Issue 51 November 2010 - Introduction: Bringing Rights to Life

Extracted from a speech made at the Legal Services Agency conference, October 4, 2010, marking the 10th anniversary of the Human Rights Act by Professor Alan Miller, Chair of the Scottish Human Rights Commission

There is an identifiable global governance gap in the real world and a recognised need to developa common framework of shared responsibilities to fill this gap. This challenge has been taken up and has requiredmany to step out of their comfort zones -including in the human rights, business, NGO and legal communities - as well as within governments and the UN itself. This year, in a very significant development, the UN Human Rights Council has affirmed that, whilst recognising that States remain the primary duty-bearer, business has a responsibility to respect human rights.

In other words, it is about connecting human rights to real life experience, “bringing human rights to life” and it is this which I think is the challenge for everyone involved as we consider the position of human rights today.

The main issue I want to raise is that with in Scotland, and indeed the UK, there too is a need to bring human rights to life, there too is a governance gap and there too is a need for all of us to engage in developing a common framework of shared responsibilities towards human rights - and the Commission’s view is that this can best be practically done through the development of a National Action Plan for Human Rights for Scotland. I will return to this in a little more detail shortly.

Why do I say this is the main issue, what has been the experience of the past 10 years?

The Human Rights Act 1998 (“HRA”)has worked well. For example, it has acted as a filter for the legislative process and as a lens for judicial review through the introduction of the important concept of proportionality. In other words, it has worked particularly well in a technical sense, within the formal legislative and judicial process.

It has not been given the same opportunity to work as well in the public sphere - formally or informally. Public authorities ,generally speaking, still have much to do to integrate it into practices. Public discourse has been adversely impacted by an easy cynicism expressed by sections of the media and sections of the political and government class who have sought to marginalise human rights as belonging exclusively to the so-called “undeserving” within our community.

So, what has the Commission begun to do to contribute to bringing human rights to life?

In the first three months of the life of the Commission, January to March last year, we carried out a national consultation all over Scotland to get a sense check of our priorities. This confirmed our sense that human dignity in care, particularly of older persons, was to be front and centre. We then applied a human rights based approach - empowerment, accountability and ability - towards the issue of care and brought around the table the care users and their advocates, the providers of care services and the commissioners, inspectors, regulators and policy-makers.

A common framework of shared responsibilities towards human rights was then identified and a “Care about Rights” awareness-raising and training programme was then successfully launched last month with the enthusiastic support of all actors. This will lead to increased empowerment of care service users as “rights-holders”, increased accountability of providers as “duty-bearers” and increased ability of providers to know how to practically meet their human rights responsibilities on a day-today basis.

This process has also contributed to the Scottish Procurement Directorate issuing guidance to public authorities expressly promoting a human rights based approach towards procurement of care services. What also came out of this “Care about Rights” project was perhaps the best kept secret of the HRA - the untapped potential of arts3 and 8 which, together, essentially provide a right to human dignity with clear economic and social rights content.

So, the case for a National Action Plan for Human Rights for Scotland is borne out of all of this and other experience, nationally and internationally. It will build upon the HRA and its proven effective legal mechanisms and also include those economic, social and cultural rights contained within the UK’s international legal obligations.

The Commission is currently “mapping” the realisation of human rights within Scotland, the first time this has been comprehensively attempted. It starts with all of the human rights civil, political, economic, social and cultural - within the international human rights legal obligations of the UK as they apply to Scotland and measures to what extent they are actually realised in the life experience of the population, particularly by the most vulnerable and voiceless. This will then identify the “gaps”, as well as the good practices needing to be mainstreamed, and point to what needs to be done, how and by whom to progressively realise these rights so as to bring the living experience of all up to acceptable standards.

Through effective public participation and engagement with the Scottish Parliament, the Scottish Government and others the Commission will encourage the development of a National Action Plan for Human Rights for Scotland. The plan is for theNational Action Plan to be prepared for International Human Rights Day on December 10, 2012 and thereafter its implementation will be subject to monitoring by the Commission and others.

The Commission considers this to be a forward and outward looking roadmap for the progressive realisation of human rights in Scotland. It is a model which can also be commended to any Commission of Inquiry into a British Bill of Rights. It could serve as one alternative approach to a British Bill of Rights predicated upon the weakening of the Human Rights Act and excluding economic, social and cultural rights. We should be concerned that the impetus for this Commission of Inquiry starts from that position and also understand that the elephant in the room of such an inquiry is the perceived problem of human rights legal prohibition of UK complicity with torture.