Tag: human rights

A Human Rights Bill for Scotland: submission to a consultation

The Scottish government is consulting about the introduction of a Scottish bill to incorporate human rights law into Scottish legislation.  The exercise is somewhat limited by the terms of the devolution settlement, which largely reserves ‘equal opportunities’ to Westminster – it’s in schedule 5 of the Scotland Act 1998 , but there are other things that the Scottish Parliament could do.

I’ve responded to some of the questions, and I am duplicating my response in the passages that follow.

1 What are your views on our proposal to allow for dignity to be considered by courts in interpreting the rights in the Bill?

‘Dignity’ is subject to interpretation. Nordenfeldt, in an article on “The varieties of dignity” (Health Care Analysis, 12(2) 2004), identifies four different meanings: dignity as merit, as moral stature, as identity, and as human worth. Only the fourth of these is universal. The former Chief Rabbi, Jonathan Sachs, claimed a fifth: the ‘Dignity of Difference’, arguing for a view of dignity that was both collective and cultural.

The incorporation of the principle of ‘dignity’ is unlikely to have the legal effect that the Scottish Government desires. A recent judgment in the European Court of Human Rights upheld the right of a Roma woman to beg, on the basis that the right to beg was an expression of her dignity (ECHR 2021, Lacatas v Switzerland, 14065/15) – but the right to have enough resources not to beg was not protected.

3 What are your views on the types of international law, materials and mechanisms to be included within the proposed interpretative provision?

The Human Rights protected by international law are intended to establish a universal minimum. Equalities, social protection, economic rights, social rights, public sector duties and access to justice are not really part of that. They are, rather, rights of citizenship, going well beyond the limited aspirations of human rights.

Laws that focus specifically on Human Rights have had at most a limited effect on the operation of the law in the UK. According to solicitors Mishcon de Reya (Submission to IHRAR’s Call for Evidence, 2021), Human Rights were cited in 538 legal cases from 2000 to 2021: the courts made a Declaration of Incompatibility in only 39 of those cases, and 8 of those were overturned on appeal. (The main impacts in those very few cases have related to immigration and mental health issues.) The Scottish Government cannot rely on the incorporation of Human Rights law to address the broad range of problems identified in this consultation.

5 Are there any rights in the equality treaties which you think should be treated differently?

The Scottish Government is legally limited in what it can do for protected groups, because that would be liable to violate the reservations of the Scotland Act, but it can pursue equality more meaningfully by other routes. The Child Poverty Strategy is an example.

12 Given that the Human Rights Act 1998 is protected from modification under the Scotland Act 1998, how do you think we can best signal that the Human Rights Act (and civil and political rights) form a core pillar of human rights law in Scotland?

The Human Rights Act 1998 only committed governments and their successors to uphold the minimum standards established in international law. This is a floor, not a pillar.

15 How do you think we should define the groups to be protected by the equality provision?

The protected characteristics identified in the Equality Act 2010 leave gaps and ambiguities. The many gaps include, for example, national origin, locality, social class, accent, inequalities of birth, fortune and discrimination through favoritism. The Scottish Government may not have the competence to amend the Equality Act, but it can at least take action on these issues as they relate to the conduct of public policy in Scotland.

16 Do you agree or disagree that the use of ‘other status’ in the equality provision would sufficiently protect the rights of LGBTI and older people?

Disagree. Age, sexual orientation and gender reassignment are already protected in the Equality Act. It is difficult to see what difference further legal incorporation will make.

19 What is your view on who the duties in the Bill should apply to?

I support the principle that duties should apply to any body carrying out devolved public functions.

33 What are your views on our proposed approach to ‘standing’ under the Human Rights Bill?

The extension of ‘standing’ to permit persons with a ‘sufficient interest’ to initiate legal action is welcome. However, it still falls some way short of what is needed to protect economic, social and cultural rights.

In the USA, legal action takes two other forms not currently permissible in either England or Scotland:

● the use of class actions, extending beyond group litigation to people who are affected but not participants; and
● the presentation of a Brandeis brief, a rule of evidence which has been available in the USA for more than a century. The brief makes it possible for courts to consider non-legal submissions from social scientists, reviewing evidence of the overall economic or social impact of a case. Evidence in this form can be taken from amici curiae, persons or bodies not otherwise party to the action.

