Joint Committee on Human Rights Twenty-Ninth Report


5  Economic and social rights

Background

147.  In any country debating whether or not to adopt a national Bill of Rights, one of the most controversial issues is whether the Bill of Rights should include economic and social rights. This is hardly surprising: the debate is an outcrop of often deeply submerged but sincerely held differences between reasonable people about the most fundamental questions of political philosophy, including the nature of liberty and the appropriate role of the State in preventing inequality.

148.  We therefore approach the issue under no illusions about the fact that opinion on including economic and social rights is currently polarised, and that the division of opinion often follows party political lines. Nevertheless, on an issue of this importance we believe that we should explore the scope, if any, for consensus by investigating in depth the variety of ways in which economic and social rights could be included in a national Bill of Rights.

149.  In their evidence to us the human rights NGOs were all very much in favour of the inclusion of economic and social rights in any UK Bill of Rights, but were deeply pessimistic about the prospects of arriving at any political consensus on this issue.[150] At times, listening to the evidence of those who in principle support the idea, it sounded as though they were already resigned to there being no prospect of progress on this issue. However, we believe it is all the more important that we explore the scope for agreement on this question in light of the consistent evidence of opinion polls that including economic and social rights in a Bill of Rights is very popular with the public.

150.  In the most recent Joseph Rowntree State of the Nation poll, in October 2006, 88% of people questioned thought that the right to hospital treatment on the NHS within a reasonable time should be included in a Bill of Rights. This was only 1% less than the 89% who thought that the right to a fair trial before a jury should be included. 65% thought that the right of the homeless to be housed should also be included.

151.  Opinion polls conducted on behalf of the Northern Ireland Human Rights Commission as part of the consultation process leading towards the adoption of a Northern Ireland Bill of Rights convey the same message.[151] The Commission found a high level of support in Northern Ireland for economic and social rights. 87% of Protestants and 91% of Catholics supported including the rights to health care and an adequate standard of living in a Bill of Rights.

152.  It seems that the rights which have been gradually conferred over the last 60 years or so by the welfare state, such as the right to health, housing and education, are now seen in the popular imagination as being just as fundamental as what are perceived to be the ancient rights in Magna Carta.

The Committee's Report on Economic and Social Rights

153.  We take as our starting point our predecessor Committee's Report of November 2004 on economic and social rights.[152] That Report considered the extent to which the International Covenant on Economic, Social and Cultural Rights ("ICESCR") had been implemented in the UK. The ICESCR is the UN treaty which gives binding legal force to the economic, social and cultural rights proclaimed in the Universal Declaration of Human Rights of 1948. Along with the International Covenant on Civil and Political Rights ("the ICCPR"), which gives effect to the civil and political rights in the Universal Declaration, the ICESCR is the other half of what is colloquially known as the "International Bill of Rights." As our predecessors' Report points out, economic and social rights are a core element of international human rights protection. The rights in the ICESCR include rights such as the right to health, the right to education and the right to an adequate standard of living.

154.  Our predecessor Committee's Report found that, although the substance of many of the ICESCR rights was protected through specific pieces of legislation (relating to health, housing, education, and social security for example), where there were gaps or inadequacies in this legislative protection (as there demonstrably were in the case of some rights) the domestic legal system could not always provide redress.[153] The Report therefore went on to consider the case for giving further legal effect in the UK to the economic and social rights contained in the ICESCR.

155.  The Government gave three reasons for its view that economic and social rights are aspirational policy goals, not enforceable legal rights.[154] First, it argued that the ICESCR rights were formulated in such imprecise and general terms as not to be suitable for consideration in the courts. Second, the Government argued that incorporating the rights would allow the courts to usurp the proper functions of the democratically elected Government and Parliament. Third, it would lead to judicial involvement in resource allocation which would be constitutionally inappropriate.

