A Human Rights Bill for Scotland: consultation analysis

5. Views on: Incorporating Further Rights and Embedding Equality

Question 12: Given that the Human Rights Act 1998 is protected from modification under the Scotland Act 1998, how do you think we can best signal that the Human Rights Act (and civil and political rights) form a core pillar of human rights law in Scotland?

Open question

There were 170 responses to this question in the consultation.

Suggestion for integrating the Human Rights Act 1998 into the implementation of the Human Rights Bill

The first most frequently raised theme was a suggestion for integrating the Human Rights Act 1998 in the implementation of the Bill. This theme was more frequently raised by organisations, mainly by civil society organisations. In particular, a large minority of respondents to this question supported including the Human Rights Act 1998 in the implementation of the Bill as part of the guidance, public body training, capacity building and information and awareness-raising plans for the Bill. A significant minority of respondents supported this to help ensure that duty-bearers and rights-holders are aware of the 1998 Act and understand all human rights and relevant duties when implementing the new Bill. Another suggestion raised by a significant minority of the consultation respondents was the need to reference the Human Rights Act 1998 and the ECHR in the Bill, as well as noting that all human rights (including ICCPR and ICESCR) are indivisible and interdependent.

“We accept the Scottish Government’s conclusions that it is not possible to restate rights included within the Human Rights Act 1998, however, this should not preclude public bodies from implementing the duties and rights included in the 1998 Act. The rights enshrined in the HRA should be included as part of the guidance, public body training and capacity building, and information and awareness raising.” (Environmental Rights Centre for Scotland)

“[…] A suggested approach is to make reference to the interdependence and indivisibility of all categories of rights, and to ECHR rights as are set out in the Human Rights Act 1998 which must be read, applied and interpreted in accordance with international human rights treaties as higher sources of international law (which indeed the European Court of Human Rights should do) in the Bill. […]” (Edinburgh Napier University Centre for Mental Health Practice, Policy and Law Research)

Agreement on not restating the Human Rights Act 1998 in the Bill

The second most frequently mentioned theme was the agreement to not restate the Human Rights Act 1998 in the Bill. This theme was more common among individuals and civil society organisations. A large minority of respondents to this question supported the notion that there should be no restatement of the Human Rights Act 1998 in the Bill. They were concerned that the restatement of the 1998 Act might conflict with the UK-wide legislation, emphasising the importance of alignment with the UK Government to prevent potential challenges to the Bill. It was discussed that the restatement of the 1998 Act in the Bill could add further burden to protecting Human Rights. In particular, a significant minority of respondents noted that the Human Rights Act 1998 is well established with a high level of public awareness in Scotland. Therefore, any restatement of this in the Bill would be an unnecessary duplication, potentially causing confusion about changes to the Human Rights Act.

“Albeit vital to a human rights culture, the civil and political rights outlined in the Human Rights Act 1998 cannot be inserted directly to a new Human Rights Bill for Scotland without risking challenge from the UK Government and potentially endangering the Bill itself.” (Organisation – Other)

“We do not consider that it is either necessary or desirable to ‘restate’ or ‘re-enact’ these rights into a separate Act of the Scottish Parliament. The European Convention on Human Rights is already part of the constitutional settlement through the mechanism of the Scotland Act 1998 and the Human Rights Act. In our experience these rights are now well known and well understood. Re-stating them within the Bill runs the risk of confusion.” (Senators of the College of Justice)

Concerns about specific population groups’ rights and suggestions on incorporating the UNCAT into the Bill

The third most frequently raised theme was concerns about specific population groups’ rights as well as suggestions on incorporating the UNCAT into the Bill. This theme was raised by a significant minority of respondents to the questions, and it was more common among civil society and public organisations.

A small minority of respondents to this question expressed concerns about the protection of the rights of specific population groups, such as people with learning disabilities, people who have been imprisoned, and those who have experienced violence. They emphasised the importance of ensuring equal access, inclusion, and protection of the rights of these groups. A small minority of respondents to this question suggested incorporating the UNCAT into the Bill. However, it is worth noting that the suggested approach outlined in the consultation was not to incorporate the UNCAT within the framework legislation. Another small minority of respondents to this question supported the idea that, instead of incorporating the UNCAT into the Bill, the Scottish Government should be required to deliver services aimed at rehabilitating victims of torture. They argued that an effective remedy under this Bill should include fair and appropriate levels of compensation.

