A Human Rights Bill for Scotland: consultation

Part 4: Incorporating the Treaty Rights

This part of the consultation sets out our proposed approach and developing thinking on incorporating the treaties – that is:

• the International Covenant on Economic, Social and Cultural Rights (ICESCR);
• the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD);
• the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW); and
• the Convention on the Rights of Persons with Disabilities (CRPD).

Incorporating these four treaties together, while also addressing the wider Taskforce recommendations, including recognising and including the right to a healthy environment, is a complex task. The treaties were drafted at different points in time and contain different levels of specificity. A large number of the rights in them interact with the equal opportunities reservation in the Scotland Act 1998, as well as other reserved areas. We need to ensure that the Bill operates clearly within devolved competence whilst still meeting our overall objectives.

Putting human dignity at the heart of the Bill

"When you mention human rights, it's like, why has she mentioned that? What's that got to do with this? And I'm like, because you're not displaying any dignity, any respect for this person." - Member of Lived Experience Board

Human Rights Taskforce Recommendation 9

The framework states the intent of the legislation is to give maximum possible effect to human rights and recognise that human dignity is the value which underpins all human rights. It is suggested this could be done via a purpose clause.

The principle of human dignity (as in the inherent worth of the human person) is a key feature of human rights treaties both internationally and regionally. Our engagement during the development of the Bill has also shown human dignity to be a helpful tool in understanding and interpreting key human and comparative constitutional rights. Our intention is therefore for human dignity to be integrated into the framework as a fundamental value which can be used in reading and interpreting the framework as a whole. This closely reflects the formulation of international human rights treaties, and is intended to ensure we all have the opportunity to live a life with dignity.

Our proposal is to achieve this by ensuring the interpretative clause of the Bill allows courts to consider dignity when adjudicating on the rights in the Bill, with reference to the text of international treaties and materials. This would allow courts to consider the treaties, including their preambles, as well as accompanying guidance, concluding observations, and international jurisprudence which would include references to dignity within these sources. This will allow the principle of human dignity, as understood in international law, to be read across all of the rights within the Bill.

We also want to ensure that the process for defining minimum core obligations (MCOs)^[14] as part of the framework recognises human dignity as a key threshold for defining this content and delivering them in practice. We believe that this will ensure that the MCOs protected by the Bill capture the value of dignity, that doing so will help duty-bearers and rights-holders to have a clear understanding of the purpose of MCOs within the framework, and will help to ensure that no one in Scotland falls below such a level that their inherent dignity is violated. It will also enable those adjudicating on the rights to consider human dignity when assessing whether MCOs have been met.

Interpretative provision – maintaining a strong link to the international human rights system

Human Rights Taskforce Recommendation 10

Provide that courts and tribunals are clear on the intent of the legislation including the underpinning value of human dignity, in relation to international law and to comparative law. It is suggested this could be done through an interpretative clause.

We want to include provision in the Bill that allows for duty-bearers, courts and tribunals to be able to read, apply and interpret the rights in line with international human rights law, materials and mechanisms. This includes the General Comments^[15] and recommendations of UN Committees, concluding observations of UN treaty monitoring bodies^[16] and other mechanisms at the international or regional level.

UN General Comments are published by treaty bodies, setting out their interpretation of the provisions in their respective human rights treaties. These comments are not legally binding but could be considered to carry weight and can serve as a useful tool to inform interpretation of rights domestically. However, it is also important to note that different treaty bodies can interpret issues engaging the same rights in different ways. This means that any provision in the Bill needs to allow for flexibility of interpretation depending on the rights being interpreted. We are open to views on the most appropriate ways to ensure they, and other materials, are considered under the Bill.

As explained above, we also want to ensure that human dignity can be taken into account in the interpretation of the rights in the Bill. International treaties, guidance and jurisprudence all include references to dignity within them and our intention is that courts can consider these in interpreting and applying the rights in the Bill.

