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Statement on a proposed British Bill of Rights

Date: 15 March 2010

Introduction

The Scottish Human Rights Commission (the Commission) has noted the declared intention of the Conservative Party to repeal the Human Rights Act 1998 and replace it with a British Bill of Rights should it be in a position to do so following the pending UK General Election.

As the national human rights institution (NHRI) for Scotland, established by the Scottish Parliament to promote and protect the human rights of everyone throughout Scotland, the Commission is mandated to promote the realisation in practice of all of the international human rights legal obligations accepted by the UK. This is also part of the responsibility of the Commission under the UN Paris Principles which govern how all NHRIs are to operate throughout the world.

Accordingly, the Commission wishes to make clear its position at this stage with regard to this proposal.

In order to do so the Commission has consulted extensively with all political parties, the Scottish and UK Governments, members of the judiciary and legal profession, NGOs, the Council of Europe and the UN Office of the High Commissioner for Human Rights. It has also taken the initiative to draft a joint statement for consideration by its sister UK NHRIs, namely the Equality and Human Rights Commission and the Northern Ireland Human Rights Commission.

Emerging proposals on a British Bill of Rights

Proposing to repeal the Human Rights Act 1998 and replace it with a British Bill of Rights is no small matter and yet there is a striking lack of clarity from the Conservative Party as to why it is considered necessary to repeal the Human Rights Act 1998 and what any British Bill of Rights would look like. The lack of any proper evidence base necessitating repeal is concerning.

In proposing a British Bill of Rights, the UK Shadow Justice Secretary, Dominic Grieve, has stated that “There is no reason why our courts should be bound by Strasbourg Court jurisprudence, if their own interpretation is different, particularly where rights should be balanced by responsibilities”. He has also been quoted as saying that the Bill would have built-in safeguards to prevent those “whose own behaviour is lacking” from abusing its powers.

The Human Rights Act 1998 in fact already enables our courts to take this approach towards Strasbourg jurisprudence, and they do. The risk inherent in any proposal that the enjoyment of human rights is conditional upon one’s behaviour is alarming. It departs from the fundamental principle of international human rights law - equal protection, without any discrimination, before the law. It strikes at the heart of the universal nature of human rights.

The Commission considers such a proposal to be the path of regression. It is a backward and inward-looking approach to the protection and promotion of human rights. It is against the public interest throughout the UK. It would be the first time that a developed country has repealed fundamental human rights legislation and will have a detrimental influence on the cause of human rights elsewhere in the world and on the UK’s international reputation.

A forward and outward-looking approach

The Commission is committed to a forward and outward-looking approach - the development of a National Action Plan for Human Rights in Scotland.

Under the existing constitutional arrangements of the Scotland Act 1998 and the Human Rights Act 1998, human rights are already better protected within Scotland than at a UK level. A National Action Plan for Human Rights would enable Scotland to build upon the progress already made under devolution. The Action Plan would be a roadmap for progressively bringing the day to day experience of everyone in Scotland up to the standard required by the international human rights legal obligations accepted at the UN by the UK.

To inform a public consultation and the development of such an Action Plan, the Commission, as part of its Strategic Plan 2008-2012, has begun mapping the realisation of human rights throughout Scotland. This mapping will provide an independent evidence base of the extent to which the internationally legally recognised human rights are actually experienced in everyday life by people in Scotland, particularly the vulnerable and voiceless. It will highlight what specifically needs to be done to ensure the realisation of the human rights of everyone.

This process will enable the public, the Scottish Parliament and the Scottish Government to identify and prioritise the human rights protection gaps to be filled. This would be done over time through a variety of considered and measurable means – legislative, administrative, policy and practice development and resource allocation. It would be expected to prioritise the most vulnerable in our community, for example, older persons or those with disabilities.

Such an approach would not repeal but would build upon the Human Rights Act 1998. Rather than seeking to reduce the domestic influence of international human rights obligations, it would aim to progressively bring the living experience of all, without discrimination, up to those international standards.

Conclusion

The Commission therefore opposes the proposed repeal of the Human Rights Act 1998 and its replacement, by a UK government of any party, with a backward and inward-looking British Bill of Rights.

The Commission advocates retaining Scotland’s constitutional pillar of the Scotland Act 1998 and the Human Rights 1998, and progressively building upon that foundation through a National Action Plan for Human Rights in Scotland consistent with international legal obligations and best practice.

The Commission is committed to working with all concerned throughout Scotland, the UK and internationally to prevent regression and instead to develop a roadmap of progress for all.

To read the Joint Statement with the Northern Ireland Human Rights Commission follow the link.