Professor Geraldine Van Bueren QC is Professor of International Human Rights Law, Queen Mary University of London, a Visiting Fellow of Kellogg College, Oxford and a member of Doughty Street Chambers. She was a Commissioner on the Equality and Human Rights Commission.
This article should be read in conjunction with the report from the René Cassin roundtable discussion (held under the Chatham House Rule) held on Thursday 11 July 2019 at Bryan Cave Leighton Paisner LLP, London, at which Professor van Bueren was the keynote speaker
Socio-economic rights – a fundamental aspect of the rule of law
We often use the term ‘rule of law’ but rarely define it and assume we all agree with what it is and that it is the same all over the globe. So in a practical way I want to ask:
- what is the rule of law?
- does it have any implication for socio-economic justice?
- is the UK upholding the rule of law if it excludes socio-economic rights?
And the reason I want to do this is to see, if in addition to asking for treaty ratification, which we have done for so long, are there are any additional approaches, which we can use which may resonate as much if not more? With deepening inequality, the task has become even more urgent.
At a minimum, the rule of law does convey the idea of people ruled by law and not subject to lawlessness or arbitrary power. It is also for many people not merely procedural but there is a substantive quality, which includes some aspects of human rights, but usually only considerations of civil and political rights such as free speech and freedom of belief and religion.
But in the twenty-first century, with the development of human rights we also need to focus on what rights are fundamental to the rule of law and is the rule of law arbitrarily limited only to civil and political rights?
I want to argue that socio-economic rights are now a fundamental aspect of the rule of law and that by not incorporating rights to food, water, healthcare, housing and an adequate standard of living we in the UK are not respecting the rule of law fully.
A forgotten history
Often people will point to international and regional treaties, but in the era of Brexit, as well as universality – as essential as universality is – it is also helpful to ask “Is there any British evidence of socio-economic rights being part of the rule of law?” The answer is yes as far as England and Wales are concerned. It is just that we have forgotten our history.
Many will trace the concept of the rule of law to Magna Carta 1215 although, as a specific term, it is sometimes attributed to Samuel Rutherford, a Scottish theologian arguing against the divine right of kings in the seventeenth century. I am not going to argue with that but I want to draw your attention to Carta de Foresta 1217. For centuries Magna Carta was never read alone but read with Carta de Foresta and Blackstone acknowledged the importance of Carta de Foresta.
In brief, Carta de Foresta protects the rights to wood, and wood was essential for building homes and for energy; it protects the right to honey and certain animals – a medieval right to food, and it protects a right to water and through protecting both honey and greenery i.e. herbs and flowers, it introduced the concept of a right of access to medicines. It did all of these for a wider range of people not just the nobility and bishops of the 1215 Carta but freemen and some women. In other words, the Carta de Foresta protected the nascent rights to food, water, medicines, housing, energy and an adequate standard of living.
Wales too has its medieval tradition of socio-economic rights. In the Laws of Hywel Dda which, although not as extensive and not applying to everyone, did protect specific nascent socio-economic rights including the right to food and to an adequate standard of living.
Opaque and arbitrary – how contemporary sources offend rule of law principles
So this is the British basis of socio-economic rights and they stem from a British tradition. Bringing this tradition up to date, there are now additional sources. There is the socio-economic duty, which was drafted but not included in the Equality Act. Recently, in a joint report both the Sutton Trust and the Social Mobility Commission called for its enactment.
What is the socio-economic duty? It is a legally enforceable duty in section 1 of the Equality Act 2010, which would require public authorities to consider how the exercise of all of their functions affects, or could affect, those experiencing socio-economic disadvantage and how the authority could positively contribute to reducing it. It would lead to greater consistency – i.e. transparency and less arbitrariness – both aspects of the rule of law. And we need both the duty and the enshrining of each of the socio-economic rights into UK law.
Recently, the UN Special Rapporteur on Extreme Poverty and Human Rights’ report called for the incorporation of socio-economic rights, but unfortunately due to the complaint lodged by the UK Government against the bias of the Rapporteur, this point was missed by much of the media.
Arbitrariness also offends against the rule of law. There needs to be a rationality if groups receive less than others. But in the UK we have an arbitrariness when it comes to international remedies for social justice rights. I am arguing that we need to consider whether the contemporary rule of law in a globalised world also extends it principles internationally. If I am correct, and if there is arbitrariness in the international remedies available, the UK would not be implementing fully the rule of law.
