The Scottish Human Rights Commission
The Future of Human Rights in Scotland
March 2013
The Scottish Human Rights Commission was established by The Scottish
Commission for Human Rights Act 2006, and formed in 2008. SHRC is the
national human rights institution (NHRI) for Scotland with a mandate to
promote and protect human rights for everyone in Scotland. SHRC is a public
body and is entirely independent in the exercise of its functions. In June 2010,
SHRC was accredited with “A” status by the International Coordinating
Committee of NHRIs and in May 2011 SHRC was elected to chair the
European Group of NHRIs.
Introduction
This paper addresses the current referendum debate and provides a
perspective on the future of human rights in Scotland, and the United
Kingdom. The Scottish Human Rights Commission (SHRC) takes no view on
the preferred outcome of the referendum. Rather, SHRC makes
recommendations on the approach and next steps which need to be taken, no
matter the referendum outcome,, to ensure everyone in Scotland enjoys the
benefits of internationally recognised human rights.
Recommendations
SHRC recommends that those proposing either independence or devolution
in the referendum debate place the progressive realisation of internationally
recognised human rights at the centre of their visions for Scotland’s future.
This is what the people of Scotland are entitled to.
The Human Rights Act 1998 (HRA) has played a vital role in the development
of law, policy and practice. There is abundant evidence that the HRA has
expanded legal protection and led to better outcomes by establishing a
framework to ensure greater personalisation in public services as well as
consideration of different groups in society. 1 This is true even more so in
Scotland, where the HRA is embedded in the constitutional framework via the
Scotland Act 1998, resulting in the passage of a range of rights based laws by
1
the Scottish Parliament. However this has not ensured full respect, protection
and fulfillment of all human rights as actual outcomes for people remain
inconsistent. 2 To build on the successes of embedding the HRA into
Scotland’s constitutional framework, SHRC makes two recommendations:
1. The incorporation of all of the UK’s international human rights
obligations into domestic law, within Scotland’s constitutional
framework. The successes which have followed the embedding of civil and
political rights in Scotland’s constitutional framework should be replicated and
extended to other internationally recognised rights, including economic, social
and cultural rights, and the rights of the child, of disabled people, women and
others protected in international human rights treaties which have been
ratified by the UK. Such a step would enable everyone in Scotland to enjoy
the benefits of such internationally recognised rights.
2. That Scotland’s National Action Plan for Human Rights (SNAP) is
developed and independently monitored to ensure progressively the
effective implementation of human rights across all areas of law, policy
and practice. Evidence gathered by SHRC demonstrates that while Scotland
has a broadly good legal and institutional framework for the promotion and
protection of human rights, the lived experiences of people in Scotland remain
inconsistent. To build on good practices where a human rights based
approach has been adopted, and address gaps, Scotland needs a National
Action Plan for Human Rights, developed collaboratively with all sectors of
society. Such an approach reflects international best practice and UN
recommendations.
Recommendation 1.
Incorporate all of the UK’s international human rights obligations into
domestic law, within a constitutional framework
Civil and political rights are brought into Scotland’s current constitutional
framework3 via the Scotland Act 1998, which embedded the Human Rights
Act 1998 into the devolutionary settlement.4
The Scotland Act provides that the Scottish Parliament and the Scottish
Government make legislation and otherwise act compatibly with the European
Convention on Human Rights (ECHR).5 This means amongst other things that
while Scottish courts can only make declarations of incompatibility in respect
of Acts of the UK Parliament, they can invalidate Acts of the Scottish
Parliament if they are judged not to be compatible with the ECHR. Under the
Scotland Act both the Scottish Government and Parliament must also take
into account the whole range of international human rights obligations by
observing and implementing them.6
Embedding human rights into Scotland’s devolutionary framework has had
significant benefits for the promotion and protection of human rights in
2
Scotland. The Commission’s recent overview of human rights in Scotland,
Getting it Right?,7 documented a range of human rights based laws, policies
and practices which demonstrate the public benefit of a human rights based
approach (HRBA). Examples include:

The adoption by the Scottish Parliament of legislation which is explicitly
“rights based” in a number of areas, including mental health, legal
capacity and adult protection. Many of these laws have received
international recognition as examples of best practice.8 This also has
led to an increase in the level of consideration given to human rights in
legislative development and policy.9

The promotion of international human rights. The Scottish Parliament
has defined human rights beyond the ECHR. Both the Commissioner
for Children and Young People (Scotland) Act 2003 and the Scottish
Commission for Human Rights Act 2006 requires those bodies to
promote and encourage best practice in relation to all international
human rights ratified by the UK.10

The integration of HRBA in a number of areas and by various public
bodies. These include:
a) The implementation of an HRBA at the State Hospital, Carstairs
in 2000, demonstrating that human rights provide ‘an immensely
practical framework which with to consider the very difficult
decisions to be made each day’ and are the foundation for other
duties.11
b) in 2010, the Scottish Government and COSLA produced practical
guidance on the procurement of care and support services which
“describes a service user and human rights-based approach to the
procurement of care and support services in Scotland and defines a
set of Guiding Principles which should govern the procurement of
such services”.12
c) in 2010, The Scottish Government adopted an HRBA for its
National Dementia Strategy. This followed the endorsement and
adoption of a ‘Charter of Rights of People with Dementia and their
Carers’ by a number of local authorities around Scotland (e.g.
