Rights! co-editor Jemma Neville caught up with Professor Alan Miller to hear more about his career journey so far promoting and protecting human rights in Scotland and internationally, including his personal thoughts on Scotland’s place within Europe following the UK Referendum result to leave the European Union (EU), so called ‘Brexit’.
Scotland voted in favour of the UK staying in the EU by 62% to 38% – with all 32 council areas backing the Remain campaign. Scotland has its own devolved Parliament and Government, a separate legal system and an independent national human rights institution.
Professor Miller tells me that his favourite word is ‘progress’. This inherent optimism and sense of momentum might prove to be useful, to him and to Scotland, in the coming weeks and months. He has recently been appointed as Special Envoy for the Global Alliance for National Human Rights Institutions and during his tenure as Chair of the Scottish Human Rights Commission (2007 – 2016) led the European Network of National Human Rights Institutions.
Implications of Brexit for Scotland
Meeting in the lobby of an Edinburgh city-centre office block where the national arts council, a healthcare trust, and a well-known online retailer of books are located – all organisations that rely on European trade and the free moment of people- I asked him about the implications of Brexit for Scotland, and the UK’s standing in the world.
Scotland’s First Minister, Nicola Sturgeon, has invited Miller and a range of other experts from academia, law, and foreign policy to form a new Standing Council on Europe. Professor Miller explained that the group’s mandate is to explore the choices facing Scotland in its future relationship with the EU and, rather than agreeing any decisive recommendation, to inform the First Minister of relevant issues, including as they relate to international human rights law and social protections more generally. These are unprecedented times for constitutional lawyers and, as Scottish MEP Alyn Smith implored to European politicians in the Strasbourg Parliament “we will need cool heads and warm hearts”.
Miller is no stranger to feeling the heat. While visiting the United Nations Headquarters in New York immediately after the Brexit vote in late June, his international peers expressed a mix of reactions to how the UK had conducted its referendum, ranging from a feeling that the UK is failing to adjust to its post-colonial role in the world, to a view that the nature and quality of the referendum debate had been lowered to such an extent that “lies and deceptions were presented as of the same status as evidence”. Professor Miller goes further in suggesting that:
“when there is no political leadership, a vacuum is created where populists can do this kind of damage, even in a country like the UK where it might have been thought that there are enough mechanisms in place and a maturity to prevent such vulnerability”.
Brexit coincided with the publication of the Chilcot enquiry into the UK role in the Iraq War which, in Miller’s view, reinforces a lack of public accountability for decisions taken outside the international legal framework and a confusion about what role a post-colonial UK should play in international relations. I challenged him about whether this and other critique of the UK Government might be opportunistic grandstanding on the part of the Scottish National Party led Scottish Government. While stressing his own party-political neutrality, Miller is confident that Brexit was not part of the “game-plan” for Scotland’s First Minister as she wants to demonstrate competent leadership and to build up the ambition of people in Scotland for voting in favour of Scottish independence in the event of an ‘IndyRef2’ scenario (a further referendum on whether or not Scotland should become an independent country, following that held in September 2014 when Scots voted by 55% to 45% to remain part of the UK).
Possible impact on human rights protection in Scotland
In the here and now, Professor Miller would like to see a much more energised civil society in Scotland, and the UK more broadly, that engages with the EU debate, helps shape the constitutional decision-making process, and holds our respective governments to account on human rights responsibilities set out in EU law. For example, on environmental protections, employment law, privacy and data regulation and in anti-discrimination law.
“Brexit poses a real risk of regression in human rights in that it imperils the closest thing we have to a constitutional framework in Scotland, the protections under EU law that Scottish people and EU nationals here benefit from. And also the other pillar of our constitutional framework, the European Convention on Human Rights. It [the Convention] must be complied with throughout the way in which Scotland is run and membership of that is now made more vulnerable as a result of Brexit in that continued membership of the European Convention is very much dependent upon the will of Westminster [UK Parliament]”.
It is often said that Scottish devolution has human rights at is very core, such are the references to international human rights in The Scotland Act 1998, including preventing the Scottish Parliament and Scottish Government from acting outside Convention law (sections 29 (2) (d) and 54 (2), as amended by The Scotland Act 2016).
