Access to justice has often been understood in a narrow sense, relating to the most fundamental barriers people face in having a chance to access a legal process such as access to advice, access to legal representation and access to legal aid. While overcoming these barriers is key to enabling people to access justice, the research also revealed that the access to justice journey requires us to take a step back and view it from a much broader perspective. There are significant gaps that require to be addressed across this journey to enable change.
The easiest way of explaining the gap between the narrow and broad understanding of access to justice is to think of the journey as crossing a large mountain range. To reach the first summit, those at the start of the journey must contend with the immediate barriers they face. These initial barriers may be the only ones that are visible. However, once the first peak is reached, more and more peaks come into view. This briefing explains how to broaden our conception of access to justice beyond those initial barriers towards a conceptualization of access to justice that results in an effective remedy for a violation.
Awareness and legal consciousness
People don’t understand what their rights are, that they do have these fundamental social rights, you know, they’ve been undermined. Since, between civil and political rights and social rights, social rights are definitely the poor cousin but I think it has just become a point where it’s desperate. Yet politicians I don’t think are being held to account for it, you know, you don’t see it on the news enough. Poverty is not reported on.’ (NI, Chloe,1 Volunteer)
People need to know about their rights and the processes available to claim those rights before the access to justice journey can begin. Our research suggested that practitioners are concerned that:
- (1)people do not know that the rights to housing, food, fuel or social security exist:
So for example, when we went into Leith and we chatted to people about their right to housing and they were like ‘right to housing? What are you talking about?’, you know, ‘what do you mean we’ve got a right to housing?!’ They didn’t know that that was there and they thought that it was all about lawyers taking human rights cases. So the narrative about human rights wasn’t very clear, that this could be in practice for people. (Scotland, Carole, Consultant and activist, NGO for human rights)
- (2)or how to challenge a violation of their rights because they don’t know about the processes available to do so, or where to go for help:
The general feeling is that people don’t tend to challenge their rights because they don’t know how to and actually you need somebody there with a lawyer’s hat on or whatever to help you do that. (Wales, Kim, Programme Manager, NGO to combat food poverty)
This means that we do not know the full extent to which people remain ‘in the dark’ about their rights and how to claim them: ‘We often talk about this in work when we have cases, you know, people coming to us with issues. We often think how many more people experience this issue but didn’t know where to go to’ (NI, Josie, Chief Executive, NGO for housing).
I think a lot of people just don’t know where to turn … I think services often struggle to be there when people need them because people typically get to a place of crisis, so they’re living in vulnerable circumstances and they’re dealing day to day with multiple extremely stressful life events that are pushing them to that point, where they are at risk of destitution. And if they’re not engaged with agencies, and we’re seeing this a lot in the pandemic, these aren’t people who are problems, you know, to society, so, they don’t have a social worker, they might not be working or getting any help from mental health service providers and so on. You have to be quite ill to meet the threshold to be allowed to even kind of get support from those teams, so lots of people just aren’t on the radar and people, because of the stigma and the social kind of pressures, of not admitting that you need help. Poverty’s highly stigmatized in our society and people don’t reach out for help. Well, they don’t even know where to turn. (Wales, Eva, Development Manager, NGO to combat child poverty)
Emotional, financial and legal resources
People need legal and financial resources to support them on their journey to finding a remedy for a legal problem. This can sometimes be referred to as ‘legal capability’. However, the research also demonstrated the need for additional resources over and above purely legal ones, including emotional resilience, stamina, strength and overcoming fear.
Financial resources
Any risk of having to pay the government’s cost just totally outweighs anything that they would personally gain from the case. So although we would do stuff pro bono, we would do it – not charging, the real problem is the costs risk of them having to pay the Secretary of State’s costs if they were unsuccessful, so legal aid provides costs protection.
It means that if a case is unsuccessful, essentially it’s the legal aid agency who steps into the client’s shoes and one bit of government pays the other bit of government, you know. It’s all a bit of emperor’s new clothes type thing. But legal aid provides clients cost protection, and that’s what I want. (England, Claire, Solicitor related to the Pantellerisco case)
The operation of the benefit tribunal is quite different, say, from the employment tribunal or the immigration tribunal. I think it’s a far less formal context. It’s a context in which legal aid isn’t available for people to be represented by a solicitor and so I do think it’s more informal. I think that errors in law can far easier go unnoticed. It’s perhaps an issue that is silenced because people don’t necessarily know that they’ve missed out on the basis of an unlawful decision. (Scotland, Freya, Solicitor, NGO for housing)
While there are different legal aid regimes in Scotland and NI, similar problems are faced in terms of access to appropriate and sustainable funding for advice services and legal representation. This can impact the type of advice and representation available to people. For example, legal aid funding does not cover all the costs of advice and representation, meaning that it becomes very difficult to support access in areas relating to SR in a sustainable way. This has inadvertently created potential barriers through the increasing likelihood of advice deserts both geographically and in terms of the sufficiency of the numbers of solicitors providing a particular service within a specialist field of law.4 The reluctance of private
For example, some providers of civil legal assistance must subsidize their work via other private practice or grants, meaning that not every hour worked on legal aid cases is paid. Respondents to a Scottish government consultation on legal aid reform highlighted concerns that housing, debt, employment, domestic abuse, immigration and asylum were areas currently poorly served by private providers (meaning an overreliance on already stretched third sector organizations) and that gaps in funding exist across these areas, for example, in relation to reasonable adjustments for people with disabilities, or in responding to mental health issues that intersect with all of the areas of concern they raised.5
Legal advice and representation
The big problem at the moment is the lack of advice following [legal aid cuts] it goes together with law centres being under enormous pressure and often having to close and similar pressures on the Citizens Advice Bureau, which are a crucial part of the structure. (England, Roland, KC)
What used to happen before was you had a kind of ‘legal aid light’ at any stage in the social security system. So if you were seeking a mandatory reconsideration you could get legal aid for help with that, if you were doing a tribunal you could get legal aid for help with that. And the legal aid wasn’t for representation, it wasn’t a forced certificate where you like pay your lawyer an hourly rate for turning up in court, it was just a fixed fee that organizations could get. But it meant also that organizations could pay for reports using the state’s money, so it kind of enabled claimants who got advice to have some sort of equality of arms in terms of obtaining evidence-, commissioning evidence. That
went in 2012/2013 and the number of expert welfare rights advisors plummeted. (England, Miles, Welfare rights advisor, NGO to combat child poverty)
