26 Equality, Human Rights and the Public Service Spending Cuts: Do UK Welfare Cuts Violate the Equal Right to Social Security? Jonathan Butterworth and Jamie Burton1 “Too often when countries undertake major consolidations (...) it is the poorest – those who had least to do with the cause of the economic misfortunes – who are hit hardest. Perhaps that has been a mistake that our country has made in the past. This Coalition Government will be different.” Chancellor of the Exchequer,2 Rt Hon George Osborne MP (22 June 2010)3 1. Introduction The government stated that the cuts would on Economic, Social and Cultural Rights be fair, evenly spread across all sectors of (ICESCR)The UK ratified4 in 1976. the As International such, the UK Covenantis legally society and, as such, would not have a dis- bound to guarantee the right to social secu- proportionate impact on marginalised and rity for everyone without discrimination.5 In disadvantaged groups.11 Section 4 of this particular, indirectly discriminatory meas- article examines the legality of the social ures, which appear neutral at face value but have a discriminatory impact on the exercise distributed in an indirectly discriminatory of Covenant rights, are prohibited under manner,security cutshaving and a findsdisproportionate that they have impact been Article 2(2) of the Covenant.6 Even in times on the rights of “at risk” groups, particularly of economic crisis, the UK is under a duty women and disabled people, contrary to Ar- to avoid at all times taking decisions which ticles 2(2) and 9 of the Covenant.12 might lead to the denial of economic, social and cultural rights.7 In turn, section 5 examines whether the cuts - In 2010, the UK government announced that sity and proportionality. In accordance with it intended to cut the amount it spends each guidancemay be justified issued byon thethe Committee grounds of on neces Eco- year by at least £83 billion, or around 14% nomic, Social and Cultural Rights (CESCR), of all public spending, by 2015.8 Cuts to so- rights infringements amount to rights vio- cial security totalling £22 billion9 have been lations if state parties are unable to demon- implemented through a range of changes in- strate that the measures in question are both cluding the limiting, freezing and capping of necessary and proportionate.13 In making 10 this assessment, the CESCR looks carefully a broad range of welfare benefits. The Equal Rights Review, Vol. Eleven (2013) 27 - order that everyone may realise his or her rights to family protection and assistance, an whetherat, first, whetherevery effort there has is abeen reasonable made to justi use adequate standard of living and adequate ac- allfication resources for the that relevant are at actiona state andparty’s second, dis- cess to health care, as contained in Articles posal in an effort to realise the full content of 10, 11 and 12 of the Covenant respectively.17 the right, and eliminate discriminatory pro- vision, as a matter of priority.14 The Duty of Non-Discrimination The government has sought to defend its wel- Under Article 2(2) of the Covenant, the UK is under a duty to guarantee the rights con- reduction. However, for the reasons present- tained in the Covenant, including the right edfare in reforms section on5, thethe changesgrounds failof budgetto establish deficit a to social security, without discrimination of any kind as to race, colour, sex, language, re- of the right to social security. Further, sec- ligion, political or other opinion, national or tionreasonable 5 argues justification that, by introducing for the infringement a range of social origin, property, birth or other status. revenue-raising and cost saving measures, the “Other status” has been interpreted by CE- government could have reduced the budget SCR to include disability, nationality, health status, sexual orientation, age and economic right to social security. As such, section 5 con- and social situation.18 cludesdeficit thatwithout the UKdiscriminatorily government haslimiting failed the to use all resources at its disposal to secure the Discrimination constitutes any distinction, right to social security, free from discrimina- exclusion, restriction, preference or other tion, as a matter of priority, contrary to Arti- differential treatment that is directly or in- cles 2(2) and 9 of the Covenant. directly based on prohibited grounds, and which has the intention or effect of impair- 2. The Right to Social Security and the ing the enjoyment, on an equal footing, of Duty of Non-Discrimination Covenant rights.19 The Right to Social Security Under the Covenant, both direct discrimi- nation (when an individual is treated less By Article 9 of the Covenant, the UK is favourably than another person in a similar obliged to secure the right to social secu- situation for a reason related to a prohibited rity, which encompasses the right to access ground) and indirect discrimination (laws, policies or practices which appear neutral at kind, without