This blog forms part of an academic fellowship that our economist, Rob Watts, completed at the Scottish Parliament Information Centre (SPICe). You can read more information on this SPICe briefing.
Tomorrow, the Scottish Government’s 2023-24 budget will set out how it intends to raise, allocate and spend money within its devolved powers. We often discuss how these decisions will affect our economy and society. But with new legislation on the horizon that would enshrine economic rights into Scots law, should we assess how the Scottish budget affects peoples’ human rights?
When we consider human rights, we tend to think about civil and political rights, such as the right to life, freedom of speech and a fair trial. These are already enshrined in UK law.
In addition to these protections, the Scottish Government has proposed a new Human Rights Bill. This would enshrine a number of economic, social and cultural (ESC) rights into Scots law, subject to devolved competencies. These include the right to health, housing, social protection, and adequate standards of living.
Civil and political rights require governments to refrain from acting in certain ways. In contrast, ESC rights place obligations on the state to act. This is because delivering ESC rights in practice requires more than passing legislation. It also requires enough resources to be available.
For example, the right to housing requires sufficient resources to ensure safe and adequate housing is available to everyone. Decisions around housing regulation, social housing provision and housing benefit will in large part determine how and whether the right to housing is met, regardless of what human rights are enshrined in law.
What is human rights budgeting?
Because ESC rights place obligations on the state, the new Bill could have far-reaching consequences for how Scottish governments raise, allocate and spend financial resources. This creates a need to assess government budgets through a human rights lens. Human rights budgeting offers a tool to do this.
Government budgets are accompanied with forecasts and analyses across a range of traditional economic metrics, such as GDP and inflation. These are carried out by the Scottish Fiscal Commission for Scotland and the Office for Budget Responsibility at a UK level.
However, assessing the impact of budget decisions on human rights is much harder because there is an element of subjectiveness. Human rights can’t be narrowed down to a set of quantifiable metrics.
There are, however, a series of principles and obligations that underpin UN human rights treaties that can be applied to budgets. This autumn, SPICe attempted to apply these to the Scottish budget in a briefing on human rights budgeting. An easy read version is also available.
The briefing was authored by our very own Rob Watts whilst working at SPICe as an academic fellow. It was commissioned by the Equalities Human Rights and Civil Justice Committee and informed the Committee’s pre-budget scrutiny for 2023-24.
Broadly speaking, there are two ways in which human rights principles can be applied to budgeting. The first relates to the process of setting a budget, the second relates to the actual content of a budget.
The budget process
Human rights budgeting means that the process of setting a budget should be driven by three principles.
- Transparency: Parliament, civil society and the public should have accessible information about budget decisions.
- Participation: Civil society and the public should have opportunities for meaningful engagement in the budget process.
- Accountability: Budgets should be subject to oversight and scrutiny that ensures accountability for budget decisions and the impact these have on human rights.
The content of a budget
Human rights budgeting means that the actual content of a budget (i.e. the decisions taken around how money is raised, allocated and spent) should be in line with the government’s human rights obligations. These obligations provide criteria against which we can assess a budget.
- Progressive realisation: Governments must take steps towards the full realisation of economic, social and cultural rights over time.
- Minimum core obligations: These are the minimum protections that governments should guarantee everyone.
- Non-retrogressive measures: Human rights principles state that governments should not take active steps to deprive people of rights that they used to enjoy.
- Non-discrimination: All forms of discrimination must be prohibited, prevented and eliminated. This principle implies that budgets should be allocated in a way that reduces systemic inequalities.
- Maximum available resources: Governments are obliged to take steps to progressively realise rights to the “maximum of its available resources”.
Human rights and the Scottish budget
When applying these principles to the Scottish budget, a case study group of the population was chosen as an illustrative example – in this case, people with learning disabilities. This is because many people with learning disabilities are known to be far from realising their human rights, including rights on independent living, housing, social protection, accessibility and employment.
Two key budget decisions were looked at, both of which affect the rights of people with learning disabilities – those on adult social care and social security. These spending lines impact multiple rights, but most obviously, the right to an adequate standard of living and social protection, and the right to live independently in the community.
In both areas, real terms funding increases might be evidence of the Scottish Government taking steps to progressively realising rights. Spending on social care support for adults with learning disabilities rose by 11.9 per cent in the five years up to 2020-21, although there are concerns about the accuracy of these figures, as noted in a recent consultation.
Spending on the new Adult Disability Payment is forecast to be 22 per cent higher than the reserved benefit it replaces by 2026-27. However, increased funding in these areas is not necessarily sufficient to meet human rights obligations.
For example, there is evidence of potential breaches in minimum core obligations. This concerns delayed discharges, in which some people with learning disabilities are denied their right to live independently in the community and, arguably, their right to liberty. There is also evidence of retrogressive steps being taken, as eligibility criteria for social care support has been tightened to manage funding pressures. This means some people with a learning disability who were previously eligible for support might no longer be eligible or may be charged for some services.
What can we learn from this case study?
The point of case studies like this is to draw wider lessons. When applying the principles of human rights budgeting to people with learning disabilities and the Scottish budget, there are some areas where more information would have been useful.
First, there is little agreement on what minimum core obligations (MCOs) are in practice. MCOs imply that there is a minimum floor of standards around economic, social and cultural aspects of life that everyone is entitled to. It points to these minimum standards as being a right, not an objective to aspire to within a given budget.
This implies that resources should be found to meet these MCOs immediately. However, it is difficult to assess whether sufficient funding is in place without agreement on what these obligations are in practice and how these can be tangibly measured.
Second, more detailed financial information and data about people with learning disabilities would have enabled a more thorough and robust analysis. Experts have previously reached similar conclusions about other groups of the population that are furthest from realising their human rights.
Third, it might be useful to have a process for regularly gathering evidence, monitoring and reporting on human rights in Scotland and linking this with the budget. This could identify where the biggest “gaps” are between what rights exist on paper and what is realised in practice. This might help decision makers and experts better understand where resources are most needed and how budget decisions affect human rights.