A WRITTEN Scots constitution would undermine the ECHR’s universality and its hard-won freedoms, writes Iain Gray
BORGEN mania makes all things Danish flavour of the month in Scottish politics, so in that vein, we turn to the wisdom of Soren Kierkegaard: “Life can only be understood backwards; but it must be lived forwards.”
Universal human rights are lessons we understand from our past through which we hope to better live our future.
I once heard John Hume of the SDLP say: “If you want to see the foundation stones of the European Union, then look to the war memorials in every town and village across the continent.” No matter how the politics of the day distort the European Union vision, its fundamental purpose remains the creation of a continent so inextricably bound by social and economic ties that it cannot again be dragged into the abyss of total war.
Europe’s post-war leaders, including Winston Churchill (who favoured a United States of Europe), also learned another lesson from war. The internal democratic legitimacy of states matters, as well as relationships between those states. That is why they created the Universal Declaration of Human Rights as well as the United Nations, and founded the Council of Europe in 1950 to make the European Convention on Human Rights (ECHR) legally enforceable. The EU was created to ensure peace between nations, and the ECHR was adopted to guarantee that those nations were, and would remain democratic.
This means that rights fundamentally underpin our modern civilisation, not only reflecting society as it is, but also shaping what it will become.
That is not always comfortable or convenient, but then neither is democracy – the “worst form of government except for all the others ever tried”, Churchill said. Many people resent the freedoms that universal human rights extend to some they deem undeserving, but surely this is a price worth paying so that we never again see the tyranny the abrogation of rights inevitably heralds.
We are complacent about rights at our peril, including about those who would see them replaced by codified constitutions and written bills of rights. This is true of the Conservatives, who have already consulted on replacing Churchill’s legacy, the Human Rights Act, but it is increasingly true of the SNP as well.
In the Scottish Parliament, we have fettered our sovereign power by embedding human rights with which we must comply or see our legislative labours struck down in the courts. Westminster still enjoys sovereignty over individual rights, but Holyrood does not.
The First Minister made exactly this point in a recent speech, but I think that following its logic leads you to the ECHR as the best human rights framework for Scotland – independent or not – rather than the constitutional Bill of Rights as he suggested. The universality, the international dimension of human rights, provides us with protection by dint of common humanity rather than nationality, and gives them a particular power.
This week, the Scottish Government elaborated its idea of a written constitution for an independent Scotland in a paper which looked as if it had been dashed off over the weekend. One exceptionally hubristic paragraph recruited Abraham Lincoln to the argument for a Scottish constitution, but the quote used was praising the Declaration of Independence, not the US Constitution or Bill of Rights.
Lincoln had his own tussles with the constitution, as the current Hollywood film shows. Its theme is not how easy the written Bill of Rights made abolishing slavery, but how difficult. A codification of rights which needs a political genius like Abraham Lincoln to reflect growing enlightenment is surely too inflexible for the rest of us mere mortals.
The human rights we already have embedded in our “unwritten” constitution are for the most part qualified rather than absolute, and have proven themselves adaptable to changing times. They recognise that one person’s freedom can impinge on another’s rights, and allow us to strike that balance fairly and relatively quickly. Indeed, the ECHR forces us to proactively apply human rights to the issues of our day. That has been a driving force behind much Scottish legislation since devolution, and we are a better, more modern society for it.
I firmly believe in the state as a place where we organise together for the common good. But the relationship between individual and state does need to be mediated through rights and responsibilities. The interests of the majority must not ride roughshod over those of the minority or the individual, nor should we subordinate our rights to the short-term interests of the day.
Whatever the outcome of the independence referendum, our rights must be jealously guarded, proactively implemented, fairly balanced and better understood.
The Scottish Government’s constitution paper is really about today’s referendum campaigning, not tomorrow’s nation-building. That is why it was released in a tabloid newspaper, not parliament.
It is one more attempt to create a sense of inevitability about independence, as an antidote to the actual evidence of opinion polls which still strongly suggest a No vote. The list of “rights” to be enshrined looks more like a run-through of current SNP policies than human rights of established international standing.
Borgen superfan Nicola Sturgeon tweeted pictures of her DVDs autographed by fictitious Danish prime minister Birgitte Nyborg. She should watch episode 15, which opens with a Bertrand Russell epigraph, highly relevant to the SNP’s foray into constitutionalism: “Much that passes as idealism is disguised love of power.”
• Iain Gray is the Labour MSP for East Lothian