Economic and Social Rights: Models of Enforceability

Evidence from the Human Rights Centre, Queen’s University, Belfast

Introduction

1. We have been invited to brief the Northern Ireland Assembly's Ad Hoc Committee on a Bill of Rights on our Report, 'Economic and Social Rights in Northern Ireland: Models of Enforceability', which will be published in November 2020. This Report was commissioned by the Human Rights Consortium and authored by the Human Rights Centre, Queen's University, Belfast. I am presenting the Report to the Committee on behalf of the team that jointly produced the Report. An appendix to this Evidence identifies the members of the team, and their respective responsibilities. We are grateful to the Committee for the opportunity to present this Evidence.

2. Economic, social and cultural rights are set out in the International Covenant on Economic, Social and Cultural Rights, the Council of Europe's Social Rights Charter, the EU's Charter of Fundamental Rights, and other equivalent legal provisions. 'Economic, social and cultural rights are those human rights relating to the workplace, social security, family life, participation in cultural life, and access to housing, food, water, health care and education.'1 In this Evidence, we present a brief outline of five models for enforcement in Northern Ireland of economic and social rights (ESR) that are considered in greater detail in the main report.

3. We use the term 'model' to describe these, not in the sense that they are 'models of best practice', but simply to indicate that there are various methods already developed which differ from each other in significant ways. The focus of our Report is on the implementation of economic and social rights, given their importance in the historical context of human rights in Northern Ireland, where complaints regarding the failure of the state to deliver basic services and rights have been a frequent source of conflict. We have largely excluded discussion of cultural rights, not because they are less important, but because they may give rise to somewhat different issues in their effective implementation.

 

Scope of the Report

4. We have been commissioned by the Human Rights Consortium to identify possible methods of enforcing ESR in Northern Ireland that span the middle of the spectrum between full enforceability on the one hand and declaratory principles on the other. The purpose of doing so, we understand, is to stimulate debate about how ESR could be better delivered, even if the approach of what we shall call 'full justiciability' is not adopted. (By 'full justiciability', we mean the ability of courts to enforce ESR directly in the same way as other human rights under the European Convention on Human Rights (ECHR), such as the right to freedom of expression, are enforced under the Human Rights Act.) As individuals, several of the authors have taken public positions on the desirability of such a move. As a group, however, we do not take a position on whether such full justiciability should be adopted as regards ESR; nor do we rule out further legislative or constitutional reform explicitly recognising socio-economic rights.

5. We are conscious that the Northern Ireland Human Rights Commission (NIHRC) has provided its Advice to the Secretary of State for Northern Ireland on a Northern Ireland Bill of Rights. If adopted, the NIHRC's Bill of Rights, which contains socio-economic rights among others, would make it unlawful to act incompatibly with them. Several of the authors were involved in various ways in developing the NIHRC's approach. Again, as a group, we neither endorse nor reject these proposals. None of the models we are considering stands in the way of the enactment of a strong and inclusive Bill of Rights for Northern Ireland. The models we discuss below do not replace such an approach; nor do they prevent such an approach. But they could be adopted even if such approaches as expanding the Human Rights Act 1998 (HRA) to encompass ESR or adopting a Bill of Rights along the line of that proposed by the NIHRC were rejected within Northern Ireland.

 

Five models

6. Here are the five models we discuss in the main Report:

Model 1: pre-legislative scrutiny by the Northern Ireland Assembly and amending the Ministerial Code of Northern Ireland Ministers

Model 2: including socio-economic requirements in specific legislation

Model 3: Constitutionalizing ESR principles, where the Assembly has principal responsibility to implement

Model 4: Progressive implementation and restricted judicial review, such as on grounds of reasonableness

Model 5: Application of ESR through their incorporation in future free trade agreements

7. Our development of these models has been an iterative process, involving discussion internally within the group, and externally with stakeholders. We do not rank these models in terms of their political feasibility or effectiveness, and the listing of the options from 1 to 5 does not indicate any such preference. Nor do we as a group or as individuals necessarily propose any of these as a preferred option, singly or together; but they seem to us among the leading candidates situated on the spectrum between full justiciability of 'subjective rights' and simply declaratory statements, tending towards the middle of that spectrum. These options were tested and scrutinized at later stages in the process including by those who participated in a peer-review event with interested stakeholders (see Appendix for details). This Committee will also have the opportunity of considering these options and commenting on them, as part of its broader inquiry, and we welcome this scrutiny.

