“The right to culture, or, as captured in international documents the right to participate in cultural life, is very much linked to identity. It is very much linked to the right to one’s own vision about one’s future. It is the right to dream and the right to aspire, and it is the right to use creativity, and to hold on your creativity and feel free. The right to culture is very much about bringing the past to the present in order to figure out the future.”
Professor Alexandra Xanthaki, UN Special Rapporteur in the field of Cultural Rights
Taking part in culture can sometimes be perceived as a luxury, an optional extra. Yet this depends on how we understand ‘culture’.
‘Culture’ does not only mean access to artistic or creative works. It can also, far more broadly, mean a way of life and can be important for maintaining a sense of identity.
The right to take part in cultural life is not always enshrined in national law, despite its place in international human rights treaties. Scotland, however, could be about to buck this trend, with the prospect of the Scottish Government introducing a new human rights law at Holyrood in the current parliamentary session.
Human rights related to culture are protected to some extent in the European Convention on Human Rights (ECHR), which exists independently of the European Union and to which the UK remains a signatory.
Scotland has also already introduced legal protections which are relevant to some aspects cultural life, such as the Land Reform Act of 2003 and the Gaelic Language Act, passed two years later.
Going further
Scotland is now going further after the devolved government accepted in full the recommendations of the National Taskforce for Human Rights Leadership in Scotland, for a new legal framework that will bring into law a range of internationally recognised human rights. The right to take part in cultural life is one of these rights, meaning that it will be recognised in law for the first time. Public bodies will be required to take steps to make this right accessible and it is expected that the public will have avenues to seek remedies to secure the right, including, as a last resort, legal challenge
Researchers from the Centre for the Study of Human Rights Law at Strathclyde Law School have led a study to support understanding of cultural rights in Scotland. The report was commissioned by national civil society organisation Human Rights Consortium Scotland and the participatory arts and social inclusion company Art27 Scotland. It explores the scope of the right to culture, and areas which could benefit from further discussion, as well as what its incorporation into law could mean in practice.
Cultural rights permeate the treaties to be embedded in Scots law, a reflection of the enhanced commitment to cultural rights since the UN created the post of Special Rapporteur in the field of Cultural Rights in 2009. The current incumbent, Professor Alexandra Xanthaki, gave a keynote address at the recent online seminar held to launch the report.
A way of life
Professor Xanthaki said in her address: “Cultural rights include a very wide aspect of rights, as culture has a very wide meaning, it is really defined as a way of life. A lot of states...including European states, focus on the right to tangible culture, protecting monuments, buildings, etc, which is indeed a very important aspect, but another very important aspect is also the right to protect ways of life. It’s also about protecting values, the various values that exist within the state; it’s also about protecting the right of someone to have a relationship that they choose with the environment and to have this relationship protected.
“It is great to have the right to culture, the right to participate in cultural lives, recognised. I think it’s very important that we recognise the right, rather than cultures. I think that a lot of states...recognise cultures but protecting cultures is different to protecting the right of someone to a culture. I think there really is a gap in the law that I would be delighted if Scotland managed to tackle.”
The report identifies the right to cultural life as resting on the ability to have access to, participate in and contribute to culture. The report asserts that legal implementation of the right would be best achieved through a “context-sensitive” approach at national level; it also finds that it would be useful to have regard to the simultaneous incorporation of other rights into Scots law and to recognise the intersection with these other rights, such as the right to adequate housing and the rights of people belonging to minorities.
The report suggests that its potential to succeed can be further strengthened if the legal framework for incorporation explicitly recognises that all human rights, including cultural rights, are grounded in respect for human dignity.
A fresh perspective for Scotland
Dr Lynsey Mitchell, co-author of the report with her Strathclyde Law School colleague Dr Elaine Webster and Dr Diana Camps of the University of Glasgow, said: “The right to cultural life in Scots law would give broad protection and would have a wide definition in line with international law approaches.
“The UN has over time accepted a broad understanding of culture, includingthings like art and language but also including things like climate change and access to digital technology.
“In our report, we recognise the need to look out for groups that might have been neglected. For example, rural communities in Scotland have very specific needs if they are to have full access , participate in and contribute to cultural life. That’s just one example."
Art27 Scotland invited Professor Xanthaki to be the main speaker at the report launch. Its own presentation at the launch considered the implementation of cultural rights through international examples of how other cities and countries have adopted them as the foundation of cultural policy.
Robert Rae, Co-Director of Art27 Scotland said: “The incorporation of cultural rights will have a significant and beneficial impact upon people’s lives. It will encourage joined up thinking by duty holders, no longer able to allow public spaces to price out communities seeking to express their right to freely participate in cultural life, no longer able to sidestep the cultural aspect of housing and education.
“Yes, it will be a challenge, and may require a rethink of how resources are allocated, but ultimately it will make Scotland a better place for us all, confident, and celebratory of all the communities that call it home.”
Mhairi Snowden, Director of Human Rights Consortium Scotland said: ‘We greatly welcome the Scottish Government’s commitment to incorporate more of our international human rights treaties into our own law here in Scotland. This is the best thing we can do to make them real.
“We know that embedding this right to cultural life can bring huge benefits to our arts and culture sector, and to our communities.
“Now is the time for public authorities, and all those concerned with cultural life, to start to think about what this right to culture might mean for them and what they do. There are big questions such as who is missing out? What steps need to be taken to realise this right?”