Using Comparative Constitutionalism in Human Rights Discourse: Ireland's Past and Scotland's Future
| Date | 01 September 2013 |
| DOI | 10.3366/elr.2013.0170 |
| Published date | 01 September 2013 |
| Pages | 314-342 |
Presenting this lecture gives me the opportunity to pay tribute to the person in whose honour the lecture is named: Dr Ruth Adler. Juliet Cheetham wrote shortly after Dr Adler's death that she “sought to achieve the coherence of theory and practice which she regarded as a necessary condition for achieving justice”
J Cheetham, “Obituary: Ruth Adler”, The Independent, 26 February 1994, available at
Philip Alston gave the Ruth Adler Lecture in 2008.
“Human rights and Scotland's constitutional future: where are we now? Human rights and the independence debate”, 18 March 2013, Scottish Parliament. See
As recounted in the
“Salmond sees Scots in ‘arc of prosperity’ ”, The Scotsman, 12 August 2006.
He claimed that Ireland, Iceland and Norway demonstrated that small independent countries were amongst the richest in the world. All three “young countries”, he said, had become independent in the twentieth century and moved from being less prosperous than Scotland to being more economically successful. Barely two years later, as Iceland and Ireland became embroiled in the worst financial and banking disaster to have hit either country since independence, the comparison between an independent Scotland, Ireland, and Iceland appears to have become something of an albatross around Mr Salmond's neck and references to these countries have been toned down somewhatThen the comparisons changed, and the talk was of Catalonia.
See e.g. S Burgen, “Scottish independence: not so much homage to Catalonia, more a warning for Scotland”, The Scotsman, 6 October 2012.
Comparisons with Catalonia also have their downside. In both countries, one of the key issues, much debated in recent months, is the risk of Scotland being excluded from the EU if moves to independence are successful; the issue is whether each new state would automatically be admitted or have to reapply, and under what conditions. Would Scotland be required to join the Euro-zone, for example, with the likely political effect on the referendum and the likely economic effect assuming that the (rump) United Kingdom stays out? And would Spain vote against Scotland being admitted to avoid creating a precedent for Catalonia, whose independence it strongly opposes? More recently still, the Opinion written by Professor James Crawford of Cambridge University and Professor Alan Boyle of the University of Edinburgh“Opinion: Referendum on the Independence of Scotland – International Law Aspects”, annexed to Scotland Analysis: Devolution and the Implications of Scottish Independence (Cm 8554: 2013).
The question I want to explore in this lecture is partly stimulated by these examples, but is somewhat broader: the use of comparisons in constitutional development, specifically the use of comparative reasoning in the context of debates about human rights in newly emerging independent states. I realize, of course, that, as a non-Scot, I need to tread warily; I shall suggest some lines of thought, but I should not be thought to advocate any particular position. That is for the Scottish people.
In February 2013, the Scottish Government published
Scottish Government,
The Scottish Government has an ambitious vision of the kind of nation Scotland should be – a thriving and successful European country, reflecting Scottish values of fairness and opportunity, and promoting prosperity and social cohesion. A Scotland with a new place in the world as an independent nation, participating fully in Europe and the community of nations, on the basis of equality, responsibility and friendship.
Ibid.
…an independent Scotland can seize this opportunity by putting in place a modern written constitution that embodies the values of the nation, secures the rights of citizens, provides a clear distinction between the state and the government of the day, and guarantees a relationship of respect and trust between the institutions of the nation and its people.
Para 2.14.
Para 2.10.
Para 2.14.
These transitional arrangements will be followed by the second stage: the establishment of a Scottish constitutional convention, which would be tasked with producing a new written constitution. The Government's paper sketches out both the process of constitutional development, and the substantive values that it considers should be incorporated. As to process, the Convention should “ensure a participative and inclusive process where the people of Scotland, as well as politicians, civic society organisations, business interests, trade unions and others, will have a direct role in shaping the constitution”.
Para 1.9.
As to substance, the paper envisages that the new Constitution could include extensive protections for human rightsThe paper indicates the general thrust of the rights protections that the current Scottish government has in mind in a new constitution: “In particular”, it says:
Para 1.10.
Everyone in Scotland should be entitled to equality of opportunity and to live free of discrimination and prejudice. Everyone should be entitled to public services and to a standard of living that, as a minimum, secures dignity and self-respect and provides the opportunity for them to realise their full potential both as individuals and as members of wider society … The constitution should … provide a collective expression of the positive values that the people share and a constitutional convention should consider how to further embed equality and human rights within the constitution and the extent to which the people of Scotland should have constitutional rights in relation to issues such as welfare, pensions, health care and education.
To continue reading
Request your trial