Economic, social and cultural rights in a future Scotland

– Professor Alan Miller, Chair, Scottish Human Rights Commission, February 10, 2013 –

Scotland.18 September 2014

[On February 5, 2013] the Scottish Government published a discussion paper on its vision for a transition process towards independence, should Scotland vote ‘Yes’ in the referendum in October 2014.

There has already been a huge amount of debate around the publication. One criticism from the ‘Better Together’ campaign is that a timeframe of around 15 months would not be sufficient to carry out all of the detailed negotiations required. The ‘Yes Scotland’ campaign and the Scottish Government, of course, rebut this. Politicians, academics, the media and the Twitterati have all drawn attention to the myriad of complex points raised in the paper on currency, the monarchy, infrastructure and share of national debt.

However, there was more in the publication that should be scrutinised. In particular, the Scottish Government has progressed the debate on the legal protection of economic, social and cultural (ESC) rights, proposing that a wide range of such rights be included in a written constitution, should Scotland become independent. This is very welcome, although it needs to be more widely understood that the legal protection of ESC rights does not depend on the outcome of the referendum, and they should certainly not be seen as party political.

To put it simply, ESC rights are universally recognised human rights that secure for everyone what is required to live with dignity: adequate housing, education, work and the highest attainable standard of health. The Universal Declaration of Human Rights of 1948 is the foundation of modern international human rights law. Since then the UK has signed up to a number of international treaties that recognise such rights. However, the UK has been repeatedly criticised by the United Nations for failing to bring those rights into domestic law.

Highlighting ESC rights is a significant step forward in the debate. ESC rights are already incorporated in many other countries, such as Finland, Iceland, India and South Africa, and countries in central and Eastern Europe and Latin America have enshrined these rights in their constitutions. These rights are particularly important in times of economic austerity, establishing an objective basis for the fair prioritisation of limited resources.

For example, in 2009 the Latvian Constitutional Court agreed with pensioners that the Government should have explored less harsh measures to reduce the deficit before a substantial reductions in state pensions. And in Germany last year the Constitutional Court ruled that ESC rights requires the state to ensure “a dignified minimum existence” to asylum seekers.

Securing these rights in the laws or constitutional framework of Scotland and the UK would allow individuals across the country to challenge policy and budget decisions based on whether they are reasonable, whether they adequately prioritise the most vulnerable and the realisation of the essentials of a life with dignity for all.

As Scotland’s National Human Rights Institution, the Commission is developing Scotland’s first National Action Plan for Human Rights. This will help to ensure that Scotland is firmly on a path to progressively realising all human rights, in realistic and practical ways. It will set a roadmap to fill the ‘gaps’ in human rights protection and build on good practices. The development of the first National Action Plan has received warm cross party support in Scotland, and will be published by the end of this year. Securing in law all of the human rights to which we are all entitled, including ESC rights, would help ensure accountability and would empower people to defend rights where they are imperilled, and challenge bad decisions.

The commission continues to work independently to promote and protect all human rights of everyone in Scotland. This spring [2013] we will publish guidance and continue to engage with all points of view to ensure the protection of universal human rights is a central part of Scotland’s constitutional future, whatever form that may take after the referendum.

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