Human rights incorporation in Scotland

By Katie Boyle - posted on 13 September 2024

This blog post is the text of Professor Boyle’s Keynote Speech at the Scottish International Law Conference: Human Rights Incorporation, held at the University of Stirling on 10 September 2024

Dear colleagues, thank you to the organisers of today’s conference for the opportunity to speak to you about embedding international human rights obligations at the domestic and devolved level. It may come as no surprise to you that I have chosen to speak very specifically about where we stand today in Scotland on these issues. In doing so I will also draw on comparative and international practice as well as reflect on the theoretical, empirical, normative, legal, political and practical dimensions of incorporation at both the national and subnational level.

There are a few thoughts I wish to share at the outset. I was reflecting on the social history of the incorporation process and some testimony on the human rights gaps that manifest in the lives of people who live in Scotland. One such testimony spoke of the problems of heating substandard homes, that homes were unfit for purpose, contributing to the environmental crisis, and putting people in the position of choosing between malnutrition or hypothermia. When complaints were raised they were ignored, even when health researchers made the link between mould in homes and the detrimental impact on health and life expectancy. This testimony is from 1988 about the experience of a very powerful and inspiring advocate Cathy McCormack who engaged across UK government and at the UN level on creating change to address these gaps. And I couldn’t help but think about how much of what she writes about could have been written about the lived experience of people today. And so, it made me think about that social history component and the cyclical nature of struggle. How important it is to build on what others have done in the past – but also to have an awareness of how easy it is to get caught in a loop or a cycle where nothing really changes. If anything, incorporation creates a moment of institutional memory – a marker – that embeds in law our values and a commitment to change. Whilst that change might not happen overnight, the enactment of law to embed human rights can break the cycle of continuously assigning the struggles of the past to the present. It gives the hope of progress.

As many of you will be aware, Scotland is undergoing, or has been committed to, the incorporation of a number of international treaties into devolved law – this political commitment was first initiated by the then First Minister Nicola Sturgeon at the Scottish Human Rights conference in Dynamic Earth in December 2015 when she committed to explore the potential to implement and incorporate into Scots law, a number of international treaties  including the International Convention on Economic, Social and Cultural Rights (ICESCR), the UN Convention on the Rights of the Child (UNCRC), the UN Convention on the Rights of Persons with Disabilities (CRPD) and the UN Convention on Elimination of Discrimination Against Women (CEDAW). Following this there were two consecutive Scottish Government initiated processes – the First Minister’s Advisory Group on Human Rights Leadership (FMAG) and subsequently the National Taskforce for human rights leadership (NTF).

In 2018 FMAG recommended legislation to address the economic, social, cultural and environmental accountability gap using a multi-institutional model and the latter undertook a participatory process to further these recommendations, leading to the Scottish Government adopting the NTF recommendations in March 2021 to introduce a Bill incorporating a number of international treaties and introducing the right to a healthy environment. In that same month the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill was passed by the Scottish Parliament and subsequently referred to the Supreme Court under a section 33 reference by the UK Government. In October 2021 the Supreme Court judgment was issued in the UNCRC Incorporation (Scotland) Bill reference. In September 2023 the Scottish Government programme for government for 2023-2024 included a commitment to introducing “our world leading Human Rights Bill” to the Scottish Parliament. In December 2023 the Scottish Parliament reconsidered the UNCRC Bill and in January 2024 the Bill became an Act coming into force in July 2024.

In June 2024 the Human Rights Bill was expected before the Scottish Parliament but was not introduced. In September 2024 the Programme for Government included a commitment to strengthen the implementation of human rights, including a commitment to legislation incorporating international treaties into Scots law. A letter dated 4 September 2024 from the Cabinet Secretary of Social Justice to the Equalities, Human Rights and Civil Justice Committee explains that the Human Rights Bill does not form part of the Year 4 legislative programme. The letter sets out that the Scottish Government has decided to “undertake additional work to develop the Human Rights Bill” – to use the remainder of the Parliamentary session to further develop and strengthen the Human Rights Bill with the intention of taking forward such a Bill in the next Parliamentary session.

