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14 December 2015updated 02 Sep 2021 5:05pm

A tale of two kingdoms

Nicola Sturgeon and David Cameron are miles apart on human rights.

By Kirsteen Shields Kirsteen Shields

I’m a lecturer and to make them laugh, I used to say to students it’s a great time to be alive, now I say it’s a great time to be able to vote. – That has a certain truth in Scotland, where not only do we have double the referendums, we also have two governments, pursuing two starkly contrasting approaches to human rights.  As one embraces the legal incorporation of rights the other rejects it. Time and again, “human rights” will tear them apart.

Last week Nicola Sturgeon addressed an innovation forum held by the Scottish Human Rights Commission at Dynamic Earth in Edinburgh and renewed her commitment to human rights (full speech available here). The SHRC has done a great deal to challenge the second-class status of economic, social and cultural rights in its relatively short history.  A throwaway comment by a representative of the Edinburgh Tenants Federation, working with the SHRC; “it’s not a competition, we’re just trying to have rights”, is not easily thrown away, nor forgotten.

The event coincided with the publication of the Scottish Parliament’s Rural Affairs and Climate Change and Environment Committee Stage 1 report on the Land Reform (Scotland) Bill, and included a panel session on land reform hosted by Peter Peacock of Community Land Scotland. At the centre of the on-going debate on land reform in Scotland is the balance between property rights and economic, social and cultural (esc) rights and the legal status and incorporation of the latter.

‘Legal incorporation’ of esc rights is a recurring theme at Scottish Parliament. The recently passed Community Empowerment (Scotland) Act 2015 integrated consideration of the UN International Covenant on ESC Rights into domestic law making. Without domestic incorporation, until recently these ‘legally binding’ international human rights covenants have not been easily relied upon in court. Legal incorporation is significant because it takes rights from the football pitch of welfare politics and plants them firmly in the hands of lawyers. 

Due to its conceptualisation of land as a national asset to be used for the benefit of all members of society, the Land Reform (Scotland) Bill has been hailed as an opportunity to rewire the relationship between land and human rights. Claims that the proposals would interfere with existing landowners ‘absolute’ right to property have tried to dominate the debate and have been duly considered. – There is, of course, no ‘absolute’ right to property.

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Where land meets rights is also where politics meets law. The Scottish Government, politically, has an obligation to pursue land reform on the basis of it’s democratic mandate, and legally, by virtue of UN international human rights covenants and also at the European level, the European Convention of Human Rights.

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In the UK, if law and politics are at odds, if a legislative body and the judiciary are in conflict there’s the risk of running into judicial review or declarations of incompatibility. Yet there is reason to believe that politics and law (in this instance as embodied by the Scottish Government and the European Court of Human Rights) are synchronised on the issue of progressing economic, social and cultural rights.

The European Court of Human Rights continues to operate on the basis that the national political arena is best placed to decide on allocation of resources, – but within reason. For this reason, the ECHR provides that states may legitimately intervene in Article 1, Protocol 1 on the grounds of ‘public interest’. 

On deciding what constitutes the public interest, member states are granted a wide margin of appreciation (i.e discretion). The elimination of social injustice is properly considered a responsibility of the legislature and falls within the ‘public interest’.

There’s also cause to be optimistic about the protection of tenants’ rights at the European Court of Human Rights. These rights can be developed in two directions. Firstly in understanding leases as property under Article 1 Protocol 1 ECHR, and secondly in a flurry of cases protecting the right to a home under Article 8 ECHR, and recognised by the UK Supreme Court.

As ever the ECHR is concerned to ensure that there is an appropriate balance between rights.  Under existing arrangements, it may be that we are operating on an acute asymmetry, not a balance.

The routine violation and entrenched inequality of economic, social and cultural rights is often based on an assumption that the existing distribution of property is to remain largely undisturbed. In this way property rights have long defined the space available to economic, social and cultural rights.

As the legal theorist, Jeremy Waldron, has written; “When a conservative government in the West says, for example, in response to some plea for welfare provision, ‘The money simply isn’t  there,’ what is usually meant is that it would be impolitic to try and raise it from  existing income earners by taxation.”

Widespread support for the Scottish Government’s Land Reform (Scotland) Bill and calls for it to become more ‘radical’ indicate renewed demand to ‘disturb property rights’.

More than half of Scotland’s land is owned by fewer than 500 people and is widely held to be the most concentrated pattern of land ownership in the developed world. The Land Reform (Scotland) Bill has now entered Stage 2 in the legislative process and an outcome is expected before the Scottish Parliament elections in May 2016.

Up until now the question that has dominated the debate has been; ‘Is this legitimate?’ A glance at the UK’s progress on equality and human rights standards would suggest the question should not be ‘Is it legitimate to disturb property rights?’ but ‘Is it legitimate not to?’