How the Human Rights Bill could transform the future of human rights in Scotland
The Scottish Government’s proposed Human Rights Bill intends to bring human rights that currently exist in international law into our national law in Scotland, a process known as Incorporation.
We spoke with our Incorporation Lead and economic, social and cultural (ESC) rights expert, Luis Felipe Yanes to find out more about why getting Incorporation right is so important and what incorporating ESC rights into Scots law could look like in practice.
Which rights will be incorporated by the Human Rights Bill?
The Scottish Government intends to incorporate 4 major international human rights treaties into Scots law with the Human Rights Bill which are primarily focused on protecting our economic, social, and cultural rights.
ESC rights are human rights required to live a dignified life free from fear and want. ESC rights include:
- The right to health
- The right to housing
- The right to social security
- The right to food
- The right to work
- The right to take part in cultural life
Who will be impacted by the Bill?
Everyone. Every person in Scotland has human rights and, collectively, we are known as rights-holders.
As well as individuals, the Human Rights Bill will affect the Scottish public authorities who are responsible for upholding our ESC rights. These authorities are known as duty-bearers, and include:
- The Scottish Government
- Local councils
- The NHS
- Social housing associations
If we already have ESC rights in international law, why do we need a Human Rights Bill?
International law cannot be enforced by the Scottish court system, which means that duty-bearers are not legally required to meet our ESC rights and often do not act in the best interest of these rights.
As a result, for many people in Scotland – and particularly for the most vulnerable in our society – ESC rights are more often experienced as abstract ideals than real, enforceable protections.
One of the four international treaties being incorporated is the Convention on the Rights of Persons with Disabilities (CRPD). Our recent treaty monitoring report on CRPD raised concerns that the Scottish Government is not doing enough to progress human rights protections for disabled people. A supplementary report commissioned from Inclusion Scotland which drew on lived experiences found that disabled people were disproportionately affected by poverty and unemployment, with some people making stark choices between eating and breathing.
Additionally, for ESC rights to have a real impact on people’s lives, we must have an effective method to hold duty-bearers to account when things go wrong. Our recent discussion paper, commissioned from Professor Katie Boyle, found that the current journey to access justice for economic, social, cultural, and environmental rights (ESCER) is confusing, expensive and time consuming.
What difference could Incorporation make for people in Scotland?
The Scottish Government is responsible for shaping this Bill, and much will depend on their approach to the legislation. If developed well, the Human Rights Bill could become the framework legislation that guides many positive changes in the Scottish human rights landscape for decades to come.
Here are some examples of how a robust approach to Incorporation could transform the way that we experience ESC rights in Scotland:
Ensuring every person in Scotland has their ESC rights met will demand extensive action from duty-bearers and involve significant planning and monitoring. For the first time, duty-bearers could be legally required to take concrete steps towards ending ESC issues such as the housing crisis and reliance on foodbanks and crucially, be held accountable for their progress.
Human rights budgeting will be an important part of the planning process.
Often, initiatives which address human rights issues are well intentioned, but not properly funded. Considering human rights before allocating budgets could address the mismatch between warm policy intent and the cold reality of rights-holders’ experiences. Importantly, this Bill could prevent budget cuts to essential services which would infringe on ESC rights.
Putting human rights at the centre of decision making means prioritising people in the most vulnerable situations who face the biggest barriers to realising their rights. This Bill could mandate that duty-bearers consider the most marginalised people and most essential services first when making decisions e.g., when creating budgets or writing new laws.
The Bill could place minimum requirements on duty-bearers to provide accessible, affordable, timely, acceptable and quality services that better meet our ESC rights. For example, to better meet the right to health – and with adequate funding - the NHS might be required to increase the number of health services in rural areas or reduce waiting times for operations.
Access to Justice
The Human Rights Bill is an opportunity to create a justice system for human rights violations that actually works. Allowing rights-holders to take duty-bearers to court in Scotland will undoubtedly improve access for many people, but we believe the Scottish Government can go further to ensure that routes to justice are affordable, accessible, timely and effective. See our Access to Justice discussion paper for our full recommendations.