Publication - Independent report

National Taskforce for Human Rights: leadership report

Published: 12 Mar 2021
Directorate:
Housing and Social Justice Directorate
Part of:
Equality and rights
ISBN:
9781800047105

The report and recommendations of the National Taskforce for Human Rights Leadership.

National Taskforce for Human Rights: leadership report
Chapter 2: New Statutory Human Rights Framework Recommendations

Chapter 2: New Statutory Human Rights Framework Recommendations

The proposed new statutory human rights framework is to build upon the recommendations of the FMAG Report, the maximalist approach taken to the UNCRC (Incorporation) (Scotland) Bill and the breadth of evidence obtained by the Taskforce through its public engagement and Reference Groups, as well as from its Academic Advisory Panel, the Bonavero Institute and other submissions.

For the first time and within the current constitutional arrangements, it is proposed to put in a single framework the broad range of modern internationally recognised human rights belonging to everyone – including re-stating the civil and political rights already provided through the Human Rights Act, along with the economic, social, cultural and environmental rights from UN treaties – and it will seek to ensure full and equal enjoyment of all of those rights for women, children, disabled people, minority ethnic communities, older people and LGBTI people.

Strategic Policy Aspirations, Policy Objectives and Recommendations

The strategic policy aspirations for this group of Taskforce recommendations are:

1. The framework further protects people's internationally recognised rights where they are not currently protected in law or given adequate focus in practice

2. The framework brings focussed attention to the rights of those whose rights are least realised or given attention to in society

3. The framework protects the identified rights to the maximum extent possible within current devolved competence

Policy Objective 1: Enjoyment of Economic Social and Cultural Rights belonging to everyone

The policy objective is that the framework is to provide to everyone in Scotland the economic, social and cultural rights which are internationally recognised but have not yet been brought into our domestic law, policy and practice.

Further elaboration on the incorporation of ICESCR is to be found in the FMAG Report, the Bonavero Institute Report and the papers from the Academic Advisory Panel, including: "Access to Justice for Economic, Social, Cultural and Environmental Rights: Principles of Adjudication" by Dr Katie Boyle; "Minimum Standards for Delivery of Economic, Social and Cultural Rights" by Dr Kasey McCall-Smith; and "Access to Remedy – Systemic Issues and Structural Orders" by Dr Katie Boyle.

It will be important to consider during Bill development to what extent the Bill could build on the rights contained in ICESCR and also, for example, take account of the rights in the European Social Charter. Although, unlike the 1961 Charter, the 1996 revised Charter has not been ratified by the UK Government, it can provide inspiration for this statutory framework.

Recommendation 1(a): The following rights are recommended for inclusion in the new statutory human rights framework:

Re-stating the rights protected by the Human Rights Act which gives domestic effect to the European Convention on Human Rights and includes the following civil and political rights:

  • Right to life
  • Freedom from torture and from inhuman or degrading treatment or punishment
  • Freedom from slavery or servitude or being required to perform forced or compulsory labour
  • Right to liberty and security of person
  • Right to a fair trial
  • Freedom from punishment without law
  • Right to respect for private and family life, home and correspondence
  • Right to freedom of thought, conscience and religion
  • Right to freedom of expression
  • Right to freedom of peaceful assembly and to freedom of association, including the right to form and join trade unions
  • Right to marry
  • Right to protection of property
  • Right to education
  • Right to free elections
  • Right to non-discrimination in the exercise of all of these rights

Recommendation 1(b): Incorporation of the International Covenant on Economic, Social and Cultural Rights (ICESCR)

For information purposes, this Covenant includes for everyone economic, social and cultural rights including the following:

  • Right to an adequate standard of living, including the rights to adequate food, clothing and housing and the continuous improvement of living conditions
  • Right to the enjoyment of the highest attainable standard of physical and mental health
  • Right to education
  • Right to social security
  • Right to take part in cultural life

Policy Objective 2: Enjoyment by everyone of a healthy environment

The policy objective is to enable everyone to benefit from healthy ecosystems which sustain and promote human health and wellbeing, as well as the right to access to information, participation in decision-making and access to justice.

The right to a healthy environment is based upon existing international human rights treaties (including those that the proposed statutory framework will incorporate, as well as the UN Convention on the Rights of the Child) and international environmental treaties.