We are also considering the most appropriate mechanism by which to recognise other key international human rights principles – such as the universality, indivisibility, interdependence and interrelatedness of all rights – within the framework. We need to consider carefully how we do this whilst meeting our objective of providing a clear and accessible framework.

Questions

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

2. What are your views on our proposal to allow for dignity to be a key threshold for defining the content of MCOs?

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

Model of Incorporation

Human Rights Taskforce Recommendation 1(b): Incorporation of the International Covenant on Economic, Social and Cultural Rights (ICESCR)^[17]

For information purposes, this Covenant includes for everyone economic, social and cultural rights, including the following:

• right to an adequate standard of living, including the rights to adequate food, clothing and housing and the continuous improvement of living conditions
• right to the enjoyment of the highest attainable standard of physical and mental health
• right to education
• right to social security
• right to take part in cultural life and enjoy the benefits of scientific progress.

Human Rights Taskforce Recommendation 2: Include the right to a healthy environment with substantive and procedural elements in the statutory framework.

Human Rights Taskforce Recommendation 3: Incorporation of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).

Human Rights Taskforce Recommendation 4: Incorporation of the Convention on the Elimination of All Forms of Racial Discrimination (CERD).

Human Rights Taskforce Recommendation 5: Incorporation of the Convention on the Rights of Persons with Disabilities (CRPD).

We are seeking to incorporate the four international treaties into Scots law, and recognise and include the right to a healthy environment, within the limits of devolved competence, making them binding and justiciable to the extent we are able. Our overarching aim in considering how we structure the Bill and the way we give effect to the rights in the treaties – the model of incorporation – is that we provide a clear and accessible human rights framework which makes a real difference to the people of Scotland.

Using the Treaty text

The UNCRC Bill took the approach of directly incorporating text from the United Nations Convention on the Rights of the Child into Scots law. For the Human Rights Bill, we would propose taking a broadly similar approach – putting the rights from the four treaties into the Bill using the same wording as in the treaties themselves, removing anything that is reserved to the UK Parliament. An alternative approach could be to "transpose" the rights – by drawing together text from across the four treaties relevant to particular rights and amalgamating it into one expression of the right. Again, we would remove text which related to reserved matters, resulting in a single set of rights within devolved competence.

On balance, we consider the direct treaty text approach is preferable. Transposing the rights in an amalgamated way creates significant risk that we could lose the meaning behind the treaties and that the Bill could move away from the standards, principles and practices of international law. This would create challenges for the future interpretation of the rights as they could lose their context as rights taken directly from international standards.

A direct treaty text approach to incorporation also allows us to more easily navigate the limits of devolved competence than if we transposed the treaties. There is a need to ensure rights relating to discrimination and equal opportunities work effectively within devolved competence, which is easier to achieve using the direct treaty text approach. The majority of these rights are found in the equality treaties.

A fundamental consideration for the Bill is how the protections across all the treaties – which are often overlapping in nature – should be read, interpreted and applied consistently and coherently with one another. The model we propose here is designed to help with this. We recognise that the direct text of the treaties involves detailed language which might make it difficult for duty-bearers and rights-holders to understand what the rights mean in practice. We are committed to providing a clear explanation of what the rights are and what they mean. We are open to views on the best mechanisms to achieve this.

Navigating the equal opportunities reservation

A significant number of the rights, mainly within the equality treaties, interact directly with the "equal opportunities" reservation contained within the Scotland Act 1998. How we navigate this reservation is critical to how we effectively deliver the aims of the Bill within devolved competence.

The "equal opportunities" reservation means the Scottish Parliament cannot generally make law which is aimed at preventing, eliminating or regulating discrimination between persons on the grounds of certain protected characteristics (including sex, race and disability), unless an exception applies. One of those exceptions allows the Scottish Parliament to legislate to prevent, eliminate or regulate discrimination by certain public authorities in Scotland when exercising their Scottish functions (within certain parameters). Another exception allows the Scottish Parliament to legislate to encourage equal opportunities as long as it is not prohibiting or regulating discrimination. This means we are limited in what we can do in relation to rights in the treaties relating to equal opportunities.

