A Human Rights Bill for Scotland: consultation analysis

6. Views on: The Duties

Question 19: What is your view on who the duties in the Bill should apply to?

Open question

There were 236 responses to this question in the consultation.

Agreement with the view presented in the consultation

The most common theme among respondents who answered this question was general agreement with the proposed definition of who should bear the duties. This theme was mentioned by the majority of respondents representing organisations, specifically civil society organisations and public sector bodies. A significant minority of individual respondents also mentioned this theme.

The consultation proposed that “the duties should apply, so far as possible, to bodies carrying out devolved public functions” and, “private bodies acting under a contract or other arrangements with a public body”. This approach mirrors the UNCRC Bill’s approach. The majority of respondents who mentioned this theme agreed with the definition of duty-bearers exactly as it was framed in the consultation. A significant minority of respondents who mentioned this theme agreed with applying the duties to public bodies carrying out public functions and private bodies acting under a contract or other arrangements with a public body, but did not explicitly mention that these duties should apply when executing devolved public functions. A significant minority of respondents who expressed general agreement with the proposed definition recommended that third-sector bodies carrying out public functions be included as duty-bearers.

A few respondents, although they generally agreed with the definition presented by the consultation, recommended modifications to it. For instance, they recommended applying the duties to all bodies operating in Scotland, irrespective of the Scottish Government’s devolved competence. A small number of respondents recommended that this should be achieved through collaboration with the UK government and recommended that the duties be applied to all private businesses irrespective of whether they are commissioned by the Scottish Government.

“I agree on the proposed approach to duties both on public bodies and on relevant private bodies carrying out public functions.” (Individual)

“We agree that the duties in the Bill should apply as widely as possible to bodies carrying out devolved public functions. In addition to public bodies, this should include private, and third sector organisations contracted to deliver devolved public functions when carrying out those functions.” (Dundee Health and Social Care Partnership)

Public bodies and/or the Scottish Government should be duty-bearers

The second most frequently mentioned theme was the view that the public sector should bear the duties outlined in the Bill. Respondents who mentioned this theme did not explicitly agree with the proposed definition for duty-bearers, but generally held the view that public bodies, Scottish Ministers, and/or the Scottish Government should bear the duties. A large minority of respondents who mentioned this theme argued that the duties should apply to public bodies within Scotland’s devolved limits. Conversely, a small number of respondents expressed that all public bodies, irrespective of falling under the responsibility of the Scottish Government or Scottish Parliament, should be duty-bearers. A large minority of respondents who mentioned this theme held the view that public bodies should be the sole duty-bearers. A few respondents held the view that the duties in the Bill should be borne by the Scottish Government and/or ministers in general.

“The duties should apply to as many public bodies as possible within devolution, including but not limited to community partnerships, integrated joint boards, Scottish Government, Local Authorities, listed public bodies, etc. […]” (Organisation – Other)

“All public bodies should have the duty to respect and protect everyone’s rights equally without prejudice”. (Individual)

Confusion expressed and further clarification required

The third most frequently mentioned theme was the need for further clarification when defining duty-bearers, as well as some confusion about how the Bill will interact with pre-existing human rights legislation in the UK. A large minority of these respondents expressed that it is difficult to discern whether a body is under Scottish or UK-wide authority and for this reason, the Scottish Government should provide further clarification on this matter when defining duty-bearers. Respondents generally showed awareness of the devolved competency of the Scottish Government, with some respondents noting that UK public authorities may not be required to uphold the rights outlined in the Bill. These respondents called for the Scottish Government to collaborate with the UK to achieve some or all of the following: ensure UK public bodies uphold the rights, incorporate the rights at a UK level, and/or further incorporate international human rights at the UK level.

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 common theme was the view that duty-bearers should be defined using alternative characteristics to those stated in the consultation (i.e. private bodies, public bodies). Instead, respondents named specific groups which they felt should be duty-bearers. These included (i) providers of care and services, (ii) all individuals, (iii) everyone with a legal standing, (iv) providers working with children, and (v) everyone providing public services. Another theme identified was the view that private bodies should be duty-bearers. Respondents who mentioned this theme did not explicitly agree with the proposed definition for duty-bearers, but generally held the view that private bodies under government direction should be duty-bearers. A significant minority of respondents who mentioned this theme expressed that all private bodies should bear the duties outlined in the Bill.

Another emerging theme involved recommendations for drafting and implementing the Bill. These centred around two areas (i) using existing legal frameworks and (ii) collaborating with the UK government to ensure public bodies uphold the rights at the UK level. Another emerging theme was the view that if duties are applied to private and/or third sector bodies, the Scottish Government should provide support and guidance to enable the fulfilment of their duties. Lastly, another theme identified was the view that a two-tiered system should be avoided when applying the duties. That is, avoiding a system which gives more advantages to one group over another.

Question 20: What is your view on the proposed initial procedural duty intended to embed rights in decision making?

Open question

There were 218 responses to this question in the consultation.

Support for the proposed initial procedural duty

The most common theme mentioned by respondents was general agreement with the initial procedural duty proposed in the consultation. Agreement with a procedural duty was expressed by a greater proportion of respondents representing organisations. As stated in the consultation, the procedural duty would be placed on duty-bearers as soon as practicable after the Bill becomes an Act with the aim to ‘ensure that the rights in the Bill are taken into account by duty-bearers, built into the fabric of their decision-making processes and adequately taken into account in the delivery of services’. According to the consultation, measures could include ‘policy or programme development, new legislation, as well as budgetary processes and decision-making’. Respondents typically held the view that an initial procedural duty would allow duty-bearers to adapt their processes and build their capacity to respect, protect and fulfil rights. They expressed that this duty would provide the necessary time for consistent and thorough implementation, and they mentioned specific processes that they felt would need adapting; these included financial processes, general decision-making, and service provision.

A significant minority of respondents stated that they would agree with implementing an initial procedural duty only if specific conditions were met. These included the provision of adequate support and guidance to duty-bearers, a clear timescale for implementing the initial procedural duty and further information on who would bear the duties.

