The Scottish Human Rights Bill consultation: an ambitious proposal to widen both human rights protections and the class of duty-bearers

The Scottish Government is consulting on the introduction of a Human Rights Bill, which if passed into legislation, would result in significant additional human rights standards being incorporated into Scots law, within the limits of devolved competence.

The proposals include the introduction of a duty which is placed on duty bearers (both public sector organisations and private sector organisations delivering public services) to show how they have built in human rights considerations when making decisions and delivering services. The consultation is therefore relevant to private sector organisations who provide services to the public sector through outsourcing arrangements or government services contracts, as well as the Scottish public sector.

The consultation closes on Thursday 5 October 2023.  

Why is the Scottish Government consulting?  

The Scottish Government believes there is a need to incorporate rights protected under international law into Scots law.  They believe that creating a legal framework which places human rights at the heart of public services delivery will reduce inequality, improve accountability and access to justice, focus attention on ensuring fundamental rights are met, and help to build a stronger human rights culture in Scotland.  

The Ministerial foreword to the consultation document emphasises the Scottish Government’s commitment to using the Scottish Parliament’s powers to enhance Scotland’s human rights culture, particularly in light of recent UK Government proposals and statements on reforming the UK legislative framework for human rights.  This will, in practice, require careful navigation of devolved powers.  

Aims of the Bill  

The Bill aims to create a legal framework for human rights in Scotland which is intended to reduce inequality and place a broader range of internationally recognised economic, social and cultural rights ‘at the centre of how Scotland’s frontline public services are delivered.’ The Bill intends to provide people with stronger legal protections and place new duties on bodies carrying out devolved public functions – these are referred to as “duty bearers”.

The Bill aims to incorporate four UN human rights treaties into Scots law:

1. International Covenant on Economic, Social and Cultural Rights, which sets out everyone’s right to an adequate standard of living, including access to adequate food, housing, and clothing. It also contains rights to the highest attainable standard of physical and mental health, to education, to take part in cultural life and to enjoy the benefits of scientific progress. All these rights should be delivered equally, without discrimination. 
    
2. International Convention on the Elimination of All Forms of Racial Discrimination, which requires signatories to take action to end racial discrimination, incitement to racial hatred, and to combat prejudices. Signatories must also promote tolerance and friendship among different national, racial, or ethnic groups.  
    
3. The Convention on the Elimination of all Forms of Discrimination Against Women. This requires signatories to put in place protections in place for women in relation to pregnancy and maternity, family planning, rural living, trafficking and prostitution, and around marriage and family life.
    
4. The Convention on the Rights of Persons with Disabilities, which sets out the human rights of disabled people and the obligations on states to ensure and promote the full realisation of human rights and fundamental freedoms for all persons with disabilities without discrimination. 

Finally, the Bill aims to recognise a new right - the right to a healthy environment. This right would include substantive elements like clean air and a non-toxic environment, as well as procedural elements which will set out a course of action.  

Duties placed on Duty Bearers

If transposed into law, the Bill would place significant new duties on duty bearers to take account of the rights in the Bill in their decision- making processes and when delivering services.

In terms of defining duty bearers, Part 2 of the Consultation paper (“What we want to achieve”) notes that the Scottish Government wants to “provide a clear set of duties for public bodies (including, so far as possible, private actors) carrying out devolved public functions in Scotland in relation to the rights in the Bill. This is with the aim of ensuring so far as possible that all law, policy and decision-making by Scotland’s public authorities and services contributes to the advancement of the full range of international human rights standards contained in the Bill”.  It is also worth noting that  National Taskforce for Human Rights Leadership Report (www.gov.scot) published in 2021 which recommended the Bill made reference to the fact that clarity of the intended reach of the duties to include private actors so far as possible was “considered necessary in light of the experience to date of judicial interpretation of the definition of performing a public function in relation to the Human Rights Act and the expansion in privately provided public services in all areas of public life.”

If this approach is adopted, it would mean that bodies carrying out devolved public functions would have to actively consider the duties in carrying out their functions. 

Private sector organisations carrying out public functions may wish to respond to the Consultation to ensure that their views and the potential implications for their business and processes are considered as part of the Consultation.

How will the treaties be incorporated?

The Consultation seeks responses on the proposal to reproduce (on a direct treaty text approach) all four treaties in the Bill, removing any text that relates to areas reserved to the UK Parliament (e.g. equal opportunities as reserved to the UK Parliament by the Scotland Act 1998.)

Summary

The Scottish Government’s consultation may lead to an added layer of complexity for bodies carrying out devolved public functions in terms of governance and regulatory compliance. It may also lead to further consideration of those devolved functions themselves.           

It will be of keen interest to Scottish public sector bodies and also to all businesses who provide public services.  

For further details on previous Law Nows in this area see Human rights and legislative competence in Scotland: the UNCRC Bill - what it means for public and private sector bodies (cms-lawnow.com)

If you would like to discuss the potential impact of the consultation, please contact our CMS team, Ailsa Ritchie, Eleanor Lane, Joanna Clark

Article co authored by Ailsa Ritchie, Eleanor Lane, Joanna Clark and Angus Coull