It's time to put Human Rights at the heart of Scotland’s constitution

A rights-based approach can be a powerful way of tackling poverty. It can provide the understanding and language to argue for our legal rights. As a trained lawyer, I believe we should go beyond talking about human rights. The most powerful rights-based approach is to fully incorporate human rights into Scotland’s laws and constitution. When we talk about human rights in Scotland, we’re often referring to civil and political (CP) rights, such as the right to private life, the right to a fair trial or the right to vote. CP rights are usually the focus, because this is the category of human rights protected under European, UK and Scots law. The law protects these rights and gives the people of Scotland a way to access justice if they are infringed. However, civil and political rights are only half the story. The Universal Declaration of Human Rights also includes economic social and cultural (ESC) rights. ESC rights include rights which protect an adequate standard of living, rights relating to employment practices, rights relating to participation in society and rights relating to education.

If we do a better job protecting economic, social and cultural rights, we will, by definition, do a better job of tackling poverty

The two categories of human rights were always intended to sit alongside one another. They are, in many cases, interdependent. For example, you cannot fully realise your right to vote if you are denied your right to education. Similarly, you cannot fully realise your right to an adequate standard of living if you are denied your right to a fair trial. The UK is a signatory to the International Covenant on Economic, Social and Cultural Rights and recognises ESC rights as legally binding human rights. However, ESC rights are not incorporated into UK or Scots domestic law. This doesn’t mean economic, social and cultural rights are any less real or any less important than civil and political rights. It just means it’s harder to access justice if your rights are infringed. If we do a better job protecting economic, social and cultural rights, we will, by definition, do a better job of tackling poverty. Unfortunately, at the UK level, it’s unlikely we’ll see any move towards ESC rights. It was ESC rights the UN referred to when it said that UK Government austerity policies are a breach of human rights. In Scotland we have a First Minister who seems, at the very least, open to incorporating ESC rights, and a new programme for government which includes a commitment to:

“explore how to better reflect international human rights obligations in domestic law, including by inviting a cross section of people from all over Scotland to examine how human rights protections might be enshrined in law”.

This is a key moment, and if enough voices raise the call, it seems politically possible that we could see ESC rights incorporated into Scots law. But would it be legally possible? Well, it is within the power of the Scottish Parliament to observe and implement international obligations and the UK is a signatory to ICESCR. So yes, legally the Scottish Parliament could do this. We also know it’s possible in a practical sense, because other countries, such as Germany and South Africa, have already incorporated ESC rights into their laws. Would incorporating ESC rights solve poverty over night? Of course not. It would only require that ESC rights were progressively realised over time and within available means. And, of course, laws passed by the Scottish Parliament would only bind the Scottish Government and other Scottish public bodies, not UK bodies. Nonetheless, incorporating ESC rights is, in my view, the most powerful rights bases approach available. It would give people experiencing poverty in Scotland a new and profound way to ensure all decisions made in Scotland work towards tackling poverty. Let’s show the world Scotland is a nation which firmly believes in human rights by re-shaping our constitution with ESC rights at its heart.