“[…] There should be a ‘procedural duty’ on public bodies which means human rights must be considered when they are setting their priorities, making decisions, deciding their budget, and funding allocations, shaping new policies and developing, tendering or delivering services. This Bill will give them a new duty to embed economic, social, cultural, and environmental rights and special protection treaties, into all they do. [...] This duty will ensure rights in the Bill are taken into account. It will be necessary for public bodies to have time to embed human rights into their decision-making, to increase their capacity around human rights and to implement changes in how they work and reach decisions. […]” (Women’s Support Project)

Timescale for implementing the Human Rights Bill

The second most frequently mentioned theme related to the timescale for implementing the duties outlined in the Bill. The most common view held by respondents who mentioned this theme was that a timescale for implementing the Bill should be stated in the Bill itself or presented right after it is enacted. Respondents typically held the view that a timescale would help guide duty-bearers in planning and embedding the legislation within their operations. A majority of respondents who asked that a timescale be provided expressed their support for the timescale proposed by Human Rights Consortium Scotland (HRCS). That is, a procedural duty is implemented no more than six months after royal assent and the duty to comply is implemented no more than two years after royal assent. Support for this timescale was almost exclusively held by respondents representing civil society organisations. Respondents expressed that this timescale would guide duty-bearers with their preparations whilst ensuring the prompt implementation of the duty to comply; for this reason, it would ensure that a duty to comply is thoroughly and consistently enforced. A few respondents held the view that procedural duty should be implemented immediately after the Human Rights Bill is enacted.

“[…] Timescales for implementation should be stated in the Bill. The timescale for the commencement of this procedural duty should not exceed six months from the date of Royal Assent. This gives sufficient time for the preparation of guidance but also does not mean any unnecessary delay in starting to embed these rights across duty-bearers' work. Any longer period denies the serious rights infringements that people are living with every day. Bringing in this procedural duty will also help to focus public body attention and resources on the change needed to comply with the rights.” (Human Rights Consortium Scotland)

Support should be provided to duty-bearers

The third most frequently mentioned theme was that the Scottish Government should provide guidance and support to duty-bearers. Respondents typically held the view that duty-bearers will require guidance to understand their duties and support for building their capacity to uphold them. This is especially true if duty-bearers are not familiar with human rights law and how it is applied. Support in capacity building can also be exhibited as guidance from the Government to duty-bearers on how they can best adjust their processes to fulfil their duties. For organisations facing resource constraints, capacity building will pose a particular challenge; for this reason, respondents expressed that the Scottish Government should provide financial assistance. A few respondents expressed that support should be provided specifically to duty-bearers in the third sector.

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

Summary of other emerging themes

The view that the initial procedural duty should be a duty to have ‘due regard’ was the next most prevalent theme. Respondents typically held the view that ‘due regard’ would provide the strongest and clearest framework for a procedural duty. Respondents supported this view by citing that ‘due regard’ is an established and well-understood principle in Scots law. Another emerging theme was the disagreement with the initial procedural duty. Those who expressed disagreement with the procedural duty argued that it would be redundant and inconsequential to uphold human rights. The status of the initial procedural duty after the duty to comply takes effect was another theme mentioned by respondents. The majority of respondents who raised this theme argued that the procedural duty should remain in effect beyond the enactment of the duty to comply. They expressed it is complementary and essential for comprehensive duty implementation. However, a small number of respondents held the contrasting opinion that a procedural duty should cease the moment the duty to comply is enacted. Respondents also commonly sought further clarification on the initial procedural duty and the Bill. They requested details on enforcement mechanisms, a clearer definition of ‘procedural duty’, and insights into legal procedures addressing conflicts between the Bill and existing legislation. A few respondents sought clarity on duty-bearers before forming opinions on the initial procedural duty. Lastly, another emerging theme mentioned by respondents was the view that the procedural duty should be informed by or aligned with the PSED and/or the Fairer Scotland duty.^[19]

Question 21: What is your view on the proposed duty to comply?

Open question

There were 227 responses to this question in the online consultation.

General support for the proposed duty to comply

The most common view held by respondents was general agreement with the duty to comply proposed in the consultation. This theme was most commonly mentioned by organisational respondents, specifically civil society organisations as well as public sector bodies. As outlined in the consultation, the duty would ‘focus on compliance with the rights’ and go beyond the initial procedural duty, which would focus on decision-making. In doing so, this duty would ‘help deliver better human rights outcomes for rights-holders, help to drive improvements in the delivery of public services, strengthen accountability, and encourage public authorities to embed human rights approaches in their operations’.^[20] The proposed duty to comply would be placed in ‘respect of the core ICESCR rights and the right to a healthy environment’. A majority of respondents who expressed a general agreement with the duty to comply agreed with the proposed duty as it is. Respondents who held this view typically argued that the duty to comply would provide the most meaningful recognition of the rights outlined in the Bill; this would ensure the ultimate enforceability of economic, social, and cultural rights.

A large minority of respondents who mentioned this theme expressed partial agreement with the duty to comply. These respondents stated that although they agree with the duty to comply in principle, they would only agree with the duty under specific conditions or would like to recommend adjustments to some of its components. The most common condition/recommendation provided by these respondents was that the duty to comply should apply to the CRPD, too. For other respondents, a condition/recommendation was to apply the duty to all the special protection treaties outlined in the Bill (i.e. CEDAW, ICERD, CRPD). Respondents who expressed conditional agreement with the duty to comply were concerned that by applying the duty only to the ICESCR and the right to a healthy environment, the Bill would lack the enforceability required to uphold the rights outlined in the other treaties being incorporated. This could hinder many rights-holders from receiving remedies for human rights infringements in a court of law. Respondents warned that by including solely some of the treaties in the duty to comply, there is a risk of creating a hierarchy of rights; specifically, the ICESCR rights and the right to a healthy environment may be considered more significant. A few respondents who called for the Scottish Government to include the other treaties acknowledged that this should be done within the Scottish Government’s devolved competence.

