LAST week I wrote about the Tories’ plans to water down the Human Rights Act. The implications for Scotland are stark. The Joint Committee of Human Rights (JCHR) at Westminster took evidence on this last year. We heard from Judith Robertson, the chair of the Scottish Human Rights Commission, who reminded us that the Human Rights Act (HRA) is intertwined with the Scotland Act and the whole establishment of devolution – and that weakening or changing that framework might have complex implications that are not yet fully understood.
She is right. While the HRA is a reserved matter, human rights are not and although the conduct of international relations is reserved, “observing and implementing ... obligations under the Human Rights Convention” is specifically excluded from that reservation. Accordingly, experts such as Nicola Busby, professor of human rights, equality and justice at the University of Glasgow, argue that responsibility for the observation and implementation of rights is at least to some extent devolved to the Scottish Parliament. This is the position of the SNP and the Scottish Government and it’s good to know it has strong expert support.
The JCHR concluded that it was essential that the UK Government should take account of the unique role the Human Rights Act has played in the constitutional arrangements of Scotland, and that they should not pursue reform of it without the consent of the Scottish Parliament.
However, we know all too well that the chances of this Tory government taking heed of that cross-party recommendation are zilch. If they need to trample all over the devolved settlement to take the teeth out of the HRA they will do so.
READ MORE: Tory government doesn't like human rights - unless it can choose who gets them
The Sewell convention, which is supposed to stop Westminster legislating where powers are devolved to Holyrood, is a dead duck. We have already seen with the UK Supreme Court’s decision on the Scottish Parliament’s bill incorporating the UN Convention on the Rights of the Child that there are significant limits to the extent to which we can build up our human rights protections within the devolved settlement. So-called reform of the HRA is likely to further highlight this. It will take independence for Scotland to be a country where the rights of our citizens are properly protected and can’t be usurped or trampled over by changes made at Westminster by a government we didn’t vote for.
An independent Scotland will need a written constitution to protect fundamental rights and freedoms. A written constitution will also serve to provide the necessary checks and balances on executive power, arguably lacking from the current devolved settlement. A second chamber and a constitutional court are things which should be in the mix. But rights protections must be central.
Democracy is not just about majority rule. The rights of minorities and every individual must be protected. In an early and important judgement under the HRA establishing the rights of same-sex couples to inherit their partner’s tenancy, Baroness Hale said: “Democracy is founded on the principle that each individual has equal value. Treating some as automatically having less value than others not only causes pain and distress to that person but also violates his or her dignity as a human being.
“It is a purpose of all human rights instruments to secure the protection of the essential rights of members of minority groups, even when they are unpopular with the majority. Democracy values everyone equally even if the majority does not.”
An independent Scotland’s written constitution must protect the rights of all, including unpopular minorities. In doing so it will promote tolerance and invigorate our democratic process by ensuring freedom of speech and other associated political freedoms. An independent Scotland will want to avoid the sort of clamp downs on the right to protest which we are currently seeing in England with the Police, Crime, Sentencing and Courts Bill and in Scotland, outside the Scottish Parliament.
Furthermore, where rights protections are concerned, it is essential we send out the right message to our friends and allies in Europe. Accordingly, the European Convention on Human Rights (ECHR) should be the foundation of our rights protections. However, it’s a floor, not a ceiling, and there is no reason why we could not go further and also enshrine certain economic and social rights.
Mike Russell is currently working on a transitional constitution which would come into effect on Independence Day and be in place until such time as a permanent constitution is devised through a participatory process that would involve the citizens of Scotland as well as our elected representatives. Mike is consulting on his draft with various groups within the wider Yes movement and until such time as the document is in the public domain, I cannot comment on it.
However, we can get a clue to what it might include from the Consultation on an Interim Constitution for Scotland which was published in the heady days of summer 2014 just before the indyref. It included a draft bill setting out an interim constitution in which ECHR rights were central, together with a commitment to equality for everyone consistent with the principles set out in the Equality Act and the protected characteristics of age, disability, gender reassignment, marriage or civil partnership, pregnancy or maternity, race, religion or belief, sex and sexual orientation. The aim was to “guarantee Scotland’s existing progressive approach to equality and human rights and place Scotland firmly within the mainstream of contemporary European constitutional thinking.”
THE adoption of ECHR based standards will also be important if we want to rejoin the EU. The EU is committed to the counter-majoritarian vision of democracy with rights protections based on the ECHR and expanded upon in the Charter of Fundamental Freedoms.
The Constitution for Scotland, a Scottish registered charity with the remit to promote a public consultation on Scotland’s constitution, also focuses on the adoption of European standards of human rights in their draft constitution. They want to go further and include such socio-economic rights as the right to free quality healthcare at the point of need and the right to free education up to secondary level and beyond on the basis of qualification. Their website, which seeks to facilitate a real-time grassroots public consultation, can be accessed at www.constitutionforscotland.scot
There were other aspects of the 2014 draft bill which were perhaps less adventurous than many would like. For example, retention of the monarchy (the constitution for Scotland website propose a post-independence referendum on that), a unicameral parliament and no constitutional court as such, but these are perhaps issues for a later date. What was admirable about the 2014 bill was the insistence that it was a temporary measure and that post-independence a permanent written constitution must be drawn up by a Constitutional Convention, entirely autonomous from the Scottish Government.
In the foreword to the consultation Nicola Sturgeon said: “That proposal reflects our strong belief that the process by which Scotland develops and adopts its written constitution will be as important as its content. It should be inclusive and participative, reflecting the fundamental constitutional principle that the people, rather than the politicians or state institutions are the sovereign authority in Scotland.”
Amen to that. Our plans for a transitional constitution are not perhaps the biggest thing we need to fix in advance of indyref2 but they are important because they are the very foundation of the state which we seek to create. I hope that when Mike Russell’s plans are finalised, they will include not just the incorporation of the ECHR but also a time-limited sunset clause on the transitional constitution and firm plans for the participative process to create a permanent constitution envisaged by our current First Minister back in 2014.
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