The global recession and the subsequent adoption of austerity or retrenchment policies has the potential to undermine the social and economic rights of the most vulnerable in our societies (see for instance CESR’s indictment of Ireland’s economic and financial policies). These threats to social and economic rights put in focus the role that law may play in protecting the vulnerable from violation of their rights.
We have already seen considerable litigation on this matter, including cases on housing benefit, support for people with disabilities, library closures (Green and Williams), and even a challenge to the UK budget. Most of the UK cases during this age of austerity have focused on the use of traditional judicial review grounds and use of the statutory equality duties to challenge measures of retrenchment (see recent presentations at events organised by NICEM and PILS). While there are references to human rights law in the litigation, this is not the central focus of the litigation. Where there has been reliance on human rights law the argument has tended to be unsuccessful (see the McDonald case).
We have to consider the resources that human rights law has to offer in the current economic climate. There are treaties that specifically include social and economic rights (ICESR, ESC, but also the CRC and CRPD) which are relevant to this debate, but I want to focus on the main human rights treaty relevant to the jurisdictions in these islands, the European Convention on Human Rights (ECHR).
The ECHR is mainly comprised of traditional civil and political rights; nevertheless judges and academics have highlighted the potential for the ECHR to offer indirect protection to social and economic rights or interests (Palmer, Brems, Clements and Simmons, O’Connell).
Since there is no right to social security or adequate standard of living in the ECHR, the question is what right can be used to ground challenges against austerity measures. Mel Cousins has written extensively on the ECHR rights and social security. Colm O’Cinneide has specifically drawn attention to the possibilities for Article 2 (life), Article 3 (freedom from torture, inhuman and degrading treatment) and Article 8 (right to respect for private and family life) to protect persons from the most extreme effects of destitution. Ellie Palmer has written on the potential of other rights like the right to a fair hearing (Article 6), non-discrimination (Article 14) and the right to property (Article 1 of Protocol 1 , P1-1).
That the right to property may be used to challenge austerity measures is somewhat surprising, given its historic deployment to defend economic inequality. What is key here is that the European Court of Human Rights (ECtHR) has come to recognise that in many cases social security or welfare payments will either constitute ‘possessions’ protected by P1-1 or at least be sufficiently closely related to the right to property as to bring into play the ECHR’s non-discrimination principle. These words of the ECtHR highlight the Court’s awareness of the importance of such payments:
‘In the modern, democratic State, many individuals are, for all or part of their lives, completely dependent for survival on social security and welfare benefits. Many domestic legal systems recognise that such individuals require a degree of certainty and security, and provide for benefits to be paid—subject to the fulfilment of the conditions of eligibility—as of right. Where an individual has an assertable right under domestic law to a welfare benefit, the importance of that interest should also be reflected by holding Article 1 of Protocol No. 1 to be applicable.’ (Stec Admissibility decision paragraph 51)
A variety of rights therefore can potentially ground challenges against austerity measures. But litigants should think very carefully about invoking them, as the ECtHR regularly invokes the idea of a ‘margin of appreciation’ for domestic authorities. That is to say there is a degree of judicial deference the supranational court in Strasbourg believes may be owed to domestic authorities. The ECtHR has said repeatedly that the margin of appreciation is ‘wide’ when states are determining matters of general economic and social policy. In particular the convention:
‘places no restriction on the Contracting State’s freedom to decide whether or not to have in place any form of social security scheme, or to choose the type or amount of benefits to provide under any such scheme ’ (Stec, paragraph 54).
Nevertheless sometimes there are factors which count the other way and encourage the ECtHR to apply a stricter scrutiny to state action. If a social security or welfare measure falls within the scope of the right to property and seems to discriminate on a ground such as race, nationality, sex, sexual orientation or religion then it will likely, though not inevitably, fall foul of the non-discrimination principle. On the other hand, distinctions based on, say, marital status are less likely to be regarded as suspect and so more likely to survive Convention scrutiny (Zubczewski v Sweden 2010, application no. 16149/08).
Furthermore even if it does not make a distinction on the basis of traditionally suspect category, a measure may still breach Article 14 if it makes a distinction that appears completely devoid of any rational justification. This will be a very unusual situation though; an example is a case (reported in French only) where the government did not offer any justification for a distinction: Beian v Romania (2007, application no. 30658/05).
Courts may feel that measures that impinge on the right to a fair hearing (Article 6) fall within areas which judges regard as their own area of expertise, and one where courts need not defer to elected politicians. Similarly the ECtHR will be suspicious of high handed arbitrary state behaviour, such as where a state uses legislation to interfere in the judicial process and effectively decide cases; such measures will likely breach the right to a fair trial in Article 6 (Arras v Italy, 2012).