“Direct legal enforceability is central to the definition of something as a legal right and therefore a duty to comply is essential if there is to be meaningful legal recognition of the rights in question. Thinking about ultimate enforceability is an important consideration in the earlier stages of defining the rights and their minimum core requirements.” (Individual)

“[Organisation name] agrees that public bodies and other bodies carrying out devolved public functions should have a duty to comply with all the rights within the Bill and is concerned that not all conventions will move to a duty to comply. By keeping procedural duty for some treaties, a hierarchy of rights is created. This means that some rights will be legally enshrined and upheld, whilst the others will not have the same support, leading to the assumption that certain rights have more prominence than others. […]” (Organisation - Other)

“Members agree that there should be a duty to comply with all rights, including substantive CRPD rights, on all public bodies and private companies and individuals. Without a duty to comply, citizens will not have a way to claim their rights effectively or challenge public bodies who are not meeting their rights. […] A duty to comply would ensure that Government and Government bodies can be held accountable on their human rights record.” (People First (Scotland))

Inclusion of progressive realisation and minimum core obligations

The second most frequently mentioned theme was support for specific components of the duty to comply. A large minority of civil society organisations mentioned this theme, followed by a small minority of public sector organisations. Respondents who raised this theme agreed that the duty to comply should require duty-bearers to deliver a set of minimum core obligations (MCOs) and demonstrate the progressive realisation of the rights outlined in the Bill. Among the respondents who held this view were respondents who expressed support for the duty to comply overall. This view was held mostly by civil society organisations. A few respondents stated that their view was in line with that prepared by the HRCS, with many respondents using similar phrasing to that presented by HRCS. By including MCOs, respondents felt that the duty to comply would be more effective in protecting the rights in a timely and comprehensive manner. A small number of respondents recommended that if MCOs are included in the duty, the Scottish Government should provide further clarity on how the MCOs will be developed and what they will encompass.

Additionally, respondents argued that by including progressive realisation in the duty to comply, duty-bearers would be required to take the necessary steps to realise the rights. Respondents expressed that progressive realisation should include the principle of non-retrogression; specifically, that once duty-bearers take certain actions to protect the rights in the Bill, they cannot take actions detrimental to the realisation of the rights. Respondents stated that when demonstrating progressive realisation, duty-bearers should utilise the maximum available resources. A majority of respondents suggested that both components, MCOs and progressive realisation, should be included in the duty to comply, whereas a few respondents mentioned only the latter. A small number of respondents held the view that human rights budgeting would allow for progressive realisation and the realisation of MCOs. They recommended that the adoption of human rights budgeting should be required by duty-bearers. In line with this proposition, a small number of respondents recommended that the Bill should provide general reporting requirements for monitoring and measuring duty-bearers’ progress in fulfilling the rights.

“The duty to comply should include delivering on the Minimum Core Obligations and demonstrating progressive realisation of rights. […]” (Voluntary Health Scotland)

“[…] We strongly agree that the Bill should include a strong and enforceable ‘duty to comply’ to ensure that duty bearers are demonstrating that they are progressively realising human rights (and therefore ensuring non-regression of those rights), including via the delivery of MCOs. […]” (Organisation – Other)

“[…] The duty to comply should comprise the delivery of MCOs, which necessitates the immediate and consistent fulfilment of baseline rights for all individuals, all the time; and the progressive realisation of rights, which compels public bodies to take deliberate steps towards realising these rights by utilising maximum available resources, while ensuring non-retrogression. However, we note that a third crucial element to this must be human rights budgetary processes. Only by embedding these tools in our fiscal decision-making processes can we ensure that public and third sector bodies are resourced to comply and ensure that we are approaching all levels of governance through a human rights lens. […] To ensure clarity and effectiveness, guidance provided to public, private and third sector bodies should include guidance around the demonstration of progressive realisation, use of maximum available resources and non-retrogression.” (Poverty Alliance)

Support should be provided to duty-bearers

The third most commonly mentioned theme was that the Scottish Government should provide support and guidance to duty-bearers, which will assist them in fulfilling the duty to comply. The majority of public sector organisations mentioned this theme followed by a significant minority of civil society organisations.

A significant minority of respondents who mentioned this theme called for the Scottish Government to provide further clarifications on specific terms used in defining duty-bearers. Specifically, respondents asked that definitions for the following terms be clarified: duty to comply, procedural duty, due regard, progressive realisation, maximum available resources, and non-regression. Respondents argued that a better understanding of these principles would help inform their view on the proposed duty to comply and/or provide further guidance to duty-bearers in fulfilling their duties.

“[…] A comprehensive suite of guidance should be issued, including any training or information sharing opportunities. The duty to comply will help ensure that duty-bearers apply the framework. However, compliance should be monitored fairly and proportionately; duty-bearers should be clear on the consequences of non-compliance.” (Falkirk Integration Joint Board)

“[…] The duty should be clearly explained in the Bill and supporting guidance, including accessible explanations of what principles like progressive realisation, maximum available resources and non-regression mean and look like in practice. Guidance should also include specific measures to ensure robust disaggregated equality and human rights data-gathering and analysis. This will help better identify gaps and where improvements are needed to (progressively) realise rights. […]” (Organisation – Other)

Further information about the requests for support, guidance, and resources for the duty-bearers can be found in Chapter 9, ‘General themes of the consultation responses’.

