Summary – A Human Rights Bill for Scotland: Discussion Paper

5. Summary of Bill proposals

This section provides a brief overview of some of the proposals for the Human Rights Bill. For more detail, please refer to the main Discussion Paper.

5.1 The treaties & rights

It is proposed that the Bill brings the following four international treaties into Scots law:

• The International Covenant on Economic, Social and Cultural Rights (ICESCR) which contains the rights to an adequate standard of living (including adequate housing, food and water), health, social security, education and culture.
• The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) which contains specific protections for racialised minorities.
• The Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) which contains specific protections for women and girls.
• The Convention on the Rights of Persons with Disabilities (CRPD) which contains specific protections for disabled people.

It is considered that the best approach to incorporation is to use the same wording in the Bill that is in the treaties themselves. This aims to make it easier for public bodies and rights holders to understand the Bill and to make sure there is alignment with the rights as they are set out in international law. As the Bill must operate within devolved competence, certain treaty text covering policy areas reserved to the UK Parliament will be removed (for example: employment conditions, health and safety, nationality and immigration status).

It is also proposed that the Bill recognises and includes the right to a healthy environment. It is proposed that the right will include important elements such as: clean air; safe climate; healthy ecosystems and biodiversity; access to safe and sufficient water; healthy and sustainably produced food; and non-toxic environments in which to live, work and play.

5.2 How the rights will be given effect to

To help ensure that those delivering public services in Scotland uphold the rights in the Bill, it is proposed that legal duties will be placed on relevant duty-bearers (e.g. Scottish Ministers, local authorities, health boards, third sector organisations and businesses delivering public services), so that they are required to build all of the rights into the decisions they make. This will help to ensure that new laws, policies, plans and budgets take account of the rights.

However, there are some challenges when it comes to bringing the rights in the above treaties into Scots law. Each treaty is different, and they sometimes overlap with each other. Some of the rights they contain apply to everyone, and some only apply to women, disabled people, or racialised minorities. The treaties were also written at different times over many years (sometimes decades between them) which means they have varying levels of detail and reflect the language and society at the time they were drafted. In addition, there are already some existing protections that seek to do similar things (or guarantee similar outcomes) to the rights in the international treaties. Finally, the treaties also include rights that relate to policy areas reserved to the UK Parliament and that the Scottish Parliament cannot legislate on – like some aspects of ensuring equal opportunities for people.

So, proposals for the Bill have been designed to take these challenges into account. For the economic, social and cultural rights in the Bill, it is proposed that duty-bearers be required to comply with these rights. By compliance, this means that they will have to meet certain minimum standards in relation to these rights when they are delivering public services, at a level they must never fall below. It also means duty-bearers will have to continuously improve (‘progressively realise’) the standards of these rights over time and in line with the resources they have available. It is proposed that the minimum standards will be informed by a participatory engagement process to gather views on what these should look like in practice.

In light of the Supreme Court judgment on the UNCRC Bill in 2021, it is currently proposed that the duty to comply with the economic, social and cultural rights in the Bill will only apply to devolved functions that originate from Acts of the Scottish Parliament, Scottish Statutory Instruments and common law powers. This means that devolved functions that come from UK legislation (such as the Education (Scotland) Act 1980 and the Children (Scotland) Act 1995) would not be captured by the compliance duty. This is an area that the Scottish Government wants to explore with the UK Government and other stakeholders.

For the rights in the treaties for women, disabled people and racialised minorities, a compliance duty is not proposed. This is because of the need to ensure the Bill does not affect matters reserved to the UK Parliament, and to reduce overall complexity and to promote accessibility of the legislation for duty-bearers and rights-holders. Instead, a duty of process is proposed that does not require duty bearers to deliver any particular outcome – rather they will be required to actively consider and think about these rights in their work. Given the calls from stakeholders during the 2023 consultation to go further here, this is an area of active consideration in the upcoming period.

Ongoing consideration is also being given to the most appropriate duty in relation to the right to a healthy environment. This is because of the need to deliver something which is workable in practice across all aspects of decision making where there is careful balancing of different factors to be done. Further to this, the right is not currently reflected in an international human rights treaty and remains subject to ongoing deliberation and development at the international level. Therefore proposals on this remain under consideration.

5.3 Accountability for rights delivery

The Bill aims to embed a human rights culture within public service delivery, so that policies and decisions are always designed to fulfil human rights. By ‘getting it right first time’, the risk of a right not being met can be minimised.

However, it is recognised that there needs to be effective ways to sort issues when rights have not been upheld.

The Scottish Government wants to make sure a range of Scotland’s institutions are equipped to provide shared human rights leadership and responsibility. It is therefore proposed that the powers and remit of the Scottish Human Rights Commission, the Children and Young People’s Commissioner Scotland, and other relevant ‘Oversight Bodies' are expanded.

Oversight Bodies fall into two broad groups. Some are scrutiny bodies such as those that inspect and/or report on the delivery of specific public services. Others are those that deal with escalated complaints made in relation to aspects of public service delivery, for example someone complaining about the care they received from a public body. We propose placing a duty on these bodies to provide accountability and support for the organisations within their remit.

It is also proposed that the Scottish Public Services Ombudsman is given powers to enable them to undertake investigations on their own initiative where an issue is relevant to human rights. This would mean they could investigate an issue without the need for an individual to go through the formal complaint process first.

The Scottish Government also wants to put in place measures that will enable Scottish courts and tribunals to deliver effective and appropriate remedies when rights have not been upheld.

It is important to ensure that there is transparency about the actions the Scottish Government and duty-bearers are taking to fulfil human rights. To support this, it is proposed that Scottish Ministers have to develop a ‘Human Rights Scheme’. This will include things that Ministers plan to do in order to make progress on implementing the Bill and will be connected to a requirement to report to the Scottish Parliament on that every three years. In addition, it is proposed that relevant public bodies will provide their own reports on steps taken and actions planned to give effect to the rights every three years too.

Finally, when bringing forward new legislation, it is proposed that Members of the Scottish Parliament (MSPs) – including government Ministers – will be required to state the extent to which their legislation is consistent with the fulfilment of human rights. This will help Parliament to consider human rights issues when they discuss, debate and vote on legislation.

5.4 Support for duty-bearers and rights-holders

It is recognised that support and capability building in the public sector will be essential to ensuring successful implementation of the proposals. The intention is to develop detailed guidance to support duty-bearers to understand their responsibilities arising from the Bill. Work is also underway to increase awareness of human rights, human rights law and human rights-based approaches across duty-bearers to help prepare them for the Bill in the future. This includes action to raise awareness and identify any gaps in understanding the rights proposed for incorporation via the Bill.

Together with stakeholders, the Scottish Government will also develop plans for information and awareness-raising, including a campaign to raise awareness of rights-holders that is aligned with future timescales for implementation. It is vital that rights-holders have available, accessible information on the Bill, so that they can claim their rights.