The reasons for delay include (a) the constraints on devolution highlighted by the Supreme Court in the UNCRC Bill reference that limit how far a new Bill can go in practice to advance rights realisation through treaty incorporation; (b) the corresponding reduction in scope of a new Human Rights Bill, along with the added complexity that this would entail for duty bearers and rights holders and (c) that there are also a number of concerns that the approach to incorporation for disabled people, women and those who experience racism does not go far enough. The letter states the Scottish Government will engage constructively with a new UK Government to address these issues together and that Scottish ministers will engage with the Secretary of State for Scotland and stakeholders on this matter. There is also a commitment to further embed a human rights culture across public services, including advancing implementation ahead of legislation to embed and mainstream human rights in public services.

I think it important to first draw a distinction between implementation and incorporation. Implementation is the means through which international human rights norms are embedded into domestic law, this could be legislative or policy attempts to embed treaties directly into law on a whole-scale or sectoral basis, or it could be national, subnational or local responses to the comments of Special Rapporteurs, the UN Universal Periodic Review process, responding to treaty body recommendations or embedding the substance of general comments into local policy or practice. Indeed, implementation can occur alongside, or as the result of incorporation – it is the everyday operationalisation of rights.

Incorporation, on the other hand, is about accountability. Incorporation can take many forms, and often debates and discourse focus on the preferred model of incorporation, whether that be direct (such as in Norway, Argentina or indeed the UK via the Human Rights Act and the devolved statutes), indirect (such as in South Africa, Kenya, Colombia or Finland) or sectoral (such as the proposals for a right to adequate housing in Wales, or the right to food in the Food Sovereignty Act in Maine, USA) . We see debates emerging at times between transposition or transplanting treaties into domestic law. However, what the discourse often overlooks in the model of incorporation is the concept of accountability – incorporation, whether it be sectoral, direct, or indirect, is only incorporation if there is a route to an effective remedy for a violation (see this textbook and this Draft General Comment). If rights are violated, what is the remedy?

In Scotland, the incorporation model proposed has sought to embed accountability into the everyday practice of administration and public law – in other words the multi-institutional accountability model is about ensuring routes to remedy are established across the work of Parliament, government, the entire administrative sphere as well in courts, tribunals, ombudsmen, regulators and inspectorates. There is an important synergy here to note between international treaties dealing with civil and political rights, economic, social and cultural rights, and environmental rights – all three of these pillars of the international framework recognise the indispensability of accountability. And all three pillars acknowledge the difficulties of embedding this in meaningful ways. Both the Aarhus Convention and Committee on ESCR acknowledge the importance of local mechanisms, but not at the expense of an effective remedy, and the commentary on Article 2 of ICCPR makes the important distinction that in order for a remedy to be effective it must include both a procedural and substantive component. In other words, without reparation for a breach the obligation to provide an effective remedy is not discharged. This latter definition most closely aligns with thicker conceptions of justice and international best practice on access to justice.

Implementation and incorporation can operate hand in hand, and can occur simultaneously or cyclically. Incorporation is a means to an end – that is to assist in the implementation of human rights in the everyday sense. Implementation measures that operate without incorporation may indeed lead to human rights improvement, but may also operate as a veil for non-compliance if there is no way to scrutinise whether the measures fulfil their purpose.

It is not possible to cover everything in the short time we have today so I intend to focus on the task at hand using the theoretical, normative, empirical, legal, political and practical lenses I mentioned but with a specific focus on addressing the barriers to incorporation and what would be required to surpass them in Scotland specifically.

We will no doubt hear many important discussions over the course of the conference on the question of “whether” incorporation is a good thing and I welcome these discussions and look forward to engaging. However, I also wanted to briefly note, that many of these discussions have been taking place for over a decade here, and for several decades elsewhere in countries that have already embedded, constitutionalised or incorporated economic, social, cultural and environmental rights. No form of incorporation or implementation is perfect – research tells us that matters of social justice are a struggle – there is no panacea, there is always power to hold to account, there is always marginalisation and narratives to challenge, injustice is pervasive and often invisible.

