Enforceable rights or progressive policy goals?

The supranational public law dimension of human rights has for many years made it appeared quite unrelated to the practice of a private lawyer. This has, however, changed with the Human Rights Act 1998 and the Scotland Act 1998, acting as a small but significant shift in conceptions of what it is that a private lawyer does. Yet in everyday practice the European Court of Human Rights (“Strasbourg court”) still seems quite distant, with only a handful of recent human rights decisions (most notably, Salvesen v Riddell [2012] UKSC 22), reaching the updates columns.

The European Convention on Human Rights ("ECHR") and several of its Protocols are found in sched 1 to the Human Rights Act 1998. The Scottish Parliament, public bodies (which includes the judiciary), and individuals or groups carrying out functions of a public nature, are required to undertake their functions in a manner that is compatible with the ECHR. The institutional writers and many leading figures of the Scottish enlightenment wrote of individual rights; the ancestry of the current system is even observable in the Scots Claim of Right Act 1689. It was, however, only in the aftermath of the Second World War that civil and political rights (that is rights of the individual against state interference), were carved into the international order.

While the subdivision of human rights is far from straightforward, the onset of the Cold War resulted in an ideological division between Western conceptions of individual negative rights against the state and primarily Eastern Bloc conceptions of positive socio-economic rights which place obligations on the state. These “second generation” rights included the right to an adequate standard of living, the right to health, the right to education and the right to participate in cultural life. While the effective enjoyment of these rights remains subjective and nation specific, socio-economic rights came to be embodied in the International Covenant of Economic, Social and Cultural Rights 1976 (“the Covenant”).

A note of caution is necessary, as this ideological baggage of the Cold War continues to cloud Western conceptions of socio-economic rights. Indeed, socio-economic rights have been protected in Scotland through the welfare state, employment law and the rule of law. Further, in many instances the so called “negative” rights of the ECHR have protected what most would consider socio-economic rights, with several provisions imposing positive obligations on states.

The effectiveness of these existing provisions to protect individuals' socio-economic rights adequately is subject to considerable dispute. Whether such positive obligations on the state should be considered “rights” in the first place is far from settled. Several cases have been brought, with varying degrees of success, in response to austerity. Whatever one's underlying political ideologies, most can agree that if a report card was to be written on the Scottish Government’s protection of socio-economic rights, it would read “could do better”.

While the UK was one of the first signatories to the Covenant, it has never been directly incorporated into domestic law. General orthodoxy therefore tells us that neither the general principles nor the substantive provisions can be enforced by domestic courts. The inclusion of socio-economic rights was considered after the passing of the Human Rights Act 1998, and more recently by the Commission on a Bill of Rights. In both instances socio-economic rights were dismissed, as it was felt that the principles were non-justiciable. In response to the possible incorporation of socio-economic rights, several prominent newspapers ran a rather misleading campaign against a potential “scroungers' charter”.

A new UK-wide Bill of Rights looks very doubtful, and whether such a Bill would include socio-economic rights is probably even less likely. But while the Scottish Government cannot enter into negotiations for new treaties, it does have the devolved competencies to incorporate existing obligations. Therefore, the Scottish Government can incorporate the Covenant into domestic law, with the caveat that this must be done in a manner that complies with existing obligations. For example, if circumstances were to arise in which more than one compatible interpretation of an ECHR right was open to the Scottish ministers, they would be required, in choosing between those options, to have regard to the Covenant. Despite this, it must be remembered that the Covenant cannot operate to allow for the limiting or reinterpretation of the Scottish ministers' existing obligations.

Socio-economic rights have come to the fore in the recent debate over the progressive reform of land law. The Covenant has been directly incorporated into the Community Empowerment (Scotland) Act 2015 and the Land Reform (Scotland) Act 2016. Further, the Land Rights and Responsibilities Statement published in 2017 outlines that land reform includes both core civil and political rights and wider economic, social, cultural and environmental rights. This is part of a wider, and self-asserted, “different approach” in Scotland, towards a “socio-economic duty” for the public sector, and the bringing into force of the “missing” s 1 of the Equality Act 2010, as amended by the Scotland Act 2016.

What are socio-economic rights in practice?