A significant finding of the three roundtables on the right to a healthy environment was that recognising this right can be a step change in supporting more coherent protection of all human rights, both from the perspective of rights-holders and duty-bearers.

Stakeholders generally concur with the Taskforce about the need to clarify the procedural and substantive content of this right in the statutory framework, explicitly linking the protection of inter-dependent environmental features with everyone's human health, in line with international standards such as the UN Framework Principles on Human Rights and the Environment and the Aarhus Convention.

More detailed policy features, explanation of this right and the supporting evidence are to be found in Annex D. This recommendation was the outcome of three stakeholder roundtables, as well as engagement with three UN Special Rapporteurs who participated in the Taskforce roundtables, including the former UN Special Rapporteur on Human Rights and the Environment who developed the UN Framework Principles.

Recommendation 2: Include the right to a healthy environment with substantive and procedural elements in the statutory framework.

Policy Objective 3: Full and Equal Enjoyment of Rights by Women

This policy objective includes providing full and equal access to all of women's rights, including to all of the above rights.

Making CEDAW more visible in law through incorporation has the potential to open up its use as a powerful awareness-raising tool in relation to women's continued disadvantage and existing right to equality. This could catalyse CEDAW's use as an agenda-setting framework capable of engendering the Public Sector Equality Duty, Fairer Scotland Duty and the proposed duties under the framework relating to economic, social, cultural and environmental rights in Scotland.

Further elaboration is to be found in the briefing papers from the Academic Advisory Panel, including "The Essential Features of an Equality Clause and the Potential Incorporation of CEDAW" by Professor Nicole Busby, which points out that further consideration will be required to navigate the equal opportunities reservation.

It should also be noted that the incorporation of CEDAW has been proposed by the First Minister's National Advisory Council on Women and Girls and is a commitment of the current Programme for Government.

Recommendation 3: Incorporation of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).

Policy Objective 4: Full and Equal Enjoyment of Rights by Minority Ethnic People

This policy objective is to enable the full and equal enjoyment of all of the above rights for minority ethnic people. The benefits of incorporation would go beyond litigation and bring a dynamism and cohesion to existing initiatives. For example, access to the rights within CERD would significantly strengthen the existing Public Sector Equality Duty and the Fairer Scotland Duty through making duty-bearers more accountable to take more proactive and outcomes-focused actions.

Incorporation of CERD would demonstrate a commitment beyond only symbolism and would build upon the current post-Covid heightened awareness of inequalities and further shift public perceptions and understanding of the underlying causes of continued racial discrimination.

Further elaboration is to be found in the papers from the Academic Advisory Panel, including "Incorporation of the CERD and CRPD and Equivalent Rights Provisions for LGBTI Communities and Older Persons" by Professor Nicole Busby and Dr Kasey McCall-Smith, which also points out that realisation of the rights contained in CEDAW, CERD and CRPD in Scots law is subject to the provisions of the Human Rights Act 1998, the Equality Act 2010 and other aspects of devolved competence.

Recommendation 4: Incorporation of the Convention on the Elimination of All Forms of Racial Discrimination (CERD).

Policy Objective 5: Full and Equal Enjoyment of Rights for Disabled People

The policy objective is to enable the full and equal enjoyment of all of the above economic, social and cultural rights for disabled people, as well as of additional specific rights.

Incorporation would emphasise the social, rather than the medical, model of disability and so help remove social barriers to full participation in society. It will help bring about a more cohesive framework and a more proactive and dynamic outcomes focus on the Public Sector Equality Duty and the Fairer Scotland Duty.

As with CERD, incorporation would demonstrate a commitment beyond only symbolism and would also build upon the current post-Covid heightened awareness of inequalities and support the necessary cultural change.

Further elaboration, including reference to competence constraints, is to be found in the papers from the Academic Advisory Panel, including "Incorporation of the CERD and CRPD and Equivalent Rights Provisions for LGBTI Communities and Older Persons" by Professor Nicole Busby and Dr Kasey McCall-Smith.

Recommendation 5: Incorporation of the Convention on the Rights of Persons with Disabilities (CRPD).

Model of incorporation of all of the above UN treaties

It is important that the way in which these UN rights treaties are incorporated is effective for ensuring the protection and realisation of rights in people's everyday lives. The Taskforce is of the view that there should be full incorporation, subject to competence constraints, of the above listed treaties in a one-Bill approach. The Taskforce also recognises that this proposed new statutory framework for human rights is very ambitious but also very new and complex.