Incorporation of international human rights norms is a tool in the tool-box of those seek to challenge injustice – it does not transform anything overnight – but allows decisions to be held accountable in the light of normative standards that otherwise would be absent from the processes of decision-making and the mechanisms for holding that decision-making to account. In its simplest form – this is what it is – do we reference these standards as critical to decision-making or not? And in this sense, I would argue that incorporation is not only for rights holders or practitioners but becomes a source of empowerment for decision-makers themselves. Empirical research on street level bureaucracy tells us that sometimes administrative justice becomes subject to a managerial focus on efficiency and cost saving. Decision-makers, whether that be local authorities, teachers, social workers, the police or medics would benefit from reference to the international human rights framework as a tool to execute their job in ways managerial positionality might overlook. It is a tool of empowerment that cuts both ways.

Theoretically, we see debates in the literature on the added value of international human rights in the domestic sphere. Jeff King spoke of the “near consensus” among philosophers on human rights that economic and social are real human rights. We cannot rehearse the theoretical arguments here, nor revisit the numerous critiques of rights, suffice to say that much of this deep theoretical engagement has already been covered in the literature, and in the discourse in Scotland. There are still many debates about whether or not human rights are of value to us in addressing injustice and there are many responses that challenge the "displacement" of human rights thesis. I adopt the assumption here that human rights have the potential to deliver our entitlement to a life of dignity and wellbeing and to facilitate our autonomy to participate meaningfully in society. Without basic normative claims to the socio-environmental conditions required for human thriving we risk operating in a space where democracy is hollow for those who simply cannot exercise their everyday rights, nor access justice for their violation. In the absence of domestic law that provides entitlements to substantive norms international human rights can provide an indispensable tool to address this gap. Very briefly, I want to address a cyclically emerging critique on this front that rights are indeterminate – in response to this critique, I say, so are all rights – and it is our collective responsibility to give meaning and content to those rights – a deliberative multi-institutional framework can facilitate this.

Empirically, the literature has explored the added value of embedding human rights through processes of treaty incorporation and emphasised the difficulty of assessing this empirically. I’ll not rehearse these debates here, but instead, focus on the very specific circumstances of Scotland and the UK. The absence of human rights is felt deeply in the everyday lived experience. Epidemiologists estimate an excess of 330,000 deaths as a result of austerity. Michael Marmot has highlighted the widening gap on life expectancy and health outcomes over the life-course, with those from deprived backgrounds suffering disproportionately across the UK. Deep-rooted absolute poverty is pervasive. Substandard housing continues – over 50 deaths of children are attributed to unfit for purpose temporary accommodation since 2019 and in 2022 the coroner reporting on Awaab Ishak’s death asked “I’m sure I’m not alone in having thought: how does this happen? How, in the UK in 2020, does a two-year-old child die from exposure to mould in his home?”.

This is a UK wide accountability gap. I together with a team of research fellows listened to the testimonies of practitioners across the UK on the social rights justice gap. This gave us substantive qualitative insight into the absence of human rights treaties in our domestic law – we conceptualised this as an accountability gap where access to justice is an arduous journey. The evidence told us that social rights are sidelined to the margins, people don’t know about their rights (legal consciousness), there is no easy way to access advice or information on them, there is insufficient resources for pursuing them - including emotional, financial and legal (legal capability). People get lost in the “administrative mud” of a system not attuned to their legal needs, or as I like to say, their human rights. The system is so complex that there are multiple routes and multiple hurdles across all routes to remedy rights, with no two tracks the same, and no way to address the clustered (people facing multiple issues) or systemic (multiple people facing the same issue) nature of rights violations.

