A suggested approach: a duty
of progressive realisation with a closely circumscribed judicial
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
(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.
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).
Everyone has the right to have access to appropriate
health care services, free at the point of use and within a reasonable
No one may be refused appropriate emergency medical
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.
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.
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.
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
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.
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
- 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).