Are bills of rights wrong?

Carole Ewart discusses the establishment of a human rights consortium in Scotland – and what that means in the context of a UK government hostile to the Human Rights Act

Who stands up for human rights in Scotland? The answer used to be simple but now a surprising mix of people argue that rights are a privilege which, in a period of economic downturn, cannot be afforded or that the threat of terrorism is so great that our civil and political rights must be limited. Such onslaughts have created a climate whereby we have to justify human rights rather than assert them. Civil society has reacted by establishing a Human Rights Consortium Scotland (HRCS) to share information, open doors to expertise, generate debate and encourage a more rights respecting society. Knowledge is power and there is a colossal mountain to climb. Meeting in the STUC and serviced by the Glasgow Disability Alliance, a range of organisations have declared formal support including Engender, the Campaign for Freedom of Information in Scotland, Scottish Alliance for Children’s Rights, SAMH, SCVO and Glasgow Anti- Racist Alliance.

The HRSC is modelled on the Northern Ireland Human Rights Consortium, a campaigning organisation focusing on the need for a strong and inclusive Bill of Rights. Importantly The Good Friday Agreement uses the words ‘right’ or ‘rights’ 61 times which prompted Mary Robinson, the then UN High Commissioner for Human Rights, to point out that “equality and human rights have now moved from the margins into the mainstream of Northern Ireland life”. This was acknowledged by the then-Secretary of State, Peter Mandelson, that Northern Ireland is now “the sort of rights-based society that other countries will look to as a model of excellence”. Translating that vision into practice across Scotland presents an interesting set of challenges for those politicians and public servants who make daily decisions on million pound budgets and critical frontline services.

Wherever you live, there is always someone telling you that you cannot enjoy or be trusted with certain rights. Scotland has only had the enforceable right to access information since 2005, nearly forty years after America where in 1966 the Freedom of Information (FoI) Bill became law. However President Johnson refused to hold any kind of public signing ceremony to limit publicity for this new right. Draft language from Johnson’s statement arguing that “democracy works best when the people know what their government is doing” was changed with a handwritten scrawl (author unknown) to say “Democracy works best when the people have all the info that the security of the nation will permit”. However we only found out about this distrust of the public in 2006 following an FoI request. FoI has a track record in enabling ordinary people to hold the public sector to account for decisions on spend, on services and about the procedures in place or otherwise for making major decisions fairly. FoI is a human right as well as being a powerful tool to secure human rights.

Defining human rights is actually quite simple because the UK Government over decades has ratified seven UN treaties covering most of the rights you could ever imagine including ‘an adequate standard of living’ and ‘safe and healthy working conditions’. The UK is obliged to work progressively, to the maximum extent of its available resources, to deliver these rights even in a period of economic downturn which means rigorous prioritisation of spend. Case law at the European Court of Human Rights has also extended our rights to include for example environmental rights. Knowing about the rights we are already supposed to hold provides an interesting context for the HRCS to consider the case for and against a Bill of Rights which is prompted by the UK Government’s ‘Coalition Agreement’ to:

”… establish a Commission to investigate the creation of a British Bill of Rights that incorporates and builds on all our obligations under the European Convention of Human Rights, ensures that these rights continue to be enshrined in British law, and protects and extends British liberties. We will seek to promote a better understanding of the true scope of these obligations and liberties.”

Interestingly Lord Jim Wallace, who has been appointed by the UK Government as the Advocate General for Scotland, recently spoke at a meeting in Edinburgh and emphasised that this commitment is “not a retreat from European Convention” and said “it will be crucial that the Scottish dimension is properly considered”. Those who read the Conservative’s General Election Manifesto will be aware of the commitment to abolish the Human Rights Act.

Debating a Bill of Rights is not however a new subject. In March 2009 the UK Government launched a Green Paper on a Bill of Rights for Britain and stated:

”Some argue that economic, social and cultural rights should be guaranteed as ‘human rights’, carrying the same status in domestic law as the civil and political rights in the European Convention. While many specific welfare entitlements are legally enforceable, the Government believes that such policy matters should generally be developed by democratically accountable elected representatives, rather than by the courts.”

Politicians are correct that if we become individual rights holders rather than subjects, who are vulnerable to policy changes and economic downturns, there is a shift in power to the people. Can democrats seriously argue that is a bad thing? Where there is disagreement is who adjudicates in disputes about rights. Many are reluctant to leave the judges and courts to decide on key human rights matters but frankly the track record of some politicians is not that great either. The focus needs to be on agreeing rules for decisions in the first place and setting out an independent review process when disputes arise.

