Joint Committee On Human Rights Twenty-First Report


4 The Status of Economic, Social and Cultural Rights

Progressive Realisation of Rights

44. It is a central principle of the Covenant that states undertake to achieve the full protection of the Covenant rights by way of progressive realisation, rather than with full and immediate effect. [72] Article 2.1 of the Covenant states that—

Each State Party to the present Covenant undertakes to take steps … to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights recognised in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.

45. The principle of progressive realisation has been invoked to support a view of the Covenant rights as aspirational policy objectives, which do not impose precise legal obligations on states. Mr Rammell in his evidence indicated that, although he did not see economic and social rights as of any less importance than civil and political rights, he considered that the principle of progressive realisation justified a different approach to their protection—

‘We certainly do stand by our view that the rights set out in the Covenant constitute principles and objectives. If you look at the detailed wording of the covenant, that backs it up. It talks about progressive realisation with a view to achieving things progressively. It recognises that all the rights in the covenant could not be implemented immediately so that states are required to undertake steps to achieve them. It talks about things like the “highest attainable standard”, which suggests an ongoing commitment.’ [73]

46. In our view, this interpretation of the Covenant rights understates the obligations which the Covenant imposes on the State in two ways. Firstly, progressive realisation is not of equal relevance to all of the rights in the Covenant. Many elements of the Covenant rights which do not require allocation of resources for their protection are recognised as imposing immediate obligations, in the same way as civil and political rights. This is the case, for example, in relation to the obligation of non-discrimination in the guarantee of the Covenant rights, under Article 2.2, and Article 3. It is the case in relation to the right to form and join trade unions, and the right to strike, under Article 8 of the Covenant; the right to protection against forced labour, under Article 6; the right not to be forcibly evicted without due process of law, as an element of the right to housing under Article 11; the right to protection against forced marriage under Article 10.1.[74]

47. Furthermore, as the CESCR noted in General Comment No 3, States have a "core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights", irrespective of the principle of progressive realisation.[75]

48. Where the principle of progressive realisation does apply, it serves in a number of respects, not to weaken, but to strengthen and specify the State's obligation. Although it envisages an incremental approach, it requires of States that they do considerably more than support the Covenant rights as "principles and objectives". The requirement of progressive realisation is by no means a weak obligation, in particular for a wealthy state. It requires states to "take steps" with immediate and continued effect, towards the protection of each of the Covenant rights. Such steps should be "deliberate, concrete and targeted".[76] Progressive realisation requires a clear programme or plan of action for the progressive implementation of each of the Covenant rights.[77] This plan of action should take into account the Concluding Observations of the CESCR, and the general comments of the CEHR interpreting the obligations under the Covenant.

49. Rights must be protected to the maximum of available resources. General Comment No 3 states that—

In order for a State party to be able to attribute its failure to meet at least its minimum core obligations to a lack of available resources it must demonstrate that every effort has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, those minimum obligations.[78]

50. The principle of progressive realisation further requires that there should be no retrogression in the protection of economic social and cultural rights—except in exceptional circumstances states must refrain from diminishing the protection of the Covenant rights through legislation, changes in policy or withdrawal of funds.[79] New legislation brought onto the statute book should be compliant with the Covenant rights and legislation in relevant fields should seek to implement the positive obligation under the ICESCR to fulfil the Covenant rights.

Legal Incorporation of the Covenant Rights

51. There is no obligation on States Parties to the ICESCR to incorporate the Covenant in domestic law. A State's legal obligations are discharged once it has ensured the protection of the Covenant rights, by whatever means. The CESCR maintains, however, that incorporation of the Covenant rights in the domestic legal order is the most effective means of realising the Covenant rights. CESCR General Comment No 9 on the Domestic Application of the Covenant states that—

While the Covenant does not formally oblige States to incorporate its provisions in domestic law, such an approach is desirable. Direct incorporation avoids problems that might arise in the translation of treaty obligations into national law, and provides a basis for the direct invocation of the Covenant rights by individuals in national courts. For these reasons, the Committee strongly encourages formal adoption or incorporation of the Covenant in national law.[80]

The government view

52. The UK government view, as expressed before the CESCR and in evidence to this inquiry, continues to represent economic and social rights not as enforceable rights, but as aspirational policy goals. It therefore considers these rights unsuitable for incorporation in national law. The FCO's written evidence states—

The Government considers that the greater part of the provisions of the ICESCR are statements of principle and objectives which do not lend themselves to specific incorporation into legislation or to justiciable processes. The Government has, both before and since the coming into force of the Covenant, taken measures, including legislation and the adoption of policies and programmes, which advance the same principles and objectives as are set out in the Covenant.