So if it’s about services that can provide advice and help people challenge and have their rights enforced, I’m worried. I obviously look at it through the lens of like legal advice and that’s not to say all these cases, most housing issues and homeless issues … will be dealt with without a solicitor. But at the end of the day, in the context of homelessness for example, it’s judicial review that’s the remedy. Where you would need a solicitor, and in many of these eviction cases it is court proceedings, we’re overly reliant-, not overly reliant, we are dependent on charities and you know, Citizens Advice Bureaus and all of these organizations are doing everything that they possibly can. We have to ask ourselves why is there not a body of social security lawyers there to tease out what are really complex areas of law. Social security – like immigration law – changes all of the time. (Scotland, Freya, Solicitor, NGO for housing)
I’ve spoken to people in charity sometimes and they don’t even know anything about judicial review or they don’t know about legal aid, they just don’t know. Obviously people are coming to them with their issues and they might say to them, ‘oh well, we’ll try and write a letter to the local authority or something’. They never give them the legal option because they’re not aware of it. (Wales, Matthew, Solicitor, private law firm)
People who access appropriate legal advice and representation do better than those who do not. This means that, even for access to justice avenues where lawyers are not a requirement of the process (such as ombudsman or tribunal services), there is a disconnect between those who are able to access legal advice and representation and those who are not:
Now of course it’s not necessarily a level playing field, you’ll know that, because inevitably the landlord will be represented by probably quite a professional highly paid legal, whereas on many occasions the tenants may not even turn up … they may not be represented, it’s unlikely they’ll be represented in fact. Most of them don’t even turn up because we find that they’re encouraged by the landlord not to turn up, because the landlord kind of indicates to them that it’s not really worth their while because this is a fait accompli. (NI, Josie, Chief Executive, NGO for housing)
We sometimes forget, or there’s sometimes a perception, that these are eviction cases that are just about nonpayment of rent and all that is required is negotiation of repayment arrangements, when these are actually legal proceedings with lawyers acting for the landlords and rarely lawyers acting for the tenants. So the statistics on people who are accessing lawyers to represent them are stark. Yet when you have a lawyer in who is looking at the paperwork and who is identifying whether things are done properly, i.e. when equality of arms are there, it makes a stark difference to somebody, as I say, keeping their house or not, or at least how their case is dealt with. (Scotland, Freya, Solicitor, NGO for housing)
Emotional resources
And then when I’m going to the different agencies, like housing rights and they’re saying, ‘well you have to do X, Y and Z’, they potentially don’t have the capacity to help you to do that. And I know that [the client] doesn’t have the capacity, she doesn’t have the legal capabilities to like go through the three stage complaint process that she has to go through. (NI, Chloe, Volunteer)
They’re not able to reach all those people that are going through these tribunal appeal processes by themselves. And if they are, they then find that the individual that they’re helping has a cluster of problems that may be stretching to housing. So maybe they come with a social security issue, then they find out that they have a housing issue, then they maybe have a family issue, a family law issue … It’s so difficult to like unravel a health issue, mental health issue, to unravel all of those separate issues. I was talking to an advisor on Friday and she was saying that at the minute during COVID they have 15-minute slots for people. (NI, Chloe, Volunteer)
There’s definitely a role for individuals trying to get recourse as well. What there isn’t is a strong enough structure in place to be able to enable to do that easily without breaking them down mentally, physically, emotionally, you know. If you’re already marginalized and then you’ve got to fight the system which is completely stacked against you – you know what? You really don’t have a lot of [hope] for success unless you’ve got resilience coming out your pores. (Scotland, Carole, Consultant and activist, NGO for human rights)
In addition, there is the fear of potential retribution for challenging a case, something that in practice can manifest as subtle or explicit worsening of circumstances for the person complaining. ‘I have definitely found that since we have been advocating on [her] behalf, that she has definitely been gaining even more maltreatment from the housing executive.’ (NI, Chloe, Volunteer).
In some cases, this fear may be placed on the potential backlash of raising a complaint or drawing attention to a vulnerable situation, ‘[They] might never approach the authority because they’re worried that they’re going to be deported or detained because they think they’re illegal’ (Scotland, Freya, Solicitor, NGO for housing).
Give people assurances that nothing bad will happen if they complain, because sometimes things do happen when people complain and they’re the ones that deal with it, I don’t deal with it. I dealt with one example that I always think about, of a woman during the evictions, like after Serco had made the evictions and we were working with a lot of lawyers to get people represented in court. Anyway, I had this woman … the court had placed an interim interdict … the interim interdict says that they can’t move you until the Ali case had been decided … she called us saying ‘Serco have said that they’re going to come and evict me today’, so I called Serco and was like ‘are you aware that there’s an interim interdict on this property and you will be breaking the law if you move her?!’ and they didn’t know! And they were like ‘oh thank you for telling us’ like ‘she won’t be moved’. But then there’s this system in place where if somebody doesn’t move, either when they come to evict you or they come to move you to a different property, it’s called a ‘Failure to Travel’, so if you refuse to get in the van and go, they issue a Failure to Travel message to the Home Office and then your asylum support stops. So even though they would have been breaking the law if they had moved her, they still issued the Failure to Travel notice so then her asylum support stopped. (Scotland, Abigail, Evictions caseworker, NGO for asylum seekers)
Complexity of the journey: getting ‘stuck in administrative mud’
I did a Survey Monkey thing where I asked people ‘Have you downloaded a letter, what happened?’ Really high percentage, something like 86 per cent or something of people who said that they’d used the letters in one way or another, it had resolved the issue for their client … They send a pre-action letter, actually send it as a pre-action letter to the DWP. The DWP will say ‘we do not accept your argument, you’re completely wrong and judicial review is a remedy of last resort. However, in this instance a mandatory reconsideration decision has been made’, which actually has resolved the issue for the client. So it’s sort of an indirect success … when I’m training advisors and say ‘never expect them to accept your arguments, never expect them to agree with you because they will always disagree, but what you’re looking for is to see whether there is a consequential change’. If [DWP] say, ‘we trust that no further proceedings will ensue because we’ve issued a mandatory reconsideration decision in your client’s favour’, that’s a success. (England, Jane, Welfare rights advisor, NGO to combat child poverty)
We convened a group of young people to meet with our First Minister just before Christmas, at his request. I mean, it came out quite late in the day but we managed to get a good group of young people together and they raised a number of issues around mental health, schools returning. And he did refer to that and his Education Minister referred to engagement he’d had with young people fairly recently, in terms of informing his decisions around COVID. Young people also then raised, at that meeting, that they weren’t getting sufficient information around COVID in a child-friendly manner. Within a week, we had a meeting of senior comms leads across Welsh government officials. (Wales, Sam, Policy developer, NGO for children and youth)
However, these paths can be mired with difficulties. While they may sometimes result in positive outcomes, this is by no means guaranteed, and
These routes do not necessarily guarantee human rights compliant outcomes, nor do they ensure accountability for violations of rights when they occur: ‘It’s easy to get those public appearances and public declarations of support. It’s extremely difficult to see actual change and movement. So, how do you translate that kind of public expressions or, like informal expressions, like unanimously pass motions and to bring about any actual change’ (NI, Esther, Housing activist, NGO for human rights).
