A Human Rights Bill for Scotland: consultation analysis

11. Conclusion

As a significant step in Scotland’s ongoing efforts to strengthen and protect human rights, the Scottish Government has conducted a consultation for a forthcoming Human Rights Bill for Scotland. The Bill proposes to take a direct treaty approach to embed into domestic law the internationally recognised human rights outlined in the ICESCR, ICERD, CEDAW and CRPD. To achieve this, the Bill seeks to create a clear, robust, and accessible legal framework while defining the duties of public bodies. Among other goals, the Human Rights Bill aims to guarantee the enjoyment of rights without discrimination through an equality provision, recognise the right to a healthy environment and provide accessible avenues to remedy infringements of human rights.

Between 15 June 2023 and 5 October 2023, the Scottish Government launched a consultation gathering the public’s views on the proposed Human Rights Bill. This will inform the drafting of the Bill which will be introduced to the Scottish Parliament before the end of 2023-24 parliamentary year. Seven public consultation events were also held between 27 July 2023 and 19 September 2023.

The consultation posed questions on the proposed Bill overall and solicited views on specific aspects of the Bill, divided into six parts.These were: incorporating the treaty rights, recognising the right to a healthy environment, incorporating further rights and embedding equality, duties, ensuring access to justice for rights-holders, and implementing the Bill as an Act.

The consultation posed a total of 52 questions, including 10 closed questions (e.g. receiving yes/ no/ don’t know responses) and 42 open-text questions (receiving free text responses). A total of 397 responses were received, in addition to 7 public consultation events, with over 150 attendees. Responses were received from individuals, local councils, civil society organisations, public body representatives (including executive agencies, NDPBs etc.), academic institutions, legal professionals, private bodies, and third-sector service delivery organisations. Amongst respondents representing organisations, 71% were civil society organisations, 27% were public sector organisations, and 2% were public sector organisations.

Alma Economics was commissioned by the Scottish Government to analyse all responses. Descriptive analysis was conducted on the closed-format questions, and thematic analysis was used to synthesise themes raised in the open-text questions and public consultation event reports.

Following the thematic analysis, the recurring themes for each part of the consultation were identified across consultation responses and public consultation events. A brief summary of these themes is presented below; for a more detailed description, please refer to the executive summary.

Incorporating the Treaty Rights

This section focused on incorporating the rights described in the four UN treaties (the ICESCR, the ICERD, the CEDAW, and the CRPD) and the right to a healthy environment in the Human Rights Bill. The concept of human dignity is an essential element of the Bill, and the respondents were asked for their views on that matter. The respondents were also asked about their views on international law, materials, and mechanisms to be included within the proposed interpretative provision and whether there are any rights in the four UN treaties which should be treated differently. The respondents widely supported the proposals regarding the concept of human dignity as well as the overall proposition of incorporating the four UN treaties and the right to a healthy environment.

However, the request for further clarity was also common among the responses to these questions. The respondents asked for clarity and guidance regarding the definitions of ‘human dignity’ and ‘key threshold’ (for defining the content of Minimum Core Obligations), as well as the intended operation of the incorporation model. Another overarching theme was the views that the respondents expressed regarding the Bill’s proposed duties. The respondents commonly supported the proposals for an initial procedural duty for public bodies, and subsequently moving to a duty to comply, but they also requested a stronger duty to comply on public bodies that will be applied to four treaties, not only ICESCR and the right to a healthy environment. Additionally, the consultation asked about the safeguarding of the rights of certain groups of people. Disabled people were most frequently mentioned by respondents, as well as other groups of people with protected characteristics and various vulnerable populations.

Recognising the Right to a Healthy Environment

This section centred on recognising a right to a healthy environment in the Human Rights Bill, proposing various substantive and procedural aspects of the right. Questions aimed at gathering perspectives on the proposed definition of the environment and the proposed content of a right to a healthy environment, safeguarding food under the ICESCR, and safeguarding safe and adequate water. Respondents generally endorsed the suggested formulations for both the definition of the environment and the right to a healthy environment, yet proposed additional substantive elements for inclusion, such as safe and healthy food, access to clean water and adequate sanitation. Feedback also highlighted areas for improving the proposals for the Bill, particularly regarding unclear or vague language in definitions, the need for specific plans to enforce these rights, and establishing a clear accountability structure to enhance access to justice. While respondents largely supported the approach to ensuring safe and sufficient water, they emphasised the necessity of including adequate sanitation in the right to a healthy environment due to concerns about sewage pollution. However, notable disagreement emerged concerning the proposed approach to safeguarding food, as respondents overwhelmingly advocated for its inclusion as a substantive aspect of the right to a healthy environment.

