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ABSTRACT
This article examines the status of economic, social and cultural (ESC) rights in Scotland and identifies routes to remedy for violations of these rights. ESC rights relate to areas such as housing, education, employment, standard of living and health. Violations of ESC rights impact on the most vulnerable in society. The mapping of rights conducted by the Scottish Human Rights Commission before the publication of the Getting It Right report revealed a legal deficit in the protection of ESC rights in Scotland. The evidence identified that protection mechanisms for socio-economic rights in Scotland are either insufficient or non-existent. This article builds on the evidence by exploring the legal nature of ESC rights: how they are currently protected in Scotland and how they are protected in other jurisdictions. It then examines the concept of a ‘remedy’ in international human rights law and proposes models for the better protection of ESC rights for potential future implementation in Scotland. This includes an examination of the risks and benefits in constitutionalising or legislating for ESC rights. This will be of interest to an international audience in terms of identifying justiciability mechanisms and models of constitutionalisation for ESC rights in different constitutional contexts, including Scotland.
Acknowledgements
The authors would like to thank Dr Elaine Webster, Dr Jo Ferrie, the members of the Scottish Human Rights Commission Research Advisory Group and the anonymous reviewers for comments on earlier drafts. All errors remain the responsibility of the authors. The article draws on research that was partly funded by the Scottish Human Rights Commission in preparation for the report: Katie Boyle, ESC Rights in Scotland (Edinburgh, SHRC, 2015) http://www.scottishhumanrights.com/economic-social-cultural-rights/ and by research undertaken as part of the Economic and Social Research Council funded project, Human Rights in Transition: Impact for the UK in a Changing Europe (2016–2017).
Disclosure statement
No potential conflict of interest was reported by the authors.
Notes on contributors
Dr Katie Boyle is a senior lecturer in law at the University of Roehampton, London. She previously worked as a Research Fellow at the University of Edinburgh and prior to this qualified as a constitutional lawyer with the Government Legal Service for Scotland. In 2016–2017 she was Principal Investigator on the ESRC funded project ‘Human Rights in Transition: Impact for the UK in a Changing Europe’. Her research and teaching interests include human rights, particularly economic and social rights, transitional justice and constitutional law.
Dr Edel Hughes is a senior lecturer in law at Middlesex University, London. She holds a BCL from University College Cork, and LLM and PhD degrees from the National University of Ireland, Galway. Her research interests are in the area of international human rights law, with a particular focus on human rights in situations of conflict and with a regional interest in Turkey and the Middle East. She currently teaches human rights law and public law.
ORCID
Katie Boyle http://orcid.org/0000-0002-5078-8620
Notes
1 This being the case in international law. A blanket refusal to acknowledge the justiciable nature of ESC rights is considered arbitrary by the Committee on Economic, Social and Cultural Rights, United Nations Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 9: The Domestic Application of the Covenant, 3 December 1998, E/C.12/1998/24, para. 10.
2 Scottish Human Rights Commission, Getting It Right? Human Rights in Scotland, (Edinburgh, Scottish Human Rights Commission, 2012), 38. http://www.snaprights.info/wpcontent/uploads/2016/01/Getting-it-Right-An-Overview-of-Human-Rights-in-Scotland.pdf
3 Ibid., 36.
4 Ibid., 12.
5 Ibid., 96.
6 Ibid., 45.
7 On 18 May 2016 the Queen’s Speech included an indication that proposals for a British Bill of Rights would be brought forward within the parliamentary year; Cabinet Office and Prime Minister's Office, 10 Downing Street, Her Majesty’s most gracious speech to both Houses of Parliament at the State Opening of Parliament 2016, 16 May 2016. https://www.gov.uk/government/speeches/queens-speech-2016. This did not happen, however, and at the time of writing, with the Conservatives failing to secure a majority in the general election of 2017, it seems unlikely this will be prioritised. For detail on Theresa May’s comments re the Human Rights Act and the terrorist threat, see Rowena Mason and Vikram Dodd, ‘May: I’ll Rip Up Human Rights Laws That Impede New Terror Legislation’, The Guardian, 6 June 2017.
8 See Aileen McHarg, ‘Will Devolution Scupper Conservative Plans for a “British” Bill of Rights?’, 2 October 2014. http://ukhumanrightsblog.com/2014/10/02/will-devolution-scupper-conservative-plans-for-a-british-bill-of-rights/. See also Mark Elliot, ‘Could the Devolved Nations Block Repeal of the Human Rights Act and Enactment of a New British Bill of Rights’, 12 May 2015. http://publiclawforeveryone.com/2015/05/12/could-the-devolved-nations-block-repeal-of-the-human-rights-act-and-the-enactment-of-a-new-bill-of-rights/.