The direct incorporation model, as adopted within the UNCRC (Incorporation) (Scotland) Bill, has the benefit of placing the rights being incorporated within the overall context and intent of the treaties as a whole. It recognises the interdependence among the UN treaties included within the framework as a whole and, furthermore, the Taskforce notes that this model has been broadly welcomed to date in the context of the UNCRC Bill.

Incorporation of treaties, as confirmed in the Bonavero Report, is of course a first step towards giving effect to the rights contained within the treaties and needs to be followed by further steps to give further effect to such rights in the domestic context.

The Taskforce also supports, the maximalist approach of the UNCRC (Incorporation) (Scotland) Bill as it is thought that it provides the widest possible promotion and protection of human rights within devolved competence for that Bill.

It is recognised that further consideration and consultation with stakeholders and others will be required around an approach to incorporation of multiple treaties in a one-Bill approach that achieves a coherent integrated framework which optimally delivers the overall policy objectives.

Furthermore, the Taskforce recognises that none of the recommendations stated here should hinder the advancement of the protection of rights through other legislation or processes, whether before or after the new human rights statutory framework is introduced.

Convention Against Torture

At present, there is significant if not complete protection of the Convention Against Torture (CAT) provided through the UK National Preventative Mechanism of the Optional Protocol of CAT and through the prohibition of torture and inhuman and degrading treatment or punishment provided by the Human Rights Act, as well as other mechanisms.

Notwithstanding the above protections, there is a case, based primarily upon consistency and coherence, for its incorporation along with the other recommended UN human rights treaties which have all been ratified by the UK but not yet incorporated.

However, as it did not significantly feature in any of the Taskforce public engagement, the Taskforce considers that there should be further exploration, as part of the development of this framework, of the benefits of incorporation of CAT at a later date.

Policy Objective 6: Full and Equal Enjoyment of Rights by Older People

The policy objective is to ensure older people can enjoy equal access to their rights through an overall right to lead a life of dignity and independence and to take part in social and cultural life, as previously provided by the EU Charter of Fundamental Rights.

Subsequent legislation could helpfully provide specific rights in such areas as health and social care, social security and protection, housing and education and others, in alignment with the Council of Europe Recommendations (2014)02 and the European Social Charter.

Further development of these rights should be informed by close monitoring and engagement with the current preparations by the Open-Ended Working Group on Ageing for a new UN treaty on the rights of older people.

Recommendation 6: A right for older people to be included in the statutory framework.

Policy Objective 7: Full and Equal Enjoyment of Rights by LGBTI People

The policy objective is to ensure full and equal enjoyment of rights for LGBTI people. In the absence of a specific UN treaty for LGBTI people, the right of equal access to the full enjoyment of all the above rights belonging to everyone should be provided by an equality clause within the Act establishing the new framework.

Further elaboration of broader purposes of the equality clause is to be found in Policy Objective 8.

Recommendation 7: An equality clause that protects and promotes the full and equal enjoyment of rights of LGBTI people.

Policy Objective 8: Recognise the reserved status of 'equal opportunities' whilst furthering equality of outcomes for those who require it most, including protected characteristics groups

The policy objectives include the following: to ensure equal access for all, including LGBTI people as specified above, in relation to all of the rights within the Bill to draw down the provisions of the economic, social and cultural rights to be directly incorporated; to specify the relationship between the proposed Act and the Equality Act 2010; and to align or delineate the 'Scottish specific' provisions of the latter and to aid in the interpretation of the new rights framework by all relevant parties.

This supports the practical and operational alignment of the proposed new human rights framework and the existing domestic equality duties framework.

Further elaboration is to be found in the paper by Professor Nicole Busby, "The Essential Features of an Equality Clause and the Potential Incorporation of CEDAW"

Recommendation 8: Include an equality clause which aligns with the Equality Act 2010 and provides equal access to everyone to the rights contained within the Bill.

Evidence base

The preceding recommendations are directly drawn from what the Taskforce learned from its public engagement and is included in the Taskforce evidence base. This is detailed in Annex E along with the full scope of public engagement.

The public engagement included around one hundred engagement events across a wide range of stakeholders, including civil society and individuals with lived experience of some denial of human rights as well as across the public sector.

