A blog series By Barbara Bolton, Legal Director and Partner
In addition to economic, social, cultural and environmental rights, the Taskforce recommended incorporation of:
- the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) (Recommendation 3);
- the Convention on the Elimination of All Forms of Racial Discrimination (CERD) (Recommendation 4);
- the Convention on the Rights of Persons with Disabilities (CRPD) (Recommendation 5).
It further recommended the incorporation of a right for older people (Recommendation 6) and an equality clause that protects and promotes the full and equal enjoyment of rights of LGBTI people (Recommendation 7).
The SG accepted all these recommendations and committed to fulfilling them to the greatest extent possible under devolution. 
The Consultation proposals do not fulfil that commitment.
CRPD / CERD / CEDAW
One of the most disappointing aspects of the Consultation is the treatment of CERD, CRPD and CEDAW. These Treaties are relegated to the “equality treaties,” suggesting that they do no more than require equal treatment in relation to the rights set out in ICESCR and the International Covenant on Civil and Political Rights.  In fact, each of these Treaties contain important standalone, substantive rights relevant to these groups.
Having relegated them to the “equality treaties,” the proposal is that there will be no duty on any public authority or provider of services to comply with these rights. If there is no duty to comply, there is no prospect of holding public authorities to account, or of enforcing these rights (as explained below). Without a corresponding right to an effective remedy for breach, this can not really be said to be incorporation of these rights. If the limits of devolution meant that it was impossible for the SP to pass legislation incorporating these rights with a duty to comply, that would be a reasonable explanation for the SG’s proposal. However, that does not appear to be the case.
It is acknowledged that some rights in CEDAW and CERD would conflict with the approach taken in the Equality Act, and therefore cannot be incorporated due to devolution limits (as explained below). However, there are a number of rights in CRPD, CEDAW and CERD that it appears could be incorporated within devolved limits, in whole or in part, including but not limited to:
CRPD: Art 5 equality and non-discrimination; Art 8 awareness raising; Art 9 accessibility; Art 17 integrity of the person; Art 19 independent living etc; Art 29 participation in political and public life; Art 30 participation in cultural life; Art 31 statistics and data collection.
CEDAW: Art 2 elimination of discrimination; Art 3 development and advancement; Art 5 elimination of prejudice etc; Art 6 trafficking; Art 7 political and public life; Art 10 education; Art 12 health; Art 14 women in rural areas; Art 15 equality before the law; Art 16 marriage and family relations.
CERD: Art 2 elimination of discrimination; Art 4 incitement to racial hatred; Art 7 combatting prejudice.
The basis on which these rights, or parts of them, may be capable of being incorporated within devolved limits is set out below.
The SG appears to accept that some rights in CEDAW, CERD and CRPD could be incorporated within competence, but nevertheless proposes to apply a blanket approach to these Treaties, omitting a duty to comply even where it would be possible. The reason given is the desire to produce an accessible piece of legislation. That is not convincing.
Clarity of legislation is always important, but it is not clear that incorporating additional rights would overly complicate the Bill. This legislation is also highly unlikely to be a document an individual will be able to refer to directly to understand their rights. What legislation is used in that way? It is unlikely to be used in that way even by “duty-bearers,” those with the obligations under the Bill. They are not likely to be able to discern their obligations in specific situations from reading this Bill, without reference to guidance. Guidance will have to be developed to explain the meaning of the Bill in different contexts, as has been done for the Equality Act. Indeed, clear guidance is going to be critically important to the effective implementation of this Bill.
Moreover, the justification suggests that incorporation of ICESCR rights does not involve assessment of devolved limits, removal of parts of rights and adaptation of language, in order to remain within devolved competence. For ICESCR, the Consultation proposes to incorporate only what is referred to as “core ICESCR rights.” They do not clearly define which ICESCR rights are covered. They may be referring to: the right to an adequate standard of living; the right to health; the right to education; the right to social security and the right to take part in cultural life and enjoy the benefits of scientific progress.  These rights have elements that are reserved, which will need to be carved out of the Bill for it to be within competence.
That is not recognised in the Consultation, which seeks to present ICESCR as entirely straightforward in contrast with the other Treaties. Adaptation of Treaty provisions will be required no matter which model of incorporation is used and which rights are covered. If the Treaty text is included in the Bill, it will need redactions and amendments to create coherent legislation that fits within devolved competence. That is the same, to some extent, for many of the rights across all of the Treaties.
If work can be done to determine where the line between reserved and devolved falls for each of the core ICESCR rights, it can also be done to determine that line for the other ICESCR rights (the right to work; just and favourable conditions of work; trade unions and the right to strike, and protection of the family and maternity) and for the rights in CERD, CEDAW and CRPD.
Therefore, the suggestion that incorporation of any rights contained in CERD, CRPD and CEDAW with a duty to comply would require careful navigation of devolved competence, and adaptation of Treaty text, is not a convincing explanation for the SG failing to go as far as it could do. The Taskforce recognised that it was “important that the way in which [ICESCR, CEDAW, CERD, CRPD] are incorporated is effective for ensuring the protection and realisation of rights in people’s everyday lives.”  It recommended that there should be “full incorporation, subject to competence constraints”, of these treaties. That is what the SG committed to and that is what it should be held to – incorporation with a duty to comply for every right possible, giving those who would benefit from those rights the maximum protection possible.
If it is the SG’s position that certain rights in ICESCR and the whole of CERD, CRPD and CEDAW cannot be incorporated with a duty to comply within competence, it should explain how it arrives at that conclusion. The very limited information in the Consultation is inadequate. As Lady Carmichael noted in a recent Court of Session decision, in a consultation: “The decision maker must give sufficient reasons for any proposal to permit intelligent consideration and response.” 
It is not adequate for the Scottish Government to say that in its view competence constraints and the objective of creating accessible legislation means it will only incorporate ICESCR “core rights.” Given the legitimate expectation raised by its acceptance of the Taskforce’s recommendations, it must give sufficient reasons for how it has arrived at that view. We appreciate actual legal advice cannot be shared, but it can explain its position without reference to any legal advice. It is also relevant that Scotland is leading the way on incorporation in the UK, with interested parties in Northern Ireland, Wales and England looking on to draw on this experience in pushing for incorporation through their devolved legislators or at a UK level. As a pathfinder, Scotland should set the strongest possible example, going as far as it possibly can.
* Please note that this blog will be updated periodically during the consultation period and thereafter during the legislative process for the Scottish Human Rights Bill.
Access to Justice and the Right to an Effective Remedy [Blog 1 – Part 1]
Rights for particular groups: going as far as devolution allows [Blog 2 – part 2]
Rights for particular groups: going as far as devolution allows [Blog 2 – part 3]