A Human Rights Bill for Scotland: consultation analysis

3. Views on: Incorporating Treaty Rights

Question 1: What are your views on our proposal to allow for dignity to be considered by courts in interpreting the rights in the Bill?

Closed question

There were 240 responses to this question.

The majority of respondents (80%) supported the proposal to allow for dignity to be considered by courts in interpreting the rights in the Bill. Conversely, 20% of respondents were of the opinion that dignity should not be allowed to be considered by courts.

Open question

There were 220 responses to this question in the consultation.

Support for the proposal

The majority of the responses to this question expressed views that were supportive of the proposal to allow for dignity to be considered by courts in interpreting human rights in the Bill. The majority of the responses that supported the proposal came from civil society organisations, with a significant minority coming from public or private organisations. A significant minority of the individuals who responded to this question also mentioned this theme.

It was highlighted that the concept of ‘dignity’ is central and essential in human rights, and the United Nations (UN) human rights framework was extensively referred to argue in favour of the proposal. The Universal Declaration of Human Rights along with the ICESCR, the ICERD, the CRPD, and the CEDAW were most frequently suggested as potential references that could be used to define ‘dignity’ in the Bill. In addition, the jurisprudence of the European Court of Human Rights and the European Committee of Social Rights was described as a potentially useful source for the Scottish Courts. It was also mentioned that this proposal is in alignment with Scottish Government commitments and strategies like the ‘Building a new Scotland’ series of papers or the ‘Getting it right for every child’ (GIRFEC) commitment.

Out of the respondents who expressed their support for the proposal, the majority pointed out that the courts should be required, not only allowed, to consider dignity (and other values like the universality and indivisibility of human rights) in interpreting the rights in the Bill. The rationale behind this suggestion was that dignity is a fundamental value of human rights and taking it into consideration is something that should not be left to the discretion of the courts. According to the respondents, this mandatory consideration could provide a consistent safeguard for individuals' dignity and reinforce the principle in legal practice.

A few respondents who expressed their support for the proposal urged the Scottish Government to take into consideration how the concept of dignity has been incorporated into human rights legislation of other countries. The cases of South Africa, Germany, Switzerland, Finland, Colombia, and Brazil were mentioned as examples.

“Dignity is a central concept in international human rights law and is explicitly referenced in the International Covenant on Social, Economic and Cultural Rights (ICESCR), the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), the Convention on the Rights of Persons with Disabilities (CRPD) and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Allowing courts to consider dignity when interpreting the rights in the Bill would therefore be in line with international standards and the United Nations (UN) human rights framework.” (Public Law Project)

“We strongly support the proposal to allow for dignity to be considered by courts in interpreting the rights in the Bill. Indeed, we would strongly urge that courts should not simply be allowed to consider dignity but should, in fact, be required to do so, such is its fundamental importance to the understanding and interpretation of human rights. The concept of dignity is explicitly referenced in each of the four treaties that the Human Rights Bill will incorporate, in addition to being referenced in the UNCRC and as such, inclusion of the concept of dignity on the face of the Bill in this way would ensure alignment with these treaties. […]” (Organisation – Other)

Need to clearly define the term ‘dignity’

The next most prevalent theme among the responses to this question was the view that the concept of ‘dignity’ is very subjective and open to interpretation, and it must be clearly defined before allowing courts to take it into consideration.

The majority of respondents mentioning this theme were in favour of the proposal and suggested that a purpose clause defining the term should be included in the Human Rights Bill. It was pointed out that vagueness cannot be acceptable if dignity is to be treated as a right in the context of the Bill. According to the respondents’ point of view, a statutory requirement for the Scottish Courts to interpret the term without any directions could lead to its inconsistent application and public confusion. A clear and comprehensive purpose clause could offer the necessary guidance and reduce unfairness. The purpose clause was regarded as an important measure to ensure that all interested parties are aware of the definition of dignity and that there is a wide understanding of it and how the concept is applied in various contexts.

