The implementation of international treaty standards into devolved law – the example of Scotland

Tobias Lock, Professor of Law at Maynooth University

Written Evidence to the Ad Hoc Committee on a Bill of Rights, Northern Ireland Assembly

(submitted by Prof. Tobias Lock, Maynooth University, Department of Law)

The implementation of international treaty standards into devolved law

– the example of Scotland –

1. Introduction

In 2018 the Scottish First Minister established an Advisory Group on Human Rights Leadership. That group was tasked with developing recommendations as to how Scotland could better protect the human rights of people in Scotland. The group consisted of ten human rights experts, of which I was one. The group reported back to the First Minister at the end of 2018 with seven recommendations. These recommendations are currently being taken forward by a National Task Force for Human Rights Leadership. I am a member of the Academic Advisory Panel, which provides legal expertise to the Task Force.

What follows in this report are my personal views and my personal interpretation of the Advisory Group’s work. They do not represent the views of the Advisory Group, the National Task Force or indeed of the Scottish Government or First Minister.

The report commences by providing a sketch of the different types of human rights and the way they are protected in law. It then features a short comparative overview of human rights protection at multiple levels of governance. Its final part focuses on the Scottish example and potential lessons for Northern Ireland.

2. “Categories” of rights and their position in law

a. The distinction between civil and political rights and economic, social and cultural rights

Human rights lawyers tend to distinguish between two categories of rights: civil and political rights on the one hand and economic, social and cultural rights on the other.

Civil and political rights include the right to life, the right to be free from torture, the right to liberty, freedom of expression, freedom of religion, freedom of assembly, and the right to a fair trial.

Economic, social and cultural rights (ESC rights) include workers’ rights (e.g. the right to fair conditions of work, the right to join trade unions, etc), the right to an adequate standard of living (adequate food, clothing, housing), the right to enjoy the highest attainable standard of physical and mental health, and the right to take part in cultural life.

Both types of rights originate in human dignity and both can consequently be found in the Universal Declaration of Human Rights.[1] They are thus conceived of as being indivisible and interdependent as none can be enjoyed without the other. That notwithstanding, they have different legal sources in international law, which reflect the distinction.

Civil and political rights are protected by the United Nation’s International Covenant on Civil and Political Rights, by the European Convention on Human Rights, and in UK law by the Human Rights Act 1998. Economic, Social and Cultural Rights are found in the United Nation’s International Covenant on Economic, Social and Cultural Rights and the Council of Europe’s European Social Charter. There is no equivalent to the Human Rights Act in UK law as far as the protection of ESC rights is concerned.

The UK has ratified the international treaties mentioned above and is therefore bound internationally to comply with the rights set out therein.[2]

The key reason for distinguishing civil and political rights from economic, social and cultural rights is that – at least at first glance – they differ in terms of the obligations they impose upon the state. Civil and political rights – such as the right to life – are said to merely require the state to refrain from interfering with the right. In other words, if the state does nothing it complies automatically. By contrast, ESC rights oblige states to become active and “take steps […] to the maximum of its available resources, with a view to achieving progressively the full realization of the rights […]”.[3] Compliance with ESC rights therefore tends to have budgetary implications.

Yet this distinction is rather crude and ignores two important features of civil and political rights: first, certain rights protected as civil and political rights require by their very nature state action and thus expense. For instance the ECHR (and the Human Rights Act 1998) protects the right to education, which implies that the state set up schools. The same goes for the right to a fair trial, which requires courts to be set up and maintained.

Secondly, most civil and political rights come with so-called positive obligations, i.e. obligations on part of the state to act. For instance, the right to life not only requires the state not to (unlawfully) kill a person, but also to investigate suspicious deaths, i.e. to have a police force in place that is capable of conducting such an investigation.

That said, obligations contained in some ESC rights (particularly in social rights) have budgetary implications, but there are important limits: first, a state is obliged to progressively realise these rights, i.e. the state need not do so over night, but it is a gradual and continuous process. Secondly, the obligation is to provide a minimum core of these rights, i.e. a right to adequate housing is just that: the housing must be adequate. There is no obligation to provide more than adequate housing (though the meaning of ‘adequacy’ can change over time). And it is in particular not an obligation to provide housing to all at no cost; nor is it necessarily the case that the housing must be provided by the state.

