Posted by ccld201
6 August 2024The development of a new statutory human rights framework in Scotland provides a contemporary window on a process of national incorporation of international human rights law and, within this, on the potential contribution of ‘dignity’ as an underpinning value. Since 2018 I have been closely involved in research and discussions in this area, including as a member of an Academic Advisory Panel to Scotland’s National Taskforce on Human Rights Leadership (2020-2021).
After setting developments regarding ‘dignity’ in context, I highlight what I have learned about the significance of explicitly engaging with this value. ‘Dignity’ has potential to be used as more than a fitting declaratory commitment or guide to judicial interpretation; it could be harnessed toengage non-legal experts with human rights law, supporting the development of a stronger human rights culture.
The prominent place of ‘dignity’
After the United Kingdom voted to leave the European Union in 2016, then First Minister of Scotland Nicola Sturgeon MSP set up an Advisory Group on ‘human rights leadership’. Post-Brexit, the Scottish Government’s aim was to keep pace with European Union rights protections and to go further, to show international human rights leadership. Years of advocacy for incorporation of international human rights treaties preceded the Advisory Group, but its establishment marked a turning point in concretising steps towards incorporation.
Dignity language was prominent from the outset of this process, featuring in the Advisory Group’s Terms of Reference. It was also prominent in the Group’s final report, including in its first recommendation. This language reinforced an association with the EU Charter of Fundamental Rights and international human rights law, where the language of dignity is ubiquitous.[1] It was in stark contrast to dominant discourse by the United Kingdom Government – reflected both in the loss of the EU Charter of Fundamental Rights’ foundational acknowledgement of ‘dignity’[2], and in preceding rhetoric of potential UK withdrawal from the European Convention of Human Rights[3] which was the sole source of domestically enforceable supranational human rights law. The Advisory Group took a very different approach. It deepened a connection to ‘dignity’ as a value that had been present in Scottish public life, including in the National Performance Framework as well as in legislative and judicial decision-making[4], and tied it to new human rights ambition.
The recommendations were accepted in full by the Scottish Government, and more detailed proposals followed from the National Taskforce for Human Rights Leadership. In 2021, the report of the Taskforce recommended that new legislation should explicitly reference its underpinning purpose: ‘the intent of the legislation is to give maximum possible effect to human rights and recognise that human dignity is the value which underpins all human rights’.[5]
The added value of ‘dignity’ for the growth of a human rights culture
In light of the remit of the First Minister’s Advisory Group, in relation to the EU and international legal regime, inclusion of dignity as an underpinning value was fitting. It was particularly interesting, however, that this was accompanied by the explicit aim of bringing human rights protection closer to the everyday life of people in Scotland. That is, the aim was to sculpt a human rights framework for change and to galvanise a stronger human rights culture.
This gave rise to a question: how might we facilitate ownership of dignity language as a portal to engaging greater numbers of people with human rights law? In a paper prepared for the National Taskforce, ‘The Underpinning Concept of Human Dignity’, I suggested that one of the advantages of including the language of dignity was that it could potentially provide an accessible anchor for non-judicial actors. In other words, there was an emerging opportunity to utilise the underpinning value as a resource within public engagement and capacity building towards effective implementation.
This partly stemmed from recognising a shared intuition, or experiential knowledge, about the essence of ‘dignity’. It also stemmed from conversations with local third-sector groups, where key themes related to human rights education, respectful encounters in the process of claiming rights, and accessible language. The language of dignity is potentially powerful since it is for, and open to, everyone, and goes to the heart of respectful relationships with service providers. Dignity language emerged then, as a potentially useful strategy for growing a human rights culture.
‘Dignity’ and domestic implementation of international human rights law
From June to October 2023, the Scottish Government held a public consultation on next steps for incorporation of economic, social, cultural and environmental human rights. Its first two questions concerned the role of ‘dignity’ in the proposed Human Rights Bill.Responses showed overwhelming support for including dignity language within the proposed legislation in responses to the 2023 consultation. This included support for some form of participatory process which could engage with a ‘dignity threshold’ for understanding minimum essential levels of the rights to be incorporated.Such a process could lay foundations for engaging diverse participants with dignity and rights beyond discussions of minimum levels of protection; it could harness the enduring symbolic power of dignity, potentially towards human rights education and improved outcomes for people, and provide learning for other jurisdictions.
Recent political upheaval and change of government in Scotland mean that there is a risk of the proposed human rights Bill being delayed. Hopefully it will not be at risk because of any concern that a human rights framework might not be a strong selling point in impending elections – that would be ironic for a Bill driven by an ambition of promoting a culture of human rights. It would also be tragic since the Scottish Government has shown progress around human rights, including through the recent parallel incorporation of the UN Convention on the Rights of the Child. Polling for the Scottish Human Rights Commission in 2023 in fact showed an increase in public support for human rights, which should provide sustenance to that original aim of bringing human rights closer to people’s everyday lives.
The opportunity to maximise engagement with the underpinning value of dignity in a scaled-up way is an opportunity to understand better if, and how, ‘dignity’ might support more effective human rights implementation. How this can be done, and whether this potential will be fully realised, remains to be seen as the legal reform process unfolds.
Dr Elaine Webster (LLB Hons, M.A., M.A., PhD) is Reader in Human Rights Law at the University of Strathclyde. Elaine researches interpretation of rights by diverse actors and has particular interests in the prohibition of torture, inhuman and degrading treatment, and in environmental governance. A cross-cutting theme relates to the meaning and interpretive impact of the principle of respect for dignity, at the level of theory and practice.
[1] Ginevra Le Moli, Human Dignity in International Law (Cambridge, Cambridge University Press, 2021) chapter 5.
[2] Catherine Dupré, ‘“Human Dignity is Inviolable. It must be Respected and Protected”: Retaining the EU Charter of Fundamental Rights after Brexit’, European Human Rights Law Review 1 (2018) 101-109.
[3] Ed Bates, ‘UK Withdrawal From the ECHR (‘BrECHRit’): From Taboo to Tenable?’ European Convention on Human Rights Law Review 5 (1) (2024) 24-49.
[4] Elaine Webster, ‘The Underpinning Concept of ‘Human Dignity’ (National Taskforce for Human Rights Leadership Academic Advisory Panel, 2021) section 4.1.
[5] Scottish Government, ‘National Taskforce for Human Rights Leadership Report’, 2021, page 12.