Academic Advisory Panel to the National Taskforce for Human Rights Leadership: The Meaning and Content of Duties to be Considered for Inclusion in the Bill

Citation

Boyle K (2021) Academic Advisory Panel to the National Taskforce for Human Rights Leadership: The Meaning and Content of Duties to be Considered for Inclusion in the Bill. National Task Force on Human Rights Leadership. Scottish Government. https://www.gov.scot/binaries/content/documents/govscot/publications/factsheet/2021/01/national-taskforce-for-human-rights-leadership-academic-advisory-panel-papers/documents/aap-paper-katie-boyle---meaning-and-content-of-duties/aap-paper-katie-boyle---meaning-and-content-of-duties/govscot%3Adocument/AAP%2BPaper%2B-%2BNationalTaskforce%2B-%2BKatie%2BBoyle%2B-%2BMeaning%2Band%2BContent%2Bof%2BDuties%2B-%2BJuly%2B2020%2B%25281%2529.pdf

Abstract
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. 1. Executive Summary: • This briefing paper explains the different types of duties envisaged as part of the new human rights framework (Recommendation 1) proposed by the First Ministers Advisory Group on Human Rights Leadership (FMAG) and endorsed in the terms of reference of the National Task Force (para.7c-d and para.11). • Duties can be the link between legislation on paper and transformative change in the real world. It is important to reflect how duties are defined in the Bill as some duties are more transformative in nature than others. • The duty to have due regard and the duty to comply are examples of duties found in other domestic legislation in the UK. The paper draws on these domestic examples including the public sector equality duty and duties in the Scotland Act 1998 and the Human Rights Act 1998. The duty to have due regard can help to implement and integrate human rights but does not amount to incorporation and only carries very limited procedural protection for the rights holder. • The duty to comply is a stronger duty and offers a more outcome-orientated right to the right holder. It facilitates incorporation of international rights into the domestic framework by enabling access to a remedy for the violation of a right. However, its reach is dependent on what rights and obligations are contained more broadly in the Bill or in subsequent legislation and who the duty bearers are. For example, should it extend to the legislature, executive, public and private bodies and the court? The paper concludes that it is better to expand the reach of the duty in so far as possible and discussion includes whether it is within the competence of the Scottish Parliament to bind itself. • Progressive Realisation embodies the UK’s international obligation to give effect to the International Covenant on Economic, Social and Cultural Rights. It is constituted of multiple sub-duties including the duty to take steps to PR; the duty to respect, protect and fulfil economic, social and cultural (ESC) rights; the duty to ensure non-discrimination in the enjoyment of rights; the duty to generate and allocate the maximum available resources; the duty to ensure non-regression on rights and the duty to provide an effective remedy for a violation. Each of these duties is discussed in turn in relation to both their international content and how they could be deployed domestically under the Bill. • Access to justice and remedies for violations of the duties set out in the Bill remains an area worthy of further attention. This is particularly important when engaging with economic, social, cultural and environmental (ESCE) rights where court adjudication will require to adapt to collective litigation that can address systemic issues through the deployment of structural remedies. It is beyond the remit of the paper to discuss this here but I have signposted where relevant.