Political Enforcement of Socio-Economic Rights
by Elias Blum
I’ve argued elsewhere that there’s a case for including socio-economic rights in a future Scottish Constitution. It’s an important statement of who we are, what our common ground is, and what values we want our country to be based upon at a fundamental, constitutional level.
However, there are various counter-arguments to this: that it pre-commits Parliaments to particular policies, narrows the scope of political discretion and debate, and, most of all, that it runs the risk of politicising the judiciary and judicialising politics.
I’m inclined to overlook most of these arguments. A commitment to universal healthcare and workers rights are too important, too foundational, I believe, to be left to the discretion and caprice of governments. Besides, the supreme act of the people is the Constitution, and I don’t have any problem with the people as sovereign binding their representatives.
The judicialisation argument, however, has some weight. The votes of the people, not the decisions of the judges, should decide matters of social and economic policy. The judiciary has an important role in the defence of constitutional rights and the rule of law. Some questions are ‘irreducibly political’, and it would not be proper for the judiciary to trespass upon them. If they were to do so, their intervention would slideline Parliament and undermine the principles of democratic, elective, discursive politics.
I feel very comfortable with judges upholding European Convention rights (which are also political, especially when conflicting rights have to be balanced), in part because ECHR rights – freedom of assembly and association, of speech and of publication, of religion, of due process and a fair trial, and so forth – are the necessary foundations for politics. Their enforcement must be ensured, even against the government of the day, because without these rights the free space in which political argument (and social and civic life) can take place would be undermined. But there’s a big difference – certainly in degree, and possibly in kind, between that sort of judicial review of fundamental rights, on the one hand, and letting judges determine socio-economic policies on the other.
So we are faced with a problem: how to put principles and commitments in the Constitution, without giving a license to judges to second-guess social and economic policy? One solution – adopted by Ireland, Malta, and India – is to make these rights non-justiciable: to express them only in form of pious platitudes, or toothless ‘directive principles’, which governments are supposed to be guided by, but which in practice they can ignore with impunity.
There might, however, be another way – a middle course between judicial enforcement and non-enforceability. That middle way is political enforcement: the incorporation of political mechanisms, at a constitutional level, that require governments to respect the socio-economic principles of the Constitution, and that give Parliaments a specific, mandated role in the enforcement of these provisions.
I have drafted a constitutional article to this effect. Sections 1 to 6 of the article set out socio-economic principles, phased not in terms of individual rights that can be enforced through the courts, but in terms of collective responsibilities that are constitutionally binding on Parliament. (I should add: ‘constitutionally binding’, but not legally binding. Remember that the Constitution is more than a supreme law, it is also a supremely political statement, and not all of it necessarily has to be legally enforceable for it to have constitutional effect).
These constitutionally binding commitments are to be enforced, then, in four ways.
Firstly, by the need for the Minister introducing a bill to signify that the bill complies with these constitutional commitments (a procedure not unlike that contained within the UK’s Human Rights Act, 1998 – although without the wriggle room of being able to proceed without making such a statement).
Secondly, by the constitutional requirement to conduct wide-ranging public consultations with what, in continental European countries, would be called the ‘social partners’.
Thirdly, by the constitutional requirement to conduct ‘impact assessments’, which would include having to specifically consider the effect of legislation on the poor, the vulnerable, the environment, and future generations.
Fourthly, by the establishment of a constitutionally-mandated parliamentary committee with special responsibility for monitoring and reporting on compliance with these constitutional commitments.
The requirement to conduct public consultations and impact assessments could be waived in cases of urgency, but such decisions must be justified to Parliament in a ministerial statement, and a bill introduced under such conditions would require approval by a three-fifths majority in Parliament (thus providing a possible veto to the opposition, unless the Government has an unusually large parliamentary majority).
The intended effect of these provisions would be to make a clear declaration of public intent in the Constitution that cannot be ignored, but at the same time to enable Parliament to decide on how to realise these rights, and how to allocate resources.
I do not pretend that this is a perfect arrangement. I only offer it a useful contribution to debate, and as a possibility for further consideration.
I’d be interested in your comments.
[Text of the proposed Article follows – sorry if the formatting gets messed up.]
Article III – Economic and Social Provisions
(1) Regulation of Commerce
Parliament may regulate commerce for the common good, and in particular shall have a duty to ensure the protection of workers, consumers and the environment.
(2) Working Rights
(a) Every person has the right to work and to pursue freely any profession or vocation subject only to such requirements as to minimum qualifications as may be prescribed by or in accordance with the law.
