On 12 March, the Scottish Government announced its plans to introduce new human rights legislation that would incorporate a number of international human rights treaties into Scots Law, subject to devolved competence. One of these treaties is the International Covenant on Economic, Social and Cultural Rights. Our Trustee, Dr Katie Boyle reflects on this historic advancement of human rights protection:
“The programme of incorporation of economic, social and cultural rights is well underway. The UNCRC Bill was passed by the Scottish Parliament on 16 March 2021 and just days earlier on the 12 March the National Taskforce’s report was endorsed by the Scottish Government committing to incorporate a further four treaties (ICESCR, CEDAW, CERD, CRPD) as well as the right to a healthy environment, enhanced equality for LGBTI, the rights of older persons and improved access to justice mechanisms.
Pending commencement of the multi-treaty Bill process in the next Parliamentary session it is worth reflecting on what this means for Scotland and for human rights. In the first place, it places Scotland on a progressive trajectory where existing human rights protection under the Scotland Act 1998 and the Human Rights Act 1998 will form a starting point on which to build.
Second, it places Scotland at the forefront of human rights progress globally – Scotland is not the first, nor will it be the last country to incorporate international human rights into domestic law – so what this means is that Scotland is in a sense playing catch up on a global basis, but has the opportunity to lead from the front by adopting international and comparative best practice.
This is exactly what the National Taskforce’s report recommends and why the commitments include access to enhanced rights protection, strong implementation mechanisms and ultimately – and key to meeting the threshold of incorporation, access to an effective remedy in court if other administrative mechanisms fail.
Close scrutiny of the Bill process will require assessing whether the incorporation programme maintains that strong commitment to accountability. Finally, and of particular importance to those working on human rights protection across the UK, Scotland’s journey demonstrates that closing the accountability gap in the protection of economic, social and cultural rights is legally possible, displacing long-held misunderstandings about the legalisation and constitutionalisation of these rights. Whilst there will always be barriers and concerns about how to achieve this in the most constitutionally legitimate way in any particular country, these barriers are not insurmountable and constitutional safeguards are available.
Scotland’s model of incorporation requires the parliament, the executive and the courts to act as guarantors of human rights, something that a public participatory process has confirmed is what people living in Scotland want. This progressive discourse on human rights saw unanimous cross-party support for the passing of the UNCRC Bill and sets the foundation for future progress at the devolved level.
Ultimately, it may well compel the UK to take stock and reflect on how best to improve access to rights rather than retreat from existing accountability mechanisms. The onset of the pandemic only serves to highlight the importance of the rights to housing, education, work, social security, health etc – each of which do not receive the protection in law at the domestic level that the UK has agreed to comply with at the international level – devolved incorporation provides the impetus to change this across the UK.”
Dr Katie Boyle is a qualified constitutional and human rights lawyer and Associate Professor of International Human Rights Law at the University of Stirling. She has published extensively on economic and social rights law and served as Expert Advisor to NGOs, governments, parliaments and the United Nations.
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