The Supreme Court’s judgment on the UNCRC (Incorporation) (Scotland) Bill – what will be the impact on Scotland’s human rights journey?
This blog post is the text of an address by Professor Alan Miller given at an event organised by the Bingham Centre for the Rule of Law, the Centre for the Study of Human Rights Law at the University of Strathclyde and the Bonavero Institute of Human Rights at the University of Oxford on 8 February 2022.
I would like to offer some personal reflections looking back on Scotland’s human rights journey, on where we are now – including an assessment of the impact of the UK Supreme Court judgment on the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill – and on the likely future direction of travel.
In doing so I find a common thread running through all of my experience as a traveller on Scotland’s human rights journey for nearly four decades now is that Scotland’s constitutional status and its human rights journey are demonstrably and inextricably linked. The Supreme Court judgment, placed in this broader context, serves to re-affirm this.
Although clearly it needs to be carefully managed the Supreme Court judgment on the UNCRC Bill is rooted in the past and so will not define the limits for the future and indeed its impact is actually more likely to be that of helping to focus debate on the next steps on Scotland’s human rights journey.
It will inevitably give rise to debate on how further continued human rights progress is to be made in and by Scotland and particularly in those significant and currently constitutionally reserved areas of public life such as equality, employment, asylum and immigration and parts of social security.
Let me then share some reflections from my close involvement at all stages of Scotland’s human rights journey over these past four decades up to and including the present.
The journey to date
Looking back to a pre-devolutionary time I recall in the 1990s appearing before the UN Human Rights Committee in Geneva attempting to encourage it to scrutinise the human rights situation in Scotland as part of their consideration of the UK’s human rights record. This proved very frustrating due to the lack of visibility of Scotland.
Then, on the cusp of devolution, I remember advocating to Donald Dewar, then Secretary of State for Scotland in the Blair Labour government and an architect of the Scotland Act 1998, that human rights should not be reserved to the UK Parliament in order that Scotland could chart its own journey within the UK. This attempted advocacy proved to be a little more successful.
Post-devolution I then advocated to Jim Wallace, the Lib Dem Deputy First Minister in the Labour-Lib Dem Scottish Government, that the Scottish Parliament should establish a UN recognised national human rights institution to influence this journey and engage directly on behalf of Scotland with the European and UN human rights systems. The Scottish Human Rights Commission was created by the Parliament in 2007 and its influence right up until today has actually exceeded the expectations of many, not least myself.
I was in fact very honoured to be unanimously elected and re-elected by the Scottish Parliament as the inaugural Chair of the Commission and so, uniquely for a Scottish body, represented Scotland in the UN and subsequently became elected Chair of the European Network of National Human Rights Institutions and Vice-Chair of the Global Alliance of National Human Rights Institutions and then its Special Envoy and so had the opportunity to work with others to increase Scotland’s visibility and ability to learn from international practice.
As SHRC Chair, and along with others, we set out to popularise an international human rights based approach and to advocate to Nicola Sturgeon, First Minister of a SNP Government, that Scotland’s next steps, particularly in the post-Brexit context and post-Covid context, should be the incorporation of a range of UN human rights treaties including the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Convention for the Rights of Persons with Disability (CRPD) and the International Convention for the Elimination of All Forms of Racial Discrimination (CERD) and of course the UNCRC.
This advocacy has also proved to exceed the expectations of many with a Human Rights Bill now being prepared to introduce a new human rights framework and a separate but complementary Bill now before the Scottish Parliament to incorporate the UNCRC which will become part of this new broader human rights framework. The Human Rights Bill will incorporate ICESCR, CEDAW, CRPD and CERD as well as include the right to a healthy environment, the rights of older people and equality rights for LGBTI people.
So, we are now on the cusp of the biggest step by far on the journey and will for the first time put in a single place the internationally recognised human rights belonging to everyone as well as the means of effective implementation to enable full and equal enjoyment by all.
Scotland’s human rights journey has then been marked by an increasing ambition and internationalism and this has been clearly reflected across the political spectrum, the public sector and civil society – as evidenced in the unanimous vote in the Parliament for the UNCRC Bill.
The short-term impact of the Supreme Court judgment?
It is in this context then that we are now discussing the impact of the Supreme Court judgment on the UNCRC Bill.
On the one hand and significantly so, the judgment essentially reaffirms that human rights are not reserved to the UK Parliament by the Scotland Act and that Scotland can incorporate UN treaties, so thank you Donald Dewar.
On the other hand, its interpretation of the Scotland Act arguably gives an increased weight to the historical doctrine of the supremacy, or “unqualified power”, of the sovereignty of the UK Parliament and this has been widely critiqued, including beyond Scotland.
In its assertion of such “unqualified power” and perhaps of most immediate practical significance the judgment appears to require the Scottish Parliament to revise the UNCRC Bill in order to explicitly limit its scope in relation to the human rights duties applicable to those public authorities in Scotland which carry out “mixed” functions in both devolved and reserved areas.
However, the judgment is what it is for now and we therefore clearly need to be agile, innovative and pragmatic – whilst adhering to principle and the “maximalist approach” – to revise the UNCRC Bill and then draft the Human Rights Bill accordingly.
The broader UK context and broader human rights framework for Scotland and the longer-term impact of the Supreme Court judgment?
