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This article first appeared in the February 2023 issue of Legal Action.
Successive economic crises have created a whole cohort of ‘rights vulnerable’ people, who have been comprehensively failed by existing human rights protections. Here, Jamie Burton KC argues for the incorporation of socio-economic rights and the benefits that would flow from doing so.
 

Liberal-democratic constitutional discourse has failed the poor … Its failing lies in its assumption that material equality is a matter for political rather than constitutional discourse.[1]

The immediate causes of the 2008 global financial crisis, the COVID-19 pandemic and the cost of living crisis did not originate, at least not exclusively, within our borders. Portraying them as distinct exogenous crises is therefore accurate; but it also risks overlooking the home-grown aspects that exacerbated the consequences of these events for the poor.

The global financial crisis (to which the excessive deregulation of the City certainly contributed) provided the political cover for a decade of self-imposed austerity that inevitably impacted those most reliant on public services, while cheap money entrenched wealth inequalities through high asset inflation (including in house prices). It also negatively impacted growth and undermined the capacity of our public services to respond to COVID-19 and, while significant policy interventions were made during the pandemic, they ‘papered over cracks that would have been immediately visible (eg falling household incomes) without being able to prevent likely long-term damage’.[2] Health inequalities unsurprisingly correlated strongly with economic inequalities, and while household wealth overall grew during the pandemic (largely through enforced savings and further asset price increases), the trend of widening wealth disparities continued ‘particularly between those at the bottom of the wealth distribution and everybody else’.[3]

Now low-income households, who spend a larger proportion of their income on food and energy, are on the sharp end of the cost of living crisis (the ‘deepest living standards squeeze in a century’[4]); two-thirds of them (7.2m people) are going without food or other basic essentials such as toiletries.[5] Simultaneously, the welfare state, most notably the NHS, is experiencing parallel hardships, which many experts attribute to the long tail of George Osborne and David Cameron’s austerity programme. Sir Michael Marmot, former president of the World Medical Association, has described the cost of living crisis as a ‘humanitarian catastrophe’.[6] State support with utility bills has helped, but missed opportunities to tax wealth more effectively means that the richest five per cent of households alone will see their typical incomes actually rise in this crisis.[7]

A new cohort: the ‘rights vulnerable’

A comprehensive analysis of the policy responses to the trinity of crises is beyond the scope of this article, and I recognise oversimplification is obviously unhelpful. However, two common phenomena merit particular attention.

First, the cost of living crisis is anything but new. For many years, around one in five people in the UK (one in three children) have been unable to access their basic needs.[8] Absolute and relative poverty is set to rise further, both in terms of the numbers affected and the depth of deprivation experienced. The adverse consequences of poverty and excessive inequality for individuals, and society more generally,[9] are well documented, and yet we are surely becoming inured to the growing number of people forced to use foodbanks and, more recently, ‘warmbanks’, thousands of which have cropped up around the country this winter as places of respite from unheated homes.

In a country with so much wealth at its disposal, this long-term cost of living crisis is also a human rights crisis. A very high number of people, including millions of children, are almost certainly not enjoying, as they should be, an adequate standard of living, including food, clothing and housing, the highest obtainable standard of physical and mental health or just and favourable conditions of work. Stark differences in the enjoyment of these rights, which are contained in various international human rights treaties, exist not only between different socio-economic groups; there are also marked poverty disparities based on gender, disability and ethnicity. We have seemingly created a new class: the ‘rights vulnerable’, a cohort who one can safely predict will shoulder the heaviest burden the next time a ‘crisis’ comes along, and without a significant intervention, the ones after that too.

Second, if the first point is right then our constitutional protections have fundamentally failed in so far as our legal commitments to equality and human rights are supposed to stop, or at least significantly mitigate, human rights breaches on this scale and of this longevity. The facts speak for themselves, of course, but the absence of any significant litigation victories addressing these profound inequities is conspicuous. Human rights have offered precious little ballast against the repeated injustices perpetrated against the poor.