The Taskforce established specific reference groups to provide it with focused advice. These included a Civil Society Reference Group and a Public Sector Reference Group, as well as reference groups relating to CEDAW, CERD and CRPD.

On behalf of the Taskforce, the Scottish Human Rights Consortium and the SHRC also led the All Our Rights in Law project, which gathered evidence from a wide representation of rights-holders, including those with lived experience of some denial of human rights.

The evidence base also includes key findings from the briefing papers from the Taskforce Academic Advisory Panel, the Bonavero Institute Report, the Scottish Human Rights Commission, the Equality and Human Rights Commission, Who Cares? Scotland and the LGBTI sector and others.

These summary notes from public engagement events including the reference groups, are all to be found in Annex E.

Additional Key Elements

The Taskforce recommends a number of additional key elements to achieve the policy objectives of the proposed broader human rights framework.

These additional key elements are recommended to strengthen the legislation introducing the framework. The primary purpose of these additional elements is to ensure as far as possible the effective implementation of the framework and so improve people's lives.

They include proposals which provide a broad range of 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 Strategic Policy Aspirations of this group of recommendations are:

4. The Framework, and human rights protection more widely, keeps pace with progressive international developments

5. The Framework ensures duty-bearers build human rights into all relevant processes and decision-making

6. The Framework ensures compliant and progressively realising human rights legislation is passed by the Scottish Parliament and consideration is given as to whether human rights-based monitoring and scrutiny of law and practice could be increased by the Scottish Parliament.

In line with these strategic policy aspirations the following additional key elements are recommended to be included within the legislation which establishes the new statutory human rights framework.

Policy Objective 9: Supporting Clear Purposive Interpretation

The policy objective of this recommendation is to provide aid in the interpretation of the rights and duties within the framework by being clear and explicit about its purpose.

For example, when seeking to interpret the framework legislation in their consideration of cases before them, the courts and tribunal system may benefit from a clearly expressed intent and will of Parliament.

The value of human dignity plays an important role underpinning international human rights law and has also assisted with the interpretation of rights and duties in different contexts.

Further elaboration of this concept of human dignity is to be found within the paper by Dr Elaine Webster, "The Underpinning Concept of Human Dignity."

Recommendation 9: The framework states the intent of the legislation is to give maximum possible effect to human rights and recognise that human dignity is the value which underpins all human rights. It is suggested this could be done via a purpose clause.

Policy Objective 10: Enable the implementation of the framework to keep pace with and contribute to developments in international law

Firstly, a clear policy objective for the Taskforce is to ensure that courts and tribunals and all bodies strive to achieve the intent of the legislation establishing the framework. This includes the underpinning value of human dignity which is recognised in international law and should be taken into account when interpreting the rights contained within the framework.

There should also be provision within the framework that nothing within it shall affect any provisions from domestic law or international law which are more conducive to the realisation of the rights within the framework.

Furthermore, there is a recommendation for Scottish Ministers to develop a human rights scheme which would provide for further domestic legislation to give further effect to the rights contained within the framework.

Together these provisions will further ensure that the framework provides evolving protection of rights in line with legal and social developments.

Secondly, to serve this objective through ensuring that the framework is interpreted in alignment with international standards. In order to achieve this it is considered that courts and tribunals should pay regard to international law. This should include decisions, General Comments and Concluding Observations from treaty bodies, as well as judgements, decisions, declarations or advisory opinions of the European Court of Human Rights and other sources.

The above includes all of the incorporated rights across the relevant treaties – ICESCR, CEDAW, CRPD and CERD – when relevant, so as to address issues of intersectionality.

Thirdly, the objective is to be served through providing that courts and tribunals may consider comparative law where relevant.

Recommendation 10: Provide that courts and tribunals are clear on the intent of the legislation including the underpinning value of human dignity, in relation to international law and to comparative law. It is suggested this could be done through an interpretative clause.

Policy Objective 11: Ensuring relevant organisations have appropriate powers to implement the statutory framework

It would be helpful if the powers for relevant organisations, such as the SHRC, were appropriately extended.

In the case of the SHRC, as Scotland's National Human Rights Institution, the Taskforce view is that there should be extension of the powers of the SHRC, to promote and ensure further compliance with human rights. As the institution mandated to promote best practice in relation to human rights and monitor compliance with human rights, the Taskforce considers that the SHRC could be provided with the power to be able to take test cases and conduct investigations.