In fully considering this judgment and its human rights consequences – as well as constitutional and political consequences – we need to look beyond the UNCRC Bill and consider the pending Human Rights Bill and the Scotland Act itself within the broader UK context so that we may continue our journey.
As far as possible, the National Taskforce for Human Rights Leadership attempted to future proof its recommendations for the Human Rights Bill.
Firstly, it was clear to us even before this judgment and when determining the recommendations for the Human Rights Bill that there would be critical areas of public life and policy where powers were reserved to the UK Parliament – including equality, employment, asylum and immigration and parts of social security – and therefore the extent of the realisation of human rights would be less in these areas than in devolved areas.
We reflected this in the Taskforce Report with language throughout our 30 recommendations emphasising that the promotion and protection of human rights needed to be “within devolved competence”. This was in order to manage expectations in the context of this current constitutional reality.
Secondly, recent UKSC judgments also appear to reflect a reduction in how the court regards the status of international human rights law within the UK. This of course has been evident for some considerable time in the UK political climate as can be seen today from some of the legislation currently going through the UK Parliament as well as the continuing undermining of the Northern Ireland Protocol, part of an international treaty with real human rights implications.
This has underlined the case for Scotland to incorporate a range of UN human rights treaties into its law, policy and practice to the maximum extent possible within the current constitutional constraints.
Thirdly, the recent announcement of the intention of the UK Government to repeal the UK Human Rights Act, even though it is hardwired into the Scotland Act and the broader UK devolutionary framework, and replace it with a British Bill of Rights will lead to a further reduction of the level of protection of human rights in those reserved areas notwithstanding the opposition to the repeal of the Human Rights Act from the Scottish Parliament.
The Taskforce report implicitly anticipated this possibility by recommending that Scotland’s Human Rights Bill explicitly re-state the rights of the Human Rights Act so that they would at least continue to apply in devolved areas as far as possible.
Two human rights trajectories within the UK
The cumulative effect of all of these developments is that we will increasingly experience two different human rights trajectories taking place in the UK.
This will be felt most acutely in Scotland where, broadly speaking, one trajectory will be progressively realising human rights within devolved areas and the other will be reducing human rights protection in reserved areas.
The judgment and the pending Human Rights Bill are likely to draw more attention to the dynamic and impact on people’s lives of these two trajectories and therefore stimulate debate about what needs to be the next steps in Scotland’s human rights journey.
There will I think be a growing appetite in Scotland that human rights need to be protected and promoted equally across devolved and reserved areas so as to improve all aspects of the lives of everyone. There will also be an increasing desire for greater legal certainty and consistency of applicable human rights standards of public services across devolved and reserved areas of public life.
As I said at the outset the nature of the next steps on Scotland’s human rights journey will largely be dependent upon any further developments regarding the constitutional powers of the Scottish Parliament in terms of any enhancement of its powers in at least some currently reserved areas or, through independence, its ability to enact a Bill of Rights unlimited in scope and entrenched within a written constitution.
This was also recognised and included within the Report of the Taskforce which advised that the recommended framework had been designed for the current constitutional arrangements but that it could also potentially be adapted and further developed for any future constitutional change in the form of either enhanced devolved powers or independence.
Of course, the focus of attention of us all is on the here and now – wrestling with the challenge of the judgment not only in respect of revising the UNCRC Bill but also with regard to drafting the pending Human Rights Bill.
However, as may be seen from my experience in our human rights journey to date it is also important to lift our heads and think strategically about the requirement of the next steps in our human rights journey, to advocate for them and take advantage of any opportunity to make further human rights progress and improve lives.
I share the international perspective of my colleagues in the UN that there are indeed two human rights trajectories unfolding in the UK – one increasingly inward and backward looking and one increasingly outward and forward looking.
As I said, my personal view is that this will become increasingly felt within Scotland as these two trajectories lead to contrasting levels of enjoyment of human rights between devolved and reserved areas of public life.
Of course, there may be inconsistencies within each trajectory, there will be those who will not see things that way at all and some will look at issues only through party political or constitutional prisms.
From a solely human rights perspective, my personal experience from travelling on Scotland’s journey and from all of my work with the UN over the years is that in these times it is not possible for any of us in the world to stand still or we will inevitably regress. We always must be looking ahead and be ambitious for further progress. We need therefore to be firmly on the outward and forward-looking trajectory.
Fortunately, whilst serving as Independent Co-Chair of the National Taskforce for Human Rights Leadership I found that there is indeed an increasing ambition held by an increasing number of people from all walks of life and from all parts of the country.
In particular, the shared determination to learn the lessons from the pandemic’s impact and to “build back better” placing human rights – including economic, social, cultural and environmental - at the centre of all recovery efforts gives me optimism that there is a will to navigate our way beyond this judgment.
I hope that these personal reflections of a traveller has demonstrated that, although clearly it needs to be carefully managed, the Supreme Court judgment on the UNCRC Bill is rooted in the past. It will not define the limits for the future and indeed its impact is actually more likely to be that of helping to focus debate on the next steps on Scotland’s human rights journey.
Alan Miller is Professor of Practice in Human Rights at the University of Strathclyde and a member of its Centre for the Study of Human Rights Law. He served as Independent Co-Chair of the National Taskforce for Human Rights Leadership and continues to advise the Scottish Government on the pending Human Rights Bill. A former Special Envoy with the UN he is an Independent Expert in the UNDP Crisis Bureau.
You can find out more about our Centre for the Study of Human Rights Law is available on our website.