Right or wrong

“Like slavery and apartheid, poverty is not natural. It is man-made and it can be overcome and eradicated by the actions of human beings.” So said former South African president, the late Nelson Mandela, to a crowd of 22,000 people crammed into Trafalgar Square almost a decade ago. It was Madiba’s words that opened proceedings at an event organised by the Scottish Human Rights Commission (SHRC) to mark this month’s International Human Rights Day. Then, one by one, around a dozen people with direct experience of poverty shared their experience of the obstacles they encountered in terms of housing, health, employment and the like with social justice campaign groups and charities, as well as representatives from government and public authorities. It was fitting, perhaps, that on that day, the heating at the Pearce Institute in Govan where the event was held, had cut out. 

“Tackling poverty is not about charity, it is not about policy, it’s about justice and it’s about rights to live a life of dignity free of poverty,” says SHRC chair, Alan Miller. That said, the framework of economic and social rights that are conducive to this, such as adequate housing, education, rights at work and the highest attainable standard of health, is somewhat shakier than it is for protection of civil and political rights. Successive UK governments have failed to incorporate a number of conventions drafted by the United Nations into domestic law, among them the International Covenant on Economic, Social and Cultural Rights (ICESCR), in what is broadly a debate on where power lies: with the politicians or with the courts. 

In Glasgow yesterday, we were noting that if you take the train from north-west Glasgow – Bearsden, Milngavie – down to the south-east – Shettleston – at each stop you lose two years of your life expectancy. That’s unacceptable

Their absence in the UK and further afield has come into sharper focus as a result of the latest economic crisis. In Ireland, for instance, austerity measures were seen as a “crucial factor in galvanising support for the inclusion of economic and social rights” within the scope of the Constitutional Convention’s proposed amendments to the constitution, says Professor Aoife Nolan, who specialises in international human rights law at the University of Nottingham’s School of Law. It is South Africa, though, that is considered the forerunner, having produced one of the most progressive constitutions in 1996, two years on from the first post-apartheid democratic elections. Its Bill of Rights not only guarantees traditional civil rights such as the right to vote and free expression, it gives equal weight to those of a socio-economic nature, including access to land, adequate housing as well as healthcare services, sufficient food and water, and social security and social assistance.

“It alleviates undue poverty, if you like,” renowned human rights activist and former South Africa Constitutional Court Justice, Albie Sachs, tells Holyrood. “It doesn’t in itself provide jobs, it doesn’t in itself provide homes, but it indicates that in the allocation of homes and shelter the principles being used have to be reasonable. It’s a great protection for the most vulnerable in society.” Two particular judgments stand out; one ruling that government was obliged to provide the antiretroviral drug Nevirapine to pregnant women with HIV in hospitals, the other compelling ministers to provide appropriate shelter for people without a roof over their head as a result of eviction, fire or floods. 

“What our constitution says is the state has a duty to take progressive steps to realise the rights within its available resources; that’s where the rationing comes in,” adds Sachs. 

“But it can’t cut back unreasonably, it’s got to take reasonable measures to move forward and the courts will control, in that sense, whether or not the measures are reasonable, giving a great degree of latitude and discretion and choice to government who know more about housing, health and education than the judges do. But if the state action is unreasonable then the courts will intervene.” 

 Today, South Africa is one of more than 60-plus countries worldwide to incorporate social and economic rights in their constitutions. Models of protection differ significantly, though the trend has led to a greater focus on how Scotland might move forward in the absence of a written constitution. Prof Nolan joined James Wolffe QC, Dean of the Faculty of Advocates, at a seminar earlier this month in Edinburgh to consider that question. “We need to bear in mind does the model favoured impose obligations that are realistically achievable for government,” says Nolan. “Obviously, all human rights are aspiration to some degree. There is no country in which all the rights that they have signed up to where they have incorporated in their law are fully given effect to; this is obviously true of economic and social rights. But it is very important that the model that is used doesn’t require the state to do something that is simply impossible or that the model results in state discretion being limited to such an extent that it is rendered incapable of carrying out other constitutional options, because obviously a constitution isn’t just about economic and social rights.” 

