Human rights and legislative competence in Scotland: the UNCRC Bill - what it means for public and private sector bodies

Introduction

On 16 March 2021, the United Nations Convention of the Rights of the Child (UNCRC) (Incorporation) (Scotland) Bill was unanimously passed by the Scottish Parliament “(UNCRC Bill)”. The UK ratified the UNCRC in 1991, however, the treaty has not been directly incorporated into UK law.

In line with the Scottish Government’s policy aim of creating an “inclusive Scotland that protects, respects and fulfils internationally recognised human rights”[1], the UNRC Bill seeks to incorporate a raft of substantive rights for children into domestic law. These cover a wide range of policy areas including health, education and housing. The bill is not merely a statement of rights though; it has real teeth. If passed, individuals and organisations acting on behalf of children would be in a position to take legal action for breaches of these rights and seek remedies including interdict (injunctive relief) and damages.

Under the Scotland Act 1998, the law officers of the UK and Scottish Governments may refer any bill passed by the Scottish Parliament to the UK Supreme Court for a ruling on legislative competence. In April 2021, the Attorney General and the Advocate General, both UK Government law officers, made a reference in respect of this bill and another bill[2]. The reference will be heard by the UK Supreme Court on 28-29 June 2021[3].

In this article we set out an overview of the UNCRC Bill, consider what types of claims it may give rise to if it is found to be within legislative competence, and take a brief look at the broader picture on the human rights law framework in Scotland and how that may develop.

The UNCRC Bill

The UNCRC Bill takes a “maximalist approach” to the United Nations Convention of the Rights of the Child. The convention has been fully incorporated into the bill subject to certain amendments designed to address devolved competence, with the aim of providing the widest protection possible.

The substantive rights in the convention are wide-ranging. These include health, education and economic rights, equality and non-discrimination rights, freedom of expression, thought, religion and assembly rights, protection from exploitation and abuse, privacy rights, and rights to play and to participate in cultural and artistic life.

The bill sets out a framework for how these rights are to be vindicated which provides that:

• Public authorities[4] are to act compatibly with the UNCRC;
• Failures to do so will give rise to a right to raise proceedings;
• Such proceedings may be taken forward by or intervened in by the Commissioner for Children and Young People in Scotland and the Scottish Human Rights Commission;
• In relation to legislation which offends against the UNCRC, the court may make compatibility-related declarators in relation to both pre-existing and proposed legislation; and
• A court or tribunal with power to award damages may also award damages to claimants if this is necessary to provide “just satisfaction”.

As will be clear, the breadth of this framework is such that it may give rise to a wide range of possible claims and challenges. These might include claims in respect of education and health provision by local authorities and health boards, claims in respect of housing and social security benefits, challenges of school policies in relation to curriculum, pupil behaviour and non-discrimination, and challenges of planning decisions.

The grounds for challenging legislative competence

Shortly after the UNCRC Bill was passed by the Scottish Parliament, the Secretary of State for Scotland issued a letter to the Deputy First Minister indicating that, while the UK Government welcomed the Scottish Government's support for children's rights and respected the Scottish Parliament's right to legislate in this area, there were doubts over the legislative competence of specific provisions. In particular, concern was raised over whether the bill:

• Places obligations on UK Government ministers in reserved areas; and
• Would affect the UK Parliament’s power to make laws for Scotland, which would be contrary to the devolution settlement.

The reference that has been made to the UK Supreme Court, focuses on two specific legal issues:

1. Whether the bill, in bestowing certain powers on the Scottish courts to scrutinise and interpret UK legislation, modifies the terms of the Scotland Act 1998; and
2. What the proper application of section 101(2) of the Scotland Act 1998 is. Section 101(2) states that if a provision of an Act of the Scottish Parliament could be read as being outside legislative competence, that provision is to be “read as narrowly as is required for it to be within competence, if such a reading is possible, and is to have effect accordingly.”

Other recent developments on human rights in Scotland

The UNCRC Bill is only the first of a number of changes that are envisaged to the human rights law framework in Scotland. In 2019, the Scottish Government set up a government-led taskforce, the National Taskforce for Human Rights Leadership, to make policy recommendations to inform development of a new statutory human rights framework for Scotland.

The taskforce published its report in March 2021, setting out detailed policy objectives and recommendations. The policy objectives include providing for:

• Enjoyment of economic, social and cultural rights by all;
• Enjoyment by all of a healthy environment;
• Full and equal enjoyment of rights by women, minority ethnic people, disabled people, older people, and LGBTI people; and
• Furthering equality of outcomes for those who require it most, including protected characteristics groups (whilst recognising the reserved status of ‘equal opportunities’)

The detailed recommendations include incorporation of four other international treaties[5], establishment of a separate right to a healthy environment, and inclusion of an equality clause which would “align with the Equality Act 2010”.

The report further recommends that, in order to guide courts in consideration of any cases coming before them, any legislation should clearly indicate, possibly in a “purpose clause”, that it is intended to give “maximum possible effect to human rights and recognise that human dignity is the value which underpins all human rights.”

These key recommendations are supported by a number of other recommendations such as provision of additional powers to the Scottish Human Rights Commission, imposing a duty on the Scottish Ministers to publish a Human Rights Scheme with provision for reporting on progress and accountability, capacity building within public authorities, and a range of measures on access to justice and legal remedies.

Another key policy objective that will be of interest to businesses providing outsourced services to government is policy objective 16, “Clarity on intended application to all public functions”. This appears to envisage a broader interpretation of duty-bearers than is currently recognised under the Human Rights Act 1998. The report states in this regard that:

“The policy objective is to ensure that the framework applies to private actors when they are exercising functions of a public nature. Clarity on this is considered necessary in light of the experience to date of judicial interpretation of the definition of performing of a public function in relation to the Human Rights Act and the expansion in privately provided public services in all areas of public life… Rights-holders should be able to have confidence and clarity that, regardless of who carries out the public function, their human rights fully apply.”

Comment

The vision set out in the National Taskforce for Human Rights Leadership’s report is ambitious in scope, envisaging significant enhancement of the human rights law framework in Scotland. The “maximalist” approach that is envisaged in relation to the enactment, implementation and interpretation of the proposed legislation will be likely to significantly broaden the scope for legal challenges and claims based on human rights grounds in Scotland, with implications for both public and private sector organisations.

The UK Supreme Court ruling will be significant in determining to what extent these ambitions will be capable of being realised under current constitutional arrangements.

[1] https://www.gov.scot/policies/human-rights/

[2] The second bill is the European Charter of Local Self-Government (Incorporation) (Scotland) Bill.

[3] The Counsel General for Wales has also given notice of his intention to participate in the references as a relevant UK law officer.

[4] Insofar as this is within the Scottish Government’s legislative competence.

[5] International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the Convention on the Elimination of All Forms of Racial Discrimination (CERD), and the Convention on the Rights of Persons with Disabilities (CRPD).