The Scottish government consulted on a proposal to introduce a Human Rights Bill for Scotland - JCWI submitted a response to this consultation.

Download the response

Introduction

The Joint Council for the Welfare of Immigrants (JCWI) is an independent charity established in 1967. Our mission is to promote justice, fairness and equality in British immigration and asylum law and policy. We do this through a combination of policy research and advocacy, and legal casework and strategic litigation relating to all areas of immigration and asylum rights.

2.     We advocate for the human rights of migrants and rely on the legal protection of human rights across the UK including through the European Convention on Human Rights, as incorporated in the UK through the Human Rights Act 1998 and Scotland Act 1998. We also rely on the principles and protection afforded through instruments including the UN Refugee Convention, UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Council of Europe Convention on Action against Trafficking in Human Beings (ECAT), International Covenant on Economic, Social and Cultural Rights (ICESCR), Convention on the Elimination of Discrimination Against Women (CEDAW), UN Convention on the Rights of Persons with Disabilities (CRPD), and International Convention on the Elimination of all forms of Racial Discrimination (CERD).

3.  We welcome the Scottish Government’s consultation to take forward a Human Rights Bill for Scotland, which will incorporate economic, social and cultural rights into Scottish law within the limits of devolved competence. It is particularly welcome in light of the UK Government’s current approach to human rights which shows a concerning tendency towards eroding, rather than strengthening, human rights protections.[1]

4.     Legal incorporation of human rights protection is vital to ensuring people in Scotland will be able to stand up for their rights and get justice when their rights are violated. This is especially important for marginalised groups who face the most risk of human rights violations, including migrants. Migrants currently experience and/or face risks of a range of human rights violations, due to the UK Government’s increasingly hostile and inhumane policies on migration. These include but are not limited to inhumane and degrading treatment in detention[2], breaches of the rights to privacy and family life under invasive surveillance and digitisation of the immigration system[3], and breaches of economic, social and cultural rights under the Hostile Environment, in particular the ‘No Recourse to Public Funds’ condition[4] which forces many people into destitution.[5] Strengthening the protection of human rights, including economic, social and cultural rights, will be key to ensuring the rights and wellbeing of everyone who makes Scotland their home.

5.  In addition to our response to the consultation, we further refer the Scottish Government to recommendations previously outlined in Human Rights for all: Some recommendations for the Scottish Human Rights Bill on protecting migrants’ human rights (2021)[6].

Substantive responses to relevant consultation questions

Question 1: What are your views on our proposal to allow for dignity to be considered by courts in interpreting the rights in the Bill?

6.  We agree with the Scottish Government’s approach to ensure that human dignity should be taken into account in the interpretation of the rights in the Bill. We recommend that the proposal should be strengthened so that courts are not only ‘allowed’ to consider dignity but rather ‘required’ to. This will ensure that this core principle is addressed in courts’ interpretation of rights in the Bill.

7.   We recommend that, like the proposed inclusion of an equality provision with regard to ICESCR, the Bill should also include an equality provision to ensure that the right to dignity applies to everyone regardless of nationality or immigration status.

8.   We recommend expanding the mandatory consideration of dignity beyond the courts and ensure that all public bodies share a robust understanding of the importance of dignity in making decisions as part of their positive duty to protect the rights in the Bill.

Question 2: What are your views on our proposal to allow for dignity to be a key threshold for defining content of MCOs?

9.    We agree with the Scottish Government’s proposal for dignity to be a key threshold for defining Minimum Core Obligations.

Question 3. What are your views on the types of international law, materials and mechanisms to be included within the proposed interpretative provision?

10.  We agree with the Scottish Government’s proposal to include provision in the Bill that allows for duty-bearers, courts, and tribunals to be able to read, apply and interpret the rights in line with international human rights law, materials and mechanisms, including UN General Comments and recommendations of UN Committees, concluding observations of UN treaty monitoring bodies and other mechanisms at the international or regional level.

11.  We also agree that it will be essential for the Bill to recognise other key international human rights principles – such as the universality, indivisibility, interdependence and interrelatedness of all rights. We recommend including a provision that explicitly outlines the above principles, along with a provision for duty-bearers, courts, and tribunals to have due regard for those principles in their decision making.

