Time for Leadership

by Alan Miller - Posted on 19 February 2020

This piece was published by the Scottish Human Rights Journal, Issue 88, February 2020. It is reproduced here with the permission of the publishers, Thomson Reuters.

In this post, our colleague Alan Miller, Professor of Practice in Human Rights Law, shares his view of what human rights leadership needs to achieve, in particular in light of Scotland’s recently established National Task Force.

There is a compelling need for human rights leadership in our times.

Globally, we are witnessing challenges to the international rules-based order built primarily by the United Nations. It needs to be re-affirmed in the face of the pressure from those pursuing self-interest. People around the world, generations to come and the planet itself deserve better.

In the UK, Brexit presents risks to European-based human rights and social and environmental protections developed over past decades. Often referred to as the “level playing field” in UK-EU negotiations they are in fact vital to the everyday lives of us all.

In Scotland, we have been marking twenty years of the human rights journey under devolution and exploring our next steps. The leadership steps to be taken in and by Scotland are clear. The internationally recognised human rights belong to everyone in Scotland and must be put in our law. As importantly, they must be then put into our everyday practice. In this way people are empowered to lead lives of human dignity, to have a sense of worth. This will be a new human rights framework for improving people’s lives and fit for our times.

Leadership steps…

This is the context which led to the establishment of the First Minister’s Advisory Group on Human Rights Leadership in January of 2018. Its recommendations, presented in December 2018, are now being taken forward by the National Task Force for Human Rights Leadership which was established by the Scottish Government in October 2019. It is launching its proposed programme of work at a public event on February 20.

The recommendations include the preparation, through a public participatory process, of a Bill which for the first time is to set out in a single place the human rights belonging to everyone in Scotland. These rights are to consist of not only the existing civil and political rights of the Human Rights Act 1998 – fair trial, free speech and privacy, etc - but a range of economic, social, cultural and environmental rights drawn from UN treaties. Among those recommended are the right to an adequate standard of living including the right to adequate housing and to food,  the right to the highest attainable standard of physical and mental health, the right to social security and social protection, the right to education, the right to take part in cultural life and the right to a healthy environment.

To enable effective implementation of these rights a targeted process of capacity-building of public bodies and civil society has also been recommended.

Other recommendations include the establishment of a National Mechanism for Monitoring, Reporting and Implementation of Human Rights in line with UN recommendations and developing practice internationally. This would relate not only to the UN human rights treaties but also facilitate Scotland’s keeping pace with progressive EU developments in human rights and social protections.

We have reached a moment when there is a sense of ambition and Scotland is ready to take these leadership steps.

A shared leadership…

This is a shared leadership. It rests not only with our politicians. It is shared by NHS managers in the Highlands, local authority chief executives on the islands and head teachers in Dundee and Aberdeen. It is shared by civil society and rights-holders such as community activists in Glasgow and Leith and so many others in day to day life.

All of those working hard in delivering public services as well as those representing rights-holders are key to the effective implementation of this recommended Act of the Scottish Parliament. Its bold ambition must be achievable and pragmatic. The early engagement and participation of the public sector – the duty bearers – as well as civil society and rights-holders in the preparation and effective implementation of the Act is critical.

Early engagement of the public sector…

Such early engagement has already directly influenced the Advisory Group recommendations for the Bill.

For example, it has been proposed that there be a “sunrise clause” providing a reasonable period of time between the initial duty of public bodies to pay “due regard” to the economic, social and cultural rights and the subsequent duty of “full compliance” with such rights. This is to enable public bodies to carry out the necessary capacity-building, with appropriate resources provided, and preparations in policy, procedures and practices which leads to effective implementation of the Act. It also enables civil society and rights-holders to build their capacity, become empowered and know how to exercise their rights and obtain remedies where necessary. In short, it offers rights-holders sustainable progress and duty-bearers manageable progress.

The public sector, along with civil society, is now represented within the composition of the National Task Force. The next stage of engagement is a series of roundtables for public bodies and civil society. They will kick start a process of exploring the opportunities, challenges, essential capacity-building and required guidance accompanying the Act needing to be given. This will help shape the Bill and related guidance and codes of practice.

For example, it is anticipated that reassurance will be felt by public bodies once the duties are clearly understood, including what they are and what they are not. A shared understanding of the duty to use “maximum available resources” for the “progressive realisation” of economic, social and cultural rights whilst ensuring “minimum core obligations” are met will go a long way to demonstrating what will and will not be reasonably expected by the law.

The Act, anticipated early in the next session of the Scottish Parliament, will provide a framework, including guidance, within which future laws, policies and decisions will be made so as to progressively realise in full the internationally recognised rights belonging to everyone. It will stand or fall to the extent that it is owned by those delivering public services and that there is everyday accountability for its effective implementation. Ultimately a right to a legal remedy needs to be available for rights-holders if all else fails.

Our journey…

This new human rights framework lies at the heart of the kind of country we should aspire to be and have in fact already been beginning to become since devolution. If effectively implemented it will improve the everyday lives of people throughout Scotland and is leadership of its time. In so doing it signals Scotland’s commitment to the international rules-based order and shares the ambition of becoming a better country in a better world.

Alan Miller, Professor of Practice in Human Rights at the University of Strathclyde, is Independent Co-Chair of the National Task Force for Human Rights Leadership and was Chair of the First Minister’s Advisory Group on Human Rights Leadership. Appointed as Special Envoy of the Global Alliance of National Human Rights Institutions in 2016 he has previously held the elected position of founding Chair of the European Network of National Human Rights Institutions from 2011-16 and was elected by the Scottish Parliament as the founding Chair of the Scottish Human Rights Commission between 2008-16. This is written in a personal capacity.