Joint Committee On Human Rights - Twenty-First Report

Joint Committee On Human Rights Twenty-First Report

2 Economic and social rights in the UK

15. There has been a strong commitment by the UK Government to economic, social and cultural rights internationally. Successive FCO Annual Human Rights Reports support the importance of economic and social rights protection as an essential part of the protection of all human rights. The strongest statement is that in the FCO Annual Report for 1999 that—

The achievement of social and economic rights is enhanced by progress in achieving civil and political rights. The commitment to a right to development—which draws together the social and economic rights laid down in the Universal Declaration of Human Rights (1948) - underlines a vital lesson: that we fail to honour the Universal Declaration and cannot be upholders of human rights unless we commit ourselves to all rights for all people.[14]

This commitment to economic, social and cultural rights in the international context contrasts with an apparent reluctance to use the language of these rights when addressing relevant issues in domestic law and policy.

Status of the ICESCR in UK law

16. The UK has accepted international treaty obligations to protect economic and social rights under the ICESCR, the European Social Charter, and the Conventions of the ILO. The UK's "dualist" legal system means that treaties, such as the ICESCR, do not in general take any legal force in domestic law unless they have been incorporated in domestic legislation. There are defined exceptions to this general principle, which enable the courts to take some account of the terms of an unincorporated treaty such as the ICESCR. These include the following—

— The courts assume that Parliament does not intend to legislate in a manner incompatible with the United Kingdom's international legal obligations, including those arising under human rights treaties. They therefore interpret legislation in a manner consistent with those obligations whenever possible, even if there is no obvious ambiguity in the legislation.[15]

— In particular, where a statute was enacted to fulfil an international obligation, the courts will assume that it was intended to be effective for that purpose and will interpret the legislation accordingly.[16]

— Where the common law is uncertain or there is a gap in the law, courts try to make decisions in a manner compatible with international obligations.[17]

— Where possible, courts exercise their discretion in a manner compatible with international obligations.[18]

— When reviewing the exercise of discretion by public authorities, the courts subject decisions or acts which interfere with human rights under international treaties to specially anxious scrutiny. Such decisions or acts require particularly strong justification if they are not to be regarded as irrational or disproportionate and, therefore, unlawful.[19]

— Courts regard people dealing with governmental bodies as having a legitimate expectation that, other things being equal, the Government will act in a manner consistent with the United Kingdom's international obligations. The Government can make it clear that it does not intend to be bound by its obligations in its domestic decision-making, but until it does so the courts are able to quash decisions which disappoint the claimant's legitimate expectation.[20]

— When courts are required to decide what legal public policy demands, they regard it as being part of the legal public policy of this country that courts should give effect to clearly established rules of international law, and so they treat international obligations as an indication of public policy.[21]

17. The Covenant, as an international treaty, therefore has a very limited impact in our domestic law. This does not, however, render its provisions unimportant. In ratifying the Covenant, the UK has made a commitment, binding in international law, to abide by the terms of the Covenant. This requires government, Parliament and the courts to make efforts to ensure the fullest possible compliance with the terms of the ICESCR.

Legislative protection of economic, social and cultural rights

18. Although the UK system lacks legal protection for most economic and social rights as rights, that is not to say that the substance of those rights are unprotected. Under current legislation relating to housing, healthcare, employment relations and discrimination, for example, significant aspects of the Covenant rights are the subject of obligations on public bodies which may be judicially reviewed in the courts. The UK's framework of legislation in relation to race, sex and disability discrimination, now supplemented by regulations in relation to discrimination on grounds of religion and sexual orientation, provides substantial, though varying,[22] protection for employment rights and rights of access to social services for a number of disadvantaged groups.[23] The courts, in adjudicating on this legislation, regularly make decisions that decide on the application and limits of economic and social rights. Democratic Audit, in its evidence to our inquiry, identified a body of cases in which it considered that the courts adjudicated, though not expressly, on economic and social rights.[24]

The limitations of legislative protection

19. The application of what might be considered economic and social rights through judicial review of statutory duties suggests that consideration of their substance is by no means alien to the UK courts. This process does not, however, provide constitutional level protection of universally-applicable human rights standards of the type provided by the Human Rights Act in relation to civil and political rights. This may leave vulnerable marginalised groups or individuals, who fall outside of the scope of the legislation, since they cannot challenge the limitations of the legislation in protecting their economic, social or cultural rights.

20. Someone who falls outside of the general provision made by social security legislation, for example asylum seekers deprived of benefits under section 55 of the Nationality Immigration and Asylum Act 2002, cannot claim redress before the courts on the grounds that their rights to social security under Article 9 of the Covenant have been violated.[25] Although recipients of benefits could bring an action for judicial review of the allocation or non-allocation of particular benefits to them, as an inappropriate application of the Social Security Acts, they would have no access to the courts to challenge the levels of a particular type of benefit (prescribed under the legislation) which they considered to be insufficient to satisfy Article 9, or inadequate to ensure an adequate standard of living under Article 11. Where the Covenant rights are protected through legislation, therefore, the level to which these rights are protected is for Parliament and the Executive to determine.