Dundee, Argyll and Bute and Angus).13
While the UK has ratified most international and regional human rights
treaties, 14 it has failed to incorporate these into domestic law, with the
exception of the ECHR. 15 A number of national16 and international bodies
have consistently called for incorporation of these international human rights
treaties.17 The UK takes a fragmentary approach in relation to international
human rights obligations, which can result in gaps and inadequacies in
legislative protection.18 Such approach fails to recognise that human rights civil, political, economic, social and cultural - are interdependent and
3
indivisible as affirmed at the UN World Conference on Human Rights, the 20 th
anniversary of which is marked this year.
SHRC noted that while Scotland has a relatively strong legal and institutional
framework for human rights, the good intentions of law and policy are not
consistently turned into good practice. Human rights outcomes for people,
particularly related to economic, social and cultural rights, often remain
inconsistent.19
The current economic crisis makes it all the more important that all human
rights form a framework in which to consider the fairness of resource
allocation, including the requirement of prioritisation of the most marginalised
and the realisation of at least minimum essential levels of these rights for
everyone, as well as non-discrimination.20
The Commission believes that the incorporation of all internationally
recognised human rights, including those which protect economic, social and
cultural rights, is the next step needing to be taken to ensure that everyone in
Scotland enjoys the benefits of the rights to which they are entitled.
What are civil and political rights?
Civil and political rights include absolute rights such as the right to life and
freedom from torture, inhuman and degrading treatment, as well as limited
rights such as the right to liberty, and qualified rights such as the right to
respect for private and family life, home and correspondence. They include
so-called “negative obligations”, where the State must refrain from interfering
with the exercise of those rights (except in carefully defined circumstances) as
well as “positive obligations”, where the State must take positive steps to
ensure the realisation of those rights.
Civil and political rights are internationally protected in a range of treaties,
including the International Covenant on Civil and Political Rights, and in
Europe via the European Convention on Human Rights (ECHR). The majority
of the rights in the ECHR were incorporated into the law of the United
Kingdom via the Human Rights Act 1998, which was embedded into the
devolution settlement via the Scotland Act 1998.
What are economic, social and cultural rights?
Economic, social and cultural rights include rights to education, adequate
housing, to an adequate standard of living, and to the highest attainable
standard of health. They also include workers rights, rights to social security
and rights to take part in cultural life. These rights include immediate
obligations, such as to ensure non-discrimination; to prioritise the realisation
of “minimum essential levels” of the rights as well as to take effective
measures to ensure progressively the full realisation of those rights.
Economic, social and cultural rights are internationally protected in a range of
treaties, including the International Covenant on Economic, Social and
Cultural Rights, and in Europe via the European Social Charter (and the
4
Revised Charter which the UK has not ratified). These rights have not been
incorporated into the law of the United Kingdom.
All rights are interdependent and indivisible
Since the Universal Declaration of Human Rights, adopted in 1948, it has
been recognised that all human rights are interdependent and indivisible. This
has been reaffirmed on numerous occasions and many international human
rights treaties include a broad spectrum of civil and political as well as
economic, social and cultural rights. Examples include the UN Conventions on
the Rights of the Child and on the Rights of Persons with Disabilities, as well
as UN discrimination treaties related to race and women, and the EU Charter
of Fundamental Rights.
