JustRight Scotland: Our statement on the Scottish Human Rights Bill Consultation

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JustRight Scotland welcomes the Scottish Government’s consultation proposals for a Human Rights Bill published on 15th June as an important step towards realising #AllOurRights in Scotland.

 

By incorporating economic, social, cultural and environmental rights directly into Scots law, this Bill will protect a range of rights including the rights to food, housing, social security, health and a healthy environment. This will also be a first for the UK, as the UK Government has consistently resisted recommendations to incorporate these rights. The Bill will also include an equality clause to ensure equal access to the incorporated rights, as far as is possible within devolved powers.   

We welcome this approach and recognise the importance of bringing economic, social, cultural and environmental rights into Scots law, so that they finally become enforceable in our courts in the same way as civil and political rights. However, the Scottish Government committed to going as far as devolution would allow, and we are not convinced these proposals do so.

Further work is needed to ensure the Bill
goes as far as possible to protect all our rights, including those of disabled people, black and minoritised people and women. The Consultation proposals refer to the treaties upholding rights for these groups as “the equality treaties”, ignoring the substantive rights each contains.  If the proposals are followed, there will be no duty to comply with these rights and they will not be enforceable in our courts. They will be rights without a remedy.

We recognise that the limits of devolution make it impossible to incorporate these treaties in full, due to limits on the legislative competence of the Scottish Parliament related to equality law. However, there are a number of substantive rights that could be fully incorporated. For example, for disabled people, the rights to independent living, living in the community, and accessibility measures, among others. The Consultation does not explain why the limits of devolution prevent incorporation of these rights with a duty to comply.  

This Bill is an opportunity to strengthen an area of Scots law that is particularly weaksocial care and support for disabled people. We know from our casework just how weak our existing law is, and how important it is for disabled people that this Bill require public authorities to comply with their human rights. It will be very disappointing if the Scottish Government does not go as far as it possibly can. Read more about this here.

We are also disappointed by the lack of progress on access to justice. The Scottish Government accepted all 30 of the recommendations of the National Taskforce on Human Rights Leadership, an expert group tasked with developing recommendations for the development of human rights in Scotland. The recommendations included a number related to access to justice, which asked the Scottish Government to give further, detailed consideration to various reforms to improve Scotland’s administrative and civil justice system and bring it closer to providing the accessible, affordable, timely and effective remedies international human rights law requires. Read more about this here. There are many well-known barriers to accessing justice in Scotland – including lack of information on rights and remedies, prohibitive cost, complexity, unfair deadlines, and lack of legal advice and representation – which are compounded where economic, social and cultural rights are being breached.  

While over two years have passed since the Scottish Government accepted the Taskforce’s recommendations, it appears from the Consultation that little work has been done on this. The proposals in this area are limited and will do little to address the systemic barriers that were evidenced in detail to the Scottish Government through the Taskforce process. It is unfortunate that there does not appear to have been joined up work within government departments, particularly the Justice Directorate, to develop proposals or bring forward related Bills, such as the long awaited legal aid reform bill, notably absent from the Programme for Government once again this year.  

While the Scottish Government has acknowledged that more needs to be done on access to justice within the Bill, with only a few months between the closure of the Consultation and a Bill being introduced to the Scottish Parliament,  there is inadequate time for development of comprehensive, detailed proposals. We are therefore calling for the right to an effective remedy – one that is accessible, affordable, timely and effective – to be included in the Bill as a substantive right, with a duty to comply. That was omitted from the Consultation proposals. Inclusion of this right in the framework Human Rights Bill will ensure it is part of national law and can be used to drive positive change, in the same way as the other substantive rights.  

Overall, we are underwhelmed by the Consultation, its lack of ambition and the failure to develop key areas. Nevertheless, we remain committed to encouraging the development of a Bill that goes as far as possible under devolution and will continue to engage with the Scottish Government to support this, as well as submitting a detailed response to the Consultation.

 

Notes:
The Consultation proposals follow the Scottish Government’s acceptance of 30 recommendations from the National Taskforce on Human Rights Leadership. The National Taskforce was established in early 2019 to respond to the recommendations of the First Minister’s Advisory Group on Human Rights. Individuals from the Scottish Government, from third sector organisations, members of the public and legal experts came together to develop recommendations for a legal framework to bring internationally human rights treaties into domestic law. They made 30 recommendations in March 2021, all of which were accepted by the Scottish Government.
The National Taskforce recommended the incorporation of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the Convention on the Elimination of All Forms of Racial Discrimination (CERD), the Convention on the Rights of Persons with Disabilities (CRPD) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) as well as the right to a healthy environment, and rights for older persons and an equality clause protecting equal enjoyment of right of LGBTI people [https://www.gov.scot/publications/national-taskforce-human-rights-leadership-report/pages/4/]
[Full details of blogs on incorporation for more info / detailed analysis] The Human Rights Bill consultation will close on 5 October 2023. 
The Programme for Government [5/09/23] listed the Human Rights Bill as one of the bills that will be brought to the Scottish Parliament this parliamentary year, by June 2024.  
JustRight Scotland is a Scottish Charitable Incorporated Organisation (SC047818) which provides legal services through its limited liability partnership, JustRight Scotland LLP which trades as JustRight Scotland (SO305962). This firm has been authorised to act as solicitors by the Law Society of Scotland (Registered No 53703).

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