Equalities, Human Rights and Civil Justice Committee

Meeting date: Tuesday, February 21, 2023

Official Report 642KB pdf

---

Minimum Core Obligations

Welcome back, everyone. The next item on our agenda is to take evidence on minimum core obligations from a human rights budgeting perspective.

I welcome, from the Scottish Human Rights Commission, Dr Alison Hosie, research officer, and Luis Felipe Yanes, legal policy development officer. Alison is the commission’s lead on human rights budgeting, and Luis leads on economic, social and cultural rights. Alongside them is Rob Watts—welcome back, Rob—who is an economist at the Fraser of Allander Institute. You are all very welcome. Thank you for joining us.

I refer members to papers 3 and 4 in our pack, and I invite our witnesses to make some opening remarks. I believe that Luis will kick things off.

Thank you. We have different areas of expertise, so, at some point—I apologise for the informality—I might say, “Ask Ali,” or she might say, “Ask Luis.”

I thank the committee for providing us with the opportunity to discuss minimum core obligations. We are excited to be able to do so, as it is a really important area of economic, social and cultural rights and one that is often not carefully considered and understood.

It is useful to start with a general understanding of what minimum core obligations are. Under international legal standards, as developed by the United Nations Committee on Economic, Social and Cultural Rights, which is the treaty-monitoring body in the UN that monitors compliance with the covenant that was ratified by the United Kingdom, minimum core obligations are those obligations that are essential and of such importance that, if they are not complied with, the purpose of the covenant will not be met. They have to be complied with—they are not subject to progressive realisation or available resources.

I will provide the committee with a very simple definition: minimum core obligations are the obligations relating to economic, social and cultural rights that a country needs to comply with at all times and in all circumstances, regardless of the resources or the overall conditions of a country. If minimum core obligations are not met, a country is not complying with its international legal obligations.

We can understand minimum core obligations as being in two categories. One category relates to results. The obligations in that category are often viewed as obligations of entitlement. For example, in relation to food or education, they mean having the right to have access to essential food stock or the right to have access to the most basic forms of free primary education.

The other category is obligations of conduct. We are no longer talking about entitlements; we are talking about the way that the state has to behave and act. Using health as an example, we are not talking about access to a specific medical service; we are talking about an obligation—a minimum core obligation—to set forth a public health plan. That is an obligation of conduct and not necessarily an obligation of result.

It is important to raise the fact that, as of now, since the UK ratified the International Covenant on Economic, Social and Cultural Rights in 1976, minimum core obligations should be met in Scotland today, and duty bearers should be working tirelessly to ensure that they are complied with. The process of incorporation, which I am sure that we will talk about today, reaffirms the legal commitments and ensures that there can be legal accountability when minimum core obligations are not met, but that does not mean that, as of now, given the ratification of the covenant, they should not be met at present.

I also want to make sure that we understand that minimum core obligations are part of a set of four really important, inherently intertwined and interdependent obligations that are attached to economic, social and cultural rights. ESC rights are subject to progressive realisation, which means that they have to be improved over time, and efforts need to be made to ensure that the realisation of rights can happen over time, but they are dependent on the maximum available resources. Therefore, it is necessary to ensure that proper funding is allocated, mobilised and spent in such a way as to ensure that you can progress rights. There is a lot of overlap with why that is really relevant to the work that Ali and the commission have done in relation to human rights budgeting.

The third component is those obligations that are of immediate consequence, which include the minimum core obligations that we are talking about today.

The final component, which it is really important to mention, is non-retrogression, which involves ensuring that the level of enjoyment of the right is not regressed in any way. If it is regressed, there is a very strict test of the reasons for that—reasons have to be provided.

I will conclude by sharing our recent publication, “Building a new human rights framework for Scotland”, which gives our overall analysis of the key legal features for the new human rights bill. In it, we explain what the new human rights bill needs to guarantee to ensure that it is maximalist, internationalist, multi-institutional and world leading, as the national task force indicated it should be. Our analysis is mostly based on international legal standards and best comparative examples across the world.

It is useful to mention the four essential elements that we have said need to be guaranteed in relation to minimum core obligations. First, we recommend that an obligation should be placed on relevant duty bearers to ensure that the minimum essential levels of economic, social, cultural and environmental rights for people to be able to live a dignified life are always met.

Secondly, those essential levels must be defined in further secondary legislation after a participatory process has taken place, which includes taking careful consideration of those with lived experience, technical expertise and policy makers.

Thirdly, the secondary legislation should be reviewed every 10 years to ensure that those essential levels are a reflection of the technological, societal, financial and environmental realities of Scotland. The process should continue to ensure that the views of those with lived experience, technical expertise and policy makers provide the basis for any changes.

Fourthly, the bill should include an impossibility test that allows duty bearers to avoid responsibility only if they are able to prove that, in spite of all their efforts, they could not comply with achieving their minimum core obligations.

We look forward to discussing minimum core obligations today. In future, we will be happy to talk more about what we consider to be the key and essential legal features from a human rights perspective for the human rights bill.

Thank you very much, Luis.

Ali and Rob, are you happy for us to move straight to questions, or would you like to say a few opening words?

I will take just two minutes to make some opening remarks.

Go for it.

It is great to be back. I am an economist at the Fraser of Allander Institute, so I do not have a background in human rights and law. For some of the more technical legal questions, I might need to defer to the experts, but I do have some understanding of how minimum core obligations could be applied to the process of setting a budget and to decisions on its content. I also have some thoughts on practical next steps that we might take.

In the briefing that I prepared last year, I set out some of the principles and concepts that underpin human rights and how they might be applied to the budget, and one of those is minimum core obligations. Minimum core obligations could be a useful tool to help to scrutinise and, ultimately, influence budget decisions. Part of the challenge is that minimum core obligations are not always clearly defined. It is important to understand that minimum core obligations started out as a concept, not as a list of standards. Our task is to apply that concept to Scotland’s human rights framework and to establish what those obligations mean for us.

I look forward to the discussion.

