Beyond the preamble: 'opera-tionalizing' rights in Scotland’s new social security law

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How can human rights help us design policies that tackle economic inequality and social exclusion? This question was at the heart of a workshop on social security reform co-facilitated by the Scottish Human Rights Commission and the Center for Economic and Social Rights in Edinburgh recently.

Historically, the provision of social security in Scotland has been the mandate of the Central Government. However, new powers were devolved to the Scottish Government in March 2016, offering an opportunity to develop a distinct approach to the provision of social security in Scotland. At a time when austerity-driven cuts are rolling back welfare protections across the United Kingdom – undermining the rights of persons living in poverty, particularly children, large families, single parents, and persons with disabilities – the need for such an approach is more urgent than ever.

Following a broad public consultation on how the new system should work, a Social Security Bill was introduced in June 2017. The Bill is currently out for public consultation. The Commission saw this as a promising time to bring together stakeholders to start building up a common understanding of what, concretely, a rights-based approach to social security should look like in the Scottish context. The Scottish Government has committed to taking a rights-based approach to the delivery of the new social security system. Although the Bill is founded on the principle that ‘social security is itself a human right and essential to the realization of other human rights’, the current draft says relatively little about how this principle will be translated into practice in the design of Scotland’s new social security system.

After participating in a training workshop for the European Network of national human rights institutions facilitated by CESR last year, the Commission sought our support to use ‘OPERA’ as the basis for envisaging a rights-based social security system. For those unfamiliar with OPERA, it is an analytical framework that, essentially, groups together the norms underpinning states’ obligation to fulfill economic, social and cultural rights into four dimensions: Outcomes; Policy Efforts; Resources; and Assessment. We were excited to have opportunity to explore its potential as a tool that can support the complicated art of policy influencing.

Each time we work with a new group, using OPERA to map out their priority concerns, we learn more and more about the nitty gritty of translating rights into actionable policy proposals. This group – which included a diverse range of civil society groups, community members with lived experience of poverty, public servants, representatives of parliamentarians, and the Commission’s own staff – was no different. Some reflections from the day follow.  

The level of commitment in the room to designing policy on the basis of human rights was impressive, the appetite for concrete guidance on how to do this equally so. It was evident that OPERA was a breakthrough for a number of participants. Specifically, it helped them in clarifying how norms could be translated into measurable standards against which to monitor the performance of the social security system. The questions and comments from participants also really reinforced that how we talk about human rights norms has a big influence in terms of how people engage with them. The presentations stressed that, on the one hand, the way norms are articulated internationally is challenging, the result of political compromise and legalistic interpretation. But that, on the other hand, norms are not static; they’re given more specific meaning when they’re contextualized and that context comes from dialogue and debate among stakeholders. Defining ‘minimum essential levels’ of a right is a good example of this. Particularly for the community members in the room, this was an important message.

Relatedly, another striking takeaway from the day’s conversation was how fundamental nurturing civic space is in securing substantive rights protections, because that determines whose voices are heard in the debates about how norms should be interpreted. For example, what is an ‘adequate’ amount for social security benefit? When is it ‘reasonable’ for benefits to be suspended? These are complex questions. The Scottish Government is taking an innovative approach to help answer them, recruiting over 2,400 people with direct personal experience of the current system to participate in ‘experience panels’.

In many ways, the debate about social security reform already reflects good practice for rights-based policymaking, for which the Commission and the Government should be commended. Generating and sustaining dialogue between stakeholders is no easy task. As we continue to support the Commission in its efforts to strengthen the protection of economic and social rights in Scotland, we look forward to sharing further insights about the use of OPERA in policy influencing, which can be modelled in different contexts around the world.

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