This briefing paper is one of a series written by the Academic Advisory Panel to the National Taskforce for Human Rights Leadership, which was established in 2019 in response to the recommendations made in December 2018 by the First Minister’s Advisory Group on Human Rights. The aim of the briefing papers is to consider some of the legal complexities involved in translating international human rights treaties into domestic legislation. For further information, please go to: https://www.gov.scot/groups/national-taskforce-forhuman-rights-leadership/
The minimum core of each right should be clarified for the public and duty bearers, including all agents of the government involved directly and indirectly in the delivery of any ESC rights. The minimum core for each right discussed must be underpinned by a multifaceted approach to accessibility on a non-discriminatory basis.
The range of state agents responsible for protecting and fulfilling each right should be clarified in guidance.
Comprehensive, consultative and participative impact assessments should accompany a new ASP in addition to secondary legislation and policy developed to further implement the initial ASP. These should be followed up with monitoring to ensure progressive realisation and linked to developing international understandings of the rights with direct reference to relevant treaty bodies or other monitoring organs that oversee implementation of ESC rights at the international and regional levels.
All ESC rights are premised on the principle of non-discrimination. This entails those considerations recognised through equalities law but, more fundamentally, demands positive measures to ensure the enjoyment of all human rights by persons experiencing a range of different vulnerabilities. The intersectional nature of distinct vulnerabilities should be considered at every step of development and implementation of new law and policy.
Impact assessments, whether under the public sector equalities duty or in relation to children, should be a participative process, transparent and the conclusions accessible across the broad spectrum of stakeholders. Impact assessments should continue in the context of monitoring all legislation in order to ensure non-regression and the progressive realisation of individual rights.
A new ASP should include a duty to ensure human rights budgeting that outlines Scottish Parliament and Scottish Government’s methods of prioritising legalised rights through allocation of maximum available resources. The budgetary processes must be transparent and accessible. Budgeting priorities must be linked to freely available research and relevant impact assessments.
A new ASP must be accompanied by extensive educational and publicity campaigns in a variety of accessible formats to account for variable vulnerabilities, cultural nuance and education levels. Materials should be tailored to both rights-holders and duty-bearers.