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You can't have a right without a remedy 

This opinion piece is 10 months old
 

Emma Hutton welcomes the new Scottish Human Rights Bill - but wonders if it goes far enough

You might think that as the leader of a human rights legal charity, I would be jumping for joy at proposals for a new Human Rights Bill for Scotland, published by the Scottish Government earlier this summer.  

For the 2,000 people each year who come to JustRight Scotland for free, specialist legal advice, information and representation, a new law to protect their rights should be good news.  

Our clients include survivors of gender-based violence, victims of trafficking, unaccompanied young people in the asylum system, disabled people, Gypsy/Travellers, refugee families seeking to be reunited, to give just some examples.  

They all share some common experiences. Their rights have been breached or are at serious risk of being so. When trying to access justice, they have been defeated by the system at every turn. They are exhausted and almost always traumatised.  

Our charity’s lawyers help them when no one else can or will. This sometimes means going to court. More often, it means providing advice and information, helping people to understand and advocate for their rights through other routes. It usually means working with community groups and other partners to provide holistic support. Unfortunately, it also always means grappling with systemic failures, complex processes that create barriers at every turn, and the labyrinth that is the civil legal aid and civil justice system in Scotland.  

So of course, we support the idea of putting more human rights into law and enabling people to enforce them in court if they need to – this has been a repeated call from across civil society for many years. We certainly support the ambition behind ministerial proposals to “create a legal framework… to embed international human rights within domestic law and drive transformative, positive change for people – empowering them to claim their rights.”  

There are some positive plans set out in the proposals around some rights (more on those later). But I’m sorry to say that, like other colleagues across the third sector, my excitement soon turned to disappointment as I read through 57 pages of consultation document setting out exactly how government plans to deliver this important ambition.  

Why the disappointment?  

Well first, you can’t have a right without a remedy. If there’s no redress when someone’s rights are breached, it’s not really a right at all.  

International human rights law even spells out what this should mean – remedies should be accessible, affordable, timely and effective (aka 'AATE') so it’s hard to understand why there is currently no proposal to put this right explicitly into the new bill.  

Second, despite previous commitments, the current proposals would do little or nothing in practice to provide greater meaningful protection in law for women’s rights, disabled people’s rights, and the rights of black and minoritised people.  

The international treaties that protect these rights have been relegated to the status of “equality treaties” by government in its consultation, ignoring the substantive rights they contain like the right to independent living that is so important to disabled people – and is not currently part of Scots law.   

Proposals to protect the rights of these groups currently go no further than placing a “procedural duty” on public bodies to think about them when making decisions and to produce a report on their deliberations. I don’t think we’re alone in the third sector in feeling that Scotland probably doesn’t need more reports from public bodies about what they have and haven’t done to protect people’s rights. If we all had a pound for every such report, we might not be in such a running costs crisis! 

Finally, despite repeated calls to connect work on this bill with government’s own Justice Strategy and pre-existing commitments to reform civil legal aid and the wider administrative justice system, this hasn’t been done. We’re running out of time in this parliamentary term to get through both this bill and the long overdue need for a new Legal Aid Bill. It’s perplexing to us that there seems to be no joined-up thinking going on within government on this.   

So, frustration as well as disappointment is the order of the day for me and my team as we try to engage in good faith with the proposals before us.  

We do, of course, very much welcome the positives. The bill would put into law the rights to food, health, housing, social security and a healthy environment. We hope and expect that the bill will lead to enforceable “minimum core obligations” for these rights that government and public bodies would have a legal duty to comply with.  

Proposals for “standing” – who can bring a legal case – would mean organisations could take cases on behalf of groups of people, to challenge systemic abuses. This would avoid forcing individual victims to go through the pain of a court process and open up power for the third sector to organise around legally enforceable rights.  

We’re told that government can’t go further than it has because of the complexities of devolution (a refrain that will be familiar to many colleagues in the third sector). We haven’t seen a clear explanation of this, our own analysis leads us to a different conclusion, particularly when it comes to some rights for disabled people, and we know that other legal experts take a different view to government.  

Let’s hope that the draft bill, when it’s eventually published, really does fulfil the promise of putting all our human rights into law and enabling everyone – especially people like our clients – to claim them.  

The consultation on proposals for a Human Rights Bill for Scotland is now open until the 5th of October. More details on how to respond are available on the Scottish Government’s website: https://www.gov.scot/publications/human-rights-bill-scotland-consultation/ 

Emma Hutton is chief executive of JustRight Scotland, a Glasgow-based charity that uses the law to defend and extend people’s rights.