Means of incorporation of all human rights in Scotland
Incorporation of the provisions contained in the international conventions in
domestic law is key to ensure legal protection and effective realisation in
practice.21 There is a clear international trend towards incorporation or direct
applicability of international human rights laws across the world. This would
enable people in Scotland to enjoy all of those rights,which are considered
necessary to lead a life of human dignity.
Four main methods around the world are available for the incorporation of
international human rights instruments in domestic law. 22 For example,
economic, social and cultural rights have often been incorporated into
constitutional frameworks of countries so as to require all law, policy and
practice to be consistent with such rights.23
Enshrining human rights within a country’s constitutional framework has
abundant legal and practical advantages such as giving human rights a
supreme character 24 and providing principled guidance to which regard
should be paid when exercising public functions and decision-making.25 It also
enables people to secure their rights in real life.
For example in Germany last year the Constitutional Court ruled that
economic, social and cultural rights requires the state to ensure "a dignified
minimum existence" to asylum seekers. In Latvia, the Latvian Constitutional
Court agreed with pensioners in 2009 that the Government should have
explored less harsh measures to reduce the deficit before considering a
substantial reduction in state pensions.
Economic, social and cultural rights contain essential elements for a life of
dignity and freedom, including health, education, food and water, housing,
social security, healthy environment, and culture. There are around 60
countries which have recognised economic, social and cultural rights in their
Constitutions. These include countries in all regions of the world. Western
European examples include: Belgium, Denmark, Finland, France, Germany,
Greece, Iceland, Italy, the Netherlands, Norway, Portugal, Spain,
Switzerland.26
5
The current UK constitutional framework is broadly uncodified.27 However,
the incorporation of civil and political rights via the Human Rights Act and
Scotland Act shows that incorporation into Scotland’s constitutional framework
is possible. Incorporation of other human rights could be pursued via a
number of means:

Amending the Human Rights Act to include explicit guarantees of
economic, social and cultural rights, and other rights drawn from
international instruments to which the UK is party.

Introducing a UK Bill of Rights which would provide legal protection for
economic social and cultural rights and other rights in international
instruments ratified by the UK. 28 The Joint Committee has also
explored the creation of a UK Bill of Rights containing economic, social
and cultural rights.29

It would also be possible for the UK Parliament to amend the Scotland
Act to effectively incorporate economic, social and cultural rights and
other rights in international instruments ratified by the UK. This could
be done directly, or via the UK Parliament giving powers to the Scottish
Parliament for this purpose. 30 In Northern Ireland, the Belfast
Agreement required the Northern Ireland Human Rights Commission
(NIHRC) to provide advice to the Secretary of State for Northern
Ireland on a Bill of Rights for Northern Ireland supplementary to those
in the ECHR, to reflect the particular circumstances of Northern Ireland.
In 2008, NIHRC recommended the enactment of a Bill of Rights for
Northern Ireland which would provide legal protection for a wide range
of rights recognised in international human rights law instruments,
including socio-economic rights, children’s rights and environmental
rights.31

Similarly, the Scottish Parliament could enact legislation to effectively
incorporate international human rights obligations into the devolved
areas. Such an Act of the Scottish Parliament may fulfil many of the
purposes of incorporation although it may lack a desirable
constitutional character
While parity of rights protection across the UK may be preferable, differing
levels of rights protection in differing constituent parts of States is far from
unprecedented. An analogy may be drawn with federal states such as Austria,
Australia and the United States of America where some of the constituent
states give more extensive protection to human rights than those provided
under the federal law. 32 For example, the Australia Capital Territory and
Victoria have incorporated international human rights law through the Human
Rights Act (ACT) 2004 and the Victorian Charter of Human Rights and
Responsibilities Act 2006 respectively.
Should the referendum in 2014 lead to independence incorporation of
internationally recognised human rights could be done through a written
6
constitution, via a Charter or Bill of Rights.33 If the outcome of referendum is
independence, SHRC recommends that an independent Scotland
immediately accepts the existing international human rights obligations from
treaties ratified by the UK, and builds upon its obligations under Paragraph
7(2)(a) of Schedule 5 of the Scotland Act 1998, which provides that the
Scottish Government and Parliament ‘observe and implement international
obligations’.34 As the UK has not yet ratified a number of key international
human rights instruments. 35 SHRC recommends that an independent
Scotland should consider their ratification.
