A Rights Based View of the Big Society

Social, economic and cultural rights have a particular significance during a period when budgetary pressures are forcing through changes in public services at a pace that makes consultation and participation difficult, presents unique challenges in balancing priorities and interests, and puts democratic processes under pressure at every level.

These circumstances have as strong a resonance in the UK as elsewhere, and are placing harsh demands on local authorities. This briefing describes current thinking and practice on the little understood area of socio-economic and cultural rights as examined at a recent international conference, hosted by the Law Society. The material drawn together by participants indicates how a greater awareness of these rights can assist councillors and staff find solutions that take account of locally determined interests and priorities in a transparent way. It will be of interest to those responsible for community initiatives, as well as those with responsibility for service planning and commissioning.

It is not possible to cover the issues fully in a single blogpost, so links are provided to sources of additional information. The efforts of the organisations referred to, and of the local authorities taking part in the pilot studies that are mentioned, are all contributing to improving our understanding of rights and of how such understanding can make a difference to the provision and experience of public services.

At the same time, these materials assist us in considering the legitimacy of recent policy, which seeks to apply conditions to the enjoyment of economic and social rights which have nothing to do with the right itself – for example, making tenancies in social housing conditional upon the behaviour of individuals or the behaviour of one’s children, that go beyond the usual terms of tenancy agreements.

What are socio-economic and cultural rights?

The principles of economic, social and cultural rights are perhaps most easily summarised as recognising an individual’s right to social security and an adequate standard of living. The UK’s principle international commitments are to the United Nations Covenant on Economic, Social and Cultural Rights, and to the European Social Charter.

The rights encompassed by economic, social and cultural rights include access to housing, health care, education, welfare and social services, and protections in employment, from poverty and exclusion, and for children, the elderly, and the family. Some rights attach to individuals, others, such as being consulted in certain contexts and belonging to an employer’s association or trade union, operate collectively. These are not simply broad statements: much has been done to work out what these rights mean and how they may work in practice.

Recognition and protection of socio-economic and cultural rights have not kept pace with the development of what are seen as the core human rights – such as rights to life, fair trial, freedom of expression and assembly and protection of family life. All these rights are included in international treaties, charters and conventions to which the UK is a signatory, but not all have been accorded the same degree of recognition in national law, or are in the minds of policymakers or decision-makers in relevant fields to the same degree.

However, a better understanding is emerging of how existing human rights and equalities responsibilities frameworks necessarily apply when questions of socio-economic and cultural rights arise and can be used to improve access to housing, health, education, employment and social security.

Socio-economic and cultural rights are underpinned by two key elements: human dignity and proportionality. On the first of these, it is emerging that a common understanding of how individuals should be treated in a range of situations can best be summed up by a test of ‘human dignity’, a test which can be applied by individuals and interest groups in society as effectively as by lawyers, mediators and negotiators. Proportionality becomes important in implementing rights, allowing decisions to be made that recognise what can be provided within a society, without in any way excusing a failure to consider need.

The Big Society and Rights

Regardless of how a service is provided, the state retains responsibility to respect, protect and fulfil human rights, and as explained, has international commitments to social, economic and cultural rights. This will be true whether services are retained by a public body or provided by commercial companies or voluntary or charitable organisations.

Evidence is emerging that what is broadly referred to as a human rights approach can provide the foundation for more effective provision of services, in that quality of experience is addressed through an underlying value-base, based on fairness, which suppliers, staff, and users of services can recognise, and which makes it possible to take account of socio-economic and cultural rights.

This approach draws on human rights principles, and attempts to identify and equally protect basic entitlements that we all have and share as members of society. The language of a human rights approach is now drawn on by a range of organisations to explain and illustrate how the experiences of all providers and recipients of services can be improved, and the risk of individuals or groups suffering disadvantage be avoided. In effect, the self-realisation of rights bears a significant correlation with the Big Society, as a basis for encouraging participation in the design and provision of services.

For commissioners and providers of services, this involves working out what it means in practice, introducing measures – in the form of impact assessments and monitoring – which prevent groups or individuals suffering disproportionately from budget cuts and reorganisation of services, decisions about funding and provision of service, and ensuring that benefits are incorporated as key elements of the commissioning process.

It also involves reconsideration of organisational practice, and what may be involved in an approach that takes account of the major changes that are occurring in the way in which public services are provided and experienced.