The incorporation of the International Covenant into Scots law raises critical questions as to the role of the judiciary, who have traditionally been deferential to questions of socio-economic policy. In addition, it influences litigators who are likely to remain wary of using arguments based on socio-economic rights. Finally, it affects the role of the Scottish ministers when considering their duty to legislate in a manner that is human rights compatible. Socio-economic rights are clearly not only applicable to land reform in Scotland. Therefore, the lessons from the current programme of land reform will have a significant impact on our future understanding of socio-economic rights in domestic law.

Detailed judicial analysis of the Covenant in Scots law remains conspicuously absent. In one rare example, the Inner House in Friend v Lord Advocate 2004 SC 78 rejected the averment that a ban on hunting with dogs was contrary to the right to take part in cultural life. To Lord Brodie, the “rights” in the Covenant were “not intended to give rise to a legal right, enforceable against a national government”.

A comparative lens

With limited domestic material to build on, it is important to give a comparative perspective. The Constitution of the Republic of South Africa is often held up as the archetypal modern constitution, as it incorporates civil and political rights alongside socio-economic rights. South Africa is, however, far from the only country to incorporate socio-economic rights into constitutional law. It is important to remember that comparative perspectives can only go so far, as Scotland and South Africa are clearly two very different nations. Despite this, several important lessons on the justiciability and effect of socio-economic rights can be gleaned from the jurisprudence of the Constitutional Court of South Africa (“Constitutional Court”).

The first criticism socio-economic rights often face is that they too vague and defy a succinct, commonly accepted definition. This was overcome in South Africa v Grootboom 2001 (1) SA 46 (CC), which illustrates that while definitional problems will undoubtedly arise these are not insurmountable.

Another common criticism is that socio-economic rights are outside the institutional competencies of the judiciary. As Sir Thomas Bingham MR asserted in R v Cambridge Health Authority [1995] 1 WLR 898: “Difficult and agonising judgments have to be made as to how a limited budget is best allocated to the maximum advantage of the maximum number... That is not a judgment which the court can make”.

The boundaries between the “legal” and the “political” are, however, not clear-cut, and judges undeniably make policy choices. The Constitutional Court considered these criticisms and noted that even when a court enforces civil and political rights such as equality, freedom of speech and the right to a fair trial, the order it makes will often have such implications. A court may require the provision of legal aid, or the extension of state benefits to a class of people who formerly were not beneficiaries of such benefits. Therefore, it cannot be said that by including socio-economic rights, a task is conferred upon the courts so different from that ordinarily conferred on them by a Bill of Rights that it results in a breach of the separation of powers.

Despite this, as Professor Ellie Palmer notes, “in the UK, socio-economic rights have continued to be viewed as policy matters of discretionary entitlement that are subject to democratic change, inherently non-justiciable and therefore different from civil and political rights” (E Palmer, Judicial Review: Socio-Economic Rights and the Human Rights Act (Oxford: Hart Publishing, 2009)). The South African experience, however, shows that socio-economic rights can become a recognised part of a domestic legal system, even if such rights in practice are no panacea.

Enforceable rights?

The conclusion that socio-economic rights can in certain circumstances be justiciable does not automatically mean that mandatory burdensome financial obligations are imposed on the state. The Constitutional Court in Soobramoney v Minister of Health, KwaZulu-Natal 1998 (1) SA 765 (CC) considered whether a terminally ill patient whose kidneys had failed had a right to dialysis. The petitioner averred that this was a violation of s 27(3) of the South African Constitution, which states that “no one may be refused emergency medical treatment”. The court observed that the obligations are “dependent upon the resources available… and that the corresponding rights themselves are limited by reason of the lack of resources”.

In Grootboom 2001 (1) SA 46 (CC), the Constitutional Court set the standard of “reasonableness” and noted that the obligation on the state is “the progressive realisation” of socio-economic rights, within the available resources. This largely replicates article 2(1) of the Covenant, which outlines that signatories are to achieve progressively the full realisation of the rights in the Covenant.

Therefore, building upon the South African experience, the socio-economic rights in the international Covenant should not be seen as incorporating rights in the strong sense of being directly enforceable, but instead should be viewed as standards to be progressively realised by the Scottish ministers within the existing framework. This does not mean that such principles should be absent from judicial reasoning. For example, when considering questions of proportionality under the ECHR it is important to consider socio-economic rights as part of the balancing exercise.