Thanks very much. I will start off with questions.

Luis Felipe Yanes mentioned the importance of participation and of having a participatory process to determine what we mean when we talk about “minimum core obligations”, as Rob Watts said. We do not necessarily have a list of things, but what are they? Can you outline how that participatory process should take place so that we have Scotland-wide understanding of what the obligations are before we, I hope, meet them?

Absolutely. That is a really important question. One of the exciting things about the legislation is that it would be quite a world-leading process and one that has not necessarily been done before. Minimum core obligations have usually been defined through judicial interpretation. As Rob Watts said, you might have a wider concept that is applied on a case-by-case basis. We can discuss some examples later, if that would be relevant.

There are two or three stages in the process. At the first stage, the legislation needs to include a wider concept or definition. We have suggested that there should be minimum essential levels of economic, social, cultural and environmental rights that are necessary to live a dignified life, but there are different concepts. Some countries have looked at a more survivalist approach—what is necessary to survive—and have used that as a bare minimum. Other countries have taken the approach that it means having a dignified life. You need the definition first, and that needs to be what grounds and guides the process of making up the list.

We have carefully considered and explored what would be the best approach. At times, it might be tempting to have a model involving, for example, a citizens assembly to define minimum core obligations. Our analysis is that there are potential risks relating to the process taking place in that space, particularly because we want to ensure that the most vulnerable are heard carefully and are considered as a priority.

Participation in the process cannot be seen as a matter of consensus. It cannot be about reaching a consensus and voting. Through the process, we need to hear everyone in the country, including those who are most vulnerable and those with technical expertise, and then come up with a final view. We think that the process could last for two to three years.

In our view, one of the best models would involve setting up an independent commission or committee—like the mental health review panel, for example—with various types of expertise on it, including those with more technical legal expertise, policy makers and people with lived experience. It would convene a process of hearing from as many people as possible and would ensure that a prioritised scheme was put in place. We should ensure that those who potentially have less of a strong voice and those who do not necessarily have the ability to express policy considerations are met and are defined in that process. The idea is that the proposals would then be presented to the Government and the Parliament, for secondary legislation to be introduced. Those are the sort of steps that we would seek.

10:30  

The really relevant point is what we should not confuse participation and acknowledgement of people’s lived experience with consensus, because there is a risk that, if we reach a consensus, those who are most vulnerable might not be prioritised in the scheme.

Does Ali Hosie have anything to add?

No, I have nothing to add. What has been said is as we discussed.

Okay. That is great.

The Parliament carries out consultations. This is not that. This is not a window through which the public can engage if they want to; this is on-going active engagement with duty bearers and rights holders. Generally speaking, to get there, we have to build capacity for understanding the contents of the human rights obligations of the Government and public authorities in order to help them when they engage in that process.

Another thing to note is that human rights infrastructure such as these guys—the Scottish Human Rights Commission—already exists in Scotland. Properly resourcing the existing infrastructure is an essential first step in getting the participatory process right.

That is helpful. It is particularly helpful to have that distinction between our normal consultation process and what we need to do with this.

I will bring in Karen Adam.

Hello. Can everybody hear me?

Yes, we can.

There is a slight delay, sorry. Good morning. It is great to hear from all the witnesses today.

A crucial part of the committee’s work involves delving more into core obligations. What would those look like in practice? We have heard some suggestions that minimum core obligations should be more relative than universal. I find that almost counterintuitive when it comes to what core obligations should be. I would like to hear your views on whether we should have a flexible, relative approach or a more universal, catch-all approach.

That is a good question. The first point is that the threshold of the minimum cannot go below the globally set universal minimum. As Luis Felipe Yanes noted in his opening statement, the universal approach outlines a set of obligations and, if those were not complied with, the whole purpose of the treaty would disappear—the obligations in the treaty would no longer make any sense. The obligations need to be complied with at all times, regardless of the resources that we have as a country. The UN committee has, over many years, developed a universal minimum through its general comments and statements.

As Rob Watts said, unfortunately, that information has not been nicely collated by the UN in a neat package, but that needs to be our starting point. Luis Felipe Yanes has produced “SHRC: Building a new human rights framework for Scotland”, which we will leave with you, and that brings together the past 30 years of general comments and statements relating to all the different rights. It draws that information, where it exists, together.

In other words, that baseline is a universal minimum, so the obligations cannot fall below that. That is standard. They can only go above it. The only approach to minimum core obligations as a universal standard is that which has been set up by the UN committee; it is the interpretive authority in relation to the treaty.

If we think about the matter carefully, we see that countries that have domesticated the concept of minimum core obligations in one way or another, by adopting them in their judicial interpretation or by enacting elements of them in different pieces of legislation, have always done so based on the universal minimum, regardless of their resources. Some countries do not have the resources that the UK and Scotland have. We can use the example of Colombia: when you look at its practice of judicial interpretation of mínimo vital, you can see that it is higher.

Perhaps Luis Felipe Yanes is best placed to give examples from other countries.

The concept can be a bit counterintuitive and sound problematic, but the reality is that the relative minimum, as applied in most countries—we can talk about examples such as Germany, Colombia, Belgium, Switzerland, Brazil and Argentina—is always beyond the universal minimum. If you convene a process to define the minimum core obligations, the starting point is the global minimum.

The UN committee is trying to make sure that it sets a standard for every country in the world, so it is very minimalistic. For example, the right to food is about providing the basic essential nutrition that is required to be able to survive. It is not even about adequate food or nutritious, rich, nice or cultural food; it is about the basics. That is the starting point, and the relative minimum relates to how far we, as a fair country, are willing to go beyond that threshold to ensure a dignified standard of life, which is what we are proposing. Something that goes beyond the basic universal minimum is the relative minimum.

That is really helpful.

Does Rob Watts want to add anything?

