Human Rights Leadership Advisory Note to Scottish Government
This Human Rights Leadership Advisory Note was requested in the early stages of the COVID-19 crisis by the Scottish Government from our Professor Alan Miller. It is reproduced in full below.
Purpose of Note
To advise the Scottish Government on exercising leadership through a human rights-based approach, operationally and in its communications, so as to help enable both an effective response to and, in particular, a strategic recovery from the COVID-19 crisis.
This Note, of necessity general and brief, is drawn from the historical experience and current approach of the UN and European human rights systems, from my practical engagement in both systems and from an analysis of the national context.
Key Messages for the Scottish Government:
- A human rights-based approach helps maintain public confidence and helps us all get through the crisis together
- Scotland can lead in a strategic recovery from the crisis and “build back better”, including through the National Task Force for Human Rights Leadership process
- Scotland recognises “the message sent by the virus” of the urgent need to protect the environment as an indispensable part of the strategic recovery and can promote this globally at the COP 26 in Glasgow in 2021
It is acknowledged that this Advisory Note is only one of many that will be received by the Scottish Government from multiple sources on economic, social and environmental and other matters concerning its response to and, particularly, the best form of recovery from the COVID-19 crisis.
There will need to be a read across of all of these contributions, if not an opportunity for some form of collective engagement, among those involved.
Whilst there is no single, quick and easy answer to the challenges faced by our country and our world, each discipline brings something to the table and their potential can best be realised if an ambitious, coherent and achievable vision can be developed drawing upon each of their contributions.
Many are now talking of the need for our economy and society to be re-purposed and to have a values base which more clearly serves human wellbeing.
It is this strategic recovery towards human wellbeing which is needed and not simply a “save the economy” recovery.
The risk of course is that this remains talk after the pandemic and is not practically and effectively realised.
This is where a human rights-based approach can contribute. Underpinned by the values of human dignity and wellbeing it goes beyond aspiration and helps provide the means to the end.
Drawing upon the breadth of human experience, the United Nations has painstakingly developed over decades a universally accepted framework of not only rights and duties but also practical guidance and support to enable countries to progressively give effect to these values.
Progress has been made and the world now is a better place notwithstanding current circumstances and widespread lack of leadership at national levels.
For example, the fulfilment of the Sustainable Development Goals, agreed in 2015, will help realise the Universal Declaration of Human Rights of 1948 and, specifically, Article 28 that “everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realised”.
It is to the credit of the First Minister and the Scottish Government that it established, just months before the pandemic, a National Task Force for Human Rights Leadership.
Its mandate is to make recommendations for a Bill of the Scottish Parliament which can enable Scotland to benefit from giving practical effect to these universal values and rights through placing them in our law, policy and practice.
COVID-19 has given even further strategic significance and impetus to this National Task Force process.
The key advice to the Scottish Government is that it should ensure that the National Task Force process now needs to be at the table, along with other contributions from other disciplines, to help shape a strategic recovery.
It can help embed human dignity and wellbeing as we re-set how to govern ourselves so as to improve peoples’ lives and help build a better country in a better world.
1. A human rights-based approach helps maintain public confidence and helps us all get through the crisis together
Any crisis can bring out the best and worst. A human rights-based approach helps bring out the best of people.
A human rights-based approach
Such an approach provides a framework for law, policy and decision-making.
Its essential features are contained within the UN “Panel Principles” as follows:
Participation – people should be involved in decisions which affect their rights
Accountability – there should be monitoring of how peoples’ rights are being affected and remedies provided when things go wrong
Non-discrimination – all forms of discrimination should be prohibited, prevented and eliminated. People who face the biggest barriers to realising their rights should be prioritised
Empowerment – Everyone should understand their rights and be fully supported to take part in developing policies and practices which affect their lives, and
Legality – approaches should be grounded in the legal rights which are set out in domestic and international law
Taken as a whole they offer both general guidance and a benchmark to the Scottish Government, not least in its response to and strategic recovery from the COVID-19 crisis.
Although the current enforced social isolation and the necessary pace and complexity of decision-making limit many of the “normal” modes of participation, accountability and empowerment this makes it all the more important that these principles, along with the others of non-discrimination and legality, are applied, and can be seen to be applied, by the Scottish Government as far as possible in the circumstances.
Such an approach generates public confidence in the response to the crisis and will contribute to a strategic recovery.
