Human Rights after Brexit: Gaps? Enforcement? Progress?

27 February 2018

The round-table “Human Rights After Brexit: Gaps? Enforcement? Progress?” took place on the 27th February 2018 at the The Studio, Glasgow. It was organised by the SCER (Scottish Centre on European Relations) and SULNE (Scottish universities Legal Network on Europe) in collaboration with the ECHR (Equality and Human Rights Commission). The round-table was part of an event series on the legal consequences of Brexit and was generously funded by the EHRC.

Anticipating the loss of EU Rights framework (in particular the EU Charter of Fundamental Rights) after Brexit, this roundtable considered the future of human rights protection in Scotland and the UK. At the heart of the examination were questions surrounding rights implementation, rights enforcement and how progress in human rights protection may continue. This roundtable was held at The Studio in Glasgow City Centre and was attended by delegates from a variety of academic, governmental, and independent organisations. The panel consisted of four members with a variety of expertise and experience of human rights. The event was organised by SULNE in collaboration with the Equality and Human Rights Commission, and the Scottish Centre on European Relations. Dr Kirsty Hughes, director of the Scottish Centre on European Relations chaired the event.

Update on the Scottish position and introduction to the Advisory Group on Human Rights Leadership

Professor Alan Miller, UN Special Envoy: Global Alliance of NHRIs and, Chair of the First Minister of Scotland’s Advisory Group on Human Rights Leadership

Professor Miller began by reminding us of the enduring relevance of the instruments that we will be discussing today. This year marks the 70th Anniversary of the United Nations Universal Declaration of Human Rights 1948, and the 20th Anniversary of the Human Rights Act 1998 and the Scotland Act 1998. Professor Miller also pointed out that, in Scotland, the combination of the Scotland Act and the Human Rights Act are the closest thing to constitutional protection of human rights.

The Advisory Group on Human Rights Leadership was set up by Nicola Sturgeon with the mandate of examining how the full breadth of human rights can be hardwired into a range of potential post-Brexit scenarios ranging from the current form of devolution to an enhanced form as well as to independence.. The group will examine civil, political, economic, social, cultural and environmental rights. The guiding aims of the group are trifold. Firstly, to ensure that Scotland does not regress in its protection of rights following Brexit. Secondly, to ensure that Scotland does not get left behind the developing European human rights standards. Thirdly, most importantly for the First Minister and the Advisory Group, for Scotland to become leaders in human rights protection standards. This includes examining the benefits, challenges and best means of incorporation of the breadth of UN human rights treaties.The advisory group will seek to do this by considering what kind of framework would be most appropriate to achieve the aims, how to operationalise such a framework and allocate resources, and how to ensure that the outcomes achieve the desired aim. The Advisory Group has an explicit participatory approach and a ‘Reference Group’ has been created to which Scottish civil society organisations have been invited. The Reference Group will assist the work of the Advisory Group and ground the work in the reality of rights protection in Scotland. The Advisory Group also intends to engage with the public and private sector and seeks to find out about people’s lived experience to guide the process.

The key theme of Professor Miller’s talk was leadership, and the vision of Scotland being at the forefront of human rights protection.

An Overview of The Legal Framework, Key Issues of the Charter of Fundamental Rights

Professor Nicole Busby, Professor of Law, University of Strathclyde

Professor Busby first explained that it remains difficult to predict exactly what the situation will be as Brexit negotiations and discussions continue and it is still conjecture to imagine what might happen. The channels for development of human rights within the EU come through the decisions of the Court of Justice of the EU (CJEU) and the Charter of Fundamental Rights of the EU. The EU is a dynamic and changing institution, it is constantly evolving and developing through policies, legislation, and hard and soft law measures. Professor Busby pointed out that upon leaving, the UK will lose out on the future developments of the EU.

Professor Busby focused her attention in this talk on the Charter of Fundamental Rights, which is binding on Scottish or EU bodies when they are implementing Union Law.

According to the Withdrawal Bill, after Brexit and the transition period, the Charter will no longer be binding and is unlikely to be transferred by the leaving bill.

Compared with the European Convention on Human Rights, Professor Busby points out that the of Charter of Fundamental Rights is broader as it updates the Convention with the case law of the CJEU and, the changes that are occurring in society. The Charter’s contents, therefore, extend beyond those of the Convention. One example of this is the topic of trafficking. The Charter also provides additional social rights in relating to working conditions and non-discrimination. There is, therefore, much to consider for rights if Scotland loses the Charter.

