Opinion: Judith Robertson

On Saturday 10 December, the world marked Human Rights Day – the 68th anniversary of the Universal Declaration of Human Rights. Adopted by the United Nations in 1948, this landmark document affirms the values and principles of equality and respect for each and every person. It is the foundation for the evolving system of international human rights laws and standards that create legal obligations on Scotland’s law and policy makers, and its public authorities.

This year, Human Rights Day comes at a pivotal time for human rights in Scotland. The current legal framework of protections is under threat as a result of Brexit, and from the potential repeal of the Human Rights Act 1998. Equally, significant opportunities exist to strengthen protection for human rights by incorporating more international rights directly into Scots law, and by putting human rights at the heart of new law and policy being developed by the Scottish Parliament and Scottish Government.

Threats

Brexit will almost certainly lead to a direct loss of legal protection for human rights, as the European Union’s Charter of Fundamental Rights – an important backstop of protection – will cease to be binding on the UK. It also renders the UK’s commitment to the European Convention on Human Rights more vulnerable.

In the meantime, the UK Government has a continued policy to repeal the Human Rights Act 1998 and replace it with a “British Bill of Rights”, the contents of which are as yet unspecified. Given the nature of the political debates and motivations behind this move, it is extremely difficult to see how this can be anything other than regressive when it comes to protecting human rights. The Scottish Human Rights Commission has a longstanding view that the Human Rights Act does a good job of protecting human rights, and that there is simply no need, or indeed appetite in Scotland, for its repeal and replacement.

Opportunities

Notwithstanding the legal protection provided by the Human Rights Act, the Commission is clear that it provides a floor, rather than a ceiling, for realising human rights. The Act does not, for example, offer domestic legal protection for the rights that are contained in the International Covenant on Economic, Social and Cultural Rights – such as the right to healthcare and an adequate standard of living. There is significant opportunity in Scotland to advance human rights for all by making this, and other international treaties, enforceable in domestic law. We welcome the First Minister’s commitment to exploring this further in a speech to mark Human Rights Day last year, and will continue to work with the Scottish Government to support the delivery of its manifesto commitment to engage in a collaborative process with people across Scotland to “advise on the guaranteed protections we should seek to enshrine in law”.

Opportunities for progress also exist in relation to specific international rights and related areas of Scottish law and policy. Social security, for example, is a human right protected by a solid body of international legal standards that Scotland is signed up to. The Commission believes the redesign of a social security system for Scotland is a perfect opportunity to implement this right in practice, and would fit well with the Government’s broader commitments to do more to realise rights. Similarly, there is significant scope to look at how Scotland’s powers in relation to taxation and fiscal policy can be used to better protect and realise human rights.

Scotland’s National Action Plan for Human Rights (SNAP) is an important vehicle for collaboration between public bodies, civil society, the Commission and Scottish Government. Now entering its fourth year, and recognised as an example of best practice internationally, key projects have included Housing Rights in Practice, a partnership to empower people living in Leith to use human rights to achieve improvements in housing conditions. A National Baseline Assessment of the relationship between business and human rights has also been published.

So there is significant scope for continued progress towards realising the values and principles set out 68 years ago in the Universal Declaration. The Commission welcomes the opportunity for continued dialogue with all stakeholders, including the legal community, as we continue our efforts to maximise the opportunities and mitigate the threats to human rights in uncertain times.