Enforceable rights or progressive policy goals?
An edited version of the online article on recognition in Scots law of the socio-economic rights set out in the 1976 International Covenant on Economic, Social and Cultural Rights
For centuries, lawyers and philosophers have debated which rights should be considered “human rights”. In modern Scotland, the Human Rights Act 1998 (“HRA”) sets out particular fundamental rights and freedoms to which everyone is entitled. This mirrors the English language text of much of the European Convention on Human Rights and its Protocols (“ECHR”), which primarily protects “civil and political rights” such as the right to life and the right to a fair trial. Such “negative” rights safeguard the individual against unjustifiable interference from state and public bodies.
The question this article considers, however, is whether socio-economic rights – that is, those which make positive demands on the state, such as the right to participate in cultural life, to an adequate standard of living, and to health – should also be considered deserving of the special epithet and resulting legal protection given to “human” rights.
This question has been brought to the fore in relation to the legislative reform of land law. The Scottish ministers have chosen to widen the human rights discourse to incorporate the International Covenant on Economic, Social and Cultural Rights (“ICESCR”) into their definition of “other rights” within the Community Empowerment (Scotland) Act 2015 and the Land Reform (Scotland) Act 2016; and the ministerial commitment to socio-economic rights was affirmed in the 2017 Land Rights and Responsibilities Statement. This is part of a wider and self-asserted “different approach” in Scotland towards a “socio-economic duty” for the public sector.
While the subdivision of human rights is far from straightforward, the onset of the Cold War created an ideological division between Western conceptions of individual negative rights and primarily Eastern Bloc notions of positive socio-economic rights which place obligations on the state. Although the effective enjoyment of these rights remains subjective and nation-specific, socio-economic rights came to be embodied in the ICESCR. The UK was one of the first signatories, but the ICESCR has never been incorporated into domestic law. For many years there remained a widely held belief in the UK that socio-economic rights were adequately protected by employment law, the welfare state and the rule of law.
The inclusion of socio-economic rights was considered after the passing of the HRA and, more recently, in 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. As Professor Ellie Palmer concludes, “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”.
Land reform and human rights
It is an old joke that there is “no law” relating to land reform: that is, based on the essential truth that most radical change in the world occurs through revolution and the lawyers simply come in to tidy up afterwards. However, the process in Scotland is less radical than often appears from the forceful rhetoric. Nevertheless, confidence in the Scottish Government’s ability to alter property rights patterns was shaken by the Supreme Court decision of Salvesen v Riddell  UKSC 22. The court found that a provision relating to the agricultural tenant’s right to buy was a disproportionate interference with the landowner’s rights of property under article 1 of the First Protocol to the ECHR (“A1P1”). For only the second time, an Act of the Scottish Parliament was held to be outside its legislative competencies.
Land reform and the contemporary debate surrounding rights of property and socio-economic rights are exposing a fundamental tension between conceptions of property. To some, property is a “liberal” right that places importance on individual liberty in the face of state intervention. Opposed stand social democratic conceptions that hold that state interference with property is not only permissible, but expedient in the face of the many basic “needs” that are left unsatisfied by the free market. This is further complicated by the reality that while property rights are a central pillar of private law, rights of property lack a similar resonance in public law.
This can be observed during the very drafting of the ECHR, where the British delegate Lord Layton asserted that the proposed Convention “should be limited to the absolute minimum necessary to constitute the cardinal principles for the functioning of political democracy,” and as such should not include a right to property. What rights should constitute human rights remains disputed: if you ask five people in your office whether housing is a human right, for example, you are likely to receive several different responses.
Scottish ministers have no power to exercise functions outside of their legislative competence, the powers of the Scottish Parliament set out in the Scotland Act 1998. This means that they have no power to make subordinate legislation or undertake any other act that is incompatible with the ECHR. Doing so will result in the legislation or provisions being struck down as “not law”. Holyrood cannot alter the effect given to Convention rights, outside of a few minor exceptions, as Holyrood does not have the power to amend the Act. Holyrood cannot modify “protected enactments”, which includes parts of the HRA. However, the Act does not reserve “observing and implementing international obligations under the Human Rights Convention”. Thus, while the Scottish ministers cannot negotiate new treaties, they can undertake the implementation of existing ones. As the UK is a party to the ICESCR, Holyrood can implement the ICESCR into Scots law.