Thirdly, the obligation to use maximum available resources results in a shift in the burden of proof to the state: where a state fails to provide the minimum core, it has to demonstrate that it was unable to do so by e.g. showing that it did not have more resources available (e.g. because it was fighting a global health pandemic). In essence, the obligation to use maximum available resources necessitates a shift towards a human rights based approach to much public policy making and budgeting.

b. Protection in domestic constitutions and justiciability

On the whole, ESC rights tend to be less strongly protected in domestic constitutions than civil and political rights. In liberal democracies civil and political rights tend to be enforceable by way of judicial review; in many cases this includes the review of legislation (NB: not in the UK as far as Westminster legislation is concerned). Where the protection of ESC rights is concerned, there is greater variance, in particular as far as their justiciability is concerned. In some countries, ESC rights enjoy far-reaching protection and are justiciable (e.g. South Africa). In other jurisdictions, they are not recognised at all.

Many jurisdictions are situated somewhere in the middle: they may, for instance, protect ESC rights as policy goals that are binding on the legislature and on the executive, but which cannot be enforced by individuals (i.e. they are not ‘rights’). This would e.g. be the case in EU law, where the EU Charter of Fundamental Rights protects many ESC rights only as so-called principles (and not as rights). In the Republic of Ireland, the constitution contains so-called ‘Directive Principles of Social Policy’.[4] The same is (largely) true in Germany, where the federal constitution protects the ‘welfare state’ (Sozialstaat)[5] as a policy objective. However, it should be added that the German constitutional court has interpreted the obligation to respect human dignity as requiring a certain minimum degree of social welfare support.

3. Multiple layers of protection

From a comparative law perspective, it is not unusual for the same human rights to be protected at different levels (e.g. international-central-devolved) and through different sources. In a way this is already the case in the UK where human rights are protected through the Human Rights Act 1998 (and also to an extent at common law) as well as internationally through the European Convention on Human Rights and other human rights treaties which the UK has ratified. Furthermore, until the end of the Brexit transition period, fundamental rights are also protected by the EU Charter.

It is also not unusual for fundamental rights to be protected at the sub-state level. For instance, in the German federal system, the Länder (state) constitutions protect more or less the same fundamental rights as the federal constitution. Historically this is because many of the Länder constitutions pre-date the federal constitution. These fundamental rights can be invoked against acts of the Land executive and legislature in parallel or as an alternative to the rights guaranteed in the federal constitution,[6] but not against federal acts. In practice, this means that the rights contained in the Länder constitutions are mainly of relevance where they offer stronger protection than the federal constitution. Due to the fairly robust protections offered by the latter, they rarely come into play in cases of overlap. But the constitutions of the Länder go further in some instances. For instance, the Bavarian constitution guarantees the right to adequate housing,[7] even though the Bavarian Constitutional Court has interpreted this not to entail a subjective entitlement, but rather a policy objective. At the same time it has been found to be justiciable when assessing the constitutionality of primary and secondary legislation.

4. The Scottish experience

In late 2017 the Scottish First Minister appointed an Advisory Group on Human Rights Leadership (‘the Advisory Group’) consisting of a chair (Prof. Alan Miller, former chair of the Scottish Human Rights Commission) and a further nine human rights experts. The following sections briefly introduce the work and the recommendations of the Advisory Group.

The background to the establishment of the Advisory Group was the First Minister’s desire for Scotland to become a leader in terms of human rights protection. One of the triggers at the time was Brexit and its consequences for human rights protection in Scotland. Much like the Northern Ireland Assembly, the Scottish Parliament’s competences are limited by the ECHR (as it is protected by the Human Rights Act 1998) as well as by EU law, including the Charter of Fundamental Rights and other rights-instruments, notably anti-discrimination law. The impending removal of the ‘EU law’ pillar of protection therefore prompted this initiative to protect rights better at the Scottish level.

a. Process

The Advisory Group commenced its work in January 2018 and delivered its report on 10 December 2018. According to its terms of reference – and also in reality – the Advisory Group acted independently and reported directly to the First Minister.