To date, the Scottish Government has made a serious effort to mitigate the health, social and economic impacts of the pandemic and, in the most challenging of circumstances, its approach of providing transparency, accountability and seeking collaboration has generally been consistent with a human rights-based approach.
For example, the daily media conferences have become a very important focal point of public accountability in these times. They enable transparency and communication of necessary information, guidance and response to public concerns. Such public information, along with provision of appropriate resources, can also help empower public bodies, civil society and community initiatives to participate and take steps themselves to protect the rights of the most vulnerable.
The tone, as much as the content, of these daily media conferences matters in giving the public a sense of participation, accountability and transparency and so meaningfully “getting through this together”.
Relevance of a human rights-based approach in management of the COVID-19 crisis
A human rights-based approach can contribute to addressing many critical issues including targeting of resources to where most needed, ensuring no disproportionate impact upon the most vulnerable, clinical guidance on access to life-saving treatment, provision of PPE, application of effective “testing, tracing and isolation” and the decision-making framework of an exit strategy from lockdown.
Effective engagement with civil society bodies – including those representing children, women, persons with disabilities, older persons, LGBTI communities and on race – and local authorities is vital as they are closer to the ground and best placed to advise government of where rights are at stake and where and how resources can be best targeted.
A human rights-based approach will also come to have a crucial relevance in helping to frame the Scottish Government’s periodic reporting to Parliament and the public under its coronavirus emergency legislation which self-evidently impacts upon a wide range of human rights, as outlined by the Scottish Human Rights Commission.
In this respect the Secretary-General of the Council of Europe has issued an Information Document which is a toolkit for governments across Europe on respecting human rights, democracy and rule of law during the COVID-19 crisis.
A human rights-based approach to the Scottish Government’s periodic reporting to Parliament and the public under the Coronavirus (Scotland) Act 2020
Such reporting requirements are a positive form of accountability and consistent with the recommended general human rights-based approach. It is important therefore that the reporting is framed in a manner consistent with such an approach.
Although some human rights are absolute, such as the right to life and the right not to be subject to inhuman and degrading treatment, many others impacted by the legislation are qualified rights and can be subject to interference. These include the rights to freedom of movement, autonomy, privacy and to family life.
However, under domestic and international law, in order to be lawful any interference with such qualified rights must pass the three tests of legality, necessity and proportionality.
Generally speaking, legality means that the law must be capable of being sufficiently known about and understood by the public so that it knows what it is expected to do in order to comply with it.
Necessity means that any interference with rights must clearly be limited to only serving the intended purpose of protecting public health and not for any other arbitrary purpose.
Proportionality means that there must be a reasonable relationship between that purpose and the particular means chosen to achieve it, i.e. don’t use a sledgehammer to crack a nut.
So as to demonstrate when reporting to Parliament and the public that it is acting within domestic and international law, the Scottish Government needs to ensure that the coronavirus legislation is being implemented in accordance with the above tests and it should also explicitly frame its reporting within this human rights framework of legality, necessity and proportionality.
Some of the judgements in making and applying the law are difficult and mistakes will be made but everyone will be helped if the decision-making process of applying these three tests is publicly understood.
Such human rights-based decision-making will generate public confidence and support for the measures within the legislation as well as minimise the likelihood or prospects of any legal challenge to its implementation.
Apart from matters relating to the emergency legislation, legal challenges can be anticipated and it is possible that such cases could end up with the UK being required to justify its actions, or inactions, before the European Court of Human Rights.
There will also inevitably be an inquiry or inquiries into the preparedness for and management of the pandemic by relevant authorities at different levels within the UK.
Integral to those will be examination of the extent to which there had been put in place an adequate health system to protect lives as required by the right to life.
These cases and inquiries will be complex and weighing up a wide range of factors to determine just what could reasonably have been expected from authorities in all of the circumstances of responding to a global pandemic.
However, all of this does point to the fact that a human rights-based approach is not just something it may be “nice to have” but is a necessary part of good governance.
2. Scotland can lead in a strategic recovery from the crisis and “build back better”, including through the National Task Force for Human Rights Leadership process
Whilst recognising the immediate messaging priorities of crisis management, the Scottish Government should prepare to both act and communicate on the strategic recovery steps. Scotland has an opportunity to demonstrate leadership in taking such steps.
