Defining the Right to Grow Old
The UN has started the early stages of what could become an international treaty on protecting the rights of older people. Scotland should be ready to help shape it, as well as to make sure that we live up to it.
I’ve written before about one of the successes of the Scottish Parliament in recent years to do with its attitude both towards human rights and towards international treaties.
On the latter, Scotland’s lack of independence means that our country can only join international treaties as part of the UK and the Scottish Government has no direct say on whether or not we can do so. For example, Scotland cannot formally sign the UN’s Convention on the Rights of the Child but we can do something else which can signal our support of it.
We can simply pass legislation that acts “as if” we were members of the convention anyway. The CRC isn’t the best example of this in that the UK has been a member of it since the early 1990s but on the other hand, the UK is a “dualist” country which believes that international laws do not apply until and unless the UK passes an appropriate domestic law to bring it into effect (this allows the UK to maintain the stance that its Parliament is superior to international law rather than subordinate to it as is the case with “monist” countries like Germany).
But this approach doesn’t always mean that the UK adopts those conventions as thoroughly as it could, which is why the CRC does give a good example of Scotland deciding to go further in 2024 by incorporating the Convention into domestic law even where the UK’s laws in Scotland didn’t not yet apply.
There was a limit to this. A successful Supreme Court challenge by the UK Government saw the Scottish law modified to make it clear that it didn’t apply to the UK Government’s actions in Scotland (again, allowing the UK to maintain the stance that its Parliament was superior over the Scottish one). This particularly meant that the UK Government could potentially legally treat unaccompanied children claiming asylum in Scotland in ways that would be illegal if the Scottish Government did it. This is a flaw that can only be corrected through independence.
Still, Scotland has successfully pushed forward in protecting the rights of children in Scotland and this is a good thing. There is an opportunity coming up to potentially do it again but this time with respect to the rights of older people. The UN has started the process that may eventually lead to a Convention on the Rights of Older People that would aim to prevent ageism and protect older people in areas where they are currently discriminated against such as the workplace, polices affecting the rights of people in care homes, policies that protect or fail to protect people due to climate change and even policies that discriminate arbitrarily based on age (such as state pension provisions or blocking older people from serving on juries) which may not be appropriate as life expectancies increase or may be better served with individual health and capability assessments.
“Rights are only as powerful as the rights-holder’s ability to have them upheld.”
Many of these areas are subjects that I and Bill Johnston covered in our book All of Our Futures so it is welcome to see parallel developments reach the United Nations in a way that may one day become law.
The Scottish Government should pay attention to this move and monitor it to see where they can legislate domestically to bring Scottish law up to its standards if and where we currently fall short. As with the rights of the child, there are limits to what we can do pre-independence over reserved issues like Pensions though Scottish devolved benefits may be usefully employed if need be and the Government should push harder for the power to introduce a Scottish Universal Basic Income that would allow people to retire earlier if their health requires it while not forcing them to just because they hit a certain age. In some respects we may already go further than this potential treaty might in that we already have the UK Equalities Act which prevents discrimination based on age. Therein, though, lies the fundamental issue with rights-based legislation.
Rights are only as powerful as the rights-holder’s ability to have them upheld. If someone breaches your rights, you need to know that your right has been broken and you need to have the ability to, for example, take the person responsible for upholding your right to court to challenge the failure and seek redress, and those responsible for protecting your rights need to have the resources to be able to do so. This can be difficult or impossible which is why discrimination based on age still takes place in the workplace and why children are still homeless in Scotland despite every Local Authority being legally bound to eliminate child homelessness.
The Scottish Government can’t sign this potential new treaty on the rights of older people but they could get involved with those shaping it to present best practice as applied in Scotland and to show where we ourselves could go further too. If we still can’t sign it by the time it comes into force, then we can do as we did for children and bring our laws up to its standards where they fall short. Acting “as if” we are part of the international community when it comes to shaping and protecting human rights will be an important step towards us gaining acceptance by that community when we are finally ready to join it formally. Who knows, we might even be able to bring the UK along with us too.
