The mandate of the Scottish Government led Taskforce was to make policy recommendations by March 2021 to inform development of a new statutory human rights framework for Scotland, along with the associated requirements of a public participatory process and capacity-building to enable its effective implementation (see Annex A for full Terms of Reference).
This Report is now presenting and making public the Taskforce's proposed high level policy objectives and related specific recommendations for the development of a new statutory human rights framework. It is then clearly for the Scottish Government to determine next steps and a way forward. The Taskforce recognises that the government in so doing will need sufficient flexibility, so that it may take into account all relevant considerations in determining how best it wishes to achieve the proposed policy objectives.
It should be noted that the Taskforce collectively reached agreement on the recommendations presented in this report. However, in some areas, there were, as you would expect, a variety of different views where members worked together to reach a decision. Although inevitably impacted by Covid, the Taskforce has carried out extensive public engagement, including with public authorities, which has directly informed its recommendations which are outlined in Chapter 2. (See Annex E for a summary of public engagements).
This extensive evidence base from public engagement has been supplemented by the Report of the First Minister's Advisory Group on Human Rights Leadership (FMAG), the briefing papers provided by the Taskforce's Academic Advisory Panel, the Bonavero Institute Report, the UNCRC (Incorporation) (Scotland) Bill and the Programme for Government. (See Chapter 1 for more detail).
Among the key findings were a broad support for the FMAG recommendations, along with an increased scale of ambition due to the lessons from the impact of Covid, as well as the widely recognised needs of effective implementation, public participation, adequate resources, access to remedies, monitoring of outcomes and development of a human rights culture.
These key findings helped support the development of overall strategic policy aspirations for the new statutory human rights framework.
The strategic policy aspirations directly respond to the key findings with a primary aspiration being that the framework protects human rights to the maximum extent possible.
The purpose of this protection is to improve the lives of individuals and communities and so should be experienced in their everyday life with access to courts being a last resort. This has been the approach of the UNCRC (Incorporation) (Scotland) Bill and is an approach which has been broadened by the Taskforce in developing its recommendations for a broader statutory human rights framework.
- reaffirming the civil and political rights contained within the Human Rights Act, which gives domestic effect to the European Convention on Human Rights;
- keeping pace through monitoring and adapting future progressive rights developments within the EU, the Council of Europe and the broader international human rights framework; and
- demonstrating leadership through not only incorporating but also effectively implementing the full range of economic, social, cultural and environmental rights and specific rights for specific groups from UN human rights treaties.
All of these rights are internationally recognised as universal and indivisible, interdependent and interrelated.
An approach like this would integrate these rights from UN treaties as a whole into the new proposed statutory framework.
Additionally, the Taskforce recognises that there are rights which do not yet have their own UN treaties, but which can nevertheless be drawn from existing UN treaties and would therefore benefit from being included within a new framework which demonstrates human rights leadership by securing adequate protection for all.
Such rights include the right of everyone to a healthy environment, the rights of older people and the rights of LGBTI people.
The new framework should then for the first time in Scotland's history not only put in a single place the human rights belonging to everyone, but also ensure equal and full enjoyment of such rights by everyone.
Accordingly, the Taskforce's key recommendations on rights to be included within the framework include the following, so far as possible within devolved competence:
- Reaffirming the relevant rights in the Human Rights Act;
- Incorporation of the International Covenant on Economic, Social and Cultural Rights (ICESCR) which includes:
- the right to an adequate standard of living including adequate food, clothing and housing and to the continuous improvement of living conditions
- the right to the highest attainable standard of physical and mental health
- the right to education
- the right to social security, and
- the right to take part in cultural life
- A right to a healthy environment for everyone
- Incorporation of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)
- Incorporation of the Convention on the Elimination of All Forms of Racial Discrimination (CERD)
- Incorporation of the Convention on the Rights of Persons with Disabilities (CRPD)
- A right of older people to a life of dignity and independence
- Equality rights for LGBTI people
Further elaboration on all of the above rights, including the policy objectives and evidence base, is to be found in Chapter 2.
Of course the UN Convention on the Rights of the Child is currently being incorporated by means of the UNCRC (Incorporation) (Scotland) Bill and it is important to ensure this new statutory framework aligns with it.
Approach to Incorporation
In consideration of the legislative requirements to give effect to these rights the Taskforce considered the approach to the UNCRC (Incorporation) (Scotland) Bill. This Bill took a direct (reproducing the text of the treaty) and a maximalist (providing the widest protection possible within devolved competence) approach.