8. There is already extensive, if patchy, implementation of various economic and social rights in Northern Ireland law, even if these protections are not labelled as such. In this context, we need to take into account both common law and statutory provisions regarding rights in the housing, social security, education, employment, human rights, and equality contexts. All of these go some way towards meeting some aspects of internationally-protected ESR, but taken together they still fall short of protecting all internationally-protected ESR to the degree required to satisfy international obligations, as any of the recent reports on the state of ESR in Northern Ireland by the Committee on Economic, Social, and Cultural Rights makes clear.2

9. The existing protections do mean, however, that any new initiative is not starting from scratch, which has implications for how best to proceed. The models we discuss below should be regarded as additional to the construction of complementary mechanisms, in civil society particularly, to better enable existing rights that directly or indirectly protect ESR rights to be implemented more effectively. In particular, it will be important to consider ways in which existing rights could be better mobilised to serve the goal of securing the effective protection of ESR. On the one hand, therefore, the aim of the Report is to enable ESR to be enhanced. On the other hand, there are also developments (the budgetary costs of dealing with the Covid-19 pandemic, the economic effects of the UK's exit from the EU, among others) that lead some to be concerned that it may be difficult even to sustain existing levels of ESR protection. The aim of the Report is also to identify, therefore, how existing ESR might be protected.

 

Pre-legislative scrutiny

10. Model 1 is based on the proposition that placing responsibility for dealing with ESR on local politicians could be an effective way in which Ministers and civil servants would be regularly reminded of international legal obligations to implement socio-economic rights in Northern Ireland. One way of doing so would be to establish, probably through a change in the Standing Orders of the Assembly, an additional committee charged with regular pre- legislative scrutiny of Bills going through the Assembly for compliance with ESR. Anticipating that such scrutiny would occur should stimulate Ministers and civil servants to take such rights more seriously in the context of considering policy options. This ensures a certain degree of mainstreaming at the pre-legislative stage.

11. The approach developed in Model 1 could be taken somewhat further but stopping short of requiring legislative changes. This would require an amendment to the current Ministerial Code of Northern Ireland Ministers requiring Ministers to take ESR into account in exercising their Ministerial responsibilities. (At the moment, there is only a vague requirement on Ministers to uphold the 'rule of law', and the Attorney General produces human rights guidance, based on a range of international standards.) An amendment to the Ministerial Code could have the effect of further stimulating Ministers and civil servants serving those Ministers to build consideration of ESR into the fabric of decision-making in those areas in which powers have been devolved, as well as serving as a potentially important requirement on Ministers in carrying out negotiations with Westminster/Whitehall on policies relevant to Northern Ireland, where powers have not been devolved. This would also assist the Secretary of State who has the power to intervene if Ministers are in breach of international obligations (Northern Ireland Act 1998, section 26).

12. This model could be constructed in such a way as to be of particular relevance for the budgetary process. One of the issues that a Committee of the Assembly could consider would be building a role for the Committee into the budget process. Another variation would be to put a duty on the Department of Finance and Personnel to track spending against the realization of specific ESR, putting an emphasis on how ESR would be furthered within the lifetime of the relevant budgetary process. Another issue for consideration would be whether the Committee adopts an advisory role or a supervisory one. In this sense, the legal status of the Committee's decisions could be considered – i.e. whether the decisions would be persuasive (soft enforcement) or binding (strong enforcement) on the Assembly. Changing the Ministerial Code could also have significant implications for the budget process. The (UK) Treasury Green Book already refers specifically to the International Covenant on Economic, Social and Cultural Rights as something to be taken into account in devising and testing policy options. Much useful work has, of course, already been done in Northern Ireland on budgeting in a range of contexts, including gender budgeting, children's rights budget, and socio-economic rights budgeting.

 

Piecemeal specific legislation

13. In Model 2, the approach taken would be to insert references to ESR in specific pieces of Assembly or Westminster legislation applying to Northern Ireland. One example could be section 75 of the Northern Ireland Act (NIA), which might be amended to include something like 'socio-economic status' as one of the grounds subject to the mainstreaming requirements of Schedule 10 of the Act. This would generate significant obligations, both substantive and procedural, on public bodies generally to engage in regular consultations with civil society on how policies and practices impact on those of lower socio-economic status. On the other hand, in the past there have been objections to opening up section 75 to legislative scrutiny, and concerns have been expressed as to the robustness of the (effectively non-justiciable) 'due regard' duty, and so we consider in the main Report whether the risks in amending section 75 outweigh any advantages.

14. It should be noted that section 1 of the Equality Act 2010, which does not extend to Northern Ireland, has been devolved to Scotland and Wales (although the provision is not yet commenced in Wales). This means that Westminster has devolved the power to introduce a socio-economic equality duty to the Scottish Parliament and Welsh Assembly (since May 2020, the Welsh Parliament) respectively. With the process of devolving the power now complete in Scotland, if used Scotland will be the first part of the UK to protect those from socio-economic deprivation based on a procedural due regard duty (the section was never commenced at a GB level). With Scotland and Wales now in a position to introduce a socio-economic equality duty this could set a precedent for amendment to section 75, which would require Westminster's approval. The opportunity could also then be taken to reflect on the effectiveness of the enforcement provisions attached to section 75 and whether these could be strengthened and improved.