“[…] dignity means different things to different people, thus, there will be differing expectations of how underpinning ideas of human dignity should support instances of interpretation of rights in the statute. Taking this into account, we support the call for clarity around the legal definition of ‘dignity’ in this Bill. (LGBT Health and Wellbeing)

“However, dignity on its own is subjective. Therefore, if using this principle, there must be a clear and complete purpose clause to reduce any unfairness in situations. Courts should be required to consider dignity (and any other principles) when interpreting these rights at all times. This mandatory consideration, and clear explanation, will provide a consistent safeguard for disabled people’s dignity.” (Organisation – Other)

More information about this theme can be found in Chapter 9, ‘General themes of the consultation responses’.

Safeguarding the rights of various groups of people

The next most prevalent theme was about the interconnectedness between dignity and the rights of various groups of people (e.g. people with protected characteristics and vulnerable groups of people). A significant minority of the respondents mentioned that there should be more consideration for the dignity of people with different protected characteristics, especially when it comes to accessing the courts and justice system. The respondents made a specific mention of the need to protect the dignity of disabled people or older people. The rights of children, young people and their families were mentioned with a similar frequency, followed by the rights of LGBTI populations and women. It was mentioned that people in those groups face a higher risk of unequal treatment and may receive treatment by the courts (or other services), which does not always ensure their dignity. However, according to the responses, some people with protected characteristics might exhibit a certain degree of tolerance to unfair treatment as a coping mechanism against discrimination or might be simply unable to react. For these reasons, the courts should show more consideration for the dignity of people with protected characteristics so that not only people with the necessary confidence or social capital to challenge undignified treatment are able to do so.

More information about this theme can be found in Chapter 9, ‘General themes of the consultation responses’.

Summary of other emerging themes

Apart from the most frequent themes, there were a few other emerging themes. The most frequent among them was the recommendation of a significant minority of the respondents to allow courts to consider dignity in combination with other basic human rights principles like universality, interdependence, and indivisibility. It was also highlighted that intersectionality is a concept that should be taken into consideration along with dignity. Another emerging theme included concerns about or disagreement with the proposal that a significant minority of respondents expressed. There were several reasons mentioned by the respondents explaining their stance, with the most common ones being that the proposal is not necessary, it can lead to duplicate legislation, and implementing it would be an inefficient use of public resources. In addition, a small minority of the respondents to this question expressed concerns about the potential misuse or abuse of the provision included in the proposal (for instance, about excessive litigation or one individual’s appeal to dignity being used to undermine the dignity and inherent value of others).

Question 2: What are your views on our proposal to allow for dignity to be a key threshold for defining the content of minimum core obligations (MCOs)?

Closed question

There were 236 responses to this question.

Most respondents to this question (80%) answered that dignity should be a key threshold for defining the content of MCOs. A significant minority of respondents (20%) held the opposing view.

Open question

There were 213 responses to this question in the consultation.

Support for the proposal and suggestions to exceed MCOs

The majority of the respondents to this question expressed their support for the proposal to allow for dignity to be a key threshold for defining the content of MCOs. This theme was mostly raised by civil society organisations with only a few responses coming from public organisations and individuals.

The main argument of the respondents was that the MCOs set a baseline of human rights protection, below which the realisation of rights should never slip, and dignity is a key measure for examining whether human rights are being met. For that reason, they found it sensible to allow for dignity to be a key threshold for defining MCOs. It was highlighted that MCOs should be just a bare minimum of human rights protection, not a ceiling or a goal, and that duty-bearers should set their standards at a much higher level. A significant minority of the respondents who supported the proposal mentioned that it should be required, not only allowed, for dignity to be a key threshold.

A significant minority of the proposal’s supporters expressed their views on how dignity should be incorporated into the MCOs as a key threshold. They stressed that incorporating dignity should be a participatory process,^[13] including people who may face a higher risk of being treated without adequate dignity (e.g. people with protected characteristics), and people with lived experience of discrimination or other forms of violation of their dignity. In addition, it was mentioned that a wide network of learning practitioners and experts should be engaged with the co-design of MCOs, together with the representatives of communities that will be most impacted by this Bill.

