In this month's Journal (out on Monday 13th) you can read an interview with Alan Miller, chair of the Scottish Human Rights Commission, which points up the amount of work the Commission has been doing on the civil law front – rather more than on the criminal, it seems – in the two years since it became fully operational.
There is, for example, what looks like some valuable work in the field of care for the elderly, now also the subject of some online guidance (see today's news), in response to public concerns raised with the Commission. The elderly are a vulnerable group, ill treatment of whom might easily go undetected but who are as entitled as anyone else not to be subjected to inhuman or degrading treatment (article 3).
Broadening this out, Miller argues that the whole issue of budget cuts could lead to breaches of article 8 (right to respect for private and family life), now interpreted as covering human dignity, physical and psychological: "It's the best-kept secret of human rights in Scotland, a much more extensive right than it might seem." Applications, he maintains, extend to disadvantaged groups not sufferng disproportionate effects as a result of the public spending cuts.
On one view, this might offer a welcome opportunity to show the Human Rights Convention in a more positive light to those who complain the loudest of its supposed pro-criminal bias and effect. On another, it might open the prospect of endless legal challenges to particular spending decisions with judges possibly being dragged ever deeper into areas of political controversy.
How far can we view such matters in human rights terms, or make them justiciable? Those who have been following the spending debates will know that opinions can and do differ (not just among politicians) even over who is being hit hardest, relatively speaking, by the cuts as currently announced.
It will also, I suspect, take some altruistic lawyers to bring any formal challenge. One would assume that the "victims" in such cases will generally be people of limited means; but I can also foresee difficulties in persuading the Legal Aid Board to grant assistance for court proceedings. Nor does the Commission have power to take on individual cases.
It would be a pity if what Miller sees as a "huge untapped potential of interpretation" were to remain completely virgin territory, if there are genuine issues waiting to be tested on behalf of those most dependent on public support. But given the climate of cuts all round, and the subjectivity inherent in notions of fairness, proportionality etc, I suspect that any test cases will have to be carefully chosen if the Convention is to play a serious role in holding the Government to account.