Whether domestic enforcement of our human rights arises from the rights in the current Human Rights Act 1998 or/and any future Bill of Rights, we need to start taking preventative action and avoid costly disputes. To focus on the final arbiters distracts from the key people and systems making decisions about our human rights and that is the 10,000 public bodies that deliver services on a daily basis. Each one has a legal duty to comply with S6 of the Human Rights Act 1998 which requires compliance with the European Convention on Human Rights. Unfortunately there is not a lot of evidence that human rights considerations are influencing the decision-making process and civil society is feeling the effect of disempowered people who cannot assert their human rights on key services such as providing home care to frail and elderly people.

There are signs of change not because of a principled acceptance of human rights arguments but because the economic downturn is forcing scrutiny of democratic processes hitherto ignored

Perhaps that is why civil society has an increasing amount to say on human rights domestically and internationally. For example due to representations made by the SAMH the UN Committee on Economic, Social and Cultural Rights addressed the issue of funding and stated that the UK should “take immediate steps to address, as a matter of priority, the regressive measures taken in funding mental health services” So the Committee was condemning the cuts as the human rights of the service users remain and no alternative service provision has been made. Glasgow Disability Alliance points out that the UK has now ratified the UN Convention on the Rights of Persons with Disabilities which includes Article 19 the ‘right to independent living’. Independent living is about having the right support and assistance to enable you to make choices that you want such as being able to live in your barrier free home without carers. Delivery of this right remains a dream for too many people in Scotland today.

Yet however loud and informed the voices, they are ignored. There are signs of change not because of a principled acceptance of human rights arguments but because the economic downturn is forcing scrutiny of democratic processes hitherto ignored. For example Audit Scotland has confirmed that a much more robust decision making framework is needed in Scotland:

”Councils have some way to go in developing medium to long-term financial strategies which are based on good information about
service costs and value for money and which provide a framework to compare the financial effects of different policy options.”

The Scottish Parliament’s Finance Committee Report on the Budget Phase was influenced by considerations of how to ensure the most vulnerable are protected in a period of economic downturn. In the section on “Human rights and equal opportunities” the Committee states:

”It is helpful in this section to set out some of the other factors that may also shape or constrain the Scottish Government’s capacity to
take action. For example, the Glasgow Women’s Voluntary Sector Network said that the Scottish Government had positive duties to
promote human rights, which creates obligations to provide support services. Using the specific example of support services for women
facing violence, the network argued that public authorities seemed to view such support services “as a selective aspiration thus failing to
understand that spending to protect human rights is a fundamental duty”.

The Scottish Parliament has established the Scottish Human Rights Commission. Whilst it is absolutely prohibited from taking cases and is even banned from giving advice or assistance to people thinking of taking a case, it is enabling a major international conference on ‘human rights and business’ in October 2010 and is undertaking key work such as developing a human rights based approach (HRBA) model for public services to use in the decision making. The case of Cadder v. HM Advocate serves to remind us that human rights cannot always be protected by the Courts in Scotland so the enforcement system needs to be broad based and robust. Following a hearing at the UK Supreme Court in May, although a decision is not expected until October, the Lord Advocate issued new guidance, apparently admitting defeat, by bringing Scot’s law into line with the European Court of Human Rights decision in Salduz v. Turkey which permits suspect’s access to a solicitor as soon as they are detained. The High Court of Justiciary ruled last year that the Scots system was fair and the European Court decision did not require any improvements. Thankfully we have an appeal process which reviews decisions by our top judges in Scotland.

The capacity of the system to right wrongs has always vexed human rights activists in Scotland. Clearly taking a case, all the way through the system, can get problems fixed it is just that so many vulnerable people do not have the resources to pursue cases so their human rights are unequally protected. Human rights should be equally enjoyed by us all – as employees, as service users, as individuals, as family members and as part of a community.

In addition to asking who stands up for human rights we need to rally behind what stands up for human rights. That means debating whether the Human Rights Act, and the relevant provisions of the Scotland Act, need to be properly enforced rather than developing any new Bill of Rights. The debate will hopefully be as dynamic as the outcome. A key factor is the enforcement mechanism which empowers the individual, challenges staff attitudes and organisational cultures that resist the implementation of human rights standards, equally and fairly. We cannot underestimate that for Scotland to become a rights-respecting society will require almost a revolution in established ways of working.

To support the Human Rights Scotland Consortium contact Shirley Coull at Glasgow Disability Alliance shirleycoull@ gdaonline.co.uk For further information on the NI Human Rights Consortium go to: www3.billofrightsni.org
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