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