A Human Rights Bill for Scotland: consultation

Part 7: The Duties

This part of the consultation sets out our approach to designing the duties on those delivering devolved public functions, in relation to the rights in the Bill.

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.

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.

Human Rights Taskforce Recommendation 16

Further consider the best approach to ensure there is clarity and certainty that relevant private actors carrying out public functions, and functions connected to the delivery of rights within the framework, are within the scope of the obligations in the framework.

Fundamentally, our aim is to deliver a framework under which duty-bearers are better prepared and able to respect, protect and fulfil the rights of the people of Scotland. The duties will be critical to realising our ambitions for the Bill, as they will determine the actions required by duty-bearers across Scotland. We want the Bill to provide a set of duties that reflects the breadth of international human rights obligations. This requires providing duties that lead to improvements to people's outcome in practice (substantive) as well as duties that set out a course of action (procedural). As far as possible, we want to ensure the duties in the Bill strike the right balance between providing protection for rights-holders whilst also delivering a Bill that provides clarity for duty-bearers and allows adequate time for implementation and meaningful change in practice.

Who the duties will apply to

Our view is that the duties should apply, so far as possible, to bodies carrying out devolved public functions. We will carefully consider the outcome of the UNCRC Bill reconsideration in developing our thinking in this area and will carry out further engagement. In relation to private actors, as a starting point we would wish to mirror the UNCRC Bill's proposed approach. This applies the duties of the Bill to bodies carrying out functions of a public nature, including private bodies acting under a contract or other arrangements with a public body.

Question

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

Initial Procedural Duty

We want to place an initial procedural duty on duty-bearers as soon as practicable after the Bill becomes an Act. This duty would focus on ensuring 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. This could apply to policy or programme development, new legislation, as well as budgetary processes and decision-making. This approach aims to strike a balance between delivering increased protection to rights-holders and giving duty-bearers the necessary time to prepare for the stronger duties outlined below.

Question

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

Duty to Comply

While the initial procedural duty will help to integrate the rights into decision-making processes, for the Bill to help achieve a transformative impact, it will ultimately require a stronger duty of compliance. This duty would aim to ensure the need for specific rights-respecting outcomes to be fulfilled by duty-bearers, going beyond a duty focused on the process of decision-making to a duty focused on compliance with the right. We therefore want to place a duty to comply on duty-bearers in respect of the core ICESCR rights and the right to a healthy environment, as described above (see section on the Model of Incorporation in Part 4). Having this duty in the Bill 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.

There are different component parts to demonstrating compliance, drawn from international law, which are further explained below.

Question

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

Reporting

The above duties would require a reporting duty for duty-bearers to be able to demonstrate the actions they are taking and intend to take to ensure the rights in the Bill are being advanced and built into decision-making. We are considering, in relation to that duty, whether to follow the approach taken in section 15 of the UNCRC Bill. Other reporting models exist in other public sector duties, for example the Scottish Specific Duties that underpin the PSED and requirements under the Fairer Scotland Duty. Crucially, we are aiming to achieve a framework under which public authorities report both on previous actions but also future plans for implementing the rights and duties in the Bill. We are continuing to explore how this would interact with overall implementation of the Bill for public authorities in Scotland (as is further discussed in Part 9 of this consultation). We also recognise the need to align with existing reporting duties to enable public bodies to take a proportionate and meaningful approach to reporting, and we would aim to ensure any duties proposed in the Bill regarding reporting complement, and do not duplicate, existing duties. We welcome views on how best this might operate in practice.

Questions

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?

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

Progressive Realisation of Economic, Social, and Cultural Rights and the Right to a Healthy Environment

In international law, economic, social, and cultural rights are broadly understood as requiring both that a basic minimum threshold is met (see the section on minimum core obligations below), and that the rights are to be progressively realised over time using maximum available resources. This is based on the understanding that rights such as the right to health and the right to an adequate standard of living can be continuously improved over time and in line with a country's resources. This does not mean progressive realisation allows states to avoid their duties – rather, it is an expectation upon states to move as quickly and effectively as possible to ensure the full realisation of these rights. The concept of progressive realisation is drawn from Article 2(1) of the ICESCR, which states:

"Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures."

State action is understood as including requirements to take targeted, concrete and deliberate steps; gather and deploy maximum available resources; and ensure non-retrogression of the rights.

Our intention is that the duty to comply with the economic, social, and cultural rights and the right to a healthy environment set out in the Bill should require duty-bearers to progressively realise those rights, in line with the understanding of progressive realisation and State action in international law.

Minimum Core Obligations for Economic, Social, and Cultural Rights and the Right to a Healthy Environment (MCOs)

As referenced above, in international law, economic, social, and cultural rights are broadly understood as requiring MCOs to be met. These are understood to be the basic minimum standard of delivering economic, social and cultural rights, and they set a minimum threshold which must be always upheld by a country irrespective of resources. In international law, the minimum core of a right must be complied with immediately unless it is demonstrably impossible for the state to do so. It is therefore a minimum floor from which the progressive realisation of the right builds on.

