Now is the time to consider a bill of rights for Scotland

Kirsteen Shields

Brexit and Rights Engagement Network

Brexit and Rights Engagement Network



The UK government is chasing an illusion of sovereignty via Brexit, but it is a change that will come at the expense of our rights. Westminster will remove one of the few, and relatively new, limits on its powers when it revokes membership of the EU. In terms of environmental regulation, employment conditions and social and economic rights, the EU has acted as a steadying hand to the exploits of parliament.

© Ted Mielczarek

The UK does not have a written constitution but in recent years “quasi-constitutional” documents have set limits, including the European Communities Act of 1972 (EC Act), the Human Rights Act 1998 and the Scotland Act 1998. They are quasi-constitutional laws because they change the relationship between the people and the state and place some limits on parliament.

These are not permanent limitations, however, as we see with Brexit and the likely repeal of the EC Act, and so do not serve society in the way that a true constitutional text can. An obvious comparison is the written constitution in the US, which can be invoked to limit what government can do.

In turning away from Europe and European jurisprudence, the UK is switching to a more reductive catalogue of rights. Human rights, as they stand, are short-hand for more expansive obligations for the state.

There is particular cause for concern in relation to economic, social and cultural rights — for instance, the right of housing, the right to an adequate standard of health and the right to education — because these lack strong constitutional guarantees. The inevitable economic fallout from Brexit coupled with inadequate social protections and financing from within the UK state will expose the gaps and the failings of the constitutional infrastructure.

In light of this rights vacuum, the idea of a written constitution for the UK has been floated for a long time, but it is unlikely in general, and it is specifically unlikely to contain economic, social and cultural rights provisions. At the devolved levels, however, the Scottish, Welsh and Northern Irish assemblies could pass their own bills of rights.

Now is a good time to consider a Scottish bill of rights. The safety net of European regulation for economic, social and cultural and environmental rights that has filled the cracks in the UK’s constitution will soon be gone. These rights matter, especially for people on the bottom rungs of the social ladder, but sooner or later they matter for everyone else too.

This article is republished with permission from The Times newspaper where it was first published on July 18 2017.

Kirsteen Shields
University of Edinburgh
Dr Kirsteen Shields is a lecturer in international law and food security at the University of Edinburgh’s Global Academy of Agriculture and Food Security.

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