9 The obligations under the devolved legislation would continue to apply.
10 Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Ireland (with annexes), Belfast, 10 April 1998, Registration No. 1.36776 UNTS 2114, Treaty series No. 50 (2000) Cm4705.
11 R (Miller) v. Secretary of State for Exiting the European Union [2017] UKSC 5, para. 78.
12 Department for Exiting the European Union, Legislating for the United Kingdom’s withdrawal from the European Union, https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/604516/Great_repeal_bill_white_paper_accessible.pdf; para. 2.25 states:
The Government’s intention is that the removal of the Charter from UK law will not affect the substantive rights that individuals already benefit from in the UK. Many of these underlying rights exist elsewhere in the body of EU law which we will be converting into UK law’.
13 The Scottish Government, ‘The Scottish Independence Bill: A Consultation on an Interim Constitution for Scotland’, 2014, https://consult.scotland.gov.uk/elections-and-constitutional-development-division/scottish-independence-bill/supporting_documents/00452762.pdf.
14 For a full discussion on this see Katie Boyle and Stephen Tierney, ‘Human Rights in Transition, the Proposed Interim Constitution for Scotland’, 2014, http://ukconstitutionallaw.org/2014/08/01/katie-boyle-and-stephen-tierney-human-rights-in-transition-the-proposed-interim-constitution-for-scotland/.
15 Scottish Government, Scottish Independence Bill: A consultation on an interim constitution for Scotland, 16 June 2014. http://www.gov.scot/Resource/0045/00452762.pd.
16 Scotland Act 2016,section 38.
17 The International Bill of Rights comprises the Universal Declaration of Human Rights 1948, GA Res 217 A (III) of 10 December 1948, the International Covenant on Civil and Political Rights GA Res 2200A (XXI) of 16 December 1966 and the International Covenant on Economic, Social and Cultural Rights UN General Assembly, 16 December 1966, United Nations, Treaty Series, vol. 993, GA Res. 2200A (XXI), 3 January 1976.
18 UN GA Res. 543 VI, 5 February 1952. The separation of the covenants into separate treaties has caused confusion regarding the status of ESC rights. The rights were separated into separate covenants principally to facilitate different means of implementation to allow less developed nations to ‘catch up’ on ESC fulfilment. This separation has since been used to undermine the legal status of ESC rights – this was not the original intention of the parties. As Craven submits,
The fact of separation has since been used as evidence of the inherent opposition of the two categories of rights. In particular, it has led to a perpetuation of excessively monolithic views as to the nature, history, and philosophical conception of each group of rights and has contributed to the idea that economic, social and cultural rights are in reality a distinct and separate group of human rights. Of greater concern, however, is that despite the clear intention not to imply any notion of relative value by the act of separating the Covenants, it has nevertheless reinforced claims as to the hierarchical ascendance of civil and political rights. Although within the UN there is now almost universal acceptance of the theoretical ‘indivisible and interdependent’ nature of the two sets of rights, the reality in practice is that economic, social, and cultural rights remain largely ignored’.
19 ESC rights protected in international law fall under treaties that the state has ratified, such as the International Covenant on Economic, Social and Cultural Rights 1966, UN General Assembly resolution 2200A (XXI) of 16 December 1966, United Nations, Treaty Series, vol. 993, 3; the European Social Charter (Revised) 1996, Council of Europe, ETS 163; the Convention on the Rights of the Child 1989, UN General Assembly, resolution 44/25 of 20 November 1989, United Nations, Treaty Series, vol. 1577, p. 3; the Convention on the Elimination of Discrimination Against Women 1979, UN General Assembly resolution 34/180 of 18 December 1979, United Nations, Treaty Series, vol. 1249, p. 13; the Convention on the Elimination of Racial Discrimination 1965, United Nations General Assembly resolution 2106 (XX) of 21 December 1965 United Nations, Treaty Series, vol. 660, p. 195; and the Convention on the Rights of Persons with Disabilities 2006, United Nations General Assembly resolution A/RES/61/106 of 24 January 2007, 76th plenary meeting; issued in GAOR, 61st sess., Suppl. no. 49. ‘Annex: Convention on the Rights of Persons with Disabilities’, 2–29. Economic, social and cultural rights are sometimes referred to as simply social and economic rights, or socio-economic rights.
20 For a discussion on the history of the principle of indivisibility see Daniel Whelan, The Indivisibility of Human Rights, A History (Philadelphia: University of Pennsylvania Press, 2010).
21 E/CN.4/529 Memorandum of Secretary General, Commission on Human Rights, Seventh Session, Agenda item 3, 29 March 1951.
