Popular attitudes towards economic
and social rights
29. In the UK public's perception of human rights,
economic and social rights appear to rank highly. Surveys suggest
that public support for guarantees of economic and social rights
is relatively high. The ICM "State of the Nation" poll
of 2000[35] asked respondents
what rights they thought should be protected in a Bill of Rights.[36]
The right which received the highest level of support (94%) was
the right to hospital treatment on the NHS within a reasonable
time. 87% of those surveyed supported protection of the right
to join a trade union, and 86% supported the right to strike.
76% supported protection of the right of the homeless to be housed.
These findings are reflected in a survey undertaken by the NIHRC
as part of its consultation on a Bill of Rights for Northern Ireland.
The survey found a high level of support for economic and social
rights: support for the inclusion in the Bill of Rights of rights
to health care and to an adequate standard of living was at 87%
amongst Protestants, and 91% amongst Catholics.[37]
30. The popular misconception which we noted in our
Report on The Case for a Human Rights Commission, that
human rights are a "criminal's charter", cannot be as
easily applied to economic, social and cultural rights.[38]
Rights to adequate healthcare and education, to equal treatment
in the workplace, and to protection against the worst extremes
of poverty, deal in the substance of people's everyday lives.
In a society which is setting out to build a "culture of
rights" this public identification with core economic and
social rights is not insignificant.
The Northern Ireland Draft Bill
of Rights
31. In Northern Ireland, consideration has been given
to including guarantees of economic, social and cultural rights
within a domestic, legally enforceable, Bill of Rights. The Draft
Bill of Rights for Northern Ireland, prepared by the NIHRC under
the terms of the Belfast/Good Friday Agreement and the Northern
Ireland Act[39] contains
protection for ESC rights, including
the
right to healthcare,
the right to protection from destitution,
the right to shelter,
the right to work,
the right to protection against a dangerous
environment.
32. In its most recent considerations,[40]
the NIHRC puts forward three options for protecting ESC rights.
The first would guarantee the above rights in general terms, leaving
their interpretation to the courts. The second would impose an
obligation on the Northern Ireland Executive and the Northern
Ireland Assembly to realise these rights progressively and to
take legislative and other measures, and allocate the necessary
resources to this end. It would require an annual progress report
to be made by the Northern Ireland Executive to the Northern Ireland
Assembly, outlining progress made in realising the rights. This
option is intended to allow for litigation on these rights along
the lines of the South African model, which limits the courts'
review to the "reasonableness" of the steps taken by
government in implementation. The third option envisages a combination
of these two approaches. We consider the South African Constitution's
model for the protection of economic, social and cultural rights,
below.
14 FCO Annual Report, 1999 Back
15
Garland v. British Rail Engineering Ltd. [1983]
2 AC 751 at p. 771 per Lord Diplock; Litster v. Forth
Dry Dock & Engineering Co. Ltd. [1990] 1 AC 546, HL Back
16
R. (Mullen) v. Secretary of State for the Home Department,
Times, 31 Dec. 2002, CA, interpreting s. 133 of the Criminal Justice
Act 1988 in the light of Art. 14.6 of the ICCPR. Back
17
DPP v. Jones [1999] 3 WLR 625, HL, at p. 634 per
Lord Irvine of Lairg LC Back
18
Rantzen v. Mirror Group Newspapers (1986) Ltd. [1994] QB
670, CA Back
19
Bugdaycay v. Secretary of State for the Home Department
[1987] AC 514, HL; R v. Ministry of Defence, ex parte Smith
[1996] AC 517; R. v. Secretary of State for the Home Department,
ex parte Simms [2000] AC 115, HL; R. v. Secretary of State
for the Home Department, ex parte Venables and Thompson [1998]
AC 407, HL Back
20
R. v. Secretary of State for the Home Department, ex parte
Ahmed and Patel [1998] INLR 570, CA, approving and applying
Minister for Immigration and Ethnic Affairs v. Teoh (1995)
183 183 CLR 273, HC of Australia. Back
21
Oppenheimer v. Cattermole [1976] AC 249, HL; Blathwayt
v. Baron Cawley [1976] AC 397, HL; Cheall v. Association
of Professional Executive Clerical and Computer Staff [1983]
1 QB 127, CA Back
22
For example, protection against religious and sexual orientation
discrimination extends only to employment matters. Back
23
Equal Pay Act 1970; Sex Discrimination Act 1975; Race Relations