Summary of other emerging themes

The next most prevalent theme among responses focused on the timescale for implementing the Bill, particularly the duty to comply. The most popular suggestion was that the duty should be in effect within two years of the Bill’s enactment. A few respondents expressed that this timescale should be communicated in the Bill directly. A large minority of respondents who discussed timescales emphasised the general need for a timescale, asserting that providing one would enable duty-bearers to plan any adjustments to their resources, capacity, and general decision-making in time to fulfil the duty. Another emerging theme was the disagreement with the proposed duty to comply; this theme was voiced mostly by individual respondents. Respondents who disagreed with the duty to comply raised concerns about increased administrative burden and redundancy of the duty. The need for further clarification was another theme mentioned by respondents. Respondents most frequently requested that duty-bearers and rights-holders be better defined and clarified. A small number of respondents requested other clarifications, which included what the implications of the Bill will be for local authorities as well as how the courts will enforce the equality provisions in the Bill when assessing the obligations of duty-bearers to meet the MCOs. Lastly, another emerging theme identified addressed the status of the initial procedural duty after the legal enforcement of the duty to comply, with respondents advocating for the continued application of the procedural duty. Emphasising the complementarity of the procedural duty and the duty to comply, respondents argued that incorporating both would result in a more comprehensive and detailed provision for the duties outlined in the Bill.

Question 22: Do you think certain public authorities should be required to report on what actions they are planning to take, and what actions they have taken, to meet the duties set out in the Bill?

Open question

There were 221 responses to this question in the consultation.

General support for a reporting duty

The most common view held by respondents was general agreement that duty-bearers should be required to report on what actions they have taken or are planning to take to fulfil their duties. This theme was raised by the vast majority of civil society organisations who responded to this question. This was followed by a large minority of public sector organisations. The majority of respondents supported the proposition outlined in the report, specifically that certain public authorities should be required to report on their actions. This view was held by a proportionately greater number of civil society organisations, followed by public sector organisations. Respondents who held this view typically stated that a reporting duty would ensure transparency and accountability when implementing the rights outlined in the Bill. Requiring public bodies to report would allow their efforts to be scrutinised, encouraging a process which would help identify areas for improvement. For this reason, respondents felt that the proposed duty would promote a comprehensive implementation of the legislation. A small minority of respondents who were in general agreement with a requirement to report conveyed this view without explicitly supporting the proposed requirement. These respondents mentioned that there should be greater demands on public bodies and duty-bearers in general for reporting. A small minority of respondents who expressed general support for the reporting duty held the view that all duty-bearers should be required to report on their actions. They argued that this requirement should be extended to private bodies and/or third sector organisations who are duty-bearers.

“[…] We agree that public authorities should be obligated to report on what actions they are planning to take, and what actions they have taken, to meet duties set out in the Bill, including maximising resources to support rights’ realisation of the most marginalised. This is crucial for ensuring transparency and accountability in the implementation of human rights. […]” (Poverty Alliance)

“[…] All duty bearers, as far as possible and appropriate to their function, should be required to report on what actions they are planning to take, and what actions they have taken, to meet duties set out in the Bill. […] It will also make it easier for policy advocacy organisations to scrutinise the work of public bodies on human rights and enhance accountability across the board. […]” (Close the Gap)

Proposals for the content and structure of reports

The second most frequently mentioned theme was suggestions from respondents on how the reports should be structured and what they should include. The most common recommendation was that the reports should be accessible, both as to how they are written and how they can be made available for review by the rights-holders. Respondents typically held the view that this would allow rights-holders to hold duty-bearers accountable. The second most common proposal was that rights-holders, especially those at risk of human rights violations, should be consulted during the composition of these reports. Respondents felt that by involving these individuals, the reports would accurately reflect the experiences central to evaluating whether duty-bearers have met their duties. The reasoning provided for this recommendation is connected to the third most popular recommendation made by respondents: that reporting should be based on people’s experiences of their rights, highlighting where there are gaps and outlining how they will be addressed. Respondents felt that by including these components, the reports would be as meaningful as possible in promoting and ensuring human rights. Other recommendations on the structure and content of the reports included that the indicators cohere with other reporting frameworks (e.g. National Performance Framework, Planning (Scotland) Act 2019) and that both qualitative and quantitative data should be used.

“[…] It should be a requirement that public bodies consult with people whose rights are most at risk when developing these reports. These reports should not simply be a list of all activity but be about identifying gaps in rights realisation and setting out the action they are taking to address these gaps. Public bodies should be required to publish these reports, with a specific focus on ensuring that the content of these reports is accessible and meaningful […]”. (Organisation – Other)

“[…] Importantly, reports shouldn’t just include the activities public authorities have done or will do, but should report on the lived experience of rights and where there are gaps. It should take a holistic approach highlighting the impact of different policies and where a lack of progress in one area may result in further action required elsewhere […]”. (Shelter Scotland)

Guidance and support for those required to report

The third most frequently mentioned theme was the guidance and support that the Scottish Government should provide to the duty-bearers who would be required to report. A significant minority of respondents expressed the view that public bodies will be overburdened with a requirement to report and that the Scottish Government should be mindful of this when deciding on a reporting requirement. A significant minority of respondents also held the view that the reporting process needs to be proportionate. More information about this theme can be found in Chapter 9, ‘General themes of the consultation responses’.

Summary of other emerging themes

Another theme brought up by respondents was the disagreement with the proposed duty to report. The most common reason expressed for this disagreement was either concern that public bodies would be overburdened or that reporting requirements are covered by pre-existing legislation. Recommendations regarding the oversight and monitoring of the reporting duty were an emerging theme identified in the responses. The most popular suggestion made by respondents who raised this theme was that independent bodies should review and scrutinise the reports made by duty-bearers; a majority of respondents who made this recommendation held the view that the Scottish Human Rights Commission (SHRC) should be one of the bodies with this role. Suggestions about the framework for reporting were another emerging theme. Specifically, respondents held the view that the reporting requirement should align with other reporting duties, such as the PSED and the Fairer Scotland Duty. A few respondents expressed that rights-bearers and marginalised groups should be consulted during the development of the reporting framework itself. Respondents also mentioned that the Scottish Government should outline a timescale for the reporting duty; a small number of respondents recommended that the reporting be conducted every two years. The final emerging theme related to whom the reporting duty should apply. Some respondents expressed that they were confused about which public bodies would be required to report, whilst others recommended that the pre-existing frameworks be used to define who should bear the reporting duty.

Question 23: How could the proposed duty to report best align with existing reporting obligations on public authorities?

Open question

There were 179 responses to this question in the consultation.