22 See Craven (note 18).
23 For discussions on the misconceptions surrounding the dichotomy of human rights based on a positive versus negative antinomy see Ida Koch, ‘Dichotomies, Trichotomies or Waves of Duties’, Human Rights Law Review 5 (2005): 1; and for a discussion of how the dichotomy and method of implementation resulted in a misconception surrounding the status of ESC rights see Mónica Feria Tinta, ‘Justiciability of Economic, Social, and Cultural Rights in the Inter-American System of Protection of Human Rights: Beyond Traditional Paradigms and Notions’, Human Rights Quarterly 29 (2007): 431. Tinta argues that the dichotomy was based on a ‘legal fiction’ (at 432).
24 This is clear, for example, in Article 2 of ICCPR which calls for justiciable remedies as part of the implementation mechanisms for civil and political rights.
25 Article 2(1) ICESCR. See also Tinta, (note 23), 433. This assertion is supported elsewhere in the literature – see for example Varun Gauri and Daniel Brinks, Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World (Cambridge: Cambridge University Press, 2010) and Lanse Minkler, ed., The State of Economic and Social Human Rights: A Global Overview (Cambridge: Cambridge University Press, 2013).
26 A ‘justiciable remedy’ is a remedy granted by a court. For the purposes of this paper, ‘justiciability’ refers to the adjudication of a right by a court.
27 UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 9: The Domestic Application of the Covenant, 3 December 1998, E/C.12/1998/24, para. 10.
28 Ibid.
29 Ibid.
30 Consideration of Reports Submitted by States Parties in Accordance with Articles 16 and 17 of the Covenant: Concluding Observations of the Committee on Economic, Social and Cultural Rights: United Kingdom of Great Britain and Northern Ireland, the Crown Dependencies and the Overseas Dependent Territories, 12 June 2009, E/C.12/GBR/CO/5, para. 13.
31 There are various ways of viewing the different degrees of protection for ESC rights from negative (immediately enforceable) versus positive (requiring action), to procedural versus substantive; Nolan et al. identify degrees of enforcement through a multitude of varying degrees – from respect, to protect, to fulfil, consideration of progressive realisation and finally non-retrogressive measures. See Aoife Nolan et al., The Justiciability of Social and Economic Rights: An Updated Appraisal (Belfast: Human Rights Consortium, March 2007), http://socialrightscura.ca/documents/publications/BP-justiciability-belfast.pdf. Courtis has expanded this theory to degrees of standard, starting with negative, to procedural, through equality and non-discrimination, minimum core arguments, progressive realisation, and prohibiting retrogression. Christian Courtis, ‘Standards to Make ESC Rights Justiciable: A Summary Explanation’, Erasmus Law Review 2 (2009): 379. John Ruggie developed a respect, protect, fulfil, remedy analogy; see Human Rights Council, John Ruggie, ‘Respect, Protect and Remedy: A Framework for Business and Human Rights’ 7 April 2008, A/HRC/8/5. Each of the degrees of enforcement moves from partial protection to full protection. This axis of protection is equally applicable to civil and political rights.
32 See Tinta (note 23); see also General Comment No. 9; and Anashri Pillay, ‘Economic and Social Rights Adjudication: Developing Principles of Judicial Restraint in South Africa and the United Kingdom’, Public Law (2013): 599. Pillay contends that ‘the weight of academic, judicial and political opinion has moved away from justiciability to a consideration of the most effective judicial approaches to [ESC] rights’ (at 599).
33 Stephen Tierney and Katie Boyle, ‘Yes or No Scotland’s Referendum Carries Constitutional Implications’, Democratic Audit, 8 November 2013, http://www.democraticaudit.com/?p=1734.
34 For a full rebuttal of the arguments against ESC justiciability relating to institutional capacity, competence and the appropriate separation of powers in relation to the allocation of limited resources see Nolan et al. (note 31). For a discussion on the role of judges in determining human rights see Colin Harvey, ‘Talking About Human Rights’, European Human Rights Law Review (2004): 500; see also Jeff King, Judging Social Rights (Cambridge: Cambridge University Press, 2012) for a critical appraisal of the theoretical underpinnings of ESC constitutionalisation within legitimate parameters.
35 As noted earlier, a blanket refusal to acknowledge the justiciable nature of ESC rights is considered arbitrary by the Committee on Economic, Social and Cultural Rights. See note 1.
36 Universal Declaration of Human Rights, UN General Assembly Resolution 217(A)III, 10 December 1948.
37 Dinah Shelton, Remedies in International Human Rights Law, 2nd ed. (Oxford: Oxford University Press, 2005), 7 (footnotes omitted).
38 Ibid., 10–15.
39 GA Res. 60/147, UN Doc. A/RES/60/147 (Dec. 16, 2005).
40 Ibid., para. 19–23.
41 Shelton (note 37), 8.
42 Guide to Good Practice in Respect of Domestic Remedies, adopted by the Committee of Ministers on 18 September 2013, at 7 and 12. https://edoc.coe.int/en/european-convention-on-human-rights/6608-guide-to-good-practice-in-respect-of-domestic-remedies.html.
