Transforming Scotland's human rights obligations

The Scottish Government launched a consultation on a new Human Rights Bill for Scotland in June this year, marking a milestone moment for human rights in Scotland.

The proposed Human Rights Bill will incorporate four international human rights treaties directly into Scots law: those covering economic, social, and cultural rights, disabled people’s rights, rights of black and ethnic minority people, and women’s rights. It will include a right to a healthy environment, and an equality clause to ensure equal access to the rights contained within the bill.  The Scottish Government has indicated that it will also include specific rights for older people and LGBT+ people.

For more than a decade the Scottish Human Rights Commission has called for the incorporation of international human rights treaties directly into Scots law. In dualist legal regimens like ours, where international treaties have no legal force domestically without an Act of Parliament, incorporation is key to ensure there is no mismatch between what a state has committed to internationally and how public authorities act locally.

The bill will incorporate into Scots law the International Covenant on Economic, Social and Cultural Rights (“ICESCR”); the Convention on the Elimination of Racial Discrimination (“CERD”); the Convention on the Elimination of Discrimination Against Women (“CEDAW”); and the Convention on the Rights of Persons with Disabilities (“CRPD”).

It would take a longer article than space allows here to look at the potentially transformative impact this could all have in Scotland. This analysis focuses on the incorporation of economic, social and cultural (“ESC”) rights.

Economic, social and cultural rights

ESC rights are protected under certain international treaties. The UK has ratified various binding instruments that contain such rights, including the ICESCR and the European Social Charter. Economic rights are also protected under binding instruments from the International Labour Organisation (ILO Conventions). Treaties such as CERD, CRDP, CEDAW and UNCRC (the UN Convention on the Rights of the Child) also contain ESC rights, focused on specific groups (ethnic minorities, disabled people, women, and children respectively).

Economic, social and cultural rights are not directly protected in the Human Rights Act, with the exception of the right to education, and they are yet to be incorporated into UK or Scots law as fundamental rights. Some limited protections are afforded through the interpretation of rights found in the European Convention on Human Rights.

ESC rights are human rights that are necessary to live a dignified life free from fear and want. Those such as social security and workers’ rights; social rights including health, education, housing and food; and cultural rights, such as the right to take part in cultural life and to benefit from scientific progress, have specific obligations that differ from civil and political rights.

What are these duties?

The Scottish Government proposes the bill should mirror the obligations inherent to ESC rights. This is a good approach which ensures there is no mismatch between national and domestic human rights obligations, creating an overall coherent legal framework. There are four key obligations, all interconnected, and one cannot be achieved without respecting the others.

Progressive realisation

ESC rights are to be “progressively realised”, which means the legal and factual enjoyment of rights needs to improve over time.

This legal obligation requires duty bearers to move as effectively as possible to ensure realisation of ESC rights, to the maximum of the state’s available resources.

The steps they take need to be as deliberate, concrete, and targeted as possible. They must also demonstrate action which results in rights being better or more widely enjoyed by people, rather than things improving by chance or naturally over time.

Maximum available resources

This is an obligation of immediate effect, which means a duty bearer needs to comply with it once a bill becomes law.

Duty bearers need to do three things. First, mobilise resources effectively – for example, through taxation.

Secondly, allocate resources in a way that allows for rights to be realised. For example, people living in poverty must be prioritised in all resource allocation decisions, and cost effective considerations need to take place to ensure resources are used correctly.

Thirdly, expenditure needs to ensure allocated funds are not wasted, and that policies, goods and services ensure value for money, realising rights as far as possible.

Minimum core obligations

Minimum core obligations (“MCOs”) are the most basic obligations a duty bearer has that can allow people to survive and live in dignity. For example, they include duties such as the requirement to provide temporary shelter for homeless people, and basic food for those in need.

MCOs are not subject to progressive realisation, and therefore need to be complied with immediately. They are so basic they are non-negotiable, and duty bearers should always meet them, regardless of resources.