156.  Our predecessor Committee considered carefully the Government's arguments against incorporation. It accepted that Parliament and the Government must retain the primary responsibility for economic and social policy, in which the courts lack substantial expertise and have limited institutional authority.[155] However, it rejected the Government's argument that all economic and social rights are inherently non-justiciable. It concluded that certain aspects of the ICESCR rights were susceptible to judicial adjudication and, after considering the South African approach to the protection of economic and social rights, it thought it possible that, with appropriate safeguards, those rights could be given further legal effect without the constitutional impropriety feared by the Government.[156] It concluded:

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. [157]

157.  We agree with the reasoning and conclusion of our predecessor Committee that the case for developing domestic formulations of economic and social rights as part of a UK Bill of Rights merits further attention and our Report now picks up where its Report left off.

The Government's evolving position

158.  At the time of its Green Paper of July 2007, The Governance of Britain, the Government was clearly opposed to the inclusion of social and economic rights in any Bill of Rights. It said:

… some have argued for the incorporation of economic and social rights into British law. But this would involve a significant shift from Parliament to the judiciary in making decisions about public spending and, at least implicitly, levels of taxation.[158]

159.  That position was reiterated by the Justice Secretary,[159] and the message repeated again by the Human Rights Minister, who said on 19 November 2007 that he feared the Government was going to disappoint those who want to see social and economic rights in a Bill of Rights.

160.  At the Liaison Committee on 13 December 2007, however, our Chairman pressed the Prime Minister on the issue, asking whether he saw a Bill of Rights playing a role in creating a sense of cohesion and why economic and social rights would be excluded from the Bill. The Prime Minister replied:

This has been the debate about modern constitutions round the world as to how far these constitutions can accommodate people's desire not simply for political rights to be enshrined in constitutions but social and economic rights. The issue actually comes down to not being against social and economic rights being accorded importance in constitutions but whether they are justiciable, whether people actually go to court or take actions in law on the basis of these rights being set down. That is part of the debate that I think you will see ushered in in January as to whether social and economic rights should be included in this statement but I think the issue becomes not so much whether you think they are important but whether you agree that you should take judicial action on the basis of trying to enforce these rights. That is where a lot of constitutions have had a great deal of problems in recent years.

Q40 Mr Dismore: So the suggestion that seems to come out of The Governance of Britain and other documents that social and economic rights are effectively off-limits in this debate is wrong?

Mr Brown: I do not think they can ever be off-limits in a debate and I think when people look at what does hold Britain together, some of the social changes that happened in the 20th century are seen by people to be of such importance that they accord them the status of rights in the way they talk about them, as you have rightly said about the National Health Service. The question however is whether, if you are setting down in legislation rights, are you setting them down so that people can take legal action on the basis of enforcing them or not?[160]

161.  We welcome the Prime Minister's acknowledgment that rights such as the right to health are considered of fundamental importance to people and his indication that the forthcoming consultation and debate about a Bill of Rights would not seek to preclude discussion of whether economic and social rights should be included in any such Bill of Rights. In his comments, the Prime Minister appears to accept that a constitution or Bill of Rights can "accord importance" to economic and social rights; his concern, however, appears to be the relatively narrow one that economic and social rights ought not to be directly enforceable by individuals in the courts.

162.  Subsequently, in its written evidence to our inquiry, the Government suggested for the first time that it was open to the possibility of economic and social rights being included in any Bill of Rights, but in a declaratory, rather than a justiciable, form:

If, for instance, economic and social rights were part of our new Bill, but did not become further justiciable, this would not in any way make the exercise worthless. There is great power in symbols. As the jurist Philip Alston described, Bills of Rights are 'a combination of law, symbolism and aspiration'. What he makes clear is that the formulation of such a Bill is not a simple binary choice between a fully justiciable text on the one hand, or a purely symbolic text on the other. There is a continuum. And it is entirely consistent that some broad declarative principles can be underpinned by statute. Where we end up on this continuum needs to be the subject of the widest debate. [161]

