Human Rights Bill: Wider Implementation Working Group: minutes - November 2023

Attendees and apologies

• Alice Tucker – Third Sector Human Rights and Equalities
• Andrew Montgomery, Social Security Scotland
• Catherine Barile - Mobility and Access Committee for Scotland
• Clare Gallagher- CEMVO
• Danny Boyle – BEMIS
• David Morrison – NHS 24
• Donald Paterson - Education Scotland   
• Donna Brodie – Scottish Environmental Protection Agency
• Ealasaid MacDonald - Bòrd na Gàidhlig
• Eileen Cawley - Scottish Trade Union Congress
• Erin Lux – Equality Network
• Fiona Killen – Law Society Scotland
• Fiona Robertson – Association of Directors of Education Scotland
• Gary Mournian – Food Standards Scotland
• Jen Goff – Food Standards Scotland
• Jennifer McKee - Crown Office and Procurator Fiscal
• Katy Hetherington – NHS Education for Scotland
• Linda Mitchell - Scottish Commission for Learning Disability
• Lucy Mulvagh – Health and Social Care Alliance
• Maxine Jolly – Education Scotland
• Maureen Gunn – Care Inspectorate
• Gavin Yates –  Homeless Action Scotland
• Laura Diffey-Higgins – Historic Environment Scotland
• Paula Preston – Scottish Civil Justice Council
• Peter Rawcliffe – Nature Scot
• Polly Lord – Voiceability
• Rhona Wilder – Scottish Independence Advocacy Alliance
• Rosemary Agnew - Scottish Public Services Ombudsman
• Rory Morrison - Poverty and Inequality Commission for Scotland
• Rosie Tyler-Greig – Healthcare Improvement Scotland
• Sarah D’Agrosa - SCLD
• Suzanne McGuiness - Mental Welfare Commission for Scotland
• Siobhan Toner - Social Security Scotland

Apologies 

• Catherine Rothwell - Creative Scotland
• Edward Pybus - Homeless Network Scotland
• Fraser McMillan - Skills Development Scotland
• Heather Fisken - Inclusion Scotland
• Marie Paterson - Care Inspectorate
• Mary Morgan - NHS National Services Scotland
• Mark Hazelwood - Scottish Partnership for Palliative Care
• Stephanie MacGregor-Cross - Social Work Scotland

Items and actions

Welcome and introductions

Trevor Owen, Head of Human Rights Strategy and Legislation Unit, chaired the meeting in Kavita Chetty’s absence. Trevor welcomed members to the meeting, provided introductory remarks and apologies were noted from members above.

Members noted and agreed minutes from previous meeting.

Nora Uhrig, Implementation Policy Manager, introduced herself to the group and informed members of her role in the Implementation Working Group.

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.

Joe reflected on Lived Experience Board views and how the planning and reporting duty links to the Human Rights Scheme. The Board’s reports set out their views that, reporting and planning work carried out by frontline public services is, from their perspective, part of the same overall structure of accountability and decision-making that also includes the reporting done to Parliament by Scottish Ministers through the scheme.

Joe shared the LEB suggestions on the planning and reporting duty:

• They emphasised accountability as a recurring theme and that there are no human rights without effective accountability when things go wrong.
• The group placed importance on a reporting system to link up well and that it needs to be dealt with at the right levels.
• The Board favoured legislation over guidance – they would rather have law so duty bearers comply rather than having rules in guidance.
• Capacity costs for reporting were recognised by the LEB – a long enough reporting cycle that allows meaningful changes to take place and for capacity building measures such as training and procedures to be embedded.
• Using quantitative date to inform reporting and planning.
• Reporting should introduce an element of independent scrutiny. Clearer role for scrutiny bodies to give more active feedback on reporting.
• Service users help to steer reporting priorities in a more transparent way.
• Clear opportunities for sharing best practice – recognising issues that need escalated or co-ordinated responses from duty bearers and be able to tackle them effectively.
• Reporting to capture concerns rather than just complaints so that things can be picked up and dealt with before rights are not recognised.

UNCRC Reporting Duty and Mainstreaming / Public Sector Equality Duty

UNCRC Reporting Duty

Aqeel Ahmed from the Children’s Rights Unit gave a presentation outlining the planning and reporting duty which was introduced under the UNCRC Bill. This gave background to the context for UNCRC reporting, including current requirements on listed public authorities in relation to children’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 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, and
• informing reports to the Children’s Rights Committee at the United Nations.

Public Sector Equality Duty 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. For further information: Letter from the Minister of Equalities, Migration and Refugees (parliament.scot)

An outline of the reporting requirements under PSED was then provided covering reporting duties every 2 years and additional requirements every 4 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 broad support for the Scottish Government proposals in relation to the substance of reporting in principle, but there was concern that the proposed four-year reporting cycle may be too long.

Human Rights Bill Planning and Reporting Duty for Public Bodies

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 it is the intention for the new duty to be developed through engagement with listed authorities and key stakeholders, and that officials will aim to continue to explore 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.

Breakout Room Discussion

Members were split into groups and asked to consider the questions below then feedback to the wider group:

• Do you agree with the proposed approach, and why?
• How can we ensure planning and reporting can be best aligned with other duties?
• Any views on the list of authorities the duty covers – alignment with UNCRC Bill and PSED and are there any specific bodies you would expect to see captured?
• Content of the reports: What would you wish to see reflected in reports? How could guidance assist with this?
• What are your views on timing (frequency of reporting)
• Do you have any views on what supports need to be in place to ensure that listed authorities can successfully meet this new duty?  An example our attention has been drawn to was the dedicated Implementation Manager who was in post to provide support to public bodies during the roll-out of the Fairer Scotland Duty.
• Any other capacity-building measures?

Feedback from Breakout Discussions

Members mentioned the following topics in the breakout room discussions:

• Members mentioned the quality of reports and said that it would be good to have guidance on producing good quality reports.
• On the point of reporting, members said reporting should align and there should be a joined-up approach which would make it easier for both the people doing the reports and for the people reading them when they are published online.
• The importance of transparency was highlighted, with members saying that lessons learned should be shared.

• Members commented that action needs to be taken to ensure the reports do not become a tick box exercise with little purpose. It was important to members to have clarity on reporting from the get-go, so we are not open to vagueness.

• Some members suggested that progress could be reported against an action plan which could keep reporting tight.
• Members spoke about the importance of continuing to meet and discuss in this group as the duties come into effect and for the SG to follow up and support public bodies who are struggling to capture data.
• Timelines were discussed, with members saying that clearer timelines would be needed and possibly a change to reporting periods may also be needed.
• There was recognition that a reporting duty is sensible but that there is a lot of work for public bodies. There was a suggestion to write to chief executives to outline what is expected.
• The importance of involving lived experience in the reporting procedure was discussed. It was recognised that lived experience is key in understanding how services impact rights holders
• Members said that it was important to specify which public bodies will be listed and who else is accountable for making change (e.g. not just Ministers)
• Demand on third sector organisations was spoken about. Members commented that we should try and ensure there is not too much demand on third sector orgs in terms of the engagement and co-production the Bill requires.

Any other business 

The next meeting of this group will be Wednesday 28 February between 14:00 and 16:00. A calendar invite will be circulated soon after this meeting.

Members were made aware that the next session will be focused on advocacy, advice and signposting and also a chance to discuss capacity building for duty bearers.

Members were asked to directly RSVP to the meeting request and asked to let the Bill team know if they plan to send a representative in their place to the next meeting.