Centre for Public Policy

Blog by Nicole Busby, Professor of Human Rights, Equality and Justice, Centre for Public Policy Senior Fellow

The Scottish Government’s newly published Programme for Government 2024-25 (PfG) does not include the long-awaited Human Rights Bill. This might not have come as a great surprise to those working in the field given the cooling of the rhetoric surrounding human rights in recent months. Nonetheless this omission will be deeply disappointing for many, not least Scotland’s civil society organisations who have committed valuable and often scarce resources in preparing for legislative action over many years. 

The promise of what could be achieved by the incorporation of a suite of international human rights treaties, namely the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention on the Rights of Persons with Disabilities, the Convention on the Elimination of All Forms of Discrimination against Women and the International Convention on the Elimination of All Forms of Racial Discrimination, was always somewhat greater than the reality, but that is not really the point.

The boldness and ambition inherent in a small, devolved nation’s pledge to ensure that public service provision aligns with the proactive approach of international law enforceable by national courts, was still a dream worth dreaming. This big picture vision for Scotland was widely seen as a way of projecting leadership in human rights across a landscape marked by political hostility to their very existence. Under Conservative rule at Westminster, leaving the European Convention on Human Rights and the jurisdiction of the Strasbourg Court was consistently on the agenda.

How ironic then that, with the arrival of a more human-rights friendly administration at Westminster comes the shelving, at least in the current parliamentary session, of a Scottish Bill that would have given economic, social and cultural rights greater visibility alongside their civil and political counterparts which are already protected in UK law by the Human Rights Act 1998.

The First Minister’s stated commitment to eradicate child poverty seems at odds with the decision not to move forward on incorporation, particularly when the root causes of such poverty are considered. The interrelationship between gender and poverty and resultant effects on children’s lives are well-documented and, when the intersectional impacts of disability and race are added to the mix, it is apparent that focusing on a simplified narrative in this context is doomed to fail. The incorporation of international human rights would not provide a panacea for the manifold inequalities experienced across Scottish society. Legislative action would, however, mark a positive and significant step towards a joined-up process for public services to which the Scottish Ministers and all those responsible for their delivery could be held to account.

In stepping back on its commitment to legislate, the PfG does not completely close the door on future human rights development. In its Priority 4 (of 4), ‘Ensuring High Quality and Sustainable Public Services’, it states: ‘We remain committed to legislation to incorporate international treaties into Scots law, developing proposals and engaging with stakeholders’. This includes commitment to consulting on and publishing ‘a framework to embed equality and human rights across the Scottish Government and the wider public sector. This framework will include an action plan and toolkit, setting out practical steps to progress this ambition. This will be complemented by action to enhance the effectiveness of the Public Sector Equality Duty’. However, this does not require treaty incorporation and should already be the aim of central government.  So, why has the Government taken the decision to renege on its promise of a Bill?

According to a letter sent to the Convenor of the Parliament’s Equalities, Human Rights and Civil Justice Committee by the Cabinet Secretary for Social Justice, Shirley-Anne Somerville, the Government’s rationale for not doing what it has been promising since 2018 appears to be based on two conflicting views concerning the practical steps that need to be taken to convert a proposal for legislation into a draft Bill. Firstly, the tempering of the commitment to full incorporation can be traced back to the Supreme Court’s judgment in the Reference by the Attorney General and the Advocate General for Scotland in relation to the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill in which it was held that several sections of the original Bill, which was passed unanimously in 2021, were outwith the Scottish Parliament’s legislative competence. This resulted in a heavily diluted Act which was passed in 2023, this time without challenge.

While the Conservative Government remained in power at Westminster, the threat of legal challenge over any attempt by Scotland to march to a different beat seemed ever present with the use of section 35 of the Scotland Act to block the enactment of the Gender Recognition Reform (Scotland) Bill serving as a further warning. However, following July’s election and an incoming Labour Government led by a prominent human rights lawyer, the potential for a more progressive approach to human rights in Scotland – and elsewhere in the UK – seemed likely. Stepping back from previous commitments has also meant losing a valuable opportunity to lead

The second explanation for the climbdown is every bit as perplexing and derives from stakeholders’ concerns that the proposed approach to incorporation did not go far enough in protecting disabled people, women and those who experience racism. It is true that the views expressed in many of the responses to the Scottish Government’s public consultation on its legislative proposals in 2023 revealed disappointment in the perceived weakness of approach.

Having raised expectations across civil society, the Government’s decision not to bring forward legislation in the current Parliamentary session on the grounds that its current plans are not ambitious enough seems unsatisfactory. Given the willingness within the sector to engage, as well as cross-party Parliamentary support for human rights progression, why not start the legislative process by building on what is deemed possible at this stage?

In summary, the Government asserts that the Supreme Court’s judgment in the UNCRC case has made it too hard to bring forward effective legislation whilst at the same time acknowledging that its current proposals do not go far enough. This apparent contradiction indicates a wooliness in its thinking as well as a lack of the dynamic commitment to progress that drove its original vision of decisive leadership in human rights law.  

Author

Nicole Busby, Professor of Human Rights, Equality and Justice

Nicole Busby was a member of a member of the First Minister’s Advisory Group on Human Rights Leadership (2018-2019) and served as Chair of the Academic Advisory Panel of the National Taskforce for Human Rights Leadership (2019-2021).

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New UofG Spotlight episode on the Programme for Government

The latest episode of the UofG Spotlight podcast looks at the new Programme for Government.

Professor Nicola McEwen and Professor Kezia Dugdale from the Centre for Public Policy speak to the Rt Hon. Ken Macintosh, former Presiding Officer of the Scottish Parliament, and Liz Lloyd, former Strategic Adviser and Chief of Staff to the First Minister of Scotland.

They discuss the First Minister’s Programme for Government announcement, what it means about the direction of this government and the fiscal challenges it faces. As two very experienced practitioners in this political event, they also dive into the process involved in drafting the Programme for Government and the Parliament's ability to scrutinise its content.

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First published: 9 September 2024