Following much debate and delay, the Scottish Commission for Human Rights Bill has finally passed through the Scottish Parliament. Scotland will now have its own human rights body, to complement the UK-wide Commission for Equality and Human Rights. Yet questions remain as to the likely effectiveness of such a body.
The UK Equality Act 2006 was passed in February this year and provides for the creation of the Commission for Equality and Human Rights (CEHR). The CEHR has responsibility for the promotion and protection of human rights in the UK. However, that Act specifically carves out certain aspects of its role in relation to Scotland. This carve out reflects an understanding between Scottish and Westminster officials that a purely Scottish body would be created in relation to devolved human rights matters. The CEHR therefore only operates in Scotland in relation to reserved human rights matters, for example employment. In addition to the reserved/devolved situation, the establishment of the separate Scottish body had to take account of the specific recognition given to the European Convention on Human Rights in the Scotland Act 1998 itself.
The result is the Scottish Commission for Human Rights Bill, which is expected to receive Royal Assent in mid-December 2006. The Bill aims to foster a human rights culture in Scotland, and embed high standards of human rights and ethics into the policy and practice of all public authorities in Scotland. It is intended that this will be achieved through establishing the Scottish Commission for Human Rights (SCHR). This new body, which will cost £1 Million a year to run, will promote and oversee human rights compliance and work alongside the UK CEHR.
The original Bill proposed the establishment of a Scottish Commissioner for Human Rights, but this was changed to a Commission after Labour MSP's joined opposition criticism earlier this year to the creation of another public sector "tsar". The Commission will now have one chairman and four other members.
Concerns remain, however, that the Commission will not have sufficient tools to achieve what is expected from it, and criticisms have been made that the powers of the SCHR are not equal to that of the CEHR. The risk being that human rights will not be protected equally in all parts of the UK.
One point that has been highlighted by a number of commentators is that the duties of the SCHR do not mention protecting human rights. The general duty of the SCHR is 'to promote human rights and, in particular, to encourage best practice in relation to human rights.' The CEHR, on the other hand, has a general duty that includes the encouragement of respect for and protection of each individual’s human rights. This lack of reference to 'protection' in the SCHR's general duty has a knock on effect throughout the Bill as the other duties and functions of the SCHR are based around this general duty. Critics see this as relegating the SCHR to an advertising body for human rights, rather than a body with any power to facilitate their protection.
Adding to these concerns is the fact that the SCHR does not have the power to support individual complaints. Instead, the SCHR has powers to conduct inquiries (although there are significant limitations on this power) and to intervene in court cases that have a human rights dimension, with the permission of the Court. The SCHR also has no power to institute judicial review, which many argue is a significant failing. In contrast, the CEHR has more extensive powers of inquiry and also has the ability to institute review proceedings. While this power is limited to reserved matters, section 7 of the Equality Act does allow the CEHR to instigate judicial review on devolved matters if the SCHR gives it's consent. Depending on the ultimate make-up of the SCHR, this power has the potential to be used to overcome the limitations placed on that body by the Scottish Parliament.
Finally, concern has also been expressed that the SCHR has no equivalent power to make grants to organisations undertaking human rights work in Scotland, despite the recognition that Scotland has a very under-resourced NGO sector in this area.
A recent survey indicated that many of Scotland's public bodies were dramatically misinformed about their human rights responsibilities. Any assistance that the SCHR can provide to promote a greater understanding of human rights in Scotland must therefore be welcomed. It is a pity however that the opportunity to create an equal level of human rights protection north and south of the border appears to have been missed.