About the HRLA
The Human Rights Lawyers Association (HRLA) is a membership organisation which aims to promote the effective legal protection of human rights and fundamental freedoms in the UK and to further research, education and training in the area of human rights practice. The Young Lawyers’ Committee (YLC) is constituted by young lawyers, trainees, policy workers, paralegals, and law students with a keen interest in human rights law, who work together to provide essential training and resources for young people considering a career in human rights. This is done through the HRLA’s annual Judicial Review Mooting Competition, Careers Day and the Lord Kerr Essay Competition, which was set up by the HRLA to honour the legacy and human rights contribution of Lord Brian Francis Kerr, Baron Kerr of Tonaghmore, the former Supreme Court Justice, following a generous donation by his son, Patrick Kerr.
Competition winner
Alexis Boddy’s winning essay is below. You can also read the essays of the runners-up here.
2023 Winning Essay byAlexis Boddy
In a judgment by the House of Lords in 2003, Lord Hoffman discussed the importance of individual human rights in democratic societies. He stated that:
The exact limits of such rights are debatable and, although there is not much trace of economic rights in the 50-year-old Convention, I think it is well arguable that human rights include the right to a minimum standard of living, without which many of the other rights would be a mockery.[1]
It has been twenty years since this judgment and, currently, around 20% of the UK population is living in poverty. This means that they are ‘unable to meet their most basic needs for shelter, food, heat, light, clothing and hygiene from their own resources for themselves.’[2] Poverty and human rights are inextricably linked. Poverty is both the cause and the symptom of human rights abuses across the world and without strong, legislative action, this will only worsen. This essay considers the current legislative frameworks in the UK and looks at both the implied and overt right to live free from poverty. I will argue that the only way to address systemic inequality is for there to be an enshrined human right to live free from poverty.
Is there a human right to live free from poverty?
What is poverty?
As the UN stated in ‘Rethinking Poverty,’ ‘there are likely to be serious differences in the perceptions and motivations of those who define and measure poverty.’[3] In developed countries, there has been a shift away from thinking about poverty in absolute terms towards measuring it in relative terms, ‘stemming from the realization that the perception and experience of poverty have a social dimension.’[4] For the purposes of this essay, I will be restricting the definition of poverty to the UK. Data from the Department for Work and Pensions (DWP) shows that one in five people in the UK are in relative poverty (after housing costs are accounted for).[5] The Joseph Rowntree Foundation’s definition of poverty means:
not being able to heat your home, pay your rent, or buy the essentials for your children. It means waking up every day facing insecurity, uncertainty, and impossible decisions about money. It means facing marginalisation – and even discrimination – because of your financial circumstances. The constant stress it causes can lead to problems that deprive people of the chance to play a full part in society.[6]
With roughly 20% of the UK population currently experiencing such deprivation, do they have the right to legal recourse?
Is the human right to live free from poverty currently enshrined in law?
Taking the Joseph Rowntree definition of poverty, we can see that some elements may already be enshrined in the Human Rights Act and other pieces of legislation. If the right to live free from poverty currently exists in law, it may be helpful to split it into two manifestations: the implied recognition and the overt recognition.
The implied recognition of the right to live free from poverty can be seen in several areas of the Human Rights Act. Article 14, the prohibition of discrimination, means that the rights in the Convention should be ‘secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.’[7] If we compare this to the Rowntree definition, particularly the part that references ‘facing marginalisation – and even discrimination – because of your financial circumstances,’[8] we can see that Article 14 implicitly offers protection to those living in poverty from discrimination. Likewise, other provisions, such as the right to freedom of expression, the right to respect for private and family life, could be curtailed by poverty. The protection afforded by Article 3, that no one shall be subjected to torture or to inhuman or degrading treatment or punishment, has come under some scrutiny in case law. For example in Limbuela, there was significant overlap with the JRF’s definition of poverty when looking at the state’s ‘breach of Article 3 ECHR for its failure to provide food and accommodation to asylum seekers who had no means of supporting themselves.’[9] Likewise, in EW, Hickinbottom J suggested that ‘in the ordinary course the [Article 3] threshold may be crossed if, as a result of a withdrawal of support…a person was obliged to sleep in the street, or was seriously hungry, or was unable to meet the most basic requirements of hygiene.’[10] Article 6, the right to a fair trial, could also be curtailed by poverty if the accused cannot afford the requisite legal representation and the government has withdrawn adequate recourse to funds.