Indeed, the UK Government has raised objections on this basis in the past, claiming that adjudication in the courts “would take decision-making on the basic policy agenda and priorities away from an elected government”. Yet, as Wolffe points out, decisions on civil and political rights can have equally broad implications for allocation of resources, one such case he had personal involvement with being Napier v Scottish Ministers, which led to the elimination of slopping out throughout the prison estate. “The concerns about judicial decisions skewing policy decisions are concerns that have to be taken seriously and faced up to, but they are concerns that are real ones in any system of public law adjudication,” Wolffe adds.

Incorporation of economic and social rights would involve, arguably, “more of a leap of faith” compared to previous incorporation of the European Convention of Human Rights, given the much smaller body of jurisprudence that would be available to domestic courts in Scotland. “But it doesn’t seem to me [that] this is again an objection in principle – it’s an issue which would have to be debated,” says Wolffe. “If these rights were incorporated then the courts and lawyers would learn the techniques that they needed in order to be able to deal with them appropriately, just as they’ve done with the Convention.”

Failure to strengthen protection of these so-called second-generation rights would, according to Sachs, leave the UK and many of its neighbours trailing their Latin American counterparts, where courts have “grabbed hold” of social and economic rights. “Once upon a time, the South African Constitutional Court was like a lonely pioneer; now we’re being left behind by South America,” he tells Holyrood on his visit to Glasgow earlier this month. “Europe and North America might find itself left behind in the world; instead of contributing something creative to finding appropriate ways in which courts can intervene without overreaching themselves, the tremendous judicial capacities and intelligence and creativity that Europe, including the UK, has shown will be out of the picture. 

“I think that’s the way the world is going; the notion of fundamental rights becoming more important throughout the world, but not only your first-generation rights but certain fundamental rights to health, housing, education – at the very least, food and water – I think it’s a useful set of national standards that merit being backed up with some kind of constitutional weight and then you find the appropriate mechanisms. I’m looking forward to the day when this tremendous creative judicial intelligence that I know the UK has is really turning towards finding mechanisms for enforcing social and economic rights. I think it’s just really a matter of time.”

Despite almost a month having passed since the Smith Commission published its final report, clarity is still lacking over what recommendation 60 – ‘the Scottish Parliament can legislate in relation to socio-economic rights in devolved areas’ – specifically entails. “Presumably it’s there to signal something, but what it’s signalling I’m not entirely sure,” says Wolffe. The SHRC was one of a number of organisations within the equality sector to sit down with Scottish Government officials on 11 December to try and tease out the intention. “It’s very unclear,” adds Miller. “You get the sense it was just something that was perhaps put in there more for appearance than substantive change [but] I may be wrong.”

Nolan describes its inclusion in the report as “very comforting” amid hopes that such a step signals an intention on the part of different parties to engage meaningfully with economic and social rights. “But looking at economic and social rights in Scotland at the moment, there are clear challenges in terms of both the legal framework with regards to economic and social rights and, more importantly, in terms of the lived experience of the poor and socially vulnerable in Scottish society,” she adds. “If Scotland is serious about ensuring economic and social rights for those who need them most, it can and it must do better.” 

In the absence of further incorporation of human rights treaties into domestic law, Scotland’s first National Action Plan for Human Rights, unveiled a year ago this month, is one avenue through which authorities hope to improve the experience of those on the ground. Under three outcomes – better culture, better lives, and better world – the 48-page document outlined nine priorities to be advanced by the Scottish Government, NHS and various other organisations over a four-year period. These include enhancing respect, protection and fulfillment of human rights to achieve an adequate standard of living for all. Its first year has “inevitably been largely putting together the foundations,” Miller says, with activities in year two including pilot projects in local areas to embed human rights in health and social care, as well as a disability summit ahead of the UK’s first review under the UN Disability Convention in 2015. Meetings have also taken place with government officials on their commitment to explore giving greater weight to human rights in the budgetary decision-making process. 

