Justiciability of economic, social and cultural rights in the United Kingdom

Boyle, Katie; Nussberger, Angelika and Landau, David, eds. (2023) Justiciability of economic, social and cultural rights in the United Kingdom. In: The Justiciability of Economic, Social and Cultural Rights. Ius Comparatum . Intersentia, Cambridge, pp. 331-362. ISBN 9781839703959

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Abstract

This report examines the justiciability of economic, social and cultural rights (ESCR) across the United Kingdom (UK). Section 2 sets out the constitutional status of human rights and the precarious nature of ESCR under this framework, including distinguishing between ESCR at the national and devolved (subnational) constitutional level. The national and devolved level are undergoing human rights reform, with the former committed to a trajectory of further regression on rights, and the latter committed to a trajectory of progression, including subnational incorporation of ESCR into devolved law. The devolved trajectory has the potential to transform ESCR justiciability in the relevant jurisdictions. The section concludes with a brief examination of the access to justice barriers for violations of ESCR across the UK, indicating the widespread nature of ESCR violations that go unaddressed. Section 3 examines the mechanisms through which ESCR justiciability already occurs across the UK's jurisdictions. This tends to occur under the rubric of equality law, in the dynamic interpretation of civil and political rights, on the grounds of irrationality, under the development of the common law and in cases of emergency relief. Competing theoretical positions that manifest in judgments are explored. The Supreme Court's recent departure from a more interventionist and human-rights-orientated court to one in which matters of economic and social policy are deemed beyond the jurisdiction of the judiciary is highlighted. The most significant access to justice barrier for ESCR is the lack of normative constitutional ESCR standards by way of incorporation or domestic constitutionalisation as apparent in the judgments discussed. Ultimately, the devolved constitutional trajectories may compel the national discourse to confront its reluctance to engage with ESCR justiciability or lead to greater state fragmentation with diverging human rights protections across jurisdictions.

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