Need of a strategic recovery from the global economic, social and environmental impact of the pandemic crisis
The UN Secretary-General has called for countries to “build back better” from the crisis and not return to business as usual and the UN High Commissioner for Human Rights has echoed this call and recognised that the pandemic, along with the related climate crisis, present a “colossal test of leadership” for our times.
The UN Environmental Programme has characterised the pandemic, following on from previous viruses originating from animal to human transmission which is known as “zoonosis”, as an increasingly urgent “message from nature” to respect its eco-system or worse will inevitably follow.
The global economic and social impact of the crisis is being widely spoken of in terms of the Great Depression of the 1930s and the test of political leadership needed being the greatest since post WW2.
In other words, the recovery cannot be reduced to just “getting back to normal” but needs to be a strategic and whole system recovery of economic, social and environmental renewal which requires both a global and a national governance fit for purpose.
Learning from previous experience of steps taken to “build back better”
We have needed to “build back better” before and stand today on the shoulders of those leaders who, following the Great Depression and the Holocaust and WW2, built the United Nations and drafted the Universal Declaration of Human Rights which inspired the subsequent international legal framework of United Nations human rights treaties.
In Europe they established the Council of Europe and the European Convention on Human Rights and began the process leading to the creation of the European Union based upon the principles of human rights, democracy and the rule of law.
In the UK they built our social protection foundations of the National Health Service and the welfare state.
Real progress has resulted from these historic steps and the world has become a better place. However, it is very much a “work-in-progress”.
The persistent economic and social inequalities and the inadequacy of social protection such as health and social security systems, even in developed countries, are being laid bare in the current pandemic crisis.
In global terms, this current situation is in significant part the result of the Cold War followed by globalisation.
The Cold War politicised and distorted the development of human rights during the 1940s to the 1990s and created in the west a hierarchy of civil and political rights over economic, social and cultural rights. All of these rights had been given equal status by the Universal Declaration of Human Rights of 1948 as it is the enjoyment of all which is needed by everyone so as to lead lives of human dignity.
This lack of implementation of economic and social rights, and consequent inadequacy of social protections, is now being exposed by the impact of the pandemic and is costing many lives and impoverishing millions of people.
An unfettered free market as part of globalisation has left many behind, caused a global financial crisis and a climate emergency and helped usher in the present rise of populism which now challenges the international rules-based order so painstakingly created over past decades.
In UK terms, following the financial crisis of 2008, the past decade of austerity exacerbated economic and social inequalities, as reported by Professor Philip Alston, UN Special Rapporteur on Extreme Poverty and Human Rights following his UK mission in 2018.
It was evident that, in the absence of internationally recognised economic and social rights, the Human Rights Act and the Equality Act by themselves did not sufficiently protect people from austerity and the NHS and the welfare state were weakened and left unprepared for the pandemic.
These impacts of the last decade disempowered many people and contributed to the appeal of the slogan of “taking back control” which resulted in Brexit.
What is now internationally regarded as “British exceptionalism” also appears to have influenced the initial response of the UK to the pandemic of distancing itself from WHO guidance and essentially being in denial of the scale of the risk to lives and delaying adequate testing and lockdown measures.
Despite the mitigation efforts of the Scottish Government within the realities of devolution, these failings at a UK level have impacted upon the lives of people in Scotland and the resilience of our society.
This economic, social and environmental impact of the pandemic, at a global and UK level, is therefore serving as a wake-up call for us all to re-set our society and world.
We already have the the tools to “build back better”, Scotland has the ambition and can demonstrate leadership
In the midst of this pandemic crisis, what really matters and what is most valued is being seen all around us in Scotland and far beyond.
It is seen in the outpouring of feelings of empathy and need of connectedness, the pride in public service and the aspirations to re-purpose our lives and our economy in the service of human wellbeing.
All point to the need for people to be placed at the centre of society, able to enjoy the full range of human rights which help bring a collective economic and social security and a healthy environment for all and so enable everyone to lead lives of human dignity.
We have the tools.
The UN has over decades built an international human rights framework of legal treaties – covering the necessary full range of civil, political, economic, social, cultural and environmental – to give effect to the Universal Declaration of Human Rights.
The UK has for many years refused to accept the repeated recommendations of the UN to incorporate these human rights into domestic law and Scotland could now do so by itself within its devolved competences.
The UN succeeded in bringing states together to establish in 2015 the Sustainable Development Goals so as to help in the realisation of these human rights and, along with the Paris Agreement, provide a roadmap to meet today’s challenges, including the climate crisis.
