Michael Farrell is a human rights law consultant, the Irish member of the European Commission on Racism and Intolerance, a member of the Council of State and former FLAC Senior Solicitor.
Brexit, with its possible threat to European human rights laws and standards, has not deterred Scotland from taking a major new human rights initiative. A little over a year ago Scottish First Minister Nicola Sturgeon set up an Advisory Group on human rights to make recommendations “to ensure Scotland is a world leader in respecting and enhancing human rights”.
The Advisory Group included Irish human rights expert Professor Aoife Nolan from Nottingham University and was chaired by Alan Miller, former Chairperson of the Scottish Human Rights Commission. It reported last December and, speaking when she received the report, Nicola Sturgeon said: “I wanted to ensure Brexit does not harm human rights in Scotland and that we remain in step with future advances in European human rights”.
The Advisory Group report set out three Guiding Principles: ‘Non-regression from the rights currently guaranteed by membership of the European Union; keeping pace with future developments within the European Union; and continuing to demonstrate leadership in human rights’. They had also been asked to make recommendations about economic, social and cultural rights as well as the more traditional civil and political rights protected by the European Convention on Human Rights (ECHR), and to advise about incorporating UN human rights treaty provisions into Scottish law.
The UK Human Rights Act, which partially incorporates the ECHR, already applies in Scotland, with the added power for courts to strike down legislation by the Scottish Parliament or quash administrative decisions if they are not compatible with the ECHR. However, this only applies to matters devolved to the Scottish Government and there is concern that if Brexit goes ahead, a future Conservative government in Westminster could repeal the whole Human Rights Act, including its provisions for Scotland.
The Scottish Government had also adopted a National Action Plan on human rights in 2013, which had been largely drawn up by the Scottish Human Rights Commission, but there had been criticism that neither the Human Rights Act nor the National Action Plan dealt sufficiently with social and economic rights, which affected large sections of the population.
To deal with this criticism and to protect the rights covered by the Human Rights Act, the Advisory Group recommended that the Scottish Parliament should adopt a new, comprehensive Act that would include all the civil and political rights protected by the Human Rights Act, together with far-reaching social and economic rights, such as:
It should also include the right to a healthy environment and the means to enforce it, more detailed protection for LGBTI rights, the rights of children, women, older persons and people with disabilities, and provisions dealing with racism.
In addition the Act should incorporate the main UN human rights treaties and the Council of Europe’s Revised Social Charter into Scottish law.
The proposed Act would be unique in the breadth of areas that it would cover and it would also set out a two-step process which would initially require public bodies to give “due regard” to the new social and economic rights it would include. The Act would then include a ‘Sunrise’ provision which would specify a date after which a public body would be required to “comply” in its decisions with the rights in question by using “the maximum of its available resources”.
The delay in introducing the mandatory ‘compliance’ requirement would be to allow time for public bodies to become familiar with the new duty imposed on them and to develop plans for complying with it.
The report also calls for an active consultation process to involve people in deprived and vulnerable communities, and persons with experience of denial of their rights, in the drafting of the new, comprehensive Act and in the implementation plans. It also calls for action to raise awareness among those most likely to be affected about their rights, and greater access to the courts to assert those rights, including allowing NGOs and charities to initiate legal challenges. And it calls for the early establishment of a special Task Force to manage this process.
It was not part of the Advisory Group’s mandate to deal with the issue of Scottish independence but the report suggests that if Scotland does become independent the proposed comprehensive human rights Act could form the basis for a Bill of Rights to be included in the constitution of the new state.
First Minister Nicola Sturgeon welcomed the report when it was presented to her in December 2018. She said she shared “the ambition … that Scotland should introduce a human rights statutory framework” and supported the proposed public consultation process. She undertook to speedily establish a National Taskforce to take forward the Advisory Group’s recommendations.
If fully, or even partially implemented, this ambitious plan could set a headline in terms of human rights protection for both jurisdictions on the island of Ireland.