Protection for ESC rights under the HRA

21. No clear line of demarcation can be drawn between the substance of rights classified as civil and political, and those classified as economic, social and cultural. Some measure of protection for economic and social rights is afforded by the primarily civil and political rights guaranteed under the Human Rights Act. For example, the right to an adequate standard of living (Article 11 ICESCR) is a more robust expression of the minimum protection available under the freedom from inhuman and degrading treatment (Article 3 European Convention on Human Rights (ECHR)), which will guard against the worst forms of destitution. Rights to privacy, personal autonomy and physical integrity, of the kind guaranteed by Article 8 ECHR, afford the individual rights in relation to the adequacy and competence of healthcare, and in relation to their autonomy in choosing whether and how they are cared for. These are rights which are key elements of the right to health as guaranteed by Article 12 ICESCR, though the guarantees it provides are more comprehensive. In relation to social rights, the right to freedom of association, guaranteed under Article 11 ECHR, protects the rights of trade unions and their members (as well as of those who decide not to join a trade union), though those rights are given more detailed expression in the instruments of the International Labour Organisation, in the European Social Charter and in the ICESCR.

22. Rights to protection of property, and to access to education, are guaranteed by the first protocol to the ECHR, also incorporated into UK law by the Human Rights Act. These rights are by their nature respectively economic and social (although property rights may also be classed as civil rights), and yet they are without difficulty guaranteed and applied by the UK courts, if in relatively circumscribed and qualified form, alongside the civil and political guarantees in the Convention and the Human Rights Act. Certain economic, social and cultural rights are in practice already a part of domestic law, and domestic discourse on rights.

23. The extent of the protection of economic rights afforded by the civil and political rights protections of the Human Rights Act has been given careful consideration by the UK courts in a series of recent cases dealing with the denial of benefits to asylum seekers who are deemed not to have claimed asylum within a reasonable time of their arrival in the UK, under section 55 of the Nationality Immigration and Asylum Act 2002. The Court of Appeal has recently held that the freedom from inhuman and degrading treatment guaranteed by Article 3 ECHR requires the State to provide support for those asylum seekers to whom section 55 applies, where they are not able to find support from sources other than the State and where the effect of section 55 is therefore to render them destitute.[26]

24. In terms of legal protection and redress, therefore, ESC rights are for the most part protected through legislation, but there is limited opportunity to challenge gaps and inadequacies in this legislation, unless the matter can be brought within one of the rights protected under the Human Rights Act.

25. Because in our legislative scrutiny work we have consistently taken the view that the JCHR's remit, to consider "matters related to human rights in the United Kingdom", extends beyond the rights set out in the Human Rights Act to the international catalogue of human rights instruments to which the UK is a party, we have begun to introduce discussion of economic, social and cultural rights into parliamentary debate more regularly.

The EU Charter of Fundamental Rights

26. The EU Charter of Fundamental Rights contains guarantees of both civil and political, and economic, social and cultural rights,[27] as well as some guarantees of "third generation" rights, such as the right to environmental protection. It is likely that the Charter will, in the event of ratification of the Treaty on a Constitution for Europe,[28] involve the UK courts in consideration of the rights it contains, including guarantees of economic, social and cultural rights, albeit within a relatively narrow field where these rights apply to the implementation of EU law. Despite the current declaratory status of the Charter, agreed in 2000, it has already been referred to by the domestic courts in a number of cases to inform consideration of domestic law and in particular the Human Rights Act.[29] In the recent case of R v East Sussex County Council and the Disability Rights Commission, ex parte A, B, X and Y,[30] Charter guarantees relevant to the care and physical integrity of people with disabilities, including the guarantee of the rights of people with disabilities in Article 26, were considered by the Administrative Court.[31]

27. The Charter is primarily intended to ensure the human rights accountability of institutions of the EU, but extends to certain actions of Member States. The field of application of the Charter is limited under Article 51, which makes the rights applicable to Member States "only where they are implementing Union law".[32]

28. It is likely that judicial application of some of the Charter rights, including some of the economic and social rights, will be constrained to some extent by Article 52.5. Article 52.5 states that provisions of the Charter which contain "principles" are applicable to Member State action only where those provisions have been the subject of national law implementation measures. Although the boundary between "rights" and "principles" in the Charter is unclear,[33] the explanatory notes suggest that it does not equate to a distinction between civil and political rights on the one hand, and economic and social rights on the other,[34] and some economic and social rights in the Charter may therefore fall outside of Article 52. Where economic and social rights in the Charter are considered by the courts to be "principles", they may nevertheless be applied in appropriate cases within the scope of the Charter where implementing action has been taken.

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