There were a few responses mentioning that the Scottish Government and the Scottish Courts could draw on the experience of other countries that have implemented MCOs regarding dignity. Some of the countries mentioned were Germany, Switzerland, Belgium, Brazil, and Colombia, and the respondents claimed that there are examples of good practices in these countries which could help with the implementation of MCOs in Scotland.

“We agree with the proposal for dignity to be a key threshold for defining Minimum Core Obligations. Once again, we believe that courts should be required to consider dignity when interpreting the rights in the Bill. […] We would stress that any definitions should be co-produced with rights-holders, especially those with relevant lived experience. We feel this is an opportunity for greater participation with communities and deeper engagement with duty holders.” (Organisation – Other)

“[…] Many countries embed the right to a social minimum reflecting the concept of the minimum core – i.e. a social floor, and not a ceiling, that ensures no one falls into destitution. This concept is built on the premise that in a functioning society, individuals must be able to access essentials to participate. Often the threshold for assessing compliance with a minimum core is based on the concept of human dignity. This approach is used in different constitutions across the world, for example, in Germany, Belgium, Switzerland, Colombia, and Brazil. […]” (JustRight Scotland)

Safeguarding the rights of various groups of people

The next most frequent theme emerged through a large minority of responses to this question, expressing the view that the rights of certain groups of people should be protected in order to achieve a meaningful implementation of the proposal.

A significant minority of the responses expressing these views included concerns about how the needs of people in marginalised groups may intersect. For instance, there were responses that pointed out the housing and homelessness issues that specifically women or LGBTI people face.

“[…] When considering the needs of those who have received a terminal diagnosis or are nearing the end of life, then there is also the need to consider the intersection of MCOs across different areas – such as the right to adequate housing and welfare support as well as health and social care.” (Hospice UK)

“[…] We know that certain groups of women are more likely to experience housing instability, poor housing, homelessness or negative treatment by housing services, such as BME; disabled and refugee women; women who have been in the criminal justice system; LGBTI, particularly transgender women; older and younger women; women who sell sex; lone parents and women with other caring responsibilities. For rights which cover housing in the Bill, MCOs must be able to take into account the different intersectional inequalities of populations in Scotland, especially those who are most at risk of having such rights violated in practice. […]” (Engender)

More information about this theme can be found in Chapter 9, ‘General themes of the consultation responses’.

Clarification of the ‘key threshold’ and ‘dignity’ terms is needed

The third most frequent theme among the responses to this question was the request for more clarity and guidance on the terms ‘key threshold’ and ‘dignity’. More information about this theme can be found in Chapter 9, ‘General themes of the consultation responses’.

Summary of other emerging themes

The next most frequent theme was the view of a significant minority of respondents that dignity should be introduced alongside other provisions and core principles of human rights. As in Question 1, the respondents mentioned that the principles of universality, indivisibility, interdependence, and interrelatedness should be considered alongside dignity for the proposal to be successfully implemented. Another emerging theme through the responses of a significant minority was the disagreement with or concerns about the proposal. These respondents expressed concerns about the broad misuse of the Bill if dignity is used as a key threshold for MCOs, and they disagreed with the proposal because they found it unnecessary or inapplicable.

Question 3: What are your views on the types of international law, materials and mechanisms to be included within the proposed interpretative provision?

Open question

There were 196 responses to this question in the consultation.

United Nations guidance and conventions to be considered

The most prevalent theme among the responses to this question was the view that the United Nations guidance and conventions should be included within the proposed interpretative provision of the Human Rights Bill. This theme was more frequently raised by civil society and private organisations, and a large minority of public organisations mentioned this theme. In addition, a significant minority of the individuals who responded to this question raised the theme.