For those who manage to access a legal mechanism to address their needs, often times practitioners are making legal arguments to fit a “square peg in a round hole.”  They told us, how much easier it would be, and how much more sense it would make, to bring evidence before an adjudicator that relates to the right to social security when dealing with injustice in a social security case, rather than having to shoehorn those arguments under the rubric of tangential rights in the European Convention on Human Rights such as Article 1 of the First Protocol to the ECHR (right to property) and Article 14 (non-discrimination). Why not just interrogate the decision against the relevant right? All the same rules around proportionality, legitimacy and legality would continue to apply, decision-makers and adjudicators would still be able to weigh up and balance their decisions reasonably – but with reference to a more robust normative framework. It paves way for greater transparency on decision-making. Statistics in the tribunal dealing with social security complaints demonstrate up to 75% of cases are overturned in relation to some benefits – suggesting wide-spread systemic failings in decision-making. Finally, they told us that when the system does pave the way to a remedy, often that remedy will not be effective in nature – it won’t deal with the root causes of the problem. People want solutions, they want apologies, and they want what happened to them not to happen to anyone else. This means substantive outcomes, reparation, and guarantees of non-repetition – structural change dealing with systemic problems.

In Scotland, we have also had multiple processes that offer qualitative insights into the added value of human rights. The All Our Rights Report was a participative process under the National Taskforce that reflected similar empirical insights – the need for awareness raising, access to advice and advocacy, systemic change that does not place the burden on the individual, a change in human rights culture, adequate resourcing, mainstreaming marginalised voices and accountability. Likewise, the responses to the Scottish Government Human Rights Bill consultation included empirical evidence from across: legal practice; civil society; private, public and third sector stakeholders; the Law Society; the Faculty of Advocates; and the Judiciary. There was overwhelming support for the Bill, albeit suggestions for further reflection on some of the normative content, such as additional substantive rights relating to the UN Convention on the Elimination of Racial Discrimination (CERD), women’s rights under CEDAW and the rights of persons with disabilities under UNCRPD.

Normatively, this brings me to some of the conceptual challenges, but also what I would argue are the distinct and very novel spaces in which Scotland has the opportunity to make a contribution globally in terms of human rights leadership. For example, and reflecting on the objectives of this conference, the conceptual space which brings together the balancing of rights under ICESCR and environmental justice. These frameworks are of course complementary, however, they are also conceptually derived, both ontologically and epistemologically, from different bodies of knowledge and views of how we know and understand the world. The former is in essence anthropocentric in its outlook, and the latter is ecocentric, with humans forming part of a multi-species planetary ecosystem. There is really exciting and novel research exploring these deep conceptual frameworks and where they might align most fruitfully for both the environment and for human rights, however, it is not an entirely settled area – meaning there is significant scope for a contribution to the practical implementation of a human rights based approach to a healthy environment. Not least given that the UN Special Mandate rests with a Scottish-based academic, Prof Elisa Morgera, who is championing these synergies at a global level. We are so very well placed in Scotland to embody leadership in this space. And it is needed. For example, in Scotland we have proposals on land reform to address the concentration of land ownership. There are real risks around the proliferation of carbon off-setting objectives that have ignored local people in approaches to conservation that have not considered human rights implications across economic, social and cultural rights dimensions. General Comment 26 of the Committee on Economic, Social and Cultural Rights urges for approaches to land use using a human-rights based approach to conservation, biodiversity and the sustainable use of land and natural resources. ESC rights and the environment are intimately connected to our relationship to land and sea – and there is still much work to join the dots on this rather than treat policy areas as siloed.

There is also significant scope to contribute to the practical implementation of substantive equality measures in a way that aligns with best practice globally. In South Africa, for example, the Constitutional Court has recognised the legacy of structural injustice as a result of apartheid and sought to address this as part of the transformative nature of the constitution – where both intersectional discrimination is acknowledged and substantive equality sought. Creating a framework that moves beyond formal equality would ask us a society to reflect on deeper structural injustice, historical legacies of discrimination, intersectional discrimination and to take substantive steps to level the playing field with outcome-oriented objectives. If this approach was applied in the UK, cases like SC (where the two child limit was deemed lawful) and SG (where the benefit cap was deemed lawful) would be decided differently – acknowledging and addressing the intersectional disadvantage experienced by women and children under the social security regime and the role socio-economic status, race, ethnicity and disability play in creating socio-structural inequality.

Legally, and herein lies the crux of the matter at hand, there are outstanding issues around the (a) scope of the human rights incorporation legislation (UNCRC and the Human Rights Bill) and (b) the extent to which substantive equality measures could be introduced.

