Katie Boyle
Brexit and Rights Engagement Network
The way that human rights are protected in the UK is changing. This has a direct impact on the different types of adjudication, enforcement and routes to remedy that might be available for those who experience violations of human rights, including civil, political, economic, social and cultural (CPESC) rights. It also means that duty bearers, including civil service, government departments, local authorities and, at times, private bodies must navigate through multiple complex legal frameworks in order to understand what kind of duties they carry and how to effectively implement them. This article highlights some of the most recent and pressing changes to the emerging human rights landscape, then looks specifically at what this means for the potential future adjudication and enforcement of economic, social and cultural rights in Scotland.
Scottish Parliament, Andy Hay, CC BY 2.0
The Changing Human Rights Landscape across the UK: Shifting Sands v. Tectonic Constitutional Plates
Previous research has highlighted the importance of placing our understanding of human rights in the jurisdictional hierarchy within which they operate. By way of example, Scotland, Northern Ireland and Wales are devolved entities within UK. The UK is (for the moment) a Member of State of the European Union, a party to the Council of Europe and is committed to a number of international human rights treaties and obligations.
The different layers of jurisdiction impose different rights and obligations in connection with human rights. For example, there is a quasi-constitutional recognition of the rights contained in the European Convention of Human Rights (ECHR) at a devolved micro level through the devolved statutes and at the macro national level through the Human Rights Act 1998. The ECHR can be adjudicated upon at the local devolved level, the national level, and the supranational level. Different types of enforcement and remedies are available depending on what devolved, national or supranational mechanism is engaged.
The research demonstrated that there was no ‘universal’ application of human rights protection across the UK and that civil, political, economic, social and cultural rights can be enforced to different degrees across each of the jurisdictions at any given time. To use an analogy, the human rights regimes were like shifting sands in tidal waters. Generally the body of water moved as a whole, but there were underlying differences and small detailed discrepancies as the tide moved across the sands of the national and devolved shores.
However, recent research indicates that this landscape is changing both rapidly and drastically. Rather than shifting sands of human rights protection, the analogy that comes to mind is much more akin to tectonic plates shifting in a constitutionally seismic way. At the national level, there is an increasingly regressive human rights trajectory at play.
Both in relation to withdrawal from the European Union, meaning the irrevocable loss of many rights and remedies deriving from EU law (a ‘fundamental change in the constitution’, according to the Supreme Court), as well as the continuing to and fro on whether the UK will repeal and replace the Human Rights Act. These are seismic constitutional shifts with a chilling effect on human rights protection.
At the devolved level, however, there are very different trajectories at play. In Wales, for example, the Welsh Assembly has increased protection of international human rights through the Rights of Children and Young Persons (Wales) Measure 2011, placing a duty on devolved bodies to have due regard to the UN Convention on the Rights of the Child. A similar, but less progressive piece of legislation was passed by the Scottish Parliament.
In both Scotland and Wales, the socio-economic equality duty has now been devolved and has been commenced in Scotland as the Fairer Scotland Duty – meaning designated devolved bodies, including the Scottish Ministers, must have due regard to addressing socio-economic inequality when undertaking their duties. With increased powers, Scotland has also passed the Social Security (Scotland) Act 2018.
Whilst the legislative scheme does not fully incorporate or enshrine the right to social security as recognised in international law (it does not directly incorporate Article 9 ICESCR, for example), it does declare social security as a human right, required for the realisation of other rights. The Social Security Commission responsible for oversight of the scheme is under a duty to consider international human rights instruments, in particular the International Covenant on Economic, Social and Cultural Rights and associated UN General Comments.
Scottish First Minister Nicola Sturgeon has also established an Advisory Group on Human Rights Leadership (of which the author is a member) to advise on how best to protect, enhance and promote human rights in Scotland by December 2018. Part of this group’s remit is to look at the way through which economic, social, cultural and environmental rights might be better protected.
In the meantime, the Scottish Parliament is seeking to pass (contested) legislation that retains the force of the EU Charter of Fundamental Rights and general principles of EU law in Scotland in relation to retained EU law post-Brexit (by retaining the remedy to disapply incompatible legislation). This goes much further than the Westminster legislation, which ends the enforceability of the EU Charter in domestic law. The House of Lords introduced an amendment to retain the enforceability of the Charter. However, the Commons rejected this amendment on 12 June, together with a number of other constitutional safeguards.
