The human rights gap: falling between legislation and enactment.

Today is Human Rights Day which is an annual international celebration and recognition of the critical role that human rights play or should play in all our lives.

The theme this year is Dignity, Freedom, and Justice for All and reflects both the international dimension to the 30 articles that constitute the Universal Declaration of Human Rights which underline the treatment, freedoms and fundamental expectations that citizens in all countries have the right to live under.

There is an added significance this year in that the 75th anniversary of the Universal Declaration of Human Rights will be celebrated on 10 December 2023. Ahead of this a yearlong campaign is being launched today to showcase the ‘legacy, relevance and activism’ of the UNDHR. Under the call to action to #StandUp4HumanRights the organisers state that the UDHR highlighted the “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.”

I have often written and commented about human rights in this blog. I have argued most recently that there is much potential in the Scottish plans to incorporate the International Covenant of Social, Cultural and Economic Rights into Scottish law. In particular the embedding of a broadly defined right to health to include the rights to social care, palliative and end of life care and bereavement support has much to offer the citizens of Scotland in the years to come.

But today is a time for honest reflection and appraisal not just recognition of achievements and the articulation of aspiration. Part of that reflection must surely be the extent to which the not insignificant existing human rights-based legislation has or has not made a real difference to people in the ordinariness of their living. Indeed, one of the oft quoted aspirations behind the creation of the UK Human Rights Act in 1996 was the desire to ‘bring human rights home. A desire to ensure that human rights were not restricted to dusty courtrooms, that they were not solely the preserve of legal discourse but that they meant something to everyone in a community regardless of circumstance.

I’ve reflected a lot about whether or not we’ve managed to bring human rights home. I’m not at all sure we have. Now lest I be accused of supporting the latest Westminster Government’s attempts to change and limit the current human right protections we all enjoy – that is absolutely not the case. The so-called plans to replace the Human Rights Act with other watered-down legislation are both damaging and dangerous. Far from replacing the Act I want to see it strengthened and better resourced. I want to see developed a new framework for national enactment, citizen participation and collective realisation.

In reflecting on the experience of so many not least older people during the pandemic and those receiving social care support in community and care home; in considering the extent to which there has been a lack of equal treatment, voice and inclusion over the last two and a bit years and in truth for a long period before – to name but two examples I would argue that there is a significant implementation gap between human rights based legislation and its enactment in practice.

It is all very well to have some of the most progressive and inclusive legislation in the world passed by parliamentarians both in London and more recently Holyrood – but if it is not empowered by enactment, if people are not able to exercise recourse or to know their rights in realisation; if there is a lack of resource to train, equip and engage all stakeholders – then human rights based legislation is empty and potentially duplicitous. There is I would suggest an urgent need to independently assess the extent to which human rights are being progressively realised in Scotland today. There is equal urgency in building and resourcing mechanisms and models that allow every citizen with a concern over the removal or diminution of their rights to have an ability to exercise immediate voice and if necessary to achieve urgent redress. We do not have such.

As we reflect on human rights this day and the coming year I very much hope we will also ensure that we continuously strive to develop a framework of human rights which have real accessible meaning for every citizen and not just a minority who are empowered to understand and access their rights. If we do, then the 75th anniversary will be really worth celebrating. If we do, then we can claim with integrity that we #StandupForHumanRights.

To celebrate the launch of the Human Rights Law Review in March 2015, the Human Rights Collegium asked Queen Margaret University London law students to submit poems on the theme of ‘Human Rights’. The winner was one Thomas Baynes who wrote ‘July 1995’. His words resonate as I read them in the winter of Ukrainian struggle but they also echo to the truth that human rights lost to some command those of us who are alive to act and hear.


From the depths they have cried to us,

While we sit by rivers and weep

in remembrance of their tears.

Their silent howl deafens out our

empty courteous words and fears.


There upon Balkan valley floor,

does the elemental death dance

over wood-brown coffins shrouded

in grass green cloths, suffocating

the humble dead who hold their breath.


White skulls stained brown and drowned in an

ocean of fog and dirt and blood.

Eyes, hair, smiles, all consumed by hate

and by the black ignorant mud,

lost to the tragedy of fate.


Why then, this terror and this pain?

For some forgotten lord’s dead name?

Or the glory of ancient gods?

Twas hate breeding love caused stillness

to roar and blameless tears to rain.


No affirming flame can be lit

to banish the dark from our minds,

No romantic lie can be told

to ease the reality of

our past torpors and woes.


We can only awake now to

the mute alarm of their lament

and raise ourselves from inertia,

so never again we should fail

to hear the breathless dead exhale.


Donald Macaskill