Under a multi-institutional approach, increasing the powers and resources of Scotland's National Human Rights Institution would strengthen that institution's role in the capacity-building of a wide range of bodies, in support of the effective implementation of the framework. Further consideration will need to be given during the Bill development on whether there are other organisations that may also require a change or extension of powers to fully effect the legislation.

The SHRC is funded by the Scottish Parliament Corporate Body, therefore further consideration and discussion will be required to determine how to ensure this recommendation is adequately resourced.

Recommendation 11: SHRC should be given additional powers including taking test cases and conducting investigations and any further extended powers should be considered.

Policy Objective 12: Ensure the framework secures protection for rights-holders whilst allowing for adequate preparation time for duty-bearers in relation to commencement of duties

The Taskforce's engagement with duty-bearers has highlighted there will be a need to provide a sufficient period of time to make any necessary preparations for the commencement of the compliance duty, including the necessary culture change.

The Taskforce would suggest one useful way to do this would be to have a duty to pay due regard to the rights contained within the Act. This duty would come into effect at the commencement of the Act. Commencement should be as soon as possible after passage of the legislation.

A "sunrise clause" would then trigger the commencement of a duty to comply with the rights contained within the Act. This duty of compliance is to provide rights-holders with access to an effective remedy where necessary, as required by international human rights law.

It is anticipated that these duties of due regard and of compliance would be complementary and mutually reinforcing. The reasoning behind this suggested approach is to provide clarity for duty-bearers that the framework includes both obligations of conduct or process, as well as those of result or outcome. Together the duties may ensure proactive rights-based decision-making that could better meet rights-respecting outcomes for people.

However, the Scottish Government, in drafting the Bill, will wish to consider the best way to effect this policy objective along with the other overall policy objectives.

The Taskforce preference is for this to be within the lifetime of the next Parliament in order to provide certainty to both duty-bearers and rights-holders.

Further elaboration of the above is to be found within the FMAG Report at pages 28, 29 and in the Bonavero Report.

Recommendation 12: Provide for a sunrise clause approach leading to a duty to comply which secures protection for rights-holders whilst also allowing duty-bearers time to prepare for full commencement of the legislative framework.

Policy Objective 13: Ensure duty-bearers understand and implement the international obligations including the duty of progressive realisation

This policy objective is to ensure that there is explicit recognition, understanding and application of the duty of progressive realisation which is also inherent in the proposed framework.

This concept is critical to the effective implementation of the framework and is drawn from ICESCR, Article 2(1) to "take steps… to the maximum of its available resources with a view to achieving progressively the full realisation of the rights recognised in the present Covenant by all appropriate means, including particularly the adoption of legislative measures."

According to international human rights law standards, progressive realisation implies that duty-bearers have a continuous obligation to take deliberate and concrete measures aimed at the full implementation of the rights, as expeditiously and effectively as possible. This duty also implies that duty-bearers are obliged to not take any regressive steps that limit the realisation of rights, unless there are convincing justifications for doing so.

There are certain obligations, however, which are of such importance that they cannot be subject to progressive realisation and availability of resources. These are called minimum core obligations, and are intended to guarantee that the very minimum levels of a right are provided by duty-bearers. However, it is important to emphasise that these fundamental obligations should be seen as a floor and not a ceiling. In order to define what the minimum core obligations are in Scotland, international human rights law standards should be taken into account, while also ensuring a participatory process that takes into account the views and concerns of right-holders in Scotland.

Given the significance of this critical component of the framework, the Taskforce recommends that there should be a specific provision for the duty of progressive realisation.

To give effect to international human rights law standards, as recommended by the Bonavero Report's first principle, the Taskforce suggests that the framework requires the minimum core obligations of incorporated economic, social and cultural rights to be clearly defined following a public participatory process and taking into account international law obligations accompanied by an explicit duty of progressive realisation.

Recommendation 13: That there be a participatory process to define the core minimum obligations of incorporated economic, social and cultural rights, and an explicit duty of progressive realisation to support the effective implementation of the framework, which takes into account the content of each right.

Policy Objective 14: Enhanced pre-legislative assessment

The policy objective is to secure rights-compliant and rights-fulfilling legislation is passed by the Scottish Parliament which is subject to robust scrutiny and review. This can be done by providing for an enhanced pre-legislative assessment.