In any steps towards enhanced human rights protection within Scotland’s
existing or future constitutional framework, best practice requires an effective
process to support the participation of the population, including marginalised
groups. 36 This could be done via a Constitutional Convention or Assembly
drawing from previous experience in Scotland and internationally. 37 This is
central to securing the legitimacy of human rights laws. SHRC welcomes any
discussions in relation to this and advises that any such process could and
should consider incorporation of all existing international human rights legal
obligations.
In practice, most States in the world have constitutional references to
universal human rights, particularly more modern constitutions.38 There is a
noticeable trend to include the rights contained in the three general
international human rights instruments (Universal Declaration of Human
Rights,, International Covenant on Civil and Political Rights and the
International Covenant on Economic, Social and Cultural Rights) in domestic
constitutions.39 This is evident in the newer constitutions of Europe as well as
many in Latin America and Africa. Examples include Argentina, Portugal,
South Africa and Spain. 40 In general older constitutions such as the US
constitution, which predates the formation of international organisation and
modern human rights, often make few references to international law. 41
The breadth of modern international experience, as well as Scotland’s own
human rights journey to date, demonstrate that constitutional protection of
human rights - civil, political, economic, social and cultural - is the most
effective way of securing human rights in law and practice.
Recommendation 2.
Develop and Implement Scotland’s National Action Plan for Human
Rights
In addition, strong human rights based legal and policy frameworks must be
translated into more consistent, positive outcomes to which individuals are
entitled. Scotland, therefore, needs a more systematic approach to assure
and not assume the realisation of human rights in practice. SHRC is
accordingly facilitating the development of Scotland’s National Action Plan for
Human Rights (SNAP), a UK first. This initiative builds upon progress already
made and would fill some of the identified gaps through more systemic
application of a human rights based approach while also exploring steps
towards incorporation of economic social and cultural rights.42
7
Recommended by the UN, a National Action Plan for the promotion and
protection of human rights is evidence based, developed in an inclusive way
and independently monitored. They include specific, measureable,
achievable, relevant and time bound commitments. The current development
process of SNAP is being observed closely by the UN and Council of Europe
and it is anticipated to be launched on the occasion of International Human
Rights Day, 10 December 2013.
SNAP addresses the here and now. The SHRC report Getting it Right
highlights that Scotland has made notable progress in some areas, but it can
do better. Addressing the key issues arising from Getting it Right - and
preparing for whatever the constitutional landscape turns out to be - requires
a National Action Plan for Human Rights because effective implementation of
human rights has not been achieved by legislative measures alone.
A National Action Plan for Human Rights identifies gaps in human rights
protection and provides a clear, coherent and systematic way of addressing
those gaps. Action Plans can lead to improvements in human rights protection
across a range of sectors such as health, the justice system, housing, policing
and the environment. Experience from Nordic and Commonwealth countries,
amongst others, shows the potential National Action Plans to deliver
sustainable improvements in the realisation of human rights for all, particularly
the most marginalised.
New Zealand’s first National Action Plan (2005-2010), developed by the New
Zealand Human Rights Commission, provides some lessons. Findings from
an evaluation included that the plan had resulted in more human rights
consistent approach, for example in relation to restraint with a consequent
reduction in its use in mental health settings, and improved systems for the
protection of people at risk of abuse.
SNAP also prepares Scotland for the next step on the progressive realisation
of all human rights, exploring the means and identifying the benefits of
incorporation of all existing international human rights legal obligations,
including economic social and cultural rights. SHRC welcomes the broad
support from all spectrums in the constitutional debate for SNAP and looks
forward to further cooperation.
SNAP will also help develop a human rights culture in Scotland through the
broader adoption of a human rights based approach. A human rights based
approach is a way of empowering people to know and claim their rights, and
increases the ability and accountability of individuals and institutions who are
responsible for respecting, protecting and fulfilling rights. This means giving
people greater opportunities to participate in shaping the decisions that impact
on their human rights. It also means increasing the ability of those with
responsibility for fulfilling rights to recognise and respect human rights (for
example in the NHS, local authorities, or care providers). Using an HRBA
which is integrated into policy-making, as well as the day to day running of
organisations, ensures that human rights standards are met for everyone.
8
A human rights-based approach gives importance not only to outcomes, but
also to the processes. In this context human rights and equality impact
assessments; human rights awareness checklist (e.g. in procurement and
planning processes); human rights budgetary analysis (e.g. budget
formulation and analysis of the public budget); and human rights
measurement frameworks to report on progress are extremely important to
furthering the human rights culture in Scotland.
