A blog series By Barbara Bolton, Legal Director and Partner
We set out our own analysis below, explaining why in our view the SG and SP could incorporate a number of substantive rights from CRPD, CERD and CEDAW, within the limits of devolution. Before doing so, we explain why the SG’s proposal to incorporate CRPD, CERD and CEDAW with only a “procedural duty” is wholly inadequate if they could incorporate with a duty to comply.
For CERD, CEDAW and CRPD, the Consultation proposes that only a “procedural duty” would apply to these rights. The Consultation notes that the intention is to ensure that duty-bearers (those with obligations under the Bill) consider the rights in CERD, CRPD and CEDAW when delivering ICESCR rights and in other decision-making. Those engaging with the Consultation are asked to give their views on that. To do that, we firstly have to understand what the proposal means and what its effect would be.
Disappointingly, there is no explanation of this proposal in the Consultation. Not only does it not specify what “procedural duty” they propose, how that would work or what it would require, they do not make it clear that this would mean these rights would not be enforceable. There would be no effective remedy for breach of these rights. Indeed, the Consultation states that the “procedural duty” would ensure that duty-bearers could be held accountable if they did not take the rights into account in their decision-making (page 19). Without more detail, that is misleading.
Duty to have due regard
While they have not said what “procedural duty” they are proposing, we have existing examples in national law that we can draw from in order to engage with the proposals, in the absence of an explanation.
The Public Sector Equality Duty (PSED) in the Equality Act is a duty on public authorities to “have due regard” to the need to eliminate discrimination, advance equality of opportunity and foster good relations between those who share protected characteristics and those who don’t. It is not a duty to take steps to achieve the elimination of discrimination, equal opportunity or good relations. It is only a duty to consider, take into account, or think about these needs when making decisions. If a public authority does so, and can demonstrate having done so if challenged, its decision cannot be challenged even if it is detrimental to equal opportunity. It is a process duty, not an outcome duty.
As Professor Katie Boyle advised the Taskforce  in 2020:
“Due regard is what is known as a procedural duty which confers the right to a process. When decision makers are asked to comply with the duty to have due regard it means that they must take into consideration, or take into account, a particular matter as part of the decision making process. It provides the right holder with a right that a particular process will occur: i.e. that the decision maker has regard to the rights in question as part of the decision making process…
If the decision maker has had due regard as part of the decision making process then the duty will be dispensed with, even if this results in no substantive change to the outcome in favour of the rights holder. The duty is concerned with the lawfulness of the process and not the lawfulness or the adequacy of the outcome.” 
Discussing the PSED Professor Boyle noted that:
“[the] public sector equality duty in the UK requires that a decision maker has due regard to promote equality of opportunity between different disadvantaged groups…. This is not a duty to achieve the outcome of equality of opportunity, but rather, a duty to have due regard to the need to achieve this outcome.
Criticism of the weakness of this approach has been noted by the Equality and Human Rights Commission who concluded that there was limited evidence of positive change through the implementation of the public sector equality duty. One of the reasons provided was because there is a tendency to focus on outputs rather than outcomes.
It is important to note that while the duty to have due regard might be helpful as a means of implementing, or integrating, ESC rights into decision making processes this duty does not incorporate the rights into domestic law because there is no remedy for a failure to comply with the rights framework. The duty would not be transformative in nature and if implemented alone would fall short in terms of the principles of keeping pace and global leadership.” 
In justifying its proposals, the Scottish Government has asserted that a procedural duty is “justiciable”, meaning that it is possible to challenge a decision in court relying on a procedural duty, and a court will review whether or not the duty was complied with. That is accurate, in the sense that challenges can be made relying on the PSED, and the Court of Session will consider if it has been complied with. However, it will review whether or not the process has been followed, not the merits of the decision. The due regard duty was explained by the English Court of Appeal in 2008:
“The duty is not a duty to achieve a result, namely to eliminate unlawful …discrimination or to promote equality of opportunity and good relations between persons of different … groups. It is a duty to have due regard to the need to achieve these goals. The distinction is vital. [….] What is due regard? In my view, it is the regard that is appropriate in all the circumstances. These include on the one hand the importance of the areas of life of the members of the disadvantaged [group] that are affected by the inequality of opportunity and the extent of the inequality; and on the other hand, such countervailing factors as are relevant to the function which the decision-maker is performing.” 
In a more recent example, in a case concerning cuts to financial support for asylum seekers, the Inner House of the Court of Session held that:
“Section 149 of the 2010 Act, which contains the PSED, is relatively precise in describing what is required of a public authority. It is to have “due regard” to certain specified matters. Having “due regard” is explained in the section itself. The duty has been analysed in a number of cases in England and Wales, culminating in Hotak v Southwark LBC  AC 811. In distilling these cases, Lord Neuberger said (at para 75) that the duty:
“’must be exercised in “substance, with rigour, and with an open mind”’ … [It] is for the decision-maker to determine how much weight to give to the duty: the court simply has to be satisfied that ‘there has been a rigorous consideration of the duty’. Provided that there has been ‘a proper and conscientious focus on the statutory criteria’ … ‘[T]he court cannot interfere … simply because it would have given greater weight to the equality implications of the decision.’” 
The Court of Session said it was unable to improve upon that formulation of the duty, thereby upholding that approach. The challenge to cuts to child support failed.
In rare cases, a failure to comply with the PSED can result in a decision being reduced (set aside as unlawful). For example, in September 2022 the Outer House of the Court of Session held that a decision by Scottish Borders Council to close a day care centre was unlawful, as it had failed to carry out an equality impact assessment in relation to that specific closure, and had not complied with the PSED.  However, the court’s decision only goes as far as striking out the decision of the local authority; they cannot direct a public authority to fulfil a particular outcome. The public authority could simply retake the decision, this time ensuring they comply with the procedural requirements, documenting having taken into account the likely impacts of their decision on different groups, but coming to the same conclusion, that they will shut the centre. If they’ve complied with the process requirements, the court cannot interfere with merits of the decision and it cannot replace the local authority’s decision with a decision of its own. 
The extent of the distinction between a duty to comply and a procedural duty ought to have been spelled out in the Consultation. It should have been made clear that a procedural duty will not enable duty-bearers to be held to account for failure to fulfil a substantive right. The example of the PSED ought to have been provided, along with an explanation of its severe limitations. For people to engage with the proposal they need to have that detailed explanation. Without that, it is not meaningful consultation.
Having explained why incorporating CERD, CRPD and CEDAW with only a “procedural duty” will not give people enforceable rights in national law, below we set out our analysis leading to the view that the Scottish Parliament can incorporate a number of additional rights within competence.
* 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.