Eurorights Blog: Austerity, Welfare Reform and Human Rights
A pernicious combination of welfare reforms and the protracted downturn in the British economy has led to considerable hardship for many people. Indeed, an increasing number of people lack enough to eat. As Newsnight’s Paul Mason noted hunger is a serious problem in the UK for the first time since the 1930’s. The UN Special Rapporteur on the Right to Food, Olivier de Schutter, noted that an increasing number of people in the UK living in poverty. Dr de Schutter expressed his concern that charitable food banks were increasingly seen as a permanent replacement for adequate welfare payments. Moreover, in a recent joint report, ‘Walking the Breadline’, Oxfam and Church Action on Poverty (CAP) estimated that half a million people are now reliant on some form of charitable food aid. In their report Oxfam and CAP noted that ‘there is clear evidence that the benefit sanctions regime has gone too far, and is leading to destitution, hardship and hunger on a large scale.’ This is not a surprise. In October 2012 the Coalition government announced increased sanctions under the Job Seekers Allowance (JSA) following the enactment of the Welfare Reform Act 2012 (Regulations). In essence, if the claimant fails to comply with the JSA regime they will lose their benefits for a number of weeks. In his evidence to the Scottish Parliament’s Welfare Reform Committee Professor Alan Miller of the Scottish Human Rights Commission observed that ‘certain measures under the Welfare Reform Act had already created insecurity among the public who were left with too few legal options to protect themselves due to the refusal of the UK to incorporate such universally recognised human rights treaties into domestic law.’ This begs the question are the public really left without legal options in this area?
The UK is of course signatory to a number of international treaties that guarantee social and economic rights. The UK has signed and ratified the European Social Charter. The Social Charter guarantees, amongst other things, the right to social security. Crucially, however, the UK decided not join the collective complaints procedure where Finland, for example, has found its welfare policies under scrutiny. Consequently, a complaint from the UK cannot be lodged under this procedure. Similarly, the UK is also a party to the International Covenant on Economic, Social and Cultural Rights (ICESCR), which guarantees the right to an adequate standard of living (Article 11) and the right to social security (Article 9). As the Committee on Economic, Social and Cultural Rights noted in its recent commentary ‘the right to social security is of central importance in guaranteeing human dignity.’ Social security should be adequate in order to ensure the dignity of the individual (Para 22, General Comment No.19). It would be tempting to dismiss these treaties as legal window dressing. However, international law frequently informs the interpretation and application of the ECHR. (see for example Jersild v Denmark  ECHR 15890/89, paras 30-32.)
Indeed, what of the ECHR? In R v Secretary of State for the Home Department ex parte Limbuela  UKHL 66 the House of Lords held that the withdrawal of benefits to a vulnerable and homeless group of asylum seekers was contrary to Article 3 ECHR as it constituted degrading treatment. (See for example Baroness Hale, para 78). By extension Article 3 ECHR might apply to those who experience destitution as a consequence of losing their social security benefits under Coalition reforms. However, the European Court of Human Rights has yet to consider fully the question of whether the ECHR guarantees a minimum standard of living. In Larioshina v Russia  ECHR 56869/00 (dec.) the applicant complained that her pension and other social security benefits were inadequate. In dismissing Laroshina’s application the noted that
a complaint about a wholly insufficient amount of pension and the other social benefits may, in principle, raise an issue under Article 3 of the Convention which prohibits inhuman or degrading treatment. However, on the basis of the material in its possession, the Court finds no indication that the amount of the applicant’s pension and the additional social benefits has caused such damage to her physical or mental health capable of attaining the minimum level of severity falling within the ambit of Article 3 of the Convention. [para 3]
Minimum standards of living have received more extensive judicial development elsewhere, and it is possible to read constitutional guarantees in such a way as to give greater protection to the interests protected by international conventions. Without doubt the most extensive contribution in this context has been made by the German Constitutional Court. In Hartz IV 1 BvL 1/09 (9 February 2010) the Constitutional Court examined the constitutionality of a reduction in social security for the unemployed and their dependents. The Constitutional Court held that Articles 1(1) (human dignity) and 20(1) (the principle of the social welfare state) of the Basic Law ensured ‘to each person in need of assistance the material prerequisites which are indispensable for his or her physical existence and for a minimum of participation in social, cultural and political life.’ (para 145) A person has a constitutional guarantee to a ‘subsistence minimum’, and while the Court did not fully define this concept it is clear that under the Basic Law a person cannot be reduced to an economically demeaning existence by the provision of inadequate welfare. Welfare must cover the necessities of a dignified life (para 137) The state needs to guarantee the provision of social security by law. Crucially ‘a person in need of assistance may not be referred to voluntary benefits of the state or of third parties whose provision is not guaranteed by a subjective right of the person in need of assistance.’ (para 136, emphasis added) Nonetheless, the legislature in this context enjoyed a margin of appreciation when setting the level of benefits. It was not for the Constitutional Court to second-guess the determination of the legislature provided that it met the constitutional minimum level. The Basic Law cannot dictate the essence of the legislative process. Even so the legislature needed to demonstrate that it had properly determined the level of benefits on an empirical and coherent basis. As the Bundestag had failed to do this, the Constitutional Court ordered it to remedy the situation.
In the subsequent Asylum Benefits 1 BvL 10/10 (18 July 2012) case the German Constitutional Court affirmed its approach in Hertz IV, noting in addition that the level of benefits need to specific identified and regularly reviewed by the legislature. (para 64.) As with the Hertz IV case, when deciding that the inadequate welfare provision for asylum seekers was unconstitutional the Court noted that the legislature should be guided by the international obligations of Germany under, for example, the International Covenant on Economic, Social and Cultural Rights (para 70).
When drawing up the Welfare Reform Act 2012 the Coalition failed to adequately consider the international obligations of the UK. The Parliamentary Joint Committee on Human Rights noted that the Secretary of State had failed to undertake any adequate analysis of the human rights implications of his proposals (para 1.34). Moreover, the Committee concluded that while the imposition of conditionality and sanctions would not in principle infringe Article 3 ECHR, in practice the operation of this policy carried an inherent risk of destitution that would be incompatible with that article. (para 1.45) The mounting evidence outlined above supports this concern.
Furthermore, whilst care must be taken when using comparative case law the German case law offers at least one interesting lesson. Article 3 of the ECHR contains positive obligations similar to the German Basic Law. European law requires the UK to take positive steps to protect dignity. This duty is informed by the other international obligations of the UK, such as those mentioned above. In the area of welfare provision the case law flags the possibility that a draconian approach to welfare carries a risk that it will be incompatible with Article 3. In short, a restriction on welfare payments either by a reduction in their level or by imposing overly strict conditions on their application carries a risk of destitution for those who would otherwise have little or no support. Arguably, the legislature has an obligation to properly assess not only if the level of benefits is adequate to protect dignity, but also to ensure that the operation of the welfare scheme does not lead to destitution. In failing to do so the UK may find itself before the European Court.