The respondents referred to various UN treaties (or conventions) and other materials, with the General Comments on the UN Conventions^[14] being the most frequently mentioned. According to the respondents, including the General Comments would assist in interpreting the rights contained in the Bill. Additionally, the UN Concluding Observations^[15] were mentioned by a significant minority of the respondents, while a few respondents mentioned the reports of the UN Special Rapporteurs.^[16] The majority of the respondents raising this theme expressed the view that such materials collate the best available evidence and insights, providing greater coherence, clarity, and guidance to inform the implementation of the rights in the Bill.

Moreover, the respondents pointed out certain UN conventions that should be considered for inclusion in the interpretive provision of the Human Rights Bill. The most frequently cited treaties were the United Nations Convention on the Rights of the Child (UNCRC) and the ICESCR, with the CEDAW and the CRPD coming next. In addition, the ICERD, the ICCPR, and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), among others, were cited by a few respondents. A few respondents who cited the above-mentioned treaties suggested that they should be considered in their entirety, while others were more focused on specific parts of them, like Article 12 of ICESCR (the right to physical and mental health).

“We agree that courts and duty bearers should be able to use the existing international interpretation of human rights, including UN General Comments. We believe that the proposals would be stronger if courts were required to use these mechanisms. ICESCR’s original definitions of rights are often broad. However, the significant body of international human rights materials, comments and mechanisms gives far more detail on what rights are generally interpreted to mean. Ensuring courts and duty bearers can rely on existing international interpretations to support them in better understanding the rights they must uphold. […] We also know that making rights as specific as possible helps people to understand and claim their rights in practice. Therefore, we believe that where these materials and interpretations are adopted by courts and duty bearers, this will also support rights holders by providing greater depth and specificity. […]” (Chest Heart and Stroke Scotland)

“The existing international framework, including UN General Comments and recommendations, provides a strong foundation for interpreting and applying human rights in practice. We further note that including this provision will help to enable clarity of the law and for the Bill to align well with the UNCRC Incorporation Bill.” (Organisation – Other)

General agreement with the provision

The next most prevalent theme among the responses to this question was general agreement with the inclusion of international law, materials, and mechanisms within the proposed interpretative provision. This theme emerged mainly through the responses of a significant minority of civil society and public organisations that responded to this question. There was a small number of responses that came from individuals.

The majority of the respondents who supported the proposal commented that the proposed approach is appropriate and that the Scottish Government should build on the existing international sources. This would allow for a clear and consistent framework for courts and duty-bearers to follow. In addition, there was a small number of respondents who clarified that, despite their limited knowledge on the topic, they are supportive of the proposed approach or expressed their agreement in a very laconic way.

“We agree with the proposed approach. It is appropriate to build on the existing system of international consideration, development, and interpretation of rights when incorporating these international rights.” (Organisation – Other)

UK and Scottish legislation and other materials should be considered

The next most frequent theme was suggestions that legislation and other materials (like judicial interpretation and case law) from Scotland and the UK should be considered for the interpretive provision in the Human Rights Bill. This theme was commonly mentioned by organisations as well as individuals. More specifically, among the organisations that responded to the question, a significant minority of the public organisations and a small minority of the civil society organisations raised this theme.

Respondents mentioned various Acts that should be considered for the interpretative provision. The Human Rights Act 1998 and the Equality Act 2010 were the most frequently mentioned Acts. It was highlighted that the provisions of the Human Rights Bill should not contradict these acts. Legislation such as the Procurement Reform (Scotland) Act 2014, the Gaelic Language (Scotland) Act 2005, and the National Parks (Scotland) Act 2000 were mentioned in the responses.

