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:

  • The right to an adequate standard of living, including adequate housing and food; and protection against poverty and social exclusion;
  • The right to the highest attainable standard of physical and mental health;
  • The right to education;
  • The right to social security and social protection.
  • And the right to take part in cultural life.

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” …

This is an extract from a guest piece by Michael Farrell on the PILA Bulletin on 6 February 2019

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