Human rights: When can we still call something “law”?

We have been living with “human rights” as part of domestic law since the adoption of the European Convention on Human Rights of 1951, and more directly since the Human Rights Act 1998 (“HRA”). The European Court of Human Rights has developed an extensive jurisprudence which, from time to time, is challenged in the political sphere as “judicial activism”. Hence current calls in some quarters for the UK to leave the Convention. 

New international conventions

Since the UN’s Universal Declaration of Human Rights in 1948 and the ECHR, several other similarly themed international conventions have been agreed, e.g. ICESR (International Convention on Economic and Social Rights), CERD (Convention to Eliminate Racial Discrimination) and CEDAW (Convention on the Elimination of all forms of Discrimination against Women). There seems to be a general perception that since the 1960s the ECHR has had beneficial effects on the way the law has developed. 

The Scottish Government has established the Scottish Human Rights Commission and is consulting on incorporating these more recent conventions into Scots law. This proposal is the subject of an article at Journal, September 2023, 12 by the Commission’s Luis Yanes and an associated article at p 14 by Barbara Bolton. It is apparent from both articles that it remains unclear how the adoption of these conventions as part of domestic law would, or could, play out in practice.

What can “law” do in society?

Tritely, law is the queen of the social sciences. There is a tension between rules designed to promote certainty and the need for the law to evolve to meet social change and particular equities. Many statutes embody Government policy. Statutes that are not directly normative are the “fuzzy edges” of the legal world, as are guidance, obligations to “have regard to” particular considerations, and many others. This is often policy aspiration written out as statute. Normative-lite statute must be seen as part of the yet larger spectrum of how society works generally. 

How is this relevant to the conventions?

The last 70-odd years of domestic law living with the ECHR and the HRA, show us that there are numbers of instances where a HR decision in effect states that some piece of the way society works is “illegal”, e.g. the issue of the rights of prisoners in the UK to vote in elections, which was prominent a few years ago. This requires ECHR state parties to do something to improve or correct the issue. These actions may potentially cost a lot of public money, or they may not.

The common problem?

It is hard to see how something can be called a “legal” right unless it is justiciable. Remedies must be accessible, timely and effective. Both Journal articles explain this point. Because of the more general way in which the economic and social requirements of the more recent conventions are stated – e.g. rights to take part in cultural life; the right to work; to continuous improvement of living conditions; to have good education – what would in the past have been considered the “non-legal” part of the spectrum of how society works would become justiciable, even if the application is only against the state, and their individual application is not easy. These obligations differ from the older and more traditional civil and political human rights. 

So, if these conventions are directly adopted into Scots law, what happens when a plea is taken before a sheriff that there is a breach of, say, ICESR? A damp flat does not meet ICESR article 11. If a sheriff says so, what are the providers of the flat to do? Budgets may only allow gradual upgrades and refurbishment over years. This is not, as it seems to me, the same kind of issue as that for prisoners’ votes, or the fairness of trials. 

In the academic sphere, justiciability is well recognised as an issue. Professor Katie Boyle discusses in her book Economic and Social Rights Law (Routledge, Taylor & Francis Group, 2020) the possible principles for adjudication of economic and social rights issues. The sheriff might hear submissions that a rule is “anti-democratic” (usurping the legislative function); “indeterminate” (that the economic and social requirements are too vague for a court to apply in individual situations); or alternatively on “incapacity” (that the court lacks the means of assessing these large broad questions). I find it difficult to see how the Scottish courts could readily judge such issues, which are often distant from the kinds of decisions that law, as we are accustomed to it, provides.

By adopting these conventions into Scots law without thinking through how they may interface with the rest of public policy, we are at risk of saying that we have a new “legal” tool in the workshop, but because it is seeking to operate in areas where general state policy has been the existing norm, it may not, in reality, have any purchase or grip on the issue concerned. It is a rubber spanner. We should stop calling “law” what is actually general – and aspirational – public policy. Otherwise, people will say “but it is the law”, and it will look justiciable, and politicians will reply “we cannot do everything”. The rule of law depends on the idea that law should be knowable in advance and any rights it gives are practically enforceable in society.