Chapter 1: Terms of Reference, Methodology and Approaches, Evidence Base, Scope of Engagement and Members of Taskforce
Terms of Reference for the National Taskforce for Human Rights Leadership
(full detail at Annex A)
The Terms of Reference stated the role of the Taskforce was:
"To design and deliver detailed proposals for a new statutory human rights framework for Scotland, together with the associated requirements for a public participatory process and for capacity-building initiatives. In doing so it will have particular regard to the recommendations presented in December 2018 by the First Minister's Advisory Group on Human Rights Leadership."
The Terms of Reference also state that the detailed proposals developed and published by the Taskforce must be capable of being implemented by an Act of the Scottish Parliament which means they must be within devolved competence.
The Taskforce is to ensure that its recommendations are appropriately informed by public engagement and a public participatory process.
Summary of Methodology and Approaches
In developing its overall analysis and recommendations the Taskforce adopted the same human rights-based methodology of Structure, Process and Outcome which was followed by the FMAG and which was subsequently endorsed in its Report by the internationally renowned Bonavero Institute.
- Structure is the human rights commitments made in the legal and governance framework of Scotland.
- Process is the effort to implement such commitments.
- Outcome is the result in real life of the commitments and efforts.
In developing its recommendations for a new statutory human rights framework the Taskforce adopted three complementary approaches – internationalist, maximalist and multi-institutional.
Firstly, an internationalist approach would put into domestic law, and for the first time in a single place, the human rights belonging to everyone, including a broad range of internationally recognised human rights from UN treaties.
These UN treaties, taken together and treated as a whole, have over time established the international human rights framework which continues to evolve in facing new challenges.
These are also treaties which are signed and ratified by the UK and form part of our international obligations. Treaty bodies have repeatedly called on the UK to incorporate the standards into domestic law.
This approach enables us to keep pace with international rights developments and cooperate internationally in, for example, addressing the urgent challenge of climate change through including the right to a healthy environment within the proposed new statutory framework.
We will continue to learn from international best practice as well as in turn contribute to that, for example through recognising within the proposed new statutory framework the rights of older people, and in doing so contribute to the current preparation of a new UN treaty on the rights of older people.
Secondly, a maximalist approach in this context is to aim to achieve the most effective promotion and protection of human rights within our current constitutional arrangements.
This includes mitigating the risks of regression, keeping pace through monitoring and adapting future progressive rights developments within the EU, Council of Europe and the broader international human rights system.
Critically, it is demonstrating leadership through not only incorporating but also effectively implementing the full range of economic, social, cultural and environmental rights to be found in UN human rights treaties. All of these rights are internationally recognised as universal and indivisible, interdependent and interrelated.
A maximalist approach further recognises and responds to the reality that there are people in society whose rights are least well realised in practice and who face the biggest barriers for the recognition and realisation of their rights. These include women, children, disabled people, minority ethnic people, older people and LGBTI people.
This maximalist approach, as described, integrates all of these rights and UN treaties as a whole into the new proposed statutory framework so far as possible within devolved competence.
Thirdly, a multi-institutional approach is about sharing human rights leadership and responsibility among parliament, government at all levels, and the courts, as well as our justice system more broadly.
Such an approach also recognises the roles of regulators, the ombudsman, inspectorates and national human rights institutions in providing access to remedy and accountability for rights violations.
In this way, the sum is greater than any of the parts, there is no reliance upon a single institution and a broader human rights culture can be developed.
Very importantly, this approach also increases the extent to which the public can participate in law, policy and decision-making at all levels. It is public participation which is the best guarantor of human rights.
Summary of Evidence Base
This provided a significant evidence base, in that it was the product of considerable public engagement, comprehensive analysis of the human rights situation in Scotland and has been broadly welcomed by the Scottish Government and Scottish Parliament, as well as civil society. Its approach has now also been endorsed by the Report of the internationally renowned Bonavero Institute.
The Taskforce Academic Advisory Panel
The Taskforce is indebted to its Academic Advisory Panel, chaired by Professor Nicole Busby of the University of Glasgow and composed of leading human rights academics, who contributed a series of valuable briefing papers on key aspects of the development of a new statutory human rights framework, including the following:
"The Essential Features of an Equality Clause and the Potential Incorporation of CEDAW", Professor Nicole Busby, University of Glasgow
"Incorporation of the CERD and CRPD and Equivalent Rights Provision for LGBTI Communities and Older Persons", Professor Nicole Busby, University of Glasgow and Dr Kasey McCall-Smith, University of Edinburgh
"The Meaning and Content of Duties to be Considered for Inclusion in the Bill", Dr Katie Boyle, University of Stirling
"The Underpinning Concept of Human Dignity", Dr Elaine Webster, University of Strathclyde
"Scotland's Future Relationship with the EU and the Development of Human Rights Under EU Law", Professor Tobias Lock, University of Maynooth
"Minimum Standards for Delivery of Economic, Social and Cultural Rights", Dr Kasey McCall-Smith, University of Edinburgh
"Access to Justice for Economic, Social and Cultural Rights", Dr Katie Boyle, University of Stirling
"Access to Remedy – Systemic Remedies and Structural Orders", Dr Katie Boyle, University of Stirling
The Report of the Bonavero Institute
The Taskforce is also privileged to receive from the Bonavero Institute a Report on the "Development and Application of the Concept of Progressive Realisation". This paper was commissioned by the Taskforce.