163.  In oral evidence to us in May, the Justice Secretary appeared to go further, indicating that the Government is now contemplating the possibility of including provisions about social and economic rights in the form of "deliberative and interpretive principles".[162] In the Government's view, there are essentially three positions on the continuum. At one extreme, economic and social rights are fully justiciable in the courts and can be enforced against the State by individuals. The Government rejects this possibility. At the other extreme, the Bill of Rights could contain declaratory principles about economic and social rights, which are of wholly symbolic rather than legal effect. The Government appears to be interested in this possibility, although in evidence to us the Justice Secretary did make the point that there ought not to be too great a mismatch between the aspiration in a Bill of Rights and the reality, or the Bill of Rights risks losing credibility. Between these two extremes, in the Government's view, is the possibility of a set of interpretive and deliberative principles, which would not provide the basis for any legal action enforcing the rights, but which might be relevant when legislation concerning health or education, for example, falls to be interpreted.

164.  We welcome the Government's preparedness to reconsider its position in relation to the inclusion of economic and social rights in any UK Bill of Rights and its recent acknowledgment that there is a continuum of possible positions. We agree that there is a continuum and we consider below the range of possible options for including economic and social rights in a national Bill of Rights.

The range of possibilities

165.  The first option is what the Government describes as the purely declaratory model, in which statements of principles about economic and social rights are of wholly symbolic rather than legal effect. We have found no examples of economic and social rights being cited in a purely declaratory manner in bills of rights around the world, at the present time. Looking at the various ways in which economic and social rights are protected in different countries' bills of rights, it seems to us that, broadly speaking, there are three main models.

MODEL (1): FULLY JUSTICIABLE AND LEGALLY ENFORCEABLE RIGHTS

166.  In a number of Scandinavian and Eastern European countries, social and economic rights are protected as legally enforceable rights in the Constitution. Finland, for example, has a constitutional guarantee of "the right to basic subsistence in the event of unemployment, illness and disability and during old age as well as the birth of a child or the loss of a provider".[163] In countries such as Latvia, Estonia, Poland and Romania, the Constitutional Court has struck down laws which unduly restrict constitutional rights to certain types of subsistence benefits.[164]

167.  We agree with the Government that including fully justiciable and legally enforceable economic and social rights in any Bill of Rights carries too great a risk that the courts will interfere with legislative judgments about priority setting. Like our predecessor Committee, we recognise that the democratic branches (Government and Parliament) must retain the responsibility for economic and social policy, in which the courts lack expertise and have limited institutional competence or authority. It would not be constitutionally appropriate, in our view, for example, for the courts to decide whether a particular standard of living was "adequate", or whether a particular patient should be given priority over another to receive life-saving treatment. Such questions are quite literally non-justiciable: there are no legal standards which make them capable of resolution by a court.

MODEL (2): DIRECTIVE PRINCIPLES OF STATE POLICY

168.  Other countries give constitutional recognition to social and economic guarantees as goals, but not as legally enforceable rights. The Constitution of India, for example, contains a number of "directive principles of State policy", which the Constitution expressly says "shall not be enforced by any court", but which are nevertheless recognised as fundamental in the governance of the country and the State is under a duty to apply those principles when making laws.[165] These principles include various duties to direct its policies towards securing, for example, the right to work, to education and to a higher standard of living and level of nutrition and public health. The Constitution of Ireland takes a similar approach.

169.  This model avoids the pitfalls of the first model because it keeps the courts out altogether. In our view, however, it risks the constitutional commitments being meaningless in practice. When some possibility of judicial enforcement exists, it is more likely that the relevant rights will in practice receive respect. Even democratic societies which have declared their own commitment to a set of fundamental values can often fail to implement them and can ignore the needs of its most vulnerable members.