Where the Covenant imposes a more precise obligation on State Parties and this has not hitherto been reflected in UK common law, existing legislation or administrative procedures, the UK's practice is to bring that law or procedure into line with the relevant obligation to ensure its implementation in national law.[81]

Mr Rammell confirmed this approach in his oral evidence to us—

I think there are differences between the ways that the Treaty has set out civil and political rights on the one hand, and economic, social and cultural rights on the other. I think that the two sets of rights neither can nor should be implemented in precisely the same way.[82]

53. The government points to a number of obstacles to incorporation of the Covenant rights. First, it points to the imprecise wording of the Covenant rights. Mr Rammell cited the rights to adequate food, clothing and housing, as rights formulated in such general terms that they would be unsuitable for consideration in the courts.

54. Second is a concern related to the separation of powers: that incorporation of the Covenant rights will allow the courts to usurp the proper functions of Parliament and government, as the democratic institutions of the State. Mr Rammell considered that—

… these are issues for which there is no absolute standard, and are rightly the business of governments and their electorates through general elections, to determine what standard we should achieve.[83]

55. Third, and related to this, is the concern that incorporation of economic, social and cultural rights would lead to a constitutionally inappropriate, and practically unhelpful, engagement of the courts in resource allocation. Mr Rammell argued that—

… there is a significant risk that if we were to incorporate, and the courts were to look at one [ESC rights issue] in isolation, that could potentially have profound and adverse consequences on expenditure in other areas.[84]

The view of the CESCR

56. The government's view that the ICESCR rights are unsuitable for incorporation or adjudication is at odds with that of the CESCR. The CESCR's concluding observations on the UK Report both dispute the UK position on the nature of ESC rights, and express concern at their lack of legal force in UK law—

The Committee deeply regrets that, although the State party has adopted a certain number of laws in the area of economic, social and cultural rights, the Covenant has still not been incorporated in the domestic legal order and that there is no intention by the State party to do so in the near future. The Committee reiterates its concern about the State party's position that the provisions of the Covenant, with minor exceptions, constitute principles and programmatic objectives rather than legal obligations that are justifiable, and that consequently they cannot be given direct legislative effect.[85]

It "strongly recommended"—

… that the State party re-examine the matter of the incorporation of the ICESCR in domestic law. The Committee points out that, irrespective of the system through which international law is incorporated in the domestic legal order (monism or dualism), following ratification of an international instrument, the State party is under an obligation to comply with it and to give it full effect in the domestic legal order.[86]

57. The CESCR has made clear that it is insufficient for State Parties to identify the Covenant rights en bloc as non-justiciable. General Comment 9 states—

The adoption of a rigid classification of economic, social and cultural rights which puts them, by definition, beyond the reach of the courts would … be arbitrary and incompatible with the principle that the two sets of human rights are indivisible and interdependent. It would also drastically curtail the capacity of the courts to protect the rights of the most vulnerable and disadvantaged groups in society.[87]

Furthermore, the CESCR has taken the view that each of the Covenant rights contains at least some elements which are capable of being justiciable, including duties of non-discrimination and due process in regard to each right, and negative duties to refrain from interference with the right.

58. Much evidence to this inquiry voiced support for some form of incorporation of ESC rights.[88] It was also pointed out that the ICESCR is not the only model for incorporation. The Institute of Employment Rights suggested that the European Social Charter 1961, or the Revised European Social Charter 1996, could form the basis of incorporation, citing the long record of supervision and guidance that exists under the 1961 Charter, and to the jurisprudence of the European Committee of Social Rights developed under the collective complaints mechanism.[89] Below we consider the government's arguments against incorporation of the Covenant rights.

