A Human Rights Bill for Scotland: consultation

Part 9: Implementing The New Scottish Human Rights Act

This part of the consultation covers our developing thinking for how we implement the Bill once it becomes law. This is vital in order to make rights 'real' for people. Thinking on implementation is at an early stage and will be developed further through the establishment of an Implementation Working Group over the summer.

"When you are in need of help, you are in crisis and you are struggling… it's the lack of joined up thinking between the services that you're seeking help from and I think that's a huge barrier… my experiences [on the] medical side, and doctor saying, well, it's not my problem if you have housing issues, or if there's issues within the home, and it shouldn't be like that, it should be you have a problem and I am hearing your problem. Whether I can help you or not, it's about referring you to the right support, so that the whole family is supported. And I think that's a real barrier is that when you meet services that are absolutely closed off, saying well, that's not my problem. Move on, please… at the moment, all of the onus is on ordinary people to fight for their rights. And the way this bill should be implemented, it should be implemented in a way that people don't need to fight anymore."  - Member of Lived Experience Board

Bringing the Act into Force

Human Rights Taskforce Recommendation 12

Provide for a sunrise clause approach leading to a duty to comply which secures protection for rights-holders whilst also allowing duty-bearers time to prepare for full commencement of the legislative framework.

We will need to bring the Bill into force in order for the duties outlined earlier to become legally binding upon those delivering devolved public functions. We intend to commence these duties in a sequenced fashion (one after the other, with periods of time in between), in order to allow public bodies time to prepare for the Bill (once an Act) coming fully into force. The Lived Experience Board stressed the importance of moving forward with implementation quickly, given the increasingly challenging environment around the cost of living and inequality, and we will have this at the forefront of our minds as we move forward. Public bodies have indicated that they will need to time to become familiar with the new standards and ensure they have the right infrastructure in place to support implementation and compliance. We would expect that civil court rules will be required to help implement the legislation. In line with usual practice, the Scottish Government would prepare a policy paper to go to the Scottish Civil Justice Council putting forward proposals for court rules.

For the proposed initial procedural duty, which we expect would be the first substantive duty to come into force, we believe that guidance would need to be prepared to assist public authorities in discharging it. We would work closely with stakeholders on the content of that guidance. This means that an appropriate period of time will be needed after Royal Assent, to allow us to develop and consult on guidance.

Question

38. What are your views on our proposals for bringing the legislation into force?

Minimum Core Obligations

Human Rights Taskforce Recommendation 13

That there be a participatory process to define the core minimum obligations of incorporated economic, social and cultural rights, and an explicit duty of progressive realisation to support the effective implementation of the framework, which takes into account the content of each right.

Part 7 of this consultation covers duties and sets out our proposals for a duty to comply, including a requirement to deliver a minimum core of economic, social and cultural rights and the right to a healthy environment. We will create provision for this participatory process to take place for the development of the MCOs for Scotland which would form an important aspect of implementation following the commencement of the future Act. This participatory process would therefore need to take place in advance of the compliance duty coming into force.

Question

39. What are your views on our proposals to establish Minimum Core Obligations through a participatory process?

Human Rights Scheme

Human Rights Taskforce Recommendation 15

Provide a duty on Scottish Ministers to publish a human rights scheme for the giving of further effect to the rights contained within this framework, to be held accountable for its implementation, to report specifically on how a duty to take the statutory human rights framework into account during the budgetary process was met, progress made on Scotland's National Action Plan for Human Rights, and to provide for periodic reporting duties on implementation plans for the Scottish Government and public authorities.

As set out earlier, we want to include a duty on the face of the Bill for Scottish Ministers to publish a Human Rights Scheme. The purpose of this would be to ensure the development, publishing and reporting of progress – providing an overarching plan for implementation for Scottish Government. The Scheme would provide an opportunity for scrutiny of the Scottish Government's past and upcoming activities to give effect to the rights and duties in the framework. This could broadly follow the approach in the UNCRC Bill in relation to the Children's Rights Scheme, which we are keen to align with, where appropriate, to ensure consistency.

Our proposed Scheme will help to ensure that there is Ministerial accountability for implementation and commencement of the future Act through a duty to report to Parliament, and that there is a formal process in place for Parliament and others to scrutinise progress. We propose that the Scheme would initially require to be laid before Parliament in order to establish its scope. Thereafter, there would be a reporting cycle in which Scottish Ministers would be under a duty to carry out the necessary evidence gathering and consultation work to periodically publish a detailed report on the matters covered by the Scheme. We want to set out a Parliamentary procedure for Ministers to amend the Scheme's contents, include requirements in relation to the types of evidence and information (such as UN treaty committee recommendations) that must inform the development of the Scheme and include named groups who should be consulted as part of this process, as well as the ability to consult other persons or groups considered appropriate. The Bill could set out some specific groups whom Scottish Ministers must consult in preparing the Scheme proposal, and also as part of meeting their reporting duty. This could include rights-holders, given the Lived Experience Board emphasised the importance of monitoring and accountability in driving greater respect for human rights, as well as ensuring resources were prioritised to tackle human rights issues.

