Human rights, land reform and citizen advocacy at #G2013

Today is the second day of #G2013, or – in non-Twitter parlance – The Gathering 2013. The Gathering is something of a big blether at Glasgow’s SECC for all things third sector, with all the third-sector hangers-on that such a big blether entails. In my quick wander around the stalls on the first of the two Gathering days, I was delighted to bump into old friends from disparate and worthy bodies such as Enable Scotland, The KiltWalk and LawWorks Scotland. I also (pretty much literally) bumped into former colleagues from an esteemed Edinburgh law firm – the firm who signed me off as fit and proper to practise law in Scotland, no less – whilst noting with interest the other law and professional firms who had a visible presence in terms of holding a stall. Charity work is clearly an important business area for many advisers; the presence of OSCR at The Gathering was testament in itself to the regulatory regime that might catch the unwary or ill-advised who engage in charity work.

For anyone reading this blog “hot off the press”, you will not find me at The Gathering today. Teaching and other commitments called me back to my Aberdeen base, but I was lucky enough to attend two events and speak at one more on 27 February 2013, the first day. What follows is chronological report on those three events, as much as a personal reference point for me as a blog for the world at large. No offence will be taken if you skim over or omit large chunks of my prosaic prose.

Session 1

The first talk, hosted by the Scottish Human Rights Commission, was about Scotland’s National Action Plan for Human Rights. I confess I knew little about the Plan until the event. Professor Alan Miller explained the timetable for the Plan (watch this space for a December 2013 launch) and in between a discussion of what the Plan would include, there was much umming and ahing about the opportunities to embed human rights in the constitutional narrative that the Scottish independence referendum will necessitate. No bad thing, unless you fall into the mindset of a human rights sceptic, in which case be grateful for the human right to expression and free speech that allows you to articulate that view, then ponder how much that conflicts you.

Two points really struck me from this talk. One was the sheer vitriol that was felt towards current welfare reform. I can only wonder about the atmosphere at the headline debate “Is the current welfare reform undermining our human rights?” [Update: Some measure of that atmosphere is captured by The Herald here.]

A second point was the sheer and at times inarticulate anger two members of the audience felt about forced treatment of people with mental health, or rather purported mental health, issues, apparently in breach of such patients’ (if that is the correct term) human rights. I have no idea if this is an issue, but clearly two people thought it was. It was just a shame the manner in which the point was made seemed to make other delegates get up and leave, whilst dominating about 25% of the Q&A session for those who stayed. Of course, that is not to say the points were not valid. I hope they will find another and perhaps more appropriate forum to make their points.

What should we expect of the Plan? I could not help but think of the Scottish Outdoor Access Code as an analogy, in that it may sit alongside the less warm and fuzzy black-letter law, yet the Plan’s warm and fuzzy nature may be subordinated to black-letter law if and when a dispute comes along. Professor Miller took that point, but in turn noted that the Plan would at least put certain principles and other international human rights instruments beyond the more publicised European Convention of Human Rights into the foreground. Again: no bad thing.

Session 2

If I knew not very much about the Plan, I knew even less about the subject matter of the second talk I attended. This talk was on citizen advocacy, hosted by the Citizen Advocacy Network. I am not sure if this group has a website, but this from the Scottish Independent Advocacy Alliance gives some details. I had vague notions about what this might be about and wondered if there might be some synergies with student law clinic activity, but beyond that I went to learn. I was not disappointed. The movement, as I suppose it should properly be called, has been in Scotland since the 1980s, building on the ideas espoused by Tom Kohler, who was referred to as the “Godfather” of the movement. Citizen advocates essentially help those who may be struggling to unlock or vindicate rights, in a manner that may complement paid advocacy workers who have a specific (local authority) job to care for people with different abilities.

The talk then took a very interesting turn, when we were asked to play “The Power Game”. How intriguing, I hear you cry. No, this was not a kind of masculine game that the title might imply. Allow me to quickly explain.

Here are eight rights, namely the right to:

1. spend money on what you want;
2. choose where you live;
3. have a key to where you live and come and go as you please;
4. choose who you associate with;
5. complain without reprisal;
6. work;
7. eat and drink what you want;
8. disagree with a doctor and seek a second opinion.

In our session, this activity was undertaken in pairs (to encourage discussion and challenge positions).

Choose three rights.

Yes, only three. You must forgo five rights.

After you have agreed with your partner, if you have time, report back as to what rights you have chosen. Then, choose one right.

Yes, only one. You must forgo another two rights.

Now discuss why you chose that right.

Next, imagine what it must be like to know someone who somehow got into a situation, in modern Scotland, where they had none of these rights.

How did such a situation come to pass? The speaker explained the surprisingly ordinary chain of events unfolded for this unfortunate individual (which admittedly involved some petty crime, but it seemed the biggest issue was a lack of comprehension on the part of the individual), before advertising how citizen advocacy helped. I could not help but feel both very lucky at my lot and very humble at not doing more. Perhaps selfishly, I thought this exercise would be a fantastic teaching aid. I may use something similar in a future Streetlaw-esque lesson, or even something on human rights in general.