15. Another possible approach within this Model would be for the Assembly to be persuaded to see the benefits in further protecting specific aspects of ESR piecemeal in Assembly legislation. In creating the Northern Ireland Commissioner for Children and Young People (NICCY) and the Commissioner for Older People for Northern Ireland (COPNI), the desirability of having regard to international standards was written into the legislation. Building on this approach, a specific 'due regard' obligation with reference to ESR might be introduced in Assembly legislation addressing particular topics, for example in the education, employment, health, housing and disability fields, perhaps at the initiative of 'backbench' Members of the Northern Ireland Assembly (MLAs). There is also scope to consider whether the Assembly might adopt a form of holistic incorporation similar to the Welsh Assembly Measure that introduced a duty to have due regard to the United Nations (UN) Convention on the Rights of the Child. This kind of legislation is within the competence of the Assembly and could provide a 'self-regulatory' mechanism for ESR in observance of international obligations (Schedule 2 paragraph 3(c) NIA 1998). For example, the Assembly could introduce a duty to have due regard to ICESCR when legislating in devolved areas.

 

Fundamental non-justiciable duties

16. Constitutions often play the vital function of identifying what are the fundamental values that a country espouses and seeks to uphold. Sometimes these values are articulated as 'rights' that may be enforced by courts. There is, however, no reason of principle why some fundamental values identified in a constitution should not be separated off and made non- justiciable duties rather than justiciable rights. The Constitutions of Ireland (1937) and India (1950) both incorporate non-directly justiciable duties on the State (the so-called Directive Principles) to apply certain socio-economic principles when making laws. There are degrees of ESR enforceability in these models and sometimes the judiciary can play a role in enforcement, short of making ESR rights fully justiciable in the same way as civil and political rights. In India, for example, the courts have subsequently extended ESR protection through a dynamic interpretation of civil and political rights drawing on the Directive Principles.

17. A variation on these approaches is to be found in the Constitution of Finland, in which several ESR are mentioned, but the responsibility is placed on the legislature to implement these rights, and litigation is based largely on the specific legislation enacted to implement the right, rather than the Constitution itself. For example, section 16 on educational rights provides in part: 'The public authorities shall, as provided in more detail by an Act, guarantee
...'. Section 17, on the right to one's language and culture, provides in part: 'The right of everyone to use his or her own language ... shall be guaranteed by an Act.' Section 18, on the right to work, provides in part: 'Everyone has the right, as provided by an Act, to earn his or her livelihood ...'. Section 19, on the right to social security, provides in part: 'Everyone shall be guaranteed by an Act the right to basic subsistence.' There is therefore a robust ESR constitutional framework but the legislature retains a strong degree of control over how ESR are interpreted and enforced. The court performs ex post judicial review in the context of the legislation introduced to fulfil ESR.

18. It should be noted, however, that in two respects the approach in Finland does not leave matters entirely in the hands of the legislature. First, whilst the Finnish example places a strong emphasis on the legislature as the state body responsible for implementing ESR, there are some constitutional ESR provisions which are treated as creating subjective justiciable minimum-core rights, such as Article 19(1), which protects the right to social assistance, in particular in connection with issues such as emergency health care based on the concept of dignity. Second, the Finnish constitutional model is supported by a Constitutional Committee that scrutinises legislation for ESR compatibility pre-enactment, so-called ex ante review. This approach can therefore be considered in the wider context of Model 2. This review is binding on Parliament. This can be compared to the weaker enforcement of pre- legislative scrutiny in the UK Parliament conducted by the Joint Committee on Human Rights where the decisions of the Committee are not binding on Parliament.

 

Light-touch judicial review

19. Courts in the United Kingdom currently interpret and apply human rights set out in the Human Rights Act using an approach that sets a high bar for those seeking to justify breaches of human rights. An approach could be adopted that required courts to set a much lower bar in the context of ESR. The Joint Committee on Human Rights of the United Kingdom House of Commons and House of Lords proposed a model of phased implementation short of the adoption of fully enforceable subjective rights by a rights' holder in court. The Joint Committee put forward for consideration an approach, which would initially only include a limited range of rights (health, education, housing, and an adequate standard of living). As applied to Northern Ireland, the Assembly and Executive would be under a duty to take reasonable legislative and other measures within its available resources, to achieve the progressive realization of these rights. The Assembly and Executive would be given the primary obligation to decide how best to achieve that agreed aim. So far, this looks similar to Model 3. There are, however, two ways in which this approach might move towards more legal enforceability.

