The papers published in this special issue of the International Journal of Human Rights touch upon three cornerstones of my own work as Council of Europe Commissioner for Human Rights: firstly, implementing international human rights standards on the ground; secondly, promoting the work of national human rights structures (NHRSs) and national human rights action plans (NAPs); and, thirdly, underlining the importance of economic, social and cultural rights during periods of austerity. All three areas intersect, and are arguably interdependent. NHRSs and national actions plans facilitate the implementation of international human rights standards domestically. The very process of mapping national actions plans, as we see with Scotland's National Action Plan (SNAP), improves public awareness and understanding of human rights, and allows the government to see where gaps in economic and social rights exist.
Implementing international human rights standards on the ground
The key success of human rights standards is their enforcement in real life. As Commissioner for Human Rights, I act as a liaison between rights givers, on the one hand, and rights holders, on the other. I regularly meet with both. In particular, I meet the most vulnerable of rights holders during my country monitoring missions, where I visit prisons, psychiatric institutions, migrant detention centres, schools and Roma camps. Helping me to liaise are non-governmental organisations (NGOs) and NHRSs with whom I consult. I am able to witness firsthand the ways in which human rights standards are failing to reach those most in need. When I return from the field to Strasbourg, my task is to convey with candour and accuracy what I have seen to governments. Presenting my quarterly reports to the Council of Europe's Committee of Ministers, I speak directly to government representatives about my concerns. In this way, my mandate contributes to implementing human rights standards through translating national concerns for an international audience and highlighting human rights deficits.
One of the ways of implementing human rights at the national level is ensuring that particular rights are justiciable, that legal claims based on human rights violations can be brought before domestic courts. Katie Boyle and Edel Hughes, in their paper ‘Identifying Routes to Remedy for Violations of Economic, Social and Cultural Rights’, look at how employment rights, rights relating to pensions, rights which protect an adequate standard of living, rights relating to healthcare and rights relating to education can be justiciable in Scotland. One example which struck me was that no domestic remedy to ensure fair pay exists, despite a gender pay gap. Some practical suggestions are given for finding judicial remedies to violations of economic and social rights. Remedies do not have to be judicial to achieve results. For example, the collective complaints procedure to the European Social Charter has strengthened the role of the social partners and NGOs by enabling them to directly apply to the European Committee of Social Rights for rulings on possible non-implementation of the charter in the countries concerned. Regrettably, the United Kingdom has not signed the Additional Protocol Providing for a System of Collective Complaints, and consequently this avenue of remedy is currently closed.
Elaine Webster and Deirdre Flanigan, in their paper entitled ‘Localising Human Rights Law: A Case Study of Rights in Scotland’, point out that during their research they found little demand for judicial remedies for human rights violations among the actors they interviewed. Clearly this points to a need to educate the public not just on their human rights but also on the available judicial remedies. Moreover, the remedies which are available need to be effective. This was the point I recently made in in a Human Rights Comment concerning the implementation of judgments of the European Court of Human Rights, ‘Non-implementation of the Court's Judgments: Our Shared Responsibility’.Footnote1 Strasbourg Court judgments need to be executed by member states to maintain the effectiveness of the remedies provided by the state. The same point applies equally to domestic remedies. They must be effective, so therefore not too lengthy, and capable of providing redress.
One interesting proposal suggested in Katie Boyle and Edel Hughes’ paper is the increased use of parliament in ensuring that economic, social and cultural rights are considered in the legislative drafting process. I support the view that national parliaments could do more to protect and promote human rights. The Joint Committee on Human Rights of the United Kingdom's Parliament plays a very useful role in this regard, and is an example of good practice which I cite in discussions with other member states. One way to address the feeling of a democratic deficit is for parliaments to get much more actively involved in discussing and debating what human rights actually mean in practice; this applies equally to economic, social and cultural rights, as well as civil and political ones.