Our proposed model

Our aim is to deliver clear and accessible law that maintains that strong link to the international human rights system and works within the limits of devolution. To do this, as already stated we are proposing to adopt a direct treaty text approach, which takes a tailored approach in relation to the equality treaties. This approach seeks to ensure the rights across the treaties can be read and applied consistently and coherently with one another, whilst effectively navigating the equal opportunities reservation. This has been initially explored with stakeholders and rights-holders.

We are considering:

• reproducing all four treaties in the Bill, removing any text that relates to areas reserved to the UK Parliament;
• recognising and including the right to a healthy environment in the Bill;
• for core ICESCR rights and the right to a healthy environment:
  • putting an initial procedural duty on public bodies (and, so far as possible, private
  • actors) delivering devolved public functions to build the rights into the fabric of their decision-making. This would apply for a period of time following the Bill passing to give duty-bearers time to prepare for a subsequent compliance duty (see below);
  • moving to a duty to comply with the rights, for public bodies (and, so far as possible, private actors) delivering devolved public functions. The duty to comply will be demonstrated by progressively realising the rights and ensuring the delivery of minimum core obligations – for more detail on duties see Part 7;
  • including an equality provision (within the limits of the equal opportunities reservation) to ensure:
    • equal access for everyone to the rights; and
    • that the provisions of the equality treaties inform the interpretation of the core ICESCR rights and the right to a healthy environment for those protected groups. For more detail on the equality provision see Part 6.
• putting a procedural duty on duty-bearers, in relation to the equality treaties (within the limits of the equal opportunities reservation). This is intended to ensure duty-bearers are considering all rights in the equality treaties in a holistic way both when delivering ICESCR rights and in their overall decision-making.
• including an interpretative provision in the Bill that ensures all the rights can be interpreted in light of international human rights standards and the concept of human dignity.

Our rationale for this approach is that we want to give the strongest possible protections whilst producing clear, accessible and workable law which functions effectively within devolved competence. Our proposed model attempts to strike a balance between the level of protection we provide and the coherence and workability of the law.

A critical point in the development of this model has been consideration of how the rights within the equality treaties intersect with the equal opportunities reservation and how best to give those rights legal effect in a coherent framework. The model seeks to address this by taking a different approach to protection for rights in the equality treaties compared with the core ICESCR rights and the right to a healthy environment.

In taking this approach, we are mindful of the need to ensure the integrity and coherency of the Bill as a whole and to provide clarity for rights-holders and duty-bearers. We are confident that our currently proposed approach delivers a significant step-change in ensuring that the rights of women, disabled people and people discriminated against on the basis of race, colour, descent, or national or ethnic origin, are given the targeted protection required by duty-bearers. For the first time in our domestic legal framework, duty-bearers will have to actively consider the rights in the ICERD, CEDAW and CRPD when delivering services – such as housing, social care or social security – and can be held accountable if they do not. When applied in practice this will be a significant and ground-breaking step on our human rights journey.

However, we fully recognise that there are some specific rights in the equality treaties which may be considered to be of standalone significance and where some stakeholders will understandably want to see us go further if possible. For example, we have heard from disabled people's organisations about the importance of the right to independent living. We are carefully considering further if there are some rights in the equality treaties which we could treat differently, whilst still delivering a coherent and workable overall framework of human rights protection. We will particularly consider this where specific rights may have standalone significance and where there may be benefits to stronger protections under the framework. During the consultation period, we will take forward targeted engagement with relevant stakeholders on this, alongside continued analysis of the carefully balanced competence and coherency considerations in relation to the treatment of these rights.

Questions

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

5. Are there any rights in the equality treaties which you think should be treated differently? If so, please identify these, explain why and how this could be achieved.