Conclusion
The current debate on the future of Scotland provides a unique opportunity for
considering the legal protection and advancement of all human rights –
economic, social, cultural, civil and political- in Scotland.43 A key focus of the
vision for Scotland’s future should be on how human rights, grounded in the
international framework, can be best advanced in each constitutional option.
SHRC recommends the incorporation of the UK’s international human rights
obligations into domestic law, within a constitutional framework. Many civil
and political rights are already incorporated into constitutional law in Scotland
via the Scotland Act (and the Human Rights Act). This has resulted in positive
benefits for the people of Scotland. To build on this requires the incorporation
of economic, social and cultural rights and the rights of particular groups in
society including children, disabled people, women and minority ethnic
people. This is possible in any outcome of the referendum.
Scotland’s first National Action Plan for Human Rights will provide a unifying,
inclusive and rights-based roadmap for the realisation of human rights across
all areas of law, policy and practice. It too will provide a forum for considering
the incorporation of all international human rights obligations, to help ensure
their consistent realisation in practice.
SHRC looks forward to engaging with all opinions in the referendum debate to
ensure that human rights are effectively promoted, protected and fulfilled
whatever the outcome.
SHRC recommends that all Members of the Scottish Parliament, Members of
the UK Parliament and Scottish and UK Government Ministers place the
progressive realisation of internationally recognised human rights at the
centre of their visions for Scotland’s future, alongside supporting the
development and implementation of Scotland’s National Action Plan for
Human Rights. This represents the best mechanism for ensuring
progressively the full realisation of all human rights for everyone in Scotland.
Ends
9
References
1
See for example: Human Rights and the Commission on a Bill of Rights. Equality and Diversity
Forum. 2011, available at http://www.edf.org.uk/blog/wpcontent/uploads/2011/10/EDF_HRA_briefing2010111.rtf ; Review of the Implementation of the Human
Rights Act. Department of Constitutional Affairs. 2006, available at
http://www.justice.gov.uk/guidance/docs/full_review.pdf; Klug, F and Starmer, K (2005) Standing
back from the Human Rights Act: how effective is it five years on? Public law (Winter). pp. 716-728.
For case studies see for example; http://www.ourhumanrightsstories.org.uk prepared by the British
Institute for Human Rights (BIHR), Liberty and other human rights organisations.
2
Getting it Right’, SHRC (2012), executive summary. Available at
http://www.scottishhumanrights.com/actionplan
3
In Whaley v Lord Advocate 2004 SC 78, the SA 1998, in combination with the ECHR and EU law,
was described judicially as a ‘mini constitution’ for Scotland. For the purposes of law and practice, the
SA 1998 can reasonably be described as a constitution for Scotland.
4
The HRA gives further effect to the European Convention on Human Rights (ECHR). The Human
Rights Act 1998 is the UK's, first and so far only, exercise in incorporating international human rights
obligations into domestic legislation.
5
Section 29(2)(d) and Section 57(2) of the Scotland Act 1998. In addition to the restriction that an Act
of the Scottish Parliament may not relate to reserved matters, the Scottish Parliament is prevented from
legislating inconsistently with ‘Convention’ rights and EU law
6
Schedule 5 para 7 (2) of the Scotland Act 1998
7
SHRC, Getting it Right? Human Rights in Scotland, Edinburgh, 2012.
8
Rights based laws include the Adults with Incapacity Act 2000, Mental Health (Care and
Treatment)(Scotland) Act 2003, Adult Support and Protection (Scotland) Act 2007. Examples of
international recognition include UN Committee on Economic, Social and Cultural Rights, Concluding
Observations on the UK, UN Doc. E/C.12/GBR/CO/5 (in relation to the Homelessness (Scotland) Act
2003); UN Committee on the Rights of the Child, Concluding Observations on the UK, UN Doc.
CRC/C/15/ADD.188 on education laws in Scotland.
9
See for instance debates on the Scotland Bill; Police and Fire Reform (Scotland) Bill; Civil Justice
Council and Criminal Legal Assistance Bill; Scottish Government’s Procurement Reform Bill;
Registration of civil partnerships and same sex marriage; 2011 Government’s policy on compulsory
purchase orders, which includes for the first time human rights considerations; proposals for a Victims
and Witnesses Bill; and finally Climate Justice Parliamentary Motion (2012). All available at
http://www.scottish.parliament.uk and http://www.scotland.gov.uk . This is flowed to a less degree by
local authorities West Lothian Council’s policy on housing acknowledges human rights law and
standards (http://www.westlothian.gov.uk/917/925/EqualityinHousing) Aberdeen City Council
introduced an ‘Equality and Human Rights Impact Assessment’ process in 2008.