“There are huge challenges [with] the degree of social and health inequality in particular,” adds Miller. “Like in Glasgow yesterday, we were noting that if you take the train from north-west Glasgow – Bearsden, Milngavie – down to the south east – Shettleston – at each stop you lose two years of your life expectancy. That’s unacceptable.” 

Case study

Towering above: Learning lessons from elsewhere

“It was trying to translate or demystify human rights for ordinary people,” says Dessie Donnelly, director of development for Belfast-based Participation and the Practice of Rights (PPR). In 2007, the charity started working with residents in the Seven Towers social housing complex in north Belfast. A 1960s development of 380 flats – the largest development of its kind in the country – the high rises had become severely run down. Chronic levels of dampness, pigeon waste on communal landings, as well as sewage overflowing through baths and sinks were standard on the estate. Historic issues around religious inequality in housing were still having an impact on the Catholic community almost a decade after the Good Friday Agreement, says Donnelly, with inadequate standards of housing and lengthy waiting lists commonplace.

 PPR provided training on human rights and introduced a human rights-based approach with a group of residents in January 2007. A few months later, Seven Towers residents devised six indicators for the right to housing against which the authorities could be benchmarked, including the percentage of residents reporting dampness and mould in their flats, as well as the number of families with children living there. Follow-up surveys were then carried out, information obtained through Freedom of Information, and residents were armed with cameras to document progress. 

“It’s not education in the sense of telling people what their rights are,” says Donnelly. “It’s explaining what your rights are but then developing tactics and strategies in a way that actually helps you to use those rights and hold people accountable. A key theme, which is growing more and more in our work, is the issue of accountability and how do you actually get decision-makers to be accountable for their obligations.”

It was trying to translate or demystify human rights for ordinary people

Modest but important improvements have been achieved, such as a £900,000 investment to replace the sewage system, while 60 families have been rehoused from unsuitable high-rise flats into more appropriate social housing. Controversial PVC cladding plans, which local residents were initially not consulted on, were altered to include insulation and best practice fire safety tests, while campaigning also led to a programme of balcony repair work. For Donnelly, the work, which has been recognised by the United Nations Office of the High Commissioner for Human Rights as an example of how local people can hold the state to account for human rights obligations, illustrates clearly how such rights can be used as a means to alleviate poverty. “[But] you have to look at the whole experience of the Seven Towers as well,” he cautions. “Taking it out of context and not looking at the whole thing could actually lead to not appreciating some of the subtleties in it and the fact that it wasn’t easy. It wasn’t just a case of residents going out, taking pictures, doing surveys and people in power just responding to it and being convinced by it. They’ve fought tooth and nail every step of the way, whether it be with the local housing manager, the housing executive, the minister for social development or the Northern Ireland Executive, and it’s not as if these bodies have willingly embraced human rights or have said, ‘we need to do it’. 
“The residents have more or less used human rights to force them to make changes. There have been honourable exceptions of people in positions of power accepting their responsibilities but by and large, it hasn’t been an easy slog and I think that’s part of the learning as well, that people and organisations who want to take this approach have to understand that it’s very, very challenging and can lead to conflict sometimes but [as] I think Mary Robinson once described it, that’s a necessary healthy conflict which is part of our democracy and you need that.”

The ethos of the Seven Towers project is now being applied in various guises across much of the city, he says, working with a number of people in homeless hostels too. In the last 18 months, up to 100 people have been assisted by PPR to campaign to make sure they are moved out of inappropriate accommodation. “I think you always have to measure it in terms of there’s people still out there living in misery with their families and they wouldn’t be satisfied with the progress unless they [are removed from that situation],” adds Donnelly. “Certainly some people have gotten out of the situations that they were in, there have been tangible improvements, there certainly have been. But it has not gone far enough, no. A lot more work needs to be done.”