UN Human Rights Treaties can be used to establish public expenditure priorities, argues Carole Ewart
Can decisions rooted in a human rights framework improve our everyday lives or is progressive change best delivered by democratically elected politicians? It should not be a matter of ‘either, or’ as our politicians have seven, ratified United Nations (UN) Treaties to draw on when deciding on policy, on services and on funding. However there is little explicit evidence that these basic human rights standards and our international obligations to deliver them do inform key decisions on everyday issues in our communities especially at a time of public sector cuts. There is even less evidence that politicians and public sector staff are aware of the extent of their existing obligations and the range of the public’s individual rights.
Just how many people are aware that the UK Government has undertaken to progressively realise, to the maximum extent of its available resources economic, social, cultural, civil and political rights? At a time of public sector cuts, budgets in the UK should be properly analysed and understood and spend determined on delivering specific rights such as ‘the right of everyone to the enjoyment of just and favourable conditions of work’ (Art 7) the right of everyone to social security, including social insurance (Art 9) the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions (Art 11 of the International Covenant on Economic Social and Cultural Rights). Publicity to date has given the public a clear impression that human rights are confined to civil and political rights such as the voting rights of prisoners and the right to protest rather than human rights on issues which equally impact on and therefore belong to, all of us.
The seven UN Treaties are in addition to the European Convention on Human Rights (ECHR) which has been incorporated into domestic law by the Human Rights Act 1998. Added protection exists for people in Scotland due to sections 29 and 57 of the Scotland Act 1998 which requires MSPs and government Ministers, apart from certain acts of the Lord Advocate, to comply with the ECHR. So if a UK Conservative Government is elected in 2010 and delivers its commitment to abolish the Human Rights Act, then Scotland will be better off as our Government still retains specific ECHR obligations which can be enforced in Scottish courts.
The ECHR is regarded as a more powerful human rights instrument as it can be enforced in domestic courts whereas the seven ratified UN treaties are a matter of international law. Practically the ECHR can make a difference as, for example, section 6 of the Human Rights Act requires the public sector to comply and that means people in care homes and in hospitals should not be subjected to degrading treatment.
The famous ‘slopping out’ case needs to be understood better so that all our lives are improved
However the ECHR has its critics who argue that it is a narrow document focusing on civil and political rights and that its benefits are enjoyed by only a few. However it is a document that needs to be more proactively understood by elected politicians and by the public sector and used by the voluntary and charitable sectors to prevent human rights abuses. It is a ‘living treaty’ and has been interpreted to apply to a range of everyday issues such as in Spain where Mrs Lopez Ostra argued that the smell from a local factory interfered with her right to enjoy ‘family life and her home’. The European Court of Human Rights agreed and ruled that the public authorities had failed to properly discharge their regulatory functions in respect of the private factory.
The lack of information and the cost of enforcing human rights domestically mean that just some people qualify for legal aid and that has led to an imbalance in who can exercise human rights. The now famous ‘slopping out’ case involving Mr Napier and Scottish Ministers makes a fascinating read due to the range and source of evidence heard during the proceedings in 2004. What remains a matter of some disappointment is that the implications for the health service and for environmental groups have been overlooked as we learnt so much about airborne infection in confined spaces and about the quality of air we each need to be healthy. So the UK’s most expensive human rights case needs to be understood better so that all our lives are improved.
The seven UN Treaties chosen by our Government to be ratified give greater effect to the Universal Declaration of Fundamental Rights and Freedoms which celebrated its 60th anniversary in 2008. They explicitly cover the full range of human rights – economic, social, cultural, civil, and political rights. Underpinning all rights are the human rights principles of fairness, respect, equality, dignity and autonomy. Human rights provide a complete framework for the culture of public sector organisations, attitudes of departments and individual staff members from the governors and leaders to the front line staff. Human rights detail specific rights and obligations so achieving some of the buzz words of ‘empowerment’ and often used phrases such as ‘a responsive public service’. Yet human rights are often regarded as a threat rather than as an opportunity.