Opponents of substantive constitutional guarantees would resist, even strongly oppose, this analysis. They argue that socio-economic policy should have nothing to do with ‘rights’; contestations about the allocation of resources ought to be exclusive to the political arena. I suspect that quite a few members of the judiciary would share this opinion, along with people from both sides of the political spectrum. I respect but profoundly disagree with it. Questions about redistribution and the extent to which material inequalities are morally defensible have long informed theories of law and justice. Socio-economic liberty is so fundamental to individual human flourishing, and a functioning and fair democracy, that it surely compels constitutional protection. The relationship between economic and political power is such that ‘gross material inequality is a constitutional problem, as it affects the very nature and legitimacy of state power’.[10]

If years of philosophical debate haven’t resolved these arguments, then this article certainly won’t do so. But it doesn’t really have to. We live in a country that has committed to these guarantees in the international human rights treaties that we have ratified. The UK government already has a legal obligation to respect, protect and fulfil these rights. And even in crisis, no UK government has ever claimed to be unable to meet these commitments. On the contrary, even the Cameron/Osborne government argued that its austerity programme was compatible with the UN’s International Covenant on Economic, Social and Cultural Rights. As it transpired, the body responsible for monitoring compliance with the covenant, the UN Committee on Economic, Social and Cultural Rights (CESCR), did not agree. In 2016, the CESCR, in a damning report, expressed serious concerns about the ‘disproportionate, adverse impact that austerity measures [were] having on the enjoyment of economic, social and cultural rights by disadvantaged and marginalised individuals and groups’.[11]

Neither is it necessary to spend too much time identifying why our constitution has failed the poor. Put simply, we do not allow rights holders to enforce their socio-economic rights. UK governments have persistently rebuffed calls from the UN treaty monitoring bodies to incorporate socio-economic rights into domestic law. Nor have we taken even the modest step of outlawing discrimination on the grounds of socio-economic status (or ‘class’, which is anomalous in the ‘most class-ridden country under the sun’[12]).

Igniting the campaign for socio-economic rights

The exigencies of the cost of living crisis have understandably sparked renewed enthusiasm for socio-economic rights. Accordingly, Just Fair, a leading human rights charity set up in 2010 to call for better recognition and protection of economic, social and cultural rights in the UK, has launched a campaign calling for their incorporation into UK law. Simultaneously, on behalf of over 70 civil society organisations and individuals, it submitted a report in January 2023 to the CESCR as part of the 7th periodic review of the UK, in which the parlous state of socio-economic rights in England and Wales is documented. Things have not improved since the last CESCR review in 2016.

There is no doubt that momentum behind these rights is rising, both in the UK and abroad. In 2018, around 65 countries globally had enshrined economic, social and cultural rights in their constitutions, around 12 in Europe.[13] Closest to home, the Scottish government has announced plans for a new Human Rights Bill that would see full incorporation in relation to devolved matters. Labour politicians have started talking about the human rights to housing and food, while Gordon Brown’s Commission on the UK’s Future very recently recommended giving social rights legal force. Public support runs high too. Just one example is the 2010 Ministry of Justice document, Rights and responsibilities: developing our constitutional framework – summary of responses (Cm 7860, 10 March 2010), which reported that economic rights ‘met with broad support … overall there was a consensus in favour of including rights to healthcare, housing, education and an adequate standard of living’ (para 28, page 17).

This is not surprising as the benefits of enforceable rights are considerable. They provide a valuable framework for policymakers that can help inform the necessary balancing of competing interests, while ensuring that everyone is guaranteed the basic requirements of a flourishing life. Substantive minimum standards are also justiciable: as Lord Reed explained in the context of a discrimination challenge against the Department for Work and Pensions’ ‘two-child rule’, there are ‘no legal standards by which a court can decide where the balance should be struck between the interests of children … and the interests of the community as a whole’ (R (SC and others) v Secretary of State for Work and Pensions [2021] UKSC 26; [2022] AC 223 at para 208). That is not the case where substantive minimum standards are in play: ‘adequacy’ is capable of objective determination according to transparent criteria (see R (Refugee Action) v Secretary of State for the Home Department [2014] EWHC 1033 (Admin); [2014] PTSR D18).

Some recent welfare reforms have been controversial precisely because they leave households without enough money to live on. The ‘benefit cap’ predominantly impacts single mothers who live in parts of the country where rents are higher than average. If they are unable or unwilling to move to areas where rents are significantly lower, the cap denies them the level of subsistence benefit to which they would ordinarily be entitled. Similarly, the ‘two child rule’ limits the amount of subsistence benefit a family of any size can receive to that which a household with two children is entitled. Perhaps unsurprisingly, the evidence suggests that these policies don’t really work. A very small percentage of those affected by the benefit cap move into work and, even then, it is unclear whether the cap was the catalyst, as opposed to a child reaching school age, for example (R (DA and others) v Secretary of State for Work and Pensions [2019] UKSC 21; [2019] 1 WLR 3289). Most just learn to survive on very little money. Similarly, the utility of the benefit sanctions regime remains opaque, the government having been unable to demonstrate that it motivates people into work. What is clear is that it routinely leaves people destitute.

