Human = people

Ask the average person in the street what they associate with human rights and they probably will mention things such as police detention of suspects, or prisoners’ voting rights or, if their memory goes back a few years, slopping out. And thoughts on the subject are likely to be negative.

Few would probably think of the public spending cuts, or climate change, or Government procurement. Yet each of these came up in conversation with Professor Alan Miller, Chair of the Scottish Human Rights Commission, as we reviewed the Commission’s work since it opened its doors just two years ago.

Miller accepts that it remains an uphill struggle to have human rights recognised as something for everyone. “The past year has been one of positives and negatives and perceptions of human rights have been determined by court cases, which are unpredictable. We’re trying to get them seen in a broader picture. In the right to vote case, attention centred on prisoners, but little attention has been paid to dementia sufferers in a home in the Borders who were stripped of the same rights.”

A care for care

Care, and the rights of those being cared for, whether in residential homes or in a person’s own home, was in fact the issue that came out ahead when the Commission actively sought the public’s views on main issues of concern – and is where it has since focused much of its activity.

“We brought together all the key actors – care providers in the private and public sectors, users, advocacy groups, the Care Commission, the Scottish Government, COSLA. We consulted and with their input we developed awareness raising and a training resource called ‘Care about Rights’, which includes written materials, DVDs, films and case studies, and we have just completed training 80 people in the sector to act as trainers themselves with our support. This will be rolled out to hundreds and possibly thousands of others working in the sector, assisting them in ensuring services are delivered in a way that treats older people in a way their dignity deserves. And in advocacy.”

The subject highlights the scope of the Convention as now developed in the jurisprudence. Which article does this come under? Article 3, Miller replies – the right not to be subject to degrading treatment.

“Deficiencies in budgets could lead also to breaches of article 8, the right to respect for private and family life, as interpreted by the European Court of Human Rights increasingly as the right to human dignity, physical and psychological: it relates to people’s personal integrity, autonomy and right to self-determination.

“It’s the best-kept secret of human rights in Scotland, a much more extensive right than it might seem. There’s a huge untapped potential of interpretation.”

So well kept, in fact, that neither article seems to have featured in all the debate about public spending cuts, but Miller maintains that both are relevant.

“The spending programme cuts will have an inevitable impact on the quality of lives, especially of the most vulnerable. All political parties recognise that they need to be carried out in a fair way. We will call on public authorities and are willing to co-operate with them on how to take decisions within a framework of human rights, as the best way to guarantee that they are as fair as possible in the circumstances, for example, so that the quality of care does not fall below the threshold at which it becomes degrading.

“If services have to be curtailed, there should be consultation with those affected. Articles 3 and 8 are relevant again: there should not be a disproportionate effect. They provide a framework within which authorities take decisions.”

Pioneering work

But the Commission is not alone in developing good practice. For seven or eight years now, the State Hospital at Carstairs has been working on a human rights based approach to the delivery of care. An evaluation carried out for the Commission demonstrated how this has improved the quality of care there, and the new approach is becoming increasingly influential in the NHS.

What does it involve? “Under the old ways, when you were admitted, you were essentially stripped of your rights and were only given certain privileges at the discretion of the management. The culture shift that has taken place means that now, although some of your rights are taken away (liberty, obviously, for one), there are many others that can only be interfered with where there is proper justification and it is done in a proportionate way.

“It’s a much more a rights-based approach and not a blanket policy”, Miller explains, “and it produces a much more productive relationship between patients and staff.”

He adds that the approach is also recognised in relation to staff, with an emphasis on respect by management for their conditions of employment and working conditions. A human rights issue, I ask, as opposed to an employment contractual one?

“It’s a combination. It was clear at the outset, for example, that unless you have the right to a fair hearing – suppose you are accused of abusing a patient and you don’t have the matter dealt with within a reasonable time (and these things used to be hanging over people for months without proper investigation) – you wouldn’t expect someone to engage actively with patient rights. It’s one of the most telling factors and it applies equally to the care sector.”

Miller describes the State Hospital’s project as “probably the most advanced piece of work done in relation to human rights in Scotland”, with an emphasis on the accountability of those with a duty to provide care, improving their ability to do so and increasing patients’, and their families’, understanding of their rights.

How does he rate the awareness of rights in public bodies generally? “I think in Scotland there is an innate sense of fairness. The default position is that public bodies want to do the fair thing and to be seen to be doing so. Human rights can ensure that that happens. The connection is not sufficiently clear yet as to how it can be user friendly; there is a lot of institutional goodwill and openness to human rights, but we need to increase the ability to implement that on a day-to-day basis and increase human rights knowhow in public bodies.”

All this is relevant to the Commission’s other main project, scheduled to run until the end of 2012: a mapping project to assess to what extent human rights are realised in Scotland, starting with the Government’s international obligations. Phase 1, still in progress, is an exercise to check the compatibility of the law with human rights; next year the focus will switch to engagement with the public, to look at real life experiences.

“That will develop into Scotland’s National Action Plan for Human Rights, a coherent, consistent roadmap for progressively realising human rights entitlements. The outcome may involve proposing legal change, or inspiring policy development, or shifting resource allocation, or changing administrative practices. We hope that coming out of it, human rights won’t be regarded as a ‘fair weather friend’, but as something for all seasons and for everyone.”

