MODEL A UK Parliament legislative framework based on Scotland Act structure UK Parliament could extend scope of section 29 of Scotland Act 1998 to include rights enshrined in the International Covenant of Economic, Social and Cultural Rights (ICESCR) Requires political support by majority of UK Parliament This framework is how the ECHR is currently protected in Scotland. The judiciary are tasked with the responsibility to review compatibility and can declare unlawful legislation ultra vires. Positive ESC enforcement Human rights affirmative framework providing ESC rights with constitutional status in Scotland. Under this model the judiciary play a substantive role in scrutinising compatibility. MODEL B Scottish Parliament legislative framework full (Scottish Bill/ Charter of Rights) Scottish Parliament imposes legislation, which incorporates ICESCR or imposes domestically drafted form of ESC rights This would need to comply with the current reserved v devolved framework and so consideration of reserved areas such as Equality of Opportunity would need to be considered in terms of devolved competence Scottish Parliament Committee could be created to consider ESC rights before passage of subsequent legislation and court could declare incompatible legislation as ultra vires. Positive enforcement of ESC with various options for constitutional safeguards.
MODEL C UK/ Scottish Parliament legislative framework based on Human Rights Act structure Either UK or Scottish Parliament could adopt a similar structure to Human Rights Act that extends to ESC/ ICESCR This would need to comply with the current reserved v devolved framework. It is beyond the competence of the SP to amend the HRA. This option includes an interpretative clause; a duty on public bodies to comply and courts can issue declaration of incompatibility This is a less robust constitutional framework in terms of judicial overview. Declarations of incompatibility are not binding on Parliament and do not affect the application of the law. There is a strong element of deference to the legislature. D UK/Scottish Parliament legislative framework based on duty to have due regard to ICESCR Similar to the Equality Act 2010 public sector equality duty or the duty imposed by the Assembly to have due regard to the UN Convention on the Rights of the Child This would need to comply with the current reserved v devolved framework. This option requires that the judiciary play a supervisory role in ensuring compliance with the duty to have due regard. Weaker type of enforcement Procedural protection of ESC rights
rights are mainstreamed in Scotland it is unlikely a flood of ESC cases would arise if ESC rights are also mainstreamed in the decision making process. There are a variety of other mechanisms used by the judicial system to ensure that similar cases do not flood the system, one such mechanism is to allow for the conclusion of a test case and sist (temporarily delay) all other cases which are directly affected by the outcome. This allows for a jurisdictional judicial approach to control a number of similar cases and is well within the capability of the judicial structure to administer. Conclusion This paper has identified a number of routes through which ESC rights could be incorporated and implemented in Scotland in a legitimate and viable manner. Existing mechanisms for the better protection of ESC rights include implementation through the common law; expansion through the dynamic interpretation of CP rights; protection under the aegis of equality legislation; implementation through legislative frameworks; or protection under EU law. These mechanisms are available for immediate use, however, the paper also identifies that there are various limits to these particular avenues meaning that full implementation of ESC rights is not yet available. This that there is an ESC rights protection deficit in Scotland – this gap could be addressed through a number of other avenues for future implementation. The paper identifies that ESC rights could be better protected by commencing the socio-economic equality duty under the