The courts are the best remedy because if you try and introduce some, kind of ombudsman or commissioner or something … something that might not work really, I don’t know … I think the courts are the best safeguard, the best safety net, but the problem is access to funding and access to lawyers who know what they’re doing, because there aren’t that many. Again, in Wales there’s literally two or three lawyers like me, so I think access to justice both in funding and knowing and lawyers is the problem. But I think ultimately it should be the courts who decide these things, because they’re so important and I think if you try and add another type of ombudsman or something like that, it’ll just get mired in the administrative mud actually. (Wales, Matthew, Solicitor, private law firm, emphasis added)
The system is so complex that even those who work in it on a day-to-day basis may not know the best route forward. It is not always clear what route to justice should be prioritized for an individual in the particular circumstances, and how they can reach a satisfactory and timely remedy: ‘It’s not clear to people. You can never know, I think, as an individual citizen or resident rather, of Wales, what steps you’re supposed to take [laughs] and who’s supposed to help you. And for even sort of fairly well-informed and experienced advisors this can be difficult’ (Wales, Eva, Development Manager, NGO to combat child poverty).
First, the UK’s domestic legal system does not include statutory or constitutional SR, meaning that when cases are adjudicated, they are not with reference to substantive SR standards.
That’s probably our most typical kind of case, in terms of disrepair and fitness, would be this lack of heating, and then condensation, damp throughout the house, and then all the kind of potential health ramifications that come with that, particularly if you have young children. Now, you see, there’s very, very, very little in law that we can do about that, because it’s not actually breaking any- you know, that is complying with the standards, so it’s very hard to do anything. I mean, that’s never getting into any court because there’s no challenge for it. And in those sort of cases you just have to work with environmental health officers, they will kind of serve notices on landlords to try to get them to take action, not install heating or not upgrade heating, but just to maybe take action on the symptoms rather than the cause, but it’s not really a satisfactory solution. (NI, Josie, Chief Executive, NGO for housing)
There’s a very strong feeling of reluctance in the English higher courts to start actually deciding on social and economic policy, to be honest … this is at the top of my mind in a way, because back in late October I was arguing a case about the two-child rule, which says that for child tax credits, which is one of the major means tested benefits, you can’t get benefit for the third and subsequent children born after April 2016. But that feels to me like a pretty draconian rule, given that the benefit is a subsistence benefit. It’s a benefit to provide for basic needs and so you’re just not providing for the basic needs of the third and subsequent children. But the court is terribly reluctant to get into it at all. They just say that sort of judgment is essentially a political judgment. (England, Roland, KC)
This is a frustration for practitioners because it means they are often trying to make arguments by using less appropriate legal structures to protect SR or trying to fit a ‘square peg in a round hole’. One route to challenging SR
Compliance with economic and SR law requires a broader reasonableness test.9 The types of questions asked in a broader reasonableness assessment include the extent to which the measures taken were deliberate, concrete and targeted towards the fulfilment of SR; whether discretion was exercised in a nondiscriminatory and non-arbitrary manner; whether resource allocation is in accordance with international human rights standards; whether the option adopted is the one that least restricts rights; whether the steps were taken in a reasonable timeframe; whether the precarious situation of disadvantaged and marginalized individuals or groups has been addressed; whether policies have prioritized grave situations or situations of risk; and whether decision making is transparent and participatory.10
What things boil down to is a political decision about two imperfect situations that have both been fully scoped out, but
I often get the sensation … the decision makers in government have just not confronted the true complexity of the decision that they were making … It’s right that people spend time thinking about the implication of laws that affect hundreds of thousands if not millions of people in quite some detail. And I sometimes find it astonishing that so much law is made without that sort of analysis how is it as a society we make provision for lots of clever people to spend lots of time thinking about the colour and shape of sweet wrappers, but when it comes to how we provide the basics of systems income for millions of households with children, it’s just like, oh wow, this will probably do … there’s a bit of a disconnect there and as I say, I think a lot of the litigation that I do with [name of organization] is fundamentally an accusation that the state just hasn’t thought about a problem perhaps. And you know when we succeed the court is very frequently accepting that the problem hasn’t really been confronted. And when we fail, they tend to be saying, and quite rightly, it’s not the courts’ job to say – but they’re often saying, well, they’ve done it, you know, they’ve grappled with this enough and so we’re not going to intervene. (England, Tobias, Barrister)
Yeah well obviously they don’t really stand on their own in the ECHR, they’re not incorporated, so they’re not part of domestic law. They can obviously illuminate the arguments that you might have about nationality or discrimination in domestic law or even buttress the argument with references to international obligations. My own experience, that’s just been where I’m coming from recently, it’s quite difficult to really gain much added value as an advocate for the international conventions to social and economic rights and you can’t litigate them by themselves because [they’re] not incorporated. (England, Roland, KC)
Incorporation of international law into domestic law means embedding legal standards as set out in international law and making them enforceable
The UN human rights monitoring bodies have advised that the fulfilment of human rights requires states to take action at the domestic level in order to create the necessary legal structures, processes and substantive outcomes for human rights protection. Several UN committees have recommended that the UK both incorporates international human rights law and ensures effective justiciable remedies are made available for noncompliance.16 For example, the Committee on the Rights of the Child suggests that fulfilment of international obligations should be secured through the incorporation of
The limitation is that because we haven’t incorporated [the] international covenant and economic, social cultural rights, we are having to run cases about unfairness in the benefits system – the main way of challenging them, is through Article 14 discrimination claims under [the] ECHR. So, Article 14 in conjunction with A1P1 [Article 1 of Protocol 1] and then Article 8 potentially. And you know it’s putting a round peg into a square hole, for example. So in relation to the main challenges of the benefit cap, 70 per cent of those being affected pre-COVID were lone parents. You’ve got a work incentivization measure which is singling out lone parents, so you have to justify what it is about lone parents that singles them out for such punitive treatment. But that’s because of a variety of issues as to how we got up to the Supreme Court and the lack of full substantive arguments … down below it was treated as a discrimination case, whether an exception should be made for lone parents. And well to me that wasn’t the issue. We were challenging the benefit cap square on because if you take lone parents out as opposed to lone parents of under-fives and lone parents of under two, you’ve scuppered the whole benefit cap. But it was a contorted