As well as this, there are some specific duties that authorities are under, which would imply a protection from poverty. For example, ‘authorities in England are subject to a specific duty to provide accommodation for children in need’[11] and they also have a general duty ‘to safeguard and promote the welfare of children within their area who are in need; and so far as is consistent with that duty, to promote the upbringing of such children by their families.’[12] The Court of Appeal have stated that ‘where children are affected the state is subject to an obligation to relieve poverty if “necessary to allow family life to continue.”’[13] However, this is a limited obligation and does not guarantee the right to live free from poverty more generally.
Historically, there was some protection from poverty afforded through various statutes, tracing back to the Magna Carta, which prohibited ‘disproportionate fines and deprivation of the means of livelihood.’[14] There was also a duty to ‘relieve destitution flowing from the Poor Laws,’[15] which were modernised in various forms, including the Unemployment Assistance scheme in 1934, which cemented the duty to relieve destitution.[16] However, this duty was eroded at the end of the twentieth century, especially when it was qualified ‘through the exclusion of those on strike due to a trade dispute.’[17]
Indeed, there is no overt, absolute human right to live free from poverty currently enshrined in UK law. The Human Rights Act ‘generally excludes economic, social and cultural rights’[18] and the word ‘poverty’ is not mentioned in the Act. Furthermore, The Equality Act, while outlining the public sector duty regarding socio-economic duties, again does not explicitly cover or even mention the word ‘poverty’. This means that the ‘Commission cannot take anti-discrimination cases on poverty, as it can where discrimination is based on sex, race, disability, religion or belief, age or sexual orientation.’[19]
The International Covenant on Economic, Social and Cultural Rights (ICESCR), was adopted by the UN in 1966 and ensured certain rights, including the right to education, fair and just conditions of work, an adequate standard of living, the highest attainable standard of health and social security.[20] While the UK Government agreed to follow the ICESCR in 1976,[21] they have ‘consistently resisted UN pressure’ to incorporate it into law ‘contrary to a recommendation from the Joint Committee on Human Rights of the House of Lords and the House of Commons.’[22] Likewise, The European Charter of Fundamental Rights ‘brings together the most important personal freedoms and rights enjoyed by citizens of the EU into one legally binding document’[23] and ‘builds on the rights protected by the European Convention on Human Rights to create more comprehensive protection for economic, social and cultural rights.’[24] In 2007, the Government rejected proposals to incorporate the Charter into UK law. There is also the right to social assistance in Article 13 of the European Social Charter (ESC).[25] Again, this piece of legislation is not part of UK law and ‘carries limited weight’[26] in terms of domestic human rights.
It could be argued that there is a right to live free from poverty enshrined in the anti-slavery legislation in the UK. While there is overt recognition of the prohibition of slavery, in the Human Rights Act 1998 and the Modern Slavery Act 2015, this again contains very specific obligations rather than looking more holistically at poverty. Indeed, most of the Human Rights enshrined in UK law mean nothing if one in five people lack access to the most fundamental aspects of life and have clearly not been effective enough in preventing ‘the worst excesses of poverty.’[27]
Should there be a human right to live free from poverty?
It could be argued that it is currently possible to enforce rights through existing frameworks and the difficulties in defining poverty mean that any legislation would lack a universal application. Furthermore, any such legislative power would lack immediacy and would be impractical to enforce. Successive governments could simply rescind these protections under parliamentary sovereignty.
However, looking at the current political landscape and the ‘prioritisation of personal as opposed to state responsibility’[28] we can see that there should be a move towards an overarching right to live free from poverty. It is possible to define poverty in relative terms and a consensual formulation could be reached. The argument that it would be unenforceable is also specious as there are many different avenues to ensure enforceability. For example, it could be used as another element in ‘social security or immigration appeals and judicial reviews, or in actions to recover public debt, particularly where it takes the form of a negative duty to avoid imposing destitution’[29] By incorporating the ICESCR into UK law, there would be a permanence to the protection of socio-economic rights. If governments had to take measures to curtail these socio-economic rights then they would have to ‘demonstrate that they are temporary, necessary, proportionate and non-discriminatory, and that they do not remove minimum levels of protection.’[30]
Such a systemic shift would mean that any legislation would be seen through the lens of the prevention of poverty. It would set obligations for governments and other duty-bearers to abide by.