Asked about the many questions posed by the vote to leave the EU, Professor Miller is not complacent about the complexity but maintains that if answers to these questions can be found, they must meet key standards of i) no regression of existing protections, ii) not being left behind in European-wide efforts to advance social protection, and iii) Scotland should be capable of playing its part in human rights nationally and internationally.
Possible impact on human rights protection worldwide
A requirement of EU membership is compliance with the European Convention on Human Rights (ECHR) and any accession country wanting to join the EU must therefore also be a part of the ECHR. The UK’s planned withdrawal from the EU does not automatically affect the UK’s status as a signatory to the ECHR and Convention rights are protected through the UK’s Human Rights Act (and the Scotland Act in Scotland). However, there are warning signs that this too is under threat as the new Prime Minister of the UK, Theresa May, is on record as favouring a repeal of the Human Rights Act and replacing it with a Bill of Rights with weaker legal protections.
As it stands, the UK remains in the ECHR and the current government has no Parliamentary majority to effect immediate change to that. But Miller has grave concerns that the UK leaving the EU will only serve to “ease the path” to eroding respect for Convention rights or indeed complete withdraw from the ECHR, and that this would send a retrogressive message to other countries around the world, including fellow Council of Europe members Russia and Turkey. Miller therefore wants an assurance of continued membership of the ECHR to be written into all post-Brexit agreements.
On a personal level, he reflects that during the 2014 Scottish Independence Referendum debate, he often encountered surprise from counterparts and friends abroad who had experienced the horrors of overt nationalism in recent European memory, such as ethnic cleansing in the Balkans, as to why a small, peaceful state like Scotland would want to pursue a referendum on national independence. Two years on, he feels there is now a much better understanding from human rights colleagues as to how Scotland presents itself on the global stage and of the kind of internationalist, pro-European, independent country many in Scotland want it to be. Only time will tell how the different parts of today’s constitutional puzzle will fit together to make a new picture for Scotland, the UK and Europe tomorrow.
Rights! Notebook ‘human rights journey’ profile
What are you most proud of in your human rights journey?
I would like to think that I tried to be in the times in which I was living. So, participating in the challenges of today and trying to find a way to make tomorrow better.
What did you want to be when you were growing up?
I grew up in the 1960s and was influenced by the civil rights movement in the USA, the anti-apartheid struggle in South Africa and national liberation in southeast Asia. If you didn’t think big when growing up in those times and want to play your part in a better world, then you weren’t really alive! All of that influenced me, alongside my father, a teacher, and others. I didn’t feel intellectual as a boy and law seemed a way to do something useful.
Or to have been Andy Murray winning Wimbledon…! (I was Scottish Junior Tennis Champion and set the way for Andy Murray… that’s a joke.)
When were you happiest?
At the moment, despite Brexit! But I am a notorious half-full and not half-empty optimist.
If you had a magic wand, how would you use it?
It’s very anorak-ish but so many of today’s problems – migration, extremist violence, poverty, climate change – can be solved by the successful implementation of the UN Sustainable Development Goals and for that to happen civil society has to be fully engaged. So I would use the magic wand to see real progress on the UN Sustainable Development Goals by 2030 so that nobody gets left behind.
Who are your human rights heroes/heroines?
Mary Robinson – I have learned so much from her and she is a role model – not only for girls and women but for the rest of us. And of course, Nelson Mandela.
If you had to flee your home suddenly due to war or extreme poverty, what would you take with you into a new life?
If I could, my children, my hopes, and my commitment to try and make it a better world for everyone because if it’s not a better world for everyone, it’s not going to be a better world for very many of us.
What is your favourite word?
How do you cope with stress?
Annoying as it sounds, I try to always think of the big picture. Does it always work? No! But I try to see beyond the day to day frustrations. And I enjoy the odd glass of wine.
What is the screensaver on your work computer?
My newly married wife, in Central Park.
What advice do you have for the next generation of human rights defenders?
Analyse the moment, seize it, and demonstrate that human rights is part of bringing about the solution and not only identifying the problem. And it requires everyone to play a part, particularly those who otherwise would be disempowered.
All of the above views should be attributed to Professor Alan Miller speaking in a personal capacity and not on behalf of any organisation or network