10
See Section 2(2) of the Scottish Commission for Human Rights Act and Section 5 of the
Commissioner for Children and Young People (Scotland) Act 2003.
11
Donald et al, 2009 ‘Human rights in Britain since the Human Rights Act 1998: a critical review’,
Manchester: Equality and Human Rights Commission. p. 81
12
Procurement of Care and Support Services, published by Scottish Government 2010 pg 5
www.scotland.gov.uk/Resource/Doc/325109/0104824.pdf
13
See more here: http://www.dementiarights.org/support-the-charter/
14
Notable omissions are the International Convention on the Protection of the Rights of All Migrant
Workers and Members of Their Families, the International Convention for the Protection of All
Persons from Enforced Disappearance and the Revised European Social Charter.
15
Among the core international human rights instruments are:
- International Covenant on Civil and Political Rights (ICCPR)
- International Covenant on Economic, Social, and Cultural Rights (ICESCR)
- Convention Relating to the Status of Refugees and Protocol Relating to the Status of Refugees
- Convention on the Rights of the Child (CRC)
- Convention Against Torture (CAT)
- Convention on the Elimination of All Forms of Racial Discrimination (ICERD)
- Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
- International Convention on the Protection of the Rights of All Migrant Workers and Members of
Their Families (MWC)
- Convention on the Prevention and Punishment of the Crime of Genocide
- Convention on the Rights of Persons with Disabilities (CRPD)
10
- International Convention for the Protection of All Persons from Enforced Disappearance
Among regional human rights treaties are:
- Charter of Fundamental Rights of the European Union
- Convention on Action against Trafficking in Human Beings
- Council of Europe Framework Convention for the Protection of National Minorities
- European Charter for Regional or Minority Languages (ECRML)
- European Convention on Human Rights and fundamental freedoms (ECHR)
-European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment (CPT)
- European Social Charter (ESC), and Revised Social Charter
- Framework Convention for the Protection of National Minorities (FCNM)
16
See UK NHRIs UPR submission and letter to the Permanent Representative
Permanent Mission to the United Nations. Universal Periodic Review of the United Kingdom
http://nhri.ohchr.org/EN/IHRS/UPR/Documents/Letter%20from%203%20UK%20NHRIs%20on%20U
K%20UPR.pdf.
17
See also UN Dos, E/12/GBR/CO/5; E/C/12/1ADD.79; CERD/63/CO/11; CCPR/C/GBR/CO/6. The
obligations imposed by the UN treaties bind the UK in international law. However, under the dualist
doctrine of international law (which is followed in the UK) these international legal obligations are not
binding in domestic law unless they have been specifically incorporated into that law by way of
legislation.
18
Twenty-first Report of Session 2003-04, The International Covenant on Economic, Social and
Cultural Rights, HL Paper 183, HC 1188.
19
‘Getting it Right’, SHRC (2012), executive summary. See also ‘Delivering Human Rights in
Scotland’ Scottish Association for Mental Health et al (2011). p 10. The report revealed that “Ten out
of the 42 public bodies admitted they could not provide explicit steps taken to implement or put into
practice compliance with Section 6 of the Human Rights Act 1998 over the last three years.”
20
SHRC is concerned that the response to the economic crisis, particularly by the UK Government and
notably through the manner in which welfare reform is being undertaken, is resulting in retrogression
in the realisation of human rights, particularly among the vulnerable and marginalised people in
Scotland.
21
International law leaves it to States to adopt such legislative measures consistent with their
constitutional processes.
22
(a) The direct effect of international legal instruments and customary international law in the national
legal order; (b) Direct incorporation of rights recognised in the international instrument into a national
bill of rights or in a national law; (c) Enactment of detailed legislative measures to give effect to the
rights recognised in international legal instruments; (d) Indirect incorporation or use of norms as aids to
interpret other norms or to develop new norms in the domestic legal order .
23
Committee on Economic, Social and Cultural Rights, General Comment 9, The domestic application
of the Covenant (Nineteenth session, 1998), U.N. Doc. E/C.12/1998/24 (1998).
