National Taskforce for Human Rights: leadership report

Chapter 3: Implementation Requirements: Capacity-building, Public Participatory Process and Monitoring of Outcomes

Any statutory human rights framework can only improve people's lives to the extent that it is effectively implemented.

Steps will need to be taken to assure and not just assume that rights are made real.

Key implementation requirements include capacity-building of both duty-bearers and rights-holders, ensuring public participation, strengthening of access to justice and then monitoring the results on the ground.

All of these recommendations are made to fulfil a number of overall policy objectives, including the following:

Strategic Policy Aspirations relating to this group of recommendations:

7. The implementation of the framework is effectively monitored and scrutinised, including through "everyday accountability", where human rights are part of a broader system of checks on compliance. The framework advances access to justice for people whose rights are not being met

8. The framework provides for effective remedies where people's rights are not being respected, protected or fulfilled

9. The framework is put into practice as soon as possible, with both duty-bearers and rights-holders supported to secure and advance its implementation

10. The public participation in the establishment and implementation of the framework is essential, along with the essential capacity-building of duty-bearers, to further develop a human rights culture

11. The framework gives practical effect to a multi-institutional model of human rights protection and fulfilment, reflecting the shared responsibility of multiple actors to respect, protect and fulfil human rights

Capacity-building

The overall policy intention is to embed within public authorities a human rights-based approach towards the effective implementation of the framework, to enable rights-holders to realise their rights and so to develop a human rights culture.

Effective implementation of the framework requires human rights capacity-building of all duty-bearers, as follows:

Policy Objective 18: Capacity-building to build a human rights-based and outcomes-oriented approach by public authorities

Firstly, capacity-building to build a human rights-based and outcomes-orientated approach by public authorities, enabling them to get it right first time through continuously improving their decision-making by not only taking fully into account the rights of individuals, but also subsequently ensuring that the outcomes, and not only the process, of such decision-making, comply with the rights of individuals.

The development of overall implementation plans by duty-bearers on how to use the maximum available resources to progressively realise the economic, social and cultural rights contained within the framework, as well as, where appropriate, the improvement of specific impact assessments which lead to meaningful change and improved outcomes, will be required.

The development of capacity-building through provision of clear and specific statutory and non-statutory guidance should be supported by consultation with both duty-bearers and rights-holders.

It should be accessible and contain practical application examples and details, so as to support duty-bearers operationalise their duties under the framework.

International human rights law expertise, combined with practical experience of working with public bodies and rights-holders, is also essential for the development and delivery of capacity-building.

Provision of adequate resources, as reaffirmed by the Bonavero Report's second guiding principle, is of course also critical to enable not only such capacity-building but also the delivery of a range of public services which impact upon the enjoyment of rights within the framework.

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.

Policy Objective 19: Human rights capacity-building in relation to the everyday accountability of duty-bearers.

Secondly, human rights capacity-building in relation to the everyday accountability of duty-bearers enhances the scrutiny by the sector of regulators, inspectorates and complaints handling bodies of the above practical implementation by public authorities.

The Taskforce public engagement has clearly demonstrated the need of further consideration of specific duties being placed upon such scrutiny bodies, along with the need of capacity-building, including the development of a human rights-based approach, to enable such scrutiny bodies to effectively oversee the framework implementation plans of duty-bearers and identify any systemic shortcomings.

This could be done by statutory and non-statutory guidance enabling such scrutiny bodies to fully understand the nature of their duties within the framework, to develop training and share good practice development.

Consultation and participation of duty-bearers, rights-holders and scrutiny bodies should be an essential part of this capacity-building.

The Taskforce engagement with the public sector clearly evidenced that the provision of adequate resources is critical to enabling the framework to be effectively implemented.

This was also affirmed by the Bonavero Report and its second principle on the requirement of adequate resources.

Recommendation 19: The Scottish Government should consider how scrutiny bodies can be supported through provision of adequate resources and clear guidance on their duties within the framework to effectively oversee the framework implementation plans of duty-bearers.