The Taskforce considers that this direct approach, as taken in the UNCRC (Incorporation) (Scotland) Bill, would be one effective way to ensure that the rights and obligations enshrined in these international instruments are most fully and comprehensively incorporated into domestic law.
This is because direct incorporation would be one effective way to allow rights-holders and duty-bearers to draw on the standards and interpretative documents developed by international human rights bodies, and where appropriate other jurisdictions, in order to keep pace and align with international obligations.
The Taskforce also considers that, based on FMAG recommendations and the evidence received, the best approach to incorporation would be to have a comprehensive single Bill where all treaties considered in the Taskforce remit are incorporated together. As human rights are indivisible, interdependent, and interrelated, a one-Bill approach with all treaties incorporated will help to reinforce the inter-relationship between all rights and obligations. The Taskforce recognises that an inflexibly direct approach to incorporation might not be the most effective way to deliver an optimally coherent framework when incorporating multiple treaties at once.
In its public engagement the Taskforce learned that many civil society bodies were of the view that a one-Bill approach will provide clarity and lead to stronger empowerment. Public sector representatives stated that an integrated approach towards incorporation of the treaties would assist with effective implementation which delivers a rights-based culture change in practice.
Stakeholders also consistently emphasised to the Taskforce the importance of recognising people's multiple identities and the need to address issues of intersectionality in overcoming barriers to their rights. This too would be supported by the integrated incorporation of the treaties. Although the Taskforce sees clear merit in the approach taken by the UNCRC (Incorporation) (Scotland) Bill, it recommends a number of additional elements, which will help to achieve the policy objectives of the proposed broader human rights framework. The Taskforce recognises there will be a need to further understand the implications of using this approach when incorporating multiple treaties. This will be explored in the further development of the framework
A number of additional elements are recommended to strengthen the legislative framework. The primary purpose of these are to ensure, as far as possible, effective implementation of the framework and so improve people's lives.
They include proposals which provide a broad range of proposed implementation duties for the Scottish Government, public authorities and courts, as well as statutory and non-statutory guidance and also provide increased access to justice for individuals and communities.
The policy objectives of all of these recommended provisions are elaborated in Chapter 2.
In addition to the legislative requirements for effective implementation of the framework, the Taskforce considered other actions which would be helpful in the implementation of the Framework.
Public engagement and all of the evidence base has pointed to four distinct but related areas of focus of human rights capacity-building required for effective implementation of the new framework.
- Firstly, there is a need to further improve the decision-making of public authorities, or duty-bearers, through building human rights capacity.
- Secondly, there is a need to further develop the everyday accountability of public authorities through further strengthening the human rights role and capacity of scrutiny bodies, made up of regulators, inspectorates and complaints handling bodies.
- Thirdly, there is a need to ensure that rights-holders know and can exercise their rights.
- Fourthly, there is a demonstrable need of the strengthening of access to justice as elaborated in Chapter 3.
The evidence base has also emphasised that a public participatory process is an indispensable part of the preparations of a new statutory human rights framework and its implementation.
This can help to increase public awareness, facilitate the public taking ownership of the process, including identifying the requirements of – and contributing to – the capacity-building and other steps needing to be taken to ensure the effective implementation of the framework.
Public participation is also essential on an ongoing basis and in multiple ways to ensure the proper functioning of the new framework and the effective implementation of the Act.
A final key finding from the evidence base on implementation requirements is that improving the monitoring of outcomes is indispensable in order to measure the results obtained on the ground from the implementation of the new human rights framework, in other words understanding to what extent the framework is making rights real.
Further elaboration on capacity-building, public participation and monitoring of outcomes is to be found in Chapter 3.
The Taskforce fully recognises the challenges faced by the Scottish Government in determining and implementing the next steps to be taken in this process, particularly in the context of so many demands being placed upon it in the context of the post-Covid recovery and other competing policy objectives.
However, the establishment of such a new statutory human rights framework is in itself an urgent and essential part of Scotland's values-based and sustainable post-Covid recovery. This is what it means to implement the call of the UN for all countries to "build back better" through placing human rights at the centre of all recovery efforts.
These next steps are likely to include a pre-legislative consultation process, preparation of legislation and policy and explanatory memoranda, the parliamentary legislative process and a public participatory process, development of statutory and non-statutory guidance, capacity-building and development of training and good practice.
All the members of the Taskforce, its Working Group and the many others with whom it has engaged, are committed to providing every support to help these steps to be taken as successfully and as soon as practically possible.
This is because these are the next steps to be taken to secure people's rights in practice. It is this which will demonstrate human rights leadership in and by Scotland and help to build a better country in a better world.
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