43 McFarlane v. Ireland, App. No. 31333/06, 10 September 2010, para. 114; Riccardi Pizzati v. Italy, App. No. 62361/00, Grand Chamber judgment of 29 March 2006, para. 38.
44 El-Masri v. ‘the former Yugoslav Republic of Macedonia’, App. No. 39630/09, 13 December 2012, para. 255; Kudła v. Poland, App. No. 30210/96, judgment of 26 October 2000, para. 152.
45 ‘Guide to Good Practice’ (note 42).
46 Ibid., per Budayeva and Others v. Russia, App. No. 15339/02 etc., judgment of 20 March 2008, para. 190–91.
47 The notion of subsidiarity has been highlighted in the Interlaken, Izmir, and Brighton Declarations.
48 Nolan et al. (note 31), 15, para. 2.2.
49 Mónica Feria Tinta (note 23), 432.
50 Tinta (note 23), 432.
51 Rosalyn Higgins, Problems and Process: International Law and How We Use It (Oxford: Oxford University Press, 1994). See also Tinta (note 23), 432.
52 Tinta (note 23), 432.
53 See Martin Scheinin, ‘Justiciability and Indivisibility of Human Rights’, in The Road to a Remedy: Current Issues in the Litigation of Economic, Social and Cultural Rights, ed. John Squires, Malcolm Langford, and Bret Thiele (Kensington, NSW: University of New South Wales Press, 2005), 17–26, at 17. Scheinin notes that
[t]he old counter-argument related to the alleged ‘different nature’ of these rights, as compared to more traditional human rights generally described as civil and political rights, is perhaps not yet dead and buried but nevertheless appears today as a quiet echo from the past. The shift [is] towards a general recognition of the principle of the justiciability of ESC rights – which is something far less than asserting that ESC rights are generally justiciable … .
54 Kent Roach, ‘Crafting Remedies for Violations of Economic, Social and Cultural Rights’ in Squires et al. (note 53) 111–26, at 111.
55 ‘International Covenant on Civil and Political Rights, Scottish Government Response to List of Issues’, March 2016, http://www.gov.scot/Resource/0049/00497944.pdf.
56 BVerfGE 125, 175 (Hartz IV), the court held that the ‘right to the enjoyment of a minimum subsistence level’ is not simply another facet of the right to human dignity, but a stand-alone right of autonomous value, at para. 133. See Mirja A. Trilsch, ‘Constitutional Protection of Social Rights Through The Backdoor: What Does The “Social State” Principle, the Right to Human Dignity and the Right to Equality Have to Offer?’, http://www.jus.uio.no/english/research/news-and-events/events/conferences/2014/wccl-cmdc/wccl/papers/ws4/w4-trilsch.pdf. See also BVerfGE 132 where in 2012 the court went beyond the procedural protection in the previous case and recognised a substantive element to an adequate level of subsistence for asylum seekers relying on Article 9 ICESCR.
57 Judgment on behalf of the Republic of Latvia in Riga, on 21 December 2009, in case No. 2009-43-01.
58 Citing Article 109 of the Latvian Constitution and Article 9 of the International Covenant on Economic, Social and Cultural Rights, Latvia’s Constitutional Court indeed found the law to be a violation of an individual’s right to an adequate pension as a fundamental aspect of the right to social security.
59 Airey v. Ireland 32 Eur Ct HR Ser A (1979): [1979] 2 E.H.R.R. 305, para. 26.
60 See for example the discussions in the admissibility decision of Watts v. UK, ECtHR, 4 May 2010, Application no. 53586/09 – the court indicated that inherent within the right to life, and the right to respect of private and family life, are implicit positive obligations on the state to ensure that the related ESC rights are protected.
61 Connors v. United Kingdom, European Court of Human Rights, Application no. 66746/01, 27 May 2004, para. 95. The court noted that, ‘the eviction of the applicant and his family from the local authority site was not attended by the requisite procedural safeguards, namely the requirement to establish proper justification for the serious interference with his rights and consequently cannot be regarded as justified by a “pressing social need” or proportionate to the legitimate aim being pursued. There has, accordingly, been a violation of Article 8 of the Convention’’.
62 Yordanova and Others v. Bulgaria, Application no. 25446/06, 12 April 2012.
63 Ibid.
64 The ECtHR referenced ‘relevant international material’ including the European Social Charter; a decision of the European Committee of Social Rights (European Roma Rights Centre v. Bulgaria Complaint No. 31/2005, 25 May 2005); the UN International Covenant on Economic, Social and Cultural Rights; and the UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 7: The right to adequate housing (Art. 11.1): forced evictions, 20 May 1997, E/1998/22.