“[…] The interpretative clause could also contain clarification that, for the avoidance of doubt, nothing in this Act modifies the Equality Act 2010 or the Human Rights Act 1998 and a general statement that the rights can only be applied in areas of devolved competence to allow for future variations to the devolution settlement. […]” (Organisation – Other)

Summary of other emerging themes

The next most frequent theme was respondents’ concerns about the implementation of this proposal, or complete disagreement with it, raising several challenges to including international law, materials, and mechanisms within the interpretative provision. A challenge mentioned by the respondents was the difficulty for international treaties to be specific, given the different context in various societies. Another challenge highlighted by the respondents was that it may prove cumbersome and, in the context of non-treaty rights such as the right to a healthy environment, very difficult to specify potentially relevant sources of law. An equally frequent theme, expressed by a small minority, was that EU legislation and case law should be considered for the proposed interpretative provision. Respondents mentioned the materials issued by the Council of Europe, the European Convention on Human Rights, the jurisprudence (and case law) of the European Court of Human Rights, and the EU Charter of Fundamental Rights. Another emerging theme was the request of a significant minority of the respondents to this question to provide further clarity and guidance regarding interpretation. Respondents mentioning this theme suggested that the interpretative provision should be very clear, as well as understandable and accessible to as many people as possible. They argued that there might be contradictions in the definitions and interpretations of human rights in different treaties (even among the UN treaties), and clarity would be essential to avoid confusion or inconsistency among the actions of duty-bearers, rights-holders, and the courts.

Question 4: What are your views on the proposed model of incorporation?

Open question

There were 236 responses to this question in the consultation.

Support for the overall proposition of incorporating the four UN treaties and the right to a healthy environment

The most prevalent theme was the expression of support for the overall proposition of incorporating the four UN treaties, along with the right to a healthy environment. This theme was equally expressed by organisations and individuals. Among the organisations raising this theme, the majority were civil society organisations, with public organisations following next.

Respondents mentioned that incorporation of the four UN treaties would strengthen human rights protection in Scotland, allow for a progressive realisation of rights, and align the country’s policy with international law and standards. A large minority of the respondents who mentioned this theme explicitly supported the approach of using text directly from the treaties in the Human Rights Bill (sometimes described as a ‘direct treaty text’ approach). They held the view that this would allow for greater consistency and coherence among the Bill’s provisions. A few respondents explicitly expressed their support for the inclusion of the right to a healthy environment. A few respondents not only supported the proposed incorporation model but they urged the Scottish government to follow a ‘maximalist approach’ and go beyond the treaties by incorporating as many rights as possible.

“We support the incorporation of ICESCR, CEDAW, CRPD, CERD and the right to a healthy environment into Scots law. This is a significant step forward in the advancement of human rights in Scotland and will provide a robust framework that will enable people to name and claim their rights, will embed rights into decision-making by public bodies, and will lead to the progressive realisation of all of our rights for everyone. We support the proposal that all four treaties should be reproduced in the Bill and aware that there are restrictions around text that are related to areas reserved for the UK Parliament. […] It is essential that the Bill takes a maximalist approach to include as many rights as possible within the Bill […]” (Human Rights Consortium Scotland)

“[…] We support direct copying and pasting of text from the treaties over a transposition approach. This will allow for greater consistency and continuity overall, as precedent has already been set interpreting the rights of each treaty in jurisdictions elsewhere, and will help to minimise ambiguity in the implementation phase. We agree that the right to a healthy environment should be recognised and included in this Bill. […].” (Environmental Rights Centre for Scotland)

Views on the procedural duty and the duty to comply

The next most frequent theme emerged through responses that commented on the proposals regarding the procedural duty and the duty to comply with duty-bearers and public bodies. This theme was solely expressed by organisations, with the majority of them being civil society organisations and a few of them being public organisations. Across the civil society organisations that responded to this question, the majority had human rights, disability, gender, or race as their main fields of interest.

The majority of the respondents, who expressed their views on these duties, supported the inclusion of a procedural duty^[17] and a duty to comply in the Bill. More specifically, the proposal for an initial procedural duty for public bodies that should eventually be supplemented with a duty to comply was supported with respondents noting the importance of the move to compliance happening in a reasonable timeframe (approximately two years). A few respondents pointed out that the duty to comply should not replace the procedural duty, but it should work as an additional provision. A large minority of the respondents urged for the duty to comply to apply to the equality treaties, highlighting that failure to place a duty to comply with the equality treaties (also called special protection treaties by some respondents) is a significant departure from fully incorporating them into Scots law via the Bill. According to the respondents, including a duty to comply with those treaties would improve the accountability of public bodies, would facilitate the progressive realisation of the rights over time, and would allow for achieving certain policy goals faster.

