There is one fascinating exception to the failure of the parties to engage with fundamental issues: that is, the position of the WASPI women, two and a half million women who have had their expected retirement dates delayed and their pension entitlements radically cut. This is yet another legacy of bad policy decisions taken in recent years. It has led, however, to Labour and the SNP making a commitment to compensate the women for the loss of rights that have been earned through contributory benefits.
The current position of the UK government has some parallels with the behaviour of Glasgow Council, which persistently underpaid women who ought to have had equal pay. Both of these problems have come about because the public authorities were looking for ways to save money, and they thought that it was easier to do that by taking the money from women, largely because women’s incomes are considered secondary to men’s. In both cases, the injustice is obvious and palpable. And in both cases, the main ground for resistance now is simply how much it will cost to set the issue right.
The WASPI women are set to appeal from the case they lost in the High Court. They lost that case mainly because they tried to argue that their treatment was discriminatory; that argument failed because as policy intended to equalise the position of men and women is the opposite. For what it’s worth, however, I think that ultimately they are going to win, because there are other, stronger objections to the policy. The case has direct parallels with a human rights case taken in the Inter-American Court of Human Rights, in Five Pensioners v Peru. The decision in that case centred on the suspension of pensions by the Peruvian government. Disappointingly, the court did not attach much weight to the idea that social security was a human right; but they did think that there was a human right not be be deprived of one’s property, and that a contributory pension was the property of the pensioner, not the government.
The government can’t rely on its power to make the rules for social security. The DWP’s rules are mainly determined through secondary legislation, but secondary legislation can’t trump human rights or property rights. That has implications for any future government. The bill to compensate the WASPI women is going to be presented in due course, and regardless of the political complexion of the government, it is going to have to be paid.
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.
A decision in the high court has upheld an argument made by Cait Reilly, that the DWP and the government have enacted unlawfully. After her initial victory, to the effect that the DWP was acting without sufficient statutory authority, the government introduced new legislation to fill the gap, and made it retrospective. The court in this decision held that it was incompatible with principles of human rights for governments to change the law affecting a litigant while legal processes were in progress. That decision is obviously right, but the DWP seems determined to expend the largest possible sum of taxpayers’ money challenging it. Do they have a budget for legal fees that has to be spent before the end of the financial year?
The most bizarre aspect of the DWP’s strategy is that it seems to offer claimants the possibility of legal redress that otherwise they wouldn’t get. The DWP has long operated a pernicious ‘anti test case rule’: if a court finds that the DWP has interpreted the law wrongly, no redress is offered to people who have been wronged. If the DWP had rescinded the initial decision that was made about Cait Reilly, it would have had no impact on other claimants; if they had not appealed the first case, they could have introduced the new regulations with no obligation to redressing the position of people who had lost out up to that point. But the Department seems determined to lose the argument with a spectacular implosion of Hollywood-style destructiveness. It would be no bad thing if they took the anti-test case rule down with them.
I’m grateful to CROP, the Comparative Research Group on Poverty, for drawing my attention to a development in the UN: the declaration that poverty is a violation of human rights. The Guiding Principles on Extreme Poverty and Human Rights, agreed in 2012, begin with an understanding of poverty as “a multidimensional phenomenon that encompasses a lack of both income and the basic capabilities to live in dignity”. States have duties, for example
- to protect people in poverty from stigmatisation, and to “prohibit public authorities, whether national or local, from stigmatizing or discriminating against persons living in poverty” (pp 5-6)
- to enhance the involvement of women in decision-making (p 6)
- to give poor people rights of redress (p 11)
- to ensure that persons living in poverty have access to at least the
minimum essential food that is nutritionally adequate and safe, basic
shelter, housing and sanitation (p 15)
- to “repeal or reform any laws that criminalize life-sustaining activities in
public places, such as sleeping, begging, eating or performing personal
hygiene activities” (p 17)
- to provide legal aid for criminal and civil cases (p 19), and
- to ensure that all workers are paid a wage sufficient to enable them and
their family to have access to an adequate standard of living (p 27)
The document has no direct legislative force, but breaches of human rights are in principle justiciable, and members of CROP have been arguing for some years that developing legal rights against poverty could have a major material effect on government policies.
The Scottish Human Rights Commission has made a submission about human rights in Scotland to the United Nations Committee against Torture. The remit of the UN Committee is that it monitors the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Part of the SHRC’s submission is that “the UK Government and all of those involved in the implementation of welfare reform ensure that the cumulative impact of cuts in social security does not breach the Convention.”
Now, much as I dislike the benefit cuts, I think there is a moral distinction to make between cutting Housing Benefit and administering electric shocks to people’s private parts; and at a time when the protection of essential human rights is under threat, bombarding international organisations with issues that fall well outside their remit is neither appropriate nor wise.
The World Bank has just issued a new report, Empowering Women, which reviews the legal rights of women in sub-Saharan Africa. The report is listed as being for sale from 15th October, but most World Bank reports are also available as a free PDF and I found the link here, in a 6 Mb download.
The report focuses on laws that establish the framework for other rights, including marriage and divorce, inheritance and property rights. The findings are depressing, though perhaps not as depressing as the book’s publicity suggests. The positive elements are that 45 out of 47 countries have ratified the Convention on the Elimination of All Forms of Discrimination against Women, and if 21 out of 47 subject women’s rights to the authority of a head of household, that should mean that 26 don’t. The Appendix listing court cases also point to many examples of women’s rights being upheld or extended. The authors note, though, that the effect of common law, dual legal systems and the gaps between theory and practice all work to limit women’s rights, and that the effect of formalisation (e.g. in Kenya) may well be not to extend protection but to institutionalise disadvantage.