Two final points on this session. I made a quick, flippant gender observation about the terminology of “The Power Game” above. I also made my own quick gender observation on the day. 25 people attended this session (including speakers), of which there were 5 men (including me) to 20 women. All the speakers were women. There might be nothing in that, but I did wonder if the fairer sex are showing the guys up a little bit.

A second point relates to terminology. In speaking about the road to protect and vindicate the rights of the individual I mention above, one speaker regularly referred to the Sheriffs Court. I cringed. Yes, sound the pedant alert. It is the Sheriff Court, not the Sheriffs Court.

Then I thought how much I needed to get a hold of myself. Sure, I might balk at imprecise terminology, but when you are dealing with a need for advocacy and no-one with exact articulation is available to help you, who cares? That brings me full circle to my point about the slightly inarticulate quasi-heckling at the first session. Whilst I may have balked at that slightly rambunctious performance (which I think ended up detracting from rather than reinforcing the points that were being made), there is no problem with providing inarticulate help when the alternative is no help. That would be a key argument against naysayers of student law clinic activity as well. Getting involved is the more important thing. To borrow a phrase from Scots Gaelic language promoters, “‘S fheàrr Gàidhlig briste na Gàidhlig anns a’chiste“, which essentially translates as “I would rather broken Gaelic than dead Gaelic”. I.e. have a go, worry about being embarrassed and corrected later.

Session 3

Finally, we get to “my” session. I do not plan to say too much about what I said, and as far as the other speakers go I have probably done them a disservice by only quoting here the little bits of the talks that interested or were new to me. As to my speech, which was the opening address after the welcome from the Land Reform Review Group convener Dr Alison Elliot, I spoke briefly about the many legal realms I have stravaiged over in this blog before, except the stuff about fitba. The challenge for me was trying to distil what was a 6,000-odd word (excluding appendices) submission to the LRRG into ten or so minutes. I think I just about managed, and in so doing I managed to use what a friend called my “top bear analogy” of Goldilocks’ porridge. I also got articles 13 and 25 of the South African constitution muddled up: sorry. The latter is the “property” provision.

The indefatigable Professor Miller then delivered his third address of the day, concentrating on non-ECHR points like the UN International Covenant on Economic, Social and Cultural Rights to an adequate standard of living, housing and food. These rights form part of the constitutions of many countries, so that returns to the point above about embedding the human rights narrative into any constitutional wrangling that just so happens to be going on.

A representative of Dumfries and Galloway Small Communities Housing Trust spoke next. This “Trust” is in fact a “rural housing body” in terms of section 43 of the Title Conditions (Scotland) Act 2003 and associated legislation, allowing it to impose rural housing burdens on land. The effect of such a rural housing burden is to impose a pre-emption right in favour of the rural housing body, thus allowing land to be released for housing but allowing that body to prevent speculation inasmuch as it can interpose itself before any subsequent sale. Might this tool be applicable to other areas, whose inhabitants are thus far ignorant? If so, I wonder if any citizen advocates would be kind enough to explain it to them (or direct them to this blog in the first instance).

Next, a representative from a fairly new group called Nourish Scotland explained his group’s LRRG response (PDF), noting various disconnects between local produce and local consumption and also making the provocative point that dog owners are seen as custodians of life and can lose their animal for mistreating it, whereas landowners are often not so treated and confiscation rarely happens. (The Birds and Habitats directives might negate this argument a little bit, but the point is worth considering.) In the panel discussion afterwards, more points than I can recall were raised, but one related point was about the idea that sustainable development-type obligations are often only imposed on fairly benign landowners (think community bodies under the Land Reform (Scotland) Act 2003). The theory that rights bring obligations seems apposite here.

Finally, one audience member almost prompted me to song, by asking a question about the difference between human needs and human wants, and how you might identify wants and needs in relation to land use and management. As The Rolling Stones might conclude, you can’t always get what you want, but if you try sometimes, you might find, you get what you need. An alternative musical analogy might be the obscure heavy metal tantrum in the chorus of a Therapy? song called Rust: “I don’t know what I want, but I want it now”. I did attempt to answer the question with human rights and broader jurisprudence as well, but whilst that may be a more relevant conclusion, I fear that is not as entertaining. It might also be noted that there are means out there to try to work out what people need, even if they cannot quite explain that, with one audience member noting the living wage research came from discussions with many different people about perceived wants and needs and actual costs people are incurring, whilst I made a contorted response about competition law (i.e. I might not know exactly what I want or need of an internet search engine provider, software developer or utilities provider, but I do know that abuse of a dominant position to my detriment by any of these entities would not be a good thing). So there is scholarship to augment the music.

With that musical insight which doubles as a sop of a whimsical conclusion, I give you my reflection on my day at The Gathering 2013. I will maybe see you there next year, when I expect Better Together and Yes Scotland will have far bigger stands than they did this time around.