discrimination in order to se- face value, but have a discriminatory impact cureand maintain protection, benefits, inter alia whether, from lackin cash of work- or in on the exercise of Covenant rights) are pro- related income caused by sickness, disability, hibited under Article 2(2) of the Covenant. maternity, employment injury, unemploy- ment, old age, death of a family member, Given that everyone has the right to social unaffordable access to health care or insuf- security, state parties to the Covenant must 15 give special attention to those individuals Inficient accordance family support. with CESCR General Comment in exercising this right. In particular, Gen- No. 19,16 eraland groupsComment who No. traditionally 19 requires face state difficulties parties must be adequate in amount and duration in to the Covenant to give special attention to benefits, whether in cash or in kind, The Equal Rights Review, Vol. Eleven (2013) 28 the rights of women, the unemployed, work- including tax measures, to support social ers inadequately protected by social security, transfers to mitigate inequalities that can persons working in the informal economy, grow in times of crisis, and to ensure that the sick or injured workers, people with disabili- rights of disadvantaged and marginalised in- ties, older persons, children and adult de- dividuals and groups are not disproportion- pendents, domestic workers, home-workers, ately affected.26 minority groups, refugees, asylum-seekers, internally displaced persons, returnees, non- Fourth, the policy must identify, and ensure nationals and prisoners and detainees.20 the protection of, a minimum core content of rights at all times. In order for a state party Obligations and Violations to be able to attribute its failure to meet at least its minimum core obligations to a lack CESCR recognises that the realisation of the of available resources, it must demonstrate - that every effort has been made to use all nancial implications for state parties, but resources that are at its disposal in an effort notesright tothat social the security fundamental carries importance significant fiof to satisfy, as a matter of priority, these mini- social security for human dignity means that mum obligations.27 the right should be given appropriate prior- ity in law and policy.21 Beyond this, there is a strong presumption that retrogressive measures taken in rela- As such, in response to the economic crisis, tion to the right to social security are pro- CESCR declared that state parties should hibited under the Covenant.28 In accordance avoid, at all times, taking decisions which with General Comment No. 19, if any delib- might lead to the denial or infringement of erately retrogressive measures are taken, the economic, social and cultural rights, and em- state party has the burden of proving that phasised that any proposed austerity meas- they have been introduced after the most ures or public service spending cuts must careful consideration of all alternatives and meet a set of key requirements.22 the totality of the rights provided for in the First, measures must be temporary, covering Covenant,that they arein the duly context justified of the by full reference use of the to only the period of crisis.23 Second, measures maximum available resources of the state must be necessary and proportionate, in the party. The Committee will look carefully at sense that the adoption of any other policy - would be more detrimental to economic, so- cation for the action; (b) alternatives were cial and cultural rights.24 In particular, failure comprehensivelywhether: (a) there examined; was reasonable (c) there justifi was to remove differential treatment on the basis genuine participation of affected groups in of a lack of available resources is not an objec- examining the proposed measures and al- ternatives; (d) the measures were directly or effort has been made to use all resources that indirectly discriminatory; (e) the measures aretive atand the reasonable state parties’ justification disposal unless in an everyeffort will have a sustained impact on the realisa- to address and eliminate the discrimination, tion of the right to social security, an unrea- as a matter of priority.25 sonable impact on acquired social security rights or whether an individual or group is Third, the policy must not be discriminatory deprived of access to the minimum essential and must comprise all possible measures, level of social security; and (f) whether there The Equal Rights Review, Vol. Eleven (2013) 29 was an independent review of the measures ic and unemployment has grown steadily. at the national level.29 For instance, at the end of 2007 there were 122,000 long term Job Seekers Allowance 3. Public Service Spending Cuts claimants, but at the end of 2011 there were 279,000.37 In 2010, the UK government announced cuts - totalling £83 billion which would be imple- tal of 15%, Inbut the food past has four gone years, up by the 23% official and mented by 2015.