argument having to fit it into an Article 14 claim, as opposed to, well actually you have provided in the benefit cap something that is inadequate in terms of [the] level of subsistence benefit. It was recognized that it pushed families well below the poverty line. So inadequacy and lack of accessibility to meaningful benefits … if you look in terms of general comment language about accessibility, adequacy etc, and then if you look at the various letters that were sent out from the head of the Committee on Economic, Social and Cultural Rights in response to the 2008/ 2009 financial crisis and austerity and so, you know, regressive measures, austerity measures were all going to be temporary. Works weren’t going to be discriminatory, they’re meant to be participative, all of those criteria that’s irrelevant in the UK courts, and that’s really frustrating because the benefit cap, yeah potentially, could just be litigated on its own terms without the discrimination argument. (England, Claire, Solicitor related to the Pantellerisco case, emphasis added)
Reaching an effective remedy is not guaranteed
She’s wasted two years of her life on the benefits system and it just doesn’t make sense, it doesn’t make sense, that a young woman, and with three children who she’s bringing up on her own should have been using those two years productively with her children, has been focused on the system. And nobody can ever give her, or those two children, those two years back. They’re gone. (NI, Kamilla, Welfare rights advisor, NGO local community)
You know, ’cause I think people just get weary. Like I know [name of client] just wants a new house now. So the housing executive in the next week offer her a new flat that meets what she wants in a home
and she can be safe there, she will take it. That will be her remedy. So she won’t seek to get the eight weeks’ rent that she has missed or, for example, have her arrears waived because of what she has gone through … I don’t think she’ll seek any other redress because she’s so worn down by the whole thing. (NI, Esther, Housing activist, NGO for human rights)
Yeah and they would never, even if they get the asylum support back, there would never be any recognition of that fact that it was not their fault that that happened. You know, there would never be an apology. I wouldn’t even think to ask for an apology! Even though that’s what they should get. But also because you’re just dealing with the survival aspects of it, just that they need the asylum support back in order to be able to pay for food. (Scotland, Abigail, Evictions caseworker, NGO for asylum seekers)
Justice equals access to an effective remedy
A broader lens on access to justice includes securing access to legal processes that result in effective outcomes. According to Shelton, remedies are the processes by which arguable claims are heard and decided, whether by courts, administrative agencies or other competent bodies, as well as the outcome of the proceedings and the relief afforded to the successful claimant (leading to results that are individually and socially just).22
In relation to SR, this requires a reconceptualization of access to justice that begins with the violation of a right and ends in an effective remedy for that violation. Such an approach requires renewed focus on what is meant both in terms of effective legal processes (international human rights law suggests that they need to be ‘accessible, affordable, timely and effective’)23 as well as an effective outcome of those processes.24 The international legal position asserts that ‘where there is a right, there is a remedy’ based on the
The legal right to an effective remedy
A remedy for a rights violation comprises both substantive and procedural elements.27 Procedurally, it refers to a process or series of processes by which SR violations claims are heard by courts, quasi-judicial bodies, administrative agencies and/or any other competent bodies.28 Substantively, it refers to the outcome of the hearing and the relief granted to the claimant.
An effective remedy for the violation is one that can serve three functions.29 The first is to place the applicant in, as far as possible, in the same position as they were prior to the occurrence of the alleged rights violation. The second is to ensure ongoing compliance with the rights obligations of
The concept of an effective legal remedy is derived from Article 8 UDHR, which states that ‘everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law’.31 Various iterations of the right to an effective remedy and the right to reparation can be found across multiple human rights treaties. For example, the ECHR and the American Convention on Human Rights contain separate provisions for the right to an effective remedy (Articles 25 and 13) and the right to reparation (Articles 63.1 and 41 respectively). However, the ICCPR addresses both the procedural and substantive elements of an effective remedy in Article 2(3), meaning that an effective process as well as an effective outcome are required to demonstrate an effective remedy has been met. The Human Rights Committee, responsible for the interpretation of the ICCPR, clarifies that ‘without reparation … the obligation to provide an effective remedy is not discharged’.32 In other words, the definition of an effective remedy includes both the efficacy of the remedial process, as well as the efficacy of the outcomes of those processes (the relief offered).33
In terms of appropriate relief, the UN Guiding Principles34 provide further clarification on what constitutes an effective remedy in international law, which includes restitution, compensation, rehabilitation, satisfaction, effective measures to ensure cessation of the violation and guarantees of nonrepetition. Specific remedies beyond compensation include public apologies, public and administrative sanctions for wrongdoing, instructing that human rights education be undertaken, ensuring a transparent and accurate account of the violation, reviewing or disapplying incompatible laws or policies, use of delayed remedies to facilitate compliance, including rights holders as participants in development of remedies and supervising compliance postjudgment.
One of the key questions asked in the interviews was how practitioners conceptualized effective remedies. Their responses shows that practitioners often conflated the notion of ‘an effective remedy’ with ‘access to justice’, highlighting that these distinctions are not always clear-cut and easy to dissect. There are two important points to reflect on in this respect. On the one hand, some practitioners thought of remedies as routes or processes that may enable access to justice (procedural justice). Others conceptualized effective remedies as processes (procedural access) that lead to just outcomes (substantive justice), including effective reparations, relief and cessation of the violation/preventing recurrence. Their responses echoed the duality of procedural and substantive issues in international human rights law, and reflected the principles of accessibility, affordability and timeliness, as well as both procedural and substantive effectiveness.35
Accessibility
For some of the practitioners, access to an effective remedy meant access to adjudication processes, such as better appeal rights/ways to challenge a SR violation, strategic litigation and access to legal representation. Some practitioners advocated for direct access to tribunals, expressing a preference for taking an appeal to the Commissioner for Social Security (Northern Ireland) rather than the High Court. One of the Scottish case study practitioners stated: ‘I think it’s positive that you’ve got a right of appeal to the Social Security Tribunal that’s not like a judicial review procedure, it’s a specific right of appeal to a court that comes from that statute. So I think more of that is … necessary’ (Scotland, Erica, Solicitor, human rights public body).
