Human Rights Bill: Core Implementation Working Group minutes - October 2023

Introductions

Kavita Chetty welcomed members to the meeting, provided introductory remarks and discussed actions that were taken forward from the last meeting. Apologies were noted from members above. Due to the impact of consultation review process on SG Bill team capacity, the decision was taken to postpone the next meeting until December.

Lived Experience Board

Joseph McKeown provided an overview of the Lived Experience Board (LEB) and its work to date supporting the development of the Bill. The LEB has produced a number of reports highlighting key issues from across a number of areas, which will be collated into a short paper for each IWG meeting, to reflect the theme of each meeting.

The second short paper produced for the IWG highlighted LEB views on the proposed planning and reporting duty. IWG members had the following reflections on key themes emerging from the reports:

• duty bearers should consider the content of reports, and seek to involve different people, including rights-holders, in the development and writing of reports. People whose rights are violated often have insights to the solutions that will help to improve processes
• it is crucial to involve rights-holders in the reporting and priorities/plans which are set
• it will be important for duty bearers to understand and implement a trauma-informed approach to participation, recognising the negative impact that engagement can have when it is not developed and undertaken with a trauma-informed perspective. Having to re-tell and repeat the same story and personal experiences can be traumatic and triggering, especially if it feels like no solution is ever reached, or no change is ever the outcome
• there is an opportunity to consider information governance and building trust. Sometimes people do not share information which is relevant to improving processes, as they are fearful or wary of GDPR, and how it is being adhered to
• reporting should include space to say “we didn’t get this right” and reflect on what didn’t work well, as well as what did. Having a non-judgemental space and attitude to reflecting on ‘failures’, will be the only way to remove pressure and create the right conditions to learn from what hasn’t worked, as well as best practice
• the requirements for planning and reporting should use a SMART approach – specific, measurable, achievable, relevant and time-bound. This will avoid the tendency to report broadly on all action that is happening, rather than providing a focus on what needs to be reported on, linked to the legislation
• it is also essential that reporting has a focus on outcomes, progress and demonstrating what change has actually been achieved. Therefore, reporting should have a focus on Progress, rather than Activities
• learning from PSED has shown that it is more difficult to define progress when there are no indicators by which to measure success. If criteria for measurement are poor, then reporting will be less valuable and accurate.

Questions:

• how can lived experience be incorporated into measurement criteria? IT may be useful to reflect on the report ‘Effectiveness of the PSED Specific Duties in Scotland’ by the EHRC

UNCRC planning and reporting duty

Lyndsey Saki from the Children’s Rights Unit, gave a presentation outlining the planning and reporting duty which was introduced under the UNCRC Bill. This gave a background to the context for UNCRC reporting, including current requirements on listed public authorities in relation to child’s rights, and how the duty seeks to align with existing requirements on listed public authorities in relation to the 2014 Children and Young People (Scotland) Act reporting requirements.

The presentation also examined the purpose of the new planning and reporting duty, reflecting on the importance of:

• ensuring that plans and plans and actions in respect of children’s rights are more transparent and accessible
• enabling scrutiny from stakeholders
• ensuring listed authorities comply with the section 6 duty and give better and further effect to children’s rights
• informing reports to the Children’s Rights Committee at the United Nations

Questions:

• members interested to note that it is the current policy intention to include a clause which will state that completed reports must be sent to Scottish Ministers, and that Scottish Government and Ministers intend to play a role in scrutiny and accountability

PSED update

Rob Priestley from the Mainstreaming Unit provided an update on the review of the Public Sector Equality Duty (PSED). The Minister for Equalities, Migration and Refugees wrote to stakeholders on 4th October to provide an update on the next stages of the review and how this relates to wider activities, including the development of the forthcoming Mainstreaming Strategy and the Human Rights Bill.

As the review moves forward, officials will be taking a phased approach to improving the PSED regime. New or revised regulations will include delivering on two key prioritised regulatory changes, which will be highly impactful in terms of advancing equality in Scotland for some of the most disadvantaged groups. These are: revising the current pay gap reporting duty to include reporting on ethnicity and disability pay gaps; and introducing a new duty on listed public bodies in relation to their use of inclusive communication. For both proposals, officials are in the process of developing a final policy based on consultation responses and extensive stakeholder engagement.

An appropriate lead-in period will be provided to ensure that listed authorities understand and can prepare for what will be required of them under new or revised Regulations. We will work with the Equality and Human Rights Commission, who produce technical guidance on all aspects of the PSED regime.

Further longer-term changes will be considered as part of the review, which will seek to create a more cohesive regime.

An outline of the reporting requirements under PSED was then provided covering reporting duties every two years and additional requirements every four years. It was highlighted as we have consulted on proposals for change we are acknowledging the opportunities for improvement in current regime. These proposals for change were summarised and it was highlighted that stakeholder feedback included broadly supporting the Scottish Government proposals in relation to the substance of reporting in principle but there was concern that a that the proposed four-year reporting cycle is considered too long.

Human Rights Bill Planning and Reporting Duty Proposals

Nora Uhrig, Implementation Team Lead from the Human Rights Strategy and Legislation Unit, gave an overview of the proposals for a planning and reporting duty for duty-bearers, under the Human Rights Bill. The presentation outlined the aims of the duty, which seeks to enable scrutiny of the actions taken and planned by duty-bearers to give better and further effect to the rights. Alignment with the UNCRC Bill and PSED is among one of the factors in the design of the new duty, and officials will seek to ensure coherence of reporting and minimise any unnecessary burden of evidence gathering, whilst also making sure that the duty drives and captures necessary change.