MODEL (3): A DUTY OF PROGRESSIVE REALISATION OF ECONOMIC AND SOCIAL RIGHTS BY REASONABLE LEGISLATIVE AND OTHER MEASURES, WITHIN AVAILABLE RESOURCES

170.  Is there a straightforward choice between economic and social rights as mere goals or as legally enforceable rights, or is some combination of the two possible? Baroness Hale was very clear in her evidence that there are certain things that judges simply cannot do, but she also made clear that this did not necessarily preclude any judicial role in relation to economic and social rights:

There are certain basic threshold entitlements from the fact of being a human being that it might be possible to say. I am only saying it might be possible to say. There are modern human rights documents and modern constitutions which do include certain basic social and economic entitlements. It is possible to do. … All I am saying is it is possible within certain limits to do that but you have to bear in mind that there are things that judges cannot decide. They cannot decide as between X, Y and Z: if you only have two dialysis machines and you have three kidney patients, who gets them? They can ensure that the people who do decide are using rational criteria to so decide and are not being biased and are not discriminating and so on and so forth. [166]

171.  The South African Bill of Rights contains a number of social and economic rights, such as rights to housing, health care, food, water and social security, but qualifies the justiciability of those rights by providing that "the state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation" of these rights.[167] The South African Constitutional Court has used the English administrative law concept of "unreasonableness", which has a very high threshold, to ensure that the courts will only very rarely intervene to uphold social and economic rights. This model therefore gives some role to the courts, but not a very substantial one. Unlike the directive principles approach, it does not seek to eliminate the judicial role, rather it confines it within narrow parameters, so as to allow courts to respond only to very serious or large-scale violations.

172.  Such a hybrid model combines the advantages of the other two models whilst avoiding their main disadvantages. On this third model, implementation of the basic commitments spelled out in the Bill of Rights is still primarily through democratic processes rather than the courts, but with the possibility of a degree of judicial involvement in extreme cases (eg. of unjustifiable omission of provision for a particular vulnerable group). Individuals do not have legally enforceable rights against the State to full protection of the rights recognised by the Bill of Rights. But resort to the courts might be possible if one particular vulnerable group was being neglected altogether, because then the State is failing to take reasonable legislative and other measures, within available resources, to achieve progressive realisation of the rights. So there is scope for some judicial role in enforcing the constitutional provision, but the caveats surrounding the definition of the rights mean that there is very little scope indeed for judicial interference with the setting of priorities.

173.  Some examples from South Africa demonstrate how this model works in practice.

(1) The right to health

(a) No right to kidney dialysis treatment

174.  Mr. Soobramoney was a diabetic with chronic kidney failure. He was refused admission to the dialysis programme of a state hospital because the hospital had a severe shortage of dialysis machines and trained nursing staff. Because of limited resources the hospital had adopted a policy of admitting only those patients who could be cured within a short period or those eligible for a kidney transplant. Mr. Soobramoney claimed that he had a constitutional right to receive kidney dialysis treatment, relying on the provisions in the South African Bill of Rights that no-one may be refused emergency medical treatment (section 27(3)) and that everyone is entitled to have access to health care services provided by the state (section 27(1)(a)).

175.  The Constitutional Court rejected his claim.[168] It held that the right not to be refused emergency medical treatment did not mean that the treatment of terminal illnesses had to be prioritised over other forms of medical care such as preventative health care. It meant that a person who suffers a sudden catastrophe which calls for immediate medical attention should not be denied ambulance or other emergency services which are available and should not be turned away from a hospital which is able to provide the necessary treatment.

176.  The Court also rejected the argument based on the state's constitutional obligation, within its available resources, to provide health care. It held that if treatment had to be provided to Mr. Soobramoney it would also have to be provided to all others in a similar position and the resources available to the hospital could not accommodate the demand. The responsibility for making the difficult decisions of fixing the health budget and deciding upon the priorities that needed to be met lay with the political organs and the medical authorities and the Court would be slow to interfere with such decisions if they were rational and taken in good faith.