Policy Objective 20: Capacity-building of rights-holders to know and be able to exercise their rights

The policy objective is that rights-holders should have the information that they need about their rights and should know where to go to get further advice.

A significant finding of All Our Rights in Law was that too often people simply do not know that they have rights or where to find out more about them. The effective implementation of this framework requires a step change in this regard.

Stakeholders highlighted that this information needs to be fully accessible and developed with an inclusive communications approach. It needs to be local, specific and proactively available in interactions with duty-bearers. As outlined above, progress on enabling information on rights should be part of the Human Rights Scheme.

It was repeatedly stated to the Taskforce in its engagement that there needs to be more places for people to go for advice and support on how to claim and realise their rights.

The role of advice givers is essential for enabling rights-holders to be empowered through this framework, to enabling rights-based interactions between duty-bearers and rights- holders to improve human rights-based decision-making and to enable routes to remedy. There needs to be careful consideration given to ensure that this advice is accessible to all.

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.

Access to Justice

The overall policy intention is the strengthening of access to justice for rights-holders. Access to justice including an effective remedy for rights-holders is required by international human rights law, which also provides guidance on its implementation.

The following Recommendations are proposed to achieve this overall policy intention of strengthened access to justice.

They address the following issues of adequate and effective remedies, non-judicial remedies and "everyday accountability" and judicial remedies.

Policy Objective 21: Strengthened Access to Justice (Adequate and effective remedies)

Incorporating rights in domestic legislation requires that adequate and effective remedies and routes to remedy exist within the national legal system.

Under international human rights law, remedies and routes to remedy require to be accessible, affordable, timely, and effective. The element of adequacy of a remedy is mostly concerned with access to justice, where considerations of accessibility, transparency, legal advice and aid, timelines, and affordability, are ensured.

The effectiveness of a remedy not only takes into account the elements of access to justice, but also requires that an appropriate order is issued, and that such order is complied with by the competent public authority. The Taskforce heard a range of views in its engagement about access to justice and how it could be improved and made more accessible.

For example, participants in All Our Rights in Law and the civil society reference group spoke about the barriers that many people can face in accessing remedy, and what needs to happen to make remedy possible and achievable for those who are most marginalised in society.

It is clear that current routes to justice are complex and can be difficult to navigate. Information about the existence and procedures of routes to remedy could be improved. Legal advice could be easier to obtain. Advocacy services could be available to more people when they need them.

General guidelines on how to redress human rights violations do not yet exist, with the exception of those provided by civil society. Remedies become difficult to navigate without access to information and advice about rights, legal representation, independent advocacy, and sufficient legal aid. The risk of being held liable for the other side's legal fees can be prohibitive.

Further elaboration is to be found in the SHRC's paper "Adequate and Effective Remedies for Economic, Social and Cultural Rights: Background briefing paper for the National Taskforce on Human Rights Leadership."

Recommendation 21: Through engagement with key stakeholders, including those who face additional access to justice barriers, further consider accessible, affordable, timely, and effective remedies and routes to remedy that will be provided for under the framework.

Policy Objective 22: Strengthened Access to Justice (Non-judicial remedies and "everyday accountability")

In order to ensure that right-holders are able to access justice and receive redress, there is a need for complaint-handling mechanisms to embed human rights into their considerations.

Existing mechanisms in Scotland would be able to enhance access to justice and further prevent unnecessary judicialisation of human rights issues if they are appropriately strengthened at all levels.

Front-line complaint mechanisms, such as those existing in local authorities, could do more to embed the rights and obligations in the framework. The process of internal investigation and the redress offered would also need to comply with the obligations enshrined in the framework, including ordering adequate remedies.

In relation to regulators, inspectorates and ombudsmen the evidence received by the Taskforce is that at present they could be supported to systematically embed human rights standards or approaches into their ways of working. This would remove an accountability gap in relation to the implementation of the framework rights, and improve the possibilities of access to justice.

It is important to highlight that these existing complaint-handling mechanisms already review issues that are at the core of the rights in the framework, including health, housing, education and culture, and should be supported to take international human rights law into account.

