Subnational incorporation of economic, social and cultural rights – can devolution become a vehicle for progressive human rights reform?

Abstract

Devolution acts as both a foundation and a potential vehicle for progressive human rights reform. This article examines progress within the current Scottish framework, including the incorporation of international treaties, as recommended by the National Taskforce for Human Rights Leadership. The particular nature of devolution provides the opportunity to close the accountability gap in the protection of economic, social and cultural rights which operate in devolved areas, including the right to health, the right to housing and the right to an adequate standard of living. This reform brings opportunities to embrace normative international standards that facilitate incorporation such as multi-institutional accountability, proportionality-inflected reasonableness review, dignity and collective justice, as well as substantive equality measures. Progress to date is examined against the risks posed to human rights by the erosion of devolution through a number of United Kingdom(UK)-led strategies, particularly in response to Brexit-related policy gaps. Although devolution can act as an important anchor on national reform, mitigating threats to backsliding on rights at the national level, increasing centralisation can make this difficult to realise in practice. The potential opportunities offered by enhanced devolution could provide a fully integrated human rights framework incorporating social and economic policy areas such as employment, social security, immigration and equality. However, given current constitutional arrangements, devolution’s promise as a force for human rights progress is limited. The article concludes with a reframing of human rights which reflects the more complex picture painted by diverging trajectories in each of the UK jurisdictions.