“The absence of an obligation to rehabilitate torture victims in line with UNCAT Article 14 is a further gap in the existing protection against torture and cruel, inhuman or degrading treatment in Scotland. While there is an obligation on the state to ensure access to physical and mental health services for individuals qualifying for care with the NHS, the existing legal framework does not explicitly address the rehabilitation of torture victims.” (Organisation – Other)

“[…] In addition, in relation to the United Nations Convention against Torture, while we accept the proposal in the consultation not to include this in the current Bill, the Scottish Government should be required to deliver services aimed at rehabilitation from torture and effective remedy under this Bill should include fair and appropriate levels of compensation. […]” (Just Fair)

Summary of other emerging themes

Another emerging theme raised was a general suggestion for Scotland to ensure the protection of the civil and political rights of its residents, regardless of the method chosen for implementation. A few respondents supported restating the Human Rights Act in the Bill, while others argued that there is no need to explicitly signal that the Human Rights Act (and civil and political rights) form a core pillar of human rights law in Scotland. A few consultation respondents asserted that further consideration on including the Human Rights Act 1998 in the Bill is necessary, while others called for the use of clearer language and definitions in the Bill.

Question 13: How can we best embed participation in the framework of the Bill?

Open question

There were 214 responses to this question in the consultation.

Ensuring participation of those who are more at risk or with lived experience of human rights violations

The most frequently raised theme was the participation of those who are more at risk or with lived experience of human rights violations, as well as discussions about steps to ensure their meaningful participation. The majority of respondents to this question raised this theme, and it was equally common among civil society and public sector organisations.

In particular, a large minority of consultation respondents highlighted that people with lived experience should have the right to participation, including the most marginalised, hard-to-reach communities, as well as people with protected characteristics. Specific groups highlighted were people experiencing poverty, disabled people, and refugees. There were some suggestions that the Lived Experienced Board should be consulted during the development of the Bill.

A large minority of respondents to the question discussed the steps that should be taken in order to ensure effective participation from everyone, including those whose rights are at risk. Specifically, examples of steps to achieve effective participation included addressing barriers to participation, such as the provision of childcare, compensation, availability of translation services, and providing guidance and information to clarify definitions and other elements for which participation is required. In addition, ensuring accessibility, providing participation opportunities through representative bodies, as well as ensuring feedback loops were deemed appropriate steps to effective participation.

A significant minority of respondents to the question highlighted the importance of meaningful participation, providing examples of meaningful involvement and engagement in decision-making, as well as co-design and co-production. These consultation respondents emphasised that participation should not be a tick-boxing/tokenistic exercise.

“Embedding lived experience throughout the Human Rights Bill is a key commitment that must be made to ensure human dignity is carried throughout. This is of particular importance to groups who are seldom listened to, such as ethnic minority women and disabled women. Women from these groups have explained that they often give their views on a range of subjects, but this rarely translates into action from government bodies. They have stated that only through meaningful participation can they effectively influence policy, and as such it is vital that the proposed Human Rights Bill embeds participation throughout. This could be achieved through consultation with third sector organisations who actively work to promote lived experience, as well as the creation of a lived experience board, responsible for holding government officials to account.” (The Scottish Women's Convention)

“It costs money to facilitate meaningful participation; for example, to hire venues, to pay for transport so people can attend events, for childcare so parents can take part, for interpreters, e.g. in BSL and community languages, for staff to facilitate sessions, etc. Participation must not be an add-on or a one-off; to be effective it needs planning, time, and funding, and it must be an ongoing process. In the case of the Human Rights Bill, participation must involve an ongoing dialogue with people across society in Scotland.” (Outside the Box)

Including an explicit right to participation in the Bill

The second most commonly raised theme was to include an explicit right to participation in the Bill. This theme, raised by a majority of respondents to the question, was equally common among civil society and public sector organisations.

