Economic and Social Rights Law

Incorporation, Justiciability and Principles of Adjudication

Katie Boyle

• Publisher: Routledge
• Year: 2020
• ISBN:
  9781351579766
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

This book develops principles of adjudication to facilitate accountability for violations of Economic and Social Rights.

Economic and Social Rights engage with areas relating to social justice and their violation tends to impact on the most vulnerable members of society. Taking the UK as a case study, the book draws on international experience and comparative practice, including progressive reform at the devolved subnational level, that demonstrate the potential reach of Economic and Social Rights when the rights are given legal standing in domestic settings according to their status in international law. The work looks at different models of incorporation of rights into domestic law and sets out existing justiciability mechanisms for their enforcement as well as future models open to development. In so doing the book develops principles of adjudication drawn from deliberative democracy theory that help address some of the critiques of social rights adjudication.

This book will have a global and cross-sectoral appeal to legal practitioners, the judiciary and the civil services, as well as to researchers, academics and students in the fields of human rights law, comparative constitutional law and deliberative democracy theory.

Chapter 1 of this book is freely available as a downloadable Open Access PDF at http://www.taylorfrancis.com under a Creative Commons Attribution-Non Commercial-No Derivatives (CC-BY-NC-ND) 4.0 license.

1 Principles of ESR Adjudication

The book examines the potential models of incorporation (ways of embedding rights into domestic law) for economic and social rights (ESR) at the national and devolved (subnational) level and the justiciability mechanisms (adjudication by a court) that enable access to effective remedies in court for violations of ESR. In so doing, the book develops principles of ESR adjudication (the building blocks of good practice) and categorises justiciability mechanisms for ESR enforcement at both the national and devolved level.

The book is written with a view to empowering rights-holders and those who support them by setting out routes to remedy for violations of rights and also exploring options for long-term structural change. It is therefore also designed to provide decision makers and those exercising state power with feasible options for progressive human rights reform. It contributes to the academic discourse whilst also engaging with the practicalities of access to justice. The research tells us that there is a significant legal accountability gap in the protection of ESR across the UK jurisdictions and much of the international framework is ignored or rejected unless incorporated.¹ Human rights are conceptually framed in a way that excludes the operation and enforceability of ESR. Indeed, the national political discourse around social rights is dominated by existing domestic human rights structures and our existing domestic human rights structures marginalise ESR to the sidelines² – such as forming aspects of civil and political rights, or featuring as part of formal equality.³ This book re-conceptualises human rights in the UK by bringing in both the devolved and international perspectives. By doing so it becomes clear that the human rights story in the UK is much broader and much more complex than would first appear. The book makes a contribution to the UK discourse but also provides incorporation models, justiciability mechanisms and principles of adjudication that can apply elsewhere, contributing to the wealth of discourse internationally on best practice for the protection of ESR.

1 Katie Boyle, Models of Incorporation and Justiciability for ESC Rights, Scottish Human Rights Commission (2018), available at www.scottishhumanrights.com/media/1809/models_of_incorporation_escr_vfinal_nov18.pdf

2 For a discussion on this see Paul Hunt, Social Rights Are Human Rights BUT THE UK SYSTEM IS RIGGED, Centre for Welfare Reform (2017) available at www.centreforwelfarereform.org/uploads/attachment/584/social-rights-are-human-rights.pdf

3 Katie Boyle and Edel Hughes, ‘Identifying Routes to Remedy for Violations of Economic, Social and Cultural Rights’ (2018) 22 International Journal of Human Rights 43–69; Katie Boyle, ‘The Future of Economic, Social and Cultural Rights in Scotland: Prospects for Meaningful Enforcement’ (2019) 23 Edinburgh Law Review 110–116.

There are two key narratives on ESR at play and each one is engaged throughout the book. The first of which has for some time accepted the legally enforceable status of ESR and has been developing in both discourse and practice in international law and comparatively. The devolved dialogue in Scotland, Wales and in Northern Ireland (during the Bill of Rights process) is now more broadly engaged with the first of these narratives. The second narrative, and the more prominent in the UK national discourse, is that ESR are non-justiciable, cannot legitimately be enforced by a court, contravene parliamentary supremacy and are aspirational in nature. These competing narratives are difficult to reconcile, which in turn frustrates the process of making a contribution to the discourse that is sufficiently advanced to build on the existing research on the former narrative without being completely at odds with the discourse surrounding the latter. This frustration engages with wider debates about political v legal constitutionalism and the fact that different models co-exist concurrently across the UK constitutional framework (with the devolved jurisdictions pertaining to a stronger form of legal constitutionalism).