Question 4: What are your views on the proposed model of incorporation?

12.  We agree with the Scottish Government’s general approach to directly incorporate text from the four treaties - ICESCR, CEDAW, CRPD, and CERD - into the Bill, removing anything that is reserved to the UK Parliament. This will help align Scotland with international human rights standards while remaining within devolved competence.

13.  We understand that the Scottish Government had considered and decided against incorporating the UN Convention against Torture and other forms of Cruel, Inhumane or Degrading Treatment (UNCAT). We urge the Government to reconsider, as we know many migrants, refugees, and people seeking asylum have suffered through torture and other inhumane and degrading treatment, and will need legal protection and access to remedies and rehabilitation. Although through the HRA 1998, ECHR Article 3 provides some protection against torture, inhumane and degrading treatment, UNCAT provides much more expansive provisions that will strengthen Scotland’s efforts to eradicate torture and other prohibited treatment and better protect victims of such treatment. In our legal casework, we have often seen the currently dearth of legal recognition of the right to rehabilitation for victims of torture. It is especially important given that in this current climate we cannot take the HRA 1998 and ECHR as granted, therefore it would be essential to ensure that protection against torture, inhumane, and degrading treatment are strongly incorporated into Scottish law.

14.  At minimum, we recommend that the Scottish Government incorporate Article 14 UNCAT that states: “Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible”, or adopt it a similar form to ensure that remedies and rehabilitation are available to survivors of torture, inhumane or degrading treatment.

15.  We recommend that the Scottish Government publish an accompanying paper outlining which rights and their enforcement fall within devolved competence, to ensure that all Scottish and UK stakeholders are clear about the extent and limits of application.

16.  We agree with the Scottish Government’s proposal to include a procedural duty on duty-bearers in relation to the aforementioned treaties (within the limits of reservation) which would apply for a period of time following the Bill passing. We believe a clear time limit must be set for this initial procedural duty and recommend that the time period should not exceed six months following the Bill’s passage to allow for appropriate time to prepare guidance and implementation, while ensuring that the people are able to enforce their rights within the Bill as soon as practicable.

17.  We agree with the Scottish Government’s proposal to include a compliance duty on duty-bearers, which should include the delivery of Minimum Core Obligations (MCOs) and demonstration of progressive realisation of the rights. However, we believe this should be made much stronger. Compliance duty is currently only proposed for ICESCR, but it is important that substantive rights across all treaties which are not included in ICESCR also come with a duty to comply. We strongly urge that the compliance duty apply to all treaties in the Bill.

18.  While the current proposal is for the duty to comply to apply to ‘public bodies (and, so far as possible, private actors) delivering devolved public functions’, we recommend an explicit and appropriately expansive definition of ‘private actors’, especially in light of the level of outsourcing of public functions to private companies and organisations in the immigration sector, including but not limited to managing immigration detention centres and removal procedures, technological surveillance on people on immigration bail and people seeking asylum, and asylum accommodation. It is therefore imperative that all private actors delivering public functions are subject to both the procedural duty and the compliance duty, not only ‘so far as possible’ but in all instances where those public functions are delivered by private actors.

19.  We agree that there should be an equality provision to ensure equal access to rights for everyone and a non-discrimination clause, along with an interpretative provision in the Bill that ensures all the rights can be interpreted in light of international human rights standards and the concept of human dignity. We recommend that it be made explicit in the Bill and in subsequent implementing regulations and guidance that the provision covers all rights-holders regardless of nationality or immigration status. We further recommend that the equality provision applies across all treaties in the Bill, not just to ICESCR and the proposed right to a healthy environment.

Question 5: Are there any rights in the equality treaties which you think should be treated differently? If so, please identify these, explain why and how this could be achieved?

20.  We welcome the Scottish Government’s consideration that some rights in the treaties may be considered to have standalone significance, and support the Government’s approach in taking forward targeted engagement with relevant stakeholders on this matter. We recommend that the Government conduct that engagement transparently and prioritise stakeholders who face the sharpest risk of human rights violations, including migrant communities.