Section 29 of the Scotland Act 1998, among other things, limits the competence of the Scottish Parliament to enact legislation that relates to reserved matters or to modify protected enactments listed in Schedule 4. The Scotland Act 1998 itself is a protected enactment. Section 28(7) relates to the power of the UK Parliament to continue to enact legislation in relation to Scotland. The Supreme Court has discussed what constitutes “modification” under the Scotland Act as to amount to a protected enactment being read as “subject to” the new provision. The UNCRC reference revisited earlier jurisprudence that outlined the modification as follows:

Without attempting an exhaustive definition, a protected enactment will be modified by a later enactment, even in the absence of express amendment or repeal, if it is implicitly amended, disapplied or repealed in whole or in part. That will be the position if the later enactment alters a rule laid down in the protected enactment, or is otherwise in conflict with its unqualified continuation in force as before, so that the protected enactment has to be understood as having been in substance amended, superseded, disapplied or repealed by the later one.

When such a test is engaged it renders the new provision unlawful because it is deemed to have modified the protected enactment. What does all this mean? In relation to the UNCRC Act and the proposed Human Rights Bill, the obligation to comply with human rights in devolved areas will only apply to powers conferred on public authorities by stand-alone Acts of the Scottish Parliament. If the Scottish Parliament has chosen to exercise its devolved competence in devolved areas by amending Acts of the UK Parliament (without a wholescale repeal and replace) then those Acts of the UK Parliament are outwith the scope of the incorporating legislation – because they are deemed to interfere with the “unqualified power” of the UK Parliament under section 28(7). This is problematic- because since the conception of devolution, the Scottish Parliament has exercised its power to legislate in devolved areas by amending Acts of the UK Parliament in devolved areas – rendering much of devolved law beyond the scope of the UNCRC Act and the Human Rights Bill’s reach. This includes the Housing (Scotland) Act 1987, the Social Work (Scotland) Act 1968, the Children’s (Scotland) Act 1995, the National Health Service (Scotland) Act 1978, the Mental Health (Scotland) Act 1984, the Education (Scotland) Act 1980 and the Further and Higher Education (Scotland) Act 1992 all of which fall beyond the scope of the UNCRC Act and the new Human Rights Bill (despite all engaging with devolved areas of competence). Rights and remedies under the new framework would not apply to those devolved areas governed by UK Acts of Parliament. Acts of the Scottish Parliament that would immediately fall within scope include legislation governing the Scottish Human Rights Commission and the Scottish Public Ombudsmen Service as well as legislation on land reform as well as the Social Security (Scotland) Act 2018 and the Patients’ Rights (Scotland) Act 2011 and some provisions of the Housing (Scotland) Act 2001 notably in relation to an obligation to devise a homelessness strategy. It is therefore important to note that if passed tomorrow, the scope of the legislation might be limited, but would not be obsolete – in this sense an incorporating Bill is a stepping stone.

Whilst the scope issue is a surmountable hurdle, there is no doubt that it is an unwelcome complexity. Prior to the UNCRC reference it was anticipated that decision-makers in public bodies would assess whether or not their functions fall within the scope of the incorporated rights with reference to whether or not they engaged with a reserved or devolved matter. Now, the question is, what is the source of their particular function? If it is a stand-alone power conferred by an Act of the Scottish Parliament then it is within scope, if it is from an ASP that amends a UK Act of Parliament or a UK Act of Parliament amendment to an ASP then it is outwith scope. Alternatively, it could be argued that – by default – decisions should be made in compliance with all UK international obligations unless a UK Act of Parliament compels otherwise – this is a helpful approach to take regardless of whether or not a treaty is incorporated.

Aileen McHarg has already written an extensive paper on the options available to extend the scope of the Bill. I will concentrate here on the most likely mechanisms that are required to move forward expeditiously.

First, there is already a task at hand to bring Acts of the UK Parliament in devolved areas into scope for the UNCRC Act. This can be done through a process of consolidation that requires the Scottish Parliament to repeal and replace UK Acts of Parliament in devolved areas into stand-alone ASPs. This is time consuming and resource intensive and would extend scope for both the UNCRC Act and Human Rights Bill concurrently.

