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The Future of Economic, Social and Cultural Rights in Scotland: Prospects for Meaningful Enforcement

Document Cited authorities 3 Cited in Related
Vincent
Author
Date01 January 2019
Published date01 January 2019
DOI10.3366/elr.2019.0531
Pages110-116
INTRODUCTION

Economic, social and cultural (“ESC”) rights law is often misunderstood and under-utilised across the UK's legal jurisdictions.1 Whilst public law engages with ESC rights across areas such as health, social care, education, social security, housing and social services it does not traditionally embrace broader conceptual understandings that encompass the full international human rights framework. When socio-economic rights are addressed in the public law sphere they tend to feature under the aegis of something else.2 Put differently, our discourse around social rights is dominated by existing domestic human rights structures which reduce social rights to aspects of civil and political rights or formal equality.3 This is to be expected. Why would public lawyers concern themselves with the full breadth of economic, social and cultural rights if the domestic system has not incorporated them? Why seek to invoke international instruments in court that have not been incorporated into domestic law?4

From an international law perspective, this presents an accountability gap in terms of state compliance with international human rights law. The under-utilised nature of this framework has caused misconceptions around the legality and enforceability of ESC rights, including the rejection out of hand of the justiciability of ESC rights.5 This position is outdated domestically, comparatively and internationally.6 Other countries embrace the incorporation and justiciability of ESC rights across areas of governance including in the development of ex ante review through parliamentary scrutiny7 and through ex post judicial review.8 Domestically, UK courts often adjudicate on ESC rights:9 at times directly referencing international human rights law as an interpretative source; at other times grounding ESC rights in domestic statutes or the common law.10 In cases such as ZH Tanzania,11 McLaughlin,12 Calver 13 and Heesom 14 we see the emergence of the domestic interpretation of the European Convention on Human Rights (“ECHR”) with reference to international human rights treaties including the UN Convention on the Rights of the Child (“UNCRC”) and the International Covenant on Economic, Social and Cultural Rights (“ICESCR”). This is to say that the justiciability of economic, social and cultural rights across the UK jurisdictions can no longer be called into question. It is something that occurs in the everyday practice of court adjudication.15 The questions that remain outstanding are not whether ESC rights are justiciable but relate to how to adjudicate these rights in a constitutionally appropriate way in any given context. More research is therefore required on how best to approach the incorporation and justiciability of ESC rights in Scotland.

 WHAT IS MEANT BY INCORPORATION AND JUSTICIABILITY?

The incorporation of international human rights law in a dualist state can take different forms.16 It can be understood as means of internalising international law directly, indirectly or on a sectoral basis.17 Another approach is to identify the “port” through which international law becomes domestically binding:18 for example via the constitution, legislation, the common law, or through opening a channel to an international complaints mechanism?19 Social rights and constitutional theory tells us that incorporation of ESC rights can, or ought to, occur across different branches of government: legislative, executive, judicial and constitutional in a multi-institutional...

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