Currently we have rights for everyone in three treaties:
- the International Covenant on Economic
Social and Cultural Rights - a sister to the European Convention on Human
Rights called the European Social Charter; and - the EU Charter of Fundamental Rights.
The EU Charter of Fundamental Rights protects rights to dignity, workers’ rights, social security, social security and healthcare but the EU Charter may no longer be accessible for these rights in the near future.
The Council of Europe’s Social Charter protects a wide range of social justice rights – France and many European states allow people within their jurisdictions to use its collective complaints mechanism but regrettably the UK does not.
The International Covenant on Economic, Social and Cultural Rights, which the UK has been legally bound by since 1976, has been ratified by the majority of countries in the world. It is possible in some states, for example Spain, to petition under the Covenant on a wide range of violations to rights including healthcare, housing, education and social security but this is not the case in the UK. In British law, treaty rights are not automatically protected by the courts without specific incorporation. So here we have an inequality with a vengeance. Everybody equally within the UK is denied access to these international and regional remedies.
Then it becomes rather arbitrary. There are also some social rights in other treaties – the UN Convention on the Rights of the Child; the UN Convention on All Forms of Discrimination Against Women; and UN Convention on Persons living with Disabilities – these three treaties allow complaints after the exhaustion of domestic remedies, but the UK only allow complaints to the Women’s and the Disability Conventions. So, that if you are a girl, a women or a disabled person you can have the safety net of challenging government legislation before a UN body. If you are an able-bodied boy or man, you cannot. This strikes me as arbitrary and unjustifiable and offends the rule of law.
So far, when we call for the UK to ratify the complaints mechanisms of these three treaties we have not argued that we would be in breach of the rule of law, something, which the UK is proud about. This is an approach we need to start trying.
Where now? Advantages of bringing socio-economic rights into UK law
What then would be the advantages of incorporating social justice rights into domestic law from a rule of law perspective?
Firstly, socio-economic rights would be clearly stated so everyone would know their rights, and governments would know their duties. It would mean that, when framing social policies, a government would have to consider whether a delay in receiving universal credit would violate a right to social security. It would mean there would have to be a consideration that, during the school holidays when breakfast clubs were no longer functioning, whether this would impact on children going hungry and violate their right to food. Secondly, it would enhance transparency, an aspect of the rule of law which the World Bank has advocated.
In the case of the Occupiers of 51 Olivier Road, the City of Johannesburg sought to evict men, women and children from two buildings in the inner city. This was part of an overall clearance policy under the Johannesburg Inner City Regeneration Strategy.
The city alleged that the living conditions were unhygienic (which they were) and constituted a fire hazard, but had refused to offer the occupiers alternative accommodation in the inner city. Forced eviction would likely have resulted in the residents becoming homeless or having to relocate to areas on the far periphery of the city, and cut off from their livelihood.
The Constitutional Court of South Africa ordered the parties to engage in a meaningful dialogue to see if they could agree on a mutual solution. But how do people with the minimum of power, some illiterate, negotiate with the largest city council in the country?
The Court defined meaningful dialogue – the Council had to take account of the vulnerability of the occupiers and design the negotiation accordingly. The occupiers could not reject everything which was offered.
The parties reached an agreement. The agreement provided for the occupiers to be provided with affordable, safe accommodation in the inner city of Johannesburg where they may live “secure against eviction”.
It was an agreement that everyone could see and could follow at all stages and it’s a model, which would be open for courts here to develop.
“Majestic equality” – how the rule of law has evolved
So we have seen three stages to the evolution of the rule of law:
- First, the rule of law developed to
limit absolute power – Magna Carta - Secondly, the rule of law developed so that
the same laws should apply to everyone – this was Dicey’s idea that governments
should be subject to ordinary courts - Thirdly, that law itself is now subject
to law, i.e. national law is subject to a higher law and this includes human
rights – not just civil and political rights but socio-economic rights which
have existed in England and Wales since the thirteenth century and have been
part of our rule of law.
I would like to finish with two quotations. One from The Red Lily written by Anatole France “The law in its majestic equality forbids rich and poor alike from sleeping under bridges, begging in the streets and stealing bread.” That’s because the rich don’t have to and the poor should not need to.
The second quotation is fitting, because this is René Cassin, is the Talmudic question – “If I am not for others, who am I for?”
© 2019 Professor Geraldine Van Bueren QC