The Advisory Group held a number of face-to-face meetings during that year. It did not work in isolation, however. The terms of reference mandated that the group should be informed by a participatory process, which expressly aimed to involve persons who are not close to power and influence in Scottish society. In order to facilitate this goal, a Reference Group was established. The Reference Group brought together over 50 civil society leaders from across Scotland and from a vast range of sectors. The Reference Group provided additional input and expertise to the work of the Advisory Group. Furthermore, the Advisory Group held four roundtable events and a number of meetings with various stakeholders and experts plus meetings with duty bearers (notably the Scottish Government) and the judiciary.

b. Substantive work

The Advisory Group operated under three guiding principles:

• Non-regression from rights currently guaranteed by EU membership;
• Keeping pace with future rights developments in the EU;
• Continuing to demonstrate leadership in human rights.

The overall methodology adopted by the Advisory Group focused on structure, process and outcome:

• Structure: protection of human rights in the law and governance framework of Scotland;
• Process: effort to implement these human rights;
• Outcome: real-life results of structure and process.

It transpired early on in the work of the Advisory Group that one of its recommendations would involve legislation by the Scottish Parliament. This made it necessary to navigate the highly complex constitutional environment around human rights protection in Scotland. Under the Scotland Act 1998 human rights are not a reserved matter, so that the Scottish Parliament can generally legislate on them. However, the Human Rights Act 1998 is protected from modification by Scottish legislation. This meant that the Advisory Group decided to leave untouched the guarantees provided in the Human Rights Act 1998. It merely recommends that an eventual Act of the Scottish Parliament restate these, but not add to them. For the same reason, the Advisory Group did not recommend legislation on employee’s rights as employment rights are a reserved matter under the Scotland Act.

So far as the Advisory Group’s recommendation to protect additional rights is concerned, the Group thus also had to emphasise that these additional rights could only become binding on Scottish authorities.

The focus of the Advisory Group turned to the protection of ESC rights as well as the protection of a right to a healthy environment. The reason for this was chiefly that these rights are currently not protected in Scots law (or in UK law for that matter). The Advisory Group therefore identified a real need to make these rights more real for people. Furthermore, the loss of the Charter of Fundamental Rights would leave a gap in this area. That said, the recommendations of the Advisory Group go beyond what would be protected had the Charter continued to apply.

c. Recommendations

The Advisory Group’s report contained seven recommendations. Instead of outlining these in detail here, this short report will focus on those aspects that should be of primary interest to the Committee.

The recommendation no 1 is that the Scottish Parliament pass an Act which provides for the protection of additional rights with dignity as its core value. These rights are:

• the right to an adequate standard of living (including a right to adequate housing, a right to adequate food, a right to protection against poverty and social exclusion)
• the right to the enjoyment of the highest attainable standard of physical and mental health
• right to education
• right to social security and social protection
• right to take part in cultural life
• a right to a healthy environment
• further specific rights belonging to children,[8] women, person with disabilities, on race and rights for older persons and for LGBTI communities.

The UK has signed up to international treaties (in particular the International Covenant on Economic, Social and Cultural Rights; the European Social Charter; Children’s Rights Convention; Convention on the Elimination of all Forms of Discrimination Against Women, etc) protecting most of these rights, so that in large part the recommendations reflect the UK’s existing international obligations. It should be noted that the right to a healthy environment is not expressly protected by these human rights instruments, but it is a right that has developed out of various environmental treaties.[9] Similarly, though to a lesser extent, LGBTI rights as such are not comprehensively protected in international human rights law, but aspects of them are, e.g. as part of the right to private life.

