Forward by the rights

A defining characteristic of a modern civilized society, or a rogues’ charter? Such appears to be the nature of the debate surrounding human rights in the UK, even as the nation marks the 60th anniversary of the United Nations Universal Declaration and, north of the border, our own Scottish Human Rights Commission goes public with its plans for action.

The Commission, readers may recall, has had a lengthy gestation and birth. First mooted back in 1999, just as devolution was introducing the reality of directly enforceable human rights, its future seemed in doubt at times as MSPs wrestled with whether we should have a Commission, or merely a single Commissioner, or simply avoid burdening the taxpayer with another “tsar” or quango. Finally in 2006 the Act went through, and early last year the new body began to take shape following the parliamentary processes that selected Alan Miller, its head, and his three fellow commissioners.

Well matured

Professor Miller (the title comes from his visiting chair at Strathclyde University) concedes that the Commission has followed “a long and winding road”, to the frustration of some, but insists that the lengthy public consultation and rigorous parliamentary scrutiny has ultimately enhanced the SHRC’s credentials. “My own view is that that was a very healthy and helpful process, in that it has now grounded the Commission in terms of understanding of its powers, its mandate. Generally the international experience is that if you establish a Commission very quickly, without that sort of consultation it tends not to be as legitimate as one that has been longer in the making.”

He adds in explanation: “Probably the most important thing to come out of the process has been the independence of the Commission. To have been chosen by the Parliament rather than appointed by government stands our Commission up extremely well.”

Although the SHRC is restricted in its ability to take part in legal proceedings (more on that below), Miller denies that its powers have been watered down. “The scrutiny that the bill was subjected to has really much more to do with governance and the relationship between the Commission and the Parliament, rather than any radical revisiting of its powers or its mandate.”

If international recognition is the test, the Scottish Commission is indeed to the fore. The body meets all the “Paris principles”, the yardstick of a human rights commission’s legitimacy (these cover funding, independence from government, security of tenure, diversity of composition, powers of inquiry and monitoring, and more), and once its first annual report and strategic plan have been published, Miller intends to apply for “category A” status as a UN-accredited Commission.

Recognition has already come with the Scottish Commission being elected inaugural chair of a network also comprising the two Irish human rights commissions (for the North and the Republic) and the Equality and Human Rights Commission for Great Britain; and to represent the 25 or so European commissions on a global steering committee to develop proposals for approaching human rights in relation to issues such as climate change, and the role of business. “What’s very exciting about this is that in this interconnected world we really have to understand the changes that are taking place in the world, how they will impact and are impacting in Scotland, and accept our share of the responsibility of trying to contribute towards finding solutions in the benefit of everybody. This linking Scotland with the rest of the world is very much the call of the times in which we live.”

Mapping a course

Back closer to home and to the bread-and-butter issues of most immediate concern in daily life, how will the Commission go about its work? A draft programme out for consultation from this month until March identifies the main proposed themes.

First off is a “mapping” of just where human rights stand in Scotland – the first time, Miller states, that an objective and authoritative analysis will have been done of the extent to which the UK’s international obligations are actually realised in real life. This will give the SHRC the evidence as to where the gaps are and what the priorities should be for action, leading to the preparation of a “national human rights action plan for Scotland: what needs to be done, how and by whom”. The aim is to complete this by the end of 2010.

Another big topic is the Commission’s intention to develop, and encourage other bodies to adopt, a “rights-based approach” towards problems that we face within society. “We have a particular model of how this approach might work best in Scotland, which we’re currently calling a human rights interaction: it would bring round the table the interested parties – individuals, public authorities, policymakers, those who have expertise in the area – to go through a process of trying to find solutions to problems through better awareness of the validity of human rights. So you’d have the facts presented on the table, analysis of what the rights at issue are, identification of a common framework of shared responsibilities around the table, and then a recall after a time to assess what had actually been done to carry these out.”

The SHRC’s ultimate aim is to help Scotland develop a “human rights culture”, as Miller puts it. “Human rights are not just an end in themselves, they are a means to achieving that end and that is where I think the gap is throughout the world, certainly not least in Scotland. It’s about trying to provide the tools to public bodies for using human rights as a means towards improving the delivery of their services, for example to older people in residential homes, or the victims of historic institutional child abuse, or migrants, or a public complaints system that is more effective and coherent, so there is a whole myriad of circumstances in which a rights-based approach can improve the quality of life and have public benefits.”

Capacity building

Rather than acting as a watchdog, Miller prefers to see the Commission as “an enabler, a catalyst”, constructively challenging public and private bodies and building their capacity to understand and implement their human rights obligations: “a more promotional role of capacity building in Scotland”. If gaps are found in entitlement to redress, these will be highlighted for the Parliament.

Fully aware of the sceptical climate that exists in much of the press and to a lesser extent the public, Miller yet believes that if the Commission manages to make the connection in people’s minds between human rights and their day-to-day lives, it will be tapping into a great reserve of latent goodwill. (Though as an independent body it will not shrink from taking up unpopular causes.) “One issue we’ve already taken an initiative on, and done a scoping project to see how the Commission might effectively intervene, is the conditions of older persons in residential homes. There are few families that would not resonate with concern about some of the experience that older persons are subjected to in Scotland. We’re also looking into the experience of the users of mental health services, and again this is an area which has a very wide impact in many families and communities in Scotland.”