21.  It would be essential for that consultation and engagement to be done in an anti-oppressive and non-discriminatory manner. We know from our experience engaging with clients and grassroots communities that migrants may not feel empowered to engage with processes like this consultation, due to potential distrust in and fear of government activities. For example, migrants often fear that their involvement may lead to their data being shared with the Home Office, potential immigration enforcement action, or that it may risk their immigration status and right to stay in the UK. It is therefore important that the proposed consultation and engagement takes into account the need to build trust in those communities to ensure their active and meaningful involvement. To that end, we recommend that any further consultation and engagement be made as accessible as possible, including the possibility of provision in multiple languages and offline outreach to migrant communities specifically.

Question 12: Given that the Human Rights Act 1998 is protected from modification under the Scotland Act 1998, how do you think we can best signal that the Human Rights Act (and civil and political rights) form a core pillar of human rights law in Scotland?

22.  We welcome the Scottish Government’s assessment on the potential incorporation of other treaties including the European Convention on Human Rights (ECHR) as effected through the Human Rights Act 1998 (HRA) and Scotland Act 1998. We understand the concerns around potential challenges on legislative competence should the Bill replicate the text of the HRA. However, we also agree that it is important to nonetheless showcase that the HRA - and through it, the ECHR - forms a core pillar of human rights law in Scotland, just as the other four treaties. We recommend that the Bill includes explicit mention of the HRA and ECHR, for example a provision that the duty-bearers, courts, and tribunals should take into account the HRA and ECHR along with the rights within this Bill in decision making.

Question 13: How can we best embed participation in the framework of the Bill?

23.  We believe that participation must be embedded in the framework of the Bill to ensure that the Bill effectively protects the rights of everyone, particularly those from more marginalised groups. To that end, we support recommendations from HRC Scotland, namely:

·         Participation should be explicitly designated as a core principle within the purpose clause of the bill. This underscores the fundamental importance of participation in achieving the bill's objectives.

·         The Human Rights Scheme should include a requirement for Scottish Ministers to consult with individuals and groups whose rights are most at risk. This consultation process should be robust and comprehensive, ensuring that their voices are heard and considered in decision-making.

·         Individuals and groups whose rights are most at risk should be engaged in defining Minimum Core Obligations.

·      The SHRC should have a clear duty to embed the participation of people whose rights are most at risk in all aspects of its work, especially concerning its monitoring role. This will strengthen the SHRC's effectiveness in promoting and protecting human rights.

·       Mirroring the UNCRC Bill, courts should be mandated to consider the views and perspectives of complainants when determining remedies.

·    Capacity building for public bodies should include effective approaches to participation of people whose rights are most at risk.

Question 14: What are your views on the proposed approach to including an equality provision to ensure everyone is able to access rights, in the Bill?

24.  We agree that there should be an equality provision. We know that more marginalised groups face additional discrimination and barriers to accessing and enforcing their rights. This is particularly true for migrants who may not be as aware of their rights under UK and Scottish law, or may not know how to enforce them. As with Question 1, we recommend that the Bill include an equality provision to ensure that the rights within the Bill apply to everyone regardless of nationality or immigration status.

Question 15: How do you think we should define the groups to be protected by the equality provision?

25.  We believe that the equality provision should include migrants. Rather than defining each group or sub-group – such as people seeking asylum, refugees, students, or migrant workers –  we recommend more inclusive framing that encompasses everyone ‘regardless of nationality or immigration status.’

Question 19: What is your view on who the duties in the Bill should apply to?

26.  The duties should apply to as many public bodies and private actors delivering public functions as possible within devolved competence. As with Question 4, we strongly urge an explicit and appropriately expansive definition of ‘public bodies’ and relevant ‘private actors’, especially in light of the level of outsourcing of public functions to private companies and organisations in the immigration sector, including but not limited to managing immigration detention centres and removal procedures, technological surveillance on people on immigration bail and people seeking asylum, and asylum accommodation. It is therefore imperative that all private actors delivering public functions are subject to the duties in the Bill, not only ‘so far as possible’ but in all instances where those public functions are delivered by private actors.

Question 20: What is your view on the proposed initial procedural duty intended to embed rights in decision making?