Echoing Lord Hoffmann, the previous Secretary-General of the UN, Kofi Annan said in a 2006 address that ‘if we are to be serious about human rights, we must demonstrate that we are serious about deprivation.’[31] Poverty is the root cause of most human rights abuses across the world, through trafficking and modern slavery and also a consequence of systemic inequality, through a lack of access to education.[32] As we saw in the JRF’s definition of poverty, it means ‘waking up every day facing insecurity, uncertainty, and impossible decisions about money…The constant stress it causes can lead to problems that deprive people of the chance to play a full part in society.’[33] It is therefore clear that there should be an unambiguous statutory right to live free from poverty.
The most definitive way to go about this would be to enshrine a more robust framework to ‘underpin the development of more effective social and legal protection against the worst forms of poverty.’[34] This could go some way towards challenging the root causes behind poverty and the systems that maintain systemic disparities. As Simpson (et al) argue, the welfare systems in the UK have ‘not been effective enough’[35] in providing assistance for those living in poverty. A statutory recognition of the human right to live free from poverty would provide both a legal and political accountability ‘framework: legal through judicial scrutiny on whether the duty was properly considered and implemented, and political in requiring scrutiny of government policies and draft legislation to ensure compatibility with the destitution duty.’[36]
The law has an important role to play in remedying ‘the symptoms of structural injustice that law itself has created.’[37] There are many ways in which enshrining the human right to live free from poverty could enhance the current system of socio-economic protections. By having a clear, unambiguous provision, there would be clarity on the role of the government, local authorities and other duty-bearers, as well as ‘setting a statutory benchmark to expand the legal interpretation of what it is reasonable to expect the state to provide.’[38] It would create a holistic system that is proactive rather than reactionary. By ‘raising the bar on the expectation of a minimum standard of living’[39] it would strengthen the assertion that the UK plays a ‘leading role in protecting and advancing human rights’[40] and create a strong basis for tackling poverty and the societal issues that stem from it.
Conclusion
We have seen that currently, the system of protections against poverty are implied and limited in scope. They are, therefore, not effective in assisting some of the most vulnerable members of UK society. The use in litigation of existing articles within the Human Rights Act for this purpose, including the right to a fair trial and the prohibition of torture, have been difficult and limited in scope. By enshrining an unambiguous right to live free from poverty, it would begin a journey towards socio-economic equality and would enable all people to play a full part in their society.
[1] Matthews v Ministry of Defence [2003] UKHL 4 (13 February 2003)
[2] Simpson, Mark, McKeevery, Grainne, Fitzpatrick, Ciara, Legal Protection Against Destitution in the UK: The Case for a Right to a Subsistence Minimum, (2023) Modern Law Review, 86(2) 465-497
[3] United Nations, Rethinking Poverty, (UN), <https://www.un.org/esa/socdev/rwss/docs/2010/fullreport.pdf> Accessed on 30th April 2023
[4] United Nations, Rethinking Poverty, (UN), <https://www.un.org/esa/socdev/rwss/docs/2010/fullreport.pdf> Accessed on 30th April 2023
[5] Poverty in the UK: statistics, House of Commons Library, <https://commonslibrary.parliament.uk/research-briefings/sn07096/> Accessed on 30th April 2023
[6] What Is Poverty? Joseph Rowntree Foundation, <https://www.jrf.org.uk/about-us/what-is-poverty> Accessed 30th April 2023