However these questions of discrimination or arbitrariness aside, the ECtHR recognises that states may reorganise their social security and welfare systems and this may result in the reduction of benefits. In many cases the ECtHR has found no violation where a state has so acted. This does not mean that the ECtHR gives states unlimited freedom provided they do not discriminate, draw irrational distinctions or interfere with fair hearing rights or the judicial process.
Beyond these restrictions, if a state measure interferes with the enjoyment of a possession then it must be shown to be lawful, for a legitimate purpose and to have a ‘reasonable’ relationship of proportionality; in particular if a measure imposes an ‘individual and excessive’ burden then P1-1 may be breached.
It should be emphasised though that the situation needs to be extreme before this threshold is reached. If a benefit is removed because the recipient no longer qualifies for it (Wieczorek v Poland), then there is no such burden. It cannot automatically be assumed that capping pensions payments (Valkov v Bulgaria), or reducing payments by 60% or more (Goudswaard-Van der Lans v Netherlands 2005, application number 75255/01) constitutes such an ‘individual and excessive’ burden without strong evidence of that the applicant has suffered an unfair burden.
Demonstrating there is an excessive and individual burden is a difficult hurdle to jump. It is not an impossible one though; in some cases the ECtHR has found that a State measure was such an ‘individual and excessive’. Not all of these cases involve austerity measures as such, but they illustrate some of the relevant principles.
The case most clearly involving an austerity measure comes from Iceland. In Asmundsson v Iceland the applicant was in receipt of a fisherman’s disability pension as he was adjudged unable to continue working as a fisherman following an accident. Many years subsequently, the rules on the disability pension were changed as there was financial pressure on the pension fund; the applicant was adjudged able to work in other employment on-shore and his disability benefit was reduced to nothing.
In Moskal v Poland (2009), the applicant’s child had recurring health problems; she sought and received an early retirement pension so that she could look after her child. Ten months later the administrative authorities realised they made a mistake in granting the pension. The authorities stopped the payment which abruptly ended the applicant’s ‘sole source of income’. Even though the authorities did not ask her to pay back the monies paid to her, the sudden denial of the benefit was an excessively harsh interference.
In Lakicevic v Montenegro and Serbia (2011), the applicants had retired and claimed their pensions. Subsequently they returned to part time work but still claimed their pensions; this was allowed by the law at the time. The law was subsequently changed, prohibiting persons from claiming pensions while working part-time. The applicants’ pensions were suspended and they were asked to pay back monies paid to them since the new law came into force. The state’s failure to offer the applicants a ‘reasonable and commensurate reduction rather than the total suspension of their entitlements’ or a ‘transitional period’ to adjust to the new system constituted an excessive and individual burden.
In Apostolikis v Greece (2009) (application no. 39574/07, reported in French only), the applicant had been found guilty of fraud. As well as suffering a criminal penalty, he was stripped of his pension and other social security rights. This total deprivation of his means of subsistence breached the right to property. A similar example of such a ‘double penalty’ is Klein v Austria (2011); Klein lost the right to practice as a lawyer when he became bankrupt. This also disqualified him from receiving a pension notwithstanding his compulsory contributions to a pension fund.
In conclusion, anyone wishing to rely on the ECHR to challenge austerity measures needs to consider the wide margin of appreciation the Strasbourg Court will afford states. The wide margin of appreciation should not necessarily be regretted – it allows states to limit property rights on the basis of principles of solidarity (Maggio para 61) and equality for instance.
This wide margin of appreciation makes reliance on ECHR rights problematic though not impossible. Measures which discriminate on suspect grounds, or which involve a denial of fairness or an interference with the rule of law, are open to challenge. So are measures which completely deprive someone of a social welfare or security benefit in such a way as to constitute an excessive and individual burden.
That the ECHR offers some redress in these extreme situations is welcome, but the protection is lmited. As O Cinneide argues, ‘legal challenges to austerity measures have demonstrated the limited reach of legal accountability.’ These cases would appear to fall well short of the standards expected more generally in international human rights law. These speak of a right to social security (Article 9 ICESCR, Article 12 ESC 1961), social welfare (Article 14 ESC 1961), a right to an adequate standard of living (Article 11 ICESCR) and a right to protection against poverty and social exclusion (Article 30 Revised ESC – the United Kingdom is not a party to the Revised ESC; Ireland is a party).
Any human rights advocates seeking to rely on the ECHR need to consider this limited protection and the risk that an austerity measure may prove to be ‘(ECHR) human rights compliant’.