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Should Scots have a right to free higher education?

Author: Maddy Hayes and James Graham

Published on Jan 17, 2013

Should Scots have a right to free higher education?

Not only did Alex Salmond announce yesterday that he believed an independent Scotland should have a written constitution, but he also wants this constitution to extend to include certain social and economic rights. While rights mentioned by Salmond, including the right to a free education and the right to housing, are included in policy, he has said that these should be covered by “constitutional protection”. With Salmond suggesting this as a potential route for an independent Scotland, is this something we should be discussing for the UK, regardless of the outcome of Scotland’s referendum?

So what kind of rights should be constitutionally protected? Would extending the provision of rights to those beyond current civil liberties to include greater social, economic and political rights be possible, as they are in other countries? Alex Salmond suggested three things that a Scottish constitution might include: prohibition of nuclear weapons and a right to housing and free higher education. Many written constitutions include social and economic rights such as a right to education, but while they are usually couched in quite general terms, Alex Salmond seemed to be suggesting a Scottish constitution would be quite specific; this has resulted in quite a lot of criticism from both academics and party leaders who have variously branded the proposals as inflexible and unaffordable.

The question of which rights should be guaranteed is not just a Scottish question.  The UK’s existing Human Rights Act, which incorporates the European Convention on Human Rights into UK law, suffers from a lack of a sense public ownership and is sometimes portrayed as a ‘criminals’ charter’. One argument for a bill of rights is that this would address this legitimacy aspect. However, the recent Bill of Rights Commission concluded that “any attempt to introduce a UK Bill of Rights at this time could have adverse constitutional and political consequences for the UK, particularly if it were undertaken to the exclusion of a Bill of Rights for Northern Ireland or if it were undertaken without regard to the implications of the independence debate in Scotland.” (Overview, paragraph 30). A clearer view of a UK constitution should explain how the different governments are to relate to each other and which people would be covered by a bill of rights.

So before we can have a discussion about the nature of a potential UK bill of rights, it would be essential that the question of constitutional settlement was addressed.  We’d go further and argue that any such review ought to take place as part of the development of a written constitution for the UK.  Alex Salmond said that “An independent Scotland will be a modern democracy and a modern democracy should have a written constitution” - what applies to Scotland applies to the rest of the UK too.

Northern Ireland established its own bill of rights commission following the Good Friday Agreement in 1997. The deliberative process for deciding what to include in a bill of rights for Northern Ireland led to extensive public consultation and engaged with the public through a government consultation and extensive polling by the Human Rights Consortium. The result was that economic and social rights were included in the bill, with overwhelming public support for a bill of rights and the inclusion of these extended rights. The UK bill of rights commission also found that a majority of its respondents who expressed a view favoured social and economic rights (paragraph 8.24).

Do you agree? Should a bill of rights as part of a written constitution extend to include economic and social rights? Let us know in the comments below.




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