I will give a brief reflection from an economist’s perspective. When I think of this issue, I often relate it to poverty. We have statutory child poverty targets. In that regard, one of the headline figures relates to relative poverty, and there is a reason why most economists defer to that figure. We think of poverty as being below the minimum level of resources that you need for an acceptable standard of living, but what people consider to be acceptable changes over time, which is why we defer to the figure for relative poverty. If we went for the universalist or survivalist definition of minimum core obligations—Luis Felipe Yanes talked about the right to adequate food equating to just enough food to survive—that might not be meaningful or legitimate for a future Scotland, so surely there needs to be some flexibility to build on that.

That is helpful. Karen Adam, is there anything else that you want to explore?

No. I am grateful for those answers. The witnesses have explained things really well to me, particularly from an economist’s point of view. The use of a relative rather than a universal approach was ringing alarm bells with me, so it was great to have that explained. Thank you.

Good morning. Thank you for your opening statements and for answering the questions so far; it has been really helpful. I want to look more specifically at what we have just discussed. The evidence that we have had said—Dr Hosie, I think that you mentioned this when you last gave evidence—that our levels of, for example, food poverty and food bank use suggest that we are not really delivering a minimum core. Where are we, by international standards? If we have a global minimum core, but there is also the concept of a relative minimum core, where are we on that? Where should we as a committee be looking at when starting to consider a minimum core?

That is a really good question. When you are thinking about the global minimum core and any relative level, the most important thing to recognise is that the universal level is so basic that we cannot drop below it. If we are achieving a minimum relative core, we will be achieving the universal level, but if we are not, we need to look at whether we are achieving the lower level.

It comes down to how we monitor the situation. We need to look carefully at whether we are meeting that minimum core. To be honest, right now, we are not measuring what we need to measure: we do not have the detail available to us to be able to say where we are. We have lots of different bits and pieces of evidence, but—we were talking about this in preparation for today’s meeting—there is a lot of evidence that we do not have access to.

The committee will be more than aware of the issue with disaggregated equality data, but we as a commission could have a strong monitoring role. However, we do not have the resources or the correct powers to do that properly.

South Africa has a really good system in which it can compel the provision of evidence. It can compel public authorities to provide information, whereas when we have written to different public authorities to ask them for information on certain things, they have not replied, and they do not have to reply. Potentially, their legal departments will tell them that is advisable not to reply to us. If they do not have to do it, they do not provide the data.

You could look at certain things, such as how you can better place our organisation and others like it to have access to the right information to make those assessments. That would be the first part.

I can add to that. It is a really important question, Pam. We can talk about it theoretically, but this is about what is happening on the ground right now. For example, in the report that we presented to the UN Committee on Economic, Social and Cultural Rights on the current status of the enjoyment of ESC rights in Scotland a few weeks ago, we expressed concern about two specific issues: high levels of food insecurity and high levels of homelessness.

As Ali said, we do not have access to sufficient data, the ability to collect data, or the powers or the resources to unequivocally say, “Scotland is breaching its minimum core”. We can express concern—we are highly concerned—but we do not know whether we are passing the threshold and we do not know the impacts of that threshold. That is the problematic position that we are in. We see things of concern and are willing to do the work, but we are not really able to do so. We are unable to say that, in a systematic way, “This is what is happening in Scotland”, or, “This is what is happening in the regions”. Take food insecurity. That position might be quite different in the central belt from how it is in island communities, which might require a different type of action from local authorities. Again, we are not able to make that determination.

That is a hard question to answer. When I was doing a briefing last year, I found that there are always examples that you can point to that look like minimum core issues. My briefing was on people with learning disabilities. A number of people with learning difficulties are effectively detained in hospital even though there is no medical need for them to be there. That is simply because we cannot put together a care package in the community. Article 19 of the United Nations Convention on the Rights of Persons with Disabilities is about the right to independent living in the community. That example looks to me like a minimum core issue.

To answer your question well, we would have to work on the definition. By doing so, you could have a more system-wide, objective assessment of where we are rather than just picking out examples. To get to that point, we need to work on defining minimum core obligations and then we will know what we are measuring.

I will raise an issue that we might come on to. When we talk about measurement and data, do we want to use a measure to define what we mean by “minimum core”, or do we want to define what a minimum core obligation is and, from there, decide what to measure? I would say that we need to do the first bit before we can do the second bit and answer your question comprehensively.

Thank you—I appreciate that. That is an interesting way to put it: what do we do first? We will need to have a wee think about that and probably come back to you guys for your expertise on it.

I want to pick up on your point, Luis, about measurement and data. Is the availability of data and the gathering of evidence and data, as well as your ability to compel that data to be provided, an issue? Are both things an issue, or is it just—

Both.

Both. Okay. That links into my next question. How can we measure whether we are meeting those obligations? Also, how can we measure whether the state has used all its resources? How can we measure whether we have maximised the resources in terms of the relative provision? Where do we start?

That is a great question. I will let Ali start and I will jump in at the end.

Effectively, there is a three-stage process that relates to the process of how we approach the budget, which you have heard me talk about many times. First, you monitor your human rights obligations. Once you have a clear picture of compliance with the minimum core based on whatever indicators you have set up, you see what the key issues are and where progress has or has not been made. You then explore that in relation to your resources—that is, the resources that are required to be generated and allocated on the basis of that need. The final stage is when you scrutinise and monitor how the budgeting process has been done, where the money has been spent and what impact that has had on the basis of that initial assessment of your needs.

For the committee to approach human rights budget scrutiny, it would have to have all the data available on the current enjoyment of minimum core obligations—that is, the issues that are at stake—and then cross-cut that with how the Government plans to spend or prioritise its resources on the basis of that.

10:45  

Another point on monitoring goes back to the question about the relative or universal minimum core. As Luis mentioned, we are already signed up to the convention, so we should already be monitoring the universal level. However, if we were to develop a more relative set of minimum core obligations, once that is agreed, you would want to focus on monitoring that. As I have said, if you are achieving the relative minimum core, you will be achieving the universal core. If you are not, you would need to dig a bit deeper to make sure that you are achieving the universal core. However, if you are not compliant with the relative level, you might still be compliant with the universal core because it is such a low level.