“[…] We support Human Rights Consortium Scotland’s position that there should initially be a procedural duty on public bodies (and as far as possible private actors) to ICESCR and the right to a healthy environment. The period of time where there is only a duty to have due regard should be no more than two years and be specified in the Bill. After this, a duty to comply should be added and applied to ICESCR and the right to a healthy environment. […]” (Scottish Independent Advocacy Alliance)

“[…] We are very concerned about the proposal to not place the stronger duty to comply on the specific protection treaties. As the consultation itself acknowledges, the duty to comply has the potential to be ‘transformative’, and it is this duty that can enable people to name and claim these rights. Any decision to limit incorporation of the specific protection treaties to only a procedural duty is a significant departure from the detail and intent of the National Taskforce recommendations and from full incorporation. […]” (Human Rights Consortium Scotland)

Safeguarding the rights of various groups of people

The next most prevalent theme expressed the views of a significant minority of respondents about the rights of various groups of people. More information about this theme can be found in Chapter 9, ‘General themes of the consultation responses’.

Summary of other emerging themes

There were several other themes that emerged from the responses to this question. One of these themes was the request for additional clarity (and caution) about the model. Respondents who made this request highlighted that proposals around the model could be clearer and more detailed to enhance the accountability of obligations and consistency. Another emerging theme was the views of respondents on how to strike a balance between devolved and reserved powers. Most respondents mentioning this theme stressed the need for a careful inclusion of the treaties in the Bill, eliminating text related to areas reserved for the UK Parliament, while a few others encouraged the Scottish Government to go as far as possible within their devolved limits. A few respondents pointed out that the indivisibility and interdependence of human rights could make it more difficult to strike the necessary balance between devolved and reserved powers.

Question 5: Are there any rights in the equality treaties which you think should be treated differently?

Closed question

There were 158 responses to this question.

A nearly equal split of opinions was expressed among respondents, with 51% expressing that there are some rights in the equality treaties which should be treated differently. Conversely, 49% opposed this idea.

Open question

There were 176 responses to this question in the consultation.

The rights of disabled people

The most prevalent theme among responses focused on the rights of disabled people (including people with learning disabilities and mental health issues), especially those protected by the CRPD. This theme was predominantly expressed by organisations. The majority were civil society organisations, followed by public organisations. A small number of responses came from private organisations and individuals. A large minority of the civil society organisations who mentioned this theme stated issues related to human rights, disability, and gender as their main areas of interest.

Respondents who mentioned this theme highlighted the fact that there are substantive rights described in the CRPD which are not featured in the ICESCR and must be incorporated fully into the Human Rights Bill. Among these rights was the right of disabled people to equal recognition before the law (Article 12), the right to independent living (Article 19), the right to personal mobility (Article 20), the right to education (Article 24), and the right to the highest attainable standard of health (Article 25). It was mentioned that disabled people often face serious infringements of their human rights, such as not being treated with dignity by public bodies or while receiving health and social care. Intersectionality among different protected characteristics (e.g. disabled women, disabled LGBTI people, or older disabled people) was described as a significant factor in exacerbating infringements of human rights. Respondents cited that disabled people face discrimination regarding cultural, social, and employment opportunities. For these reasons, the respondents pointed out the need to take into consideration the provisions of the CRPD. The majority of respondents who mentioned this theme suggested that articles which they consider to sit firmly in devolved competence (like the above-mentioned) must be treated differently and fully incorporated through a duty to comply and a procedural duty. This duty means that the courts and duty-bearers will be required to consider these rights for their decision-making, and it is further discussed in the following parts of the consultation.

