The Secretary General of the International Social Security Association has sent out a message to go along with the UN’s World Day of Social Justice on 20th February. The article begins by reminding us that
social justice is inseparable from the full respect of fundamental freedoms and human rights – including access to social security … It is worth remembering that the legal basis for access to the right to social security is clearly defined in international human rights instruments.
One of the instruments was the Social Security (Minimum Standards) Convention, 1952 (No. 102). The UK did not sign up to all of this – it has only ratified sections II-V, VII and X. That, however, includes undertakings about benefits for unemployment, including an upper waiting period of 7 days (art 24(3)) and a level of benefit that is 45% of previous earnings for a person with two children (arts 22(1), 65 and 66). On the face of the matter, the UK is currently in breach of its international obligations in relation to the second condition, and has started to breach the conditions of the first with the introduction of Universal Credit.
Two questions – 1) if the UK is in breach, what can be done, and, 2) is not the “UK Habitual Residence Test” anathema in view of these texts, leaving, as it can, people with no social security rights at all?
I’ve pointed to breaches of international conventions before – e.g. the European Social Charter. There is an argument to say that breaches of international conventions are justiciable – working with a colleague who’s a human rights lawyer, I’ve recently submitted a paper about this to an academic journal – but currently it has to be argued in the courts on a case by case basis. The DWP seems determined to fight this all the way – the Cait Reilly case is illustrative.
The international conventions don’t, regrettably, guarantee rights to all; they’re generally satisfied if the government makes provision for a reasonable proportion of citizens (often 50%). It’s an odd interpretation of how to deal with ‘fundamental human rights’. What the government can’t legitimately do under those rules, however, is systematically to deny the agreed rights to everyone, and that is what Universal Credit will be doing.
Never having read the convention, so I therefore have a certain freedom of interpretation, but I’ve always believed that it relates solely to insured (i.e. contributory) benefits. If I’m wrong this may open up an interesting area of challenge.
The convention is here. Part II, which we’re signed up to, is about medical care, which we don’t insure; Part IV, on Unemployment Benefits, refers to “all residents whose means during the contingency do not exceed limits prescribed”, which seems to refer to means-testing. I think that’s enough to show that it’s not just about insurance, but it doesn’t tell us much more than that. I don’t imagine that anything in here offers a decisive legal argument – it just looked like a point worth making.