Good in parts

How are the Commission’s relations with Government, then, in the light of recent events? “It has been a very interesting last year! We have become a critical friend of the Scottish Government – we give them credit where credit is due, but we are also holding them to account where they have not acted in accordance with human rights.”

On the plus side, in addition to the care project, Miller cites a co-hosted conference in Glasgow on climate change and human rights, ahead of the Copenhagen summit a year ago. This resulted in a communiqué in which the Scottish Government committed itself to exploring a human rights-based approach to climate change, which was commended at the summit when presented there.

“But the Government didn’t emerge from Cadder with much credit”, Miller continues. “It could do better in addressing those areas where there is an insidious culture developing of a hierarchy of rights – rights for those who are ‘deserving’ but not for the ‘undeserving’. This came up very clearly in the debate on the emergency legislation.”

Asked to elaborate, he adds: “The irony is that the emergency bill did things that weren’t required by the Cadder judgment (like the extended permitted time for detention from six to 24 hours), and didn’t do well enough the things that the judgment did require.

“It remains to be seen whether it will prove to contain an effective right to legal assistance. It has created a situation that is more urgent than it otherwise need have been: there wasn’t time to develop codes of best practice for the police and solicitors. In England, there was a two year lead-in. Here, it’s very likely that mistakes will be made through lack of understanding of the new arrangements, especially by the police where they haven’t yet been fully equipped to deal with the change.”

The Commission, along with its sister bodies south of the border and in Northern Ireland, has also been actively engaging over the prior Conservative proposal to repeal the Human Rights Act – though not formally part of the coalition programme.

“We defended the need to build on the Act, and also gave evidence to the Joint Committee at Westminster on business and human rights issues, and what needs to be done to address that in Britain.”

It also expects to engage with the judicial inquiry to be carried out into allegations of UK complicity with acts of torture during the so-called war on terror, including extraordinary rendition.

Legal interface

As for the legal profession, Miller recognises that the Commission’s inability to take on individual cases reduces the level of contact that there might otherwise be.

“Where it has happened, and will do so more I hope, is where lawyers identify something systemically wrong, where they get frustrated in dealing with things on an ad hoc case-by-case basis.

“In our mapping project, access to justice may well prove to be one of the deficiencies in human rights in Scotland. If there are cuts to the legal aid budget, and on anything approaching the scale in England, this will become more acute.

“We are keen to develop non-judicial dispute resolution processes, and over the next year we hope to be able to pilot and test them in real life situations.”

He adds that lawyers will have an important role in monitoring the implementation of the Cadder legislation.

With Lord Carloway’s review now taking a further look at the whole subject, “we’re very concerned to ensure that the experience of the next six months is effectively monitored and understood – lawyers have a huge potential contribution to make regarding on-the-ground experience. Then we can engage with the Government, Parliament, Carloway etc. So those are the kind of systemic issues where we hope to have practical co-operation”.

The past year Miller describes as a “tipping point” for the Commission in terms of establishing itself both domestically and internationally. Having been recognised with “category A” status by the UN, thus becoming a fully accredited institution, and been given the privilege of hosting the recent international conference (see panel), the Commission has certainly made its international mark in a short span of time.

But to achieve a similarly positive view for its field of work among the general public back in Scotland will take a little longer.

 Edinburgh on the map

The Scottish Human Rights Commission was honoured to be chosen to host, in October this year, the 10th (biennial) International Conference of National Human Rights Institutions (NHRIs), the first United Nations event to take place in Scotland. About 80 NHRIs congregated at the Scottish Parliament to discuss and debate the theme of Business and Human Rights.

The conference examined the need in a globalised world to address the vacuum in which business is not accountable in the existing UN human rights framework. The outcome was the Edinburgh Declaration – “a roadmap”, Miller explains, “for human rights institutions around the world to integrate the work of increasing the accountability of business as part of their ongoing work”. (Those interested can find the text at www.journalonline.co.uk/ Extras/1008785.aspx .)

The Declaration proposes ways in which NHRIs can increase their focus on human rights in a business context, and urges support for human rights defenders and victims of abuses.

In relation to Scotland, says Miller, the business and human rights agenda is significant in three areas of work that the Commission will be taking forward:

Impact assessments – Scottish-based companies are increasingly looking to enter emerging markets in the developing world where there are risks of becoming complicit in human rights abuses unless the companies know how to manage the risk, and therefore providing an impact assessment tool is a means of ensuring they know what they have to do.

Procurement – about 90% of Scottish enterprises are small and medium-sized enterprises (SMEs). “In procurement we are working with the Scottish Government. They have to their credit accepted our recommendations and last month issued public guidance to public bodies procuring contracts in the care sector to take human rights criteria into account. It’s quite groundbreaking for Scotland to have done this. We want to promote this and ensure these are understood as widely as possible.”

Climate change – in climate change there is the potential for Scotland to become a model for adopting a human rights-based approach. This has a number of dimensions. One is that Scotland has the potential of scaling up through public private partnerships, sharing research and development technology and expertise in renewable energy with the developing world. “That means a contribution towards the realisation and protection of human rights in the developing world as well as here, because of the interdependence that exists in this context. Also for those in Scotland who would suffer most from climate change (vulnerable people, including those living in poverty), it’s about taking preventative steps on issues such as flooding, losing house insurance and fuel poverty. It’s getting business and Government to recognise their shares of responsibility.”

www.scottishhumanrights.com