Recommendation 22: Further consider specific duties being placed upon front-line complaint handling mechanisms and scrutiny bodies in order to enhance access to justice and ensure human rights obligations are given effect by all public authorities.

Judicial remedies

Based on the evidence received, and taking into account an internationalist, maximalist, and multi-institutional approach, the Taskforce highlights three objectives that can enhance access to judicial remedies, subject to further consideration and development.

Policy Objective 23: Strengthened Access to Justice (Judicial Remedies – Standing)

Firstly, the statutory framework should allow for organisations with "sufficient interest" to be able to bring cases.

In order to promote further accessibility of judicial remedies, the framework should allow for civil society organisations with "sufficient interest" to support victims or to bring systemic cases that are in the public interest.

This could reduce the financial and personal burden of legal action of individuals who might not have the means or the capacity to do so themselves.

This is particularly important in the context of economic, social, cultural and environmental cases where the issues can often be systemic and affecting numerous individuals.

Collective or class actions can therefore be more appropriate and also assist the judicial system with case management.

Also relevant is Recommendation 11 in relation to the SHRC powers.

Recommendation 23: Explicitly allow for bodies with "sufficient interest" to bring proceedings on behalf of claimants.

Policy Objective 24: Strengthened Access to Justice (Judicial Remedies – Standard of review)

Secondly, standard of review. The Taskforce considers that the reasonableness test developed in international law and other domestic jurisdictions is more exacting than the 'Wednesbury reasonableness test' in the UK.

In order to ensure access to justice and effective remediation for violations of economic, social, and cultural rights, the Taskforce considers that the framework should set out an approach to a standard of review which takes into account international human rights law standards and best comparative practices in determining the reasonableness of a particular measure.

For such purposes, the administrative and judicial bodies could, for example, take into account if the measures taken by the duty-bearer ensure the minimum levels necessary for a person to live a dignified life, if the measures taken were deliberate, concrete and targeted towards the fulfilment of the rights in the framework and if the measures taken were coordinated, coherent and comprehensive, among other criteria.

It is also considered that, when determining the reasonableness of a measure, administrative and judicial bodies should pay due regard to the interpretative clause of the framework and so may, where appropriate, take into account the value of human dignity.

Further elaboration is to be found in the papers by Dr Katie Boyle, "Access to Justice for Economic, Social, Cultural and Environmental Rights: Principles of Adjudication" and "Access to Remedy – Systemic Issues and Structural Orders", the paper "The Underpinning Concept of Human Dignity" by Dr Elaine Webster, University of Strathclyde, as well as in the FMAG Report at pages 34, 35.

Recommendation 24: Include in the framework an approach to standard of review of the reasonableness of a measure that takes into account international human rights law standards and comparative best practices.

Policy Objective 25: Strengthened Access to Justice (Judicial Remedies – Appropriate Orders)

Thirdly, appropriate orders. The effectiveness of a remedy will necessarily depend on the appropriateness of the order granted in light of the specific circumstances of the case. In international human rights law, appropriate remedies can come in the forms of: (a) restitution; (b) compensation; (c) rehabilitation; (d) satisfaction; and (e) guarantees of non-repetition.

The Taskforce specifically suggests the use of targeted remedies (similar to a structural interdict) which can meet the international law standard of a guarantee of non-repetition.

The Taskforce also recognises that other appropriate orders will be necessary and that the courts will determine what is appropriate in specific circumstances, for example orders providing satisfaction (apologies, acknowledgement of the facts, acceptance of responsibility), rehabilitation (medical or psychological care), or restitution (return of property or housing).

A structural interdict type remedy is intended to more effectively address systemic failings that go beyond the sole victim of the case in question and prevent further breaches.

The Taskforce of course recognises that any such provision for structural interdicts would require liaison and capacity-building with the courts. Other appropriate remedies as well as multi-institutional routes to resolving systemic issues should also be considered.