The intention would be for such an assessment to require that the full range of civil, political, economic, social, cultural and environmental rights within the framework are covered. The Scottish Parliament may wish to consider what further pre-legislative scrutiny it could undertake and the Equalities and Human Rights Committee's role in supporting that.

In furtherance of the duty of progressive realisation, any pre-legislative assessment should include how the proposed legislation would contribute to such progressive realisation and the further and ongoing advancement of the rights within the framework. Further elaboration is to be found on all of the above within the FMAG Report at page 36.

Recommendation 14: Pre-legislative assessment to be included in the framework – which could include a requirement to certify that any proposed Bill complies with the rights contained within the framework and demonstrate where the proposed Bill contributes to the advancement of such rights.

Policy Objective 15 – Securing implementation in practice

It will be important under the framework that Scottish Ministers are not only accountable for their actions in relation to the compliance duty, but that they are accountable for planning and reporting how they will fulfil the rights and obligations under the Bill in practice. Such a scheme will drive at proactive measures for the realisation of rights and enhance both transparency and scrutiny of steps taken.

The provision of a Human Rights Scheme is akin to that provided for by the Children's Rights Scheme in the UNCRC (Incorporation) (Scotland) Bill in relation to children's rights.

This assists in giving effect to the duty under ICESCR Article 2 (1) to "take steps… to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights recognised in the present Covenant by all appropriate means."

Additionally, Scotland's National Action Plan on Human Rights (SNAP) provides for a collaborative and participatory means of advancing the realisation of rights in key agreed priority areas. Placing SNAP on a statutory basis within the Bill, preserving its multi-stakeholder structure, would be a further way to build in a human rights-based approach to rights realisation under the framework.

Recommendation 15: Provide a duty on Scottish Ministers to publish a human rights scheme for the giving of further effect to the rights contained within this framework, to be held accountable for its implementation, to report specifically on how a duty to take the statutory human rights framework into account during the budgetary process was met, progress made on Scotland's National Action Plan for Human Rights, and to provide for periodic reporting duties on implementation plans for the Scottish Government and public authorities.

Accordingly, the Scheme, to be published and reported on, could include the following:

  • Reporting on the next iteration of Scotland's National Action Plan
  • Responses to UN treaty body recommendations and implementation of judgements of the European Court of Human Rights relating to areas of devolved competence
  • Ensure participation of affected communities in the making of decisions of a strategic nature, including budget decisions, which affect them
  • Make improvements to access to justice through complaints mechanisms, access to information and advocacy and representation
  • Make sure that people have access to information and advice about their rights where and when they need it
  • Raise awareness and promote human rights
  • Demonstrate how human rights have been considered in the Scottish Government's budgetary process.
  • Ensure actions contribute to the National Outcome to "respect, protect and fulfil human rights and live free from discrimination" and to the National Performance Framework as a whole
  • Prepare guidance on human rights implementation plans (as defined in further provision and/or statutory guidance including the "reasonable steps" expected to be taken by all public authorities in so doing)

The framework should require the Scheme to be laid before by the Scottish Parliament at regular intervals.

With regard to local authorities and other public bodies and again building on the approach of the UNCRC, further consideration should be given to a reporting requirement so that particular public authorities report on the steps taken to fulfil their duties under the framework.

Additionally a requirement for impact assessment and public participation where decisions of a strategic nature are being taken could be included within the framework, subject to the requisite guidance being given.

Further elaboration on SNAP is to be found in the FMAG Report at pages 44, 45.

Policy Objective 16: Clarity on intended application to all public functions

The policy objective is to ensure that the framework applies to private actors when they are exercising functions of a public nature. Clarity on this is considered necessary in light of the experience to date of judicial interpretation of the definition of performing of a public function in relation to the Human Rights Act and the expansion in privately provided public services in all areas of public life.

It is a well-established principle of international human rights law and public international law that the state cannot divest itself of its human rights obligations by outsourcing or delegating those responsibilities to private organisations or individuals. Rights-holders should be able to have confidence and clarity that, regardless of who carries out the public function, their human rights fully apply.

It is also important that, in determining any broadened definition, regard is paid to the UN Guiding Principles on Business and Human Rights and General Comment 24 of the UN Committee on Economic, Social and Cultural Rights.

