Outgoing Scottish Human Rights Commission chair Alan Miller on 'toxic' Westminster debate, the referendum and Supreme Court 'stooshie'

It’s evident that Professor Alan Miller, chair of the Scottish Human Rights Commission (SHRC), regards Westminster with disdain. Indeed, the word ‘toxic’ more frequently than not accompanies the very mention of the institution as he mulls over his six-year tenure, one that will come to an end in two weeks’ time. “It is relatively isolated in Europe in its attitude towards human rights,” he says.

Seven days earlier, the Prime Minister declared migrants who come to the UK on spousal visas could face deportation if they fail a mandatory English language test two-and-a-half years on from arrival. This, from a government that has vowed to scrap the Human Rights Act, merely exacerbates Miller’s frustration. “It’s an example of something that will not be done because to do it would be contrary to human rights obligations,” he says.

“But it’s part of creating this kind of culture and climate whereby, for short-term political interests, you say things that are very divisive and very wrong, both in facts and purpose. And it’s very disappointing that a country like the UK, which in generations gone by has been a lot better than this, is reduced to these kind of statements which so discredits the country, the government and undermines people within the UK and beyond.”

Scotland has “withstood extremely well the toxicity of the Westminster debate” and, in fact, is “going its own way”, according to Miller. Indeed, he suggests that “counter-intuitively” the political class in Scotland has in many ways fed off the “regressive” approach taken south of the border in a bid to do something different.

The SHRC chair exudes a sense of pride over Scotland’s National Action Plan for Human Rights – a UK first which outlines priorities for the Scottish Government, NHS and various other organisations to improve human rights protection – and the First Minister’s recent commitment to anchor it within Scotland’s National Performance Framework.

Even so, ministers were offering a written constitution that enshrined international human rights commitments, including economic, social and cultural rights in the event of a Yes vote on 18 September 2014. “Was it a missed opportunity,” I ask, preceding it with an acknowledgment that I’m expecting a neutral response. “You will get a neutral answer to that question,” he laughs, “because I’m chair of the commission.

“I think the referendum has energised Scotland and given people a taste of what it means to hold power. If even for a few hours and days, people felt when it came up to the actual vote that they had power in their hands, whichever way they voted, and it energised Scotland to think, ‘well, what kind of country do we want to become?’ whether it is devolved or independent, and that hasn’t gone away.

"That has been a very helpful impetus for trying to encourage people to think and act bigger in human rights terms as well.” He pauses. “How’s that?” he asks, laughing again.

Within a fortnight of victory in the independence referendum David Cameron was using the Conservative Party conference stage to pledge the Human Rights Act would be scrapped and replaced with a British Bill of Rights. That prompted warnings from Nicola Sturgeon that it was “inconceivable” that Holyrood would consent to attempts to amend the Act, which is at the heart of the devolution settlement.

“If the UK took the course, which I do not think they will do, but if they took the course of ignoring the lack of legislative consent from the Scottish Parliament and nevertheless imposed a repeal of the Human Rights Act and regression right across devolved and reserved areas, I think that would provoke, of some proportion, a crisis,” Miller tells Holyrood.

“And it’s for that reason I don’t think the UK Government will go down that route. I think they will try and tread very carefully around the devolutionary arrangements.”

Amid incessant talk of triggers for another referendum, could such a ‘crisis’ fuel calls for a rerun? “I don’t know what proportion the crisis would be – it would certainly be a crisis of some scale. It may or may not be of a scale that would generate a shift in public opinion for a second referendum.

“But I don’t think the UK Government wants to add it as another factor into the mix, along with other issues such as an EU referendum or whatever else might shift public opinion in favour of a second referendum. I don’t think the UK Government needs to go there or, from its own point of view, it makes any sense for it to go there.”  

Miller’s appointment in November 2007 came at a time when any discussion around human rights seemed to be entangled with criminal justice. The decision to release convicted Lockerbie bomber Abdelbaset Ali Mohmed al-Megrahi on compassionate grounds in 2009 – one that the commission supported very publicly – was perhaps the most emphatic example of that.

“As chair of the European Network [of National Human Rights Institutions] and vice chair of the global network, I am constantly in circulation and Scotland’s stock rose enormously around the world as a result of that decision,” claims Miller.

“Not everywhere in the world, but in a lot of places Scotland’s stock rose considerably – it was a tough but just decision… The debate was extremely undignified. I thought it brought out the best in Scotland and in the Scottish Government, and it resonated very well in the main around the world. I thought some of the opposition to the decision was very demeaning. It was certainly [Kenny] MacAskill’s finest moment.”

What Miller describes as a “stooshie over the Supreme Court” – when the former First Minister Alex Salmond and MacAskill, his then Justice Secretary, launched scathing attacks on the court following two high-profile rulings – does not attract the same level of admiration.

“That was Scotland at its lowest ebb in terms of human rights during my period as chair and you felt ashamed of some of the positions that were being taken in a populist way and in a narrow approach towards human rights,” he tells Holyrood.

Scotland, Miller readily admits, has had “quite a few skeletons in the closet”. The age of criminal responsibility, which still stands at eight years old despite repeated calls from those at home and abroad to raise it, and the practice of non-statutory stop and search by police, are two examples he offers.

“These are completely unnecessary embarrassments to the state of human rights in Scotland and Scotland’s international reputation and should be remedied, along with the right of prisoners to vote when that power comes to Scotland as well,” he adds.

That apart, Miller – a former president of the Glasgow Bar Association – certainly seems more at ease with the trajectory Scotland finds itself on. Apologies legislation, spearheaded by Conservative MSP Margaret Mitchell with input from the SHRC, was last month backed by MSPs.

Likewise, an action plan for justice for victims of historic abuse of children in care – implementation of which the commission will publish a progress report on within the next few months – was a “big validation of the merits of a human rights-based approach” given survivors were put at the centre of its creation, Miller says.

However, there is an argument, he suggests, that Scotland “in the modern world has yet to be truly tested”, at least not to the extent that others around Europe are at present by the refugee crisis. Scotland has “said the right things” up to now, says Miller, though the final word clearly rests with the UK Government when it comes to the number of refugees who will be admitted.

“I was in Serbia a few weeks ago as chair of the European Network of Human Rights Institutions and we had a conference looking at the refugee crisis and what’s the role of national human rights institutions,” says Miller.

“I was hearing these stories about refugees walking through villages in Serbia and people coming out of their houses and giving them food, clothing, drink, money and saying, ‘this was us 20 years ago, we understand, we get it’. It’s that kind of experience that brought out the best in them.

"But then in other parts of Europe it has been appalling [in terms of] some of the statements and the actions of those in authority, not so much the people. In Scotland, we have begun to think and act bigger and I am very confident that when Scotland is tested that it will stand up.”