Summary – A Human Rights Bill for Scotland: Discussion Paper

3. Incorporation of human rights

International law is different from domestic law here in Scotland (‘Scots law’). At the moment, only some treaties and the rights within them have been brought directly into Scots law. The Human Rights Act 1998 brought the European Convention on Human Rights (ECHR) into law across the whole of the UK, including Scots law. This means that public bodies in Scotland have to uphold important civil and political human rights, like the right to respect for your private life. Courts in Scotland have a role in ensuring these rights are being upheld; that can include forcing public bodies to retake actions that were not compatible with those rights. The United Nations Convention on the Rights of the Child (UNCRC) (Incorporation) (Scotland) Act 2024 brought the UNCRC into Scots law, meaning that children’s human rights can be similarly enforced by the courts if they are not upheld.

However, some important internationally-recognised human rights that relate closely to people’s everyday lives – like the right to health or to an adequate standard of living – are not yet set out in Scots law. This means that the rights may not be routinely considered in everyday decision making or service delivery. It also means when something goes wrong, and people feel that they have been denied these types of human rights (known as economic, social and cultural rights), people don't have the same routes to raise an issue with the relevant public body as they do with civil and political rights and children’s rights. That also means that the rights cannot be upheld in court, and public bodies do not have to show how the decisions they take make these rights real for the people they work with or serve. Public bodies cannot be held to account if they fail to take actions to uphold these types of human rights or take actions which undermine these rights.

Bringing rights from the treaties that exist in international law into domestic law, which we refer to as ‘incorporation’, helps to improve the protection and enjoyment of human rights. UN Committees and Scotland’s National Human Rights Institution – the Scottish Human Rights Commission (SHRC) – have consistently recommended the incorporation of human rights treaties into domestic law, to help ensure accountability for rights realisation.

Incorporation places the rights closer to the centre of the decisions taken every day by parliament, courts, governments and public bodies. It strengthens the realisation of the rights by allowing individuals and groups to claim their rights when they interact with public bodies, and allows for institutions (like ombudsman, complaints bodies and the courts) to play a role in overseeing the advancement of the rights.

Proposals for a new Human Rights Bill will therefore seek to make this happen. Specifically, it is proposed that the Bill brings more human rights from international treaties into Scots law, so that public bodies have clearer duties around how to give effect to these rights and it is easier for people to hold public bodies to account when things go wrong. Proposals for the Bill aim to ensure that economic, social, cultural rights, and environmental standards, as well as specific rights for women and girls, disabled people and racialised minorities are better protected for people in Scotland.