[7] Human Rights Act 1998, Article 14
[8]What Is Poverty? Joseph Rowntree Foundation, <https://www.jrf.org.uk/about-us/what-is-poverty> Accessed 30th April 2023
[9] Simpson, Mark, McKeevery, Grainne, Fitzpatrick, Ciara, Legal Protection Against Destitution in the UK: The Case for a Right to a Subsistence Minimum, (2023) Modern Law Review, 86(2) 465-497
[10] Ibid
[11] Ibid
[12] The Children Act 1989, s 17 (1)
[13] Simpson, Mark, McKeevery, Grainne, Fitzpatrick, Ciara, Legal Protection Against Destitution in the UK: The Case for a Right to a Subsistence Minimum, (2023) Modern Law Review, 86(2) 465-497
[14] Ibid
[15] Ibid
[16] McKeever, Gráinne, Chapman, Alexandra, Fitzpatrick, Ciara, Simpson, Mark, Dignity through discretion: a review of discretionary support, schemes in the UK (2023), Journal of Social Security Law, 30(1), 13-35
[17] McKeever, Gráinne, Chapman, Alexandra, Fitzpatrick, Ciara, Simpson, Mark, Dignity through discretion: a review of discretionary support, schemes in the UK (2023), Journal of Social Security Law, 30(1), 13-35
[18] Killeen, Damian, Is poverty in the UK a denial of people’s human rights? Joseph Rowntree Foundation, <https://www.jrf.org.uk/report/poverty-uk-denial-peoples-human-rights> Accessed 30th April 2023
[19]Ibid
[20]International Covenant on Economic, Social and Cultural Rights (ICESCR) , UN, <https://www.equalityhumanrights.com/en/our-human-rights-work/monitoring-and-promoting-un-treaties/international-covenant-economic-social> Accessed 30th April 2023
[21]Ibid
[22]Killeen, Damian, Is poverty in the UK a denial of people’s human rights? Joseph Rowntree Foundation, <https://www.jrf.org.uk/report/poverty-uk-denial-peoples-human-rights> Accessed 30th April 2023
[23] Charter of Fundamental Rights, Citizens Information, <https://www.citizensinformation.ie/en/government_in_ireland/european_government/eu_law/charter_of_fundamental_rights.html#:~:text=The%20Charter%20of%20Fundamental%20Rights,with%20the%20Treaty%20of%20Lisbon.> Accessed 30th April 2023
[24]Killeen, Damian, Is poverty in the UK a denial of people’s human rights? Joseph Rowntree Foundation, <https://www.jrf.org.uk/report/poverty-uk-denial-peoples-human-rights> Accessed 30th April 2023
[25] Simpson, Mark, McKeevery, Grainne, Fitzpatrick, Ciara, Legal Protection Against Destitution in the UK: The Case for a Right to a Subsistence Minimum, (2023) Modern Law Review, 86(2) 465-497
[26] Ibid
[27]Ibid
[28] Ibid
[29] Ibid
[30] Equality and Human Rights Commission, Progress on Socio-Economic Rights in Great Britain, <https://www.equalityhumanrights.com/sites/default/files/progress-on-socio-economic-rights-in-great-britain.pdf> Accessed 1st May 2023
[31]Freedom from poverty is a human right and not a matter of compassion, say UN leaders, UN, (10 December 2006) <https://news.un.org/en/story/2006/12/202612#:~:text=Audio%20Hub-,Freedom%20from%20poverty%20is%20a%20human%20right%20and%20not,of%20compassion%2C%20say%20UN%20leaders> Accessed 30th April 2023
[32] About extreme poverty and human rights, Special Rapporteur on extreme poverty and human rights, <https://www.ohchr.org/en/special-procedures/sr-poverty/about-extreme-poverty-and-human-rights> Accessed 1st May 2023
[33] What Is Poverty? Joseph Rowntree Foundation, <https://www.jrf.org.uk/about-us/what-is-poverty> Accessed 30th April 2023
[34] Simpson, Mark, McKeevery, Grainne, Fitzpatrick, Ciara, Legal Protection Against Destitution in the UK: The Case for a Right to a Subsistence Minimum, (2023) Modern Law Review, 86(2) 465-497
[35] Ibid
[36]Ibid
[37]Ibid
[38]Ibid
[39]Ibid
[40] Department for Exiting the European Union (2017), ‘Legislating for the United Kingdom’s withdrawal from the European Union’ <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/604516/Great_repeal_bill_white_paper_accessible.pdf Accessed 1st May 2023