A large minority of respondents generally called for this inclusion, with a subset of them highlighting that participation could be included as a Minimum Core Obligation, while others emphasised that it should be embedded throughout the Bill, including its purpose, reporting, implementation, monitoring and accountability. A significant minority of respondents provided specific examples of models on how participation could be embedded in the Bill, the most common of them being the UNCRC Bill, the Aarhus Convention, the Panel Principles of Participation, and the Lundy Model of Participation. Less commonly raised examples included a model used by the Poverty and Inequality Commission, the Scottish Government’s National Standards for Community Engagement and Participation, Part 2 of the Community Empowerment Act, the Committee on the Rights of Persons with Disabilities General Comment No.7 (2018), UN OHCRH Guidelines of the Effective Implementation of the Right to Participate in Public Affairs, the Declaration on the Right to Development 1986, Declaration on the Right of Indigenous Peoples 2007, Sherry Arnstein’s Ladder of Citizen Participation, the Scottish Government consultation on proposals for the review into the effectiveness of the Public Sector Equality Duty (PSED) in Scotland, Scotland's Volunteering Action Plan, the Community Empowerment Act, the Carers (Scotland) Act 2016), the Council of Europe’s Principles of Participation, and the Community Empowerment (Scotland) Act 2015.

“Participation should be embedded throughout the Bill, including in its purpose, in reporting on the implementation of the Bill, and in monitoring and accountability.” (Individual)

“CJVSF appreciates that the right to participation is intrinsic to the implementation of this Bill. […], we think that participation should be included as a minimum core obligation. It is also important that participation is embedded in the development of this Bill as well as being a requirement for duty bearers.” (Criminal Justice Voluntary Sector Forum (CJVSF), hosted by CCPS)

A set of additional suggestions concerning the specificities of embedding participation in the Bill

The third most frequently raised theme was a set of additional suggestions on supporting embedding participation in the Bill. This theme, raised by a large minority of respondents to this question, was more common among civil society organisations.

A significant minority of respondents to the question supported the idea that public bodies should have a duty to ensure public participation in decision-making as a human-rights-based approach. This included participation in planning policy and services, contributing evidence and insights to human rights and equality impact assessments, engaging in human rights budgeting processes, and monitoring and reporting against human rights duties. In addition to this, respondents supported the idea that public bodies should monitor and provide evidence of participation while using feedback mechanisms for participants, including follow-ups, to make participation meaningful for individuals. A subset of these respondents explicitly supported the idea that the proposed Human Rights Scheme in the Bill should include a requirement for Scottish Ministers to consult people whose rights are at risk.

A significant minority of respondents to this question argued that individuals and groups whose rights are most at risk should be engaged in defining Minimum Core Obligations (MCOs). A small minority of respondents to this question usually provided a set of additional proposals, including the suggestion that the Scottish Human Rights Commission (SHRC) should have a clear duty to embed the participation of people whose rights are most at risk in all aspects of its work, especially concerning its monitoring role, as this would strengthen the SHRC's effectiveness in promoting and protecting human rights. Another suggestion was that courts should be mandated to consider the views and perspectives of complainants when determining remedies as per the UNCRC Bill.

“[…] There should be a programme of participation of people whose rights are most at risk in determining Minimum Core Obligations. The Scottish Human Rights Commission should have a duty to embed the participation of people, whose rights are most at risk in all that they do, and particularly with regard to their monitoring role. Courts should be required to consider the complainants’ views in determining a remedy. […]” (Carers Trust Scotland, on behalf of the National Carer Organisations)

Summary of other emerging themes

Another small minority of respondents discussed the potential interaction of the right to participation with the PSED while emphasising the need to strengthen the PSED. A few respondents supported the idea that independent advocacy provision is a way of embedding the right to participation in the Bill. A few other respondents either disagreed or expressed their concerns about including the right to participation in the Bill, mainly suggesting that participation could increase the time and investment required within the communities sector to ensure public participation on the subject matters.

Question 14: What are your views on the proposed approach to including an equality provision to ensure everyone is able to access rights in the Bill?

Open question

There were 221 responses to this question in the consultation.

