This blog, by Alan Miller, follows his comments during the closing plenary panel at AHRI 2018 regarding the entrenchment of human rights into domestic law and his work on the First Minister’s Advisory Group on Human Rights Leadership in Scotland.
The First Minister’s Advisory Group on Human Rights Leadership published its recommendations on Dec 10, 2018 on the occasion of the 70thAnniversary of the Universal Declaration of Human Rights. The Advisory Group had been established at the beginning of 2018. Its remit was to prepare recommendations on the next steps on Scotland’s human rights journey including how human rights leadership should be exercised in and by Scotland post-Brexit. Following wide-ranging consultation with those with lived experience of the denial of human rights, civil society, the public sector, the judiciary and the legal profession, the political parties and Cabinet Secretaries as well as independent experts the Advisory Group presented its published recommendations to the First Minister on Dec 10, 2018.
In a press release the First Minister supported the recommendations’ ambition of human rights leadership in and by Scotland and committed the Scottish Government to establish a National Task Force to take them forward. There has been wide support from across society and a debate within the Scottish Parliament the following week demonstrated broad cross-party support.
1 An Act of the Scottish Parliament which provides human rights leadership
This Act will establish a new framework of human rights to improve people’s lives. It will set out for the first time and in the one place the rights belonging to everyone in Scotland. It will recognise that human dignity underpins all of these rights and is the bedrock of society. The Act will restate those rights already provided under the Human Rights Act 1998. It will provide further rights drawn from UN human rights treaties ratified by the UK but not yet incorporated, including economic, social, cultural and environmental rights. So as to enable full and equal enjoyment of these rights, the Act will also provide specific rights to children, women, persons with disability and on race. These rights will also be drawn from UN human rights treaties. As part of demonstrating leadership and reflecting international best practice the Act will additionally provide rights for older persons, LGBTI communities as well as for protection against poverty and social exclusion.
2 A public participatory process to be developed as a vital part of preparation of the Act and its implementation
This will enable the public to lay claim to and take ownership of the rights to be provided within the Act. It will also enable the public to influence how best the Act can be practically implemented and the rights made real in everyday life.
3 Capacity-building to enable effective implementation of the Act so as to improve people’s lives
People need to know their rights if they are to be able to enjoy them. This is widely recognised and is an obligation on all states outlined in the UN Declaration on Human Rights Education and Training. Human rights education should begin at an early age and is a lifelong process. It needs to form part of the school curriculum. Decision makers, who play key roles in the practical implementation of rights, should be given the necessary training to become human rights leaders in their areas of responsibility whether they be, for example, head teachers, hospital managers or local authority chief executives. Effective practical implementation of human rights and of the Act also lies within the everyday accountability sector where human rights standards should be monitored and upheld by a range of bodies including inspectorates, regulators, complaint handlers and adjudicators.
4 A Scottish Government National Mechanism for Monitoring, Reporting and Implementation of Human Rights
The Scottish Government should establish a National Mechanism for Monitoring, Reporting and Implementation of Human Rights, aligned with general UN recommended good practice. Its three core functions would be the following: (a) Coordinating Scottish Government engagement with European and UN human rights systems, including reporting to and implementation of recommendations within the devolved context (b)Monitoring the UK Parliament and reporting to the Scottish Government, Scottish Parliament and the public on any developments as regards the continued effect of rights “returned” from the EU to the UK Parliament (c)Monitoring the EU and reporting relevant rights developments to the Scottish Government, Scottish Parliament and the public for consideration of adapting any such developments within devolved areas of competence.
5 Development of human rights-based indicators for Scotland’s National Performance Framework (NPF)
Achieving the NPF National Outcomes is of critical importance in improving people’s lives and affirming the values and aspirations of our society. Improved indicators need to be developed for the present NPF National Outcome of “We respect, protect and fulfil human rights and live free from discrimination”. The next NPF needs to take a human rights-based approach to its re-development and use human rights-based indicators for future measurement of all National Outcomes. This approach, including budgetary process indicators, would support better realisation of all of the NPF Outcomes as well as of the Sustainable Development Goals and also improve the implementation of all of Scotland’s international human rights obligations.
6 Process for Implementation of Recommendations 1 – 5
In order to take forward the above recommendations a National Task Force (NTF), led by the Scottish Government, should be established. It should form part of the government’s leadership position of Scotland’s National Action Plan on Human Rights (SNAP). To ensure the delivery of the recommendations, the government led NTF would require its own secretariat, executive and Ministerial leadership and would develop a plan for implementation of the recommendations. It needs to be a multi-stakeholder body drawing upon the expertise and experience of both duty-bearers and rights-holders and their advocates in order to effectively implement the recommendations. In addition, it is recommended that the powers and resources of the Scottish Human Rights Commission are strengthened so as to assist in the implementation of the recommendations.
7 Integration of any further devolved powers into the framework as proposed in Recommendation 1 and, if independence, a written constitution including a Bill of Rights for Scotland.
Any further powers – such as employment, equality or immigration – which may become devolved could be integrated into the framework proposed by Recommendation 1. An independent Scotland would self-evidently not be bound by the limitation of devolution. Consequently, it could provide constitutional protection to a Bill of Rights. A Bill of Rights in an independent Scotland could extend protection of all human rights across all parts of public life. This is the international norm.
The First Minister, in welcoming the Report and ambitions, has committed that “as a first step I will establish a National Task Force early in 2019 to progress these plans”.
Wider significance of the Recommendations
The Introduction to the Report to the First Minister described the recommended new human rights framework as serving as an anchor of Scotland’s progressive values, a compass to navigate the uncharted post-Brexit environment and as a signal to the international community reaffirming support for an international rules-based order in these uncertain times. Within any UK post-Brexit context, the implementation of the recommendations in and by Scotland can serve as an example of steps to be taken to ensure no regression of rights, to keep pace with progressive rights developments within the EU and to demonstrate leadership. Through their implementation – including a broader approach and coherence across not only civil and political but also economic, social, cultural and environmental rights – Scotland would be contributing its experience to a Europe facing similar challenges of economic, social and cultural insecurities and other causes of populism and self-interest. Similarly, in a global context, the implementation of the recommendations would be a welcome signal from Scotland of a reaffirmation of a currently challenged but ever necessary international rules-based order founded upon the UN Charter and the Universal Declaration of Human Rights.
To read the full Report, visit www.humanrightsleadership.scot
Professor Alan Miller is past Chair of the First Minister’s Advisory Group on Human Rights Leadership and previously held the elected positions of Chair of the Scottish Human Rights Commission and Chair of the European Network of National Human Rights Institutions. He is currently a Special Envoy of the Global Alliance of National Human Rights Institutions and also serves as an independent expert with the UNDP Crisis Response Unit. He is writing in a personal capacity. Twitter: @alan_miller01
This blog was reproduced with the permission of Thomson Reuters, publishers of the Scottish Human Rights Journal.