Our intention is that the duty to comply with the economic, social, and cultural rights and the right to a healthy environment set out in the Bill should require duty-bearers in Scotland to deliver a minimum core of the right. This requirement would operate in tandem with the requirement for duty-bearers to progressively realise the right, beyond the minimum core. This, we hope, will ensure MCOs remain a minimum 'floor' of realisation and do not become a 'ceiling'.

In international law, MCOs have been developed through guidance materials written by the UN Committee on Economic, Social and Cultural Rights. The example below demonstrates the approach of the Committee to defining the core content of the ICESCR right to health.

Minimum Core Obligations – Case Study: The Right to the Highest Attainable Standard of Physical and Mental Health

General Comment 14^[26] of the Committee sets out guidance as to what should be considered within the MCOs of this right. Broadly speaking this includes at the very least:

• access to and equitable distribution of health facilities, goods and services without discrimination, especially for those vulnerable and marginalised
• minimum essential and nutritionally adequate food to ensure freedom from hunger for all
• basic shelter, housing and sanitation, and adequate water
• essential drugs
• a national public health strategy and action plan, based on evidence.
• In addition, the guidance says States should also prioritise:
• providing reproductive, maternal (prenatal as well as post-natal) and child health care
• immunisation against major infectious diseases
• prevention and control of epidemic and endemic diseases
• education and access to information on health issues, including on prevention and control
• training for health personnel, including education on health and human rights.

It is important to note that the example above represents the Committee's interpretation and can be used as a foundation from which to build, via a participatory process, a clearer understanding of the core content of rights for Scotland's particular context. Guidance can also be taken from the practice of other countries and their approaches to protecting MCOs or minimum standards set out by their constitutional frameworks. Examples we have focused on include the approach taken in Germany to 'existenzminimum', the 'minimum vital' entitlement in Colombia, and the 'reasonableness standard' adopted by the South African Constitutional Court. While General Comments and examples of practice in other countries can provide useful guidance in relation to MCOs for the Bill, they do not provide the full picture and should be viewed as foundations from which to build a minimum core that best reflects the evolving basic needs, diversity, culture, and overall resource capacity of Scotland. It is up to the country or jurisdiction to determine what the full content of its MCOs should be.

In order to deliver a minimum core for the people of Scotland, which is in line with best practice, built on strong foundations and has democratic legitimacy, we propose a participatory approach for defining what falls within the minimum core of each right. We are developing our thinking on what this process looks like, based on international guidance and good practice and with the fundamental value of human dignity acting as a guide to what MCOs should look like. This will help us deliver upon the intention for the Bill to protect those who need it most in society. We are considering how the outcome of this participatory process could be embedded into the framework and how MCOs could underpin the compliance duty in the Bill. To ensure MCOs remain relevant and continue to provide protection for those whose rights are least likely to be met, we are considering how to best provide for a process which can be repeated at appropriate intervals to ensure necessary changes can be made to the initial content of MCOs. We will engage further as our thinking develops in relation to the participatory process and how it can be effectively run.

Setting a minimum core for Scotland has the potential to be significantly impactful in determining the most basic needs of people in Scotland that must be prioritised and realised immediately. Our approach matches the ambition of the Bill and of the people of Scotland. However, it is important to recognise and emphasise the nature of MCOs as being a very basic floor of rights protection that can be met immediately and all times by duty-bearers. With this in mind, our approach will aim to ensure that the process for defining the MCOs for Scotland strikes the right balance between delivering rights protection for those most marginalised and disadvantaged in society and setting a deliverable standard for duty-bearers in Scotland.

Questions

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 MCOs and progressive realisation?

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

Duty to Publish a Human Rights Scheme

We want to place a duty on Scottish Ministers to publish a Human Rights Scheme (see Part 9 for further details). This would allow for general measures of implementation to be captured clearly within the Bill's overall framework. The duty to publish a Human Rights Scheme will include a reporting duty on Scottish Ministers to report on actions taken in relation to the Scheme's requirements. This aims to ensure accountability for consistent action to be taken to further implement and realise human rights for the people of Scotland. The Human Rights Scheme could serve as a way for Scottish Ministers to publish their plans for implementation and report on progress.

Question

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

This part of the consultation sets out our proposals for improving access to justice (both non-court and court) for rights-holders who are seeking a remedy for when things go wrong in relation to the rights and duties contained in the Bill. It also covers the powers of the Scottish Human Rights Commission (SHRC). This part contains a significant amount of legal terminology and therefore has a greater amount of material explaining what we mean than other parts.