In terms of Scotland’s ability to create additional rights under the Devolution arrangement, Professor Busby noted that it would be possible under the current devolution set up. However, she reminded us that it important to note that there are certain areas which are reserved to the UK parliament, so there are certain areas around which there exists a ‘devolution wall’.

In summary, Professor Busby noted with concern that the EU has filled in protection gaps of the UK in areas such as equality and employment. Meaning Brexit, and the loss of the Charter of Fundamental Rights may spell a regression in rights over time.

Enforcement of Rights in Practice and the Charter of Fundamental Rights

Jonathan Cooper OBE, Human Rights Barrister, Doughty Street Chambers

Jonathan Cooper opened by explaining that he hoped his contribution would help to inform the Advisory Group on Human Rights Leadership on the areas that he considered to be particularly important relating to the enforcement of rights and the Charter of Fundamental Rights.

Mr Cooper’s contribution focused on what Scotland has to lose if the Charter of Fundamental Rights ceases to be binding. Firstly, he stressed that the Charter of Fundamental Rights is the ‘material source’ of certain human rights. It has made visible and tangible certain rights that do not feature outside the Charter. The Charter has also expanded and developed rights such as media pluralism and conscientious objection. Furthermore, it has identified new issues requiring protection as human rights, such as protection of personal data and the right to be forgotten. The Charter has also formulated new rights such as the right to human dignity, a right which Mr Cooper pointed out is at the heart of many human rights claims relating to challenges on the topics of asylum and equality issues. Mr Cooper pointed out that the Charter is the only international document which states the right to sexual orientation and non-discrimination and the gender-neutral right to marry. It is also the Charter that protects Scotland’s alcohol legislation from challenge on account of the public health protection in Art 35 of the Charter.

Mr Cooper referenced the Financial Times columnist Martin Wolf’s piece ‘Brexit and the UK’s raging civil war’, declaring that he believes that we need to battle for the Charter. Pointing out that Lord Hope said that it would be too complicated to retain the charter, Mr Cooper rejected this idea, noting that it may be difficult to retain but not impossible.

The Practical Context, Challenges and Reasons for Pursing Rights Protection in Scotland

Emma Ritch, Executive Director, Engender

Speaking about the practical context of human rights in Scotland, Ms Ritch made specific reference to the subject of women’s rights and equality and the possibility and benefits of the incorporation of CEDAW in Scotland. She pointed out there are specific challenges when attempting to employ international obligations in areas where there is complexity associated with devolution and reserved matters. Matters which exist at policy boundaries, or deal with partially devolved issues, are particularly challenging. Women’s equality issues fall into this category.

From her experience of seeking to employ international obligations to realise women’s rights in Scotland, Ms Ritch spoke of the practical context. She pointed out that woman often have not heard of the international obligations, which are by and large seen as very abstract concepts and, the UN seems very remote to women. Women are often very ambivalent on the topic of human rights and Engender has found that women often view human rights as tools which are used to deprive them of safety and comfort in their communities. Notwithstanding work done by Scottish Human Rights Commission, the Equality and Human Rights Commission and others, Ms Ritch commented that policy makers and parliamentarians can be disengaged from the mechanisms that might make human rights live in policy making, including human rights impact assessment.

In light of the confusion and disengagement that exists, Ms Ritch suggested that incorporation would bring visibility to CEDAW, enhanced accountability in policy making and ultimately different decision making by public authorities, meaning better outcomes for women and girls. There are a host of challenges standing in the way of incorporation. Engender will soon be publishing a paper by Professor Busby, outlining this in significant detail.

In sum, Engender believe that the incorporation of CEDAW into Scottish life in a way that could substantially and substantively alter experience, and realise the promise of equality and rights for women and girls in Scotland.

Discussion

Following the panels presentation Dr Hughes opened the floor to questions and thoughts from the delegates. Two main points emerged from the questions and comments from delegates. Firstly, delegates were enthused by the potential for employing legal creativity to navigate and strengthen Scotland’s human rights framework post Brexit. This included the potential for a Scottish Bill of Rights or a Scottish Human Rights Act retaining the protections provided by the Charter and ECHR and possibly incorporating UN human rights treaties equivalent. The panel were all supportive of the consideration of these options and the idea of creative solutions to retaining the Charter.. Secondly, the topic of the public’s engagement with human rights was raised. On this point, the panel noted that a Bill of Rights may make rights more visible, and this potential is a benefit that should be taken seriously.

In concluding, Ms Ritch noted that we must not underestimate the work needed to realise material change at for example the legislative drafting stage. Professor Miller made the final point that the Advisory Group on Human Rights Leadership was approaching its work with a serious ambition to develop recommendations which pointed the way to achieving real progress in improving the lives of people in Scotland.