Act 1976; Race Relations (Amendment) Act 2000; Race Relations
Act (Amendment) Regulations 2003; Disability Discrimination Act
1995; Employment Equality (Sexual Orientation) Regulations 2003;
Employment Equality (Religion or Belief) Regulations 2003. Back
24
Appendix 11 Back
25
Though see below para. 23 and paras. 119-121 on the applicability
of Article 3 ECHR in these circumstances Back
26
SSHD v Limbuela, Tesema and Adam [2004] EWCA Civ 540 Back
27
Including rights to collective bargaining, to protection against
unjustified dismissal, to fair and just working conditions, rights
to social security and social assistance, and the right of access
to preventative healthcare and medical treatment. Back
28
The Charter is contained in Part II of the Treaty Back
29
R v East Sussex County Council and the Disability Rights Commission,
ex parte A, B, X and Y [2003] EHC 167; R (Robertson)
v City of Wakefield Metropolitan Council [2001] EHC Admin
915, at para 38, referring to the Charter's guarantee of data
protection rights, though acknowledging that it was at present
"not a source of law in the strict sense."; R(Howard
League for Penal Reform) v Secretary of State for the Home Department
[2002] EWHC 2497. Back
30
[2003] EHC 167 (Admin) Munby J, Para.73:"the Charter is not
at present legally binding in our domestic law and is therefore
not a source of law in the strict sense. But it can, in my judgment,
properly be consulted insofar as it proclaims, reaffirms or elucidates
the content of those human rights that are generally recognised
throughout the European family of nations, in particular the nature
and scope of those fundamental rights that are guaranteed by the
Convention." Back
31
Article 26 states: "The Union recognises and respects the
right of persons with disabilities to benefit from measures designed
to ensure their independence, social and occupational integration
and participation in the life of the community." Back
32
The explanatory notes to Article 51 state that the Charter rights
apply to Member States only where they act "in the scope
of Union law" Back
33
For discussion on this point, see Goldsmith, A Charter of Rights,
Freedoms and Principles, (2001) 38 CMLR 1201; Sionaidh Douglas-Scott,
The Charter of Fundamental Rights as a Constitutional Document(2004)
EHRLR 37; Diamond Ashiagbor, Economic and Social Rights in the
European Charter of Fundamental Rights (2004) EHRLR 62; Jeff Kenner,
Economic and Social Rights in the EU Legal Order: the Mirage of
Indivisibility, in Hervey and Kenner, eds, Economic and Social
Rights under the EU Charter of Fundamental Rights: A Legal Perspective
(Harts, 2003) Back
34
Explanations relating to the text of the Charter of Fundamental
Rights, Conv 828/1/03.Rights which are identified as "principles"
in the explanatory notes include the rights of persons with disabilities
(Article 26); rights to social security and social assistance
(Article 34); Rights to Healthcare (Article 35) and rights to
environmental protection (Article 37).Rights which are not identified
as principles include the freedom to choose an occupation and
to engage in work (Article 15); the rights of the elderly to dignity
and independence and to participate in social life (Article 25);
the rights of workers to information and consultation (Article
27); the right to protection from unjust dismissal (Article 30);
the right to fair and just working conditions (Article 31); the
prohibition on child labour and the protection of young people
at work (Article 31) and the right to family life, and to economic
and social protection of the family (Article 33).The explanatory
notes do not have any legal effect, though they may be an aid
to interpretation of the Charter. Back
35
Published in Dunleavy, Margetts, Smith and Weir, Popular Attitudes
to Democratic Renewal in Britain, (2001) Back
36
Asked whether there was a need for a Bill of Rights in Britain,
39% strongly agreed, 32% agreed, 13% neither agreed nor disagreed,
4% tended to disagree, and 3% strongly disagreed. Back
37
NIHRC, A Bill of Rights for Northern Ireland, Summary of Opinion
Poll Findings, October 2001 Back
38
Geraldine Van Bueren, Including the Excluded: the Case for
an Economic, Social and Cultural Human Rights Act, 2002 Public
Law p. 456 and p.457:"an Act enshrining economic, social
and cultural rights would also help correct the unfortunately
widely mistaken impression that human rights are just for criminals." Back
39
Section 69(7). See our Fourteenth Report, Session 2002-03, Work
of the Northern Ireland Human Rights Commission, HL Paper
132, HC 142 Back
40
Progressing a Bill of Rights for Northern Ireland, An update,
April 2004 Back