CHAPTER 1
Introduction
The importance of economic, social, and cultural rights
The implementation of the Human Rights Act represented a significant milestone in the promotion of human rights in the UK. For the first time, human rights standards are directly applicable and enforceable in UK law, and will be binding on government and public administration. They now inform the process of law making and decision taking, and are subject to enforcement in domestic courts and tribunals.
As it incorporates most of the provisions of the European Convention on Human Rights, the Act will have greatest impact upon the exercise of civil and political rights. However, it is inevitable that the rights guaranteed – for example, the rights to life and to freedom from inhuman and degrading treatment, the right to respect for one's home and private and family life, the rights to education and property – will also touch on economic, social, and cultural rights.
The introduction of the Act also raises questions about the nature, status, and implementation of other key human rights instruments. In relation to social and economic and cultural rights, these include the International Covenant on Economic, Social and Cultural Rights, the Social Charter of the Council of Europe, other more specific UN and ILO Conventions, and the European Union's Charter of Fundamental Rights.
The UK government's Annual Human Rights Report, published in 1999 by the Foreign and Commonwealth Office (FCO), stressed the importance of recognising the 'indivisibility' (i.e. the equal value) of the whole family of rights – not just civil and political rights, but also social and economic rights:
The achievement of social and economic rights is enhanced by progress in achieving civil and political rights. The commitment to a right to development – which draws together the social and economic rights laid down in the Universal Declaration – underlines a vital lesson: that we fail to honour the Universal Declaration and cannot claim to be upholders of human rights unless we commit ourselves to securing all rights for all people.
This welcome defence of the principle of indivisibility confirms the government's stated commitment to the promotion of human rights. Indeed, in its third report, the FCO states that 'Securing full respect for human rights is not only an objective of foreign policy – it is also a central objective of this Government's domestic policy'.
These statements endorse the UK's longstanding adherence to all the major international human rights instruments, including those relevant to ESC rights. If the UK government is to implement as well as promote its obligations under these instruments, it is timely to consider how economic, social, and cultural rights can be given greater prominence in domestic policy as well as foreign policy.
Poverty and social exclusion as a denial of fundamental human rights
Until relatively recendy, the link between poverty, social exclusion, and the denial of human rights was rarely recognised. However, understanding has grown of the close interrelationship between these issues. At the international level, the UN General Assembly reaffirmed in 2001:
... that extreme poverty and exclusion from society constitute a violation of human dignity and that urgent national and international action is therefore required to eliminate them;
and
... that it is essential for States to foster participation by the poorest people in the decision-making process in the societies in which they live, in the promotion of human rights and in efforts to combat extreme poverty, and for people living in poverty and vulnerable groups to be empowered to organise themselves and to participate in all aspects of political, economic, and social life, in particular the planning and implementation of policies that affect them, thus enabling them to become genuine partners in development.
Within the UK (and elsewhere in Europe), this approach has been forcefully promoted by ATD Fourth World, an international NGO with a long-standing rights-based approach to poverty: 'Torture, detention without trial or denial of freedom of speech are unquestionable human rights abuses. But poverty is also a violation of human rights because it prevents people exercising their full rights.'
The majority of UK citizens have come to rely upon a certain level of security, based on solid foundations such as employment, health care, housing, and education. Furthermore, the available evidence suggests that in practice the public recognises the importance of these rights: one recent poll found that 96 per cent of UK citizens believe in the right to 'free medical treatment at the time of need', expressing the view that this provision should be enshrined in a Bill of Rights for the UK. In Northern Ireland, an opinion survey for the Human Rights Commission indicated that well over 80 per cent of respondents supported the inclusion of rights in respect of health, housing, and employment in a Bill of Rights.
