The uncertain way forward

The manner in which public law is detached from social justice has prompted increas­ing academic criticism in recent years.^[1474] It has also prompted a search for alternative modes of legal regulation, which might enable courts to play an enhanced role in reviewing resource allocation decisions without departing from their appropriate role and function.

Socio-economic rights protect the ‘preconditions of an autonomous life’ in a similar manner to their civil and political counterparts.^[1475] Many scholars have begun to argue that these rights can be made legally enforceable in a manner that respects the necessary limitations of the judicial role.^[1476] Furthermore, these rights are increasingly protected through law across the democratic world, with adminis­trative and constitutional courts in France, Germany, Finland and other European countries exercising substantial review powers in the area of resource allocation in addition to the well-known examples of South Africa, Brazil, Colombia and India.^[1477] As Kim Lane Scheppele has argued, the idea of enforceable socio-economic rights now seems to be ‘too powerful to ignore’.^[1478]

If the Westminster Parliament did choose to make socio-economic rights legally enforceable by the courts, this could be achieved through the introduction of a new Bill of Rights, through amendment of the existing provisions of the HRA 1998, or by an alternative statutory route. ^[1479] If socio-economic rights were to be made enforceable through law in this way, it would represent a ‘big bang’ solution to the problem of the current status quo. An enforceable set of socio-economic rights would provide a new layer of legal protection for individuals.

However, at the time of writing, it is unlikely that any of these aspirations will become a reality in the short to medium term. In 2008, the Northern Irish Human Rights Commission recommended the inclusion of legally enforceable socio-economic rights in a future Bill of Rights for Northern Ireland. In the same year, the Joint Committee on Human Rights recommended in its report on a Bill of Rights that the courts could be given a role in reviewing the reasonableness of political decisions that impacted on the enjoyment of socio-economic rights.^[1482] However, neither proposal gained much parliamentary traction, and at present there is little, if any, political appetite for making socio-economic rights enforce­able through the courts. The role of the courts in protecting Convention rights under the HRA 1998 remains controversial, and a further extension of judicial power is not likely to attract much support in the current political climate. As a result, it appears that no comprehensive ‘big bang' solution to the current unsat­isfactory state of the law will be forthcoming from the legislature any time soon.

Reform of the status quo might come about in other ways. In particular, there are elements of the case law relating to the HRA 1998 and administrative law that could play a role in plugging some of the accountability gaps that currently exist when it comes to the substance of resource allocation decisions.

However, if such case law is going to evolve, a clear steer will have to be provided by the higher courts. In McDonald, the majority of the Supreme Court gave little encouragement to the notion that existing administrative law or the HRA 1998 contained the seeds for a more expansive approach than that applied by the major­ity. The court closely scrutinized how the respondent local authority had adhered to the relevant statutory guidelines, but was reluctant to review the substance of the decision in any detail. Taken together with the subsequent decision in KW, it is clear that the Supreme Court is choosing to subject public authority resource allocation to intensive scrutiny on the procedural side of the fence, but not on the substantive side.

It remains to be seen how the legal situation will develop over the next few years. The judgment in KM has established that the manner in which local authorities arrived at community care funding decisions which have a grave effect on individ­uals will be subject to ‘intensive scrutiny': over time, this approach may carry over to the substance of such decisions. The ongoing debate about the enforceability of socio-economic rights may also influence developments, as may the provisions of the EU Charter of Fundamental Rights, which confers a degree of legal protection upon certain fundamental social rights.^[1485]

However, for now, the senior judiciary appears to be reluctant to leave the safe ground of procedural analysis and to apply heightened scrutiny to the substance of resource allocation decisions.

As a result, the status quo may persist for some time. Lack of political appetite for change, concerns about judicial over-reach and the fear of unanticipated con­sequences are likely to combine together to prevent any substantial adjustment of the existing legal position. However, this will leave a flawed and unsatisfactory legal situation in place. The reach of legal accountability is artificially truncated when it comes to the substance of resource allocation decisions that concern basic human needs: this prevents courts playing a modest but useful role in ensuring that public authorities treat vulnerable individuals in accordance with the ‘stand­ards of civilised society'.^[1486]

H.