In so far as these are rules about due process in a court of law, introducing these measures would fall wholly within the competence of Scottish law-makers.

36. If you do not agree that existing judicial remedies are sufficient in delivering effective remedy for rightsholders, what additional remedies would help to do this?

There need to be routes permitting rapid, authoritative, low-cost access to legal redress. As things stand currently, judicial review of administrative action can only be granted when other measures have been explored and failed. This creates barriers to justice, and the process is simply too slow to protect people with limited resources. There have been rapid, urgent actions taken on behalf of some people, such as migrants facing illegal deportation, but there is no obvious equivalent route for people who have been left without money for food this week. For most, there is no effective way of  getting legal redress before the penalty, and the problems, have been suffered.

40 What are your views on our proposals for a Human Rights Scheme?

Impact assessments can act as a useful guide to administrative action, but in practice (for example, in relation to gender or the environment) there has been a tendency for some bodies to claim that there is nothing to consider when they have simply failed to see the implications. Assessments need to be reported, collated and subject to scrutiny in order to be effective in guiding practice.

 

For those who want to add their views, the full consultation, which closes on the 5th October, is available here.

 

 

 

 

The WASPI women are going to have to be compensated, regardless of who wins the election

There is one fascinating exception to the failure of the parties to engage with fundamental issues: that is, the position of the WASPI women, two and a half million women who have had their expected retirement dates delayed and their pension entitlements radically cut.  This is yet another legacy of bad policy decisions taken in recent years.  It has led, however, to Labour and the SNP making a commitment to compensate the women for the loss of rights that have been earned through contributory benefits.

The current position of the UK government has some parallels with the behaviour of Glasgow Council, which persistently underpaid women who ought to have had equal pay.  Both of these problems have come about because the public authorities were looking for ways to save money, and they thought that it was easier to do that by taking the money from women, largely because women’s incomes are considered secondary to men’s.  In both cases, the injustice is obvious and palpable.  And in both cases, the main ground for resistance now is simply how much it will cost to set the issue right.

The WASPI women are set to appeal from the case they lost in the High Court.  They lost that case mainly because they tried to argue that their treatment was discriminatory; that argument failed because as policy intended to equalise the position of men and women is the opposite.  For what it’s worth, however, I think that ultimately they are going to win, because there are other, stronger objections to the policy.  The case has direct parallels with a human rights case taken in the Inter-American Court of Human Rights, in Five Pensioners v Peru.  The decision in that case centred on the suspension of pensions by the Peruvian government.  Disappointingly, the court did not attach much weight to the idea that social security was a human right; but they did think that there was a human right not be be deprived of one’s property, and that a contributory pension was the property of the pensioner, not the government.

The government can’t rely on its power to make the rules for social security.  The DWP’s rules are mainly determined through secondary legislation, but secondary legislation can’t trump human rights or property rights.  That has implications for any future government.  The bill to compensate the WASPI women is going to be presented in due course, and regardless of the political complexion of the government, it is going to have to be paid.

 

The World Day of Social Justice

The Secretary General of the International Social Security Association has sent out a message to go along with the UN’s World Day of Social Justice on 20th February.  The article begins by reminding us that

social justice is inseparable from the full respect of fundamental freedoms and human rights – including access to social security … It is worth remembering that the legal basis for access to the right to social security is clearly defined in international human rights instruments.

One of the instruments was the  Social Security (Minimum Standards) Convention, 1952 (No. 102).  The UK did not sign up to all of this – it has only ratified sections II-V, VII and X.  That, however, includes undertakings about benefits for unemployment, including an upper waiting period of 7 days (art 24(3)) and a level of benefit that is 45% of previous earnings for a person with two children (arts 22(1), 65 and 66).   On the face of the matter, the UK is currently in breach of its international obligations in relation to the second condition, and has started to breach the conditions of the first with the introduction of Universal Credit.

