This article was first published in the Scottish Human Rights Journal by W Green & Son Limited.

Practice Area: Human Rights, Scottish Law

ISSN: 1470-8302

Published by: W. Green

Editor: Professor Alan Miller

Last Release: Sep 2017  (78) 1-2

Human rights, social protections and Brexit – Scotland’s voice?

Brexit negotiations have begun. 

The EU (Withdrawal) Bill has been published. It has been subject to wide criticism that it provides an inappropriate amount of discretion to UK Government Ministers, with inadequate parliamentary or public scrutiny, to determine what is to become of those rights previously guaranteed to us all by EU law. These everyday rights are present in such areas as employment, equality, environment and consumer standards.

It has been confirmed by the UK Government that a Legislative Consent Motion of the Scottish Parliament is to be required with respect to the Bill.

Consequently, there is now an opportunity for Scotland’s voice to be heard.

What then should be Scotland’s voice on human rights, social protections and Brexit?

Through the First Minister’s Standing Council on Europe a series of roundtables in Scotland and Brussels has been held on this subject. Participants have included Scottish and European civil society, Scottish Government Ministers and European Commission officials, legal academics and independent experts.

Three guiding principles have been affirmed.

The first principle is non-regression from existing protections guaranteed by EU law. The second principle is of Scotland not being left behind future progressive European developments in rights. The third principle is that Scotland should continue to lead in rights.

What would these principles mean in practice?

The first principle of non-regression would include the Scottish Government and Parliament seeking guarantees of non-regression to be included on the face of the EU (Withdrawal) Bill and a transparent process of adequate scrutiny so as to provide assurance that UK Ministers can be accountable. If such guarantees are not forthcoming then transfer of powers from the UK Parliament to the Scottish Parliament should be sought in those relevant law-making areas such as employment and equality and others.

The second principle of not being left behind would include the introduction of continuity mechanisms in both Scottish and UK Parliaments to track developments in rights and social protections within the EU (including the application of the EU Charter of Fundamental Rights) so that due consideration could be given to enacting legislation and making policy as appropriate so as not to be left behind.

The third principle of taking a lead would include the continuation of Scotland’s journey in human rights and social protections. Acknowledging the backwards step in this journey of losing the constitutional guarantees of EU rights and social protections provided by the Scotland Act 1998, Scotland would need to develop a new framework of constitutional protection of rights. This should be based upon the UN framework of human rights treaties which have been already ratified at the UN by the UK but not yet given a domestic legal status despite repeated recommendations by the UN that the UK do so.

Such a forward step would represent a commitment to the progressive realisation of economic and social rights in such areas as standard of living, health, education, housing and to giving special attention to the rights of children, women, persons with disabilities and minority ethnic communities and others to ensure that no one is left behind. The principle of human dignity underlying the new proposed Scottish social security system is an example of this direction of travel which would become uniform across public policy and law making in Scotland.

Scotland’s journey to date is indeed already acknowledged around Europe and internationally as taking a lead in human rights and social protections. This is particularly due to the steps it is currently taking to integrate the recently adopted UN Sustainable Development Goals (SDGs), along with Scotland’s National Action Plan on Human Rights (SNAP), into the renewed National Performance Framework. The development of specific and relevant national targets and indicators for the SDGs 2030 Agenda is precisely what the UN is currently calling on all countries to do. Scotland is in practice doing just this and taking a lead, including through its internationally respected commitments to climate change and to climate justice.

It is universally recognised that it is the implementation of the UN SDGs – ending poverty and reducing inequality within and among all countries – which underpins the solution to so many of the contemporary global challenges such as poverty, conflict, extremist violence, forced migration and climate change through ensuring that no one is left behind. 

The reality of our inter-dependent world requires us all to work together to find solutions to our shared problems. A retreat from this multilateral approach into isolationism only makes the problems bigger. This is evidenced by the US withdrawal from the Paris Agreement on climate change and the unified response from the EU and the rest of the world that such a retreat is to give up on the future.

Let us all hope therefore that these three principles do come in fact to guide both Scotland and the UK in the months and years ahead in the Brexit negotiations.

The principles do also go to the heart of the debate on what kind of country we want to build. The landscape will only become clearer at the conclusion of the Brexit negotiations. That will be the time for each of us to make an assessment of just where we are then headed. These principles of non-regression, not being left behind and taking a lead point towards a forward and outward looking country and a better world. If they do indeed become Scotland’s voice then it is certainly a voice for these times.

Professor Alan Miller is a Special Envoy of the Global Alliance of National Human Rights Institutions, serves as an independent expert with the UN Development Programme Crisis Response Unit and is a member of the First Minister’s Standing Council on Europe. Previously he was unanimously elected and re-elected by the Scottish Parliament as the Chair of the Scottish Human Rights Commission between 2008-16.

He is writing this in a personal capacity.

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