Scottish Human Rights Commission against Tory "British Bill of Rights"

Holyrood passed the Scottish Commission for Human Rights Act in November 2006. The culmination of a series of inter and intra-party wrangling, framing and reframing, the legislation provided for a Commission to “to promote human rights and, in particular, to encourage best practice in relation to human rights.” The first Chair of this Commission is the current incumbent, Professor Alan Miller, who was appointed by Holyrood in November 2007. The legislation and the Commission came into force on April Fools Day 2008, “going live”, in its own terms, on the 10^th of December 2008, to happily coincide with the 60^th Anniversary of the Universal Declaration of Human Rights. In 2008-09, the Commission’s budget was some £1,000,000, of which they spent £514,000, the full-time Chair netting himself a handsome salary of £75 - £80,000 per annum.

Fear not, I haven’t mistaken you all for folk with an overweening curiosity in Scottish Parliamentary corporate bodies and their spending patterns (although some colourful souls may find them jolly interesting). Given the organisation’s novelty (and obscurity), I thought we might all benefit from a little refreshing detail to contextualise what follows. Primarily, I mention the Scottish Commission with interest because I’ve just run across their following “Statement on a proposed British Bill of Rights”. The Commission has come out against the Conservative Party proposal to ditch the Human Rights Act 1998 and replace it with some British alternative regime of rights. I call them proposals – all that the Tories are clear on is the repeal of the Human Rights Act 1998, which is not to say leaving the Council of Europe and thus, avoiding the continuing, unchanged international obligations on the United Kingdom to observe the European Convention on Human Rights and Fundamental Freedoms. If they want less rights protection, they’ll have to commit the internationally highly inflammatory move of so doing. Assuming that any new Tory government fudges it and tries to repeal the Human Rights Act without leaving the Council of Europe, it’ll be interesting to see quite what their great new rights wheeze will look like. In some respects, for those keen on more rights, the new Tory proposals could be supportable. For those of a nationalist persuasion, against erecting constructions of a New Unionism which might solidify and purport to fundamentally stabilise the political relations within Britain, they may have to be opposed. After all, look at how the Supreme Court envisaged by the Constitutional Reform Act 2005 was taken and transformed into an expressive site of Unionist ideology.

But I digress. Here are the Scottish Commission’s remarks on Dominic Grieve and the Tory proposals. To avoid accusations of parsing their argument in an unrepresentative fashion, I replicate their whole statement here for your curiosity.

Statement on Proposed British Bill of Rights

Introduction

The Scottish Human Rights Commission (the Commission) has noted the declared intention of the Conservative Party to repeal the Human Rights Act 1998 and replace it with a British Bill of Rights should it be in a position to do so following the pending UK General Election. As the national human rights institution (NHRI) for Scotland, established by the Scottish Parliament to promote and protect the human rights of everyone throughout Scotland, the Commission is mandated to promote the realisation in practice of all of the international human rights legal obligations accepted by the UK. This is also part of the responsibility of the Commission under the UN Paris Principles which govern how all NHRIs are to operate throughout the world. Accordingly, the Commission wishes to make clear its position at this stage with regard to this proposal.

In order to do so the Commission has consulted extensively with all political parties, the Scottish and UK Governments, members of the judiciary and legal profession, NGOs, the Council of Europe and the UN Office of the High Commissioner for Human Rights. It has also taken the initiative to draft a joint statement for consideration by its sister UK NHRIs, namely the Equality and Human Rights Commission and the Northern Ireland Human Rights Commission.

Emerging proposals on a British Bill of Rights

Proposing to repeal the Human Rights Act 1998 and replace it with a British Bill of Rights is no small matter and yet there is a striking lack of clarity from the Conservative Party as to why it is considered necessary to repeal the Human Rights Act 1998 and what any British Bill of Rights would look like. The lack of any proper evidence base necessitating repeal is concerning. In proposing a British Bill of Rights, the UK Shadow Justice Secretary, Dominic Grieve, has stated that “There is no reason why our courts should be bound by Strasbourg Court jurisprudence, if their own interpretation is different, particularly where rights should be balanced by responsibilities”. He has also been quoted as saying that the Bill would have built-in safeguards to prevent those “whose own behaviour is lacking” from abusing its powers.

The Human Rights Act 1998 in fact already enables our courts to take this approach towards Strasbourg jurisprudence, and they do. The risk inherent in any proposal that the enjoyment of human rights is conditional upon one’s behaviour is alarming. It departs from the fundamental principle of international human rights law - equal protection, without any discrimination, before the law. It strikes at the heart of the universal nature of human rights. The Commission considers such a proposal to be the path of regression. It is a backward and inward-looking approach to the protection and promotion of human rights. It is against the public interest throughout the UK. It would be the first time that a developed country has repealed fundamental human rights legislation and will have a detrimental influence on the cause of human rights elsewhere in the world and on the UK’s international reputation.

A forward and outward-looking approach

The Commission is committed to a forward and outward-looking approach - the development of a National Action Plan for Human Rights in Scotland. Under the existing constitutional arrangements of the Scotland Act 1998 and the Human Rights Act 1998, human rights are already better protected within Scotland than at a UK level. A National Action Plan for Human Rights would enable Scotland to build upon the progress already made under devolution. The Action Plan would be a roadmap for progressively bringing the day to day experience of everyone in Scotland up to the standard required by the international human rights legal obligations accepted at the UN by the UK. To inform a public consultation and the development of such an Action Plan, the Commission, as part of its Strategic Plan 2008-2012, has begun mapping the realisation of human rights throughout Scotland. This mapping will provide an independent evidence base of the extent to which the internationally legally recognised human rights are actually experienced in everyday life by people in Scotland, particularly the vulnerable and voiceless. It will highlight what specifically needs to be done to ensure the realisation of the human rights of everyone.

This process will enable the public, the Scottish Parliament and the Scottish Government to identify and prioritise the human rights protection gaps to be filled. This would be done over time through a variety of considered and measurable means – legislative, administrative, policy and practice development and resource allocation. It would be expected to prioritise the most vulnerable in our community, for example, older persons or those with disabilities. Such an approach would not repeal but would build upon the Human Rights Act 1998. Rather than seeking to reduce the domestic influence of international human rights obligations, it would aim to progressively bring the living experience of all, without discrimination, up to those international standards.

Conclusion

The Commission therefore opposes the proposed repeal of the Human Rights Act 1998 and its replacement, by a UK government of any party, with a backward and inward-looking British Bill of Rights. The Commission advocates retaining Scotland’s constitutional pillar of the Scotland Act 1998 and the Human Rights 1998, and progressively building upon that foundation through a National Action Plan for Human Rights in Scotland consistent with international legal obligations and best practice. The Commission is committed to working with all concerned throughout Scotland, the UK and internationally to prevent regression and instead to develop a roadmap of progress for all.