Whilst the Scottish Government White Paper Scotland’s Future can be regarded as aspirational what it is lacking, in some respects, is legal and practical detail and, of course, the devil is always in the detail. One of the areas that would benefit from more specific input is that of social and economic rights.

In the paper there is reference to equality and human rights and that post-independence these will continue to be protected and even reinforced by being enshrined in a written constitution[1]. The definite commitment here, however, tends to be regarding civil and political rights, such as those identified in the European Convention on Human Rights, and their enforcement[2]. Discussion of socio-economic rights – rights to, for example, the highest attainable standard of health, housing, education and welfare - and their protection is less clear.  

Admittedly, it is encouraging that socio-economic rights, which in practice are so often relegated to second place, are at least being expressly mentioned in the paper. Unfortunately, however, when it comes to referring to the actual rights themselves and their implementation, the paper is somewhat equivocal. 

Justiciable socio-economic rights are integral to distributive justice. They are essential for the promotion of a fairer and more equal society and their effective implementation is particularly important to those who are most vulnerable, not least to enable them to live as effectively as they are able within their communities[3]. Moreover, bodies implementing human rights treaties view the effective implementation of rights, including socio-economic rights, as crucially requiring legislative reflection and justiciability[4].

The White Paper does state that social justice will be promoted in the proposed written constitution[5] and refers to, amongst other things, further building of a welfare state, “a distinctive approach to public services to improve lives”[6], and investment in childcare and social housing with a view to reducing the need for expensive interventions through the justice and health systems later in life[7]. There is also reference to provision of “high-quality, world-leading health and social care”[8].  That being said, for such measures to be meaningful to those who should benefit from them there needs to be corresponding enforceable rights, in this case predominantly socio-economic ones. Yet, there is no express reference to those treaties that identify and promote the protection of socio-economic rights such as the International Covenant on Economic, Social and Cultural Rights (ICESCR) and European Social Charter (ESC).  Further, even where the incorporation of rights, such as those to health, housing, education, welfare and pensions, is mentioned, this is in the context only of such rights being under consideration[9]. For example, in Part 5 (Questions and Answers) it states:

“It would be open to an independent Scotland to develop new ways of recognising human rights, for example in the areas of education, health and housing. These issues could be considered by a future Constitutional Convention established to develop Scotland’s permanent written constitution.”[10] [emphasis added]

None of this appears to translate into a firm commitment to ensure legally enforceable socio-economic rights.

The paper could also be clearer are to the extent to which those treaties promoting socio-economic rights will definitely be included in the suite of treaties acceded to by a newly independent Scotland. It is stated that Scotland will accede to international human rights and equality treaties[11] - and also that Scotland will succeed to the UK’s existing international treaties[12]  – but this is somewhat qualified by the words “where it is in Scotland’s interest to do so.”[13]. Moreover, even if we assume that Scotland will become a party to all the treaties promoting socio-economic rights currently ratified by the UK, it would be useful to know whether Scotland’s enthusiasm for implementation of these rights will actually go beyond that of the UK. For instance, the UN Committee on Economic, Social and Cultural Rights has criticised the UK for regarding ICESCR rights as being mere values and not incorporating them into domestic laws[14]. The UK has also ratified the ESC[15] but has not accepted its collective complaints procedure, which, in the absence of an individual complaints procedure, is the only means of proactively bringing violations of Charter rights to the attention of its oversight body, the European Committee of Social Rights.     

The approach adopted in the paper is possibly unsurprising as a reluctance to fully engage with the implementation of socio-economic rights reflects the reaction of many other states. Despite statements affirming the equal status of civil and political and social, economic and cultural rights at the UN World Conference on Human Rights 1993 Vienna Conference[16], fewer states have, for example, ratified the ICESCR than the International Covenant on Civil and Political Rights and even fewer mention socio-economic rights in their constitutional documents or incorporate them as justiciable rights in their national laws. Certainly, relative to civil and political rights, social and economic rights are expensive to implement and require allocation of resources which, in times of “economic challenge”, may be harder to come by and, on occasion, to justify politically. This is compounded by the fact that international treaties promoting social and economic rights pragmatically permit the progressive realisation of such rights and the fact that national, such as those in the UK, and international bodies responsible for adjudicating human rights tend to be reluctant to specifically direct state authorities as to how they should apply resources.  The UN Committee on Economic, Social and Cultural Rights has, however, indicated that repeated attempts to play the progressive realisation card as justification for non, or slow, implementation is unacceptable[17].

However, the White Paper seems to be effectively telling us that resources are actually available to effectively realise these rights.  We are told that “Scotland has the wealth it needs to be a fairer nation.”[18] and that greater social justice will be achieved post-independence[19]. Surely this therefore means that the paper can be considerably less ambiguous about socio-economic rights implementation? It would certainly be more reassuring to see a much clearer and enforceable link between relevant international human rights standards and their reflection in the domestic legal order in post-independence constitutional arrangements for Scotland.

Time will no doubt tell in terms of the extent to which the constitutionally and legislative underpinning of socio-economic rights will actually be achieved in Scotland. The SNP may consider that at this stage it is not in its gift to be particularly directive about which of these rights should be protected as this is a decision to be taken in the post-independence constitution-making process. That being said, it is disappointing that the white paper has not taken the opportunity to seize the initiative and demonstrate a firm commitment to real protection of this category of rights.

Jill Stavert is a Reader in Law at Edinburgh Napier University.