24
If there is any conflict between any other law and the constitution, legislation can be declared ultra
vires by a court, and struck down as unconstitutional.
25
The constitution act as a interpretative source as all other (ordinary) laws must be in consonance with
constitutional law.
26
ICJ (2008) Courts and the Legal Enforcement of Economic, Social and Cultural Rights: Comparative
Experiences of Justiciability. Examples from other regions include: Latvia, Lithuania, Macedonia,
Argentina, Belarus, Bolivia, Brazil, , Cape Verde, Chile, Colombia, the Democratic Republic of
Congo, Costa Rica, Ecuador, El Salvador, Ethiopia, Guatemala, Honduras, India, Indonesia, Japan, the
Republic of Korea, Mexico, Mongolia, Morocco, Mozambique, Nicaragua, Paraguay, Peru, Poland,
Romania, Russia, Senegal, South Africa, Syria, Thailand, and Uruguay.
27
The UK has an accumulation of various statutes, conventions, judicial decisions and treaties which
collectively can be referred to as the Constitution.
28
SHRC continues to be concerned that the current political climate, not least fostered by a number of
UK Government Ministers, presents singularly unfavourable conditions to discuss a UK Bill of Rights.
Such a Bill would be likely to be retrogressive in the current political UK environment.
29
A Bill of Rights for the UK? Joint Committee on Human Rights, HL 165-I/HC 150-I, July 2008
30
See for example the Scotland Act 1998 (Modification of Schedule 4) Order 2009 which allowed the
Scottish Parliament to directly modify the Scotland Act 1998 via the Convention Rights Proceedings
(Amendment)(Scotland) 2009 to introduce a time limit for bringing Convention rights proceedings.
11
31
See Advice here: http://www.nihrc.org/documents/bill%20of%20rights/bill-of-rights-for-northernireland-advice-to-secretary-state-2008.pdf
32
See for instance, ACT Human Rights Act 2004 and Victorian Charter of Human Rights and
Responsibilities Act 2006 in Australia
33
A Charter of Rights is generally a section within the constitution entrenching the human rights that
are considered important and deserving specific legal protection by a State.
34
In granting the Scottish devolved institutions power to implement international
obligations Paragraph 7(2)(a) of Schedule 5 to the Scotland Act may in fact expand
the competences of the Scottish Government even into areas which otherwise
look to be reserved to the UK Parliament.
35
For example, the UK Government has not ratified the Convention on the Protection of the Rights of
All Migrant Workers and Members of their Families, the Convention for the Protection of All Persons
from Enforced Disappearances and the ILO Convention on Domestic Workers as well as the optional
protocols and individual petition mechanisms of the International Convention on the Elimination of all
forms of Racial Discrimination and UN Convention against Torture. In relation to the Council of
Europe the UK has not ratified protocols 4 and 12 of the ECHR and the Revised European Social
Charter.
36
Donald A (2010). Developing a Bill of Rights for the UK. Human Rights & Social Justice Research
Institute, London Metropolitan University.
37
See Scotland's Future: from the Referendum to Independence and a Written Constitution. February
2013, para 1.7. See also recent international practice such as the Icelandic Constitutional Assembly,
which built on a National Forum comprised of ordinary people living in Iceland.
38
D. Shelton (Ed) (2011). International Law and Domestic Legal Systems. Incorporation,
Transformation, and Persuasion. Oxford.
39
Sir N. MacCormick argued that “the incorporation of human rights into constitutional law, are no
longer dangerously radical notions”. N. MacCormick, ‘Is there a Constitutional Path to Independence’,
Parliamentary Affairs, 53, 2000, 723.
40
D. Shelton (Ed) (2011). International Law and Domestic Legal Systems. Incorporation,
Transformation, and Persuasion. Oxford. For a useful overview see Malcolm Langford (ed.) 2011
Social Rights Jurisprudence: Emerging Trends in International and Comparative Law. CUP
41
Ibid
42
See www.scottishhumanrights.com/actionplan. A National Action Plan for Human Rights is a
roadmap that identifies gaps in human rights protection and provides a clear, coherent and systematic
way of addressing those gaps
43
Scheffer, D. argues that Scottish politics has emerged from centuries of stagnation to become the
most innovative regional phenomenon in Western Europe. Key note speech delivered at the University
of Glasgow, January 22, 2013.
12