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25 October 2021

Guest blog by Mhairi Snowden, Director, Human Rights Consortium Scotland

Devolution, and the limits of it, has been back in the UK Supreme Court. This time, the Court examined detail of the UNCRC Incorporation Bill. They found that the Bill pushed the devolution envelope too far and encroached on the UK Parliament’s ability to make law for Scotland. MSPs will need to amend the Bill before it can be made law. Significantly though, the court didn’t find any problem with the Scottish Parliament putting international human rights treaties into effect – just that they need to be careful to do so within devolved competence.

Civil society is clear that the Scottish Parliament now needs to get the UNCRC Bill amended whilst retaining its full effect on devolved areas, and commenced asap.

But this court case also comes as only the latest development in the context of increasing concern and challenge about the protection of human rights across a devolved UK. The complexities and divergence that are inherent to devolution are increasingly being demonstrated around human rights.

It is in the midst of this concern and complexity, that Prof Nicole Busby and Dr Katie Boyle have written an insightful paper on human rights and devolution. Writing for the Human Rights Consortium Scotland, they set out very clearly that first of all, human rights and devolution are closely intertwined. You change or meddle with one, and you affect the other. This is because human rights, and more specifically the European Convention on Human Rights (ECHR), is right there in the foundational blocks of how the Scottish Parliament was set up. They write

‘at the devolved level, the ECHR plays a non-negotiable foundation – in other words a foundation on which to build and progress.’

Whilst UK politicians assert that our underpinning, constitutional level, human rights protections are somewhat up for discussion and reduction, as Justice Secretary Dominic Raab MP did in his Tory party conference speech recently, in Scottish devolution they are a baseline which cannot easily be messed with, without risking a key pillar of devolution itself.

Boyle and Busby go on to explain that, as well as the ECHR forming that non-negotiable foundation within devolution, devolution has also been a vehicle for progressive change on human rights.

‘The fact that the standards provided by the ECHR serve as a floor and not a ceiling means that it is at least possible that human rights protections in the devolved nations could go further than the ECHR and also that devolution itself might provide opportunities to enhance protection for human rights in other respects..’

As mentioned above, the Scottish Parliament is taking steps to put more of our international human rights into law such as incorporation of the UNCRC. There is also growing awareness of the significant accountability gap around economic, social, cultural and environmental rights (ESCER). Boyle and Busby explain:

Despite the UK signing and ratifying international treaties protecting ESCER, the rights are not currently incorporated into domestic law in the UK and so devolved competence means devolved legislation can address this gap.’

It is this gap that the Scottish Government, in accepting the recommendations of the National Taskforce on Human Rights Leadership, is seeking to fill.  It will introduce a Bill around 2023 to incorporate ICESCR (economic, social and cultural rights), CEDAW (women’s rights), CRPD (disabled people’s rights), CERD (rights on race), the right to a healthy environment, and rights for older people and LGBTI people directly into Scots law.

Devolution then has provided both the foundation and the vehicle for human rights protections in areas of devolved competence to be progressed.  Without a doubt, this progression is made possible because the promotion of human rights culture is generally supported by the devolved administration, and supported across devolved political parties – think for example of the unanimous support in Parliament for the UNCRC Incorporation Bill. Boyle and Busby write that it also arises out of a ‘strong civil society culture engaged in promoting progressive reform’ and a positive discourse on human rights.

‘Devolution has also provided the vehicle for policy shifts, which when viewed together, offer a paradigm shift in terms of human rights priorities at the devolved level. At times this occurs as part of a deliberate attempt to advance on human rights protections (both explicitly and implicitly) and at times, it is a reaction to regressive measures at the national level through mitigation measures.’

They highlight examples such as access to healthcare, voting in Scottish elections for all those with Leave To Remain, and mitigation of the benefit cap through the Scottish Child Payment.

They go on to argue that plans for Scotland’s enhanced rights framework provides opportunity to go beyond the narrower formal approach of UK equality law – such an approach aims at direct comparison to level out opportunity between protected characteristic groups, but fails to grasp lived experience. Instead, a framework that embeds international treaties such as CEDAW, is able to bring ‘a more substantive understanding capable of achieving social justice outcomes’.

Lest we forget however, devolution is very complex and what falls into devolved competence or reserved competence is far from straightforward. Boyle and Busby in their paper discuss the recent potential erosion of devolution settlements during the Brexit process. They highlight the ‘underlying tension’ around the UK constitutional future, and go on to state:

‘Human Rights is a manifestation of this where regressive trajectories at the national level pull in a different direction to the more progressive examples of human rights reform in the devolved jurisdictions’.

They note that whilst undermining devolution risks encouraging separatism and undermines the union itself, undermining or backsliding on rights only further exacerbates this position.  They state that

‘a UK attempt to undermine the ECHR could be mitigated by devolved legislation to re-entrench it….devolution can act as an important human rights anchor on national reform, mitigating threats to backslide on rights at the national level.’

It is perhaps this message that is most acute and pressing for those of us in civil society – that Scotland’s progressive reforms on human rights are something that can, and should, lead to the shoring up of rights protections across the UK. The authors say

‘Civil society organisations can play a transformative role in encouraging and cultivating the environment for human rights progress.’

They highlight that there is opportunity for deeper conversations on the human rights landscape and of using experience within different parts of the UK to demonstrate different and potential ways to better realise rights. 

Of course, human rights divergence across the four parts of the UK can bring added complexity for those of us seeking out clear messaging and influence on human rights.  It brings a challenge for example for civil society in how we present a clear picture of UK progress on rights to the various UN-level rights monitoring mechanisms – giving them one UK picture where devolved developments are briefly mentioned as ‘the other’ is no longer effective. We need international scrutiny mechanisms to bring accountability of the devolved administrations as well as the UK Government.  

It can also bring complexity for people or policy areas that are particularly stuck between two divergent directions on rights. Indeed, Boyle and Busby set out that there is a strong case for therefore advocating for areas such as immigration, equality law and employment law to be devolved so as to marry up devolved competence with devolved ambitions to address economic and social rights.

What is clear, is that this devolution divergence is also an opportunity to put the brakes on rights regression.  To reduce our human rights foundation at a UK level is to undermine devolution and what is more, is contrary to the support on many Scottish doorsteps for human rights. Equally, steps that undermine devolution, and specifically steps that undermine the divergence that is inherent to devolution, will challenge the progression on rights protections which devolution has made possible. 

For more detail and discussion, read: Human Rights and Devolution: Devolution as a Vehicle for Human Rights Protection and Progress – a briefing paper for the Human Rights Consortium Scotland by Dr Katie Boyle and Professor Nicole Busby