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by Margaret Taylor
04 July 2023
In context: Human Rights Bill consultation

Shirley-Anne Somerville

In context: Human Rights Bill consultation

The Scottish Government has launched a consultation into its long-promised Human Rights Bill, a piece of legislation it says will “incorporate a range of economic, social and cultural rights into Scots law for the first time”

What’s in the proposed bill?

The bill aims to incorporate four UN human rights treaties into Scots law: the International Covenant on Economic, Social and Cultural Rights; the International Convention on the Elimination of All Forms of Racial Discrimination; the Convention on the Elimination of All Forms of Discrimination against Women; and the Convention on the Rights of Persons with Disabilities.

It also proposes introducing the right to a healthy environment and adequate standard of living, as well as making provision to ensure everyone has equal access to these rights.

According to the Scottish Government, if introduced the bill would “reduce inequality and would place a broader range of human rights at the centre of how Scotland’s frontline public services are delivered, as well as its policy and law-making processes”. It claims that “people would also be able to seek justice where their rights are not upheld”.

On announcing the consultation, social justice secretary Shirley-Anne Somerville said that human rights are “the basic rights and freedoms that belong to everyone” and that making these specific rights enforceable in Scots law, within the limits of devolution, “is the right thing to do”.

Hasn’t the Scottish Government run into issues trying to incorporate UN human rights treaties before?

Yes. In March 2021 the Scottish Parliament unanimously passed the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill, which, as its name suggests, seeks to incorporate a UN treaty that protects the rights of children and young people into Scots law.

The bill has never been enacted, however, because the UK Government challenged certain parts of it in the Supreme Court over concerns that the Scottish Parliament was overstepping its jurisdiction.

In October 2021, the court ruled that four sections of the bill went beyond Holyrood’s legislative competencies – in that they would alter the Scotland Act and impinge on UK laws. The bill cannot become law until those sections are amended.

Earlier this year, as he was stepping down as Children and Young People’s Commissioner, Bruce Adamson accused the government of making “constant broken promises” and said it will be a “personal failure” for First Minister Humza Yousaf if an amended bill is not brought into law.

What’s happening with that bill now?

In the last week before summer recess, Somerville confirmed the bill would be brought back to Holyrood for amending. It will be changed to ensure public bodies will only need to comply with UNCRC requirements when delivering duties conferred on them through acts of the Scottish Parliament. This means it will not apply to powers handed to Scottish bodies by Westminster legislation, such as the 1980 Education Act or the 1995 Children Act.

While timetabling is up to the Scottish Parliamentary bureau, the cabinet secretary said she hoped to be able to consider the amendments after recess and for it to be passed before Christmas.

Meanwhile, the office for the Children and Young People’s Commissioner has called for a “legislative audit” to identify any areas of law which are currently incompatible with the UNCRC. Acting commissioner Nick Hobbes said: “This should include acts of the Scottish Parliament and UK acts in devolved areas which could be brought into scope of the UNCRC (Incorporation) Bill by being consolidated into new acts of the Scottish Parliament.”

What are people saying about the latest proposed bill?

Legal organisation JustRight Scotland was among several civic society, human rights and equalities bodies to write to Yousaf, Ash Regan and Kate Forbes during the SNP leadership race to urge them to bring the legislation forward. They noted that the Scottish Government had pledged in March 2021 that a bill would be introduced by 2026 and they asked the candidates to honour that promise.

Unsurprisingly, the consultation has been broadly welcomed by a range of human rights organisations, though they noted that it has been a long time coming and will have to be handled with great care to avoid running into similar issues as the children’s rights legislation. 

Alison Watson, director of homelessness charity Shelter Scotland, said the incorporation of the right to adequate housing is “crucial” and that the bill would “improve and clarify people’s housing rights” and make it easier for people to access justice if their rights are breached.

The Human Rights Consortium Scotland said that, “if it is done right”, the legislation would be “one of the biggest steps forward in human rights in Scotland” because it would make it “so much easier for people to name and claim all their rights”.

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