General agreement with including an equality provision in the Bill

The most frequently raised theme was the general agreement to include an equality provision in the Bill. This theme was equally common among civil society and public sector organisations.

A majority of respondents agreed with the suggested approach to including an equality provision in the Bill, emphasising that such an approach would ensure equal access and protection of everyone’s rights. While the majority of those who supported the inclusion of an equality provision did not specify their preference for which model should be followed, a few respondents endorsed the approach of modelling the equality provision on Article 14 of the European Convention on Human Rights, covering the same population groups. Only a small number of respondents agreed with the approach of modelling the equality provision based on Article 2 of ICESCR without justifying their preference.

“We strongly support the principle of an equality provision in the Bill, which underscores the ambition that the Bill will protect the rights of everyone in Scotland and that rights can be accessed by everyone equally, regardless of status.” (JustRight Scotland)

Request for clarity on the introduction of the equality provision in the Bill and mechanisms to secure rights

The second most frequently raised theme was requests for further clarity on the introduction of the equality provision in the Bill, as well as additional mechanisms to ensure equal access and protection of rights. A significant minority of respondents to this question requested further clarity on how the equality provision will interact with existing law. More information about this theme can be found in Chapter 9, ‘General themes of the consultation responses’.

LGBTI, older people and other population groups with protected characteristics should be explicitly mentioned in the Bill

The third most frequently raised theme was the request for explicitly stating LGBTI, older people and population groups with protected characteristics in the Bill. This theme, raised by a significant minority of respondents, was more common among civil society organisations.

In particular, a significant minority of respondents to the question supported that stronger protection of rights would be achieved by specifically naming LGBTI and older people, instead of using ‘other status’ to cover their rights. Another significant minority of consultation respondents supported that the equality provision should include more population groups, such as care experienced people, unpaid carers, disabled people, children and young people, people who have been in prison, and families affected by imprisonment. They also mentioned that the equality provision should consider the intersectionality of different characteristics.

“We agree that there should be an equality provision and that LGBTI and older people should be specifically named. There is significant benefit in these groups being visible in the Bill, given the particular consideration needed to address barriers to their rights being met.” (Organisation – Public)

“SIAA supports the inclusion of an equality provision in the Bill. We echo calls from experts across civil society […] that LGBTI, older people and Care Experienced people should be specifically named on the face of the Bill. There is a significant benefit in these groups being visible, given the particular consideration needed to address barriers to their rights. A naming approach would also help to overcome the fact that Care Experienced people have historically not been recognised by the broad category of ‘other status’.” (Scottish Independent Advocacy Alliance)

Summary of other emerging themes

A small minority of respondents expressed their concerns about the legislative competence of including such a provision in the Bill. Furthermore, a small minority of respondents suggested that UN CRPD and other conventions or principles (e.g. 1991 UN Principles for Older Persons, Aarhus Convention) should be considered and enforced.

Question 15: How do you think we should define the groups to be protected by the equality provision?

Open question

There were 199 responses to this question in the consultation.

Agreement with stating specific groups to be protected by the equality provision

The most frequently raised theme was the agreement with stating specific groups in the Bill framework. This theme was more common among civil society organisations.

A large minority of respondents to the question expressed their agreement with including specific groups in the equality provision, with a large minority of them supporting the explicit naming of LGBTI and older people. A significant minority of respondents under this theme supported the explicit inclusion of people with physical or mental health issues, disabilities, autism or neurodiversity. Similarly, a significant minority of respondents under this theme supported the inclusion of care-experienced individuals and groups in the equality provision. Other less frequently mentioned groups included unpaid carers, minority language speakers, migrants, refugees or asylum seekers, Gypsy/Travellers, people with substance misuse issues, people experiencing poverty and other forms of social exclusion, armed forces families, families affected by imprisonment, children, and holders of certain philosophical beliefs.