27.  We agree that there should be a procedural duty to embed rights in decision making. As with Question 4, we believe a clear time limit must be set for this initial procedural duty and recommend that the time period should not exceed six months following the Bill’s passage to allow for appropriate time to prepare guidance and implementation, while ensuring that the people are able to enforce their rights within the Bill as soon as practicable. As with Question 4 and 19, it is therefore imperative that all private actors delivering public functions are subject to the duties in the Bill, not only ‘so far as possible’ but in all instances where those public functions are delivered by private actors.

Question 21: What is your view on the proposed duty to comply?

28.  We agree that there should be a compliance duty, which should include the delivery of Minimum Core Obligations (MCOs) and demonstration of progressive realisation of the rights. This duty should apply to all substantive rights across all treaties. As with Question 4 and 19, it is therefore imperative that all private actors delivering public functions are subject to the duties in the Bill, not only ‘so far as possible’ but in all instances where those public functions are delivered by private actors.

Question 22: Do you think certain public authorities should be required to report on what actions they are planning to take, and what actions they have taken, to meet duties set out in the Bill?

29.  We agree that there should be a reporting requirement for all public bodies and relevant private actors delivering public functions. This requirement should be to periodically report on what actions they are planning to take, and what actions they have taken, to meet duties set out in the Bill.

30.  To ensure independent and effective monitoring, scrutiny, and accountability, duty-bearers should submit the reports to the Scottish Human Rights Commission. The reports should also be made available publicly so that individuals and civil society can further monitor and hold duty-bearers accountable to their duties in the Bill.

31.  We recommend that there is process for review and recommendations, where the Scottish Human Rights Commission – in consultation with people whose rights are affected – can issue binding recommendations and remedies.

32.  We further recommend that the Scottish Parliament introduce periodic review and scrutiny of key public authorities’ reports, such as through questions and evidence sessions in the Equalities, Human Rights and Civil Justice Committee.

Question 23: How could the proposed duty to report best align with existing reporting obligations on public authorities?

33.  The proposed reporting requirements should complement and strengthen other public body reporting requirements.

Question 24: What are your views on the need to demonstrate compliance with economic, social and cultural rights, as well as the right to a healthy environment, via MCOs and progressive realisation?

34.  We believe that duty-bearers must show that they demonstrate compliance with the rights within the Bill via MCOs and progressive realisation. As with Question 22, we believe that their progress and compliance should be reported and made available publicly to ensure independent and effective monitoring, scrutiny, and accountability.

35.  As with Question 22, we further recommend that the Scottish Parliament introduce periodic review and scrutiny of key public authorities’ compliance, such as through questions and evidence sessions in the Equalities, Human Rights and Civil Justice Committee.

Question 26: What is your view on the proposed duty to publish a Human Rights Scheme?

36.  We agree with the proposal to have a Human Rights Scheme, which will provide the framework to support duty-bearers and rights-bearers in understanding and implementing the rights within the Bill.

Question 27: What are your views on the most effective ways of supporting advocacy and/or advice services to help rights-holders realise their rights under the Bill[AD1] ?

37.  The success of this Bill will rely on the effective enforcement of people’s rights under the Bill. To that end, it is vital that there are accessible and well-resourced advice and advocacy services to support rights-holders understand and enforce their rights.

38.  We know from our experience working with migrant clients and grassroots communities that language barriers play a significant role in hindering someone’s ability to access information and advice. Therefore, we believe the Bill’s commencement and implementation should be accompanied by accessible information and awareness-raising campaign that is available in multiple languages.

39.  We also know that many migrant communities may be isolated due to being structurally and systemically excluded from public services. This means that information may not reach those communities. We strongly urge that information and awareness-raising campaign around the Bill should include offline outreach to migrant community groups, leveraging existing grassroots networks such as faith groups and community centres.

40.  We know that lack of legal aid is a significant barrier to access to justice. While eligibility among the population in Scotland is significantly higher than in England and Wales, we believe there can still be further improvements to ensure that legal aid is available, including to support on immigration matters where human rights are engaged.