Further elaboration is to be found in the SHRC's paper "Adequate and Effective Remedies for Economic, Social and Cultural Rights: Background briefing paper for the National Taskforce on Human Rights Leadership", and the papers by Dr Katie Boyle, "Access to Justice for Economic, Social, Cultural and Environmental Rights: Principles of Adjudication" and "Access to Remedy – Systemic Issues and Structural Orders", as well as in the FMAG Report at pages 34, 35.

Recommendation 25: Further consider how the framework could provide for the full range of appropriate remedies under international law to be ordered by a court or tribunal when needed, including targeted remedies which could provide for non-repetition of the breach (such as structural interdicts).

Policy Objective 26: Strengthened Access to Justice (Further Work)

The Taskforce recognises that the adequacy and effectiveness of judicial remedies for human rights violations is a complex and wide-ranging issue.

Therefore, as part of the development of the framework, there needs to be further exploration of access to justice in relation to economic, social, cultural, and environmental rights. This should consider the accessibility, affordability, timeliness, and effectiveness of current routes to remedy in Scotland, application of principles within the Aarhus Convention, and help determine the necessary changes that may need to be undertaken in order to ensure the full effectiveness of the rights incorporated in the framework. This would necessarily have to take into consideration the views of rights-holders, who have expressed challenges in relation to accessing justice for human rights breaches.

Among the relevant issues are: (i) the effectiveness of judicial review as a route to remedy or the need for a new route to remedy; (ii) the availability of legal aid; (iii) any need for an inquisitorial system to redress human rights breaches; (iv) current judicial procedures; (v) any need for a mechanism to prevent urgent irreparable harm and (vi) the overall financial cost associated in bringing a case to court; and (vii) any need for additional measures to better enable strategic test/group cases within the framework.

Additionally and specifically, it is considered that it be further explored whether there could be a provision, akin to a "devolution issue" under the Scotland Act 1998, whereby a compatibility issue with any of the relevant treaties can be the subject of challenge in judicial and administrative proceedings. Its effect would be to refer the point to the relevant superior court for determination.

Recommendation 26: As part of the development of the framework, to further explore access to justice, taking into account the views of right-holders, in order to consider how the framework could help provide a more accessible, affordable, timely, and effective judicial route to remedy.

Public Participation

Policy Objective 27: Public Participation in development of the framework

The policy objective is the effective public participation in the development of the framework.

A clear message from the Taskforce's public engagement, including directly with rights-holders, is that it is crucial that the public are engaged in, and shape, preparations of the new framework, as well as its implementation.

Such engagement is a key part of a human rights-based approach to policy and law making. This reflects the fact that, unless full cognisance is taken of people's experience of human rights in their everyday lives, and particularly that of those who most often experience gaps in their rights, then the law and its implementation will not be as effective as it could and needs to be.

There is scope for learning about best practice in public engagement and innovative approaches such as citizen-led forums could be developed to ensure that there is a diversity of voices involved, including marginalised communities. This participation should be ongoing and be about engagement and not only consultation. The Taskforce has heard consistently about the significant value of engaging with the third sector and community groups, as well as the importance of this being done in a way that enables participants to feel fully informed, respected and listened to.

Specific consideration also needs to be given as to how best to engage women, disabled people, and people from minority ethnic communities particularly around incorporation of CEDAW, CERD and CRPD. There needs to be specific engagement with a diversity of children and young people. Consideration of intersectionality needs to be built in throughout the public engagement.

Recommendation 27: The Scottish Government should adopt an innovative and human rights-based approach towards engaging the public in developing the framework, including the guidance and its implementation.

Policy Objective 28: Public awareness of the new statutory human rights framework

The Taskforce learned directly from its public engagement that steps need to be taken to raise public awareness of the new framework, so as to enable its effective implementation and support the development of a human rights culture.

Stakeholders highlighted to the Taskforce that this public awareness campaign should be big and bold, use all different mediums, including media, be as practical as possible, help counteract any prevailing negative connotations of human rights and that it should include clear routes for more specific information and understanding.

Recommendation 28: The Scottish Government should develop a large scale public awareness campaign about the new framework.