We think that the Scheme could potentially cover the following aspects:

• Plans for implementation. We are considering ways in which the Scheme could function so as to allow for scrutiny of the Scottish Government's actions with regard to future implementation of the Bill and past performance.
• Scotland's Second National Action Plan for Human Rights (SNAP2). The Scheme could include an update on the progress of actions within SNAP2.
• Any plans to introduce further legislation to give effect to the human rights framework set out in the Act.
• Plans or proposals for improvements to access to justice in relation to the rights in the Bill through complaints mechanisms, access to information, advocacy and representation.
• Reporting on Scottish Government activities to further embed human rights in budget processes.
• The extent to which public participation continues to inform the implementation of the Bill.
• Information and awareness raising work undertaken and planned in relation to the Bill.
• Guidance published and planned to support implementation of the Bill
• Domestic and international accountability, including reporting to the Scottish Parliament and to the UN, Council of Europe and other international bodies on compliance with treaty obligations, responses to recommendations from international institutions and implementation of judgments of the European Court of Human Rights in areas of devolved competence; and
• Human rights monitoring and evaluation and impact assessments.

Question

40. What are your views on our proposals for a Human Rights Scheme?

Parliamentary scrutiny

Human Rights Taskforce Recommendation 14

Pre-legislative assessment to be included in the framework – which could include a requirement to certify that any proposed Bill complies with the rights contained within the framework and demonstrate where the proposed Bill contributes to the advancement of such rights.

We want to ensure that legislation introduced to the Scottish Parliament is assessed against its compliance with the rights contained in the Human Rights Bill. This is to make sure that, when scrutinising and voting on future legislation, the Scottish Parliament is satisfied that this legislation is rights-compliant and rights-fulfilling and can contribute to the advancement of the rights contained in the new Human Rights Bill.

Under the Scotland Act 1998, it is already the case that a Member (including the relevant Scottish Minister) must make a statement on or before introducing a Bill confirming that, in their view, that it is within the legislative competence of the Scottish Parliament. This includes consideration of whether the Bill is compatible with the rights secured by the Human Rights Act 1998. Similarly, the Presiding Officer of the Scottish Parliament must make a statement of compatibility in relation to each Bill being considered. These statements are the product of detailed assessments, seeking to ensure that Bills being introduced to the Scottish Parliament meet legislative competence requirements, including requirements to act compatibly with the ECHR.

To enhance human-rights related assessment and scrutiny of new legislation, we wish to explore requiring Public Bills (Government Bills, Members' Bills and Committee Bills) to be accompanied by a statement of compatibility about the extent to which the proposed Bill complies with the specific requirements provided for in the Human Rights Bill. This statement could be published alongside the statement of legislative competence discussed above as well as the similar statement that will be required under the UNCRC Bill. These statements would ensure that all future proposed Public Bills lodged in the Scottish Parliament are assessed against a much fuller spectrum of civil, political, economic, social, cultural, environmental, and children's rights.

Parliamentary scrutiny of draft Bills and consultations on Bill proposals is ultimately a matter for the Scottish Parliament, as is scrutiny of Bills once they have been formally introduced. The Scottish Government will therefore engage with the Scottish Parliament and invite it to consider whether there are any enhancements it may wish to consider making to its approach to legislative scrutiny to complement the enhancements to pre-legislative assessment which the Scottish Government is proposing.

Question

41. What are your views on enhancing the assessment and scrutiny of legislation introduced to the Scottish Parliament in relation to the rights in the Human Rights Bill?

Guidance and capacity building for public bodies

Human Rights Taskforce Recommendation 17

Ensure the Framework allows for making statutory and non-statutory guidance, which should be developed through consultation with key stakeholders, including rights-holders.

Human Rights Taskforce Recommendation 18

The Scottish Government takes steps to ensure that public authorities are supported to effectively implement the framework through provision of adequate resources and clear guidance on their duties.

Guidance is crucial to supporting effective implementation. We therefore want to bring forward guidance for public authorities and those subject to the duties in the Bill to aid effective implementation. We will consider closely the form, content and scope of this guidance, working closely with a broad range of stakeholders to determine this.

Capacity building across government and public authorities will be essential to ensure effective implementation. We will develop a plan, working closely with our recently established Implementation Working Group, which is aligned with our work to build capacity in relation to UNCRC Bill implementation, reform the operation of the Public Sector Equality Duty in Scotland, and further embed equality and human rights across government and public services.

Information and awareness raising for rights-holders

Human Rights Taskforce Recommendation 20

The Scottish Government, working with civil society, community-based stakeholders and public authorities, should develop effective ways to make sure that people have the information that they need about their rights and easy access to advice on rights.

Human Rights Taskforce Recommendation 28

The Scottish Government should develop a large-scale public awareness campaign about the new framework.

Having available, accessible information on the rights in the Bill, and human rights more generally, is absolutely vital in order to allow rights-holders to claim them. Working with stakeholders, we will develop plans for information and awareness raising, including a campaign that is aligned with future timescales for implementation.

Monitoring and Reporting

Human Rights Taskforce Recommendation 30

Further consideration should be given to the development and strengthening of effective monitoring and reporting mechanisms at all levels and duties at both national and public authority levels, recognising that this will be important to secure better compliance with the framework. It should include consideration of a National Mechanism for Monitoring, Reporting and Implementation, as recommended by the First Minister's Advisory Group on Human Rights Leadership.

Monitoring and reporting are key to realising the rights in the Bill and we view this as a need to assess both previous action and future plans. Our developing approach to monitoring and reporting is reflected elsewhere in this consultation, particularly in relation to the proposed reporting duty for certain public authorities and the Human Rights Scheme. We have considered whether or not to establish a National Mechanism^[37] and are of the view that the Scottish Government already carries out the core functions identified in UN guidance, which notes that a "Ministerial model" is one example of good practice. We want to strengthen our approach in this area and will take forward work to consider how best to do so.

Questions

42. How can the Scottish Government and partners effectively build capacity across the public sector to ensure the rights in the Bill are delivered?

43. How can the Scottish Government and partners provide effective information and raise awareness of the rights for rights-holders?

44. What are your views on monitoring and reporting?