The Scottish Government’s proposal recommends a process to ensure that MCOs are defined in Scots law, through the participation of people with lived experience, technical experts, policy makers, lawyers, and others. If this were to happen, Scotland would be the first country in the world to do it. Previously, most countries have relied on judicial interpretation to define these obligations.

Non-retrogression

Inherent to the obligation of progressive realisation, countries are obliged not to take deliberate retrogressive steps. In other words, governments have an overall obligation to ensure existing rights-enjoyment levels don’t deteriorate.

Retrogressive measures might include cuts to rights-related programmes, the withdrawal of funding for services linked to human rights, or legislation that reduces rights protections. In principle, retrogressive measures are not allowed. If they happen, a duty bearer is required to demonstrate, among other things, that all the alternatives were carefully considered first.

Radical transformation for Scotland?

Here are some examples of the potentially transformative changes the proposed legislation could achieve:

Planning

Housing, education, health, food services and cultural services will require appropriate, careful and coherent planning as a result of progressive realisation. Duty bearers will need to ensure any plans constitute a deliberate, concrete and targeted way of improving people’s rights. Planning also means monitoring; public bodies, including the Commission, will play a pivotal role in this.

Budgeting

To ensure effective planning, human rights budgeting will also play a significant role. Duty bearers will need to budget correctly to ensure they are allocating the necessary resources to fulfil and progress rights. Plans which aim at progressing one service, but where the budget doesn’t demonstrate resources correctly allocated to deliver it, will result in a breach of the obligation. Audit Scotland, the Commission and others will have a key role in scrutinising those budgets to ensure duty bearers are complying with their obligations.

Prioritising

Key to the legal framework of the bill, and part of the core ESC rights protections, is how efforts and resources are prioritised to protect vulnerable people. If correctly implemented, the bill could ensure that duty bearers prioritise meeting the critical needs of the most marginalised and vulnerable before anything else.

Budget cuts

A natural consequence of no retrogressive measures is that budget cuts to essential services, or austerity measures, are not allowed. Such measures are only permissible if careful consideration is made, including a participatory process to hear the views of rights holders. Therefore, stronger scrutiny will be in place.

A proportionality analysis is also required, ensuring the duty bearer takes the available option with the least negative impact on human rights.

Any measures taken must not be directly or indirectly discriminatory; and those most at risk or most marginalised must be prioritised.

Access to justice

While beyond the scope of this analysis, it’s important to note that a key feature of this legislation will be to make sure the obligations laid out above are justiciable. A lack of adequate and effective routes to remedy for ESC rights at the domestic level creates the perception that social policy is an “added value” element of public body service provision, rather than part of an obligation to ensure the enjoyment of international human rights obligations.

Incorporating ESC rights into domestic legislation necessarily requires that adequate and effective routes to remedy exist within the national legal system. However, questions still remain on how this bill will ensure that routes to remedy in Scotland are fully accessible, affordable, timely and effective, as required by international human rights law. The Commission will be publishing further analysis on this topic soon.

One step forward

The consultation is the next step on a journey that will transform human rights in Scotland. It is often called a framework bill, which is key, as it will become the framework that should guide many positive changes in the next few years and decades.

Further consideration is needed to provide definition and guidance on what constitutes an adequate policy or delivery of a service under human rights terms. This is called “the normative content of human rights”, explained by United Nations committees in their general comments.

Making sure that this is in statutory guidance, or even better, in secondary legislation, will be at the heart of the true improvement of policies and services to create a positive and transformative effect in people’s lives.

Luis Felipe Yanes is policy officer at the Scottish Human Rights Commission

You can read more about the Commission’s work on the new Human Rights Bill for Scotland at its website.

Follow the Commission on X, formerly Twitter (@ScotHumanRights) and LinkedIn, where it will post up-to-date news and information about its work this year.