41.  Finally, we believe that it is vital that advice and advocacy services are done in a trauma-informed way, particular when dealing with human rights violations that can be triggering or retraumatising for individuals. We strongly urge that in capacity building around this Bill, the Scottish Government integrate and fund trauma-informed training for all duty-bearers, as well as scrutiny bodies, particular those interfacing directly with individuals affected.

Question 28: What are your views on our proposals in relation to front-line complaints handling mechanisms of public bodies?

42.  We agree with the Scottish Government’s proposal to update the SPSO’s complaints handling procedures so they reflect the obligations in the Bill. We support the proposed changes including: developing a more specific human rights remit for the SPSO, removing the restriction on the SPSO whereby they are not able to receive oral complaints unless there are special circumstances, and explore investigation powers for the SPSO to look into areas even where no complaints have been formally made.

43.  We believe that it is imperative that as part of this process, the Scottish Government and SPSO consult meaningfully with individuals and groups who are at most risk of human rights violations, including migrants. Any changes to the SPSO’s remit, powers, or complaints procedures should redress particular challenges faced by migrant communities in submitting a complaint and engaging with the complaints procedure. We particularly note potential distrust or fear within some migrant communities about engaging in formal procedures, out of fear that their immigration status may be weaponised or jeopardised.

44.  We also recommend that these reforms should be accompanied by a robust awareness raising campaign, so that individuals are well informed of the complaints procedure. As with Question 5, we recommend that information around the complaints procedure be made as accessible as possible, including the possibility of provision in multiple languages and offline outreach to migrant communities.

45.  We support the proposal for the SPSO to be able to issue declarations of non-compliance when a public authority is found to have acted incompatibly with these updated procedures and with the rights and duties within the Bill more broadly. Bearing in mind the significant nature of human rights violations, this must be accompanied by stronger enforcement and remedy mechanisms. The SPSO can and should provide an effective out-of-court route to remedy, which is especially important given that migrant communities face additional challenges to enforcing their rights and getting justice through the courts due to structural and systemic barriers. To that effect, we recommend that SPSO’s declarations of non-compliance be binding, and accompanied by the power to issue similarly binding remedies so that individuals can get immediate and effective redress on their complaint and situation.

46.  We believe that the SPSO’s declarations of non-compliance should also be used to strengthen remedial provision through the courts. For example, the Scottish Government could include an explicit provision that courts and tribunals must take into account SPSO declarations of non-compliance when considering judicial reviews as well as any potential remedies.

Question 29: What are your views in relation to our proposed changes to the Scottish Public Services Ombudsman’s remit?

47.  As with Question 28, we agree with the proposed changes including: developing a more specific human rights remit for the SPSO, removing the restriction on the SPSO whereby they are not able to receive oral complaints unless there are special circumstances, and explore investigation powers for the SPSO to look into areas even where no complaints have been formally made.

48. However, we believe it will not be sufficient to simply add a human rights remit to the SPSO. This must be accompanied by robust training and resources to ensure that all SPSO staff are aware not only of the rights and duties within this Bill, but also how the SPSO can provide a functioning and effective complaints and enforcement mechanism. This must take into account and redress specific challenges faced by migrant communities, who may not feel they can or should engage with the SPSO.

49.  As with Question 28, we strongly urge that proposed changes to the SPSO’s remit are accompanied by the power to issue binding declarations of non-compliance and binding remedies so that the SPSO procedure can provide individuals with immediate and effective out-of-court remedies.

Question 30: What are your views on our proposals in relation to scrutiny bodies?

50.  We agree with adding human rights to the remit of scrutiny bodies. Like with Question 29, this must be accompanied by robust training and resources to ensure that the bodies are able to execute their roles effectively in ensuring full implementation of this Bill.  

51.  As with Questions 22 and 24, we recommend that the Scottish Parliament introduce periodic review of key public authorities’ compliance of the rights and duties within the Bill, and this should involve participation from scrutiny bodies, as well as individuals and groups whose rights are affected, including migrant communities.

Question 31: What are your views on additional powers for the Scottish Human Rights Commission?

52.  Noting the important role that the Scottish Human Rights Commission can and should play in advancing human rights in Scotland, we believe that their powers and resources should be strengthened so they can effectively hold public bodies and private actors delivering public functions to account on their human rights compliance.

