declarator

Our proposals include a discretionary power for the Supreme Court, or the Court of Session, to issue a declarator that the legislation cannot be read or given effect in a way which is consistent with the duties to comply with, and continuously improve (’progressively realise’) the ICESCR core requirements. Our proposals largely mirror those found in these other frameworks, namely Section 4 of the HRA 1998 and Section 26 of the UNCRC Act 2024. It is a discretionary power in that the court may grant the declarator but cannot be compelled to do so. The granting of such a declarator has no legal effect on the operation of the legislation or the obligations of the parties to the action. Rather, it highlights an issue with domestic legislation which only Government or Parliament have the means – and the democratic mandate – to remedy.

This approach reflects limits to the Scottish courts’ power to read and interpret provisions so as to reach a meaning which is consistent with compliance. Such limits are inherent in the constitutional convention of the separation of powers.

2.7.4 Remedial regulations

One way in which Scottish Ministers might respond to a declarator of incompatibility would be to make remedial regulations, amending the legislative provision so as to achieve the required consistency with compliance. Drawing on the framework of the UNCRC Act 2024, our proposals provide two processes for making remedial regulations, one that is normally to be followed and an alternative process where there is a need to act more quickly than the normal process would allow.

The proposed power for Scottish Ministers to make remedial regulations can be used to remedy any provision of affected legislation which is not consistent with compliance with the duties to comply with, and continuously improve (‘progressively realise’) the ICESCR core requirements, on condition that the Scottish Ministers consider that necessary or expedient and are satisfied that there are compelling reasons for making remedial regulations as distinct from taking any other course of action. There is a parallel power in the Convention Rights Compliance (Scotland) Act 2001 (regarding ECHR breaches), which the remedial regulation powers in both the UNCRC Act 2024, and now proposed for this Bill, are modelled on. The experience of the 2001 Act is that the compelling reasons test sets a relatively high threshold and, as such, primary legislation may also be used to respond to a declarator on compliance.

2.7.5 Reviewing new legislation

We propose to provide a ‘statement of compliance’ mechanism ensuring that those proposing new legislation – be it Scottish Ministers or individual MSPs – take steps to check that their legislation is consistent with the Bill’s duties to comply with, and continuously improve (’progressively realise’) the ICESCR core requirements. We propose that this requirement applies to all types of relevant Public Bills on their introduction. This would cover all relevant Government Bills, Members’ Bills and Committee Bills introduced to the Scottish Parliament. By ‘relevant’ Public Bills, we mean only those that engage the incorporated economic, social and cultural rights in the Bill (which the Bill’s Compliance Duty will attach to). This formulation will reflect the way in which we propose for the Bill’s Compliance Duty to operate.

There are similar pre-legislative assessment requirements in the statutes that make up the wider rights incorporation landscape and we have sought to align with these as far as possible.^[49] Our proposals here therefore contain similar or identical features with the analogous certification requirements found in the HRA 1998 and UNCRC Act 2024. However, there are also aspects of our proposals that have been designed to reflect the distinct nature of the Bill’s Compliance Duty, and the way in which that duty has been designed to apply to the incorporated economic, social and cultural rights. Indeed, we refer here to a statement of ‘compliance’, rather than of ‘compatibility’ (the latter reflecting the duties in the HRA 1998 and UNCRC Act 2024). Proposers of primary legislation will therefore need to certify on introduction – via a written statement – that the provisions in their legislation are consistent with the Bill’s Compliance Duty.

