Herald on Sunday, Sunday National, 8th September 2024.
Critics and fans probably agree: the proposal was emblematic, in its way, of the late Sturgeon and brief Yousaf premierships. In contrast with the situation down south, where even existing human rights protections remained under constant threat from Conservative politicians, they decided the Scottish Parliament would do something radically different.
First, the UN Convention on the Rights of the Child would be brought into domestic law for the first time, obliging Scottish public authorities to think about the distinctive rights of children and young people, and allowing the courts to cross-checking legislation passed by Holyrood against key UNCRC principles, including core principles that every part of the state should put the best interests of children first in all their decisions.
This was due to be followed up by a bumper Human Rights Bill, going even further. The Scotland Act already says that Holyrood must uphold the basic principles set out in the European Convention. You’ll be familiar with many of the civil and political rights involved: fair trials and freedom of expression, the right to property, freedom of religion and the right to privacy, to name but a few.
But international law goes further, recognising rights to a healthy environment, to food and adequate housing, access to education and culture. The plan was to find a way to bring all these social and economic rights home. On the face of it, the basic idea didn’t seem too legally complex either. The Scotland Act makes it plain that MSPs can pass laws “observing and implementing international obligations.” This isn’t impermissible constitutional tinkering.
The same couldn’t be said, however, for the second aspect of the proposals. At the urging of the National Human Rights Taskforce, in 2021 the Scottish Government also agreed to bring international conventions on racial discrimination, discrimination against women, and on the rights of disabled people into the Bill. But, but, but – equal opportunities are reserved to Westminster. So three years ago, we got an apparently progressive announcement about “maximalist” incorporation, a happy third sector, and the rest just seemed like details to be worked through.
You can understand the political logic to this. In London, you had a conservative administration at best ambivalent – and at worst, determined to rip up – the limited human rights brought home in 1998. One of the significant Brexit counter-revolutions in British public life has been an untick in the language of parliamentary sovereignty, while at the same time, shovelling that power into the hands of the executive and minimising meaningful scope for parliamentary scrutiny.
Courts have been blamed from applying standards established by parliament, lawyers abused for representing their clients, and anything which frustrated the bulldozer process of the government rolling out its political agenda unchecked. Anything with the tag European attached has looked particularly vulnerable to allegations it was an alien outgrowth planted in Britain’s uncodified by the dastardly Tony Blair in the attempt to Europeanise our ancient democracy and its traditionally ineffective protections for civil liberties.
But this human rights ambivalence has deeper roots. Since the Act was introduced by New Labour, successive UK politicians – including a wheen of Labour Home Secretaries – have promoted the idea that adhering to the ECHR is a problem. Aided and abetted by elements of the British media who enjoy telling human rights fairytales, the Tories have kept ECHR reform or repeal permanently on the table for twenty-four years now, in a kind of dance of the seven veils to eurosceptic audiences undiscouraged by the progress of Brexit.
Those divisions continued this week, at least in the Conservative Party. The future of human rights law remains a hot button topic in the Tory leadership race, almost immediately foregrounded as a critical dividing line separating the survivors vying to replace Rishi Sunak. Tom Tugendhat, perhaps conscious of the risk of looking like a centrist squish given the ongoing rightward drift of his party, argues “the entire purpose of international treaties is to keep British people safe, not for us to worship international treaties,” arguing the European Convention was drawn up “for a different world.”
Robert Jenrick sings a similar tune. He has told the media “he doesn’t believe the ECHR is reformable” but claims this isn’t from “a particularly ideological perspective.” “I do it from having travelled across Europe,” he adds, as if a booze cruise to Boulogne or a stint crisping up on the Costa Del Sol adds credibility to his position.
When initially floated, the idea of a distinctive Scottish human rights Bill marked a powerful break from this discourse. As the UK dismantles existing human rights protections, the Scottish Parliament would be building new ones. This spoke to the SNP’s appetite for finding constitutional dividing lines, but also the party’s nascent state-building ideas within the UK, signalling what the constitution of a future independent Scotland could look like and the democratic principles it could espouse.
