In this post, Veronica Luhtanen and Sofie Quist, recent graduates from the LLM Human Rights programme and research assistants at the University of Edinburgh School of Law, introduce the Incorporating Human Rights in Scotland project led by Dr Kasey McCall-Smith in collaboration with Amnesty International Scotland, Together, and Human Rights Consortium Scotland. Here they reflect on a recent workshop that brought together representatives from civil society, the Scottish Government and academia to discuss incorporation of international human rights standards into Scots law.
The Scottish Initiative on Human Rights Leadership
In the past years Scotland has expressed a growing ambition in developing an advanced human rights framework, evidenced both by growing political will and tangible efforts being made in legislation and policy. One step in the process is envisaged to be the incorporation of human rights derived from UN human rights treaties into the domestic legal system, in order to guarantee their enforceability in Scottish courts and beyond.
The First Minister’s Advisory Group on Human Rights Leadership report published in December 2018 sets out a process to incorporate international human rights standards in the form of a Scottish Bill of Rights. It aims to prepare for further devolution and guarantee non-regression of human rights after Brexit, as well as ensuring Scotland remains a leader in human rights protection in the UK. A National Taskforce for Human Rights Leadership was announced in June 2019 and has since begun taking steps to bring new legislation forward. At the same time, as a result of over a decade of work by the children’s sector, the UN Convention on the Rights of the Child is already in the process of being incorporated into Scots law in a separate, yet related effort.
The Incorporation Project
Civil society organisations play a key role in the incorporation process in both influencing decision makers at the public consultation stage during the legislative process, as well as in their overall advocacy work and communication with right-holders.
The Incorporating Human Rights in Scotland project was created in response to a need to assist civil society in fully understanding the importance and concept of legal incorporation, and how to utilise this in their advocacy work. Developed in conjunction with Human Rights Consortium Scotland, Amnesty International Scotland and Together, the project firstly aimed to identify gaps in civil society’s knowledge of the legal process of incorporation. To aid in this task, an initial scoping exercise was held at the University of Edinburgh.
Impressions from our first scoping workshop with civil society
On the 19th of November we met with representatives from civil society, government and academia to scope out knowledge gaps around legal incorporation of international human rights treaties and discuss how our research can be relevant to different civil society organisations.
Those participating in the workshop were particularly motivated to learn more about incorporation of international human rights law, and to gain knowledge that could help them take part in shaping a new Scottish bill of rights. Most were already confident using the language of human rights in their advocacy work across different sectors but were interested in learning what further legal tools are available at the international level and how to make them relevant for people’s everyday lives.
We started the session with three presentations. Kasey McCall-Smith delivered a succinct introduction to the different models of incorporation, distinguishing between direct, indirect and piecemeal incorporation while demystifying terminology that sometimes appear both complex and ambiguous. In our presentations, we aimed to place these models in context through incorporation case studies.
The first case study presented by Sofie demonstrated the judicial avenues and regulatory tools for remedying human rights violations achieved by the Human Rights Act 1998, which incorporates the European Convention on Human Rights. Veronica presented a second case study detailing South Africa’s experience with partially incorporating the UN Convention on Elimination of all Forms of Discrimination Against Women.
Finally, Juliet Harris, director Together Scotland (Scottish Alliance for Children’s Rights) shared her lessons from the campaign to incorporate the UN Convention on the Rights of Children (UNCRC) into Scots law. Children’s advocacy groups in Scotland have the benefit of being organised more collectively than other areas of rights. They have been pushing for incorporation of the UNCRC for over 10 years and therefore have a great deal of insight to offer in terms of engaging with government and parliamentarians.
Following the presentations, we heard from participants about how they use human rights in their advocacy work and discussed their thoughts on legal incorporation. Universally, the participants were looking for tools to use human rights in their advocacy. Our ongoing research will have a two-fold purpose. First, we will develop guidance and training tools about how to advocate for incorporation of human rights using the variable methods of incorporation and related terminology. Second, we will demonstrate how incorporating human rights can create tools for effective human rights advocacy more generally.
We will be delivering the outcomes of our research in the form of case studies of incorporation from around the world, jargon busting guides and training tools clarifying of the legal concepts and processes relevant to incorporation – and the sometimes-blurry lines between them.
Legal incorporation in focus at the annual Rights of the Child UK (ROCK) conference
We heard more about the processes taking place to campaign for incorporation on the UNCRC across the UK’s devolved nations at the annual ROCK conference on 3 December. Speakers from government, academia and civil society presented their plans, research and experience.
The conference also looked further afield. Gudridur Bolladottir, senior legal advisor to the Icelandic ombudsman for children, gave an insightful and uplifting account of how the remarkable decision of the members of Iceland’s parliament to ‘go for it’ and incorporate the UNCRC by consensus, has ‘forced the hand’ of the government. Her experience from the ombudsman office is that once human rights are incorporated into national law, they provide a powerful tool for independent bodies, civil society and parliament to hold government accountable. Incorporation provides an ability to say: ‘this is the law and you have to follow it’.
Several interesting points about legal incorporation were raised across the presentations and discussions, such as how legal incorporation can induce cultural change and how a human rights culture in turn is crucial to ensure that legal incorporation leads to effective implementation of human rights. We were also prompted to think about the role of independent oversight bodies and support for human rights defenders in legislation that incorporates human rights treaties.
Over the next months we will consolidate our research and finalise training materials that will be made available to at international experiences of legal incorporation of human rights treaties into national law in order to identify best practice models to be used by Scottish civil society groups.
The material will be delivered as online training material and through training workshops, the first of which will take place in the last week of February 2020. In the meantime, stay updated on our project website where you will find the scoping workshop presentations, a video from the workshop and more.