Incorporating international human rights law into Scots law is essential for safeguarding the rights and well-being of people accessing healthcare services. It will provide a robust legal framework for ensuring equitable access, non-discrimination, informed consent, and protection from mistreatment. Most importantly, incorporating human rights law in Scotland will focus attention on the people missing out.
The Scottish Government has committed by 2026, to incorporating four UN treaties, as well as the right to a healthy environment, into Scots law through a new Human Rights Bill. These treaties are:
- the 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)
- the Convention on the Rights of Persons with Disabilities (CRPD)
The Scottish Government’s commitments to human rights are crucial in addressing health inequalities and access to fair health. Prioritising fairness, empowerment, and the full realisation of human rights is essential. Incorporation will mean both that public authorities are accountable to human rights law within their decision-making.
But what does that actually mean? The law as a tool will show the groups missing out on their rights and drive public authorities to prioritise these groups properly and to address where they have failed these groups. Importantly, as well as holding public authorities to account, this new law will mean each of us can name and claim our rights and demand that they are upheld, as well as seeking remedy if needed. This participatory approach helps to identify and address health inequalities by ensuring that perspectives of marginalised groups are taken into account.
Applying the framework of human rights, we emphasise the inherent dignity and entitlement to equitable health and social care services that everyone should enjoy, regardless of their background or circumstances. The right to life, the right to health, and the right to non-discrimination are just some of the human rights that should guide Scotland’s healthcare system as detailed below.
- The right to life is a fundamental human right that underpins the importance of prioritising and protecting individuals’ well-being. It encompasses not only the absence of premature death but also the provision of necessary healthcare services to prevent avoidable deaths.
- The right to health recognises that everyone has the right to enjoy the highest attainable standard of physical and mental well-being. It goes beyond the absence of illness and includes access to essential healthcare services, prevention programs, and the social determinants of health, such as safe living conditions, clean water, and nutritious food.
- The right to non-discrimination requires healthcare systems to provide services on an equal basis without any form of discrimination. It demands that no individual should face barriers or be denied access to healthcare services due to factors such as gender, race, ethnicity, disability, socioeconomic status, or geographical location. Scotland’s healthcare system needs to actively address and eliminate discriminatory practices and ensure that all individuals receive fair and equitable treatment, regardless of their personal characteristics.
But our rights are indivisible, and as important as the above rights are to achieving the right to healthcare, it is only once all our rights work in tandem, that they will be made a reality. Health is so much beyond access to healthcare, and we will see this across all the UN group treaties the Scottish Government is looking to incorporate.
- CEDAW, for example, focuses on eliminating discrimination against women in all spheres of life. It recognises women’s right to health and emphasises the need for gender-sensitive healthcare services, including maternal health, family planning, and access to healthcare information.
- CRPD promotes the rights and well-being of disabled people. It recognises the right to the enjoyment of the highest attainable standard of life and health without discrimination. The convention emphasises access to healthcare services, rehabilitation, and support for disabled people to fully participate in society.
- CERD plays a significant role in promoting the right to health by prohibiting racial discrimination in healthcare, requiring states to adopt non-discriminatory health policies, encouraging data collection on racial health disparities, combating racial prejudice and stereotypes, and establishing reporting and review mechanisms.
- A further example is the right to a healthy environment which is interconnected to the right to health – mutually reinforcing in UN law. While the right to health encompasses access to healthcare services, the right to a healthy environment recognises that a clean and sustainable environment is vital for achieving and maintaining good health. Read more from the Environmental Rights Centre for Scotland (ERSC) on this here.
Put together, these international human rights frameworks all contribute to the realisation of the right to health by promoting equality, non-discrimination, and access to healthcare services for all. In short, the right to health can only be realised if we reach those missing from our services, as detailed by Kimberley Somerside, VHS Policy and Engagement Lead in an ALLIANCE blog previously. The UN instruments such as CERD, CEDAW and CRPD are crucial to incorporate so that decision-making reflects issues faced by the marginalised groups that these conventions seek to protect.
By applying human rights, social care can be provided in a manner that upholds inherent dignity, promotes equality and non-discrimination, and respects personal autonomy. This will ensure equitable access to social care, protection from abuse and exploitation, and accountability for service providers. By integrating human rights into social care, Scotland can create a system that prioritises the rights, well-being, and empowerment of individuals in need of support.
Incorporating international human rights treaties into Scots law holds huge potential for improvements to Scottish healthcare and social care. It can help to ensure equitable access, eliminate discrimination, and can provide a means to hold the Scottish Government accountable on what they are doing to better make human rights a reality for those who miss out.
The Human Rights Bill is not written yet, and we all have the opportunity to influence and feed into the consultation by October 5, 2023. Letting the Scottish Government know your views on the forthcoming Human Rights Bill does not necessarily mean answering all of the questions asked in the consultation, and we would encourage organisations to contribute what they can in the areas which are important to their members and service users.
Lucy Miller is the Senior Policy Officer at the Human Rights Consortium Scotland
Please get in touch with Lucy on firstname.lastname@example.org for any questions on Human Rights Consortium Scotland’s work on human rights and incorporation.
HRCS will be running a series of events on incorporation and what this Human Rights Bill means throughout the next several months. For more information on this, click here.