Can be something as simple as information and it can go all the way up through to sometimes you need a case. So you need to have a well-resourced, specialist legal sector that are there … to take these cases, so it can be simple as access to information – so people have informed consent – ‘OK, I’ll do that’. But it goes all the way up to being able to implement or enforce the rights that these individuals have and that could go as far as a judicial review or a strategic test case in order to
change some of these systems. (Scotland, Kelly, Solicitor specializing in women/children/ immigration, NGO delivering legal services)
Practitioners also highlighted that an effective remedy cannot be accessed if there are no clear and simple pathways to challenge a violation, calling for ‘a clearer route for people to access legal remedies for SR in particular’, without needing to go through a complex and difficult bureaucratic claims process. Chloe said that for housing, social security, managing health and social care, and immigration, it is difficult to know what route to go down. This includes lawyers, Chloe said, ‘particularly those lawyers that aren’t well versed in social welfare issues’ (NI, Chloe, Volunteer).
Affordability
I would say even in a relatively personally privileged position that I am in, I would very much think twice about, if something happened to me, say something to do with my daughter’s education or … if she was disabled or something and I wanted to challenge the support and stuff that was made available to her, I would really, really, really think hard about whether I would want to go down the route of a judicial review or something or a court case. So I feel like if I think that, in my position of being a lawyer, knowing about human rights, being relatively like financially okay and stuff like that … what is that if … people in my position think ‘oh god I would never do that!’ … what does that say about that being an okay remedy as for the general population? (Scotland, Erica, Solicitor, human rights public body)
Erica emphasizes how the great financial and emotional strain of court proceedings poses a significant barrier to accessing justice.
Timeliness
We have already highlighted in Chapter 3 how the Cox case demonstrates the importance of accessing a remedy in a timely manner, given Lorraine Cox’s terminal illness. Long timescales and delays act as a deterrent and a barrier to obtaining an effective remedy. There was broad consensus among
Time was not only measured in terms of how long rights holders were left without a solution, but it also referred to the time commitment required to obtain a remedy due to the number of hoops a person must jump through and the toll it takes on them. These routes to ‘justice’ wear people down and lead them to accept unsatisfactory solutions.
If someone is homeless then their … right to adequate housing, they’re living in a hostel, then I mean, unless I’m being too obvious, the obvious remedy is that a house is secured for them to live in. Or if someone has damp and that damp is making their child sick, the obvious remedy to that, right to health, adequate housing, is that that damp is fixed or they’re moved to an alternative safe accommodation. (NI, Esther, Housing activist, NGO for human rights)
Furthermore, she recognized that one can have local, national and international human rights legislation in place, but ‘until that damp is actually fixed, that means nothing to that family’. It is through an effective solution that SR are realized.
Effectiveness
Practitioner judgments on the effectiveness of a remedy were influenced by a number of different factors related to damages/financial compensation, whether or not amendments were made to legislation, restitution, acknowledgement of liability/fault, apologies, accountability and enforcement, clear and simple pathways to challenge a violation, minimum core requirements, clear boundaries of entitlement and requirements for feedback.
Practitioners felt that as a minimum, an effective remedy would provide the amount of money rights holders ‘lost out on’, meaning that a successful outcome would backdate payments of social security benefits missed. In the case of a rat infestation, it would entail compensation for eight weeks rent
You could get compensation, but another part of [an] effective remedy is like restitution … to the extent possible, you should be restored to the position that you were in had that rights violation not happened to you, but compensation won’t necessarily do that, so you might need educational, counselling, health measures – like various other things to be put in place. (Scotland, Erica, Solicitor, human rights public body)
To some people a finding of liability is important – a finding of fault and then comes with that the apology. And then obviously … human rights law has got stuff to say about what an apology should be as well. So I think that the important thing would be, and to a lot of people as well, that public aspect of it … of having that sort of ‘day in court’ is important for access to justice. (Scotland, Erica, Solicitor, human rights public body)
I mean with something like the socioeconomic duty there’s no real kind of enforcement, you know. It’s another one of these things, like we have lots of these frameworks in Wales, that don’t actually give any power to- [laughs] there’s no actions, you know. They can make recommendations. Lots of bodies and commissioners and things that can recommend things and even the ombudsman they can recommend that the council does – they don’t have to do it. They can just ignore it if they want and so yeah you get to that point where it’s like well who actually does enforce accountability … and the system that we’ve got at the moment, I mean there’s so much more that needs to be done. And if you took a rights-based approach first and foremost
I think that would really help, where everyone designing the system and administering the system for the people who are actually on the receiving end of these systems, you know what to expect [laughs] but also then be able to seek recourse when it doesn’t work well. (Wales, Eva, Development Manager, NGO to combat child poverty)
Enforcement can only be mandated if SR are legally embedded in ways that enable effective remedies for violations. These legal protections also require the definition of minimum core thresholds and normative standards, in accordance with international human rights standards, to ensure that SR provisions are adequate. This relates to our discussion with Josie, Chief Executive with a housing NGO in NI, about low fitness standards (see the NI case study). She explained that due to outdated fitness standards, one socket in a room is considered adequate heating. Many people, particularly those with low incomes, rely on electric heaters for warmth, but a typical fitness issue is that when the house is freezing, it becomes damp, impacting on health and exacerbating the situation.
But it’s very hard for people to know whether or not they’ve been turned down or their award is not what it should be if it’s not clearly stated exactly what the boundaries of eligibility are. And that’s because it is, you know, very much up to the person, and it’s an obscure process … it’s impossible to know whether your rights have been upheld or whether you are being unfairly treated because you don’t know what it is, what it means to be fair. And so that first step of giving people the information about what their rights are, so that they can understand that their rights aren’t being upheld, is missing. (Wales, Eva, Development Manager, NGO to combat child poverty)
Matthew and Erica raised concerns that remedies should be available in courts and that other less formal mechanisms can result in people becoming stuck in the system or stuck in ‘administrative mud’ (Wales, Matthew, Solicitor, private law firm). Erica explained that an ombudsman or regulatory kind of function might not properly deal with issues and might merely create an additional tier, further exacerbating concerns about the timeliness of remedies.