Second, the UK Government and Scottish Government could negotiate a way forward using the process under section 30 of the Scotland Act. Section 30 Orders are a mechanism where the powers of the Scottish Parliament can be altered without the need for primary legislation. This process has been used numerous times before, most notably in relation to the Scottish independence referendum. In that instance the UK Government proposed initiating a section 30 Order process in January 2012, following separate consultations, the UK and Scottish Governments entered into the Edinburgh Agreement in October 2012 following which an Order was laid before the UK Parliament to confer for a temporary period the power to hold a referendum on independence. The process for section 30 Orders is set out in Schedule 7 of the Scotland Act, and is subject to procedure that requires both UK Houses of Parliament and the Scottish Parliament to approve the Order before it is made. The Scottish Parliament debated and approved the Order in December 2012 and approval from both Houses of the UK Parliament followed in January 2013. From the election success of May 2011 to the final approval in the Privy Council on 12 February 2013 was a period of 20 months of negotiation and deliberation, including scrutiny by the respective Committees in UK and Scottish legislatures, as well as two separate consultation processes led by the respective UK and Scottish Governments. After the Order became law the Scottish Independence Referendum Act 2013 was passed and received royal assent on 17 December 2023. From section 30 Order to Act a further 10 months, or 30 months in total was required. I share this timeline to demonstrate, that at full tilt and with political commitment and leadership from both Governments, the section 30 Order process took time.

What could a section 30 Order do? Aileen McHarg has provided useful commentary on this already – a clarification on the powers of the Scottish Parliament via an amendment to section 28 stating “Subject to the limits set out in s.29, the Scottish Parliament has the fullest possible power to make laws, including the power to amend, repeal or in any other way condition the meaning or effect of Acts of the United Kingdom Parliament.” – this would be a means of clarifying the scope of the incorporating legislation to ensure its passage applied to those Acts of the UK Parliament that occupy the devolved landscape.

However, in the Cabinet Secretary’s letter to the Equality, Human Rights and Civil Justice Committee the Scottish Government has also committed to exploring the extent to which the proposals around rights of persons with disabilities, women and those who experience discrimination could be improved. Exploring clarification on this would require more than a scoping clarification. This is because introducing substantive equality measures that go beyond existing formal equality law may modify the operation of the Equality Act 2010, such that any measure seeking substantive equality aims may require the Equality Act to be read ‘subject to’ the Human Rights Bill. I do not know whether this is the case in its current format because we have not had sight of the Bill. The consultation suggests an approach which seeks to treat those treaties engaging with equal opportunities between protected classes under the Equality Act as being subject to a due regard duty, as opposed to a stronger compliance duty. The procedural duty to have due regard may lead to greater implementation of human rights, but it does not compel it, and is unlikely to be treated as a modification of the Equality Act 2010.

Is there any legal impediment to progressing with the Bill whilst these issues are addressed? There is no legal impediment to the passage and enactment of the Human Rights Bill before a section 30 Order – in the same way UNCRC incorporation has already occurred – the issues are the same: clarification around the scope of the Act requires continued attention. Indeed, passage of a Bill might provide the political impetus and the prioritisation of these issues from the UK Government on what might otherwise be considered a low priority.

The decision to delay the Bill is therefore a political, rather than a legal one. What are the risks of a parallel process? Politically and pragmatically it would require stewardship on two fronts – to convince the Scottish Parliament that such an Act would be sufficiently clear and of value to the electorate whilst scoping issues are clarified and built upon and second, at a UK level it may act as the catalyst for UK wide self-reflection on the state’s obligations in international law – meaning it becomes part of a protracted process. A section 30 Order requires approval by both Houses of Parliament, it will be subject to scrutiny and debate and can only be approved or rejected – not amended. Exploring whether or not to confer power to the Scottish Parliament to advance beyond the Human Rights Act and the Equality Act for the broader implementation of international human rights law may not receive the quick and expedient approval that the referendum order received.