Economic, social and cultural rights and determinacy

59. In assessing the justiciability or potential for domestic level protection of the Covenant rights, it is wrong to impose a rigid demarcation between civil and political rights on the one hand, and economic and social rights on the other, and to classify all economic and social rights as inherently vague and unenforceable. Such an approach fails to address the specifics of the rights guaranteed contained by the Covenant.[90] The objection of indeterminacy is more pertinent in relation to the protection of some of the Covenant rights than in relation to others. Trade union rights, for example, protected under Article 8 of the Covenant, are not characterised by indeterminacy; neither is the right to protection against forced labour, under Article 6. Other of the Covenant rights are formulated in considerably more general terms, including for example, the right to the highest attainable standard of health under Article 12 ICESCR. Rights guaranteed in broad terms may, however, contain elements which are sufficiently determinate to be enforced in the courts. Aspects of the right to an adequate standard of health, relating to non-discrimination in its application and to procedural propriety in its implementation, are likely to be appropriate for consideration in the courts. The right to adequate housing under Article 11 ICESCR encompasses a right not to be forcibly evicted without due process of law—a right sufficiently determinate to be enforced in the courts. As we have noted above in relation to the rights protected under the Human Rights Act, there is considerable overlap between the substance of the rights classified as economic and social, and those classified as civil and political. A classification of all aspects of all economic, social and cultural rights as beyond the reach of the courts is, as the CESCR has pointed out, arbitrary.[91]

60. Where rights are guaranteed in general terms, adding substance to these guarantees need not present insuperable difficulties to the courts. The rights in the European Convention on Human Rights, guaranteed in terms equally general to those of the ICESCR, have been given substance by the jurisprudence of the European Court of Human Rights as well as by the UK courts under the HRA. General concepts such as the right to respect for private life protected under Article 8 ECHR have been the subject of careful and principled development that has protected diverse aspects of personal privacy, identity and physical integrity, whilst balancing competing rights and interests.

61. That the same could be achieved in relation to (for example) healthcare rights under the ICESCR, is illustrated by the case law of the South African Constitutional Court. Applying principles of reasonableness to government action in forming healthcare policy and delivering healthcare services, the Court has found, in one instance, that the decision not to provide renal dialysis to an applicant was justified;[92] and in another, that the decision not to provide an anti-HIV drug was not justified.[93] Similar principles would be capable of application by the UK courts.

62. National courts are assisted by a number of sets of international standards, in particular the Maastricht Guidelines on Economic, Social and Cultural rights;[94] the Limburg Principles;[95] and the general comments of the CESCR, which set out principled frameworks for assessing what is a permissible interference, and what is a violation, of ESC rights. There is also a growing body of case law of the European Committee of Social Rights, delivered under the collective complaints mechanism to the European Social Charter.[96]

63. The Covenant rights cannot be dismissed, en bloc, as incapable of protection in domestic law. On a close reading of the Covenant, the view of the CESCR, that at least some element of each of the Covenant rights is capable of judicial application, is borne out. In addition to the practical concerns about incorporation, however, there are objections of principle based on the separation of powers, which we now turn to consider.

Economic, social and cultural rights and democracy

64. The Government's concerns about the potential of economic and social rights to undermine the role of government and Parliament raise important issues that are not to be dismissed lightly, and which have been arisen in other jurisdictions where economic, social and cultural rights have been enforced. It is Parliament and government which must retain the primary responsibility for economic and social policy, an area where the courts lack substantial expertise and have limited institutional authority. This principle must, in our view, condition the scope of any extension of the powers of the courts in relation to economic, social and cultural rights. This does not mean, however, that government action in these spheres should be unaccountable against standards of economic, social and cultural rights, by which the UK has agreed to abide.

65. In the UK context, any question of incorporation of economic, social or cultural rights guarantees in domestic law can only be addressed in the context of the principle of the sovereignty of Parliament. The system devised in relation to the protection of ECHR rights under the Human Rights Act, whereby the powers of the courts do not extend to the striking down of incompatible legislation, must be taken as the model for any incorporation of additional human rights standards. In discussing the possibility of incorporating economic, social or cultural rights, we assume that any such incorporation would, as is the case with the rights guaranteed under the Human Rights Act, prevent the courts from striking down legislation that is incompatible with human rights standards, and would confine the powers of the courts to interpretation of legislation in accordance with human rights, and the issue of declarations of incompatibility in appropriate cases.