The Scottish Government is committed to both of these landmark global agreements and Scotland has already set itself on a trajectory of building an inclusive, green and wellbeing economy, embedding human rights and setting ambitious climate action targets (https://nationalperformance.gov.scot).
This trajectory will enable Scotland to “build back better” and make a strategic recovery from the COVID-19 crisis.
The National Task Force for Human Rights Leadership’s role in Scotland’s strategic recovery
Last year, months before the pandemic, Scotland took the strategic step of establishing a National Task Force for Human Rights Leadership to help prepare the further steps needing to be taken in Scotland to effectively implement the rights drawn from the UN international human rights framework.
In the wake of the outbreak of the pandemic, the work of the National Task Force has assumed even greater strategic significance as a vital part of a just and sustainable recovery from the crisis by Scotland.
Its key role, in taking forward the recommendations which were presented in 2018 by the First Minister’s Advisory Group on Human Rights Leadership, is to help prepare a Bill which can build upon but go further than the civil and political rights of the Human Rights Act and bring into our law, policy and practice those internationally recognised economic, social, cultural and environmental rights drawn from the UN framework of human rights treaties.
These can include the right to an adequate standard of living, including food and housing, the right to the highest attainable standard of physical and mental health, the right to social security, the right to take part in cultural life and the right to a healthy environment.
These are among the very rights the pandemic has so starkly demonstrated are part of what is needed for us all to “build back better”.
Specific attention also needs to be given to the rights of children, women, persons with disabilities, older persons, LGBTI communities and on race in order to effectively address the structural inequalities which have also been laid bare by the COVID-19 crisis.
Integrating this modern and internationally recognised set of rights into a new human rights framework can help set the direction of travel and be progressively realised as an indispensable part of Scotland’s strategic economic, social and environmental recovery.
In taking this path and effectively implementing such rights, Scotland will be leading by example and sending a message not only to the rest of the UK but to the rest of Europe and the international community that it is committed to fully playing its part in the global challenge to “build back better”.
3. Scotland recognises “the message sent by the virus” of the urgent need to protect the environment as an indispensable part of the strategic recovery and can promote this at COP 26 in Glasgow in 2021
The United Nations Environment Programme has called on us all to recognise “the message sent by the virus” of the urgent need to protect the environment.
This has been echoed by the UN High Commissioner for Human Rights who has stated that protecting the environment, including bio-diversity, is the best way of protecting human health and wellbeing.
Environmental degradation and bio-diversity loss create the conditions for COVID-19 which is an animal to human transmission caused by human interference with nature. It has repeatedly resulted in viral epidemics such as SARS, MERS and Ebola and will inevitably cause the transfer to humans of more and potentially deadlier wildlife viruses in the future.
Climate change, logging and de-forestation, increasing urbanisation as well as illegal trading in wildlife are among factors which contribute to environmental degradation.
In the wake of the present crisis there can then be no return to “business as usual” and there can be no excuse for failing to increase the resilience – including health and social protection systems – of societies.
A key lesson from COVID-19 is that we must live in harmony with the environment if we are to have a sustainable future.
The need for such harmony between human society and nature has of course already been recognised and led to the Sustainable Development Goals and the Paris Agreement being negotiated by all member states of the UN in 2015. They need now to be implemented with even greater urgency and ambition.
Scotland is already committed to both these landmark international agreements and is taking leading steps in climate action.
However, scientific analysis evidences that everyone needs to do much more and quicker if we are to realise the aspirations of these agreements and achieve a sustainable future for the generations to follow.
This is precisely the purpose and ambition of the COP 26 in Glasgow next year. The Scottish Government should promote this ambition and demonstrate its commitment to take its share of leadership in protection of our environment as part of the strategic recovery from this crisis.
Professor of Practice in Human Rights Law
University of Strathclyde
20 April, 2020
Appointed in 2016 as Special Envoy of the Global Alliance of National Human Rights Institutions I previously held the elected positions of founding Chair of the Scottish Human Rights Commission from 2007-16 and founding Chair of the European Network of National Human Rights Institutions from 2011-2016.
I am currently serving as an independent expert with the UNDP Crisis Response Bureau and as Independent Co-Chair of the National Task Force for Human Rights Leadership.
Please note that a previous blog on COVID-19 and Human Rights Leadership can be found here.