(b) Failure to devise programme for combating mother to child transmission of HIV

177.  In another case, Minister of Health v Treatment Action Campaign, the Court considered a challenge to the failure of the South African government to make available the anti-retroviral drug neviropine, which would prevent the transmission of HIV from mothers to babies.[169] The Court found this to be an unreasonable denial of rights to healthcare and to children's healthcare under sections 27 and 28 of the Constitution. It held that the government had failed to discharge its obligations under section 27(1) to devise and implement a comprehensive and co-ordinated programme to combat mother-to-child transmission of HIV.

178.  In reaching this conclusion, the Court took account of the reliable evidence available, both nationally and internationally, that neviropine was safe; the minimal cost, which was well within the State's resources, of making the drug widely available; and the fact that its prescription did not involve complex additional training for healthcare staff. The Court ordered the removal of restrictions on the availability of neviropine, and the taking of reasonable measures to extend testing and counselling facilities throughout the public health service, to facilitate and expedite the use of the drug.

(2) The right to shelter

179.  In Government of South Africa v Grootboom, the Constitutional Court found that the State's failure to provide emergency accommodation for homeless applicants was an unreasonable denial of their right to adequate housing in section 26 of the Bill of Rights.[170] The applicants had been evicted from an illegal squatter camp, and were living in a sports stadium in extremely difficult and unhealthy conditions. Whilst government programmes were in place to develop social housing in the medium and long-term, the Court found that the absence of any government programme to address the needs of those in immediate need of emergency shelter, within the available resources, was an unreasonable interference with the right to adequate housing. It held that:

…. to be reasonable, measures cannot leave out of account the degree and extent of the denial of the right they endeavour to realise. Those whose needs are the most urgent and whose ability to enjoy all rights therefore is most in peril, must not be ignored by the measures aimed at achieving realisation of the right.

180.  The Court ordered the Government to implement a programme, within available resources, to address the need for emergency housing as part of the right of access to adequate housing.

181.  These cases show that the South African Constitutional Court has steered a middle path between Models 1 and 2 above. It has expressly rejected an approach which would require the State to provide certain minimum standards of economic and social rights to all, because it recognizes that the courts are ill-equipped to adjudicate on issues where court orders could have multiple social and economic consequences for the community. But at the same time it has recognized that there is some, albeit restrained, role for the courts, namely to require the state to take measures to meet its constitutional obligations and to subject the reasonableness of those measures to evaluation. In our view, the South African courts have shown that the courts can be given a limited role in relation to social and economic rights without becoming the primary decision makers. Moreover, they have done so using concepts and techniques borrowed directly from UK administrative law.[171]

Objections to the inclusion of economic and social rights

182.  We now return to consider the most common objections to the inclusion of economic and social rights, in the light of the South African experience.

OBJECTION 1: THE RIGHTS THEMSELVES ARE TOO VAGUELY EXPRESSED AND WILL ONLY RAISE EXPECTATIONS AND ENCOURAGE TIME-CONSUMING AND EXPENSIVE LITIGATION AGAINST PUBLIC BODIES

183.  A right to health, for example, might be thought to encourage every individual to litigate if they are denied a particular form of treatment, or a particular operation, and the concern is that courts will be over-influenced by the personal tragedy of the individual patient and make decisions which upset carefully balanced priorities based on much wider considerations.

184.  The answer to this objection lies in the definition of the rights in the text of the Bill of Rights and in making clear in the drafting that the goal is one of progressive realisation and that while the courts have a role it is a limited one. The experience of the South African example in practice demonstrates that this objection can be answered with proper drafting.

OBJECTION 2: IT HANDS TOO MUCH POWER TO THE COURTS AND SO IS UNDEMOCRATIC

185.  This is probably the most frequently heard objection: that including social and economic rights in a Bill of Rights hands decisions about resources and priorities to the unelected and unaccountable judges and therefore limits considerably the scope for Government action.