“Close the Gap agrees […] that LGBTI people, older people and Care-Experienced people should be specifically named within the non-discrimination aspect of the equality provision.” (Close the Gap)

“[…] the strengthening of the equality provision for people with physical, mental and intellectual disabilities should be considered and should be made explicit in the Bill. The key aim of the equality provision is to ensure that all protected people’s rights are promoted and protected, in particular those less heard and the most vulnerable in society.” (Mental Welfare Commission for Scotland)

Suggestion on aligning with existing laws and requests for providing guidance

The second most frequently raised theme was suggestions on aligning the equality provision with existing laws and requests for guidance. This theme, raised by a large minority of respondents to the question, was more common among public sector organisations.

In particular, a significant minority of respondents to this question suggested that the equality provision should cover the protected characteristics outlined either by the Equality Act 2010, Article 14 of ECHR, or Article 2 of ICESCR. Another significant minority of respondents requested clarity on how the equality provision will be included in the Bill and which groups of people will be covered. For example, guidance could be provided alongside the Bill, defining the term ‘other status’.

“It is important to align the equality provision with the protected characteristics with the Equality Act 2010 to ensure the equal opportunities reservation is respected. […].” (CEMVO Scotland)

Disagreement with stating specific groups in the equality provision

The third most frequently raised theme was the disagreement with stating specific population groups in the Bill’s framework. In particular, a significant minority of respondents to this question disagreed with this inclusion, citing different reasons. For example, these population groups are already protected by existing law; there should be a universal right for everyone and there should be no need for a distinction of specific population groups; stating specific population groups might leave other non-stated groups unprotected. This theme was more common among individual respondents.

“Any definition that specifies certain groups inevitably downgrades the position of other groups and leads to compartmentalised thinking based on stereotypes, as opposed to genuinely valuing everyone in all the diversity we see, with all their combinations of personal and group identities.” (Individual)

Summary of other emerging themes

Another emerging theme was the importance of considering the intersectionality of the characteristics of different population groups. Yet another emerging theme was concerns about the legislative competence of including the equality provision in the Bill, as well as concerns about how this would interact with other existing acts (e.g. the Equality Act 2010).

Question 16: Do you agree or disagree that the use of ‘other status’ in the equality provision would sufficiently protect the rights of LGBTI and older people?

Closed question

There were 178 responses to this question.

The majority of respondents (75%) disagreed that the use of ‘other status’ in the equality provision would sufficiently protect the rights of LGBTI and older people. A significant minority of respondents (25%) agreed that using this term in the equality provision would sufficiently protect these population groups.

Question 17: Do you agree or disagree that the use of ‘other status’ in the equality provision would sufficiently protect the rights of LGBTI and older people? If you disagree, please provide comments to support your answer.

Open question

There were 170 responses to this question in the consultation.

‘Other status’ would not sufficiently protect the rights of LGBTI and older people and stated reasons why

The majority of the respondents supported the view that the ‘other status’ would not sufficiently protect the rights of LGBTI and older people. This theme was equally common among civil society and public organisations. A vast majority of organisations with an interest in LGBTI and older people, along with a majority of organisations focused on human rights that responded to this question, supported this theme.

They emphasised the need to explicitly state these population groups in the equality provision. The primary reason for requiring an explicit reference to these groups beyond ‘other status’ in the Bill was that ‘other status’ fails to distinguish the needs, experiences, and barriers faced by these population groups. The second most frequently mentioned reason was that by explicitly naming those groups, individuals would be able to legally challenge discriminatory protection of their rights under this provision in the Bill. Explicit reference to these groups will enable LGBTI and older people to access legal remedies and justice, especially considering that both groups currently lack the protection of any international treaty. Furthermore, specifying these population groups would provide clarity to duty-bearers regarding the intended beneficiaries of the provision. An explicit reference to those groups beyond ‘other status’ is deemed necessary, as anything less than full inclusion might create a hierarchy of rights, introducing ambiguity regarding who is afforded protection under this Bill.