Yet for those facing poverty and social exclusion, the predominant experience is one of insecurity, often transmitted from generation to generation. A recent survey revealed that in 1999, for example, 24 per cent of households in the United Kingdom lacked three or more necessities (items that more than half of the population believes 'all adults should be able to afford and which they should not have to do without') because they could not afford them, compared with 14 per cent in 1983. By the end of 1999, 26 per cent of the population were living in poverty, measured in terms of low income and multiple deprivation of necessities. In addition:
• roughly 9.5 million people in Britain today cannot afford adequate housing conditions;
• about 8 million cannot afford one or more essential household goods;
• almost 7.5 million people are too poor to engage in common social activities considered necessary by the majority of the population;
• about 2 million British children are deprived of at least two things they need;
• about 6.5 million adults lack essential items of clothing;
• around 4 million are not properly fed by today's standards;
• more than 10.5 million suffer from financial insecurity.
In recent years, poverty and social exclusion have increasingly been seen as a denial of fundamental rights. For instance, the European Anti-Poverty Network has suggested as follows:
This is how those affected experience it themselves: they have no way of exercising those rights recognised in the Conventions and Charters signed up to by the Member States, to which the very great majority of their fellow-citizens ns have access, such as the right to housing, the right to health care, the right to an education giving essential basic knowledge, the right to community life ... The worse-off individuals and families are, the more of all their civil, political, economic, social and cultural rights they lose.
There is considerable evidence to show that living in poverty and social exclusion denies individuals and families any role as active participants in society. Indeed, the normal channels through which people can be heard are in practice inaccessible to people in poverty.
Social policies, both in the UK and internationally, have in the past often been developed purely as a means of satisfying particular needs, and have frequently been based on governments' top-down perceptions of what these are. In contrast, a rights-based approach assumes that individuals must be active agents in shaping such choices. And while a needs-based approach helps to identify the resource requirements of particular groups, a rights-based approach strengthens the ability of vulnerable groups to claim economic, political, and social resources.
As Mary Robinson (the UN High Commissioner for Human Rights) has argued, there are considerable advantages to a rights-based approach, in that it
• empowers individuals and communities by enhancing the human dimension of poverty-reduction strategies;
• empowers the poor by creating the conditions needed for popular participation in decision making;
• provides the framework for developing a multi-sectoral approach to poverty reduction; and
• helps to prevent the conditions that lead to poverty and social exclusion.
Challenging the notion of 'duties'
Ideas about ESC rights are closely linked to concepts of social justice – a value to which the UK government has repeatedly stated its commitment. But increasingly the notion of social justice is being replaced in official discourse with that of a new 'social contract' between the government and the public. Within this philosophical framework, the exercise of rights is conditional upon the citizen fulfilling certain responsibilities (such as to seek training or work if able; to support one's children and other family members; to save for retirement; and not to defraud the taxpayer).
The notion that rights must be balanced with responsibilities and the interests of the community is undisputed. However, there are fears that the government's approach places too much stress upon the responsibilities of individuals, especially those facing poverty and social exclusion. In reality, promoting the notion of individual duty can provide a rationale for excluding individuals from State support when they fail to meet the terms of the 'contract' set by the government. This can easily result in poor people being blamed for their poverty, reinvigorating the long-standing – and widely discredited – notion in UK social policy of the 'deserving' and 'undeserving' poor.
Rather than focusing attention on the behaviour of individuals, there is a strong argument – presented in this report – that it is essential to develop a framework of ESC rights for public policy in the UK. Given the persistent high levels of poverty and inequality in the UK, and the government's repeated commitment to tackling social exclusion and promoting human rights, such a framework, based on international human rights law, would provide both a solid rationale and effective mechanisms for responding to these problems.
Background to this report
In October 1997 JUSTICE and Oxfam coordinated a joint submission to the UN Committee on Economic, Social and Cultural Rights. A coalition of non-government organisations (NGOs) contributed to the submission, which was entitled 'Poverty Undermines Rights in the UK'.
Encouraged by this positive experience, JUSTICE and Oxfam decided to undertake the current study in order to explore the potential for developing further activity on ESC rights in the UK. Both organisations continue to believe that there is considerable merit in seeking to analyse and respond to public policy – especially on core matters such as poverty and social exclusion – from the perspective of human rights.
