A Human Rights Bill for Scotland – new government consultation

On 15 June 2023, the Scottish Government announced a 16-week consultation period (running to 5 October 2023) on its proposals to introduce a new Human Rights Bill for Scotland, following on from the work of its own Taskforce on Human Rights Leadership.

Although the consultation paper does not include a Draft Bill, it contains detailed proposals as to how the Government proposes to achieve its aim of building upon the existing rights and equality provisions contained in the Human Rights Act 1998, the Equality Act 2010 and the Scotland Act 1998, with a broader range of internationally recognised human rights.

Recognising a new range of human rights in Scots law

Using the language of ‘Rights Holders’ and ‘Duty Bearers’, the consultation paper seeks views on the Government’s proposal to incorporate the following four international treaties into Scots law (which have all been ratified by the UK), within the limits of its legislative competence under the Scotland Act:

• Convention on the Elimination of All forms of Discrimination Against Women (CEDAW) (ratified by the UK in 1986): requires States to adhere to duties that aim to eliminate discrimination against women including adopting appropriate measures to ensure the full development and advancement of women in order to guarantee that they can exercise and enjoy human rights and fundamental freedoms on the basis of equality with men.
• Convention on the Rights of Disabled Persons (CRPD) (ratified by the UK in 2009): requires States to adopt measures to ensure and promote the full realisation of human rights and fundamental freedoms for all persons with disabilities without them experiencing discrimination of any kind on the basis of a disability.
• International Convention on the Elimination of all Forms of Racial Discrimination (ICERD) (ratified by the UK in 1969): requires States to pursue a policy of eliminating racial discrimination in all its forms and to promote understanding among all races, by all appropriate means.
• International Covenant on Economic, Social and Cultural Rights (ICESCR) (ratified in 1976 by the UK): recognises economic, social and cultural rights and specifies the duties of States to guarantee those rights, without discrimination. These rights are to be achieved progressively over a period of time in accordance with the resources and capabilities of a State. This Convention itself recognises a wide range of rights such as:
  • The right of all peoples to self-determination – to freely determine their political status and pursue their economic, social and cultural development (Art 1)
  • The right of men and women to enjoy all economic, social and cultural rights (Art 3)
  • The right to work and to have favourable conditions of work (Art 6 & 7)
  • The right to form trade unions and to join trade unions (Art 8)
  • The right to social security, including insurance (Art 9)
  • The right to an adequate standard of living (Art 11) including:
    • the right to adequate food
    • the right to clothing
    • the right to adequate housing
  • The right to the highest attainable standard of physical and mental health (Art 12)
  • The right to education, including free primary school education, and secondary and higher education that is accessible to all by every appropriate means and in particular by the progressive introduction of free higher education (Art 13 & 14)
  • The right to take part in cultural life and enjoy the benefits of scientific progress (Art 15)

The consultation also proposes recognition of a right to a healthy environment, as well as a specific equality provision to ensure that all the new rights are incorporated into Scots law in such a way that everyone can access them, free from discrimination.

The proposed Bill will seek to introduce these new rights in a way that ensures a clear set of duties for Duty Holders carrying out public functions in devolved areas, with what is described in the consultation paper as a ‘multi-institutional approach’ of Government, Parliament and other bodies seeking to build a human rights culture. This means placing human rights considerations at the centre of decision making processes and ensuring people understand their rights and how to access them.

As to how these changes are to be achieved in law, the consultation seeks views on simply reproducing the text of the four international treaties in the proposed Bill, but removing any text that relates to an area that is reserved under the Scotland Act 1998. It remains to be seen how that will be done in practice, but the assessments to be undertaken could be complex in certain areas and potentially leave the legislation open to challenge, if the UK Government takes a different view to the Scottish Government on where the boundaries lie.

Progressive realisation of economic, social, cultural and environmental rights

The consultation seeks views on the Government’s proposal that, once enacted, the human rights legislation will place an initial procedural duty on public bodies, (as well as certain private bodies delivering devolved public functions, as far as possible), to build the core ICESCR rights and the right to a healthy environment into their decision-making processes. The Government’s intention is to allow some time for public bodies (and certain private bodies) to prepare for a move from the initial procedural duty to a duty to comply with the rights, in the sense of progressive realisation of rights but with the delivery of a range of minimum core obligations (obligations that provide for the delivery of minimum core rights by duty-bearers, but with a requirement to progressively realise the right beyond that minimum core).

Interpretative obligation

The consultation proposes including an interpretative provision in the Bill, or a ‘purpose clause’, in light of international human rights standards and based on the concept of human dignity. The aim of this approach would be to ensure that the provisions in the Bill can be interpreted in accordance with these standards, the concept of dignity and with reference to the text of international treaties, for example, when courts are adjudicating on the rights contained in the Bill.

Access to justice and remedies

The consultation seeks views on a range of potential changes to ensure access to justice and effective remedies where people consider that rights have been breached in some way. These include new remedies available to courts and tribunals adjudicating in human rights cases, for example, targeted remedies to ensure no repetition of a breach (known as structural interdicts), a different approach to ‘legal standing’ to bring a challenge, and a lower threshold for the test of unreasonableness when considering whether an act has been unlawful. The consultation also considers additional functions for the Scottish Public Services Ombudsman in cases involving alleged breaches of rights and additional powers for the Scottish Human Rights Commission, amongst other things.

Engaging with the consultation

The consultation paper, which contains a serious of questions upon which views are sought, is available online at: https://www.gov.scot/publications/human-rights-bill-scotland-consultation/ with responses requested by 5 October 2023. The Government is also proposing to run a series of regional discussion events across Scotland during the consultation period and to take other measures to ensure ongoing stakeholder engagement.

For advice in relation to these proposed changes to human rights law in Scotland and how they might impact on you, please contact our public law specialists Jennifer Jack or James McMorrow.