The Scottish judiciary have only considered whether the ICESCR is justiciable in isolated instances. In the Inner House decision of Hagan v Lord Advocate 2004 SC 78, the applicants argued that a ban on hunting with wild dogs was contrary to their ICESCR right to take part in cultural life. To Lord Brodie, the “right” in the ICESCR was “not intended to give rise to a legal right, enforceable against a national government”.
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, though South Africa is far from the only country to incorporate socio-economic rights into constitutional law. 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 often faced by socio-economic rights is that they are too vague and defy a succinct, commonly accepted definition. This was overcome in South Africa v Grootboom 2001 (1) SA 46 (CC), illustrating 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. This is because the judiciary may be asked to encroach on the traditional domain of democratic institutions by making judgments as to how public expenditure is best allocated. 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 involve 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. Therefore, it cannot be said that by including socio-economic rights, a task is conferred upon the courts so different from what is ordinarily conferred on them by civil and political rights that it results in a breach of the separation of powers. The South African experience shows that socio-economic rights can become a recognised part of a domestic legal system, even if such rights in practice are no panacea.
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) 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 ICESCR, which outlines that signatories are to progressively achieve the full realisation of the rights in the Covenant.
Building on the South African experience, then, socio-economic rights in the ICESCR 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 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.
The contemporary Scottish land reform debate, especially since the decision in Salvesen, has resulted in sustained criticism of A1P1. However, it must not be forgotten that A1P1 has, in many instances, protected and placed significant weight on socio-economic rights when determining questions of balance. The Strasbourg court has held that “State intervention in socio-economic matters such as housing is often necessary in securing social justice and public benefit”. This standard of review was affirmed by the Grand Chamber in Hutten-Czapska v Poland (2006) 45 EHRR 52, where the court recognised that housing “plays a central role in welfare and economic policies”. In doing so, Strasbourg recognised the importance of the wide margin of appreciation in areas that involve considerations of complex social, economic and political issues.
Therefore, if circumstances were to arise in which more than one interpretation was open to the Scottish ministers or courts, they would be required, in choosing between those options, to have regard to the ICESCR. It must, however, be remembered that the ICESCR cannot operate to allow for the limiting or reinterpretation of Convention rights to the extent that ministers act in a manner that is incompatible with existing devolved competencies. Critically for land reform this means that the widening of the human rights discourse cannot limit the application and effect of the right to the peaceful enjoyment of possessions in A1P1.
Law meets practice
It is difficult to envisage the ICESCR ever being engaged in proceedings in Scotland and providing an effective remedy. This means that those who allege a breach of their socio-economic rights will not grasp the ICESCR, but instead will require to turn to domestic law. A recent example of the limited nature of socio-economic rights and their subjective application can be observed in a 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.
This Act gives an individual the right to make a homelessness application, requiring the council to investigate whether the person is homeless, “intentionally homeless”, or has a local connection. The Act states that, when the local authority has reason to believe that an applicant is homeless, it is to secure them accommodation while their application is pending. However, as recently exposed through a series of FOI requests by the BBC, 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 recorded only as asking for advice. In practice, this removed the individuals’ right to accommodation. In this instance, the right to “housing” and “the continuous improvement of living conditions” in article 11 of the ICESCR should act as a guide to future public policy, but their inherently limited nature means that article 11 cannot be engaged to give those who have not been provided with accommodation an effective remedy.
While the parchment guarantees in the ICESCR may be inherently limited, socio-economic rights have been protected in Scotland since the dawn of the welfare state, employment law and more recently through the dynamic interpretations of the ECHR. Despite this, problems undoubtedly remain: in 2009 the United Nations reported that the UK had failed to act to implement fully the obligations contained in the ICESCR as it “cannot be directly invoked before the courts”, and the view persists that socio-economic rights are “mere principles and values”.
The inclusion of the ICESCR 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, to be “progressively realised”. Considerably more research and discussion are needed on this topic, with the Scottish Human Rights Commission already leading the charge. However, it is unlikely that the proper role for socio-economic rights and the ICESCR will be resolved in the near future.
Douglas S K Maxwell, Emmanuel College, University of Cambridge
This is an edited version of the article published online in February 2018