It is also the kind of innovation which attracts attention in international circles, sowing the idea not only domestically but abroad that Scotland was pursuing a distinctive approach, reflecting distinctive political attitudes and analyses to the basic rights British politicians have mainstreamed the denigration of. Legislative diplomacy if you like.
This week, we discovered that the Human Rights Bill won’t feature in any SNP programme for government until after 2026. The new Scottish Human Rights Commissioner Angela O’Hagan blasted the decision, arguing that “abandoning this Bill denies people access to justice to ensure their human rights are fully realised, from a safe home to decent food and good health and social care” and that the government had “failed to honour” its commitment to campaigners. That’s undeniable.
But those details I alluded to earlier – breezily ignored in early announcements about the Bill – have also had their part to play in the infinite delay of this once-symbolic Scottish Government proposal. In a letter to Holyrood’s Equalities, Human Rights and Civil Justice Committee this week, the Cabinet Secretary admitted that everything has turned out to be much more complex than the initial gambit recognised.
“It has become clear to me that the constraints on the devolution settlement – highlighted by the Supreme Court decision in the 2021 UNCRC Bill reference – limit how far a new Bill can go in practice to advance rights realisation through treaty incorporation.”
She isn’t wrong. The UK Supreme Court’s judgment on the UN rights of the child Bill gutted not only the application of children’s rights in Scots law, but severely clipped the freedom the devolved administrations to do anything similar on social and economic rights. After the judgment, their ability to bring international human rights into devolved law isn’t just more limited – it’s much, much more messy, only applying to parts of the statute book but not others. Even for folk who work with law for a living, complexity like can bring on migraines. There has been a degree of reluctance to recognise these implications for some time.
The optics are worth considering too. A government simultaneously telling people they have a right to food and housing while cutting public services risks not only its own credibility – but the credibility of human rights rhetoric more generally.
The European Court in Strasbourg has a line commonly written into its judgments. The Convention should be there to protect rights that are “practical and effective rather than “theoretical and illusory.”
The idea that the ECHR prevents the Home Office from deporting violent criminals because of their close family connections to their cat – a fiction dreamed up and popularised by the now sainted Theresa May – certainly undermines the credibility of the ECHR project, if enough folk are dumb enough to believe on it and act if it was true.
But parliaments passing empty homilies about abstract economic and social rights against a backdrop of public sector cuts, making those rights all the further away from being lived and breathed in our streets in the community – and felt in small places close to home, to borrow Eleanor Roosevelt’s line – presents its own kind of threat to the credibility of human rights rhetoric. Particularly if, like John Swinney’s government, you find yourself invited to do both at the same time.
If you are hungry and are told you have a right to food, don’t have a roof over your head but are assured you have a right to a home, folk are entitled to ask, with a degree of scepticism, are these standards to aspire to, or a ground floor people are entitled to expect their government see honoured, or just empty rhetoric?
This is a perennial tension in human rights work across the world. Campaigners argue that a rights-based approach can help governments of whatever political stripe remember what’s important. The threat of legal consequences – as opposed to relying on the discipline of a political backlash – helps focus ministerial minds and puts realising these rights at the heart of decision-making.
In human rights discourse around the world, we talk often about the progressive realisation of social, economic and cultural rights. Countries must take steps to achieve the full realization of rights to the maximum of their available resources, the Conventions say. It is trite to say that there will be significant disparities in the resources and infrastructure different states have to realise those rights.
The idea of sending out messages is almost never out of the mouths of modern politicians. Yes, there’s the dense letter of the law on the page. Sure, there’s the complex legislative language, and the detailed rules you’ll find written into every Act of Parliament, doling out powers, creating remedies correcting and sometimes creating injustices. But I don’t know too many modern politicians whose primary passion is details-management.
Instead, across political parties, we are represented by people disciplined by the modern mass media market into particularly valuing the communicative function of politics, which more often than not judges a Bill or a proposal not on the detailed merits of the innovations it makes, but on the kind of story you can sell the public off the back of it. A talent for this kind of communication is indispensable to the successful modern politician. But it’s the balance that counts.
Andrew Tickell 