(b) Parliament shall be responsible for ensuring by legislation that every person has the right to:
(i) Conditions of work that are fair, safe, healthy, and which respect the dignity of the person;
(ii) An adequate minimum wage as determined by law;
(iii) Protection against arbitrary or unfair dismissal;
(iv) A maximum working week, not exceeding forty-eight hours, to maintain health and well-being, to ensure workers sufficient time for rest and recreation, and to enable workers to meet the obligations of family, social and public life;
(v) At least one weekly day of rest, and to at least four weeks of annual holiday;
(vi) The right to bargain collectively and to enforce collective bargains through strike action, except in the armed forces, police and essential public services;
(vii) Freedom from harassment, intimidation, humiliation or abuse in the workplace;
(c) Rights guaranteed by law may not be renounced by any contractual provision.
(3) Social Security and Pensions
(a) Parliament shall be responsible for ensuring by legislation that every person who is unable to work by reason of physical or mental disability or infirmity, or by reason of family commitments, or because suitable employment is presently unavailable in their area, has a right to benefit payments adequate for their dignity and well-being.
(b) Parliament shall be responsible for ensuring by legislation that every person who has reached the age of retirement fixed by law are entitled to pensions adequate for their dignity and well-being.
(4) Public Healthcare
(a) Parliament shall be responsible for ensuring by legislation that everyone has a right to adequate health care sufficient to secure well-being and human dignity.
(b) Parliament shall be responsible for ensuring by legislation that public health services are properly regulated and maintained, and that a system of universal health care, to the best practicable standards of medical practice, is freely available to all.
Parliament shall be responsible for ensuring by legislation that adequate provision is made for universal primary and secondary education, and that qualified students are entitled to publicly funded tuition and other means of financial support at institutions of higher learning, technical training and research.
Parliament shall be responsible for ensuring by legislation that everyone has access to a decent home that is warm, safe, secure, and meets the needs of human dignity.
(7) Enforcement of Socio-Economic Provisions
(a) The provisions of Sections (1) to (6) of this Article shall not be enforceable in any court, but the principles therein contained are fundamental to the governance of the country and it shall be the aim of Parliament to apply these principles in making laws.
(b) With respect to government bills concerning social and economic affairs, the Minister responsible for presenting a bill to Parliament shall be required, at the time of introducing the bill, to make formal statements to Parliament to the effect that:
(i) All relevant socio-economic interests have been consulted and impact assessments conducted in accordance with Section (8) of this Article; and
(ii) The content of the bill is compatible with the responsibilities of Parliament to enact legislation in accordance with this Article.
(c) The question of whether a bill is a ‘bill concerning social and economic affairs’ for the purposes of this Article shall be decided by the Presiding Officer after consulting the Parliamentary Bureau.
(d) Parliament shall establish a Socio-Economic Rights Monitoring Committee, the Convenor of which shall be designated by the Leader of the Opposition, which shall:
(i) Monitor the implementation of this Article;
(ii) Make recommendations for improvements in the implementation of this Article and for the further protection of the rights enumerated therein; and
(iii) Produce an annual report on the implementation of socio-economic rights.
(8) Consultation and Impact Assessments
(a) A Minister responsible for introducing any government bill concerning social and economic affairs, shall, before introducing the bill, conduct public consultations with:
(i) Trade unions and artisan guilds;
(ii) Professional associations;
(iii) Organisations representing small businesses and the self-employed;
(iv) Organisations representing the voluntary and charitable sectors;
(v) Local authorities; and
(vi) Such other civic and social organisations as the Minister shall see fit.
(b) In addition, each bill to which this Section applies shall be subject to an impact assessment, conducted in accordance with such procedures as may be prescribed by the Parliamentary Bureau, assess the impact of the bill on:
(i) Children and young people;
(ii) Older people;
(iii) People with physical or mental disabilities;
(iv) Poor people, including the working poor and those not in employment;
(v) People residing in remote and rural areas;
(vi) Women, men and families;
(vii) Racial, ethnic, religious and linguistic minorities;
(viii) The natural environment; and
(ix) Future generations.
(9) Urgent Legislation
(a) Notwithstanding the provisions of Sections (7) and (8), a Minister responsible for a government bill concerning social and economic affairs may present the bill without having completed the required consultations and/or impact assessments, if he or she believes that it is necessary, for the avoidance of delay, to do so; in such cases, the Minister, in lieu of a statement under sub-paragraph (i) of paragraph (b) of Section 7 of this Article, shall make a formal statement justifying the decision and explaining why the required consultations and/or impact assessments could not be completed.
(b) A bill introduced under the provisions of paragraph (a) of this Section shall not be deemed to have been approved by Parliament unless passed, on its final reading, by at least three-fifths of the members of Parliament.