There’s too low a level paid currently from my perspective, so without going into the particulars I would say that reform is always the highest and probably best way of achieving what we’re seeking rather than through the courts necessarily … yeah I think reform, but that may be driven by legal action. (Scotland, Jonas, Solicitor related to the Ali case)
There never is any apology and, as I say, more worrying than that is there isn’t [any] feedback. So because they’re not getting feedback, they’re not getting the tribunal coming back to them and saying, ‘look, we have overturned this decision because you failed to take account of this piece of evidence, or you misinterpreted this piece of evidence or you misinterpreted this bit of the law’, there’s never any of that feedback and that’s a real issue … I’m not naive enough to think that that would turn everything around, but I think it could have some, in a small way, it could. You know, there might be some decision makers who could actually-, I think if it was drawn to their attention that they’re always making a certain type of mistake, or they’re always ignoring a certain piece of evidence or underestimating a certain aspect of a case, or something like that … we don’t always, we don’t get to know the
names of the individuals who have made the decisions, but I see lots of bad decisions – are they being made by a whole variety of people across the board, or is there actually a handful of people making bad decisions, and there are lots of them making good decisions. I don’t know, because that’s what I’m not privy to. So, that would be very interesting, if I could have confidence that the government department concerned was actually taking that side of things seriously, if they were prepared to be a bit more self-critical and analyse decisions and analyse results. And think, ‘well actually, are we not training our staff well enough’, you know. But there you go [laughs] I can but dream [laughs]. (Wales, Rose, Welfare rights advisor, local county)
Feedback loop
Access to justice needs to be an iterative process whereby the end of the access to journey feeds back into law, policy and decision-making processes as a matter of course. This is particularly important where it becomes clear that there is a flaw in the system that needs to be addressed. In other words, ideally there should be feedback mechanisms that help enable longer-term change for systemic issues. For example, at the tribunal level, if there is a repeated pattern of poor decision making or a repeated flaw in the decision-making process, case outcomes should be fed back into the decision-making process.
This means there should be improved communication to stop violations continuing to happen earlier on in the decision-making process. It is also an important way of ensuring that the system gets fixed for everyone and is not just a fire-fighting exercise of dealing with one individual problem at a time without fixing the overall systemic issue. In this sense, a feedback loop can help others avoid the arduous access to justice journey, enabling fast routes to remedies once a lead case has identified a recurring violation.
I think the tribunals arrive at the right answer most of the time and the quality of their decision making is pretty good, but I don’t think that there’s any real mechanism for feeding back to decision makers what was wrong with their decision. Certainly, there’s no mechanism at the individual decision maker level. Like the individual decision maker who made a decision in [Name] Benefits Service Centre will never know that that decision was overturned ultimately, unless they stumble across the case sometime later. (England, Miles, Welfare rights advisor, NGO to combat child poverty)
A manifestation of the absence of a feedback loop is in repeated poor decision making reflected in the number of decisions overturned on appeal in relation to housing, social security and asylum cases.36 In this section, we present statistical data regarding First-tier Tribunal decisions for social security and child payments (see Tables 4.1 and 4.2 and Figures 4.1 and 4.2, where the figures are the visualizations of the data in the tables). We also share a subset of the social security data showing appeals related to the PIP benefit (see Tables 4.3 and 4.4 and Figures 4.3 and 4.4). The social security statistics are presented subsequently in tables and figures showing total case numbers, as well as percentages. We also present data of first-tier immigration decisions allowed and dismissed. These statistics are expressed in percentages (see Table 4.5 and Figure 4.5).
All the statistics cover the financial years 2015/2016 to 2020/2021 and are drawn from published UK government (Ministry of Justice) statistics.37
Social security
Social security and child support (number of cases)
| Financial year | Upheld government | In favour of claimant | Cleared at hearing |
|---|---|---|---|
| 2015/2016 | 57,895 | 72,374 | 131,319 |
| 2016/2017 | 61,601 | 99,616 | 162,369 |
| 2017/2018 | 62,231 | 115,303 | 178,849 |
| 2018/2019 | 50,498 | 115,370 | 166,989 |
| 2019/2020 | 38,444 | 100,891 | 140,115 |
| 2020/2021 | 26,742 | 63,892 | 91,001 |
| Total | 297,411 | 567,446 | 870,642 |
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First-tier social security appeals (number of cases)
Percentage of cases cleared at hearing upholding decision or finding in favour of the claimant
| Financial year | Upheld government | In favour of claimant |
|---|---|---|
| 2015/2016 | 44 | 55 |
| 2016/2017 | 38 | 61 |
| 2017/2018 | 35 | 64 |
| 2018/2019 | 30 | 69 |
| 2019/2020 | 27 | 72 |
| 2020/2021 | 29 | 70 |
| Average (%) | 33.83 | 65.17 |
The social security tribunal data, as seen in Tables 4.1 and 4.2 and Figures 4.1 and 4.2, show that in financial year 2020/2021, out of 91,809 appeal decisions made at First-tier Social Security Tribunals, 27,122 decisions were upheld for government, whereas 64,077 decisions were made in favour of the claimant. This means that 70 per cent of government decisions were overturned. From the financial years 2015/2016 to 2020/2021, these statistics show an increasing trend of poor decision making, with the number of decisions overturned and granted in favour of claimants steadily increasing, albeit with a small reduction in 2020/2021 compared to the previous year (2019/2020). However, even the latest figures show that the government only got its decisions right the first time 29 per cent of the time – an unsustainable decision-making model.