You also have to be able to monitor the minimum core and your progressive realisation. One of the key things around compliance with the minimum is that it then becomes very comparative. You would need to be able to monitor what happened in the previous year and in the previous cycle. The more disaggregated data that you have, the better. You will be able to see things as they change. You need to understand why things have gone up or down, and how that is impacting on different groups.

The final stage is budget monitoring. At this point, we have minimum core and progressivity, so we now look at where available resources have been placed and we can maybe see the decisions that have been based on the evidence of need.

However, when you ask in relation to generation of resources, that goes back to the point that I made to the committee last time about how we approach the budget. Instead of approaching it on the basis of knowing the size of the budget and considering how to divide it up, even if you are aware of your minimum core and what your needs are, you turn that round and start with your obligations and where the need is in relation to your minimum core. You then look at what you need to do to improve that, what resources are required to do that and how you will generate those resources. That is the way to start.

I know that there are complications in relation to Scotland and its tax powers—that is something else that I have talked about before—but there are different things that we can do and that are starting to do. There is also more that we could do. You start from what you need and work out how to divide that among the areas that require the resources.

I will add two points on that. In your first question, Pam, you asked whether the issue is lack of available data or lack of powers, or both of those. The situation is exacerbated by the fact that it is both. It would be less problematic if there was wide data available, but things would still be problematic at times, because it depends on the data that is available. Sometimes, if it is not sufficiently disaggregated, although you might try to determine what is happening, you might still not be able to do that well.

A great example, as Ali mentioned, is the South African Human Rights Commission. It has a power under the constitution—its enabling law—to compel the provision of information, and it creates its own indicators. Therefore, you could create a list of issues or set of questions that you send. Just to imagine how creative and innovative we might be, we could have a list of questions asking for specific data from local authorities and different public bodies. For example, we could ask them to provide information on the number of people who are accessing health services as a result of some issue.

In that scenario, you have a list of questions and you create indicators, which you monitor yearly or quarterly. That is key to how you create indicators based on the data. That gives you an understanding of the wider issue but not of the individual issue. We have to get into that discussion. It can give you a picture of whether, for example, there are huge levels of homelessness in the country but not of who the victims of that are, which would require a different approach. That is just looking at wider issues and not necessarily the victims themselves. There are two areas to explore.

Finally, we in the task force have proposed that, including in our work on the potential human rights scheme in the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill, similar to the children’s rights scheme in the UNCRC, if the scheme is working effectively, for example, a duty bearer would, in their reporting mechanism, have to provide some of that data that we urgently need to know. That is about planning. How will I allocate resources? How will I tackle the problematic issues within my remit? How do I then report on the progress of that? The potential for the scheme to become a more coherent way of meeting the obligations, planning and reporting would be fundamental. There is a lot to think about as regards the relevance of a potential human rights scheme in the new bill.

Thank you—that is really helpful. There is a lot to do.

Did you want to add something to that, Rob?

Yes, briefly. When we talk about indicators, we are talking about monitoring. We need to put the question to the Government and to public authorities, because how can they be satisfied that they have met their obligations if they do not have the data available? That comes back my earlier point about capacity building in government and whether analysts really understand the content of human rights obligations and are providing the relevant information to ministers and other duty bearers.

Rachael wants to come in with a brief supplementary, and then I will come back to you, Pam.

My question is to Luis and is about the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill. We heard from the MSYPs that they are disappointed that the Scottish Government has failed to bring forward a timetable for amendments and for bringing the bill back to Parliament. What can the SHRC do, using its current powers, to hold the Government to account?

I do not want to give a very long response, given the history of how the commission was set up and how some of the powers that it does not have were seen as not needed. Maybe there is a quite different reflection on that now. We have a wider power to promote human rights, which is quite broad. It includes being here, for example, and explaining and providing guidance and general expertise. We have a power to intervene in legal proceedings. It is not about raising proceedings; we can only intervene in specific proceedings. We do not have a power to raise proceedings, so we cannot litigate or hold the Government to account, for example.

We have a power to do an inquiry, but the framing of that power is quite limited. In reality, if we are to do an inquiry, we have to investigate all relevant public authorities of a similar nature. For example, if we were concerned about homelessness in Glasgow, we would, as part of an inquiry, have to investigate all local authorities in Scotland. Given our current level of resources, that makes it effectively impossible for us to ever do an inquiry. Broadly speaking, those are our current powers.

We have been engaging quite extensively on the potential new powers that the commission could have in the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill. If that bill is brought back and passed, such powers would allow us to raise proceedings under the UNCRC. Of course, there is the Children and Young People’s Commissioner for Scotland, so it would be about working more collaboratively and not necessarily just on our own.

May I ask another question on that?

Okay.

Rob, when you last gave evidence to the committee, which was very useful, you talked about enshrining rights in Scots law that will place obligations on the Scottish Government to deliver a minimum core element of each right for everyone. Clearly, the Scottish Government has come across a stumbling block with the bill. How would the bill work when the minimum core element is not being delivered?

Honestly, I do not know how to answer that. I can get back to you. I am not across the detail of the bill.

That is okay. I will make it a little bit simpler, without using that example. Your point was that enshrining rights in Scots law would deliver the minimum core element—or the Scottish Government would be under an obligation to deliver that. How would that actually work in practice? I was using the bill as an example, but we are talking about enshrining rights into Scots law. Is the issue that it is not really possible to deliver the minimum core obligation without making that part of legislation?

I am going to sub Luis in, but I think that your question is about how you go from having minimum core obligations written down to making them happen in practice, and I think that that comes into the judicial process, but I do not know. I do not know whether Luis has anything more useful to add.

Yes. I would split it into two processes. I really want to emphasise that the Government is under an obligation to meet minimum core obligations today, and there are questions about whether the Government is meeting them. We will leave you the full list of what they are.