The duty to report should align and complement or be combined with existing reporting obligations

The most commonly mentioned theme regarded the alignment or combination of the reporting duty with existing reporting obligations and frameworks. This theme was mentioned by a majority of civil society organisations and public sector organisations. The majority of respondents who mentioned this theme held the view that the duty to report should exist alongside other reporting obligations and complement them. As there may be considerable overlap, respondents felt that drafting the reporting duty in this Bill in a way that complements existing reporting duties will avoid duplication and provide the most straightforward reporting process for duty-bearers. In achieving this, respondents felt the reporting process would be as efficient, consistent, and thorough as possible. A significant minority of respondents provided specific frameworks with which they felt the new reporting duty should align. These included both Scottish and international frameworks such as the PSED, the Fairer Scotland Equality duty, the UNCRC and UN reporting requirements generally. This view was held exclusively by respondents representing organisations. A few respondents mentioned only the UNCRC as the framework they felt the reporting duty should align with. A few respondents felt that the Scottish Government should audit current reporting frameworks and duties to identify where overlap may exist.

A significant minority of respondents held the view that the reporting requirement should be combined with existing frameworks. Respondents who held this view argued that current reporting requirements could be amended to encompass any additional reporting requirements outlined by the Bill. They felt that rather than implementing a new reporting duty, the same can be achieved by adjusting the existing framework.

“[…] It is important that this information would complement equalities reporting (e.g. PSED and the Fairer Scotland duty), opting for as much alignment as possible while keeping the recognition that equality and human rights are separate but complementary. […] the goal of alignment in process and content in the reporting procedure, is to make for better analysis and better efficiency in the reporting process, and for the analysis to report on the realisation of rights as experienced across multiple characteristics […].” (Human Rights Budget Working Group)

“The proposed duty to report should be aligned with existing reporting obligations on public authorities to ensure consistency and efficiency. It is crucial that this reporting requirement complements and strengthens other public body reporting duties to avoid duplication, streamline the reporting process and strengthen accountability […].” (Human Rights Consortium Scotland)

“[…] Our view is that the Scottish Government could examine how the duty could be combined with existing reporting duties, such as those arising from the Scotland Specific Duties under the Public Sector Equality Duty and our environmental reporting duties.” (Organisation – Public)

General recommendations for implementing the reporting duty

The second most commonly mentioned theme was recommendations made by respondents on how the Scottish Government should implement the reporting duty, including specific components it should consider. This theme was most commonly mentioned by civil society organisations and public sector organisations. The most common recommendation made by respondents who mentioned this theme was that the Scottish Government should provide clear guidance on what to report and how duty-bearers should report it. Respondents held the view that this guidance should be developed after consulting groups and individuals at risk of human rights violations. Typically, respondents felt that the provision of clear guidelines would optimise the quality of the reports and, by consulting with marginalised groups, tokenistic references to their experiences in reporting would be avoided. The second most common recommendation related to this theme was that the reporting must be made accessible to rights-holders; that is, being both easy to understand and widely available to the public. Respondents held the view that this would ensure that rights-holders are able to hold duty-bearers accountable for what they report. Other recommendations made by respondents included that (i) rights-holders participate in the reporting process so that their experiences are conveyed, (ii) the Scottish Government provides support to duty-bearers to fulfil the duty to report, and (iii) the reporting duty should be proportional.

“[…] Clear guidance on what and how duty-bearers are required to report on compliance will be essential. Building public sector bodies’ understanding of the framework […] will support them in applying good judgement about what information will most meaningfully contribute to its aims. […]” (Audit Scotland, Accounts Commission and Auditor General for Scotland)

“People whose rights are at risk should shape what is reported on and the content of each report. Reports should be legible and comprehensible to laypeople and not only those with specialist or technical knowledge. This will ensure reporting can enable rights-holders to use this information to hold public bodies […] to account. ERCS also supports publishing reports in a range of different formats and mediums […] The Scottish Government should be required to consult with people whose rights are most at risk when developing guidance on reporting requirements”. (Environmental Rights Centre for Scotland)

Recommendations on the content of the reports

The third most frequently mentioned theme was the presentation of specific recommendations on what the reports should include. This theme was most commonly mentioned by civil society organisations. The recommendations referred to items that respondents felt should be included in the framework of the reporting duty. The most common of these recommendations was that qualitative data which reflects the experiences of rights-holders should be included. The second most common recommendation for the content of the reports is that they should analyse the outcomes of the experiences of rights-holders based on the actions that duty-bearers have taken. Respondents expressed that this would promote accountability and evaluation of duty-bearers’ actions. In line with the content of the reports, a small number of respondents expressed that access and quality of data are essential components for good reporting and something which the Scottish Government should consider. A small number of respondents held the view that a non-exhaustive list of topics included in the report should be provided by the Scottish Government prior to the implementation of this duty.

“Public body reporting should report on the activities they have done or will do and also include lived experience evaluation on progress made and any ongoing or emerging gaps. Lived experience, particularly including the most marginalised, should shape what is reported on, the content and format of each report.” (Women’s Support Project)

“Accountability and evaluation of the outcomes experienced by rights-holders as a result of the duty should be the priority of creating any reporting obligations.” (Organisation – Public)

Summary of other emerging themes

Disagreement with the proposed duty to report overall was another frequently mentioned theme among respondents. Among the reasons provided by respondents were that the proposed duty would be unnecessary and it might negatively impact bureaucratic processes. General support for the reporting duty was also mentioned by respondents although to a lesser degree than the theme for disagreement. The need to establish a timescale for the reporting duty was a frequently mentioned theme. Respondents who mentioned this theme typically held the view that the duty’s timescale should align with those of existing reporting duties. A small number of respondents expressed that the reporting duty should be monitored, especially through reviewing the reports provided. The final emerging theme was general support for human rights and the importance of holding perpetrators to account.

Question 24: What are your views on the need to demonstrate compliance with economic, social and cultural rights, as well as the right to a healthy environment, via minimum core obligations (MCOs) and progressive realisation?