The concept of progressive realisation is a critical component of the duties under international human rights to implement economic, social and cultural rights and, together with other obligations of international law, forms an extremely important part of the recommended new statutory human rights framework.
The Institute, housed within the Faculty of Law at the University of Oxford, undertakes world class research in the field of human rights law and fosters public engagement in human rights issues.
It is noteworthy that the internationally renowned Bonavero Institute affirmed the human rights-based approach taken by the FMAG.
The Taskforce's work has been influenced by the Report and has benchmarked its recommendations against the approach and five principles recommended by the Report.
An extract from the Report's Executive Summary is reproduced here for ease of reference:
"The report suggests five principles that a government needs to bear in mind when seeking to provide for the domestic protection and fulfilment of international human rights obligations beyond their legislative restatement.
- Firstly, in the case of human rights that impose positive obligations, legislation – whether primary or secondary – should be enacted stipulating the benefits that will be provided by government (or where appropriate a private body) to fulfil the rights. Government, or the appropriate private actor, should then provide a process through which those benefits can be obtained.
- Secondly, government needs to ensure that state agencies (and where appropriate, private institutions) tasked with the fulfilment of human rights are properly resourced and undertake their duties effectively, responsively and openly.
- Thirdly, governments need to provide an effective process for monitoring the implementation of rights and for monitoring budgetary allocations to the fulfilment of rights.
- Fourthly, governments should consider a pluralistic institutional model for rights enforcement involving parliamentary committees, courts, tribunals and fourth branch institutions such as ombuds and human rights commissions.
- Fifthly, government needs to determine what institutional provision will be made for circumstances where government fails to act progressively to realise rights. The report notes that in both Colombia and South Africa courts are central to this process, while in Finland a wider range of institutions play a role. In considering what institutional mechanism should be adopted to address this situation, the report suggests that attention be paid to questions of history, constitutional politics and legal culture."
Summary of Scope of Engagement (further details in Annex E)
The evidence base of the Taskforce also benefited immensely from the wide public engagement, although the outbreak of the pandemic impacted on the Taskforce's intended public participatory process, causing time to be lost and requiring a transition to online public engagement.
Online engagement did, however, facilitate broad geographical representation and the participation of those who may have found it difficult otherwise to engage with the Taskforce. It is acknowledged, however, that engagement was also more limited to those who could do so online.
Over forty roundtables were held across all of the areas of focus of the Taskforce and five standing Reference Groups were established representing the breadth of civil society and the public sector as well as bodies engaged with CEDAW, CRPD and CERD.
In addition, and on behalf of the Taskforce, the Human Rights Consortium Scotland and the Scottish Human Rights Commission developed a rights-holders participatory project entitled All Our Rights in Law, to ensure that the voices of those with direct lived experience of not having their rights realised effectively contributed to the process. More than 35 conversations were hosted by civil society organisations as part of this project, enabling many individuals who are seldom-heard in human rights developments to give their views. In addition, Together (The Scottish Alliance for Children's Rights) facilitated discussions with children and young people around rights of disabled children, rights of minority ethnic children, and the right to a healthy environment.
Positive political engagement also took place across all of the political parties represented in the Scottish Parliament.
Other contributors to the Taskforce engagement process included senior representatives of the UN, as well as representatives from the Welsh Government, the Northern Ireland Executive and the UK Parliament.
The Taskforce also benefited from engagement with Scottish Government officials, including those involved in preparing the UNCRC (Incorporation) (Scotland) Bill.
All of the above enabled the Taskforce to learn a great deal from a wide range of sources within Scotland, the UK and internationally, and this significantly added to the breadth of experience and expertise which already existed among the members of the Taskforce.
Specifically, the Taskforce was able to assess the extent of the support for the FMAG recommendations for a new framework and how best to build upon that, taking fully into account the lessons from the pandemic and from the UNCRC Bill process.
The public engagement also enabled the Taskforce to identify the nature of opportunities and challenges presented in general by a new framework and, specifically, in relation to the possible incorporation of CEDAW, CRPD and CERD, as well as to identify the most effective means of implementation of the framework.
Members of Taskforce
The Taskforce contained a distinctive breadth of expertise and experience of members, including from government, local authority and health sectors, civil society, national human rights institutions, academia, the legal profession, and the former Legal Adviser to the Joint Committee on Human Rights at Westminster.
These members were supplemented by other individuals who joined the Working Group of the Taskforce and also, of course, by the members of the Taskforce Academic Advisory Panel (see Annex B).
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