186.  The courts already make decisions about social and economic rights in judicial review cases concerning the State's various statutory duties to provide education, social care or other welfare services.[172] An example is the situation in which a local authority is failing to provide to a child the provision to which their Statement of Special Educational Needs entitles them. Such cases are key to ensuring that state organs do what is legally required of them. To this extent our courts are already very familiar with having some role in the enforcement of such rights. It is therefore untrue to say that such rights are currently non-justiciable.

187.  This objection also ignores important recent developments in the constitutional protection of social and economic rights. The social and economic rights chapter of a Bill of Rights can be drafted in terms of a commitment to progressive realisation of a goal, within available resources, leaving it to detailed legislative measures to work out how to fulfil that goal and subject to budgetary constraints. If the rights are drafted in a way which squarely acknowledges the budgetary problem, this immediately constrains the scope for judges to behave undemocratically. Professor Fredman argued that it is possible to construct a role for the judiciary which is democratic and which in fact "energises the democratic process".[173]

OBJECTION 3: IT INVOLVES THE COURTS IN MAKING DECISIONS ABOUT RESOURCES AND PRIORITY SETTING THAT THEY ARE ILL-EQUIPPED TO TAKE

188.  A variant of the anti-democratic argument is that including social and economic rights in a Bill of Rights inevitably involves the courts making decisions about resources or choosing between competing priorities, decisions which they not only lack the democratic legitimacy to take but which they also lack the practical capacity to make well.

189.  It is true that, quite apart from the democratic objection, courts are not well equipped to perform this task, or to oversee the delivery of, say, education or adequate health care to those who need it. However, this does not mean that courts should have no role at all. As Baroness Hale said to us, "It does depend how you do it. It is not impossible to do it in a way which would not turn the judiciary into a taxing body."[174]

190.  The question therefore is whether there is some role for courts which stops short of allocating resources or reassessing priorities set by the democratic branches (Government and Parliament). If the text recognises the dependence of the rights on available resources the role of the courts in allocating resources or setting priorities is extremely limited. We agree with Baroness Hale that the question is "how the right would have to be defined by parliament to give courts the appropriate task for a court to do. … If parliament would like there to be some sort of bed rock entitlement, it would have to find a way of putting that in such a way as not to put the courts in a position of trying to do that which they cannot do."[175] Justice Kate O'Regan of the South African Constitutional Court similarly said that in her view it was all a question of drafting: the judicial role will to a very large extent be determined by the way in which the relevant part of the Bill of Rights is drafted.

191.  In our view the main objections to the inclusion of social and economic rights in a Bill of Rights are not, in the end, objections of principle, but matters which are capable of being addressed by careful drafting. Having given the matter further attention, as recommended by our predecessor Committee, we are persuaded that the case for including economic and social rights in a UK Bill of Rights is made out. We agree with Justice Albie Sachs who told us during our visit to South Africa that a country which does not include social and economic rights in some form in its Bill of Rights is a country which has "given up on aspiration". We consider that rights to health, education and housing are part of this country's defining commitments, and including them in a UK Bill of Rights is therefore appropriate, if it can be achieved in a way which overcomes the traditional objections to such inclusion.

A suggested approach: a duty of progressive realisation with a closely circumscribed judicial role

192.  We therefore put forward for consideration an approach which draws inspiration from the South African approach to economic and social rights, but which contains additional wording designed to ensure that the role of the courts in relation to social and economic rights is appropriately limited. The broad scheme of these provisions is to impose a duty on the Government to achieve the progressive realisation of the relevant rights, by legislative or other measures, within available resources, and to report to Parliament on the progress made; and to provide that the rights are not enforceable by individuals, but rather that the courts have a very closely circumscribed role in reviewing the measures taken by the Government.

Economic and social rights

Duty of progressive realisation

The Government must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of the rights in this schedule.

Duty to report to Parliament

The Government shall report annually to Parliament on the progress made during the previous year in realising the rights in this schedule.

Parliament to determine eligibility

Eligibility for the rights in this schedule on grounds of nationality, residence or other status shall be determined by Parliament in primary legislation, subject to the rights in schedule 1.