Open question

There were 192 responses to this question in the consultation.

Support for suggested methods to demonstrate compliance

The most prevalent theme for this question was support for the suggested methods to demonstrate compliance with economic, social and cultural rights as well as the right to a healthy environment. This theme was most prevalent among civil society organisations and public sector bodies. The suggested methods would require duty-bearers to progressively realise these rights by fulfilling a set of MCOs and ensuring non-retrogression.^[21] The majority of respondents who agreed with the suggested methods expressed their agreement in general or by reiterating the components of the suggested method (i.e. MCOs, progressive realisation and non-retrogression). Respondents typically held the view that progressive realisation through MCOs would provide a strong minimum standard; this would establish a strong precedent for the protection of human rights and provide the grounds for the complete realisation of the rights outlined in the Bill. This view was held mostly by respondents representing organisations. A few respondents expressed their agreement solely for the establishment of MCOs to fulfil the rights outlined in the Bill.

“We support the need to demonstrate compliance with economic, social and cultural rights, as well as the right to a healthy environment through minimum core obligations (MCOs) and progressive realisation. MCOs and progressive realisation are particularly important with regards to rights under ISESCR, as they set the core minimum under which protections cannot fall and are useful in crisis situations, for example, where emergency action has previously resulted in erosion of some rights.” (Organisation – Other)

“We strongly support the need to show compliance with economic, social, and cultural rights, the right to a healthy environment, and as many rights within the special protection treaties as possible within devolved competence through the delivery of Minimum Core Obligations (MCOs) and the demonstration of progressive realisation. […] These obligations create an absolute baseline for providing essential subsistence rights, below which no individual should fall. Public bodies must be held accountable if they fail to deliver these MCOs for any individual or group through legal means if necessary. Furthermore, the principle of progressive realisation requires that public bodies not only meet the minimum requirements but also actively take targeted and concrete steps to continually enhance the realisation of people's rights. This includes using their maximum available resources to ensure that rights are progressively achieved and preventing any backward steps in rights implementation.” (Human Rights Consortium Scotland)

Further clarity and guidance needed for the suggested methods to demonstrate compliance

The second most frequently mentioned theme was the view that further clarifications and guidance for the suggested methods are needed. More information about this theme can be found in Chapter 9, ‘General themes of the consultation responses’.

Developing the framework for progressive realisation and MCOs

An equally mentioned theme involved the framework for progressive realisation and MCOs, and specifically, how it should be developed. The most popular view expressed by respondents under this theme was that MCOs, general targets and indicators to demonstrate compliance with economic, social, and cultural rights as well as the right to a healthy environment should be developed in participation with rights-holders and individuals at greatest risk of human rights violations. This view aligns with the approach suggested in the consultation; however, recommendations for how the methods to display compliance should be developed. A few respondents expressed that a timescale is provided for the development of MCOs as well as their implementation. A small number of respondents expressed that international frameworks should be used to inform the Scottish framework for progressive realisation and the establishment of MCOs.

“[…] There must be accessible and meaningful participation and engagement with duty bearers and rights holders, including those whose rights are most at risk, as well as expert practitioners in their respective socio-economic public policy fields of education, health, housing, social protection etc. […]” (Amnesty International UK)

“We agree with the principle of progressive realisation, but we feel that clearly defined timescales and deadlines for each phase need to be implemented.” (Age Scotland and Age Scotland About Dementia Programme)

Summary of other emerging themes

Specific recommendations for how the MCOs should be implemented were another emerging theme; among others, there were three equally popular recommendations. The first was that the consequences and remedies for failure to fulfil an MCO should be established. The second was that duty-bearers should provide the necessary resources to fulfil the MCOs, with a few respondents mentioning that human rights budgeting would be the best method to achieve this. The third was that the government should provide funding and support for duty-bearers. Disagreement with the proposal to demonstrate compliance with economic, social and cultural rights as well as the right to a healthy environment through MCOs and progressive realisation was also expressed by a significant minority of respondents. Another emerging theme involved recommendations on what should be included in the MCOs. Some of the topics respondents felt should be included were healthcare (e.g. palliative care, rehab care, mental health), education, volunteering, access to food, housing and gender equality. Agreement with a duty to comply and a procedural duty, as well as recommendations for how these should be structured, was another emerging theme. Another commonly mentioned theme identified among responses was the demonstration, tracking and monitoring of progress for the fulfilment of the rights outlined in the Bill. Respondents conveyed that it is essential for duty-bearers to demonstrate compliance, especially through reporting. Concerns for the effectiveness of MCOs in upholding human rights were also mentioned by respondents. Respondents conveyed that the instances where progress is limited to the MCOs must be avoided, with some arguing that MCOs must be ambitious from the outset. Another emerging theme included the review of MCOs; respondents who mentioned this theme held the view that MCOs should be reviewed so that standards can be set progressively higher.

Question 25: What are your views on the right to a healthy environment falling under the same duties as economic, social and cultural rights?

Open question

There were 159 responses to this question in the consultation.

Agreement with the proposed alignment of the right to a healthy environment with economic, social, and cultural rights

The most prevalent theme for this question was support for the proposal to align the right to a healthy environment with economic, social and cultural rights. This theme was mentioned by the majority of civil society organisations and public bodies who responded to this question. The most commonly held view was the agreement with applying the same duties on the right to a healthy environment as to economic, social and cultural rights (e.g. the duty to comply). Therefore, the same requirements will be applied to these rights. A few respondents expressed that in addition to these rights, the same duties should apply to all special protection treaties (i.e. ICESCR, CEDAW, ICERD, CRPD). A small number of respondents stated that their support was conditional. These conditions included that (i) the Scottish Government collaborates with the UK government to ensure that the rights are adequately upheld, (ii) the Scottish Government provides guidance and support on this matter and (iii) further clarifications on the content of the Bill are provided.

