Law Offices of David G. Arganian, Seattle, WA

It's time to enshrine socioeconomic rights in law

In contrast with an increasing number of other countries, the UK does not afford domestic recognition to economic and social rights, despite having ratified the majority of the relevant international conventions. Over two days last week more than 200 politicians, lawyers, economists, academics and campaigners gathered at the Law Society in London to discuss this. The event's scale and mood reflected a growing demand for better legal protection for these rights in the UK.

This might appear counterintuitive at a time when it is widely speculated that the government is preparing to repeal the Human Rights Act and human rights generally are perceived to be under attack. Certainly this is no time for complacency and demands for an expanded set of enforceable rights must be advanced with great care. Yet it is notable that the critics almost never identify the particular human rights they wish to discard. Arguably it is not human rights that are unpopular, but the people most publicly associated with their invocation (criminals, foreigners, Travellers or all of the above).

Of course human rights could be better appreciated. There are numerous reasons for this (not least "catgate" and other attempts to mislead the public), but chief among them is their relative lacking in the UK. Healthcare, education, social security and other socioeconomic rights consistently receive very favourable public endorsement, possibly because most people feel they are highly relevant to their everyday lives. This is not to suggest that the individual liberty protected by civil and political rights isn't equally valued (it is), but "the obvious point that the freedom to choose your own path in life is pretty hollow if in reality you have few choices" (Klug, 2011).

Yet there remains a reluctance to recognise socioeconomic rights in the UK. One objection is that we already have a comprehensive welfare state and simply don't need them. This is at best debatable – the UN committee on economic, social and cultural rights has for example been critical of the UK's record in numerous respects (particularly in relation to widespread child poverty). But even if some of these rights are currently adequately respected they are no less worthy of legal protection – we have long since legislated against arbitrary detention but nobody argues we should dispose with the right not be imprisoned without trial. We are committed to the welfare state so why not enshrine it in law?

The safety net of direct enforceability would mean that where our legislators fail to foresee every eventuality, the courts could ensure no individual suffers while waiting for necessary statutory amendments to close the gaps. And on the not unheard of occasions where central or local government gets its decision-making wrong, they can be held to meaningful account before the courts. This is precisely what the courts already do in various domains covered by the Human Rights Act, including where positive duties are concerned. But when it comes to social welfare the safety net is itself full of holes: the right to be free from inhuman or degrading treatment will shield you from the most desperate levels of destitution, but only by guaranteeing absolutely minimal provision. And what about when educational or healthcare provision breaks down? Without a prescribed statutory duty to enforce, there is no redress.

Incorporating socioeconomic rights wouldn't undermine the primary role of parliament. As with most rights (article 3 is a notable exception), socioeconomic rights are not absolute but contextual, their content being informed by judicial recognition of the competing interests and complex causalities in play and the need for proper deference to the will of elected representatives. Experience from other jurisdictions suggests that incorporation rarely if ever results in the judiciary usurping the legislature's role but instead engenders between them a healthy and mutually beneficial dialogue. Besides, as the president of the supreme court, Lord Phillips acknowledges, "there's always a bit of a grey area between the province of the courts and the province of parliament".

Speaking at the Law Society, Justice Albie Sachs of the South African supreme court reminded us that incorporated socioeconomic rights do not impose immediate substantive obligations but instead require progressive realisation – year on year securing higher standards for more and more people. Retrogression is forbidden unless justified by exceptional circumstances. These are sound principles that militate against overly short-termist or populist tendencies in government.

Neither would these rights necessarily involve additional expenditure by the state. Human rights indicators and budgetary analysis techniques are derived from human experience and aim to improve "real-life" spending outcomes – ie to get more for less. Recognising the added value to people of wages over benefits might mean a living wage for all, rather than complex tax credits, for example. Indeed it is at times of financial constraint and limited resources that these rights best prove their worth. With the chancellor having returned the "Star Chamber" to British politics, these human rights based approaches would be invaluable.

Paradoxically, incorporation's most significant impact would likely occur outside the courtroom. Human rights law is not comprised of mere bumper-sticker slogans or platitudes, but a rich and insightful jurisprudence and body of learning. It can shape policy, increase transparency and accountability and enhance rather than diminish democracy. The human rights, child poverty and equality acts already do some of this work. The joint committee on human rights also makes a valuable contribution. Completing the picture and adding socioeconomic rights wouldn't be as radical as some insist, but would be a driver of higher quality law-making. MPs, parliamentary committees, interest groups and individuals would all be better equipped to engage in political debate.

Human rights are not simply about minimum standards but above all human dignity. They comprise a holistic framework of the key constituents for human flourishing. Understood in this way, they are inspirational. A human rights narrative founded on only a partial replication of this framework is bound to produce distorted results and public unease. Challenging this state of affairs, a socioeconomic rights movement is beginning to emerge in the UK. Its proposals merit serious consideration.

© 2000-2011 David G. Arganian, all rights reserved.