There is no process for holding anyone accountable in Scotland if those obligations are not met. That is the nature of our wider legal arrangement, in which international law is not directly applicable in any judicial setting. In other countries—the Netherlands, for example—the Government could be held to account even if there were no internal process for defining anything. As we do not have that power, we cannot hold the Government to account. It should be meeting the obligations because there has been a commitment to do so since 1976, when the United Kingdom ratified the International Covenant on Economic, Social and Cultural Rights.

Through the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill, we want to be able to make sure that duty bearers have to act to comply with their legal obligations and, if they fail, to be able to bring them to court. That is different from what happens today. There is a bit of a split. They should comply with their obligations, but, unfortunately, if they do not, we cannot do much. That is the reality. A committee such as this has an important scrutiny role because there is no judicial ability to intervene.

Okay. I have jumped on to question 10. Deputy convener, do you want me to finish this part?

I will go back to Pam Duncan-Glancy and then come back to you at the end.

I suspect that Rachael and I may be about to ask the same thing—I hope that I do not cut across you, Rachael.

On that final point, what options are available to us to uphold the minimum core? What have we got now and what will we need in the future so that, if we see a circumstance—Rob Watts highlighted a good example—where we may not meet the basic minimum, we can enforce it? What powers do you, the courts, individuals and parliamentarians need?

Do you mean pre-incorporation or post-incorporation—or both?

That is a good question. I mean both: now—I am conscious that, as we have heard, we should be enforcing the minimum core now—and post-incorporation as well. The purpose of incorporation is to make rights more real for people, surely.

Now—today—the starting point is the list that we will leave for you, with clarity on the obligations and their international legal standards. The next step is to scrutinise that and find relevant information. The committee might do that by requesting responses from specific public authorities. For example, you could ask local authorities how they could report on various issues. You could see whether the Scottish Housing Regulator could provide data or you could call on Government ministers or the NHS to provide information. It could also be done by exploring funding for a specific project that the committee or we might do that would look into determining the current reach. The reality is that, even if we had the powers, we do not currently have the resources to give such a level of determination.

We could take that first step now and you could provide that scrutiny. When we get the information and see the picture that it presents, the scrutiny that you might want to present in Parliament and to the Government will be possible. That is the pre-incorporation situation.

The post-incorporation situation will require various modifications. We can talk about a wider view of the bill at a later stage, but we believe that Parliament and this committee have an important role to play in the scrutiny of wider human rights issues and legislation. The commission would have to have modified powers, including, as Alison Hosie mentioned, the power to compel information. Ideally, there needs to be some reflection on how our inquiry power might be modified and how we might have a softer power of investigation. In some countries, an inquiry into such issues ends with a binding, non-judicial determination, and there is therefore less need for the judiciary to intervene. The scheme is very important for that.

11:00  

The final bit is the judicial intervention, which requires a few things. We have talked about the impossibility test. There is a very strong inability to defend yourself, so there has to be a very big threshold if you are not complying.

There also needs to be reflection on wider issues to do with access to justice. We have called on the process of incorporation to ensure that our routes to judicial and non-judicial remedies are in accordance with international legal standards, particularly with what we call the accessible, affordable, timely and effective—AATE—framework. Remedies need to be accessible, affordable, timely and effective. We have big questions about how accessible, affordable, timely and effective our judicial and non-judicial routes to remedy are.

This is no longer a wider structural issue about monitoring; it is about the individual. What can the process do for individuals who are suffering and whose minimum core obligations are not being met? As I said, there are questions around ensuring that there are accessible, affordable, timely and effective remedies.

It is also essential that institutions such as national human rights institutions—the SHRC, for example—are able to provide support and guidance and have powers to litigate on individuals’ behalf. Taking the burden away from individuals and marginalised communities and supporting those who might require it is also an important step.

We are talking quite theoretically today, but I will give a practical example of the impossibility test. When it comes to cultural rights, the state has to provide access through local authorities to libraries, pools and other communal facilities. If there were a massive flood and many people were deprived of their home, some of those facilities might have to be used to provide temporary accommodation. That is an example of the impossibility test: the local authority cannot provide those services because they are being used for another purpose that is more important.

Is there usually a time limit on an impossibility test? Your example reminds me of what happened during Covid, when libraries and other public centres were closed in order to house vaccination centres. Is there therefore a timescale attached?

No, and there needs to be guidance in order for the judicial interpretation to be clear. The state would have to demonstrate why it still could not provide the services. If it said, “We were still in the process of doing X, Y and Z, and still accommodating people—buildings were flooded so we couldn’t move people”, that would clearly fall within that. If, however, you were able to say, “We see clear inaction and quite incoherent policy making. The state was using resources to do that. It was building new facilities that were completely unnecessary, but it was not providing services”, that would clearly be beyond the threshold required.

Good morning, everyone. I am usually on the Education, Children and Young People Committee, but I have come over to this committee today. I would like drill down into how the minimum core obligations apply in education. We accept that everyone has the right to education—that they have a place. In Scotland, the curriculum is based loosely on Bloom’s taxonomy, but sitting beside that is Maslow’s hierarchy of needs. Where do the minimum core obligations fit in with that? We can think of them as a pyramid that is sitting on sand. Are the core obligations the sand underneath that hierarchy of needs, or are they part of it? That is my opening gambit. Luis, you look as though you are itching to get in with a response.

I think that I was purposely sat in the middle. [Laughter.] It is a great question. Looking at the issue from the universalist approach that is defined by the committee, it is about trying to build a degree of consensus among all countries, so it is going to be minimalistic.

For example, the words “provision of the most basic forms of free primary education” are not necessarily a good indicator. The provision of free primary education is, of course, in the words of the text. Article 13 of the international covenant guarantees the right to free primary education, so the minimum core has to be, at the very least, free basic primary education. That raises the question of what Scotland does. We have free secondary education, and we have free undergraduate higher education to a degree. Are we satisfied with the universal minimum standard of just saying that there should be a basic form of free primary education, or do we want to go beyond that? Do we, at the very least, say that there should be free secondary education, free inclusive secondary education or free good secondary education? It can be very much up to Scotland to define that. The standard cannot be below that, but it can be above it.