65 Yordanova (note 62), para. 83. For a discussion on the case and the court’s approach to interpretation using international ESC standards see Adélaïde Remiche, ‘Yordanova and Others v. Bulgaria: The Influence of the Social Right to Adequate Housing on the Interpretation of the Civil Right to Respect for One’s Home’, Human Rights Law Review 12 (2012): 787.
66 The rights of the child to be considered of paramount importance in the consideration of immigration matters with reference to UNCRC, ZH Tanzania v. SSHD [2011] UKSC.
67 Limbuela 2005 UKHL 66.
68 Domestic examples include Harjula v. London Borough Council supra Harjula v. London Borough Council [2011] EWHC 151 (QB); on the Application of W,M,G & H v. Birmingham City Council, [2011] EWHC 1147 Admin. International examples include Eldridge v. British Columbia (Attorney General) [1997] 3 S.C.R.; Awas Tingi v. Nicaragua Inter-Am Ct HR, August 31 2001; Shelter Corporation v. Ontario Human Rights Commission (2001) 143 OAC 54; also Klickovic Pasalic and Karanovic v. Bosnia and Herzegovina, the Federation of Bosnia and Herzegovina and the Republika Sprska, CH/02/8923, CH/02/8924, CH/02/9364, 10 January 2003; Khosa v. Minister of Social Development, 2004 (6) SA 505 (CC).
69 The Explanatory Notes to the Equality Act 2010 explain how this might work in practice:
A local council fails to give due regard to the requirements of the public sector equality duty when deciding to stop funding a local women’s refuge. An individual would not be able to sue the local council as a result and claim compensation. She would need to consider whether to pursue judicial review proceedings.
70 The court was narrowly split 3:2. Lord Kerr, Lord Carnwath and Lady Hale all agreed the Regulations breached the UNCRC; however, Lord Carnwath agreed with Lords Reed and Hughes that there had been no breach of Article 14 read with Article 1 Protocol 1 ECHR, R(on the application of SG and others (previously JS and others)) v. Secretary of State for Work and Pensions [2015] UKSC 16.
71 For a full discussion on different models of ESC constitutionalisation see Katie Boyle, ‘Economic, Social and Cultural Rights in Ireland: Models of Constitutionalisation’, Irish Community Development Law Journal 1 (2014): 33. https://www.tcd.ie/Education/assets/documents/NCLMC-E-Journal-Issue-1-Volume-3%20%28June%202014%29%20FINAL.pdf. In a search conducted of 189 constitutions on www.constitute.org, 60 refer to ‘economic, social and cultural’ protection. Some constitutions (such as those of Ireland, India and Sweden) regard ESC rights as non-justiciable principles. In some cases the judiciary have developed justiciable rights through a wide interpretative analysis (such as in Canada through equality provisions, or in India through dynamic interpretation of CP rights). Other constitutions have directly enforceable ESC rights protection (such as in South Africa and in Finland). More recently some countries, including Ireland and New Zealand, are in the process of considering affording ESC rights justiciable constitutional status. For a discussion on other legal mechanisms that can lead to ESC justiciability see Katie Boyle, ‘Economic, Social and Cultural Rights in Northern Ireland: Legitimate and Viable Justiciability Mechanisms for a Conflicted Democracy’, in Justiciability of Human Rights in Domestic Jurisdictions, ed. Alice Divers and Jacinta Miller (Cham, Switzerland: Springer International, 2015), 173–175.
72 The Constitution of Argentina directly implements the ICESCR in addition to other constitutional rights, which can be denounced by the executive if two-thirds of each chamber of the parliament approve (creating a rights-affirmative framework with the option for parliamentary derogation); Article 75 of the Constitution of Argentina 1853 (reinst. 1938, rev. 1994).
73 The latter is similar to the protection afforded to vulnerable and marginalised groups in the UK under the Equality Act 2010 that imposes a far-reaching duty to have due regard to promoting equality of opportunity between different groups when allocating resources (s149 Equality Act 2010). This is a procedural duty to have ‘due regard’ to positive outcomes. If public bodies do not comply, the judiciary can quash the decision. See for example Harjula v. London Borough Council supra Harjula v. London Borough Council [2011] EWHC 151 (QB); on the Application of W,M,G & H v. Birmingham City Council, [2011] EWHC 1147 Admin.
74 See for example Occupiers of 51 Olivia Road, Berea Township and 197 Main Street, Johannesburg v. City of Johannesburg and Others CCT 24/07 Medium Neutral Citation [2008] ZACC 1 – meaningful engagement and participation is required by the constitution before an eviction order can be served (no forced eviction without notice).
