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 of 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 of 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 of 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 overwhelmingly single mothers with a large number of children (who received more benefits as a result) living in London and the South East of 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 out 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.
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