FEARS over the limits of devolved power mean the Scottish Government is not being “ambitious enough” on human rights bill, a charity has warned.
The Scottish Human Rights Bill (SHRB) has just wrapped up the public consultation phase of its journey to becoming law, with all responses being submitted by October 5.
The bill seeks to enshrine “a range of economic, social and cultural rights into Scots law for the first time, as far as possible within the limits of devolved competence”.
These are rights not covered by the European Convention on Human Rights, which is incorporated into UK law through the Human Rights Act 1998.
The plans would see the incorporation into Scots law of the following treaties:
- The International Covenant on Economic, Social and Cultural Rights (ICESCR)
- The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)
- The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)
- The Convention on the Rights of Persons with Disabilities (CRPD)
But in the wake of submitting its response to the consultation, JustRight Scotland, a charity ran by experienced human rights lawyers, has said the Scottish Government’s proposals are “overly cautious” and “overly conservative”.
The charity said the bill does not go as far as the Scottish Government promised it would when plans were first unveiled in March 2021.
Jen Ang, the charity’s director, said that challenges to Scotland’s devolved legislative competence have caused the government to “doubt” its approach to bolstering human rights laws.
She said: “You cannot ignore that in the last few years, the Scottish Government’s exercise of its devolved powers has been challenged.”
She highlighted the UN Convention on the Rights of the Child (UNCRC) Bill, which was blocked by the Supreme Court for falling outside of Scottish devolution powers, as a key example.
She said: “The UNCRC bill is the precursor to the Scottish Human Rights Bill, and in some ways the hope was that we would pass the UNCRC bill and that would pave the way for the SHRB to take a similar approach.
“Because it was successfully challenged in the Supreme Court and had to be rewritten, its clear that government has doubted its approach to this Scottish Human Rights Bill.
“But we are concerned that they’re taking an overly cautious position, overly conservative.”
The human rights lawyer said the charity’s main concern was the lack of a “right to effective remedy on the face of the bill”, meaning that the method of recourse for someone whose rights have been breached were unclear from the proposals.
She said: “You would expect more at this stage.
“For us the most concerning thing is the lack of a right of effective remedy on the face of the bill.
“What good is a human rights bill without a remedy? What kind of contract is that between people and the state? What good is a contract between people and the state if individuals whose rights are breached don’t have a clear way to enforce it?
“We’re disappointed – and I would say puzzled – that the consultation didn’t make those proposals clearly.”
Ang also highlighted that the proposals as they stand appear to set out a duty for “due regard” to be taken of the rights set out in the bill, which would mean, for example, that the Scottish Government must take those rights into account when formulating plans. However, duty to comply would be a “stronger” approach.
She said: “There are different levels at which you can hold a government accountable. You can set out a duty and tell a government they have to have ‘due regard’ to that duty.
“To have due regard to that duty it means that when you make a law, you have to consider whether you have thought about that duty in making that law.
“It is a relatively weak approach to accountability – you just have to prove that you’ve thought about it.
“A stronger approach is a duty to comply – which is what it sounds like.
“You would have to prove that this law that you made expresses your duty to ensure you are not discriminating [against a given group or individual]”
She continued: “These do have real world impacts for people. One of the areas in which we really struggle in our work is around, for example, ensuring that people have the right to independent living – so disabled people are supported to live independently.
“Our community care law in Scots law just isn’t as strong as international law in this area – Scotland falls behind.
“This is an opportunity to fix that. The difference between due regard versus a duty to comply which would potentially give disabled people who are seeking to exercise those rights to independent living something to really hook their argument on.”
As well as its legal work, the charity also hosts the JustCitizens migrant advisory panel, a participation group which consists of individuals with lived experience of migration who have made Scotland their home.
Ang said that the consultation process had left much to be desired, as it took place over the summer, at a time when both normal people and charities would find it more difficult to respond and also because some of the questions were too broad for the average member of the public to respond to helpfully.
She said: “There was a very broad question on access to justice, but that’s a very good example of not being accessible. The question was so broad that it would be impossible for an average member of the public to make a statement about what they’d like to see.
“[The Scottish Government] will have to draft something around access to justice, and we just hope that they take our suggestions seriously which is that this is an opportunity to create a bill that actually increases the power of people to prevent breaches of their rights and not a bill that just repeats and overlays what we already have – because what we have is not good enough.
“That’s what’s motivating us. Our human rights are not strong enough.”
Ang added that while she believes the Scottish Government does want to be a world leader in human rights, “most governments will hesitate to hold themselves fully accountable”.
She continued: “Most governments will resist the highest level of accountability “That’s why we’re concerned they’re not exercising their powers to the maximum.
“The proposals are not ambitious enough”.
JustRight Scotland has offered to help advise the government on any legislation they have drafted, prior to it going public, in a bid to help expedite the process whilst encapsulating the maximum level of rights protection possible.
The Scottish Government has committed to bringing the draft legislation in the spring of next year.