20. The first approach would be to allow a five- to ten-year window in which no judicial enforcement of these rights would be permitted, but after which the rights would be fully enforceable as subjective rights by aggrieved individuals, thus enabling the Assembly and Executive to get its house in order, but with an effective deadline for doing so. This is similar to the delayed remedy mechanism in Canada, which might prove a useful approach to adopt. The second approach would be to provide that individuals would not be able to enforce these rights for themselves (these are often referred to as 'subjective rights), but would be able to review the reasonableness of the actions taken or not taken by the Assembly and Executive. These approaches might be combined, with a staged implementation, followed by judicial review only on reasonableness grounds.

21. There is also scope to consider within the second, third and fourth models, in particular, whether there are particular types of innovative remedies which the courts could adopt which help to build on the positive balance of responsibilities between the courts and the Assembly and Executive. For example, issuing an order that would have no suspensory effect on the continuation of a provision found not to be in compliance with ESR principles, allowing time for the Assembly to amend the provision to secure compatibility. Other judicial remedies might be considered, where the court declares an action unlawful and then defers the issue back to the Assembly or Executive and then plays a supervisory role in ensuring compliance with the judgment.

 

Trade conditionality

22. This fifth model has been developed specifically to address the circumstances that will apply following the United Kingdom's exit from the European Union. We considered how, in particular, the Northern Ireland Executive and Assembly might best address ESR issues that will arise in future trade and investment agreements that will apply in Northern Ireland, and are likely to significantly influence the ability of any Northern Ireland government to advance (indeed, even to maintain) ESR in the future. There are two core ideas, addressing two different aspects of the UK's exit from the EU: the loss of EU-based ESR protections; and the danger to ESR of the need to negotiate trade and investment agreements with non-EU states.

23. First, the EU, when negotiating a free trade or investment agreement with the United Kingdom (either generally or one relating to the Northern Ireland dimensions) would insist that the United Kingdom continue to implement a basic set of human rights requirements (including ESR) as a condition for that agreement being concluded. Second, in any trade or investment agreement with non-EU states, provisions could be included that would directly or indirectly protect the Northern Ireland Assembly's ability to legislate in the area of ESR, human rights, and social policy. Otherwise, there is a danger that future trade or investment agreements could undermine that ability.

Christopher McCrudden*
21 October 2020

* CBE, FBA MRIA; Professor of Human Rights and Equality Law, Queen's University Belfast; L Bates Lea
Global Professor of Law, University of Michigan Law School; Blackstone Chambers.

 

Appendix

The main project manager of the contract was Professor Christopher McCrudden FBA MRIA, who is Professor of Human Rights and Equality Law, Queen's University Belfast and L Bates Lea Global Professor of Law, University of Michigan Law School. The following additional members of staff of the School of Law also worked directly on the project: Professor Colin Harvey; Professor Brice Dickson; Dr. Luke Moffett; and Dr. Kathryn McNeilly. From outside the School of Law, Dr. Katie Boyle also participated. Dr Boyle was Senior Lecturer in Law at the University of Roehampton at the time she drafted her contribution to the Report and is now Associate Professor of International Human Rights Law at the University of Stirling. She qualified with the UK Government Legal Service and has undertaken a similar project to this for the Scottish Human Rights Commission. Professors Dickson and Harvey along with Dr Katie Boyle and Dr Kathryn McNeilly helped develop the first four models and to identify and take into account the relevant context of Northern Ireland, under the direction of the lead consultant Professor McCrudden, who helped develop the fifth model. Dr Luke Moffett helped with the technical delivery of the project and liaised with the project team and Queen's University Belfast Human Rights Centre in the early days of the project. Professor McCrudden edited the entire manuscript prior to submission to the Consortium. Helen Flynn and Kevin Hanratty provided extensive comments on earlier drafts. On the 29th September 2020, an on-line peer-review meeting to discuss the draft report was held between members of the project team and interested stakeholders and academics, Those participating were: Christopher McCrudden, Kate Riordan, Toomas Kotkas, Helen Flynn, Brian Gormally, Kevin Hanratty, Kathy Maguire, Colin Harvey, Colm O'Cinneide, Joanna Monaghan, Bruce Porter, Martin O'Brien, Rachel Powell, Roisin Muirhead, Les Allamby, Rendall Bousquet, Paddy Kelly, and Brice Dickson. We are grateful to all who participated and provided extensive and helpful comments and suggestions, many of which are reflected in the final report.

 

References

1 Office of the High Commissioner for Human Rights, Fact Sheet #33, 2008.

2 Committee on Economic, Social and Cultural Rights, 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.

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