Legal protection of ESR in England and Wales Jamie Burton - - PowerPoint PPT Presentation

Legal protection of ESR in England and Wales Jamie Burton Barrister, Doughty Street Chambers Chair, Just Fair

“The freedom to choose your own path in life is pretty hollow if in reality you have very few choices”

• Prof. Francesca Klug OBE, drafter of the HRA

2008

The word’s biggest common law economies and date of ratification of ICESCR)

• UK (6) ratified on 20 May 1976
• Canada (11) the day before,
• Australia (10) 2 years before that
• New Zealand (53) 78
• USA signed in 77 (1) but not ratified.

• Dualist approach: ‘International law and Real

(domestic) law”

• No written constitution
• Parliament is supreme
• No strike down power in the courts
• Do the ‘checks and balances’ work?
• An “Elective dictatorship”? – Lord Hailsham,

Lord Chancellor

• Consequently, the tyranny of majoritarian rule is

a very real and present danger in the UK

• And of course, in an imperfect capitalist

democracy like ours, by majoritarian rule I do not just mean the numerically advantaged but the economically, socially and culturally advantaged

• So in this context enforceable rights, particularly

ESR, might be considered a potential utility if not a moral imperative

UNESCR and HRC routinely calls for incorporation UK Opted out of the EU Charter of Fundamental rights because might have direct effect (Although CFEU recently declared that the opt out was a bit of a cop out – and hasn’t really worked. The ambit is narrow and the rights not all that helpful). The Revised European Social Charter – Council of Europe – 48 states – UK opted out of the complaints mechanism

Some change in attitude apparent in the courts: some regard had to the UN Conventions in the context of ECHR jurisprudence (see ZH (Tanzania) v. SSHD [2011] 2 AC 166 re UNCRC) and the public sector equality duty (see Bracking v. Secretary

• f State for Work and Pensions [2013] EWCA

Civ 1345)

Common law

Approach to resource allocations equally well known: “Difficult decisions on how a limited budget is best allocated to the maximum advantage of the maximum number …. is not a judgement a court can make.” R (B) Cambridgeshire Health Authority [1995] 2 ALL ER 129 (CA)

Common law contd/

The standard of review is relatively hands off – classic “Wednesbury irrationality” as clarified in the famous GCHQ case, 1983 by Lord Diplock: “A decision which is so outrageous in the defiance

• f logic or of accepted moral standards that no

sensible person who had applied his mind to the question to be decided could have arrived at it”

Common law contd/

R (Refugee Action) v. Secretary of State for the Home Department[2014] EWHC Section 4 ‘hard cases’ support – the Claimants did not assert that the rates were too low per se but that there was no rational basis for them and certainly no lawful reason for not increasing them in the last 5 years, during which time the costs of living had increased considerably (a 25% reduction in real terms post the financial crisis). The decision to retain the rates at the 2011 levels was quashed: the Secretary of State (Minister) had not had regard to some costs that were obviously essential living needs (washing powder/baby milk/non-prescription medication) and hadn’t taken the steps necessary to enable her to make a rational judgement when setting the rates. The limits are also clear from the ultimate outcome: after taking the above steps and considering the essential living costs the Secretary of State decided to increase the rates by precisely 0%. Compare this with the well known decisons of the German Federal Constitutional Court on these matters

HRA AND ECHR

. Article 3: the right not be subject to cruel and inhuman treatment - “state sponsored destitution” R (Limbuela) v. Secretary of State for the Home Department [2005] UKHL 66

Article 8 – the right to respect for privacy and family life In R (Bernard) v. Enfield LBC [2002] EWHC 2282 damages were awarded to a disabled woman who had been left in inadequate housing and “hideous conditions” for many months during which time she was essentially housebound and unable to wash or use the toilet properly.

But the decision in Berhard has rarely been followed and has been curtailed: e.g: R (Anufrijeva) v Southwark LBC [2004] QB 1124 “We find it hard to conceive . . . of a situation in which the predicament of an individual will be such that article 8 requires him to be provided with welfare support, where his predicament is not sufficiently severe to engage article 3. Article 8 may more readily be engaged where a family unit is involved. Where the welfare of children is at stake, article 8 may require the provision

• f welfare support in a manner which enables family life to

continue.” (Bernard was said to illustrate that.)

Yordanova v. Bulgaria (Application No 25446/06, 24 April 2012) The ECtHR found that Article 8 might extend to preventing the eviction of Roma families from land they occupied without any private law rights for over 30 years until suitable alternative housing had been found. An example of a laudable aim leading to an incomprehensible decision: what of a Roma family who were already homeless in Bulgaria, maybe even because they decided not to break the law and occupy land they did not own- there is no hint in the judgement that they too could allege a breach of Article 8 by virtue of the State not having offered them accommodation?

• 3. Discrimination

Equality Act 2010 – bans discrimination and imposes the ‘public sector equality duty’ to have ‘due regard’ to need to eliminate discrimination and promote equality of opportunity ECHR and the HRA similarly prohibits discrimination of any kind on the grounds of sex, disability and “any other status” (though Article 14 and in the context of benefits, property right under Article 1 Protocol 1 – the right to property which for a long time has included the right to a particular benefit)

Notably, as originally enacted, the 2010 Act also included the following provision at s.1: “An authority to which this section applies must, when making decisions of a strategic nature about how to exercise its functions, have due regard to the desirability of exercising them in a way that is designed to reduce the inequalities of outcome.”