Further elaboration of this is to be found within the FMAG Report, page 41.

Recommendation 16: Further consider the best approach to ensure there is clarity and certainty that relevant private actors carrying out public functions, and functions connected to the delivery of rights within the framework, are within the scope of the obligations in the framework.

Policy Objective 17: Clear Statutory and Non-Statutory Guidance

The policy objective is to facilitate the operationalisation of the rights and duties within the Bill, including implementation plans, reports and impact assessments. This can be advanced through the provision of statutory and non-statutory guidance. We highlight that such guidance is essential for the practical implementation of this framework in a way that drives a human rights culture and improvements in realisation of rights, as well as for enabling accountability to rights-holders.

We also consider that there would be benefit in this guidance including detail around the implementation of rights for particular groups. In our public engagement, for example, we heard of the barriers to rights faced by care experienced people, people with learning disabilities, deaf people, people affected by imprisonment, and people in the asylum system, amongst many others. The realisation of rights for these groups requires particular attention.

Further consideration of this issue is to be found within the summary notes of the roundtables of the Taskforce Public Sector Reference Group.

Recommendation 17: Ensure the Framework allows for making statutory and non-statutory guidance, which should be developed through consultation with key stakeholders, including rights-holders.

Please note that further key additional elements of legislative requirements are to be found in Chapter 3.

Alignment of the above proposed framework with developing international, European, UK and Scottish landscapes

The Taskforce recognises the importance of aligning the proposed new framework as far as possible with the shifting international, European, UK and Scottish landscapes.

International alignment – the framework will affirm Scotland's commitment to the international rules-based order including the UN human rights treaties which explicitly underpin the Sustainable Development Goals (SDGs).

The UN human rights treaties and the SDGs are mutually reinforcing. Implementation of the treaties support the realisation of the SDGs and realisation of the SDGs supports the implementation of the treaties.

This new framework will therefore help Scotland to make progress with both of these sets of international obligations. This will improve peoples' lives at home whilst contributing to broader progress internationally.

It will go further and demonstrate leadership in providing a right for older people to a life of dignity and independence, and in this way contribute to the work of the UN Open-Ended Working Group which is preparing a new UN treaty on the rights of older people.

Through providing a right to a healthy environment the framework will demonstrate support for the Paris Agreement, demonstrate global leadership in supporting climate justice and contribute to the international cooperation so urgently needed to face the underlying climate crisis.

It will join the over one hundred countries which have already enshrined this right in law and so add to the growing momentum for the UN itself to formally declare the human right to a healthy environment.

It will demonstrate global leadership in this area by addressing holistically and practically the inter-dependence of a healthy environment and human rights.

European alignment – the framework will help enable Scotland to put into practice its commitment to keep pace with progressive rights developments in the EU and the Council of Europe.

For example, the proposed duty on Scottish Ministers to present a human rights scheme to give further effect to the framework would be one means of adapting any such progressive rights developments within the EU and the Council of Europe.

Further, the framework practically reaffirms Scotland's commitment to the European Convention on Human Rights and to the rights contained within the Human Rights Act.

UK alignment – through recognising and reaffirming not only the Human Rights Act but also the Equality Act the framework endorses these existing protections in times of risk to both following the departure of the UK from the European Union.

Scottish alignment – the framework will significantly contribute to a more effective implementation of the National Performance Framework (NPF).

The NPF is explicitly aligned with the SDGs and has as one of its National Outcomes "to respect, protect and fulfil human rights and live free from discrimination."

This new statutory human rights framework will significantly increase progress in achieving not only that specific National Outcome but indeed all of the National Outcomes across the NPF.

The alignment of this new framework with the NPF, the SDGs and the UN human rights treaty system will also significantly contribute to and streamline the reporting obligations of the Scottish Government and public authorities to all of these processes.

Additionally, the new framework will lead to a more effective implementation of the Public Sector Equality Duties and the Fairer Scotland Duty, as well as of the Report of the Equality and Human Rights Committee which advocates for the Scottish Parliament the role of a human rights guarantor.

This proposed framework is designed to fit within the current devolved arrangements. The FMAG Report indicated that, whilst the framework is designed to fit the current devolved context, it could also potentially inform the preparation of a Bill of Rights which could clearly be broader in scope and entrenched within a written constitution of an independent Scotland.


Contact

Email: NationalTaskforce@gov.scot