53.  The SHRC general mandate should be expanded, matched with the training and resources needed to execute their powers fully and effectively.  We support HRC Scotland’s recommendations on additional SHRC powers, including:

·     Providing advice to individuals

·     Conducting investigations into specific human rights issues

·     Holding inquiries into the practices of individual public bodies

·     Monitoring and scrutinising public body reports on the implementation of rights outlined in the Bill and requiring public bodies to implement its recommendations

·     Compelling public bodies to provide necessary information for inquiries or investigations

·     Issuing binding guidance

 

Question 33: What are your views on our proposed approach to ‘standing’ under the Human Rights Bill?

54.  We agree with the Scottish Government’s proposed broader approach to ‘standing’ under this Bill by using the ‘sufficient interest’ test, rather than using the narrower ‘victim test’, so that individuals and civil society organisations with a sufficient interest in a case will be able to bring proceedings if the courts deem it appropriate in a particular instance. JCWI has significant experience in acting as a claimant to challenge government policy. Allowing those with ‘sufficient interest’ to bring claims can lead to important judicial consideration of contentious human rights questions that it may not be possible to bring before the court otherwise. In immigration law, hurdles to victims bringing claims include the many hurdles that most marginalised migrant communities face in accessing justice, as well as government bodies seeking to avoid judicial scrutiny by settling individual claims.

55.  It will be useful to clearly define the criteria for ‘sufficient interest’ so that there is clarity for courts, rights-holders, as well as organisations representing the interests of rights-holders in taking on a human rights case.

Question 34: What should the approach be to assessing ‘reasonableness’ under the Human Rights Bill?

56.  We support the Scottish Government’s general approach in seeking to lower the threshold than with the ‘Wednesbury test’, and assessing other thresholds such as the ‘proportionality test’. It is well established that the quality of decision making by the Home Office in immigration decisions is unacceptably poor[7]. Anxious scrutiny of decisions is therefore crucial both in vindicating individual claims, where a wrong decision can place lives at risk, but also to the wider role of public law in  raising civil service decision making standards. In determining the threshold, we urge the Scottish Government to prioritise the protection and promotion of human rights.

Question 35: Do you agree or disagree that existing judicial remedies are sufficient in delivering effective remedy for rights-holders?

57.  We agree that existing judicial remedies are generally insufficient in delivering effective remedies for rights-holders. While much of this has to do with limits of the legal system, it also has to do with structural and systemic barriers that many individuals face in accessing the courts.

58. We note the challenges faced in particular by migrants in accessing judicial remedies or indeed in accessing the courts in the first place, including but not limited to the lack of legal aid.

59.  Remedies to individuals facing immigration problems are frequently delayed to an extent that is deeply harmful to the individuals involved. The complexity[LS2]  of the law is such that individuals who have not been able to access legal representation will struggle to respond to the procedural and substantive hurdles faced when making their case.

60.  We also  urge the Scottish Government to consider and expand potentials for out-of-court remedies so that individuals are able to access and enforce their rights through multiple means[LS3] .

61.  Any new remedies or reforms of existing ones must be accompanied by structural and systemic reforms to enable access to justice for all, including in immigration cases where human rights are engaged.

Question 36: If you do not agree that existing judicial remedies are sufficient in delivering effective remedy for rights-holders, what additional remedies would help to do this?

62.  As with Question 35, we note the challenges faced in particular by migrants in accessing judicial remedies or indeed in accessing the courts in the first place, including but not limited to the lack of legal aid. We therefore urge the Scottish Government to consider and expand potentials for out-of-court remedies so that individuals are able to access and enforce their rights through multiple means, including but not limited to strengthening the powers of the SPSO to issue binding recommendations and remedies.

63. On developing additional remedies, we urge the Scottish Government to conduct further meaningful consultation with groups whose rights are most at risk, including migrant communities, so that they best protect and promote the human rights of those groups.

64.  Any new remedies or reforms of existing ones must be accompanied by structural and systemic reforms to enable access to justice for all, including in immigration cases where human rights are engaged.

Question 37: What are your views on the most appropriate remedy in the event a court finds legislation is incompatible with the rights in the Bill?