Incorporating Further Rights and Embedding Equality

This section focused on incorporating additional rights into the Bill and implementing strategies to ensure the universal delivery of rights without discrimination. The questions centred around identifying the best approaches to signal the Human Rights Act 1998 as a fundamental aspect of human rights law in Scotland and embedding participation into the Bill's framework. Respondents' opinions were sought on including an equality provision in the Bill, aiming for equitable access to rights and effective definitions of specific demographic groups, particularly LGBTI and older people. Suggestions included integrating the Human Rights Act 1998 into the Bill's implementation and incorporating it into guidance, public body training, capacity-building initiatives, and awareness plans. For embedding participation, there was a call for an explicit right to participation, ensuring the involvement of the more vulnerable or those with lived experiences of rights violations. Respondents also commonly supported the introduction of the equality provision in the Bill’s framework, explicitly mentioning specific groups, primarily LGBTI and older people not currently covered by international treaties, as well as disabled people and people with care experience. A recurring theme was a request for guidance accompanying the framework that the Bill will create to clarify terms and specify population groups, ensuring awareness and understanding of all human rights and relevant duties for both duty-bearers and rights-holders.

The Duties

This section focused on the proposed duties related to the rights outlined in the Bill, specifically for those delivering devolved public functions. The proposed duties aim to establish a framework enhancing duty-bearers' capacity to uphold the rights of individuals in Scotland. Respondents most commonly supported the suggested approach, endorsing the proposed duties: the initial procedural duty, duty to comply, reporting requirement, and duty to publish a Human Rights Scheme. However, respondents expressed that the duty to comply should also be applicable to the equality treaties, especially the CRPD. The majority also supported aligning the duties associated with the right to a healthy environment with economic, social, and cultural rights. Support for demonstrating compliance through progressive realisation and meeting MCOs was also common among respondents. A consistent call for guidance and support from the Scottish Government to duty-bearers was echoed, particularly regarding the initial procedural duty, duty to comply, reporting requirement, and methods for demonstrating compliance. Respondents commonly sought further clarification on key terms, including duty-bearers, progressive realisation and MCOs.

Ensuring Access to Justice for Rights-Holders

This section focused on proposals for ensuring access to justice for rights-holders. The respondents were asked about their views on the most effective ways of supporting advocacy and advice services and their views on the proposals regarding the front-line complaints handling mechanisms of public bodies. Additionally, they were asked for feedback on the proposed changes to the remit of scrutiny bodies, including the SPSO, and the proposed additional powers for the SHRC and the CYPCS. The consultation also asked for feedback on the proposals for Bill’s approach to ‘standing’ and assessing ‘reasonableness’. Moreover, the respondents were asked about their views on existing judicial remedies, whether any additional remedies would be helpful, and what would be the most appropriate remedy in the event a court finds legislation incompatible with the rights in the Bill.

Support for the proposals was the major overarching theme here. There was common support for the proposals regarding the complaints handling system, the proposed changes to the remit and powers of the scrunity bodies, and the proposed approaches to ‘standing’ and assessing ‘reasonableness’. Nonetheless, another overarching theme across the questions was the request for further clarity regarding the proposals, the expected impact or outcomes that such changes could have, as well as the way that the various public authorities and scrutiny bodies will interact under the Bill. In addition, a common theme was that adequate funding, resourcing, and training would be required for these proposals to be implemented successfully.

Implementing The New Scottish Human Rights Act

This part of the consultation focused on plans for implementing the Human Rights Bill upon its provisions coming into force, outlining the Scottish Government's proposals regarding a sequenced implementation strategy for the duties, the establishment of MCOs, the requirement for Ministers to publish a Human Rights Scheme, and measures to enhance parliamentary assessment and scrutiny of new legislation in relation to human rights. It also sought input on building capacity across the public sector, facilitating information sharing and awareness, and establishing an efficient monitoring and reporting process.

Overall, respondents expressed support for the Scottish Government's proposals for ensuring effective Bill implementation, endorsing the sequenced approach, MCOs, and the Human Rights Scheme, while highlighting crucial elements for effective execution. They emphasised the need for a participatory approach involving right-holders, especially those most at risk of their rights being violated, and third-sector organisations alongside the creation of clear and inclusive guidance for both duty-bearers and rights-holders. However, respondents urged the development of clearer accountability mechanisms and called for more specificity regarding timelines, actions, and plans. They emphasised the necessity for comprehensive capacity building, including resource investment in public services and third-sector entities, to address existing limitations in capacity and resources within the public sector.