75 i.e. the rights are absolute and interference in any form cannot be justified.
76 Such as the right to be protected from maltreatment, neglect, abuse or degradation; and the right to be protected from exploitative labour practices (section 28(1)(d) and (e)). See section 37(5)(c) for a table listing non-derogable rights in the South African Constitution. For a discussion on the rights of the child (particularly girls’ ESC rights) in the South African Constitution see Ann Skelton, ‘Girls’ Socio-Economic Rights in South Africa’, South African Journal of Human Rights 26 (2010): 141.
77 For example, section 26 of the South African Constitution provides for the right to have access to adequate housing, and section 27 provides for the right to have access to healthcare, food, water and social security. The constitution further provides that the state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights (sections 26(2) and 27(2), respectively).
78 The South African judiciary review compliance with the progressive realisation of sections 26 and 27 based on a reasonableness test as developed in Government of the Republic of South Africa v. Grootboom 2001 (1) SA 46 (CC) and Minister of Health v. Treatment Action Campaign (no 2) (TAC), 2002 (5) SA 721 (CC).
79 Scrutiny before enactment.
80 Review after enactment.
81 Kaarlo Tuori, ‘Judicial Constitutional Review as a Last Resort’, in The Legal Protection of Human Rights: Sceptical Essays, ed. Tom Campbell, K.D. Ewing, and Adam Tomkins (Oxford: Oxford University Press, 2011), 365–92.
82 Ibid.
83 Ibid.
84 Thomas Bull, ‘Preview the Swedish Way – The Law Council’, in Campbell et al. (note 81), 393–420, 393.
85 For a discussion on the role of the Joint Committee on Human Rights in the UK Parliament see Murray Hunt, ‘Enhancing Parliament’s Role in Relation to Economic and Social Rights’, European Human Rights Law Review 3 (2010): 242. See also David Feldman, ‘Can and Should Parliament Protect Human Rights?’, European Public Law 10 (2004): 635, at 642. This is also reflected in the Cabinet Office’s Guide to Making Legislation (May 2009) which advises departments that: ‘The JCHR may also ask about compliance with any international human rights instrument which the United Kingdom has ratified; it does not regard itself as limited to the ECHR’, at para. 12.32.
86 Commentators have gone so far as to describe the work of the Committee as a ‘thorn in the side of the legislature’. See Colin Murray’s discussion on this in ‘The UK Parliament’s Joint Committee on Human Rights: Life from Beyond the (Political) Grave?’, Human Rights in Ireland, 5 July 2010, http://humanrights.ie/civil-liberties/the-uk-parliaments-jointcommittee-on-human-rights-life-from-beyond-the-political-grave/.
87 House of Lords, House of Commons, Joint Committee on Human Rights Report, Legislative Scrutiny of Welfare Reform Bill, 12 December 2011, HL233, HC 1704, http://www.publications.parliament.uk/pa/jt201012/jtselect/jtrights/233/233.pdf.
88 See dissenting opinions the benefit cap case in R(on the application of SG and others (previously JS and others)) v. Secretary of State for Work and Pensions [2015] UKSC 16.
89 For example, see the Yordonova or Watts cases (notes 62 and 60, respectively).
90 Williams argues that the disparate ECHR framework which fails to reflect the coherence of indivisible rights can be ameliorated by the judiciary but never fully resolved: Andrew Williams, ‘The European Convention on Human Rights, the EU and the UK: Confronting a Heresy’, European Journal of International Law 24 (2013): 1157, 1172.
91 This is the basis upon which the UK system currently operates and is cited as the most appropriate way of securing ESC rights by successive UK governments. For example, see the UK’s submission on ICESCR, UN Committee on Economic, Social and Cultural Rights (CESCR), Implementation of the International Covenant on Economic, Social and Cultural Rights : 5th periodic reports submitted by states parties under articles 16 and 17 of the Covenant: United Kingdom of Great Britain and Northern Ireland, 31 January 2008, E/C.12/GBR/5, para.73–74.
92 European Social Charter, European Committee of Social Rights, Conclusions XIX-3 (2010), (UNITED KINGDOM), Articles 2, 4, 5 and 6 of the Charter, December 2010, https://www.coe.int/t/dghl/monitoring/socialcharter/Conclusions/State/UKXIX3_en.pdf.
93 There is a collective complaint system but the UK has not signed up to it. The Additional Protocol providing for a system of Collective Complaints to the European Social Committee entered into force in 1998. Additional Protocol to the European Social Charter or the Additional Protocol Providing for a System of Collective Complaints, Council of Europe, 9 November 1995, ETS 158.