 

Cait Reilly wins again

A decision in the high court has upheld an argument made by Cait Reilly, that the DWP and the government have enacted unlawfully. After her initial victory, to the effect that the DWP was acting without sufficient statutory authority, the government introduced new legislation to fill the gap, and made it retrospective.  The court in this decision held that it was incompatible with principles of human rights for governments to change the law affecting a litigant while legal processes were in progress.  That decision is obviously right, but the DWP seems determined to expend the largest possible sum of taxpayers’ money challenging it.  Do they have a budget for legal fees that has to be spent before the end of the financial year?

The most bizarre aspect of the DWP’s strategy is that it seems to offer claimants the possibility of legal redress that otherwise they wouldn’t get.  The DWP has long operated a pernicious  ‘anti test case rule’: if a court finds that the DWP has interpreted the law wrongly, no redress is offered to people who have been wronged.   If the DWP had rescinded the initial decision that was made about Cait Reilly, it would have had no impact on other claimants; if they had not appealed the first case, they could have introduced the new regulations with no obligation to redressing the position of people who had lost out up to that point.  But the Department seems determined to lose the argument with a spectacular implosion of Hollywood-style destructiveness.  It would be no bad thing if they took the anti-test case rule down with them.

Poverty as a violation of human rights

I’m grateful to CROP, the Comparative Research Group on Poverty, for drawing my attention to a development in the UN: the declaration that poverty is a violation of human rights.  The Guiding Principles on Extreme Poverty and Human Rights, agreed in 2012, begin with an understanding of poverty as “a multidimensional phenomenon that encompasses a lack of both income and the basic capabilities to live in dignity”.  States have duties, for example

  • to protect people in poverty from stigmatisation, and to “prohibit public authorities, whether national or local, from stigmatizing or discriminating against persons living in poverty” (pp 5-6)
  • to enhance the involvement of women in decision-making (p 6)
  • to give poor people rights of redress (p 11)
  • to ensure that persons living in poverty have access to at least the
    minimum essential food that is nutritionally adequate and safe, basic
    shelter, housing and sanitation (p 15)
  • to “repeal or reform any laws that criminalize life-sustaining activities in
    public places, such as sleeping, begging, eating or performing personal
    hygiene activities” (p 17)
  • to provide legal aid for criminal and civil cases (p 19), and
  • to ensure that all workers are paid a wage sufficient to enable them and
    their family to have access to an adequate standard of living (p 27)

The document has no direct legislative force, but breaches of human rights are in principle justiciable, and members of CROP have been arguing for some years that developing legal rights against poverty could have a major material effect on government policies.

 

Benefits, torture and human rights

The Scottish Human Rights Commission has made a submission about human rights in Scotland to the United Nations Committee against Torture. The remit of the UN Committee is that it monitors the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Part of the SHRC’s submission is that “the UK Government and all of those involved in the implementation of welfare reform ensure that the cumulative impact of cuts in social security does not breach the Convention.”

Now, much as I dislike the benefit cuts, I think there is a moral distinction to make between cutting Housing Benefit and administering electric shocks to people’s private parts; and at a time when the protection of essential human rights is under threat, bombarding international organisations with issues that fall well outside their remit is neither appropriate nor wise.

Empowering women

The World Bank has just issued a new report, Empowering Women, which reviews the legal rights of women in sub-Saharan Africa. The report is listed as being for sale from 15th October, but most World Bank reports are also available as a free PDF and I found the link here, in a 6 Mb download.

The report focuses on laws that establish the framework for other rights, including marriage and divorce, inheritance and property rights. The findings are depressing, though perhaps not as depressing as the book’s publicity suggests. The positive elements are that 45 out of 47 countries have ratified the Convention on the Elimination of All Forms of Discrimination against Women, and if 21 out of 47 subject women’s rights to the authority of a head of household, that should mean that 26 don’t. The Appendix listing court cases also point to many examples of women’s rights being upheld or extended. The authors note, though, that the effect of common law, dual legal systems and the gaps between theory and practice all work to limit women’s rights, and that the effect of formalisation (e.g. in Kenya) may well be not to extend protection but to institutionalise disadvantage.