Personal Independence Payment (number of cases)
| Financial year | Cleared at hearing | Upheld government | In favour of claimant |
|---|---|---|---|
| 2015/2016 | 49,742 | 19,112 | 30,236 |
| 2016/2017 | 70,329 | 24,074 | 45,697 |
| 2017/2018 | 83,886 | 26,289 | 56,971 |
| 2018/2019 | 83,954 | 21,984 | 61,476 |
| 2019/2020 | 77,156 | 17,711 | 59,090 |
| 2020/2021 | 55,006 | 13,171 | 41,751 |
| Total | 420,073 | 122,341 | 295,221 |
Personal Independence Payment (number of cases)
Personal Independence Payment (%)
| Financial year | Upheld government | In favour of claimant |
|---|---|---|
| 2015/2016 | 38 | 61 |
| 2016/2017 | 34 | 65 |
| 2017/2018 | 31 | 68 |
| 2018/2019 | 26 | 73 |
| 2019/2020 | 23 | 77 |
| 2020/2021 | 24 | 76 |
| Average (%) | 29.3 | 70 |
The number of appeals upheld for government with respect to applications for PIP is dismal. There has been a steady increase (a slight 1 per cent decrease between 2020/2021 and 2019/2020) in decisions made in favour of claimants. With less than 25 per cent of decisions upheld for government, these statistics lend proof to our qualitative findings that decision-making processes, especially medical assessment procedures, are unfit for purpose. The impact of unjust decisions made in relation to initial applications results in a lengthy and arduous journey for rights holders with significant consequences. The processes and procedures for the evaluation of PIP
Immigration/asylum
We have also included the following statistics regarding immigration decisions at the First-tier Immigration Tribunal (see Table 4.5 and Figure 4.5 for further details).
First-tier immigration decisions allowed and dismissed (%)
| Financial year | Allowed | Dismissed |
|---|---|---|
| 2015/2016 | 39 | 61 |
| 2016/2017 | 43 | 57 |
| 2017/2018 | 49 | 51 |
| 2018/2019 | 52 | 48 |
| 2019/2020 | 50 | 50 |
| 2020/2021 | 49 | 51 |
| Average (%) | 47 | 53 |
First-tier Tribunals (immigration and asylum): number of appeals determined at hearing or on paper (%)
I mean I think the cynical part of me would say, you know, that these things are designed the way they are because they hope by rejecting more people then people just won’t appeal it, they won’t challenge it, so therefore if they are not having to pay x amount of money and
therefore they think they are saving money. But in reality if you have that many decisions overturned, that logic doesn’t apply anymore, like the success on appeal rates are so high that basically a lot of the people with lived experience were like ‘I expect to be denied what I’m entitled to at first and then I will get that-, chances are that [I] might get that on appeal’. But you have to have the mental and emotional capacity to do that. (Scotland, Erica, Solicitor, human rights public body)
Systemic injustice and structural responses: a missing component
Whereas there’s many cases where you would really love to have the opportunity to get it into court to have the issues heard and aired because then it could be more helpful beyond the individual, that’s not a decision that you can make on behalf of the person, you know, you just can’t … if you’re in that situation and somebody said to you ‘no OK, we will accept you’re homeless’, obviously you’re going to say ‘that’s great, thanks very much’, and that’s what people do. They’re not
going to say, ‘well hold on, I want to make an important legal point here’. (NI, Josie, Chief Executive, NGO for housing)
I think in some individual cases there are great advocacy organizations in Scotland that are supporting that work. You know, look at Clan Childlaw [law centre] as well, who are doing strategic litigation work in terms of rights around children and education and trying to shift the system from that perspective, so individuals might get a bit of support and recourse there but that’s not a strategic thing … it’s just a nightmare to go through in terms of supporting people to do that. There are organizations that will help people to do that, to try and get their rights addressed, but the issue is if you’ve been broken down by a system and completely marginalized, where are you going to go when [they] stop listening?
The people in Leith, for example, the Council said ‘we’ve not had complaints about this issue’ – so the issue was around pigeon waste and rats, you know, vermin.
‘We’ve not had complaints’ … Like if I was the tenant living in Leith and I’d complained about the same issue for five years – and in some cases for 20 years – and nothing had been done, why would I even, take that [leap]? It’s so depressing and it’s so disempowering. It is, but it also can be hopeful when you can get people together to realize that actually you still have the power. And it’s the power of the collective which can be really helpful in engaging some of that … and to realize that they’re not alone, because that solidarity and power of the collective is
actually really, really strong. (Scotland, Carole, Consultant and activist, NGO for human rights, emphasis added)
However these routes are, for various reasons, underexplored across the UK,40 and more so in some parts compared to others. The following section considers the comparative practice of structural remedies as a response to systemic issues.
Comparative practice in structural relief
Remedies for SR violations usually take three broad forms: individual (they help address a violation for one person), programmatic (they address a systemic issue that impacts lots of people), and hybrid (they achieve a mixture of both individual and systemic relief). A singular focus on individual or programmatic relief could produce problems: courts that focus solely on individual cases may jeopardize relief for a broader class of petitioners while leaving intact a systemic feature of a legal system that may require attention, thereby being unable to ensure nonrepetition of the rights violation. Likewise, delivering only systemic relief may leave individual petitioners without access to a remedy.
Hybrid remedies of the kind referred to previously may also take the form of collective litigation in situations involving multiple complainants and multiple duty bearers. In such remedies, courts may also encourage the parties to engage in dialogue about the best way forward. Such ‘dialogic’ forms of judicial remedies are especially suited to claims involving SR. Courts may consider the meaning and content of rights, but defer back to the decision maker in relation to the remedy. The court can also play an important role in mitigating interinstitutional confrontation where there may be more than one department responsible (this can include dialogue and collaboration between executive departments at the national level or indeed disputes about obligations between the national level and the devolved level). Dialogic forms of judicial remedies can be innovative in nature in an exploration of how best to address systemic issues. In such kinds of remedies, courts can act as an intermediary between different rights holders and duty bearers to find an effective remedy that requires multiple duty bearers to respond as part of a structural interdict (a hybrid remedy that can offer individual and systemic relief potentially involving multiple applicants and multiple defendants).
The following section briefly considers some of the structural remedy litigation at the international and domestic levels, drawing out examples of individual cases that offer systemic relief as well as collective cases that offer systemic relief and on domestic examples from India, Canada, the US, South Africa and Colombia.