“We disagree with the use of ‘other status’ to cover LGBTI+ and Older People. Encompassing LGBTI+ people only under ‘other status’ would suggest that LGBTI+ people are somehow less included, and of less importance than other marginalised characteristics. There is a danger of creating a ‘hierarchy of rights’ within this process […]. The use of ‘other status’ provides far less clarity as to whether our rights are to be protected than if they were included on the face of the Bill.” (Equality Network)

“For the reasons stated in the consultation document that these groups are yet currently unprotected in an international treaty, and so by using the non-specific term of ‘other status’ it would not help establish their rights in matters going to the court.” (Organisation – Public)

Additional protected characteristics should be specified in the equality provision

The second most frequently mentioned theme was about including additional population groups or protected characteristics in the equality provision. A majority of the organisations with an interest in LGBTI people responding to this question supported this theme.

A significant minority of respondents to this question supported the inclusion and explicit mention of additional population groups, such as care experienced people, in the equality provision. Another significant minority of respondents suggested including an equality provision in the Bill that aligns with the Equality Act 2010 or explicitly referencing protected characteristics, such as sexual orientation, gender, gender reassignment, and age.

“Care Experienced people share the various characteristics listed, and we agree with the Scottish Government that naming these groups in the text of the equality provision to ‘help to ensure clarity of exactly who the provision is intended to protect’. For Care Experienced people as a group in their own right, they have historically not been recognised by the broad category of ‘other status’ under the Bill.” (Who Cares? Scotland)

“We would disagree that ‘other status’ is a strong enough provision to protect the rights of LGBTI and older people. Whilst human rights frameworks such as the European Convention on Human Rights use this ‘other status’ designation, we believe this equality provision should align with the protected characteristics underpinning the Equality Act 2010, which are more comprehensive. The protections offered by this model are far more specific and would also help ensure that this Bill sits within Scotland’s devolved competence. LGBTI and older people would be better protected by the specific mention of ‘age’, ‘sexual orientation’ and ‘gender reassignment’, as would people living with HIV or other legally defined disabilities by the protected characteristic of ‘disability’.” (National AIDS Trust)

Suggestion on keeping ‘other status’ in the equality provision but request for clear guidance on this definition

The third most frequently raised theme was a suggestion for keeping ‘other status’ in the equality provision, but the Bill should be accompanied by further guidance on how ‘other status’ is defined. A significant minority of respondents to this consultation question requested clear guidance on defining ‘other status’ and how to implement it effectively. This includes clear language and further definitions, such as what older age means and differences between gender and sexual orientation. In particular, consideration should be given to attaching a specific requirement for Scottish Ministers to publish guidance around the interpretation of ‘other status’. A small minority of respondents to this question supported that there should be a separate reference to LGBTI and older people, but keeping 'other status' as well would ensure protection for particular groups of people, such as children and young people and care experienced people. A large minority of organisations specifically focused on human rights raised this theme.

“[Organisation name] agrees with the Taskforce on their point that older people and LGBTI+ lack protection in international human rights law and that explicit protection of these groups in the Bill is required. We support the decision to put these groups on the face of the Bill to ensure clarity and solidarity on who the provision is intended to protect. However, we would still advise keeping ‘other status’ to ensure that while we grow to recognise and appreciate the diversity of our society, no one is left out without sufficient protection.” (Organisation – Other)

Summary of other emerging themes

A significant minority of respondents to this question supported the idea that there is no need to distinguish these population groups, as they are all human beings covered by existing law. Another theme raised by a significant minority of respondents was disagreement with explicitly stating these population groups in the equality provision as ‘other status’ in the equality provision would sufficiently support their rights.

Question 18: Do you think the Bill framework needs to do anything additionally for LGBTI or older people?

Closed question

There were 145 responses to this question.

The majority of respondents (52%) argued that the Bill framework does not need to do anything additionally for LGBTI or older people. On the other hand, 48% supported that the Bill framework needs to do more for LGBTI or older people.

Open question

There were 116 responses to this question in the consultation.

Specifying LGBTI and older people in the equality provision

Similar to question 17, the first most frequently raised theme in this question was requests to specify LGBTI and older people in the equality provision. A large minority of respondents to this question emphasised that the Bill framework needs to explicitly include LGBTI and older people, while a small number of respondents supported expanding the equality provision to include more population groups with protected characteristics, particularly care experienced people. This theme was raised by a vast majority of organisations with an interest in older people that answered this question, and a majority of organisations with an interest in LGBTI people and human rights, which provided a response.