65.  We believe that should a court find legislation incompatible with the rights in the Bill, the most appropriate remedy should be that the court has the authority to ‘strike down’ the offending legislation. While we recognise that we do not take the power to strike down legislation lightly, it is important to emphasise the fundamental nature of human rights and therefore the significant nature of any violation. Any legislation that has been found incompatible with human rights must be remedied immediately to prevent further rights violations.

66. Strike-down powers will ensure an appropriate and effective level of ‘check and balance’ between the courts and Scottish Parliament, and will help ensure that all legislation passed by the Scottish Parliament comply with human rights.

Question 38: What are your views on our proposals for bringing the legislation into force?

67.  We agree that there should be a sunrise clause that specifies when the procedural duty and compliance duty come into effect. We recommend that a reasonable timeline for commencement and for the procedural duty to go into effect to be within six months after receiving Royal Assent and the additional duty to comply within two years. This will provide appropriate time to prepare guidance and implementation, while ensuring that the people are able to enforce their rights within the Bill as soon as practicable.

68.  As we have outlined at various points in this consultation, a commencement and implementation plan should be accompanied by robust trainings, resourcing, and awareness raising amongst duty-bearers and rights-holders.

Question 39: What are your views on our proposals to establish Minimum Core Obligations through a participatory process?

69.  We agree that it is essential that MCOs are developed through a participatory process, especially with people whose rights are most at risk, including migrant communities.

Question 40: What are your views on our proposals for a Human Rights Scheme?

70.  We agree with the proposal to have a Human Rights Scheme. Scottish Ministers should consult with people whose rights are most at risk when developing the Scheme, including migrant communities.

Question 41: What are your views on enhancing the assessment and scrutiny of legislation introduced to the Scottish Parliament in relation to the rights in the Human Rights Bill?

71.  We agree with the Scottish Government proposal to introduce statements of compatibility for legislation introduced to the Scottish Parliament that engages the rights enshrined in the Bill. We note that a similar duty in Section 19 HRA 1998 have proven to be a key mechanism through which we can hold Ministers to account on ensuring proposed legislation has taken into account human rights. We recommend that the statement of compatibility should also include evidence to demonstrate that meaningful consultation had taken place with groups whose rights are engaged by the proposed legislation, to ensure that their rights have been properly taken into account.

72.  We support a Human Rights Impact Assessment for any legislation laid before Scottish Parliament.

Question 42: How can the Scottish Government and partners effectively build capacity across the public sector to ensure the rights in the Bill are delivered?

73.  The Bill will only have a positive impact in protecting the rights of individuals through effective implementation, which relies on capacity building across all public sector, as well as among rights-holders. This should include trainings as well as adequate resources to ensure that public bodies, private actors delivering public functions, scrutiny bodies, civil society stakeholders, and individual rights-bearers understand the rights and duties within the Bill.

74.  We support the publication of statutory and non-statutory guidance. This should be developed through meaningful consultation with groups whose rights are most at risk, including migrant communities.

Question 43: How can the Scottish Government and partners provide effective information and raise awareness of the rights for rights-holders?

75.  It is imperative that awareness raising among rights-holders is a key part of this process. We know that many migrants may not be aware of their legal rights under UK or Scottish law, so ensuring that they are best informed and equipped to understand and enforce their rights will be vital.

76.  All resources to support the implementation of the Bill and to build capacity on the Bill should be made as accessible as possible, including through potential provision in multiple languages and through offline outreach to migrant communities.

77.  In developing these resources and plans for awareness-raising, the Government and partners should conduct meaningful consultation with groups of people whose rights are most at risk, including migrant communities, to better understand any access needs or ways to present information that will be most effective for those groups.

Question 44: What are your views on monitoring and reporting?

78.  Monitoring and reporting will be essential to ensure that public bodies and private actors delivering public functions fully comply with the rights and duties in this Bill. We re-emphasise the need to make sure that monitoring and reporting are done periodically, that the materials are available publicly to allow for maximum public scrutiny, and that scrutiny bodies including the SHRC are given the powers and resources to provide binding recommendations and remedial actions to ensure that people’s rights are protected.