This introductory chapter contextualises the book in terms of the theory of rights and the status of ESR in the literature and discourse. It deals with arguments for and against the status of ESR as legal rights and so begins by addressing the critical arguments against the exploration of ESR as legally binding rights that can be enforced in court (that they are ‘justiciable’). The book is premised on the basis that rights are legally binding and justiciable if the application of the law renders them so (following the positivist approach). This examination is also placed in wider social, economic and cultural contexts in which the questions around justiciability are framed. Critically, the research proposes principles of adjudication that address the critiques of ESR as justiciable rights drawing on constitutional and deliberative democracy theory.

The book proposes the circumstances in which ESR justiciability can be made legitimately possible. As a precursor to this argument, however, it is necessary to briefly address the reasons why ESR should receive any protection at all or whether it is appropriate that they are defended and enforced through the court. The theoretical framework in which the book is based rests on the premise that substantively securing ESR is a good thing for the UK and its constituent parts, and a good thing for society more generally. This position is based on certain assumptions drawn from moral and legal philosophical considerations. It is also based on a theoretical framework in the normative sense drawn from international standards and binding legal obligations sourced from the international legal position.⁴ It is not proposed that models of incorporation or justiciability are the only means in which to secure ESR. Rather it is proposed that rendering the rights justiciable offers a more comprehensive system of protection that can support other institutional mechanisms as, at the very least, a means of last resort when other mechanisms fail.⁵

4 International law or international standards can act as a frame of reference for understanding the rule of law value formation in liberal democracies.

5 This is supported by the obligation to provide an effective remedy for a violation of an ESR in accordance with international law, discussed in detail in Chapter 2.

Theoretical Objections to ESR

The philosophical account of human rights in both theory and practice traditionally follows a minimalist approach. Generally, this understanding of rights can be explained in terms of right-holders (rights are held by everyone and are universal) claiming rights against addressees (the state and private persons) on the basis of urgent and specific claims of minimum (and progressive) standards that are based on normative values with or without legal recognition.⁶ King asserts that there is ‘near consensus’ amongst philosophers of human rights that ESR are ‘real’ human rights.⁷ Nonetheless, the principal arguments identified in a review of the sceptical perspective (those views that are not within the ‘near consensus’ category) reveal legitimate concerns in relation to the validity of ESR as viable human right claims in a theoretical and philosophical sense.⁸

The literature for decades has engaged with dialectic philosophical trajectories entailing the ebb and flow of ESR as legal rights proper. Cranston rejects ESR because they cannot be universal in the same way as civil and political rights. Employee rights, he declares, are not universal because not all humans are employees – how then can this be a universal category? Likewise, Cranston argues that they do not hold the same moral urgency as civil and political rights (CPR), comparing for example the right to paid annual leave compared with the right not to be tortured – ESR and CPR are not on an equal footing.⁹ Donnelly rejects these arguments and countenances that not all CPR are universal (such as the right to vote) and some ESR do hold moral urgency (such as the right to food).¹⁰ O’Neill has argued that ESR are not feasible as legally enforceable rights. Drawing on Kant’s distinction between perfect obligations and imperfect obligations, O’Neill questions how can right-holders claim obligations to meet claims that have not been allocated to specific obligation-bearers? For example, the right to food entails an imperfect duty dependent on charity or beneficence and the hungry cannot identify who exactly is responsible for feeding them. O’Neill has argued that to proclaim human rights without taking seriously who has to do what to fulfil them is morally irresponsible.¹¹ Sen has rejected this position in that all human rights can entail aspects of imperfect obligations – this does not mean they are not genuine rights.¹² Thomas Pogge argues that O’Neill is mistaken in assuming a requirement to identify a duty-bearer in order to substantiate a genuine right using the end of slavery as an example of an imperfect obligation with no specific duty-bearer but a right to freedom from slavery is a right nonetheless.¹³ Nickel, less dismissive than Cranston or O’Neill, highlights problems of applicability – human rights can only require burdens that are feasible and feasibility is difficult to estimate. ESR, Nickel argues, require institutional mechanisms of implementation.¹⁴ Rawls distinguishes ESR from ‘human rights proper’ and questions how can ESR be human rights proper when they require specific institutions?¹⁵ This approach is embedded in natural law theory that rights are natural and cannot presuppose specific kinds of institutions, other...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• List of Tables and Figures
• Table of Cases
• Table of Legislation
• Acknowledgements
• 1. Principles of ESR Adjudication
• 2. ESR in International Law: Justiciability and Remedies
• 3. The Jurisdictional Hierarchy as Pillars of the UK Constitution: The Regional Framework
• 4. The Constitutional Resistance to Human Rights: The UK in a Comparative Context
• 5. Models of ESR Justiciability: Existing Mechanisms and Future Options
• 6. ESR and Devolution
• Index