Policy Objective 29: Public participation in the implementation of the framework

Public participation is also essential on an ongoing basis and in multiple systemic ways to ensure the proper functioning and implementation of the new framework. It is also important in everyday decision-making affecting people's lives.

This will include public participation in strategic decision-making as part of the co-production of a national human rights action plan such as SNAP, in pre-legislative assessment, in treaty body reporting, in preparation of capacity-building including statutory and non-statutory guidance, in the development of public authority implementation plans and impact assessments, in being supported by independent advocacy and exercising access to justice and being engaged in the monitoring of outcomes.

Inclusion within the framework of a right to effective participation would ensure that there are efforts by all to strive to continuously improve the means of effective participation by individuals and the public generally in the implementation of the framework.

Recommendation 29: The Taskforce recommends that further consideration be given to including an explicit right to participation, drawn from the principles of international human rights law, within the legislation.

Monitoring of Outcomes

Strategic Policy Aspiration:

12. The framework's implementation and outcomes are monitored, including through the use of human rights-based indicators, so as to ensure that human rights are made real

Policy Objective 30: Improvement of the monitoring of outcomes

Effective monitoring of outcomes is an essential policy objective in order to measure the results obtained on the ground from the implementation of the new human rights framework, in other words checking that the framework has made rights real for people.

Monitoring of outcomes will be required at many levels and by multiple actors, in line with the multi-institutional model proposed by the new framework.

National level monitoring

At a national and government level, as outlined in Recommendation 5 of the FMAG Report, this requires the development of human rights-based indicators to more appropriately measure the outcomes of not only the new human rights framework but also the National Performance Framework as a whole.

Both qualitative data, including the lived experience of rights-holders, and quantitative data, disaggregated where necessary, would inform such monitoring of outcomes.

As called for in Recommendation 4 of the FMAG Report, the creation of a UN recommended National Mechanism of Monitoring, Reporting and Implementation could support the monitoring of outcomes, as well as provide a number of other purposes such as the coordinating of Scottish Government engagement with European and UN human rights systems, including reporting and implementation of recommendations, as well as the monitoring of relevant rights developments within the EU and Council of Europe to enable Scotland to keep pace.

Further elaboration is to be found in the FMAG Report at pages 41-44 and within the Bonavero Institute Report.

The Scottish Parliament may wish to consider what role it could play in providing scrutiny as to whether government action is delivering the intended outcomes, including in relation to strengthened pre-legislative assessment and scrutiny of the proposed Human Rights Scheme.

The "everyday accountability sector" – regulators, ombudsman, inspectorates – have a key role in monitoring human rights compliance. As referred to earlier in the Report above, further consideration must be given to both the duties on such bodies to carry out such work and also the capacity-building that will be required.

Public authority monitoring and reporting

The Taskforce is clear that it is essential, both for accountability and effectiveness, that there is monitoring and reporting by public authorities of the steps they have taken, and plan to take, to fulfil human rights outcomes. Such public authority mechanisms would be complementary to, and feed into, national monitoring mechanisms, as outlined above. It is important that such monitoring and reporting does not simply lead to increased and burdensome paperwork but helps to secure human rights-based policy and practice decision-making. This area warrants significant further consideration, both with public authority stakeholders and with rights-holders.

Human Rights Budget Monitoring

Finally, it will be essential that human rights budget scrutiny and monitoring forms part of the framework implementation, as acknowledged in the Bonavero Institute Report and by many of the stakeholders the Taskforce engaged with.

Human rights budget scrutiny ensures that the process by which a budget is developed, implemented and evaluated is fit for purpose. That is to say, it engages those whom it affects and complies with international obligations, both procedural and rights. It allows governments to be held to account for delivering on their human rights obligations through appropriate resource generation, allocation and spend.

Well-functioning budget scrutiny is required to be undertaken by a range of actors including legislators, auditors, citizens, civil society, national human rights institutions and the media. It will be critical that in the implementation of the new framework these various actors play different roles at different stages of the budget process. Consideration must be given in the next stage of the process as to how this can be best facilitated as part of the framework implementation.

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.