The focus in this study is on the opportunities for NGOs to promote ESC rights. We recognise that other key stakeholders, such as trades unions, have played and continue to play an important role in securing protection for ESC rights. However, it is apparent that economic rights are better protected than social or cultural rights, and we consider that the NGO sector is best placed to influence social-welfare policy so that it becomes firmly rights-based. Greater collaboration between NGOs, trades unions, lawyers, and other interested groups is essential, however, for the development of an ESC-rights agenda. In part, this must involve a concerted attempt to bring together organisations working on civil and political rights with those working on ESC rights (see Box 1).
Aims and objectives
The overall aim of continuing work done by JUSTICE and Oxfam on these matters is to promote the establishment of a comprehensive human rights framework in the UK, one which addresses ESC rights alongside civil and political rights. In order to achieve this aim, JUSTICE and Oxfam support the following medium-term objectives:
• to assess and promote awareness of ESC rights;
• to identify mechanisms for securing the protection of ESC rights in the UK;
• to ensure that the incorporation of the European Convention on Human Rights into UK law leads to increased protection of all human rights;
• to build support for ESC rights among key sectors, and in particular NGOs.
This study therefore represents a first step in what is likely to be a long-term process. It sets out current contextual issues – historical, legal, and political – in relation to human rights (and ESC rights in particular), analyses arguments about the status of ESC rights, explores the existing range of relevant human rights instruments, and identifies possible approaches to establishing a UK framework which will be truly comprehensive.
Finally, the report presents a set of recommendations for the possible development of further NGO activity in the UK.
Structure of the report
Chapter 2 (on the nature of ESC rights and the historical development of human rights) identifies the characteristics of various types of rights and sets out the historical background to the development of ESC rights and the primacy in practice of civil and political rights. It also counters the central arguments that are expressed against initiatives to develop ESC rights. These are that ESC rights are 'non-justiciable' (i.e. unsuited for adjudication); that they distort democracy; and that they require substantial resources. This chapter also highlights the government's emphasis upon individual responsibilities rather than rights, and the effect of this on poor and marginalised groups. The section concludes that none of these arguments significantly undermines the case in favour of developing ESC rights in the UK.
Chapter 3 ('The UK government's approach to ESC rights') examines the position taken by the UK government in relation to ESC rights. It then identifies some of the tools for securing protection for ESC rights within the existing framework of the Human Rights Act 1998 and anti-discrimination legislation.
Chapter 4 (The European framework for promoting and protecting ESC rights') examines the scope for NGO action within Europe.
Chapter 5 ('The international framework for promoting and protecting ESC rights') examines the scope for NGO action using international instruments.
Chapter 6 ('Recommendations') offers suggestions for possible NGO action, under the following headings:
• developing mechanisms for protection;
• promoting ratification of key ESC rights instruments;
• monitoring and supervision;
• reviewing and harmonising domestic law and policy with international standards;
• lobbying, dissemination of information, and dialogue.
CHAPTER 2
The nature of ESC rights and the historical development of human rights
What are economic, social, and cultural rights?
ESC rights have been dubbed 'second-generation' rights. They have their roots in the growth of ideas about social justice in the nineteenth and twentieth centuries. The tag of 'first-generation' rights has been given to civil and political rights whose roots can be traced back to the eighteenth century. The fact that ESC rights and civil and political rights have frequently been regarded as two distinct and separate categories of rights is due largely to an accident of history. Indeed, as outlined below, when the international community began to draft international human rights instruments after World War II, they did not at first differentiate between these groups of rights. However, the East-West divisions of the Cold War era led in practice to the separation of these rights, and the prioritisation, in the West, of civil and political rights. In this section we argue that, despite this fact, the two sets of rights are indivisible: that is, they form a single unified body of rights.
The historical development of ESC rights
The adoption by the UN General Assembly of the Universal Declaration of Human Rights (UDHR) on 10 December 1948 was a response to the atrocities of the 1930s and 1940s. It marked a watershed in the promotion of human rights at the international level. It also recognised the principle that States would be responsible for violations of human rights. The UDHR is an aspirational declaration which sets out a comprehensive range of human rights within a single text. It asserts the indivisibility and interdependence of all human rights and makes no distinction between civil, political, economic, social, or cultural rights.