It was noted that the new duty will be developed through engagement with listed authorities and key stakeholders, and that officials will continue to examine alignment with the UNCRC Bill and PSED requirements. Guidance will be developed and produced to support the implementation of the duty, which will seek to support duty-bearers and promote best practice. In terms of who the new duty will apply to, it is expected that listed public bodies will be captured within the Bill. This will provide clarity to both duty-bearers and rights-holders as to who is required to publish plans and report on them.

As much as possible and where practicable, we will seek to align listed authorities with the listed authorities captured by the UNCRC Bill and PSED. In order to ensure that listed bodies remain relevant, it is the intention to confer a power to Scottish Ministers to modify the list by either adding, removing or amending an authority. In terms of timescales, officials are considering how to align the commencement of this duty with the other duties. We want the period of time between commencing the initial procedural duty and commencing further duties to be used by listed authorities within the Bill to prepare their initial plans for giving effect to the framework.

Reflections:

• the planning and reporting duty should aim to strike a balance between creating change and accountability, whilst also seeking to minimise the administrative burden on listed authorities
• there is a need to carefully consider the available capacity and resource at different levels in local authorities. Reporting requirements should be supported by appropriate resource
• there are lessons to be learned from the Fairer Scotland Duty, which was implemented with the support of a dedicated Implementation Manager (based in the Improvement Service) for the first four year in the rollout of that duty
• a similar process has been undertaken with the Local Child Poverty Action Reports, wherein the national coordinator and a group of national partners have undertaken a monitoring function, analysing reports to pull out best practice and sharing with other duty bearers. Some one-to-one feedback and support is also offered. This has been welcomed by child poverty leads
• feedback from duty-bearers has highlighted a desire for some level of monitoring and scrutiny to take place against their reporting, with feedback and recommendations for improvement being provided.
• guidance should support listed authorities to understand how to report using human rights language. How does progressive realisation translate into ‘service design and planning’? E.g. reports noting how they have attempted to improve the accessibility, usability, of services etc
• conditions required for self-regulation and reporting include:
• participative processes for engagement with stakeholders
• being able to reflect and adopt different practices and processes
• self-scrutiny against sectoral evidence

The latter links closely with the planning and reporting duty, and there is a need to ensure that proper monitoring mechanisms are built in, so that listed bodies know what they are aiming for and if they have achieved these outcomes. There is also a need to think carefully about how the Human Rights Scheme and listed authority reporting link together.

• officials should consider replicating or mirroring to some extent, the listed arrangements which are set out in the Scheme – in the planning and reporting duty for listed bodies. This would create consistency across reporting
• there is a need to think about the differing roles, remits and operational sizes of the various bodies who will be captured by the reporting duty. In the wider context of increasing financial constraints, capacity must be considered and there could be scope to tier levels of reporting requirements to take account of smaller public authorities. This would still require accurate and essential information to be reported on, but would be staggered to account for varying capacity and organisational size. This would mirror the approach taken in PSED, where gender reporting is only required for bodies of a certain size
• it would be useful to have sight of all of the reporting requirements on public bodies, including in areas like biodiversity
• the EHRC did monitor compliance with the Scottish Specific Duties for the first four years after the duties came into force. That then formed the basis for targeted engagement work with different listed authorities, leading to a report which identified useful learning and analysed the impact and effectiveness of the duties to date. This was very useful in understanding specific challenges and opportunities linked to the implementation of the duties
• members noted that monitoring reports and compliance, including how listed authorities measure and report on progress is very resource intensive
• reporting requirements need to be very clear about what requirements are, as well as what measurement criteria and evidence base can be developed or used for reporting. Listed authorities should also be clearly required to explain why future actions have been proposed and what problems they hope to solve. In addition, they should be required to explain what engagement they have undertaken, which rights-holders have been consulted, and what has changed or will be changed as a result
• the SG should build in space for feedback by rights-holders through official monitoring compliance channels, as well as through listed authority reporting
• the involvement of people whose rights are most at risk (specifically disabled people, women, people who experience racism and those reflected by the equality provision), needs to be on the face of the Bill, not only in guidance

Questions:

• wll there be a requirement for listed authorities to consult rights-holders and service users as part of their reporting?
• reporting creates transparency, but this does not automatically translate into accountability. Whereas the Human Rights Scheme will create scrutiny of Scottish Ministers by the Scottish Parliament, who will monitor the planning and reporting by listed authorities and provide recommendations? Without the assessment or monitoring and compliance piece, the reporting duty is like an exam which is not marked. The overall framework needs to be clearly set out, with monitoring and scrutiny of reports built in. Will SHRC have a role in this? Reflections from the UNCRC experience were noted, as above
• can we be more descriptive in requirements for reporting? This will be supported by guidance anyway, but can we be very clear about what we mean (practical examples) by implementation of legislation. For example, the guidance should clearly define the difference in wording between the UNCRC Bill, which has wording about securing better or giving further effect to the rights, and the Human Rights Bill, which has wording about a duty to comply with rights, and an obligation to pursue progressive realisation