It is only to be expected that comment on the government’s conversion in its new legislative programme to public service guarantees in the health service and schools, and a statutory commitment to relieving child poverty, should reflect the prevailing concerns of the political class and the ‘legal experts’ who cluster round public policy – rather than the people who stand to benefit from this potential advance.
The public debate so far thus (as the Guardian reported on 19 November) concerns whether or not these guarantees would make government vulnerable ‘to being dragged through the courts’ (David Pannick QC, an expert ‘in matters of public administration and judicial review’) or ‘open the floodgates to the vexatious, litigious and disaffected’ (Chris Keates, general secretary of the teaching union, NASUWT).
These measures in principle (I have not yet had time to study them thoroughly) represent a shift away from top-down New Labour targetry towards giving ordinary people and their families economic and social rights, though not directly. Instead, they create obligations on government, health service bodies and officials, education authorities and teachers, to give citizens rights to clear standards in what they provide. Of course, ultimately, patients or parents who believe that the authorities or officials do not meet these standards could apply to the courts for judicial review.
I want first of all to assert a basic principle. Human rights belong to everyone, and not just the ‘vexatious, litigious and disaffected’, nor for that matter to the ‘bogus’ asylum seekers and ‘terrorist suspects’ who dominate the inflamed media imagination. Many ordinary people, as patients, parents or pupils, have quite legitimate concerns or grievances. As a parent myself, I could have done with realisable rights when my daughter’s school refused to allow her to take A levels that were essential to her ambitions – instead of being given a futile right of appeal to an exasperated tribunal of governors where the chair and head teacher were in cahoots.
Now to two political matters. First, the courts in Britain are reluctant, when they are not downright hostile, to making any intervention in issues about the allocation of public resources or official decision-making. Just look at their judgments, for example, in homelessness cases. Unprompted, they tend to look only at an authority’s budget and no further. They could of course instead apply the human rights principle of ‘progressive realisation’ – in other word, they could examine whether public authorities or officials are making genuine efforts over time to realise people’s rights to good schools, quality health care, a decent standard of living, and so on. And at last the government is moving slowly in this direction, especially in the Child Poverty Bill which does oblige governments to move purposely over time to eradicate child poverty.
The second political point is basic. Human rights cases rarely go to court. You may remember that ‘experts’ predicted that the Human Rights Act would (so to speak) ‘open the floodgates to the vexatious, litigious and disaffected’. There was no flood. Why? Simply because any trivial case rarely gets anywhere; and cases of real substance are usually sorted out outside the court room between the people affected, often with advocates of some kind, and the authorities. People’s rights in such cases give them a grasp on power and facilitate resolution of their grievances.
Social and economic rights, even in the milder form of public service guarantees, similarly give people, individually and in groups or campaigns, a grasp on power. As the work of the British Institute of Human Rights has shown in the UK, advocates have been able to make use of the more tenuous social dimension of the Human Rights Act to empower people to assert their dignity and obtain improvements in public services, most notably in care homes. In South Africa, the effect is more striking for there people organise together in campaigns to gain constitutional economic and social rights. And yes, a few cases reach the courts where the judiciary is cautiously more open to giving people redress than our judges are.
So we should reverse the viewpoint that emphasises and usually exaggerates the impact of human rights on institutions and consider what they do and can do for citizens. Human rights are generally framed in individualistic terms. But they – and especially economic and social rights - could make a big contribution to encouraging joint action and campaigning within a top-heavy and ‘expert’ political and constitutional set-up that discourages the participation that our democracy urgently needs.