Justiciability

(1) The rights in this schedule are not enforceable by individuals against the Government or any public authority.

(2) The rights in this schedule are justiciable only to the extent that they are relevant to:

(a) the interpretation of other legislation, or

(b) the assessment of the reasonableness of the measures taken to achieve their progressive realisation.

Judicial review

When evaluating the reasonableness of the measures taken by the Government to achieve the progressive realisation of the rights in this schedule, the courts shall have regard to the following relevant considerations:

(a) the availability of resources

(b) the latitude inherent in a duty to achieve the realisation of the rights progressively

(c) the court has no jurisdiction to inquire into whether public money could be better spent

(d) the fact that a wide range of measures is possible to meet the Government's obligations

(e) the availability of an alternative means of realising the rights is not, of itself, an indication of unreasonableness

(f) whether the measures include emergency relief for those whose needs are urgent

(g) whether the measures are discriminatory

(h) whether the measures have been effectively made known to the public

(i) whether the measures are capable of facilitating the realisation of the relevant rights

(j) whether any deprivation of existing rights is demonstrably justifiable in accordance with s. 5 of this Bill (Limitation of Rights).[176]

Health care

Everyone has the right to have access to appropriate health care services, free at the point of use and within a reasonable time

No one may be refused appropriate emergency medical treatment

Education

Everyone of compulsory school age has the right to receive free, full-time education suitable to their needs.

Everyone has the right to have access to further education and to vocational and continuing training.

Housing

Everyone has the right to adequate accommodation appropriate to their needs.

Everyone is entitled to be secure in the occupancy of their home.

No one may be evicted from their home without an order of a court.

An adequate standard of living

Everyone is entitled to an adequate standard of living sufficient for that person and their dependents, including adequate food, water and clothing

Everyone has the right to social assistance, including care and support, in accordance with their needs.

No one shall be allowed to fall into destitution.

193.  One of the virtues of our suggested formulation is that it does not provide directly enforceable rights for individuals, but explicitly leaves it both to Parliament to take legislative measures and the Executive to take other measures to achieve the progressive realisation of the rights in question, subject only to "reasonableness review" by the courts to ensure that the commitments are not being ignored. In our view this goes a long way to meeting the concern that the inclusion of social and economic rights in a Bill of Rights amounts to handing over policy making and resource allocation to unaccountable judges. It gives effect to the constitutive commitment that everyone should be entitled, for example, to free healthcare within a reasonable time (on which we all agree), but leaves to the Government and Parliament what is essentially a policy question of how best to achieve that agreed aim.

194.  The text we suggest also seeks to make clear that the role of the courts is confined to a relatively light touch review of whether the Government is discharging its obligation of taking reasonable measures to achieve the progressive realisation of these rights. It does this by spelling out explicitly the considerations which are to be taken into account by courts when evaluating the reasonableness of the measures taken by the Government to achieve the progressive realisation of the right. These considerations are based on the sorts of considerations that have emerged from the South African case law concerning economic and social rights.[177] By making it explicit, for example, that courts have no jurisdiction to inquire into whether public money could be better spent, that available resources are relevant and that the nature of the duty leaves considerable latitude to the Government, this approach ensures that the role of the judiciary is confined to that which is appropriate in a parliamentary democracy. They are designed to ensure that an individual cannot complain to a court that he or she is being refused a particular treatment, but leaves open the possibility of a role for the courts in a case such as Grootboom, where the Government has failed to provide a programme providing emergency relief for those most in need.

195.  Our suggested approach also makes clear that Parliament is the appropriate forum in which to debate the adequacy of the Government's measures towards progressive realisation by requiring the Government to report annually to Parliament on the progress made in the previous year in realising the relevant rights and goals.[178] It also makes explicit that it is for Parliament to determine eligibility for these rights on grounds such as nationality or residence, subject to being compatible with other rights in the Bill of Rights, such as the right to equality.