A small minority of respondents agreed with the alignment of the rights in general terms; these respondents did not express their support for aligning the duties across the rights, but they supported the recommendation outlined in the Bill aligning the right to a healthy environment with economic, social and cultural rights. The most popular argument for supporting the alignment of these rights (either general or specific to the duties) was that these rights are inherently interconnected. Respondents felt that the proposed approach reinforced the natural link between these rights and would, therefore, provide a coherent and cohesive view of all the rights. The second most common reasoning provided was that the link formed between the right to a healthy environment and economic, social and cultural rights would ensure that the right to a healthy environment is perceived as equally important; for this reason, it will increase the likelihood that it is upheld. These respondents based their view on the premise that economic, social, and cultural rights are typically held to a higher standard, and they expressed that including these rights together would make it easier to implement them.

“[…] Including the right to a healthy environment under the same duties as economic, social and cultural rights serves to enhance all four categories of rights and therefore the ARA supports this proposal. […] As society faces the consequences of past actions in climate change, embedding the right to a healthy environment should ensure that the impact of decisions on the environment is considered equally with the impact on economic, social and cultural life. […]” (Archives and Records Association (UK and Ireland))

“We agree with the proposal that the right to a healthy environment should fall under the same duties as economic, social, and cultural rights. This alignment ensures that the duty to comply, which includes delivering Minimum Core Obligations (MCOs) and progressively realising rights, applies consistently to all these rights […] Bringing together these rights under the same duties simplifies the implementation process, promotes comprehensive rights protection, and underscores the importance of safeguarding environmental rights alongside other fundamental human rights. It also simplifies the monitoring and enforcement mechanisms, facilitating a more effective and cohesive approach to upholding these critical rights.” (Human Rights Consortium Scotland)

Disagreement with the proposals made in the consultation or the Bill

The second most common theme identified was disagreement either with components of the proposals made in the consultation or with the Bill itself. Disapproval of including the right to a healthy environment under the same duties as economic, social and cultural rights was the most common form of disagreement expressed. This view was held mostly by individual respondents. The reasoning provided for this disapproval included the view that environmental rights should be addressed in a different manner and hence cannot be placed in the same category, that a different legislative approach should be applied to secure a healthy environment, and that including the right to a healthy environment will result in an overwhelming number of rights categories included in the Bill. Disapproval of the Bill overall was the second most common form of disagreement expressed by respondents.

“The right to a healthy environment should fall under different duties to the economic, social and cultural rights. […] Whether a right has been breached or secured very much depends on the experience of the person and whether they have been treated with dignity and respect. Whereas, the duties under the right to a healthy environment are such that whether a right has been breached or secured can be answered in a more objective way. […]” (Public Health Scotland)

“[…] The right to a healthy environment and economic, social and cultural rights] should be totally separate as legislation […] There is no sensible reason to overly complicate a single piece of legislation by integrating catch-all […] legislation that is impossible to adequately implement and enforce.” (Hamish Taylor)

Further information about general disagreement can be found in Chapter 9, ‘General themes of the consultation responses’.

General recommendations for implementing the human rights framework

The next most frequently mentioned theme included general recommendations for how the framework outlined in the Bill should be implemented. One of the views held by respondents under this theme was that effective reporting on human rights is essential, and respondents mentioned that reporting requirements in this Bill should align with existing reporting requirements. A small number of respondents recommended specific topics such as housing, poverty and access to food, which they felt should be further addressed by the Bill. Another view held by respondents who made general recommendations for implementing the human rights framework was that consideration should be given to the number of resources needed and from duty-bearers, specifically when implementing it.

“[…] the Authority agrees with the sentiment, however more detail is required on what this would mean in practice and in relation to resourcing to ensure that the right to a healthy environment would be upheld in a way that is meaningful and impactful.” (Scottish Police Authority)

“The inclusion of the right to a healthy environment under the same duties as economic, social and cultural rights make sense, although consideration should be given to aligning reporting in relation to existing duties […].” (West Dunbartonshire Health and Social Care Partnership)

Summary of other emerging themes

Another prevalent theme identified in the responses was support for the proposed duty to comply. Views on its implementation were another commonly mentioned theme. Under this theme, respondents most commonly expressed their support for the duty to comply to apply to the right to a healthy environment specifically, with a small number of respondents expressing their support for the duty in general. Another prevalent theme was the request for further clarifications on the consultation itself as well as the proposal to include the right to a healthy environment with economic, social and cultural rights. Some of the clarifications requested by respondents included: (i) who are the duty-bearers, (ii) how a healthy environment is defined and (iii) what the procedure will be to ensure a healthy environment. Another emerging theme included specific recommendations on how the framework should be applied specifically for the right to a healthy environment. These recommendations included (i) separate standards should be used for the right to a healthy environment and (ii) pre-existing standards should be used as a guide to inform the framework. Respondents also expressed concern for the wording used in the bill (i.e. MCOs, progressive realisation, adequate), arguing that they may not be the best to set ambitious targets, which may, in turn, impact the Bill’s success in upholding the rights. The final emerging theme involved support for the initial procedural duty as proposed by the Scottish Government with recommendations on how it should be implemented (i.e. timescale, due regard format being used).

Question 26: What is your view on the proposed duty to publish a Human Rights Scheme?

Open question

There were 196 responses to this question in the consultation.

Agreement with the proposed Human Rights Scheme or the Human Rights Bill overall

The most prevalent theme identified for this question was support for the proposed Bill and for specific proposals relating to the Human Rights Scheme or the Scheme overall. This theme was mentioned by the majority of civil society organisations and public sector organisations who answered this question. A large minority of individuals who answered this question also mentioned this theme. The most common view held by respondents who expressed agreement was support for applying a duty to publish a Human Rights Scheme on Scottish Ministers. As outlined in the consultation, the duty to publish would place a reporting duty on Scottish Ministers to document the measures taken in compliance with the Scheme's requirements. This duty seeks to establish accountability for actions directed towards advancing and realising human rights in Scotland and provides Scottish Ministers with the means to publish their ‘plans for implementation and report on progress’.^[22] Respondents typically held the view that the duty to report to the Scottish Parliament would foster transparency and ensure that Scottish Ministers are held accountable for their actions; both in upholding and promoting human rights. The reasoning provided in support of the duty included: (i) that the duty would help align reporting requirements across existing frameworks,(ii) it would provide further clarity to duty-bearers and rights-holders,(iii) it would facilitate information sharing, and (iv) it would provide a valuable avenue for public scrutiny. For a few respondents, this support was conditional to aligning the scheme to other implementation plans, implementing a Women’s Rights Scheme and providing clarity on specific provisions of the Scheme and the Bill overall.