Promoting the work of national human rights structures (NHRSs) and national human rights action plans
Effective protection of human rights at national level also requires strong, independent national human rights institutions. This is where the first two cornerstones of my work, and indeed this special issue, intersect. NHRSs, independent commissions, general or specialised ombudsmen, equality bodies, police complaints mechanisms and similar institutions protect human rights for everybody. My office established close contacts with ombudsmen and NHRSs from the outset, as required by Article 3 of Resolution (99)50 of the Committee of Ministers, which sets out my mandate. My work should ‘facilitate the activities of national ombudsmen or similar institutions in the field of human rights’. I meet with NHRSs every time I visit a particular country, and consult with them closely about human rights issues and the best way to address problems. Information from NHRSs is used in the preparation of my country visits. Often NHRSs also contribute to the follow-up of my reports at national level, i.e. the dissemination and implementation of my recommendations.
NHRSs play a crucial role in systematic human rights implementation and monitoring. In my predecessor's 2009 recommendation on systematic work for implementing human rights at the national level, he outlined the working methods of systematic human rights work, including creating a baseline study, NAPs, mainstreaming a rights-based approach and human rights indicators. This process was mirrored in the creation of SNAP.
There is a positive momentum for adopting NAPs in Europe, which I aim to support through my work. NAPs are an important tool in the realisation of human rights: they can hold states to account, ensure coordination in implementing and reporting on international obligations and promote a culture of human rights in the country. I convened a workshop in Strasbourg in March 2014 to take stock of initiatives in this field and to encourage the development of new ones. Since Scotland's own SNAP was adopted in December 2013, we have seen NAPs being adopted in Armenia, Croatia, Georgia, Greece, the Netherlands, Slovakia, Turkey and Ukraine. The Scottish Human Rights Commission took part in the Strasbourg workshop in 2014 and another one organised in Kyiv to launch the preparation of the Ukrainian National Strategy on Human Rights. The Scottish model was very helpful for framing the discussions and the work on the Ukrainian Action Plan. I support the dynamic involvement of the Scottish Human Rights Commission in the conception of SNAP, and believe that it can be held out as a positive example to other Council of Europe member states. The publication of the papers in this special issue can be seen as a continuation of this work, evaluating the process as well as the outcome.
NAPs are useful tools for clarifying the authorities’ responsibilities and for identifying and addressing gaps in human rights protection. This appears to have been the case in Scotland. Jo Ferrie and Alison Hosie, in their paper ‘Methodological Challenges in Developing an Evidence Base, and Realising Rights’, show how the mapping exercise for SNAP involved and enabled rights holders. It challenged the assumption that rights were for others and persuaded the Scottish public that rights were for everyone – especially those not traditionally listened to. The process of creating the baseline for SNAP identified gaps in the legal protection for economic and social rights, in particular the care of the elderly, housing provision and mental health policy. Taking Scotland as a case study, this paper provides very useful advice to other member states which might be considering how to undertake a mapping exercise.
The importance of economic, social and cultural rights during periods of austerity
The effect of budgetary constraints on human rights is highlighted in more than one of the papers in this issue, and has been one of my concerns since taking up my mandate. Two of my Human Rights Comments have looked at the effect of the economic crisis on specific groups, namely young people and women. NHRSs have great potential to promote human rights-compliant responses to the crisis and protect people from discriminatory measures which result in inequalities. This is why they must receive adequate resources themselves. Jo Ferrie and Alison Hosie in their paper looked at resource constraints in terms of the mapping exercise, and in particular the reduced number of staff members of the Scottish Human Rights Commission and the reduction in the research budget. The very success of a NAP can be called into question by lack of allocated government resources.