In the context of land reform this could include considerations such as the financial situations of the parties, the power relations, and security of tenure and housing rights. In many instances domestic courts, and the Strasbourg court, take these factors into account. The Grand Chamber of the Strasbourg court in Hutten-Czapska v Poland (2006) 5 EHRR 52 recognised that housing “plays a central role in welfare and economic policies”. In doing so, the court recognised the importance of the wide margin of appreciation in areas that involved consideration of complex social, economic and political issues in recognising the importance of social protection of tenants, particularly those who are considered vulnerable, and that this must be balanced with the landlord's right to not bear a disproportionate and excessive burden.

Balancing rights tensions

In the context of Scottish land reforms, tensions have been strained between civil and political rights (most notably the right to the peaceful enjoyment of possessions in article 1 of the First Protocol to the ECHR), and the socio-economic rights of communities, crofters and agricultural tenants. The dilemma for Scotland going forward is how to balance differing rights tensions adequately. The South African jurisprudence illustrates that this does not automatically have to result in individuals' or group rights being set aside in favour of another. In tackling tensions between socio-economic rights and civil rights to property, South Africa has focused on the state’s duty to protect both rights. In Port Elizabeth v Various Occupiers [2005] 1 SA 217 (CC) Justice Sachs observed that:

“The judicial function in these circumstances is not to establish a hierarchical arrangement between the different interests involved, privileging in an abstract and mechanical way the rights of ownership over the right not to be dispossessed of a home, or vice versa. Rather it is to balance out and reconcile the opposed claims in as just a manner as possible, taking account of all the interests involved and the specific factors relevant in each particular case.”

The South African courts have come to conclude that conflict would never have arisen if the state had complied with its duties towards both rights. For example, in Jaftha v Schoeman 2005 (2) SA 140 (CC) the right to housing was said to be “an important right”, but the right to property was equally recognised.

The problem is that socio-economic rights remain “inherently limited”. This means that those who allege a breach of their rights will not grasp the ICESCR but instead will be required to turn to domestic law to find a remedy. A recent example of the inherently limited nature of socio-economic rights and the subjective nature of their application can be observed in the BBC Scotland investigation into homelessness. While the ICESCR may protect the right to housing, an individual approaching their local authority in Scotland when faced with homelessness will turn to the Housing (Scotland) Act 1987, the Housing (Scotland) Act 2001 and the Homelessness etc (Scotland) Act 2003.

Section 28 of the 1987 Act gives an individual the right to make a homelessness application. This requires the council to investigate whether the person is homeless, whether they are “intentionally homeless” and whether they have a local connection. Section 29 requires that when the local authority has reason to believe that an applicant is homeless, it will secure them accommodation while their application under s 28 is pending. The problem, as recently exposed through a series of FOI requests by the BBC, is that several councils have developed a practice of avoiding this responsibility by the use of “housing options”. For example, in East Ayrshire in 2017 87% of those presenting with homelessness reasons were only recorded as asking for advice. They were not registered as officially homeless. This categorisation in practice removed the individuals' right to accommodation under s 29.

This not only means that the true extent of homelessness in Scotland is being hidden but highlights that several local councils may be acting in a manner that is incompatible with the ICESCR. In this instance, the ICESCR may act as a guide to future public policy but it still cannot act to give those who have not been provided with accommodation a remedy. Instead, claims will have to be brought under Scots law. As such, the ICESCR remains a rather blunt instrument.

Conclusions

Socio-economic rights and the International Covenant remain misunderstood. Allegations of a “scroungers' charter” are not particularly helpful, but do highlight the considerable legal, political and economic hurdles to be overcome. Despite this, many of the parchment guarantees contained in the Covenant have been protected in the UK since the dawn of the welfare state, employment law and more recently directly through the integrated approach of the Strasbourg court.

The inclusion of the Covenant into several Acts of the Scottish Parliament should not be feared. The Covenant, however, does not incorporate directly enforceable legal rights. Instead, socio-economic rights should be viewed as obligations placed on the Scottish ministers and judiciary to be “progressively realised”. Considerably more research and discussion is required on this, with the Scottish Human Rights Commission already leading the charge. Scotland must focus on the need to seek concrete and case-specific solutions to the difficult problems that will inevitably arise, but it is unlikely that the proper role for socio-economic rights and the International Covenant in Scotland is going to be resolved in the near future.