In 2010 the current administration came into power and announced its “deficit reduction plan”, intended to eliminate the deficit by 2014/5, the detail of which included a decision to reduce the social security bill by £18 billion. At the same time it immediately announced that s.1 of the 2010 Act “would never be brought into force.”

Bedroom tax: R (MA) v Secretary of State for DWP [2014] EWCA Civ 13 Benefit cap: (R (JS) v. Secretary of State for DWP [2014] EWCA Civ 156

BEDROOM TAX

• The government’s criteria make no allowance for the

need of some disabled people to have more space – for example to accommodate their specialist equipment or to make allowances for their particular

• disability. The claimants maintained that they were

different from the ordinary person and ought to be treated differently as a result.

• Some 420,000 of the 660,000 people affected by the

bedroom tax were said to be disabled, according to the Government’s own figures.

• Limited amounts of DHPs were available

BENEFIT CAP

• Limits the amount of a benefit available to a

family to an amount equivalent to the median average earnings (without in work benefits).

• 30,000 households were to be effected by the
• cap. The persons most likely to be affected are
• verwhelmingly single mothers with a large

number of children (who received more benefits as a result) living in London and the South East

• f England (where accommodation costs are

very significantly higher).

BENEFIT CAP CONTD/

• These woman are unlikely to be able to go

into work as the child care costs would inevitably make them worse off than when

• ut of work and are otherwise faced with

moving to cheaper accommodation in remote parts of the country, with all the disadvantage that leaving their families, friends, schools and support networks would entail.

THE RESULT?

The court of appeal dismissed both claims (R (JS) v. Secretary of State for DWP [2014] EWCA Civ 156: R (MA) v Secretary of State for DWP [2014] EWCA Civ 13).

• No freestanding breach of Article 8 as no right to a home.

Although engaged for the purposes of Article 14 (along with A1P1)

• Whilst it was accepted that each policy had a disproportionate

adverse impact, against disabled people and woman respectively, the court found the policies were “objectively justified”.

• The test applied by the Court was a highly relative one, which has

its origins in the ECtHR, namely that a discriminatory law will be lawful unless it is shown to be “manifestly without reasonable foundation.”

WHAT WAS THE REASONABLE FOUNDATION?

• Clear that cannot be financial savings alone:

Hoogendijk v. Netherlands (2005) 40 EHRR SE22

• Bedroom tax £0.3 billion by 2015 and the

benefit cap as little as £12 million (£0.01 billion) per annum

• CA accepted that encouraging work was

sufficient in conjunction with financial savings

So in conclusion, not only is there no equality duty to take steps to positively improve the circumstances of the most vulnerable and disadvantaged, there need only be the most tenuous link with a modest financial saving to render lawful a measure which undeniably and quite intentionally worsens their circumstances.

And what of the Government’s much lauded deficit reduction plan?

And the government’s solution? £22 billion more in welfare cuts by 2016 And 60% of cuts still to be announced Reduce the benefit cap to £23,000

• The consequences?
• In January 2014, the European Committee of Social Rights found that the minimum levels of UK

welfare entitlements were “manifestly inadequate” in the meaning of Article 12(1) of the European Social Charter.

• Child poverty levels to come out today but estimate in May 2013 was that 22% would be in

relative child poverty by 2015 and that the pace of increase in absolute poverty would outstrip that for relative poverty

• Last year 1,000,000 people used food banks on basis of referrals from GPs or Job Centres – 40

times as much as in 2009

• A 75% increase in the number of people being admitted to hospital for malnutrition and 2 well

publicised deaths of disabled benefit sanctioned claimants by way of malnutrition and neglect.

• The number of workers earnings less than a living wage, the amount considered adequate to

achieve a minimum standard of living and access adequate food, rose from 3.4 million to 4.8 million between 2009 and 2012.

Meanwhile the richest 1000 people have seen their wealth double since (2009). Is this progressive realisation of the full realization of the rights recognized in ICESCR to the maximum available resources? Is this permissible retrogression?

The reason for all of this? Prime Minister David Cameron, responding to Archbishop of Westminster’s statement that welfare reform is leaving people in destitution, said that the government's economic plan for Britain was "… about doing what is right. Nowhere is that more true than in welfare. For me the moral case for welfare reform is every bit as important as making the numbers add up."

In his Theory of Justice John Rawls famously espoused his normative “Difference Principle”, Namely, that in a liberal society inequality is

• nly just if and to the extent that it works to

the advantage of the least well off.

Might not enforceable rights of the kind we are here to discuss likely produce more evidentially robust solutions to our social problems, which both uphold the fundamental need of everyone to flourish in life and at same time save money in the long run?

Why not for example?

• A right to work for people we cannot send back to their countries
• f origin
• A right to health care designed to alleviate disabled peoples’

needs for more space or

• A right to housing that means we build more affordable housing

instead of handing the money to private sector landlords

• r even,
• A right to free child care to help single mothers in particular get

back to work

• No one seriously claims that inviolable rights of

this kind will secure absolute equality, but they might just result in a more just form of inequality. And what would be so wrong with that… j.burton@doughtystreet.co.uk info@just-fair.com