Should we have an enforceable right to food? – Professor Geraldine van Bueren Q.C.
18 October 2013
Nearly eight hundred years ago, in 1216 English law first recognized a right to food. Yet between April and September this year over 350,000 people received three days’ emergency food from the Trussell Trust food banks, triple the numbers helped in the same period last year.
Although justifiable outrage has been expressed at this increasing hunger in 21st century England, such hunger has not been regarded as an issue of human rights law, but only of charity. The United Nations, however, has made clear that the right to adequate food is indivisibly linked to the inherent dignity of the human person and is indispensable for the fulfilment of other human rights.
Unknown even to many lawyers, the right to food was first protected in English law in the Charter of the Forest 1216. The Charter of the Forest was regarded as a sister Charter to the Magna Carta adopted only one year earlier. Blackstone regarded both the Charter of the Forests and the Magna Carta as being of equal importance (for a history of British Socio-Economic Rights from 1216 see Van Bueren, “Socio-Economic Rights and a Bill of Rights – An Overlooked British Tradition”, Public Law 2013, 821.
Although expressed in the arcane medieval language and concepts of the thirteenth century, the Charter of the Forest recognized rights to the essentials of medieval living. These, rights such as the right to honey, grazing rights and rights to firewood, constituted the essentials of medieval life, but translate in the 21st century into the right to adequate nutrition. The United Kingdom has been legally bound since 20 May 1976 to implement progressively the right to food, according to the United Kingdom’s maximum available resources. The increase in the use of food banks clearly shows the lack of progressive implementation because, at root, it is not a lack of food but a lack of access to available food.
According to the International Monetary Fund in April 2013, measuring states’ Gross Domestic Product, the United Kingdom is the world’s eighth richest state. Hence it would be difficult for the United Kingdom to argue that it has expended the maximum available resources to avoiding the necessity for people to use food banks.
There are two possible approaches. The first is that it is arguable that the lack of dignity expressed by some users in having to use food banks whilst in paid employment may amount to a breach of Article 3 of the Human Rights Convention prohibiting degrading treatment. This line of argument is far from certain, however, as, despite notable successes, the courts have been hesitant to develop an expansive interpretation of Article 3. The second possibility is using the more direct route calling for the United Kingdom to fulfill its international legal obligations and revive the right to food in the twenty first century. This is not a question of importing foreign rights but of reviving what has been part of English law for hundreds of years. Reviving an English right to food would in practice mean that food banks would once again become unnecessary rather than needed more.
As the United Nations International Covenant on Economic, Social and Cultural Rights makes clear, the right to adequate food is realised only when every man, woman and child, alone or in community with others, has physical and economic access at all times to adequate food or means for its procurement. Accessibility is key to this legal right and includes economic accessibility. The UN Committee on Economic, Social and Cultural Rights (“UNCESCR“), the body entrusted with implementing the Covenant, has observed that economic accessibility implies that personal or household financial costs associated with the acquisition of food for an adequate diet should be at a such level that the attainment of other basic needs are not compromised. It is therefore a breach of international law to require people to choose between adequate food or basic winter heating as some people are clearly having to do. The Covenant requires that each State party take whatever steps are necessary to ensure that everyone is free from hunger and as soon as possible can enjoy the right to adequate food. This requires the adoption of a national strategy to ensure food and nutrition security for all, based on human rights principles. It should also identify the resources available to meet the objectives and the most cost-effective way of using them.
Nor is austerity a defence. According the UNCESCR, even where a State faces severe resource constraints caused by a process of economic adjustment or recession, measures should be undertaken to ensure that the right to adequate food is especially fulfilled for vulnerable population groups and individuals. Further any person who is a victim of a violation of the right to adequate food should have access to effective judicial or other appropriate remedies at both national and international levels. Such effective remedies are not available in the United Kingdom, both because the United Kingdom has not revived a justiciable right to food and because the UK does not permit those within its jurisdiction to petition the UNCESCR for violations as other countries in the grip of austerity, including Spain and Portugal, have done. The Charter of the Forest’s right to food is as fundamental a right as the Magna Carta’s right to jury trial and both require equal statutory protection.
Geraldine Van Bueren QC is Professor of International Human Rights Law and Visiting Fellow at Kellogg College, Oxford.