The other really important aspect—again, it is very minimalistic—has to do with non-discrimination in education. Whatever form of basic education you are providing, it has to be provided in a non-discriminatory manner. The minimum core has to be that you cannot just provide for men and not for women, or for one specific ethnic minority and not for another. That is very clear in relation to the basics.

I will come back to that point—I had international comparators.

I will stick with education. Rob, you mentioned the word “survive”. I am passionate about education, and everyone should thrive through education. However, we know about the impact of poverty. Resources can be put into front-line education—a child has a place, a classroom, a teacher in front of them, their books and so on. However, we know that children might be living in unsafe housing, in precarious personal circumstances and all of that—I am alluding to the poverty-related attainment gap. What is your opinion of the minimum core in education? Should resources be targeted at housing and health? We know that these things are all interconnected and I am not expecting a black-and-white answer, but it would be good to hear your opinion.

I have brought with me the UN general comment on health. It is not related to education, but it is kind of on the same point. It starts dictating what the minimum core obligations could be, and it lists some. I thought that it would all be about defining what is meant by a minimum standard of healthcare, but actually it talks about ensuring access to

“the minimum essential food which is nutritionally adequate and safe”,

and to

“basic shelter, housing and sanitation”

and so on.

When we think about education, we are thinking about whether we are resourcing schools and whether everyone has access to school, but there are other factors that determine a child’s ability to achieve a good education, and we probably want to think about that when we are defining a minimum core obligation around the right to education. That is where the point comes in about this being a minimum floor.

Is the example of free school meals a good one? A child could be sitting in a classroom with the best teacher in the world and everything in front of them, but if they are hungry, have not had their breakfast and are not going to eat, their priority will be their hunger. That will prevent them from thriving in education and learning, so the investment and the money need to go into feeding and housing children, for instance, or maternal healthcare. It is a complex picture. With the right to education, the sand goes into all sorts of different areas.

Correct me if I am wrong, but I think that it depends on how we want to define minimum core, and I do not want to start saying what it should look like. We probably do not want to say, “Use free school meals as your definition”, but we might want to say that we should ensure that every child has a nutritious diet, and providing free school meals could be a way of achieving or measuring that.

That is a fair point, but that is not what I meant. I was just using it as an illustrative example. I would like families to have access to good, nutritious food.

I realise that time might be a little tight, deputy convener, but if I can just—

Ali Hosie might want to come back on that point. We have time.

I wanted to say that we should not just fixate on the minimum core obligations but think about progressive realisation. As Rob said, the universal minimum is there, and there is no point in setting a relative minimum in Scotland if we are going to fail to achieve it at the first and every subsequent outing. You want to set it at a level relative to dignity that is, perhaps, above the universal minimum, but it must be achievable, apart from in impossibility situations. Then you want to look for your stretch targets—your benchmarks—to show that you are making progress. You would think that every child having a meal in their tummy when they come to school is a basic target, but what should that mean for every child? What should be the level of nutrition? There are different elements that you could put into the measurement over time. Instead of thinking just about the minimum core, think about what you are trying to achieve overall and look at those elements as the steps against which you want to measure progress.

Rachael wanted to come in quickly on that specific point.

Thank you, deputy convener. Excuse my scepticism, but the Patient Rights (Scotland) Act 2011 set out a 12-week minimum treatment guarantee. That is a legal obligation, yet it is being failed all the time. How can we set minimum core obligations when even a legal mandate is not being followed?

The difficult questions come to the person sitting in the middle. [Laughter.] That is a really good point and an important question. I would not say that that example necessarily falls within the scope of minimum core obligations. It could be made into a minimum core obligation but perhaps not yet.

I will reiterate Ali Hosie’s point about how we define minimum core obligations as being non-negotiable. In my opening statement, I mentioned the obligations that must always be met regardless of the conditions and the available resources. That would put into the participatory process that we mentioned a question whether an obligation is one that we see as being non-negotiable, not subject to the availability of resources and essential to living a dignified life or whether it is actually more a part of what we call the progressive realisation obligations.

To reiterate, regarding the education question, as I mentioned, there are two ways of looking at minimum core obligations that are not necessarily contradictory. One relates to conduct—how the state conducts itself, how it operates and how it implements obligations—and the other relates to outcomes and entitlements.

I have in front of me the list of obligations regarding the right to education. Some are on the process side of things, such as:

“ensure the right of access to public educational institutions … on a non-discriminatory basis”.

Under that, you do not have to guarantee access, but the access that you guarantee must be non-discriminatory. That is a conduct obligation and is clearly non-negotiable: you must ensure non-discriminatory access to education.

On the entitlement or result side of things, the obligation is to provide basic, free primary education for everyone. There are two different types of obligations: those that relate to outcomes and those that relate to conduct. It would be up to Scotland to decide whether it wants a mixed model or whether it wants to determine obligations on only a process basis or an outcomes basis.

To answer your question, it would depend on how Scotland defines the obligations. It would be troubling if it defined as an essential minimum any obligation that, it was foreseeable, it could not comply with.

Thank you. That was useful.

I will move on to the international situation, which I am curious about. You just reminded us about the right to free primary education. We know that there are countries that do not provide that. The other word that I picked out was “retrogressive”. I would like to hear a little more about that and measures such as limiting the education of women and girls. What role can the commission, other Governments and any of us play? What can we do about that? That is happening now: rights that are already there are being taken away. It is highly concerning.

11:15  

There are differences between the roles of Parliament, Government and the committee in relation to what happens in this country and elsewhere, and there is a difference between the type of scrutiny that the committee could do of its own Government and what it could potentially do internationally. The UN Committee on Economic, Social and Cultural Rights, for example, has raised acute concerns about certain countries in relation to the provision of free primary education and the discriminatory basis of access to some education. I will not list the countries, because it is standard, under the Paris principles of the European Network of National Human Rights Institutions, not to engage on the work of other countries, and our mandate is in relation to Scotland.