The Commission has power to recommend changes in the law, and one result of its mapping exercise will be to identify any gaps where it fails to conform to the UK’s international obligations, but Miller recognises that the bigger challenge will be to ensure that rights are exercised in practice, even where the correct legal framework exists. Again mental health is a case in point. “The Mental Health (Care and Treatment) (Scotland) Act 2003 is world class legislation. Has the practice fulfilled the potential, the intent of the legislation? Many would say not. What are the reasons for that? What could be done to make that legislation more effective and realise its potential? It’s a culture shift and that’s where we see the Commission as potentially adding some value.”

Unlike some of its counterparts (Northern Ireland, for example), the Commission does not have the power to raise proceedings in its own name, or provide support for other litigants. But it can intervene, with leave of the court, in proceedings by others, which Miller believes could be an effective tool. “It’s one that we look forward to exploring along with the judiciary and indeed lawyers. I was in private practice as a legal aid practitioner for almost 20 years and I know the pressures that lawyers face in the system. I would hope the relationship the Commission can have with these hard pressed legal aid practitioners is that when they see systemic problems either in lack of access to justice or the substantive law, they inevitably have to be reactive, they take the cases that come through the door, but if they can bring these to the attention of the Commission, then we can be proactive and use our variety of powers in a number of ways. Maybe we will go to the profession and say, let us know if there are areas of law that might be explored in taking a case, because we would like to be able potentially to intervene.”

Auspicious event

Human rights to most people, and professionals, in Scotland means the European Convention. But while it is the instrument given direct effect in domestic law, it is only one of a family of international human rights instruments accepted by the UK, awareness of which Miller intends the Commission to raise. Already the 2006 Act has been amended to enable it to play a specific monitoring role in relation to the UN Treaty on the rights of persons with disability, and the Convention against torture or inhuman or degrading treatment or punishment.

And he believes that having the public launch of the Commission coincide with the 60th anniversary of the UN Declaration is particularly auspicious. “It’s an inspiration for the Commission to live up to, its birthmark. It also provides the value base for all the subsequent international human rights treaties and obligations that are applicable within Scotland, and in promoting human rights we will be seeking to promote both the values and the law that come from, initially, the Universal Declaration.

“If you look back over the 60 years of its experience you have to be quite sober in assessment. It has been unable to fulfil its potential; it has been in many senses overtaken by political and economic developments and conflicts within the world; but it remains universally recognised as the standard which all of us should aspire to reach.

“What I think now needs to be done in reflecting on the last 60 years is not just to see human rights as this far off, distant blue sky that we all want to get to one day while finding ourselves overtaken or sidelined by other events, but to really understand the power of human rights by seeing it as a means to achieving this end.”

Reverting to his theme of instilling a human rights culture in the country, he adds: “If that’s not integrated into the day-to-day governance of an institution or a country then the danger is that a lot of these aspirations in the Universal Declaration will remain just that. So it’s providing the tools to implement the values of the Universal Declaration that we would see as being the primary challenge, and a very exciting opportunity for us on the 60th anniversary to set off on that journey.”

What can the Commission do?

The Scottish Commission for Human Rights has been created to:

promote awareness and understanding of and respect for, and in particular to encourage best practice in relation to, the European Convention rights and rights in any other ratified instrument; publish information about human rights, and provide education and training; provide advice and guidance; conduct research; monitor and recommend changes to the law (in consultation with the Scottish Law Commission), and to the policies and practices of public authorities.

It has the power to conduct inquiries into Scottish public authorities in connection with human rights, and to compel evidence; to apply to intervene in civil cases in the Scottish courts; and to intervene in any other court or tribunal where the rules of that court or tribunal allow.

Steeped in rights

Prior to his appointment to the SHRC, Alan Miller was Director of McGrigors Rights, a human rights law consultancy which, among other things, assisted public authorities develop best practice in the field. He formerly ran a law practice in Castlemilk, Glasgow, and chaired the Scottish Council for Civil Liberties and its successor, the Scottish Human Rights Centre. In the international sphere he has worked with Iraqi, Sudanese and Palestinian lawyers, as well as being expert adviser to the global Business Leaders Initiative on Human Rights led by Mary Robinson, former UN High Commissioner for Human Rights.

The three part-time commissioners appointed to serve along with him are:

Shelagh M McCall, an advocate and former solicitor, who in January 2006 joined the United Nations as a prosecution appeals counsel at the International Criminal Tribunal for the Former Yugoslavia in the Hague;

(Robert) John McNeill, whose career has been spent in criminal justice including as a prison governor in Northern Ireland and Scotland, chief executive of SACRO, and the director in the Scottish Prison Service responsible for regimes and healthcare, and for a multi-disciplinary project in human rights;

Kay Hampton, Professor in Communities and Race Relations in the School of

Law and Social Sciences at Glasgow Caledonian University. She worked for a time in South Africa on research and policy for the post-apartheid era, and was Scottish Commissioner in the Commission for Racial Equality.