The disconnect between social policy and its intended purpose runs deep. Social security is not based on an objective assessment of the cost of meeting basic subsistence needs. Meanwhile, the low rates of social security, and delay and maladministration in the benefits system, are named by the Trussell Trust as the main cause of people accessing foodbanks.[14] This strongly suggests that the right to social security is being breached widely.

There are myriad other examples of how enforceable rights could engender change for the poor. The minimum wage would have to be a genuine living wage. As the ‘Everyone In’ scheme demonstrated, we could effectively end rough sleeping overnight. Policies that favour new and existing homeowners (who tend to vote), would have to be balanced against the interests of those who need social housing (who tend not to vote). Roma, Gypsies and Travellers would have to be provided with sufficient pitches. Tax policy might need to change – can we really afford tax havens any longer? Do we need higher taxes of record corporate profits to fund social care? Litigation of these issues would only be as a last resort – the prospect of legal accountability would ensure that policymakers act compatibly with socio-economic rights.

Two further advantages are striking. Socio-economic rights would favour longer-term solutions to our endemic social problems, something not always characteristic of modern political leadership. This can be very cost-effective. For example, recent research by Tai Pawb has shown that introducing the right to adequate housing in Wales would generate £11.5bn in savings while costing £5bn.[15] More generally, countries where income inequality is decreasing grow faster than those with rising inequality.[16]

Second, the human rights-based approach is a participatory one. Solutions to rights breaches must be the product of genuine involvement and co-design with the people directly affected. Importantly, enforceable socio-economic rights would not mean increased paternalism, but meaningful agency for the ‘rights vulnerable’.

Human rights are never a panacea; nor are they a substitute for politics. The extent to which they can be transformative of people’s lives will always depend on the context. Yet, even in time of crises, they are so much more than mere platitudes. On the contrary, constitutionalising socio-economic rights would be a genuine shift of power from the haves to the have nots. And if ever we needed that, it is now.

Written by Jamie Burton KC – Chair of Just Fair

Endnotes 

[1] Tarunabh Khaitan, ‘Political insurance for the (relative) poor: how liberal constitutionalism could resist plutocracy’, Global Constitutionalism, (2019) 8:3 536-570, Cambridge University Press. 

[2] Richard Blundell et al, Inequality and the Covid crisis in the United Kingdom, Institute for Fiscal Studies, December 2021.

[3] Jack Leslie and Krishan Shah, (Wealth) gap year, Resolution Foundation, July 2021, page 32.

[4] Adam Corlett and Lalitha Try, In at the deep end: the living standards crisis facing the new prime minister, Resolution Foundation, September 2022. Also: ‘New PM’s term in office on course to be marked by deepest living standards squeeze in a century, and three million more people in absolute poverty’, Resolution Foundation press release, 1 September 2022.

[5] Going under and without: JRF’s cost of living tracker, winter 2022/23, Joseph Rowntree Foundation, December 2022

[6] Chris Samuel, ‘ Cost-of-living crisis a “humanitarian catastrophe” and system is “not working” for poorest, leading public health expert warns’’, LBC News, 17 January 2023.

[7]UK households just halfway through two-year cost-of-living crisis with incomes set to fall by £2,100’’, Resolution Foundation press release, 9 January 2023.

[8] Brigid Francis-Devine, Poverty in the UK: statistics, House of Commons Library Briefing Paper No SN07096, September 2022.

[9] Kate Pickett and Richard Wilkinson, The spirit level: why equality is better for everyone, 2009.

[10] See note 1 above.

[11] Concluding observations on the sixth periodic report of the United Kingdom of Great Britain and Northern Ireland, E/C.12/GBR/CO/6, 14 July 2016, para 18.

[12] As George Orwell wrote in his 1941 essay, ‘England Your England’.

[13] Dr Katie Boyle, Models of incorporation and justiciability for economic, social and cultural rights, Scottish Human Rights Commission, November 2018.

[14] State of hunger: building the evidence on poverty, destitution, and food insecurity in the UK, Trussell Trust, May 2021.

[15] Ross Thomas, ‘Right to adequate housing will save Welsh government £11.5 billion’, Tai Pawb, 2022.

[16]Inequality hurts economic growth, finds OECD research’, OECD news release, 9 December 2014. 

Image by Atanas Giew for Fine Acts