We have talked about the issue to some degree in our work on non-retrogression. As the obligation is usually perceived, non-retrogression is prohibited, so you should never, de facto—in practice—or in law, introduce retrogressive measures, but there are, of course, certain circumstances in which retrogression is permissible. Ali Hosie mentioned incidents of flooding. You might have circumstances in which you want to limit access to some service in order that people can be able to enjoy another. Covid is an example to some degree. There is a question of limitations, but there is also a question of retrogression. Financial crisis tends to be an example of resources needing to be remobilised and moved elsewhere in order to guarantee services.

The question to highlight is about how non-retrogression interacts with minimum core. The standard is always this: if you have no other choice and you have to introduce a retrogressive measure, you should never start by doing so on a minimum core obligation. It is your last resort. If, for example, you have to cut funding from the provision of free primary education or from different areas, free primary education should be the last area where you cut funding because it is part of your minimum core obligation. You would have to ensure that the retrogressive measures that are put in place prioritise minimum core obligations and those who are the most vulnerable.

You have used flooding as an example of circumstances in which the right of women and girls to education could be withdrawn. I do not see that as a suitable measure in response to an emergency such as the building collapsing. It would be a matter of ideology, and that is not covered, is it?

No. I meant it in a wider context and not necessarily targeted to a specific group. The covenant is clear on equality and non-discrimination, and the instances in which a situation such as the one you describe would be permissible are very limited. To be honest, I cannot come up with an example now—that is the level of prohibition. It is questionable for countries to introduce such restrictions, of course, and it is up to members of the Parliament and Government to enact their policy on pressuring other countries in that regard.

I will add something on retrogression in the domestic situation. The maximum available resources obligation also applies there. You have to have looked at all possible alternatives before making a retrogressive step, and one such alternative is to ask: are there other ways in which you can raise resources before you make cuts?

Good morning, panel. Thank you very much for your evidence so far. You have covered quite a lot of the area that I was going to ask about, as often happens to the last questioner. I am thinking about the incorporation of the UNCRC into Scots law that we hope will happen very soon. What would be the result if it were not possible to agree a comprehensive list of minimum core obligations?

The issue is about looking at what you are asking for. The universal minimum core already exists; it is not about agreeing a set of obligations. There is already an agreed list of minimum core obligations that we will leave you with.

For the next level, if you want to have a more relative measure, in relation to the minimum core, to achieve a life of dignity, there are a couple of points. The first is the idea that Luis Felipe Yanes mentioned about there not having to be a consensus. We are not looking towards a citizens assembly-type consensus with a vote; it is not that kind of process. It is not an election.

Secondly, there will not be an issue if incorporation is done correctly. We are ensuring that we have a universal baseline. There is already a comprehensive set—well, it might not be completely comprehensive, but there is a set—of minimum obligations that have been agreed by the Committee on Economic, Social and Cultural Rights, and we are already subject to them, so the issue about not reaching a consensus will not be a thing. What has to be clear is that, if the baseline is to be the universal standard, this is what we have. We are incorporating international standards as they already are. The next stage is about what level we can have above that universal minimum, with which we are already meant to be complying.

Does anyone else from the panel want to come in?

Rob, do you want to come in?

No.

I can give you a wee bit of the background to one of the reasons why we suggested the use of the task force in the process. I have mentioned examples such as Germany, Belgium, Switzerland, Colombia and Brazil, which have such a process, in which the minimum core obligations are justiciable. That has mostly been through judicial interpretation. Some countries, such as Germany, have a constitution—a basic law. The interpretation of the constitutional court has gone into what Germany calls “existenzminimum”, and that has led to definition on a case-by-case basis. Belgium, for example, enacted law in the 1970s that recognised what is called “minimax” or “minimum de moyens d’existence”. In Colombia, “mínimo vital” is recognised by the constitution. There are things that have come from a lot of judicial interpretation, and that has to do with a body that is independent from Government and Parliament holding them to account on people’s rights.

We wanted to make sure that the process was sufficiently well done and that there was sufficient guidance. The wording of consensus can be tricky. We want to make sure that the absolute rights of the most vulnerable are guaranteed and that institutions are held to account on them, but that does not mean that people should negotiate their rights and their basic entitlements. It means that we have to be able to listen carefully to wide considerations from lived experience, technical experts, policy makers, parliamentarians and Government. There needs to be a list that ensures the absolute minimum of guarantees, even if some people disagree or do not find it satisfactory, perhaps because it implies prioritising some more marginalised groups over the wider population.

I thank the panel for those helpful answers.

You have referred a few times to the red lines of minimum core obligations. Can you—[Inaudible.]—duty bearers if those red lines are indeed crossed? Again, that is in the context of incorporation if the bill is passed.

Fulton, you broke up a little there. Ali and Luis, did you get the question, or do you want Fulton to repeat it?

I think that we got it. It is about what happens if red lines are crossed in relation to compliance on minimum core obligations, right? Okay.

I mentioned that to some degree when answering Pam Duncan-Glancy’s question. I would divide it between the cases of a structural nature and the individual case. There is a need to ask what happens in cases where there are determinations of, let us say, a duty bearer not meeting their minimum core when that has been found out through indicators in the data. For example, we might see that 15 per cent of people in X local authority are homeless and do not have access to basic shelter. That information is obtained through regular reporting, monitoring or an inquiry and could trigger different impacts. There could be binding recommendations—you need to do X, Y and Z—or general, non-binding recommendations, such as scrutiny from NHRIs or the committee. That is the case when you are not able to identify a victim but know that 15 per cent of the population in X area is affected. That is an example of cases of a systemic nature.

Then there are cases of an individual nature. That is what happens when an individual or group of individuals directly alleges that something is happening to them that violates their basic rights under minimum core obligations. That should trigger a non-judicial route to remedy—there is a lot to explore about the role of the Scottish Public Services Ombudsman, for example, and the type of determinations that a complaint-handling mechanism could entail—and then the final stage will be a judicial review. What can the courts do or determine about non-compliance with minimum core? What type of excuses can the public authority provide? We talked about the impossibility case, for example.