66. The South African courts, in applying constitutional guarantees of rights under a system which does, by contrast, allow for incompatible legislation to be invalidated by the courts, have been sensitive to the counter-majoritarian potential of the economic and social rights guarantees in the Constitution, where they are applied by the courts to overturn the decisions of government. Largely due to this concern, the Court has not used the constitutional rights as a blunt instrument against government policy, but has crafted standards of review which assess the reasonableness and non-discriminatory impact of government action in complying with the constitutional imperatives of socio-economic rights protection. These standards are based on principles of judicial review and respect for the decision-making of the executive, which are already applied in the UK courts, alongside review of the proportionality of interference with ECHR rights, under the HRA.[97]

67. It could be said, therefore, that the South African approach to the protection of economic, social and cultural rights is not radically different from that of UK public law. It preserves the existing principles of judicial review of executive action, but in the context of an extended set of standards (of socio-economic rights) against which reasonableness and non-discriminatory impact of that action is to be judged. It allows the courts to undertake scrutiny of economic, social and cultural rights protection, whilst confining this scrutiny to matters within the courts' institutional competence.

68. In the complex inter-relationship between human rights and democracy, economic, social and cultural rights values and guarantees may, as with civil and political rights, enhance rather detract from democracy. The view was put to us in the course of meetings in South Africa, that the inclusion of socio-economic rights in the Bill of Rights had strengthened rather than undermined the country's democracy, by requiring government to provide reasoned, public justification for its treatment of the most vulnerable and excluded people in society, and by permitting often relatively powerless people to hold government to account for the actions that affected their lives. Furthermore, it was argued that public confidence in government was supported by the possibility that normally invisible decisions about the administration of public services could be made visible through constitutional litigation.

69. Incorporating economic and social rights in UK law could extend the culture of accountability which the Human Rights Act established in respect of civil and political rights. It could extend this culture of justification and accountability to cover matters that are fundamental to the lives of most citizens; and it would have most practical effect in protecting the rights of the people who are most marginalised and deprived in an unequal society.

70. Undoubtedly, some models for the incorporation of guarantees of the Covenant rights would have the potential to interfere with economic and social policy development by government and Parliament in a way which would be inappropriate and undesirable. However, it is also possible that incorporation of these rights could, with appropriate safeguards, be achieved without such constitutional impropriety.

Economic, social and cultural rights and resource allocation

71. We agree with the Government's view that it is inappropriate for the courts to engage in large-scale redistribution of resources. While we recognise that there is no absolute dividing line between what is a large or small reallocation of resources, we do not believe that the entrenchment of certain Covenant rights would necessarily impel the courts to engage in the wholesale reallocation of resources. The extent to which this would be the case must depend both on the range of rights incorporated—so that incorporation of the right to strike, for example, would not change the courts' role in the allocation of resources—and on the principles on which the court may adjudicate. Permitting the courts to adjudicate on the Covenant rights along principles of non-discrimination and reasonableness of decision-making would entail considerably less significant re-allocation of resources than permitting the courts to assess, for example, adequate minimum levels of rights to adequate housing or benefits.

72. Moreover, it is not the case that resource allocation by the courts is a feature unique to adjudication on economic and social rights. Decisions of the courts on matters of civil and political rights may also have substantial resource implications. The right to a fair hearing, under Article 6 ECHR, includes a right to legal aid where the interests of justice require it, in particular in complex cases which the individual cannot be expect to conduct without legal representation.[98] This, and other positive obligations that derive from ECHR rights, may have substantial resource implications. Democratic Audit pointed out that it cannot be assumed that resource allocation is limited to adjudication on ESC rights, and cited case law showing that the courts "do at times deal with resource allocation and socio-economic policy planning". Democratic Audit argued that "it would be better that they did so openly, wherever possible in accordance with open textured standards, such as respect for the dignity and integrity of the person, rather than within existing narrow and often unspoken bounds".[99]

Incorporation of the Covenant rights in UK law?