Contact the Commission at: hello@scottishhumanrights.com

Incorporating additional human rights into Scots law adds urgency to required reforms to Scotland's civil justice system. They are achievable, Barbara Bolton maintains 

For people experiencing breaches of their human rights, it is essential that they are able to challenge these and secure an effective remedy, holding those in breach to account. Absent that, incorporated rights are illusory; they may appear on paper, but do not deliver. A key right under international human rights law is therefore the right to an effective remedy.

The Scottish Parliament has the power to ensure that the right to an effective remedy is included in the Scottish Human Rights Bill, and it is essential that it does so. However, much needed reforms should not await the bill.

Making remedies effective

Remedies for human rights breaches must be accessible, affordable, timely, and effective. To what extent can we say that our existing system meets these requirements?

Accessible

Scotland’s administrative and civil justice system is a complex landscape of regulators, ombuds, tribunals and courts, each with very particular remits, deadlines and powers, and its own set of procedural rules. There is a general lack of interconnectivity between them, such that pursuing one avenue could leave someone time barred from another. Navigating the right entry point for a claim, in time and in accordance with the particular rules, while keeping an eye on deadlines for alternative routes, can be challenging even for the legally qualified. For someone without legal representation, experiencing a breach of their human rights, it will often be impossible. Adding powers of remittal and appeal could improve connectivity, relieving some of the burden on individuals.

Once in court, procedural rules vary markedly depending on the court and type of claim. Even for a solicitor, it can be challenging to comply with the latest rules and practices, which are often buried in practice directions and annotations. Our system would benefit from a wholesale review of court rules to improve accessibility, simplify language and ensure clarity. 

What about time bar? Judicial review is one of the few routes available to secure a remedy for breach of human rights. However, since the Courts Reform (Scotland) Act 2014 this critical route is closed only three months after a breach of rights begins. We know from our casework that this time limit is unreasonable, often passing before someone becomes aware they may have a legal remedy, locates a solicitor and applies for legal aid. There seems to be little justification for such an extreme time limit, particularly when people have three years to raise a personal injury claim and five years for breach of contract.

Strict statutory interpretation compounds the unfairness – a claim is time barred three months after the first day of the breach, even if the breach is continuing. Can it be right that someone denied their liberty in breach of their rights loses the possibility of accessing justice through judicial review because the breach has persisted for more than three months? Judges’ discretionary power to allow claims “late” if they consider it equitable to do so is inadequate: a discretionary power does not confer a right.

Affordable

An overall system of administrative and judicial civil justice should include simple, fully accessible, free processes offering a route to an effective remedy. Necessary reform of Scotland’s civil legal aid system has been anticipated for some years, but there is still no sign of a consultation on a bill. Urgent reform is required to increase payment rates and reduce administrative burden on practitioners, to stem the departure of solicitors from civil legal aid and address advice deserts across the country.

Many people who do not qualify for legal aid are not wealthy enough to fund a court action with the risk of losing and having to pay the other side’s expenses. Significant improvement could be made by expanding the availability of protective expenses orders in human rights claims, including considering a default no expenses position for those with human rights claims or defences, and by waiving court fees for such claims.

Timely

The system must provide accessible and affordable routes to effective emergency remedies, including for breach of economic, social, cultural and environmental rights. Our current system of interim court orders is not likely to be adequate, at least without significant reform ensuring easy access to immediate, free legal representation across the country.

Effective

An effective remedy provides appropriate reparation, in the form of restitution, rehabilitation or compensation, with guarantees of non-repetition. While the Scottish civil courts have a range of possible remedies at their disposal, court orders are generally limited to a specific pursuer, rather than addressing a structural or systemic issue that led to the claim. Wider orders providing a remedy addressing the root issue would avoid the need for many individual claims. The introduction of group proceedings in the Court of Session raises the potential for such remedies, which should be encouraged.

Many more examples could be given of aspects of our system that require careful review in light of the international human right to an effective remedy. Some changes could be made through court rules; some will require legislation. All are achievable.

A more detailed discussion is available on justrightscotland.org.uk

Barbara Bolton is partner and legal director with JustRight Scotland LLP