Can rights be ring-fenced in times of austerity? Equality, equity and judicial ‘trusteeship’ over the UK’s fairness agenda

Miller, Jacinta and Diver, Alice (2015) Can rights be ring-fenced in times of austerity? Equality, equity and judicial ‘trusteeship’ over the UK’s fairness agenda. In: Justiciability of Human Rights Law in Domestic Jurisdictions. Springer, London, pp. 25-44. ISBN 978-3-319-24014-5

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Abstract

The need for some form of "fairness agenda" has been cited on several occasions in connection with the UK's ongoing programmes of welfare reform. That the state has an over-arching duty to preserve finite resources, whilst also promoting just and "equitable outcomes" via its decision-making processes, has also been noted in a number of recent cases arising out of the introduction of "austerity measures." Whether equitable concepts are set to expand upon basic equality principles in cases involving adequate living standards remains to be seen. What does seem fairly clear is that budgetary limitations have the potential to impact significantly upon the lives of the most vulnerable members of society, particularly in respect of such particularly "fragile rights" as housing or health care provision. This is especially so where such socio-economic rights have tended to require considerable levels of financial and political bolstering, in the absence of which they risk being forever framed as merely aspirational in nature, suitable only for some gently progressive form of realization. Litigation in domestic courts remains key: as Harris argued, "non-justiciability may be revealed as the reason for there being no legally enforceable rights." Equally, the notion of a justiciable right to an adequate standard of living is perhaps still a little too "malleable," to be considered on a "justiciability-par" with weightier civil or political rights. This chapter will argue that a rights-template tied to the notion of "socio-economic equity" (rather than equality) could frame domestic judges as the "trustees" of public budgets, and of the socio-economic rights that such funds are meant to protect and promote. This could in turn potentially serve to challenge at least some of the increasingly profound "cycles of poverty that can only be broken through structural reforms." The role of domestic courts is a fundamental, and essentially fiduciary one: judges are best placed to keep reminding legislators and policy-makers of the need to identify (and avoid dipping below) clearly articulated rights standards which should in themselves be firmly grounded upon such key rights concepts as human dignity and "bodily integrity."

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