“[…] we recommend the Bill names LGBTI people, older people and Care Experienced people specifically in the equality provision in the Bill.” (Poverty Alliance)

Additional measures to complement and inform the Bill

The second most frequently raised theme was additional measures to complement and inform the Bill, including the provision of guidance and allowing participation of LGBTI, older people and other people with lived experience of rights violations to provide their views and insights to inform the Bill. This theme was raised by a majority of the organisations with an interest in older people who answered this question. A large minority of organisations with an interest in LGBTI people and a significant minority of organisations with human rights interests supported this theme.

A small minority of respondents to this question requested providing guidance and information complementary to the framework, such as material from international law and treaty bodies, including the Yogyakarta Principles.^[18] A few respondents argued that the Bill framework should be informed by additional evidence from the literature and the participation of those population groups (or organisations representing them) to ensure that the Bill will adequately protect their rights. Additional measures raised by a small number of respondents to the question included suggestions on data collection for monitoring purposes of the Bill, incorporation of a statutory right to independent advocacy into the Bill, and the provision of staff training regarding all protected characteristics. A small number of respondents highlighted the importance of ensuring the protection of trans and intersex people while distinguishing trans and intersex people from LGB people. Another small number of respondents suggested the introduction of an Old Person’s Commissioner to ensure the protection of the rights of older people.

“We support […] that in addition to specifically naming LGBTI+ and older people in the equalities clause, the Bill must also be explicit about including material from international law and treaty bodies that contributes to the evolving and progressive realisation of LGBTI+ rights and older people. For example, including the Yogyakarta Principles as material that the court system and duty bearers can utilise when interpreting human rights of LGBTI+ people. Such supporting material will provide further strengthening of the Bill’s ability to protect LGBTI+ and older people’s rights in practice, and contribute important detail in the absence of a UN treaty stating the explicit rights of LGBTI+ and older people.” (Engender)

Ensuring a clear understanding of experiences of LGBTI and older people and strengthening the protection of their rights

The third most frequently raised theme was ensuring a clear understanding of the experiences of LGBTI and older people while strengthening the protection of their rights. This theme was raised by a majority of organisations with an interest in older people that answered this question, as well as by a large minority of organisations with with human rights interests.

A small minority of respondents to this question supported ensuring a clear understanding of the experiences, barriers, and needs of these population groups to determine any additional measures related to their rights. A significant minority of respondents highlighted the importance of strengthening the protection, effective access and remediation of human rights for LGBTI, older people and other groups with protected characteristics. Some examples of additional ways to support the protection of their rights included: (i) affirming rights in settings like community-based and long-term care for individuals receiving care, (ii) making legal preparations for the elderly, taking into account adherence to religious and philosophical beliefs, (iii) recognising the consequences of various forms of discrimination, like discrimination based on sexuality, and (iv) affirming the human rights of children, including their entitlement to exercise their philosophical beliefs. A small number of respondents to this question highlighted the need for the provision of additional services to further support these population groups (e.g. ensuring the provision of palliative care to older people).

“Rights for older people must reflect their experiences and the challenges they face on account of their age. Issues including social and digital exclusion, barriers to accessing services and resources, physical and cognitive decline and the perceptions of the value of older people must be considered when assessing how best to support and uphold the rights of older people to enable them to be treated as equals across all parts of society. Equally, the rights of people from the LGBTI community must also reflect their experiences and needs. Much work needs to be done to ensure that there is a clear understanding of the experiences, challenges and needs of these specific groups to enable a rights-based approach that supports their ability to live as equals, free from discrimination.” (Alzheimer Scotland)

Summary of other emerging themes

A few respondents to this question highlighted the importance of considering the intersectionality of population groups with protected characteristics, including LGBTI and older people. A general comment on ensuring the protection of everyone’s rights, including the rights of LGBTI and older people, was made by a few respondents. A small number of consultation respondents supported that the Bill framework does not need to include anything additional for these population groups. Finally, another small number of respondents supported that there is no need for further distinction between LGBTI and older people, as they are human beings like everyone else, meaning that they are already protected by current law.