Maintaining the detachment between legal accountability and social justice

This limitation on the scope of legal accountability is partially the product of political reluctance to extend the powers of courts and tribunals in this area. Parliament has not made socio-economic rights enforceable through law: there is no socio-economic equivalent of the HRA 1998, and the rights set out in inter­national human rights instruments such as the United Nations Covenant on Economic, Social and Cultural Rights or the European Social Charter have not been incorporated into domestic law.

Furthermore, legislation is often deliberately drafted so as to limit the extent to which it could give rise to legally enforceable rights or obligations. In particular, statutes governing welfare provision, housing allocation, or other aspects of social policy are often carefully worded so as to establish target duties as distinct from clearly defined individual entitlements. As Palmer has argued, such duties are often ‘qualified by reference to factors such as the “reasonable practicability” of imple­menting the strategies, or “by the impact of proposed measures on the economy” while ‘duties to achieve designated targets or implement strategies are moderated by reference to differently formulated considerations of resources'.^[1423]

This is illustrated by the example of the positive equality duties which were imposed upon public authorities by several different pieces of legislation between 2000 and 2006, and then merged into a single cross-ground duty by s 149 of the Equality Act 2010.

The higher courts have also been very reluctant to subject the substance of resource allocation decisions to close scrutiny, in contrast to their readiness to review the exercise of state power in other contexts.^[1429] This reluctance has been manifested in a number of ways which, taken together, have limited the extent to which the courts play an active role in holding public authorities to account for how the substance of their resource allocation decisions impact upon individual wellbeing.

First of all, the courts have taken the view that ‘polycentric’ decisions involving the balancing of competing social and economic interests, or which turn on com­plex questions of economic efficiency and resource maximization, should attract a very ‘light touch’ standard of rationality review. Thus, in R v Cambridge Health Authority, exp B, the Court of Appeal took the view that the courts should not be prepared to subject resource allocation decisions in the provision of health care to close scrutiny.^[1430]

Secondly, a similar set of assumptions have been applied in the context of statu­tory interpretation, even where the wording of statutes has left it open to the courts to adopt a different approach.

Thirdly, the rights set out in the ECHR have been interpreted in a manner that limits the extent to which they establish an individual entitlement to receive social support from the state. There are times when giving effect to Convention rights will require public authorities to provide resources to disadvantaged groups. For example, human rights law requires legal aid to be provided where necessary to avoid a breach of the right to a fair trial protected by art 6 ECHR.^[1434] Furthermore, public authorities cannot discriminate in a manner that violates the requirements of art 14 ECHR when it comes to distributing resources.^[1435] Indeed, the Strasbourg Court concluded as far back as 1979 in Airey v Ireland that ‘the mere fact that an interpretation of the Convention may extend into the sphere of social and economic rights should not be a decisive factor against such an interpretation; there is no water-tight division separating that sphere from the field covered by the Convention.’³⁷ However, both the English courts and the European Court of Human Rights have been very reluctant to interpret Convention rights as estab­lishing an entitlement to receive state support in ordinary circumstances, taking the view that the ECHR is an instrument designed to protect core civil and politi­cal rights rather than a wider range of human interests.^[1436] Furthermore, in applying proportionality analysis to determine whether a qualified Convention right has been violated, the courts have again tended to give considerable leeway to govern­ment decision-making in the socio-economic field, with the latitude given to pub­lic authorities in this context resembling at times a doctrine of non-justiciability.^[1437]

In certain limited circumstances, a failure to provide a bare minimum of social support to individuals and families in need may violate the Convention.^{[1438] [1439] [1440] In the UK, cases such as R (Bernard) v London Borough of' Enfield'4 and R (on the applica­tion of Adam) v Secretary of State for the Home Department4 have established that a failure by public authorities to provide welfare and/or housing support for impov­erished individuals in circumstances where state responsibility for their plight is directly engaged may constitute a violation of art 3 (or art 8 if the right to family life is affected), if the ‘treatment’ they endure crosses the art 3 threshold of being ‘inhuman and degrading’ or comes close to meeting that exacting standard. In MK and AH v Secretary of State for the Home Department, Foskett J took the view that ‘street homelessness, or imminent street homelessness, caused by the positive action of the State would ordinarily amount to a breach of Article 3’.[1441] Similarly, in the 2011 case of MSS v Belgium and Greece,[1442] the Strasbourg Court held that the Greek authorities had violated the art 3 rights of the claimant by failing to have due regard for the applicant’s vulnerability as an asylum seeker, with the result that the state was responsible for the state of extreme poverty to which he was reduced, namely ‘living in the street, with no resources or access to sanitary facilities, and without any means of providing for his essential needs’.[1443]}

