Don’t believe everything you read: there is a case for socio-economic rights – Professor Aoife Nolan

17 July 2012 by Guest Contributor

Last week, a number of media commentators, politicians and others sought to subvert the second consultation of the Bill of Rights Commission.  This consultation invites views on a number of key issues that form part of the Commission’s mandate. In the Daily Mail’s correspondent’s view, the Commission has committed an appalling transgression by asking potential respondents whether the UK Bill of Rights should include additional rights, referring amongst other things to socio-economic rights. This is echoed by the Sun which argues that the Commission has ‘suggested’ (which it clearly has not) that ‘all Brits be given handouts as a birth right’, and the Daily Express which suggests “Spongers can Sue to Claim Benefits”.

Socio-economic rights are rights that relate to human survival and development.  Like the majority of European and other countries, the UK has volunteered to be bound by a range of such rights as a result of ratifying a number of international human rights treaties, including the International Covenant on Economic, Social and Cultural Rights (ratified by the UK in 1976); the Convention on the Rights of the Child (ratified in 1992) and the European Social Charter (ratified by the UK in 1962). While these treaties haven’t been made part of our domestic law in the way the European Convention on Human Rights has been as a result of the Human Rights Act, they impose a range of human rights obligations on the UK. The government reports back periodically to the UN expert committees that monitor the implementation of these treaties.

The treaties are deeply concerned with human rights related to poverty and ensuring that human dignity is preserved through ensuring that everyone enjoys an ‘adequate’ (note – not ‘comfortable’) standard of living. Indeed, the fact that the UK signed up to these treaties and considers itself bound by them is a strong indication of their popular support across society.

Like the South African constitution, these treaties set out a right to social security. Again like the relevant part of the South African Constitution, these treaty provisions do not establish an absolute, directly enforceable right to be provided with social security (including benefits). Rather, they  make it clear that the extent to which the state is required to give effect to the right to social security and the right to an adequate standard of living is limited by the resources available to the state; such rights do not have to be provided to everyone immediately and on demand.

At the international level, states are obliged to provide (e.g., directly deliver) the right to social security when individuals or a group are ‘unable, on grounds reasonably considered to be beyond their control, to realise [satisfy] that right themselves, within the existing social security system with the means at their disposal’. Fraudulent claimants and those who are correctly assessed as able to work but refuse to do so are clearly not unable to satisfy their own right to social security with the means at their disposal.

Recent media coverage also ignores the fact that the consultation document asks whether, if socio-economic rights are to be included in a UK Bill of Rights, such rights should be enforceable. There is a range of ways in which, if it was deemed desirable, this could happen without ensuring that the courts overstep their role in our constitutional framework.  For instance, at the moment we already allow tribunals to deal with a range of issues arising in relation to housing, benefits and education – socio-economic rights that are fundamental to the operation of UK society as it stands.

A failure to include socio-economic rights in a UK Bill of Rights appears ever less consistent with developments at the devolved level.  The Rights of Children and Young Persons (Wales) Measure 2011 requires that Welsh Ministers and the First Minister have due regard to the Convention on the Rights of the Child when making new laws or policies or reviewing existing ones and, from May 2014, in the exercise of all their functions.  As of last year, a similar measure has been under consideration in Scotland. Given that the Convention contains a range of socio-economic rights, we are set to see, at a sub-national level at least, more explicit recognition and application of socio-economic rights in a range of governmental functions.

Nor is this a bad thing – as a society we are, and should be, concerned with ensuring that everyone enjoys an adequate standard of living.  This includes ensuring that those who need help from the state receive it. Far from being undesirable, such a situation is consistent with the notion a decent society. With a few notable exceptions, people in the UK don’t generally regard it as acceptable for people to starve or live on park benches and feel that the state should prevent this.

The Daily Mail expresses frustration that ‘despite deliberating for 15 months, the panel said it had not decided to recommend any change to the Act’.  This is hardly surprising given the variety of perspectives of panel members and society (as reflected in the range of views received by the Commission in response to its previous consultation).   It is presumably also reflective of the fact that the majority of respondents (as the Daily Mail bemoans) were in favour of keeping the Human Rights Act as it is.

Disagreement is a healthy sign in any democracy such as the UK where a plurality of views on key legal and political issues, including human rights, exists. Indeed, it is an indication that rights are taken seriously – as they should be. On that basis, it is vital that debate about what should be included in a UK Bill of Rights (or not) is premised on balanced and accurate analyses of the questions (not recommendations) posed in the consultation document and the potential implications of different options in terms of the rights to be included and the form of their inclusion. Articles such as those in last week’s Daily Mail, Sun and Daily Express fail to achieve this and do the public a disservice.

Professor Aoife Nolan, Professor of International Human Rights Law, Nottingham University Law School, Trustee of Justfair: Justice & Fairness through Human Rights

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