196.  We recommend that any Bill of Rights should in the first place include only rights to health, education, housing, and an adequate standard of living, with a view to reviewing the experience after a period and considering whether to add other social and economic rights not currently included.

197.  We also agree with the view of our predecessor Committee that rights such as the right to adequate healthcare, to education and to protection against the worst extremes of poverty touch the substance of people's everyday lives, and would help to correct the popular misconception that human rights are a charter for criminals and terrorists.[179] In our view, the inclusion of such rights in a UK Bill of Rights would be far more effective in countering that misperception than the Government's attempt to link rights with responsibilities in the popular imagination.

198.  While we recognise that the inclusion of economic and social rights in a UK Bill of Rights would not be a panacea to all economic and social ills, it would in our view make a real practical difference in relation to a number of ongoing human rights problems to which we have drawn attention in our reports, for example:

  • the lack of security of tenure for older people in residential accommodation (the right to housing);
  • the use of destitution as an instrument of policy to deter asylum seekers (the right to an adequate standard of living);
  • the denial of free maternity services to failed asylum-seekers (the right to health); and
  • the adequacy of educational provision for detained children (the right to education).




150   See e.g. Liberty, Qs 36 and 39 and Ev 149; JUSTICE, Q 39 and Ev 142; and the British Institute of Human Rights, Q 39 and Ev 97. See also written evidence of Democratic Audit: Ev 123-4. Back

151   Northern Ireland Human Rights Commission, A Bill of Rights for Northern Ireland, Summary of Opinion Poll Findings, October 2001. Back

152   Twenty-first Report of Session 2003-04, The International Covenant on Economic, Social and Cultural Rights, HL Paper 183, HC 1188. Back

153   Ibid, paras 18-24. Back

154   Ibid, paras 52-55. Back

155   Ibid, para. 64. Back

156   Ibid, paras 59-70. Back

157   Ibid, para. 73. Back

158   Governance of Britain, para. 209. Back

159   Mackenzie-Stuart Lecture, 25 October 2007. Back

160   Oral evidence taken before the Liaison Committee on 13 December 2007, HC 192-i, Qs 39-40. Back

161   Ev 180. Back

162   Q 420. Back

163   The Constitution of Finland (1999), s. 19 (the right to social security). Back

164   Cass R. Sunstein, The Second Bill of Rights: FDR's Unfinished Revolution and Why We Need it More than Ever (Basic Books, 2004) at 215-6. Back

165   See Annex 4. Back

166   Q 214. Back

167   See ss. 26-29 of the South African Bill of Rights (Annex 4). Back

168   Soobramoney v Minister for Health, CCT32/97 (27 November 1997). Back

169   Minister of Health v Treatment Action Campaign, CCT8/02 (5 July 2002). Back

170   Government of South Africa v Grootboom, CCT38/00 (21 September 2000). Back

171   Twenty-first Report of Session 2003-04, The International Covenant on Economic, Social and Cultural Rights, HL Paper 183, HC 1188, paras. 6.6-6.7. Back

172   See Maurice Kay LJ, Q 206: "In three years, 2005, 2006 and 2007, in the Administrative Court there were 439 applications in the Administrative Court in respect of community care decisions; 559 education; 188 on mental health; and 110 on other public health." See also the written evidence of Ellie Palmer, Ev 157. Back

173   Q 3. Back

174   Q 207. Back

175   Q 208. Back

176   Section 5 of the Outline Bill contains a "general limitation clause", making clear that rights and freedoms can be limited in the wider public interest if the limitation is shown to be justified in a society based on the values in the preamble: see Annexes 1 and 2 below. Back

177   In particular the Soobramoney, Grootboom and Treatment Action Campaign cases referred to above. Back

178   See Outline Bill of Rights and Freedoms, Annex 1. Back

179   Twenty-first Report of Session 2003-04, The International Covenant on Economic, Social and Cultural Rights, HL Paper 183, HC 1188, para. 30. Back


 
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