94 The EU Charter of Fundamental Rights is based on an indivisible model (i.e. recognition that CP, ESC rights are indivisible); however, there are uncertainties associated with the rights versus principle distinction in the Charter and the attempt by the UK government to limit the justiciability of ESC rights under the operation of Protocol 30. Nonetheless, the jurisprudence on the charter has extended the protection of ESC rights under an indivisible interpretation of CP rights. See, for example, the following cases: J. Mc. B. v. L. E., Case C-400/10 5 October 2010 (father’s rights of custody relating to family rights [Art 7] and the best interests of the child [Art 24.2]); M. M. v. Minister for Justice, Equality and Law Reform, C-277/11, 22 November 2012 (greater procedural protection for those seeking asylum [Art 41 Right to good administration]); Joined Cases C-411/10 and C-493/10 N.S. and M.E. ibid (held: Article 3(2) of Council Regulation (EC) No. 343/2003 of 18 February 2003 falls within the scope of EU law and indivisible approach to those seeking asylum in EU, removal to another member state and the right to freedom from inhuman and degrading treatment [Art 3 ECHR and Art 4 EU Charter]),
Article 4 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that the Member States, including the national courts, may not transfer an asylum seeker to the ‘Member State responsible’ within the meaning of Regulation No. 343/2003 where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Member State amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of that provision. (At para. 106)
95 Protocol (No. 30) on the Application of the Charter of the Fundamental Rights of the European Union to Poland and to the United Kingdom annexed to the TEU and the TFEU.
96 Joined Cases C-411/10 and C-493/10 N.S. and M.E., judgment of 21 December 2011:
Article 1(1) of Protocol (No. 30) explains Article 51 of the Charter with regard to the scope thereof and does not intend to exempt the Republic of Poland or the United Kingdom from the obligation to comply with the provisions of the Charter or to prevent a court of one of those Member States from ensuring compliance with those provisions. (at para. 120)
97 At the time of writing the implications of the ‘Brexit’ decision are still unclear. For an interesting (and pessimistic) overview of what the decision means for human rights protection see Stephen Hopgood, ‘Brexit and Human Rights: Winter is Coming’, Open Democracy, 29 June 2016.
98 Para. 7(2)(a) of Schedule 5 Scotland Act 1998.
99 ‘Economic and Social Rights in Scotland: Lessons from the Past; Options for the Future’, A Lecture for International Human Rights Day 2014 by W. James Wolffe QC, Dean of the Faculty of Advocates, Edinburgh School of Law, December 2014, http://www.scottishhumanrights.com/media/1469/wolffe2014lecture.pdf.
100 Ibid.
101 The Scotland Act 1998 is the subject of reservation under the terms of the Act.
102 This is within the legislative competence of the Scottish Parliament under Paragraph 7(2)(a) of the Scotland Act 1998 with a view to implementing international obligations. Arguably, there is a potential challenge to the Scottish Parliament’s devolved competence on implementing ICESCR directly insofar as it relates to the reserved matter of Equality of Opportunity (Reservation L2 Schedule 5). However, where such disputes arise the courts have regard to the nature and purpose of the legislation to determine whether the Act is outwith competence, meaning a presumption in favour of legislation that would seek to implement international obligations.
103 Ibid.
104 Reserved under Schedule 4 of the Scotland Act 1998.
105 Again, this would fall within the competence of the Scottish Parliament under Paragraph 7(2)(a).
106 Children and Young Persons (Wales) Measure 2011.
107 It is worth considering the ongoing indigenous Bill of Rights movement in Northern Ireland that recommended the inclusion of ESC rights. Political impasse in Northern Ireland has stalled the indigenous Bill of Rights process. The UN Committee on Economic, Social and Cultural Rights has commended the ‘draft Bill of Rights for Northern Ireland, which includes economic, social and cultural rights which are justiciable, and calls for its enactment without delay’, Consideration of Reports Submitted by States Parties in Accordance with Articles 16 and 17 of the Covenant: Concluding Observations of the Committee on Economic, Social and Cultural Rights: United Kingdom of Great Britain and Northern Ireland, the Crown Dependencies and the Overseas Dependent Territories, 12 June 2009, E/C.12/GBR/CO/5, para. 10.
108 Examples of self-regulatory constitutional legislation already exist in the form of constitutional statutes such as defined by Lord Justice Laws in Thoburn v. Sunderland City Council [2002] QB 151. For example, section 2 of the European Communities Act 1972 gives the courts power to strike down legislation incompatible with EU law – Factortame (No. 2) [1991] 1 AC 603, 658–9.
109 Amelia Gentleman, ‘Theresa May Scraps Legal Requirement to Reduce Inequality’, The Guardian, 17 November 2010, http://www.guardian.co.uk/society/2010/nov/17/theresa-may-scraps-legal-requirement-inequality.