A few respondents expressed general support for the Human Rights Scheme and with Scottish Ministers reporting on the Scheme; these individuals did not explicitly state that they agreed with the reporting requirement taking the form of a duty. A few respondents expressed their support for the Scheme’s alignment with the UNCRC Bill and specifically the proposed Children’s Rights Scheme. The positive impact of the prospective Children’s Rights Scheme was provided as a reason to support the alignment of the Schemes.

“[Organisation name] agrees with the proposed duty to publish a Human Rights Scheme to better ensure accountability and meaningful actions by Scottish Ministers to track and progress duties as they apply under this Bill.” (Organisation – Public)

“We agree that there should be a duty on Scottish Ministers to publish a Human Rights Scheme. This would help duty-bearers understand the national approach being taken by the Scottish Government and would assist with implementation at the local level, thus ensuring the enhancement of human rights for the people of Scotland.” (Dundee City Council)

“Together supports the proposed duty to publish a Human Rights Scheme. The Human Rights Scheme provisions should be modelled on those for the Children’s Rights Scheme. We are already seeing the positive impact of the prospective Children’s Rights Scheme – even before the UNCRC Bill has entered into force. […]” (Together (Scottish Alliance for Children's Rights))

Support for stakeholder engagement

The second most prevalent theme raised by respondents was support for stakeholder engagement in the development of the Scheme and for drafting the reports published through the Scheme. This theme was mentioned exclusively by respondents representing organisations. Respondents who expressed support for stakeholder engagement most commonly argued that Scottish Ministers should consult rights-holders, and especially those vulnerable to human rights violations, when reporting on the Scheme. A small number of respondents held the view that duty-bearers and relevant organisations (e.g. advice and advocacy organisations) should be consulted. Respondents typically argued that incorporating this communication within the reports would enhance their accuracy and uphold accountability more effectively. A few respondents held the view that rights-holders should be consulted when developing the Scheme. Respondents typically argued that this would enhance accountability and ensure that the Scheme addresses the most important areas for human rights. A small number of respondents expressed their support for stakeholder engagement more widely.

“[…] As per our previous comments in relation to monitoring and reporting, we would suggest that it should not be reporting on the activity itself. Instead, it should be reporting on activity or decisions that have led to the realisation of rights, as determined, and evidenced through the participation of people whose rights are most at risk.” (Criminal Justice Voluntary Sector Forum (CJVSF), hosted by CCPS)

“[…] The Human Rights Scheme should include a requirement to meaningfully consult with the information, advice and advocacy sector as well as rights holders, especially those whose rights are at risk, both when developing the Scheme and when reporting against it every year.” (Citizens Advice Scotland)

Recommendations on the components and content to be published

The third most common theme mentioned by respondents involved recommendations as well as views on the content of the reports published under this duty. This theme was mentioned by a small minority of respondents representing civil society organisations and public sector organisations. The most prevalent recommendations made by respondents were that specific actions and progress made by Scottish Ministers to implement the rights are reported on and that the content published under this Scheme is accessible to all rights-holders. Respondents held the view that the reports should be based on experiences and outcomes to ensure an accurate reflection of human rights in the country, and emphasised that the experiences of vulnerable groups and individuals should be included when publishing on the Human Rights Scheme. Other recommendations made by respondents on the content of the reports included (i) a summary of the Scottish Minister’s engagement with UK Ministers on human rights issues, (ii) a timescale of MCOs and when they will be reviewed, and (iii) that human rights budgeting is implemented and reviewed through this Scheme. A small number of respondents agreed with the elements of the Scheme recommended by the consultation.^[23] A small number of respondents argued that the Scheme should include the provisions that have been made through existing legislation on rights-holders’ access to justice; including advice, interpretation of rights, how accessible access to justice is, and rehabilitation services.

“Reports should not only be on activities undertaken and policy, but on people’s experiences of rights being realised, or where progress is still required. […] Qualitative and quantitative data will be crucial here to understand the experience of particular groups most at risk of having their rights not realised, including women, some minoritised ethnic groups and disabled people. Where there are gaps, specific actions should be identified to target these, including any required resources to be made available to enable duty bearers to deliver on their duties and therefore for rights holders rights to be realised.” (Shelter Scotland)

"[…] It is important that reporting is transparent and focuses on outcomes to assess whether the Bill is delivering the intended benefits and making a difference for people in equality of access and realising their rights. Reporting also needs to be accessible to all rights holders, and steps should be taken to ensure this. […]” (Audit Scotland, Accounts Commission and Auditor General for Scotland)

Summary of other emerging themes

Disagreement with the duty to publish a Human Rights Scheme was another emerging theme identified. This view was held by a significant minority of respondents who answered this question. Respondents characterised this duty as redundant or a bureaucratic procedure with minimal capacity to promote human rights. Another theme mentioned by respondents was recommendations for legislation specific to women’s rights. Respondents who mentioned this theme argued that a Women’s Rights Scheme should be implemented alongside the Human Rights Scheme. Respondents typically argued that this would complement the proposed Children’s Rights Scheme, a component of the UNCRC Bill, and ensure women’s rights are held to an equal standard. Another emerging theme identified was the view that the Human Rights Scheme should align with other frameworks, including the PSED, Fairer Scotland Duty and Scotland’s second National Human Rights Action Plan (SNAP2). The resource implications of the Scheme and Bill overall were also frequently mentioned among respondents. Respondents who raised this theme typically expressed their concern for the implications on capacity and financial resources that duty-bearers will face in order to fulfil their responsibilities.