Why legality and the rule of law are essential for a rights based Scotland

Barbara Bolton, the Commission’s Head of Legal and Policy, writes on why laws and legal standards are fundamental to ensuring a rights based Scotland. 

Legality: the L in PANEL  

We use the PANEL principles to break down what it means to take a human rights based approach. The L in PANEL stands for legality and although the final letter in the acronym, it is often the best place to start.

Human rights are legal standards which must be complied with. As enforceable legal rules, human rights go beyond ethical principles or aspirations. Our human rights are legal entitlements, which must be respected, protected and fulfilled by those in power.

As legal rules, human rights also stand apart from politics, applying no matter who is in government or has control in parliament. One of the aims of human rights is to protect minorities from majority rule, ensuring that fundamental rights cannot be set aside by those in power.

The legal system should enable those who fail to comply with legal standards to be held to account. Indeed, human rights law requires that people have access to justice, a means of securing an effective remedy for breach of their rights.

As enforceable legal rules, human rights go beyond ethical principles or aspirations. 

Rule of Law

Human rights and the rule of law are inextricably linked, one depending upon and reinforcing the other. The rule of law is essentially the principle that everyone must comply with the law. Where there is strong rule of law, independent institutions will have the power to hold all individuals, institutions and officials to account. Enforcement, accountability and access to justice depend on it. An independent judicial system with power to enforce the law is critical to this.

The interrelationship between human rights and the rule of law was noted in the preamble to the 1948 Universal Declaration of Human Rights and has been reiterated many times through the UN system. As the then UN Secretary General put it:

“the rule of law is a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards”.

It requires as well measures to ensure adherence to the principles of supremacy of the law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness, and procedural and legal transparency,”

And a key element is:

“a judiciary, which is independent, impartial and adequately empowered to adjudicate the law with integrity and ensure its equal application to all within its jurisdiction."

In the UK, the balance of powers between the executive (government), legislator (parliament) and judiciary (courts/judges) is key. Each has a particular remit and function, which together achieve a careful balance of power, with one institution providing a check against overstep by another to ensure overall good government.

Incorporating international treaties into national law makes them enforceable in our national courts and thereby strengthens accountability and access to justice.

International and National Human Rights Law

Once the UK parliament ratifies the UK Government’s decision to sign up to an international human rights treaty, it is binding on the UK Government. In turn, under devolution, the Scottish Government and Parliament is responsible for respecting, protecting and fulfilling those rights in Scotland.  

However, incorporating international human rights directly into national law strengthens them in a number of ways. Critically, when incorporated into our national law, they are fully enforceable in our national courts, ensuring that those with duties can be effectively held to account. This was a key aim of incorporating the European Convention on Human Rights (ECHR) into UK law, through the Human Rights Act 1998 (HRA). Before this, the ECHR rights were binding on the UK government but our national courts could not fully apply those rights. People had to take a case all the way through our national courts and then to the European Court of Human Rights, in order to secure a remedy. Since the HRA came into force in 2000 it has been possible to enforce the ECHR here in the UK, which has, in turn, had significant positive impacts on Scots law.

Incorporation into national law should also result in increased awareness and understanding of rights, among rights holders and duty bearers (those who have the obligations). If done well, with related capacity building and monitoring, it should encourage the embedding of human rights into day-to-day decision-making, which is critical to the development of a rights respecting society.

The Scottish Government’s commitment to incorporate a number of other international human rights into national law is therefore very welcome. As well as  completing the incorporation of the UN Convention on the Rights of the Child, it has committed to introducing a new Human Rights Bill to the Scottish Parliament, to incorporate the right to a healthy environment, rights of older people, rights of LGBTI people and four international human rights treaties:

  • the International Covenant on Economic, Social and Cultural Rights
  • the Convention on the Elimination of All Forms of Discrimination against Women
  • the Convention on the Elimination of All Forms of Racial Discrimination and
  • the Convention on the Rights of Persons with Disabilities.

These treaties are already binding on the UK Government and, in turn, the Scottish Government, having been ratified decades ago. However, as with the HRA, incorporating them into national law will make them enforceable in our national courts and thereby strengthening accountability and access to justice. With corresponding investment, including in capacity building, monitoring and advocacy services, incorporation could be truly transformative, making real rights such as the right to an adequate standard of living, the right to health and the right to social security.

Meanwhile, the HRA is currently being reviewed by an independent panel set up by the UK Government. The outcome of the Review and the UK Government’s proposals in response to it are expected before the end of the year. The Commission made a submission to the Review in March, robustly defending the HRA, explaining its role in the devolution arrangement and its importance for effective access to justice.

The Review of the HRA sits alongside a UK Government appointed review of Judicial Review, the key mechanism for holding the government and other public bodies to account. The Commission also made a submission to that Review. Although the independent panel recommended little change, the UK Government intends to make reforms, the full impact of which continues to be discussed as the reform Bill is considered in Parliament. The UK Parliament’s Joint Committee on Human Rights has issued a report setting out concerns about the proposed changes, including that they would limit judicial freedom.

The Role of NHRIs

The Commission is Scotland’s National Human Rights Institution (NHRI), an independent national institution, with a broad legal mandate to protect and promote human rights, accredited under the UN System, as compliant with the Paris Principles. The Commission was recently re-accredited with A-Status. The Commission, along with its sister NHRIs across the globe, has an important role to play in the protection and promotion of the rule of law as well as of human rights. 

Effective development of a human rights based society depends upon strong rule of law and good, transparent and participative, governance. The Commission will continue to resist any steps that undermine the rule of law or human rights, while supporting and encouraging progressive measures that strengthen human rights, the rule of law, judicial independence, accountability, transparency and access to justice.