The effect of austerity measures on the right to mental health was dealt with in Jill Stavert and Rebecca McGregor's paper, ‘Domestic Legislation and International Rights Standards: The Case of Mental Health and Incapacity’. The paper deplores the fact that the development of human rights standards relating to persons with mental disorder has been relatively slow, citing one reason for this as low resourcing levels. I have seen firsthand that austerity measures can have dire consequences for healthcare, including mental healthcare. In my letter to the Greek Minister of Health and the Minister of Social Solidarity this August, I urged the authorities to spare healthcare and, in particular, psychiatry, from budgetary cuts. During my visit to Greece this summer, I was informed by one hospital's administration that since the financial crisis staff members continue to work in very strenuous conditions. This is the result of a sharp decrease in healthcare expenditure and a spike in the number of patients, coupled with an increased burnout of healthcare professionals and their emigration from the country.
The economic crisis and ensuing austerity measures affecting Europe since 2008 are still having a negative impact on the human rights of many people, in particular those belonging to already vulnerable groups. In an Issue Paper published in 2013 entitled ‘Safeguarding Human Rights in Times of Economic Crisis’,Footnote2 I noted that vulnerable and marginalised groups of people have been hit disproportionately hard, compounding pre-existing patterns of discrimination. For example, in my visit reports on Portugal in 2012 and Spain in 2013 I specifically looked into the effect of the economic crisis on children. The stagnation of pension rates under austerity puts older women at a higher risk of poverty as women live longer and more often alone than men, as I observed in my report on Estonia in 2013. In Cyprus one year ago, I noted that migrant children and single-parent families were some of the groups most affected by economic austerity.
Multiple oppression and grounds of discrimination can work together. This is because of the multiplicity of identities that we all have and share with one another. Recent news reports show that low-income Black and Asian women are paying the highest price for austerity policies in the UK. Colin Clark, Dee Matthew and Vicki Burns’ paper, ‘Power, Privilege and Justice: Intersectionality as Human Rights?’ reminds us that in the real world sexism, racism, homophobia and other forms of discrimination intersect and can compound the problems experienced. This paper makes a convincing case for looking at multiple discrimination as a holistic whole.
One vulnerable group which is in danger of being overlooked is older people. My visit report to Portugal in 2012 looked at the effect of fiscal policies on older people. A human rights-based approach to the care of older people is the focus of John Love and Rory Lynch's paper, ‘Enablement and Positive Ageing: A Human Rights-Based Approach to Older People and Changing Demographics’. The paper reinforces the point that issues of health, welfare, food, housing and employment are key to establishing a society in which older people can live independently and with dignity. However, as the authors point out, these economic and social rights suffer from being stigmatised as ‘second-class’ rights, with questions being put as to whether economic and social rights can be seen as human rights at all. I believe that the rights of older people are rather overlooked and intend to work further on this topic in 2017.
Conclusion
First and foremost, SNAP sends a positive and progressive message about human rights in the United Kingdom at a time when the human rights debate has sometimes been toxic and regressive. Communicating in a positive way about human rights helps to show how rights are relevant for everybody.
Secondly, SNAP is evidence of the fact that Scotland sees itself as a leader in the field of human rights, equality, inclusion and fairness. Its interest in incorporating further international standards into national law only supports this view. Even without formal incorporation, looking at international human rights treaties, from the United Nations and the Council of Europe, can help to inform Scottish policy decisions on how these rights can be better protected under domestic law.
Thirdly, the papers in this special issue, which go behind the scenes of SNAP, are extremely useful to an international audience in providing guidance on both method and substance. They show how a NAP is put together step by step, and the benefits achieved along the way by a collaborative process. Lessons can be learnt, and already have been, from the Scottish experience of establishing and implementing a NAP. Tracking, measuring and demonstrating the progress of SNAP is an ongoing process which I look forward to witnessing.
Notes
1 Commissioner for Human Rights, ‘Non-implementation of the Court's Judgments: Our Shared Responsibility', August 23, 2016, https://www.coe.int/en/web/commissioner/-/non-implementation-of-the-court-s-judgments-our-shared-responsibility
2 Commissioner for Human Rights, ‘Safeguarding Human Rights in Times of Economic Crisis [issue paper]', December 4, 2013, https://rm.coe.int/16806daa3f