“Whilst it might be said that the CRPD sets out rights that already exist in other treaties, it is important to recognise that the CRPD in fact, includes rights that are specific to disability and in a manner which requires non-discrimination in rights enjoyment for people with disabilities. […]” (Edinburgh Napier University Centre for Mental Health Practice, Policy and Law Research)

“[…] It is especially important for LGBTI+ people that the rights to independent living, habilitation and rehabilitation, and personal mobility be placed under a duty to comply. […] The LGBTI+ community is diverse and made up of people with many intersecting characteristics. We do, therefore, need the protection from sexism, ableism, and racism these treaties provide if they are implemented to their maximum extent.” (Equality Network)

Views on the proposed duties in the Bill

The next most prevalent theme was the views of a large minority of respondents on provisions of the Bill regarding the duties of those delivering devolved public functions. While this theme was raised in question 4, it was brought up by respondents in this question, too. The theme was primarily expressed by civil society organisations, with a few relevant responses coming from public organisations and individuals. Among the civil society organisations, a large minority were organisations with a main interest in human rights, disability, gender, and race.

Respondents who mentioned this theme focused on the procedural duty and the duty to comply for bodies delivering devolved functions, and they are closely related to the responses to the theme regarding the rights of disabled people. A few respondents discussed the need for a procedural duty, but most respondents referred to the duty to comply. They strongly recommended that the Bill incorporates all the rights in the treaties to the greatest extent possible within devolved competencies. Specifically, a few of these respondents stressed that the decision to not place a duty to comply represents a significant departure from the full incorporation of the treaties. In addition, the majority of respondents who supported the inclusion of a duty to comply in the Bill discussed the need to safeguard the rights of disabled people. These respondents highlighted that the only way to successfully deliver human rights for disabled people is through including a duty to comply with the substantive rights in the CRPD.

“To realise the rights for more people in Scotland and help to address serious issues of inequality and unsustainability, public bodies should have a duty to have due regard (‘procedural duty’) for an initial phase of integration; as well as a duty to comply with substantive rights in the Bill across all of the treaties incorporated in the bill (with timescales specified in the Bill). We appreciate that there are limits placed by devolution on what rights can be granted by the Scottish Parliament but believe that the CEDAW, CERD and CRPD rights can be given more stringent protection within these limits to ensure that the specific barriers faced by disabled people, women, and people from ethnic minorities are addressed.” (Organisation – Other)

Equality treaties referred to as ‘special protection treaties’

The next most frequent theme emerged among responses, which referred to the UN three equality treaties (i.e. ICERD, CEDAW, CRPD) described in the consultation as ‘special protection treaties’. The majority of respondents who mentioned this theme were civil society organisations, with only a few responses coming from public organisations and individuals. Among the civil society organisations, a large minority were organisations with a main interest in areas related to human rights, disability, gender, and race.

The responses that mentioned this theme were split between those simply referring to the UN treaties as ‘special protection treaties’ and those providing an explanation of why this term was preferred. The respondents who provided an explanation of their choice expressed that although they understand the rationale behind using the term ‘equality treaties’, they felt it is not the most appropriate term. The main reason provided for this concern was that the term ‘equality treaties’ may undermine their full scope and obligations, while at the same time, the treaties do not ensure equality for all minority groups.

“At the outset of this question, we would like to flag that while we understand the use of the term ‘equalities treaties’ and the accessible and positive way this encapsulates CERD, CEDAW and CRPD, we are not convinced that it is a term we would encourage. We are concerned that the use of such a term could potentially undermine the full scope and obligations of these treaties, with particular regard to the substantive rights they confer. […]” (Just Fair)

“[…] we note others also refer to these as the special protection treaties, partly because together they do not confer full equality for all minority groups […].” (LGBT Youth Scotland)

Summary of other emerging themes

There were various other themes emerging from the responses. They were mostly focused on other types of rights (e.g. cultural, economic, and social rights) or the rights of different groups of people. The groups mentioned included people with specific protected characteristics (i.e. women, refugees, ethnic and other minorities, children and young people, LGBTI people) as well as people in care and care experienced people. There was a small minority of respondents who did not identify any specific rights that should be treated differently.