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Is the government's austerity programme breaking human rights law?

The Coalition has not engaged in an analysis of the human rights impact of its austerity programme, nor does it appear to intend to. Is the government violating its obligations to protect the human rights of the British public?
Aoife Nolan
1 March 2011

Economic policy decisions play a key role in securing or threatening human rights enjoyment. Yet the Coalition has not engaged in an analysis of the human rights impact of its austerity programme, nor does it appear to intend to.  Is the government violating its obligations under the International Covenant on Economic Social and Cultural Rights?  

The last two years have seen growing global evidence of the deleterious effect of the economic crisis on the human rights of the poorest. Domestically, there has been increasing concern about the impacts of the range of ‘austerity measures’ adopted by Government in the last 12 months – concern that is borne out by the findings of the Institute for Fiscal Studies, amongst others.

Between the Spending Review of October of last year and the impending budget, things are boding badly for the enjoyment of a whole range of human rights, particularly those relating to an adequate standard of living, social security, health and adequate housing. This is especially so for the most vulnerable in society.

The rights highlighted above are legally binding international human rights law obligations that the UK Government assumed by ratifying the International Covenant on Economic Social and Cultural Rights. Reflecting its commitment to the Treaty, the UK submits state reports to the Committee on Economic Social and Cultural Rights (the body responsible for monitoring the implementation of ICESCR) on the progress made by the state in implementing Covenant rights. (A copy of the UK’s most recent report, submitted in 2008, is available here).

The most celebrated obligation under that Treaty is set out in Article 2(1), which requires states

"to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures."

This Article imposes an obligation on states to move as expeditiously and effectively as possible towards the full realisation of Covenant rights.  Essentially, states must make the greatest effort possible in light of the resources available to them, to ensure improvement in the implementation of rights, as well as expanding access to these rights.

Correlative to the State’s duty to progressively achieve full realisation of Covenant rights is a prohibition on ‘retrogressive measures’. In its General Comment No.3 on the Nature of State Parties Obligations (1990) The Committee on Economic Social and Cultural Rights states that

"any deliberately retrogressive measures [in relation to the realisation of the rights under the ICESCR] would require the most careful consideration and would need to be fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the maximum available resources."

According to Magdalena Sepulveda (current UN Independent Expert on Human Rights and Extreme Poverty), a deliberate retrogressive measure means any measure that implies a step back in the level of protection accorded to the rights in the ICESCR as a consequence of an intentional decision by the State. This includes an unjustified reduction in public expenditures devoted to implementation of Covenant rights in the absence of adequate compensatory measures aimed to protect the injured individuals.

There seems no doubt that aspects of the Spending Review and other austerity measures constitute ‘retrogressive measures’ in that they entail reductions in funding for public goods and services related to the satisfaction of Covenant rights. For instance, limiting access to Disability Living Allowance, reductions in housing benefit, and the introduction of a ‘benefit cap’ for families have clear implications for the (reduced) enjoyment of the right to social security (Article 9 ICESCR) and ‘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’ (Article 11(1) ICESCR).

The question remains whether these ‘backward steps’ can be ‘fully justified’.  This seems unlikely given that the UK Government has not engaged in an analysis of the human rights impact of the Spending Review and/or other austerity measures. Nor does it appear to intend to. This is demonstrated by statements such as those made by Kenneth Clarke in evidence to the Joint Committee on Human Rights last winter that ‘[the Government is] not carrying out a human rights assessment of the whole public spending review, which covers a vast range of a whole area of Government’. 

It has to be asked how the Government could argue that the cuts entailed by the Spending Review, for instance, have received the ‘most careful consideration’ and are ‘justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the maximum available resources’ where it has not even established the extent of the impact of those cuts on Covenant rights. Nor, as Stuart Weir discussed in a post on OurKingdom recently, has the Government carried out an adequate assessment of the impact of decisions contained in the Spending Review on ‘protected characteristics’ (e.g., gender, race, disability) in terms of equality legislation. Given the linkage between inequality and discrimination and the non-enjoyment of human rights, this latter omission is deeply problematic in terms of ensuring that government policy effectively guarantees human rights.

In addition, the Government’s failure to take its ICESCR obligations into account is particularly unacceptable in light of the fact that the HM Treasury guidance for Central Government (the Green Book), which sets out a framework for the appraisal and evaluation of all policies, states that ‘the UK is also a signatory to various international treaties and conventions with anti-discrimination Provisions ... [which] should inform the development of policy’. The Green Book states that these include ICESCR. It thus seems that the Government is ignoring its own guidelines.

Economic policy decisions play a key role in securing or threatening human rights enjoyment. Where a government fails to take this into account it is in violation of its international human rights obligations. More importantly, its failure to do so means that such policies are highly unlikely to be formulated so as to afford protection to the most vulnerable and marginalised in society.

Dr Aoife Nolan is Senior Lecturer in Law at Durham Law School. She has written and published extensively in the area of human rights, particular economic and social rights and children’s rights.

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