Eleanor Deeming Johnstone, legal officer at the Scottish Human Rights Commission, explains why new human rights laws must have teeth if they’re going to work for everyone in Scotland

“You know, if you’re already marginalised and then you’ve got to fight the system which is completely stacked against you – you know what? You really don’t have a lot of hope for success unless you’ve got resilience coming out of your pores…”* 

In recent years, the language of human rights has become commonplace in Scottish public life. Those with the responsibilities to uphold our human rights – from Scottish ministers to local authorities – increasingly talk of taking a rights based approach and the importance of putting human rights at the centre of what they do.

This is, of course, positive and should be encouraged. Yet despite these warm words, far too many people in Scotland still experience violations of their human rights on a day to day basis, and an accountability gap has long existed in Scotland meaning people cannot easily access justice when things go wrong. 

The commission talked about this earlier this year in our paper: At a Crossroads: What next for the Human Rights system in Scotland?  where we explored why so many people feel that new public bodies are required to uphold their human rights.  We suggest that one of the reasons for this is that people need a place to go with their problems, and to know that action can be taken when things go wrong.  People in Scotland and civil society organisations are telling us very clearly that they want accountability mechanisms that are straightforward, accessible, affordable, and which have an impact. 

Access to justice should be straightforward. When someone experiences a human rights violation, they should have access to a simple, affordable, quick and effective process which will not only address their specific situation, but be capable of ensuring the whole system improves and learns from mistakes. However, at the commission we’re very aware that the lived experience of people across Scotland tells a different story – finding a solution for human rights harms is often complex and difficult.  

The commission has now published a new discussion paper,  authored independently on our behalf by Dr Katie Boyle, Professor of Human Rights Law and Social Justice at the University of Strathclyde. The paper focuses on access to justice for economic, social, cultural and environmental rights, which are central to our everyday lives in areas like housing, health, social care and education.

What is access to justice? 

Often, when we talk about access to justice, we think of the criminal and civil court systems, legal aid and lawyers. These are obviously important parts of the picture; we know that challenges with accessing legal aid, backlogs in the court system and lack of ready access to specialist human rights legal advice is putting access to justice beyond the reach of many people in Scotland.  

However, this only tells a partial story. Our paper highlights that the types of issues and barriers people face in trying to access justice are much broader. Far too often, people can’t find the information they need and don’t know where to turn to for advice and advocacy. People, often already facing extremely challenging circumstances, don’t have the emotional energy, the time, nor the financial resources to keep pushing through lengthy and complex complaints procedures. They may find themselves part of a group of people who have a shared experience of a human rights violation, but can’t pursue their case as a collective.

The paper takes an honest look at all of the different barriers around access to justice for human rights, and suggests a range of solutions to move towards an access to justice system that is truly fit for purpose.  

Why now? 

Our paper is published at a crucial juncture, as the Scottish Government prepares to close a consultation on its plans to bring international human rights treaties protecting economic, social, cultural and environmental rights into Scots law. 

The Scottish Government’s Human Rights Bill presents a rare opportunity to look at the system which advances the enjoyment of human rights for everyone in Scotland.  But to do so it must include strong accountability measures allowing people to hold public authorities in Scotland to account for human rights violations. Alongside any new remedies that the Bill introduces, there must also be targeted action and, crucially, adequate resources to widen access to advice and advocacy, to increase human rights capacity across relevant regulatory and scrutiny bodies, and to strengthen awareness of human rights.  

What next? 

Our paper is designed to provide an assessment of the current landscape, and to provide those with an interest in access to justice – whether that is people advocating for change through the new Human Rights Bill or those working in this field  –  with a framework to assess how fit for purpose current routes to justice are in human rights terms. Both the paper and its executive summary offer a series of key questions to inform this process. 

In 2023/24, the Commission is increasing its focus on the lived experience of people in Scotland in four ‘spotlight’ areas. One of those is access to justice. Over the coming months, through our access to justice project, we will be focusing on the challenges faced by real people and those who support them in accessing justice in two areas: prisons and social care. The project seeks to illustrate the challenges real people experience, setting out what a typical journey of a complaint currently looks like in our chosen focus areas. Our research and findings will be published towards the end of the year.

Scotland is rightly proud to say it is a human rights respecting country. To truly live up to that claim, we must firstly collectively recognise that our current access to justice system is failing so many of us. We have to find ways to overcome these failings – whether through the upcoming Human Rights Bill or separate processes – if people's experiences are finally to match the warm words of our politicans.  

Read the Access To Justice For Everyone discussion paper our website 

An Executive Summary is also available on our website at www.scottishhumanrights.com/publications. 

If you would like to know more about this work, or have any views on the access to justice system in Scotland today, please contact us at hello@scottishhumanrights.com. 

* Quote from an access to justice practitioner who contributed to Professor Katie Boyle’s research for this report. 

Eleanor Deeming Johnstone is legal officer at the Scottish Human Rights Commission