110 Explanatory Notes to the Equality Act 2010, http://www.legislation.gov.uk/ukpga/2010/15/notes/division/3/1/1. The explanatory notes also offer example scenarios of how the application of this provision was envisaged:
The Department of Health decides to improve the provision of primary care services. They find evidence that people suffering socio-economic disadvantage are less likely to access such services during working hours, due to their conditions of employment. The Department therefore advises that such services should be available at other times of the day’.
111 Section 1 of the Act has never been commenced in England or Wales and Northern Ireland operates under a separate equality framework to the rest of the UK (see section 75 of the Northern Ireland Act 1998 – which does not cover socio-economic inequality as a protected characteristic).
112 For an excellent discussion on the different ways of addressing socio-economic disadvantage through equality legislation see Shane Kilcommins et al., ‘Extending the Scope of Employment Legislation: Comparative Perspectives on the Prohibited Grounds of Discrimination’, Report Commissioned by the Department of Justice, Equality and Reform (Government of Ireland, 2004), http://www.inis.gov.ie/en/JELR/Discrimination.pdf/Files/Discrimination.pdf. Kilcommins et al. contribute significantly to a greater understanding of the indicators that can be assessed in establishing socio-economic status/disadvantage. They propose a definition that takes into account level of education, level of literacy, homelessness, geographical location, source of income, level of income, type of work or profession, and employment status.
113 Rosalyn Higgins, Problems and Process: International Law and How We Use It (Oxford: Oxford University Press, 1994).
114 See, for example, Richard Edwards, ‘Judicial Deference under the Human Rights Act’, Modern Law Review 65 (2002): 859.
115 See, for example, the judicial recognition of an immediately enforceable right to highest attainable health in Brazil that resulted in more inequity in health provision, favouring the wealthy and further marginalising the poor: Octavio Luiz Motto Ferraz, ‘The Right to Health in the Courts of Brazil: Worsening Health Inequities?’, Health and Human Rights: An International Journal 11 (2009): 33.
116 Wolffe (note 99).
117 See King (note 34) for discussions on the different theoretical approaches that can legitimise judicial determination of ESC rights such as incrementalism, deference and prioritisation.
118 For some interesting proposals on the use of structural interdicts in South Africa, see Christopher Mbazira, You Are the ‘Weakest Link’ in Realising Socio-Economic Rights: Goodbye, Strategies for Effective Implementation of Court Orders in South Africa, Socio-Economic Rights Project, Community Law Centre Research Series 3, University of the Western Cape (2008).
119 As currently operates under section 29 of the Scotland Act in relation to ECHR rights.
120 The Charter of Fundamental Rights and Freedoms forms part of the Constitution Act 1982 granting the Charter constitutional status and part of the primacy of constitutional law. The primacy of the Constitution is guaranteed in section 52 of the Constitution Act 1982. ESC rights have been recognised under the rubric of equality under the Charter – see Eldridge v. British Colombia (Attorney General) [1997] 2 SCR 624.
121 Under section 33 of the Constitution Act.
122 See, for example, the delayed remedy employed in Canada (Attorney General) v. Bedford 2013 SCC 72 in which the Supreme Court suspended the declaration of invalidity under section 52(1) of Canada’s Constitution Act 1982 for one year to allow Parliament sufficient time to avoid an eventual regulatory void. This case concerned the legality of prohibitions on sex workers that the court found violated the safety and security of prostitutes – the difficulty with the delayed remedy route is that it places those at risk to remain in a state of violation during the interim period in which the declaration of invalidity is suspended. For a discussion on this case and the constitutional impact of delayed remedies see Robert Leckey, ‘Suspended Declarations of Invalidity and the Rule of Law’ UK Const. L. Blog (12 March 2014) (http://ukconstitutionallaw.org/).
123 Rule 6.2 – committees can consider international treaties in relation to matters that fall within the committee’s competence (matters within its remit).
124 See for example the use of budgetary analysis identified in Aoife Nolan, Rory O’Connell, and Colin Harvey, eds., Human Rights and Public Finance: Budgets and the Promotion of Economic and Social Rights (Oxford: Hart Publishing, 2013).
125 For example, this approach was employed whilst awaiting determination in the case of Eba v. Advocate General for Scotland 2011 SLT 768.
126 Article 6 ICESCR.
127 Article 9 ICESCR.
128 Article 11 ICESCR.
129 Article 12 ICESCR.
130 Article 10 ICESCR.
131 See King (note 34), 157.
132 Article 2 Protocol 1 ECHR.
133 For an in-depth discussion on this, see The Scottish Human Rights Commission, Consultation Submission – Future of Land Reform in Scotland, February 2015, http://www.scottishhumanrights.com/news/latestnews/landreformsubmissionfeb15.