The final point on that, which I mentioned previously, is about thinking carefully about the degree to which our current routes to judicial and non-judicial remedy are accessible, affordable, timely and effective. If there is to be real justiciability, we need to reflect on the big issues of access to justice in Scotland for breaches of human rights.

May I add to that? The goal of the incorporation legislation is not that cases should result in court at the first opportunity. Court is a last resort. We do not want to suddenly have a massive influx of cases. When we talk about meeting a minimum core, if we have a massive influx of cases, we will have a real problem because of the level that the minimum core is at. We should not be at such a level.

We need to look at the needs of the country through that lens and address issues through budgetary generation, allocation and spend. The minimum core is the backstop when things go wrong. There is a fear that the new legislation will suddenly result in a massive wash of court cases, but that should not be the case.

My final question is about comparisons with other countries where the minimum core obligations system is working. The Netherlands has been mentioned, but its health system is quite different from ours. Can you give us an overview of how the system is working in reality anywhere?

There is not really a comparison for what we propose for Scotland. The process would be world leading in the sense that no country has had a process of defining minimum core obligations. It is what I call a legislative approach to minimum core obligations. That involves taking people’s views into account and then bringing proposals to Parliament for there to be final legislation that plays into them. We have wide concepts that are provided in constitutions, legislation and judicial interpretation, and we can determine whether those are met on a case-by-case basis. They might be composed of different values in the constitution.

11:30  

Colombia is an interesting example, because the interpretation of mínimo vital—vital minimum—is from three values of its constitution: the value of the welfare state, the value of human dignity and the value of solidarity. The courts might say, “This forms part of the vital minimum.” At times, that can be about dignity and solidarity. Yes, it is a difficult thing to do, and it requires a lot of resources, but it is essential if our constitution requires us to be a country of solidarity. That needs to be put in place.

There are good examples of how you do things on a case-by-case basis, but a lot of judicial intervention is required. That is normal in countries with a civil law jurisdiction in which the role of the court is prominent and there is wider legal acceptance that that is what the court does. We thought that the mixed legal system in Scotland and the nature of how the courts operate were not fit for purpose in that regard, in the same way as is the case with the similarities relating to Germany, Belgium, Colombia and Argentina. Therefore, we are using some of those examples—the value of human dignity, the value of minimum essential levels and the way that the committee has developed things—but making something quite unique.

I am sorry to interrupt, but how would a minimum core obligation work in increasing the rights of some people who have lower health, education and life expectations? The minimum core obligation would be universal, so people who have better life expectations or health outcomes would be getting the same commitment as those from poorer backgrounds. How does that work?

That is an absolutely fantastic question, because it fits into something that we have been concerned about: there is a risk that we become too obsessed with minimum core obligations. As I said in my introductory remarks, we have to see minimum core obligations as being part of a group of four obligations. Rights must be progressively realised, that should be based on the maximum available resources, and we have to ensure that there is no retrogression. All of that has to happen while meeting the minimum core obligations.

The example that you provided is important. It touches on the importance of how we understand progressive realisation in relation to taking concrete, deliberate and targeted steps. How do we prioritise those who are most marginalised and vulnerable, and take concrete, targeted steps to progress their rights? Two things therefore need to happen at the same time. We need to meet the basic minimum core obligations for everyone, and we have to ensure that we are progressing and realising the rights of everyone, particularly the most marginalised and vulnerable.

There is a risk of looking at the issue only with regard to progressive realisation and thinking, “This is it. These are ESC rights. This is what the bill will do. This is what the process will do.” It is not about just that; there are other relevant areas. If you do not have progressive realisation, you have what we sometimes call a minimum ceiling, and a minimum core is a minimum floor. What you do beyond that is particularly relevant, as is how you prioritise those most marginalised through targeted steps.

It would be interesting to find out how narrowing the equality gap through the private and public contribution to the health system works in the Netherlands, but perhaps that is for another day.

Rob Watts, in the previous session, you said that an MCO should withstand changes in leadership or government and that we should take politics out of this. How would that work in practice, particularly given the current political and global pressures that we face?

I guess that it comes back to how we set up the participatory process and, out of that, how we get an outcome that has legitimacy and meaning for Scotland and that can withstand the test of time. I will probably defer to what was said earlier about that process. You do not need to reach consensus and then have a vote; it is not a citizens assembly model. If you can get that right, the politics will be taken out of it. We should bear in mind that we are talking about a minimum, so you would imagine that it would be very difficult for any Government to challenge that once it had been established politically.

We are coming towards the end of the session, so I will make a final wider point. A lot of work needs to be done on defining minimum core obligations in Scotland and how we measure those, and on ensuring that duty bearers and rights holders understand their obligations and rights. There is a danger that all that work is seen as being the end goal and an aspiration, but we need to remember that we are talking about not an aspiration but an immediate minimum.

Alison Hosie, do you want to add anything in answer to my original question?

What I was going to say has gone completely out of my head.

My question was about international comparisons. Luis Felipe Yanes talked about retrogression and about equality among different groups.

It is still completely out of my head. I had a good point to make as well. [Laughter.]

On the politics, the UK—and Scotland, through the UK—signed up to a variety of treaties and covenants. The obligations exist irrespective of who is in power. The minimum core is that basic level, as Rob Watts said, so it does not matter who is in power. There are minimum levels to which every country, including ours, has already signed up.

When we are talking about rights and delivering rights, we need to take that out of the political agenda and look at what the minimum core is and at what progressive realisation we are looking to achieve. Those elements are not, or should not be, part of a political process.

I thank all three of you for coming along this morning and giving us your thoughts and views. I can pretty much guarantee that this will not be the last time that you speak to us on the issue. Rob Watts’s final point is really important. All the work that we are doing is not an end in itself; rather, we are doing it so that we ensure that we are meeting all three other commitments that Luis Felipe Yanes talked about a couple of times today. We really appreciate your contributions.

11:38 Meeting continued in private until 12:21.