2.7.6 Alternative approaches

2.7.6.1 Power to strike down legislation found to be inconsistent with compliance

In considering what powers courts should use to remedy non-compliant legislation, we have considered similar provisions found in the forerunner rights incorporation frameworks. We have noted that the HRA 1998 gives superior courts power to issue a declaration of incompatibility in respect of primary UK legislation which cannot be read compatibly with ECHR rights. This means that the legislation remains in force, and the matter is essentially referred to the UK Parliament to take whatever action (or inaction) it sees fit. This measure was designed as a way to respect and preserve Parliamentary supremacy. In the devolved context, the Scotland Act 1998 gives superior courts power to ‘strike down’ primary legislation of the Scottish Parliament which is found to be beyond its competence. Because compatibility with the ECHR is one of the limitations on the legislative competence of the Scottish Parliament,^[50] it follows that Scottish legislation which is not compatible with the ECHR can be struck down. The UNCRC Act 2024 gives the courts the ability to strike down incompatible legislation and the ability to issue an incompatibility declarator (although the appropriate remedy depends on whether the incompatible legislation was passed before or after the duties in the UNCRC Act 2024 commenced).

Following careful consideration, we have come to the view that strike down is inappropriate and potentially unworkable in the context of proposals for the Human Rights Bill. As explained in the discussion of ICESCR requirements (section 2.3), our approach to duties is different from the approach of the HRA 1998 and the UNCRC Act 2024, both of which contain a compatibility duty that focuses on whether or not an individual breach has happened. By contrast, the Compliance Duty we propose is more forward looking, by deliberate design, to suit the economic, social and cultural nature of the ICESCR requirements, which require to be viewed prospectively as well as in the immediate circumstances. That concept of ‘progressive realisation’ is particularly constructive in the overall direction and momentum it creates regarding the actions and decisions of public authorities. However, applying it to discrete pieces of legislation in isolation (current or proposed) is more difficult, because legislation is usually capable of being implemented in a range of different ways, which may fulfil the requirements to greater or lesser degrees; and a single piece of legislation is often only one part of a wider statutory landscape which has a collective effect on the fulfilment of ICESCR rights. This is why the power to issue a declarator is framed in terms of consistency with compliance with the duty, with the concept of ‘consistency’ providing the necessary latitude to apply the concept of progressive realisation to discrete pieces of legislation.

We are also conscious of the view that the incorporation of economic, social and cultural rights requires a considered approach to the balance and separation of power between the pillars of state; that strengthening the role of the courts in relation to matters of socio-economic policy-making – including the design and delivery of public services and the setting of public spending priorities – inevitably constrains the powers of executive and legislative arms in these matters. Recognising the implications of these proposals, we are seeking to strike the correct balance between arms of the state in developing, reviewing and implementing policy, taking account of their respective institutional competencies and strengths. For example, remedies required for breaches of ICESCR rights could entail the reformulation of the policy or practice which led to the breach. This potentially could involve detailed planning to improve complex operational policies and practices without causing unintended consequences or detriments to other rights-holders. We think that the structures and processes of civil court procedure would make these tasks difficult for courts and tribunals without support and input from other institutions (i.e. part of a multi-institutional model). As discussed above we believe a better approach is to create a hook for courts and tribunals to develop and deliver structural remedies through granting orders which would require the relevant public authority to identify and take steps to remedy any breach that has occurred.

That context also leads us to the view that ‘strike down’ powers regarding legislation would be too blunt a tool for resolving such complex and nuanced problems in practice. Making a practical difference is at the heart of our proposals, and the approach we have outlined provides for a more nuanced approach. It will create different routes to remedy any breaches, and embed a rights respecting approach into the work of all those covered by the duties in the Bill.

2.7.6.2 Statements of compliance for Scottish Statutory Instruments (SSIs)

We do not propose to extend the requirement for a statement of compliance to the introduction of SSIs. This would mirror the approach for the statement of compatibility requirement found in the HRA 1998, but would diverge from the approach taken in the UNCRC Act 2024. Our basis for proceeding in this manner is finely balanced, and takes into account the operational consequences of extending the statement of compliance requirement to cover SSIs. Considerations here are heightened by the volume of SSIs that come before Parliament and, as such, the potentially disproportionate resources needed to certify relevant SSIs.

2.7.7 Further considerations

In light of feedback from stakeholders, we wish to explore the approach taken to statements of compliance in relation to applying the requirement to SSIs, taking into account learning from the ongoing implementation of the analogous statement of compatibility requirement in the UNCRC Act 2024.