73. In our view, the case for incorporating guarantees of the Covenant rights in UK law, either by incorporating the terms of the Covenant itself, or by developing domestic formulations of the Covenant rights as part of a UK Bill of Rights, merits further attention. Any such measure should recognise the limits of the courts' institutional competence in relation to rights that are progressively realised, and should limit judicial scrutiny to grounds of reasonableness and non-discrimination. Providing the Covenant rights with legal status in UK law would broaden and strengthen the developing culture of respect for human rights in the UK, and make clear that human rights address essential human needs, and help to ensure that provision is made for the most vulnerable people in our society. As with the incorporation of the ECHR rights under the Human Rights Act 1998, much of the benefit of incorporation might be expected to lie in the development of a culture of respect for human rights within government and Parliament. Democratic Audit stressed the need to see any incorporation of ESC rights as more than just a basis for litigation—

… incorporation could provide a human rights framework of shared values within which government and the public could develop and review policies and the allocation of resources for economic and social well-being in the UK and for improving the quality of public services.[100]

74. The possibility of incorporation of rights under the Covenant, and under other international human rights instruments to which the UK is party, into UK law, is a topic to which we ourselves hope to give further detailed consideration, as we noted in our report on the Convention on the Rights of the Child.[101]


72   Although it is not generally applicable under the European Social Charter as it is under the ICESCR, the notion of progressive realisation is inherent in some of the Charter's guarantees, and has been accepted by the European Committee of Social Rights "[w]hen the achievement of one of the rights in question is exceptionally complex and particularly expensive to resolve" and provided that there is measurable progress evidencing maximum use of available resources, towards the realisation of the right. The Committee has stressed that in achieving progressive realisation of rights, particular attention must be paid to marginalised groups: "States Parties must be particularly mindful of the impact that their choices will have for groups with heightened vulnerabilities as well as for others persons affected including, especially, their families on whom falls the heaviest burden in the event of institutional shortcomings". European Committee of Social Rights: Autism-Europe v France, Complaint No. 13/2002. Back

73   Q 24 Back

74   In General Comment No. 3 on the Nature of State Parties' Obligations under the Covenant, the CESCR identifies a number of rights as capable of immediate realisation, including those in articles 3, 7 (a) (i), 8, 10 (3), 13 (2) (a), (3) and (4) and 15 (3). It states that "Any suggestion that the provisions indicated are inherently non-self-executing would seem to be difficult to sustain." Back

75   See also Maastricht Guidelines on Violations of ESC rights, para.10.Although this obligation will not be frequently relevant to the UK, it will be relevant in particular instances, for example in relation to the deprivation of asylum seekers of benefits. See below. Back

76   General Comment No. 3 on the Nature of State Parties' Obligations under the Covenant, 1990 Back

77   ibid., para. 4 Back

78   ibid., para. 10 Back

79   ibid., para. 9: "any deliberately retrogressive measures … would require the most careful consideration and would need to be fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the maximum available resources."  Back

80   General Comment No. 9, 03/12/98, E/C.12/1998/24 Back

81   Appendix 1, paras. 23-24 Back

82   Q 24 Back

83   Q 24 Back

84   ibid Back

85   Concluding Observations of the Committee on Economic, Social and Cultural Rights : United Kingdom of Great Britain and Northern Ireland-5 June 2002, E/C. 12/1/Add. 79, para. 11 Back

86   ibid., para. 24 Back

87   General Comment No. 9, op cit, para 10 Back

88   JUSTICE (Appendix 15), Democratic Audit (Appendix 11), The Children's Law Centre and Save the Children Northern Ireland (Appendix 6), Institute of Employment Rights (Appendix 14) and Committee on the Administration of Justice (Appendix 9). Back

89   Although the UK has not accepted the collective complaints mechanism, under Protocol No. 3 to the Charter. Back

90   General Comment No. 9, op cit; Lester and O Cinneide, The Effective Protection of Socio-Economic Rights in Economic, Social and Cultural Rights in Practice, The Role of Judges in Implementing Economic, Social and Cultural Rights, Yash Ohai and Jill Cottrell, eds., Interights 2004  Back

91   See para. 57 above Back

92   Soobramoney, op cit Back

93   TAC case, op cit Back

94   The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, E/CN.4/1987/17, Human Rights Quarterly, Vol 20 (1998) pp. 691-705. Back

95   The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights, 1986, UN Doc E / CN.4/1987/17 Back

96   Under Protocol No. 3 to the European Social Charter-the UK is not a party to the collective complaints mechanism. The European Committee of Social Rights has so far delivered 12 decisions on the merits under the Collective Complaints Mechanism. Back

97   R (Daly) v SSHD [2001] 2 AC 532 Back

98   Airey v Ireland (1979) 2 EHRR 305 Back

99   Appendix 11 Back

100   ibid., Ev 86 Back

101   Tenth Report, Session 2002-03, The UN Convention on the Rights of the Child, op cit., para. 23 Back


 
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