In Northern Ireland, the picture is further complicated. Northern Ireland is a devolved entity where human rights take on a particularly significant constitutional underpinning because of commitments made by both the Irish and UK Governments under an international peace treaty, the Irish British Agreement. The multi-party peace agreement underpinning the international treaty set out obligations to ensure an equivalence of rights across the island of Ireland. It also embedded the ECHR as a foundation upon which future rights protection could be built.
After 10 years of deliberation and broad societal participation, the Northern Ireland Human Rights Commission recommended that the UK Parliament enact a Bill of Rights for Northern Ireland that extended human rights protections to include ESC rights. This proposal was shelved (due to unionist dissent) and remains an outstanding issue under the GFA commitments.
The Northern Ireland Assembly could take steps to progress human rights protections under the devolved framework. The consociational power-sharing arrangement in Stormont collapsed in January 2017 due to political impasse, and Northern Ireland remains without an executive or democratic accountability in devolved areas. The democratic deficit this creates has led to significant political problems for resolving disputes around rights protection, including most recently on whether the UK Parliament should legislate in a devolved area to repeal and replace the legislation dating from 1861 criminalising abortion in Northern Ireland.
The Supreme Court has indicated that this law in Northern Ireland is incompatible with Article 8 of the ECHR. Both Westminster and the Northern Ireland Assembly have the legislative competence to make the changes, but politically Westminster faces problems in doing so. This originates from a desire to withhold on trespassing into a devolved area (by way of political convention), but also because of the Conservative UK Government’s reliance on the DUP to retain power in Westminster.
ESC Rights Adjudication and Enforcement – What Future for Scotland?
Brexit creates a watershed moment in relation to revisiting governance and constitutional arrangements, including in relation to human rights protection. Removing the EU pillar of human rights law from the UK legal structure creates potential lacunae in legal protection mechanisms. As part of this constitutional moment, the Scottish Government and Scottish Parliament have been exploring ways of better protecting human rights in a post-Brexit landscape, including the better protection of economic, social and cultural rights (ESC rights).
ESC rights relate to devolved areas such as health, housing and education. They also relate to reserved areas such as employment, immigration and equality and to partially devolved/ reserved areas such as social security. Whilst ESC rights form part of the international human rights framework and are engaged under treaties that the UK has agreed to be bound by, there is no domestic mechanism in place to ensure their protection in accordance with international law.
As noted by Edel Hughes and me in a recent article, enforcement and adjudication of ESC rights is something that already occurs in each of the devolved jurisdictions and at the national level, under the aegis of different mechanisms. For example, ESC rights are justiciable (adjudicated upon) through the common law, under the dynamic interpretation of civil and political rights, and under statutory schemes. They are also justiciable under EU law, through equality and non-discrimination and through access to supranational complaints mechanisms (see CJEU and ECtHR).
As above, these approaches to ESC enforcement tend to be ad hoc, incremental, piecemeal and variable in degree of enforcement. This approach can create structural accountability gaps if access to effective remedies is curtailed because domestic mechanisms are restrictive – either intentionally or unintentionally, the latter of which is often the case.
Through What Mechanisms Could ESC Rights Protection be Enhanced?
Scotland has the devolved competence to observe and implement international human rights obligations, including ESC rights, in devolved areas. As part of this power, the Scottish Parliament could pass devolved legislation that better protects ESC rights. Under a legislative scheme, the Scottish Parliament could create duties to ensure that rights holders have access to an effective remedy for the violation of ESC rights in devolved areas.
Such a system would require to carefully weigh up what type of duties to impose and to what degree such rights could be enforced by the court, if at all, as a means of last resort. These types of questions are not unique to Scotland, nor the UK, but have been tackled in constitutional arrangements around the globe – and most recently were considered under constitutional convention processes in Ireland and New Zealand.
Questions that remain outstanding in this area of human rights reform are not so much about whether or not ESC justiciability is legally possible or whether it is constitutionally legitimate to enhance ESC legal protections, but about how to achieve such change in any given constitutional setting in a legitimate and feasible way.
Katie Boyle
University of Roehampton
Dr Katie Boyle is Senior Lecturer in Law at the University of Roehampton and from August 2018 will take up the appointment of Associate Professor in International Human Rights Law at the University of Stirling. Her research focusses on the justiciability and constitutionalisation of economic, social and cultural rights.
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