Human Rights and Devolution: Devolution as a Vehicle for Human Rights Protection and Progress

Citation

Boyle K & Busby N (2021) Human Rights and Devolution: Devolution as a Vehicle for Human Rights Protection and Progress. Human Rights Consortium. Edinburgh. https://hrcscotland.org/wp-content/uploads/2021/09/Final-Devolution-and-Human-Rights-Dev-as-a-vehicle-for-HR-protection-and-progress-Sept-2021.pdf

Abstract
This briefing addresses the interrelationship between human rights and devolution in four parts. Part 1 provides a detailed overview of human rights and devolution in practice, including an examination of how the European Convention of Human Rights performs a fundamental foundation for human rights in the devolved jurisdictions and acts as a base from which human rights protections can be further progressed, including economic, social, cultural and environmental rights (ESCER). In this sense devolution provides both a foundation and a vehicle for progressive change. The particular nature of devolution provides the opportunity to close the accountability gap in the protection of ESCER, many of which are devolved areas of law, such as the right to health, the right to housing and the right to a healthy environment. Part 2 examines progress within the current framework, including the incorporation of international treaties, as recommended by the National Taskforce for Human Rights Leadership in Scotland. Scotland’s planned incorporation of international human rights law provides an opportunity to embrace a number of normative standards, including progressive realisation, minimum core obligations as well as substantive equality measures. At the same time, the process thus far has demonstrated that there is no transformative change without effective accountability and the processes of incorporation will need to address this gap in order to function effectively. Part 3 examines the risk posed to human rights by the erosion of devolution through a number of UK-led strategies, particularly in response to policy gaps as a result of Brexit. It is argued that devolution can act as an important anchor on national reform, mitigating threats to backslide on rights at the national level in this respect. Finally part 4 sets out the potential opportunities if devolution was further enhanced, including a fully integrated operational human rights framework across a range of social and economic policy areas such as employment, social security, immigration and equality. The paper critically assesses each of these areas offering insights into the potential reach as well as limitations of devolution as a force for positive human rights progress. It concludes with a reframing of human rights in the UK to reflect the more complex picture painted by diverging human rights trajectories in each of the UK jurisdictions and the roles played by different actors in relation to human rights reform. Importantly, the cultivation of a rich discourse on human rights and the potential for progressive change relies on a strong, engaged, organised and informed civil society levering change across the legislative, policy, executive and accountability spheres. The development of any new human rights framework must include genuinely participative and inclusive processes at the local level and new legal frameworks must include both effective accountability as well as acknowledging that law alone does not result in transformative change but can enable a fundamental culture change in the way people are treated in their daily lives.