However, both the Court of Appeal in Anufrijeva v Southwark^[1444] and subse­quently the Supreme Court in McDonald have made it clear that a failure by a public authority to provide an individual with social support will only constitute a violation of Convention rights in exceptional circumstances.^[1445] In McDonald, as already discussed above, the Supreme Court considered that the local authority’s decision to only fund the provision of incontinence pads had not subjected Ms McDonald to ‘inhuman and degrading treatment’ or come sufficiently close to crossing that threshold to warrant a finding that art 8 had been violated in her case.

The substance of resource allocation decisions may also be vulnerable to chal­lenge under administrative law if they endanger an individual’s life or risk exposing them to intolerable living conditions. For example, in the ‘Herceptin’ case of R (Rodgers) v Swindon Primary Care Trust, the Court of Appeal indicated that state action which endangered the right to life would be subject to ‘rigorous scrutiny’, even where art 2 ECHR was not in itself directly engaged.^[1447]

If followed to its logical conclusion, this approach could conceivably act as a ‘tin-opener’ to expose resource allocation decisions which could have grave effects on individual wellbeing to heightened reasonableness review.^[1448] However, the case law in this area is far from settled. The decision in Rogers ultimately turned on a very specific procedural issue, namely that Swindon Primary Care Trust had no rational basis for distinguishing between the circumstances where they would or would not fund breast cancer treatment using the new ‘wonder drug’ Herceptin. The court was also careful to emphasize that ‘this is not a case about the allocation of scarce resources’, where it would be ‘very difficult, if not impossible’ to conclude that a public authority had acted arbitrarily or irrationally.^[1449] Therefore, for now, Rogers only offers a tantalizing hint that the courts may be willing to subject the substance of resource allocation decisions to heightened scrutiny when they affect fundamental individual interests such as the right to life.

Subsequent cases have tended to confirm the reluctance of courts to probe too deeply into the substance of resource allocation decisions, even when they may have grave consequences for specific individuals.

Other tantalizing hints exist in the case law that the courts may be prepared to adopt a more robust approach in reviewing the substance of resource allocation decisions which appear to be contrary to notions of human dignity. In the remark­able J CWI decision, the Court of Appeal recognized the existence of a common law entitlement not to be driven into a state of destitution by a failure to provide state support.

...the Regulations necessarily contemplate for some a life so destitute that to my mind no civilised nation can tolerate it. So basic are the human rights here at issue that it cannot be necessary to resort to the European Convention on Human Rights to take note of their violation...Parliament cannot have intended a significant number of genuine asylum seek­ers to be impaled on the horns of so intolerable a dilemma: the need either to abandon their claims to refugee status or alternatively to maintain them as best they can but in a state of utter destitution. Primary legislation alone could in my judgment achieve that sorry state of affairs.^[1452]

However, JCWI has rarely been cited as relevant precedent in subsequent cases.^[1453] Furthermore, there are few signs that the judiciary is eager to extend common law rights into socio-economic terrain. For example, the House of Lords in Bancoult (No 2) was notably unsympathetic to the idea that the population of a territory enjoyed a positive right to obtain state support.^[1454]

In general, questions of social justice are usually treated as exercising a type of repulsion effect on the reach of legal accountability. Both the legislature and the courts have taken the view that the substance of resource allocation deci­sions should be largely insulated from the reach of legal accountability. Public authorities enjoy comparatively unfettered discretion when it comes to allocating resources between different social groups, and the role of courts and tribunals is mainly confined to ensuring that resources are distributed in a manner that accords with proper procedure.

E.