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Dean calls for debate on recognising economic and social rights

17 December 2014

A public debate should be held on the issue of incorporating economic and social rights into Scots law, the Dean of the Faculty of Advocates, James Wolffe, QC, has said in a lecture.

Speaking to mark International Human Rights Day, last week, Mr Wolffe said that, fundamentally, the realisation of rights to healthcare, to education and to an adequate standard of living must fall on the legislative and executive parts of the state. But it did not follow that the courts should play no role.

Concerns, he observed, were often expressed that adjudication of economic and social rights in the courts would involve an illegitimate or undesirable involvement of the court in decisions which were properly for the democratically accountable arms of the state, and courts in his experience were "acutely conscious" of the subsidiary and limited role they might properly play in checking executive and legislative action.

However, "It does not follow that the courts can or should play no role. We might not wish the courts to decide which is the best means of securing progressive implementation of economic or social rights, but we might, at the same time, decide that it would be useful to allow them, for example, to adjudicate on whether the government has addressed itself to the question of how best to secure that progressive implementation...

"On no view, does the progressive realisation of economic and social rights depend primarily on litigation... And yet, even if adjudication on economic and social rights will only play a subsidiary role in the progressive realisation of these rights, should we not at least consider the case for such adjudication?"

The Dean continued: "If, as a society, we consider the progressive realisation of economic and social rights (or, at least, particular economic and social rights) to be amongst the fundamental commitments to which we collectively adhere, is there not a case for that to be reflected in our law – even in our constitutional or basic law? Should we give our own citizens the power to hold their government to account for the manner in which it addresses those commitments?

"No doubt there will be disagreement on these questions – but it seems to me that, if we take seriously the indivisibility of fundamental rights, this is a debate which we should have."

Click here to view the full lecture. Entitled "Economic and Social Rights in Scotland: lessons from the past; options for the future", it was given as part of an event staged by the Scottish Human Rights Commission in association with the Edinburgh Centre for Constitutional Law and the Global Justice Academy, Edinburgh University.

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