Ratification is a process whereby our Government declares to the UN that all our laws and policies comply. Clearly there is a gap between human rights theory and practice so there is a process of periodic hearings at the UN to monitor implementation and encourage progressive change. There is no shortage of basic rights and extensive guidance on application from the UN. International experts have invested a lot of time and expertise drawing up information and practical tools from addressing poverty to enabling people to enjoy the right to highest attainable standard of physical and mental health under the UN Convention on Economic, Social and Cultural Rights.
Democracy is the only form of government recognised by the United Nations. UN hearings with the UK usually commence with a robust debate about why the rights are not domestically enforceable. The UK believes it is up to democratically elected politicians to decide how to spend scarce public resources and the UN should not interfere. However the UN asserts that as the UK has ratified seven treaties, as opposed to merely signing them, then it is stating that its laws and policies comply with the Treaties. So the UN is not seeking to interfere after decisions are made but to remind our Government that a system should exist whereby it pays attention to its existing commitments prior to any decision being made.
This approach not about undermining democracy but seeking to ensure Governments of all political persuasions agree to prioritise the delivery of basic human rights to deliver a society where there is equality of opportunity, where people of all ages can reach their potential and fairness rules decisions and services. A broader understanding of human rights and public sector obligations can achieve quite fundamental changes. Accessible housing is a good example. Scotland has too many people living in homes which limit their lives and increase their dependency: if a disabled person lives in a house which they cannot enter and exit without assistance due to stairs, cannot access the toilet because their wheelchair cannot be manoeuvred into a small bathroom and is unable to cook food because the kitchen surfaces are too high, then the combination of factors may reach the threshold and amount to degrading treatment. The public sector response may be to provide a certain amount of direct care services but while this may suit the Council this may not be what the individual wants. Physical alternations to the home or moving someone to another home might fix the problem long term and respect the dignity and autonomy of the householder. The UN made recommendations to the UK about its obligations on accessible housing for disabled people as recently as May 2009 (Concluding Observations on UK by the UN Committee on Economic, Social and Cultural Rights E/C.12/GBR/CO/5 12 June 2009)
A broader understanding of human rights and public sector obligations can achieve quite fundamental changes. Accessible housing is a good example. Scotland has too many people living in homes which limit their lives and increase their dependency: if a disabled person lives in a house which they cannot enter and exit without assistance then it may reach the threshold and amount to degrading treatment
It is time to focus on how we can better deliver the quality and range of services funded by a limited, and contracting, public purse. The fact that so little is known about the detail of each of our human rights means that in Scotland key decisions are being made without any knowledge of or reference to, human rights obligations. We the public are the poorer as human rights set out a framework which is transparent and ensures accountability. It acknowledges that there is not an unlimited supply of money but establishes a responsibility to resource these rights to the maximum extent possible within available resources. So if there is a decision to lay an expensive stone pavement rather than a cheap pavement at the same time as cutting mental health services, then the priority of the spend should be invested in delivering key services to people who need them. That may be an uncomfortable situation as politicians are elected with their own set of priorities.
However there has been an exciting and important development with the Scottish Government’s publication of an action plan ‘Do the Right Thing’ which takes forward the UN Committee on the Rights of the Child recommendations to improve children’s rights in the UK. The action plan sets out a range of activity for elected politicians and public servants in 21 areas of work during the next four years’. (Scottish Government News Release 1st September 2009) We need this example to become a standard procedure in Scotland rather than an exceptional experience across the other six ratified treaties in respect of devolved matters.
UN monitoring of human rights can help our democracy to deliver for people in Scotland and the UK. However as long as human rights are marginalised and regarded as the preserve of the ‘undeserving’, who are often the most vulnerable, then human rights compliance will continue to be a low priority. At a time when many people are questioning the value base and principles of MPS of all parties, subscribing to human rights standards provides the equal base from which decisions on Government can be soundly made. Judging the priority of application, interpreting the meaning of basic rights and trusting people with their human rights will be a challenge for all Governments. Maybe that is a question we can all be asking the candidates as they brave our doorsteps in the coming months?
Charities such as Human Rights Scotland closed due to lack of funds and interest in 2007 despite having published materials and delivering human rights training. Maybe human rights have arrived as the principles and standards resonate with the needs and interests of the general public. We will wait and see!