The 2024-25 Programme for Government didn’t include the Scottish Government’s flagship Human Rights Bill. Like the United Nations Convention on the Rights of the Child (Incorporation) Scotland Act 2024, the aim of this Bill was to bring international human rights treaties into Scots law and make them enforceable.
This blog summarises the background to that decision, what the reaction has been and what might happen next.
Some background
In the UK, individuals can’t normally rely on international treaties to enforce their rights. The treaty rights need to be brought into national law first (known as “incorporation”).
The Labour Government’s Human Rights Act did that for the civil and political rights in the European Convention of Human Rights back in 1998 under the motto of “bringing rights home”.
The big idea is that providing minimum legal standards linked to UN treaties in areas such as housing, education, health, standards of living etc. will increase social justice and provide a framework for policy-making in Scotland. (For more details, see the SPICe briefing ‘Economic, social and cultural rights – some frequently asked questions’).
The proposals were strongly backed by the former First Minister, Nicola Sturgeon MSP, who argued that they were also needed to counter the risks created by Brexit and the then UK Government’s proposals to repeal the Human Rights Act.
She set up the First Minister’s Advisory Group on Human Rights Leadership in 2017. Following a number of events and discussions with interested parties, it recommended Scottish legislation to incorporate ESC rights in UN treaties, as well as environmental rights and “specific rights for women, children, persons with disability, older persons, LGBTI and on race.”
The Scottish Government’s National Taskforce for Human Rights Leadership, chaired by Professor Alan Miller and the then Cabinet Secretary for Social Security and Older People, Shirley-Anne Somerville MSP, made similar recommendations in March 2021. Scottish legislation therefore seemed on the cards.
A fly in the ointment – the Supreme Court’s UNCRC Bill judgment
One potential fly in the ointment though was the UK Supreme Court’s October 2021 judgment on the United Nations Convention of the Rights of the Child Bill.
The Bill incorporated the UNCRC (the UN’s children’s rights treaty) into the law in Scotland and gave the courts powers to decide if legislation (including UK legislation in devolved areas) was compatible with it.
The UK Government challenged this approach in the courts. The Supreme Court found that, although incorporation is permitted under the devolution settlement, the Scottish Parliament doesn’t have the power to require UK Acts of Parliament to comply with international obligations in this way, even where the subject matter is devolved.
As a result, the Scottish Government was forced to narrow the scope of the UNCRC Bill to Acts of the Scottish Parliament. This in turn raised questions about how the Human Rights Bill would deal with devolved policy areas governed by existing UK Acts of Parliament (e.g. certain aspects of housing policy).
The decision not to introduce the Human Rights Bill
Notwithstanding the complexities caused by the Supreme Court judgment, the Human Rights Bill was part of the 2023-24 Programme for Government as presented by the previous First Minister, Humza Yousaf MSP, and was set to be introduced before summer recess 2024.
However, with Humza Yousaf MSP resigning as First Minister in May 2024 and John Swinney MSP taking over, this never happened. The Bill also wasn’t included in the 2024-25 Programme for Government in September 2024. Instead, that document simply stated that “work will … continue to develop proposals for Human Rights”.
In part, this change of plan could perhaps be argued to be a normal part of politics. Different First Ministers have different priorities and clearly the focus of the 2024-25 Programme for Government differs from previous ones, as does the political situation in which the Scottish Government finds itself following the recent UK general election and the ending of the SNP’s coalition with the Greens.
However, unsurprisingly, stakeholders who had invested almost ten years’ work in the project were deeply disappointed at the lack of any legislation and the Scottish Government’s abrupt change of plan.
For example, Human Rights Consortium sent a letter to the First Minister on behalf of over 100 organisations which argued that the decision was “highly regrettable” and a “dismissal by Scottish Government of the very real and pressing human rights issues facing people in Scotland.” Similarly, the Chair of the Scottish Human Rights Commission, Professor Angela O’Hagan, stated that:
Abandoning this Bill denies people access to justice to ensure their human rights are fully realised, from a safe home to decent food and good health and social care.
For its part, the Scottish Government explained in a letter from the Cabinet Secretary for Social Justice, Shirley-Anne Somerville MSP, to the Convener of the Equalities, Human Rights and Civil Justice Committee, Karen Adam MSP, that it was still committed to taking forward the Human Rights Bill, but not until the next Parliamentary session. Reasons for the delay included:
- The Supreme Court judgment – the letter argues that this limits “how far a new Bill can go in practice to advance rights realisation through treaty incorporation”
- The need to consider stakeholder concerns that the incorporation of equalities treaties does not go far enough (the main problem is how far public bodies can be required to comply with these treaties given that Equality Act is reserved to the UK Parliament)
- The opportunity to engage on these matters with the new Labour government in Westminster.
These issues were examined in more depth by the Equalities, Human Rights and Civil Justice Committee in evidence sessions with stakeholders and academics on 1 October 2024 and with the Cabinet Secretary for Social Justice on 8 October 2024. During these sessions, stakeholders argued that the government should push ahead with the Bill and try to solve the problems caused by the Supreme Court judgment at a later date. Certain academics shared this view. However, others were of the view that pushing ahead wasn’t viable. For example, Dr Andrew Tickell argued that going ahead with legislation wasn’t “realistic” and that what was actually needed was engagement with the UK Government to solve what he called the “incoherent and impractical” approach to devolution taken by the Supreme Court.
What happens next?
The Scottish Government has ruled out legislation in this Parliamentary session. Legislation in the next Parliamentary session can’t be guaranteed as it will be dependent on the result of the 2026 Scottish Parliament election and the government which is formed.
The Cabinet Secretary for Social Justice, Shirley-Anne Somerville MSP, informed the Equalities, Human Rights and Civil Justice Committee on 8 October 2024 that the Scottish Government wants to continue working with stakeholders on its plans, and that it has written to the UK Government seeking dialogue on the Supreme Court judgment. She also stressed that work on human rights will continue, noting that:
we will not have 18 months of inaction, but 18 months of action that is different from what stakeholders may have wished for.
At the moment though, there are probably more questions than answers about the Scottish Government’s approach.
For example, it remains to be seen how the UK Government will respond to suggestions that it should amend the devolution settlement and, in effect, overturn the Supreme Court’s UNCRC Bill judgment.
It also remains to be seen how stakeholders and civil society will respond to the Scottish Government’s desire for continued collaboration. For example, one body, Making Rights Real, has already pulled out of engaging with the Scottish Government due to “broken promises”. Other bodies might also decide that there is more to be won by increasing their scrutiny of the Scottish Government’s current human rights policies rather than focusing on a Bill which may or may not see the light of day.
More generally, there is also a question as to how the Scottish Government’s forthcoming budget will treat human rights, particularly in relation to the 2024-25 Programme for Government’s aim to eradicate child poverty.
Consequently, although the Human Rights Bill will no longer be introduced, many areas for human rights scrutiny still exist. Both civil society and the Scottish Parliament will, therefore, need to carefully monitor the Scottish Government’s promised action as we move to the end of Session 6.
Angus Evans and Nicki Georghiou
Senior Researchers, SPICe