Pragmatically, this is no easy route. There is much to be unpacked at the UK level. Quite frankly, the UK discourse has much catching up to do. We have had a 10 year participatory process in Scotland to reach the stage where there is genuine, meaningful and critical reflection on the what, why and how of incorporation. We cannot expect to engage on a UK wide basis starting from the same page. Moving away from a pan-UK approach, it is worth recalling that this is not the first time that a devolved jurisdiction has explored the incorporation of rights beyond ECHR, and we should learn from this in terms of risks and opportunities.

In Northern Ireland, following a 10 year participatory process, the Northern Ireland Human Rights Commission recommended a Bill of Rights for Northern Ireland that extended protection to additional rights beyond the ECHR, including economic, social, cultural and environmental rights. In 2008 the NIHRC presented 120 proposals on rights supplementary to the ECHR for the particular circumstances of Northern Ireland. The NIHRC recommendations entailed additional protection for women, children, vulnerable adults, and victims of the conflict. Supplementary rights included the right to identity and culture, language rights, the right to health, the right to an adequate standard of living, the right to work, the right to accommodation and environmental rights.

In November 2009 the Northern Ireland Office (of the then UK Labour Government) responded by way of consultation outlining next steps. During the course of the consultation process there was cross-community support for the concept of such legislation with independent opinion surveys demonstrating 87% of Protestant respondents and 85% of Catholic respondents in agreement on the concept of a Bill of Rights (this is despite a long-held political impasse at party level).

The Northern Ireland Office dismissed the recommendations for two reasons. First, they were considered not particular to the circumstances in Northern Ireland, because they were common to the whole of the UK and therefore risking the universality of rights across the jurisdiction. Second, the NI Office considered economic, social, cultural and environmental rights as outside the mandate of the judiciary emphasising that the democratically elected government must retain full responsibility for the prioritisation of expenditure and therefore they were not appropriate in an enforceable Bill of Rights. The NI Office response argued that the UK’s international obligations are met through a combination of entitlements in domestic legislation, policy schemes and administrative action. It should be said for the sake of clarity, there is no universal application of human rights or equality across the UK – the Equality Act, by way of example, does not extend to Northern Ireland. There is also no guarantee domestic legislation, policy schemes or administrative action will lead to human rights compliance if they are not implemented in accordance with normative standards. Finally, there are both critiques and responses on how to balance shared democratic accountability in a way that does not leave human rights compliance as the sole province of the judiciary, indeed Scottish proposals emphasise the role of the courts as a last resort.

And so, we should learn from these experiences, the referendum process and the Northern Ireland Bill of Rights process. Entering into constructive discussions with the UK Government will no doubt require unpacking the UK’s long-held position on the less than legal status of economic, social, cultural and environmental rights – something the discourse in Scotland moved on from some time ago. Ideally closing the accountability gap would happen on a UK-wide basis and the Scottish delay may help expedite these as pressing issues politically at state level.

To conclude, political impetus and political human rights leadership are needed now more than ever to progress the journey beyond the legal obstacles. Of course, this takes time, particularly when the nature of our constitutional framework has been in flux – the UNCRC reference marked a change in direction from a broader interpretation of devolution that existed previously. Nonetheless, it would be remiss of me not to mention that the proposed timeline in Scotland now traverses an election period and whilst expedient to ensure the legislation is the best it possibly can be, it also now needs to be weighed against its potential loss. The shared and collaborative enterprise of the journey to date is at risk because there is simply no way to anticipate whether the next administration – in whichever form that takes – will be able or willing to build on all of the progress to date. The question remains – how do we create an institutional memory of these shared values without resetting the clock?

In the absence of a Bill (arguably the safest way of banking progress to date), one mechanism that might help achieve this is for the Scottish Government to once again establish an independent body, like FMAG or the NTF or indeed invest more powers in the statutory Scottish Human Rights Commission, to work alongside the Scottish Government but take custodianship of the journey before and after the election – ensuring some form of continuity whilst a new political administration takes up office. This might help re-empower those participants, in particular civil society and the lived experience advisory boards, who have to date dedicated time, energy and resources to the process but were not consulted on the decision to delay (disempowering them and risking their good faith contribution moving forward). It is legitimacy of the process which helps engender legitimacy in the outcome and so transparency on a clear plan, timeline, milestones and deliverables is needed without delay.