The Advisory Group recommended that these rights be enforceable and thus justiciable in the courts. However, there is a distinct emphasis on ensuring compliance by the legislature and the executive branch (Scottish Government, agencies, and importantly local authorities), so that judicial review would only ever be a last resort. This would be attained as follows:

• First, the Act would contain schedules detailing the precise content of the rights and the corresponding duties on public authorities. These schedules would be informed by international law (especially the work of international treaty bodies).
• Secondly, the Act would make provision for enhanced pre-legislative scrutiny, which the Equality and Human Rights Committee of the Scottish Parliament would primarily be tasked with.
• Thirdly, Act would need to be accompanied by targeted capacity building at all levels (Advisory Group’s recommendation no 3) through human rights education, awareness raising, training of professionals, etc. This would also include measures to accomplish everyday accountability for individuals. Capacity building would therefore include improving the availability of independent advocacy ad legal representation so as to enable access to justice. Access to a court (judicial review) would thus remain a last resort. Compliance with human rights would in most cases be achieved through policy and practice as well as everyday accountability for inspectorates, regulators, complaints handlers and adjudicators.
• Fourthly, the Scottish Government would establish a national mechanism for monitoring, reporting and implementing human rights (recommendation no 4), which would inter alia result in better coordination across Government when it comes to human rights compliance. To a similar end, the Advisory Group recommended the development of human rights-based indicators for Scotland’s National Performance Framework (recommendation no 5), which would ensure better data collection and processing in order to assess progress and to ensure that ‘no one is left behind’.
• Fifthly, where judicial review occurs, there should be novel remedies in addition to existing ones (such as strike down powers; damages, etc). The Advisory Group e.g. recommends a ‘structural interdict’ which would allow a court to make a judgment of human rights breach but would suspend the effects of such a judgment to allow an authority to remedy the situation (in particular where there are systemic problems).

Furthermore, the recommendations envisage a phased introduction of duties relating to these new rights in order to allow for the requisite capacity building to happen. Initially, public authorities should only be placed under a “duty to pay due regard” to these rights. The Act should then include a “sunrise clause” which would result in a “duty to comply”. A duty to comply is a stronger duty and results in better human rights protection than a mere duty to pay due regard.

d. Follow-up

As a follow-up and in accordance with Advisory Group’s recommendation no 6 a new National Task Force for Human Rights Leadership[10] (co-chaired by Prof Alan Miller and Shirley-Anne Somerville, Cabinet Secretary for Social Security and Older People) was established. The aim of the taskforce is to ‘work to establish a statutory framework for human rights’, which should eventually result in the adoption of an Act of the Scottish Parliament in the next parliament (i.e. after the elections in the spring of 2021). The Task Force is supported by an Academic Advisory Panel.

In accordance with the Advisory Group’s recommendation no 2, the Task Force engages in a participatory process to inform the preparation of the statutory framework. The aim of this participatory process is twofold: first, it allows the public to influence the content of the act and its implementation; secondly, it gives the public the opportunity to lay claim to and take ownership of the rights to be provided in the Act.

5. Possible lessons for Northern Ireland

The Scottish example could be instructive for Northern Ireland both in terms of process and substance. In terms of process, a strong involvement of stakeholders, civil society and those with lived experience of human rights violations is certainly to be recommended. Early engagement of these groups allows them to take ownership of their rights and may help to prevent antagonism towards them as is often on display vis a vis the Human Rights Act.

In terms of substance, Scotland may provide interesting inspiration, though Northern Ireland may choose to go its own way here.

There is an important difference between the case of Scotland and Northern Ireland, of course: the Belfast/Good Friday agreement envisages a Northern Ireland Bill of Rights to be enshrined in Westminster legislation, whereas Scotland will (have to) rely on its own limited competences here. It need hardly be mentioned that there would be no limits in terms of scope, breadth, and robustness of the rights that could be guaranteed by a Westminster Act of Parliament. At the same time, the Scottish experience shows that there is nothing to prevent the Northern Ireland Assembly from using its own competences to achieve a Northern Ireland Bill of Rights, even though there will be inevitable limitations.

For instance, the Human Rights Act 1998 (and the ECHR) is somewhat deficient when it comes to the right to a fair trial. Article 6 ECHR only guarantees such a right in civil and criminal cases, but not in purely administrative ones. Additionally, the Human Rights Act does not incorporate Art 13 ECHR into UK law (the right to an effective remedy). Both deficits could be addressed if the route of a Westminster Act of Parliament were chosen.

A further difference results from the Withdrawal Agreement with the EU, which makes largely preserves the protections contained in EU anti-discrimination law for Northern Ireland.[11]

Maynooth, 9 June 2020

Professor Tobias Lock
Maynooth University, Department of Law