Voluntary and community sector: an applied approach

According to the English Regions Equality Network, organisations in the voluntary and community sector are being encouraged to make their services more available and accessible, while funding for equality work is expected to go further and reach more people. This presents a considerable challenge, and has led to a reassessment of how the sector can implement a broader and more inclusive approach.  Discussions are focusing on creating benchmarks of service quality that all people can expect, and balancing competing needs and interests in a way that protects the most people in a proportionate way using available resources.

Making a human rights approach work in practice

At a time when councils are being asked to do more for less, it may appear to be a burden or at least an additional challenge to consider a human rights approach.

The existing statutory equalities requirements already apply at every stage of the commissioning and procurement process, but some hesitation may arise about adapting that process to incorporate human rights, due to uncertainty about the risk of litigation. The increasing availability of practice material and guidance should reduce this hesitancy, and may also provide reassurance about cost.

Advocates of a human rights approach acknowledge that there is a cost, but also argue that it can be cost free. Basic training helps improve daily decision-making on treatment, support, and quality of life – introducing a reconceptualising of what is achieved and so improving the experience of service users. It is also argued that savings can be demonstrated where better outcomes can be shown to prevent future costs or even cost savings.

Commissioners and service providers need to know what human rights and equalities issues arise in relevant contexts, and what resources are available.

Equality and Human Rights Commission [EHRC]

The EHRC is following its report on a human rights approach with projects that it is expected will lead to the production of guidance or other support materials during 2012.  A joint project with the Scottish Human Rights Commission, Equality & Human Rights Impact Assessment on budgets and decision making, is underway for 2011/12, and may have spin-offs in the form of training or guidance – the forms of which are not yet officially confirmed. A range of support materials are available on the Commission’s website, including guidance on human rights for social housing providers.

The Scottish Human Rights Commission itself has been drawing together research and experience on the ways in which non-state actors in the private and voluntary sectors can play a role in realising human rights, and explains how a human rights approach can work in practice.

British Institute of Human Rights [BIHR]

The BIHR has been running pilot studies, funded by the EHRC, testing a human rights based approach with five local authorities. Michael Keating, National Advisor on Equalities and Cohesion at LGI&D, emphasised early on that, “We must consider how human rights and equality frameworks can be used as a tool for self-regulation, not an end in and of themselves”.  He confirmed that:

A human rights approach can provide a means of focusing on communities; and help to bridge the gap between equality and fairness. Indeed human rights standards can flesh out and substantiate the concept of ‘fairness’. The human rights framework offers another tool for delivering targeted services, enabling practitioners to think about service users as individuals rather than focusing on processes. It is also a useful framework to support staff in making difficult decisions. 

In a review in late 2010, those taking part in the pilot studies considered that their experience will enable them to make the business case for equality and human rights – affiliates will be informed when a report based on their conclusions is published.

The BIHR is a source of broad information on rights and equalities in the public sector. Places remain for events organised as a Human Rights Tour, in Lincoln and London in December.

Businesses and human rights

The Business and Human Rights Resource Centre is a major resource of practice and guidance for businesses as well as providing a guide on the records of major companies on human rights issues. These are high-level documents, and are of interest in being indicative of a significant trend towards businesses having regard to human rights.

This trend was emphasised when, earlier in 2011, the Special Representative to the Secretary-General for Business and Human Rights of the United Nations released a set of Guiding Principles for Business and Human Rights, the product of six years of research and extensive consultations involving governments, companies, business associations, civil society, affected individuals and groups, investors and others around the world. The Principles outline how States and [in Part II] businesses should implement the 2008 UN “Protect, Respect and Remedy” Framework in order to better manage business and human rights challenges. The programme is a step towards establishing an international standard: the author discusses the principles in his blog on the Harvard Business School website.

The work that has been described illustrates that rights issues are not only the province of lawyers and parliamentarians, and provide valuable tools for policy makers and service providers to achieve their objectives.

Economic, social and cultural rights have been losing ground, as they are increasingly being linked to behaviour and concepts of responsibility. They can be better understood when considered as providing ways of achieving the fairness and desire to be treated with dignity that are of concern to everyone, not just the few.

This post is based on a LGiU members briefing by Hilary Kitchin. For more information about LGiU membership, please click here or contact Chris Naylor on chris.naylor@lgiu.org.uk or call 020 7554 2834