The European Court of Human Rights, for example, now uses a pilot system to deal with systemic cases.51 The central idea behind this procedure is to ensure that applicants obtain redress more speedily if an effective remedy is established in national law to address a systemic issue.52 This allows the court to deal with its heavy caseload and limited resources by ensuring repetitive cases, and those cases that are urgent or raise questions of wider public importance can be adjudicated holistically and more speedily where the structural remedy addresses the systemic issue.53
The European Court of Human Rights has issued structural orders under the pilot system. A notable instance was its judgment in response to claims for compensatory land for property abandoned because of boundary changes following the Second World War in Poland. The Court held that the state should take measures that would afford a remedy to all those who faced a violation of Article 1 Protocol 1 ECHR. The Polish government then adopted a new law under which financial compensation was made available to all those impacted, meaning that an effective remedy had been made available at the national level.54
Other regional human rights systems adopt a similar approach. For example, the Inter-American Court of Human Rights issued a structural order to address the vulnerable situation of the Xákmok Kásek Indigenous Community in Paraguay who had been unable to take possession of their ancestral land and who were, in the meantime, left without access to adequate food, medicine and sanitation.55 The Court ordered the return of the Xákmok Kásek Community’s land, instructed a public act of acknowledgement of the wrongdoing by the state, and instructed the state to amend the domestic law to create an effective system for Indigenous peoples to reclaim ancestral lands at the domestic level. Further, it undertook supervision of compliance with the judgment.56
This approach is also evident as part of international complaints mechanisms. Similar approaches to preventing future violations from occurring have been
In the case of Toussain, a woman with precarious immigration status was denied healthcare constituting a breach of her right to life. The UN Human Rights Committee held that Ms Toussaint should receive compensation. In addition, it also held that Canada (the state party) was under an obligation to take steps to prevent similar violations in the future, including reviewing its national legislation to ensure that irregular migrants have access to essential healthcare to prevent a reasonably foreseeable risk that can result in loss of life.60 Similarly, in the case of Molina Thiessen v Guatemala, the Inter-American Court of Human Rights produced a step-by-step guide61 on how to ensure structural changes seeking to address the wider issue of access to justice and systemic impunity in Guatemala based on a violation in one incident. This guarantee of nonrepetition is again linked to the concept of an effective remedy, part of which requires cessation of the violation in the case at hand and for others that may be impacted.
As was noted earlier, supranational courts’ exclusive focus on either individual or systemic relief carries risks. While individualized supranational remedies may fail to prevent future violations or remedy the feature of the legal system that caused the violation, systemic remedies may leave individual claimants without a remedy and also not address the intangible harms that rights holders have suffered. Twin-track supranational remedies that provide both are more capable of successfully negotiating the tensions between these categories of remedies. Some examples from international and regional human rights are provided later on.
In IDG v Spain,62 the CESCR held that the individual complainant,63 whose home was about to be subjected to foreclosure after she had
In a case65 concerning the eviction of a Roma family from irregularly occupied government-owned land (later transferred to a private individual) near Sofia, Bulgaria, the European Court of Human Rights provided interim protection from eviction under a Rule 39 ruling.66 Additionally, it also held that the ‘general measures in execution of this judgment should include such amendments to the relevant domestic law and practice’. Such amendments would ensure that ‘even in cases of unlawful occupation’, rights under Article 8 ECHR would be subject to proportionality analysis and any removal order would only be justified if it responds to a ‘pressing social need’ and if it is ‘proportionate to the legitimate aim pursued’.67
Structural relief in domestic adjudication
One of the first jurisdictions to use structural orders to address systemic issues was in India, when its Supreme Court heard petitions calling for government action on starvation deaths in the country. The Court started issuing interim, systemic orders that made discretionary government food distribution schemes justiciable, paving the way for a further set of judgments that would overhaul the country’s public food programmes.68 Other countries engaged with SR adjudication followed suit. Structural orders from domestic courts take several forms that depend on the features of the jurisdictions, some of which are discussed later on.
A structural remedy of this nature comprises a declaration of constitutional incompatibility or invalidity on a government act or omission. Thereafter, such a declaration is suspended for a definite period, pending government action to correct the error that led to the situation. Suspended declarations of invalidity serve at least two important objectives: first, where courts are unsure of how to remedy a particular situation, these can provide governments with an opportunity to remedy the oversight/problem/concern within a period, thereby respecting courts’ institutional incapacity as policy makers in most cases; and, second, it can prove to be a strain of a lesser degree on the separation of powers compared to other kinds of more invasive remedies. Two examples in particular of structural remedies done through suspended declarations of invalidity are instructive – healthcare litigation in Canada and school finance litigation in the US.
In Chaoulli, the Supreme Court of Canada struck down restrictions imposed by the province of Quebec on private health insurance due to the inordinately long waiting times for hip surgeries that were being observed.69 The problem at hand was clearly polycentric, in that it involved and affected parties who were not before the court and whose actions would determine the outcome. The Court was also not sure whether more government spending on healthcare would reduce waiting times.70 The way out was a systemic remedy wherein the Court held that the bar on private insurance purchase was unconstitutional. The remedy was operationalized through a suspended declaration of invalidity,71 following which the province enacted legislation that permitted private insurance for knee, hip and cataract surgeries. While this may have constrained the availability of an individual remedy,72 it allowed for the government to devise a remedy in response to the Court’s strong normative declaration of invalidity.
The federal constitution of the US does not contain a set of justiciable SR, and any doctrinal innovations to that effect were closed off after the 1973 Supreme Court decision in Rodriguez v San Antonio School Board,73 which found that education was not a fundamental interest protected under federal constitutional provisions. The Supreme Courts of Texas and Kentucky then became arenas for the contestation of education rights under their respective
Structural remedies through declarations and retention of jurisdiction
Courts can also issue structural remedies where they grant declaratory relief and retain jurisdiction over the matter, often because governments may not comply with the decision. The likelihood of government noncompliance is often a motivating factor for courts to design these kinds of orders. The likelihood of noncompliance is gauged by courts using the facts on record and the past conduct of the government on a given dispute. In cases where the likelihood of noncompliance is high, courts have held that declaratory relief may not be sufficient and may need to be backed up with the retention of jurisdiction over the matter in order to oversee the implementation of relief. These concerns become heightened in cases where the affected parties are especially vulnerable: examples include early childhood learners79 and
In a South African case80 concerning the availability of meals under the National School Nutrition Programme (NSNP) despite school closures during the COVID-19 pandemic, the North Gauteng High Court at Pretoria granted a structural interdict to oversee the rollout of the revised plan to ensure that the NSNP would continue uninterrupted. The Court noted that the provincial governments’ responses to the filing of litigation that sought to resume the NSNP despite closures while restricting eligibility as being fragmented and without ‘rhyme and reason’, while being ‘chaotic and unachievable’.81 The remedy ensured relief for both the immediate class of claimants, while also ensuring that the NSNP, a federal programme, would be provided across the nine provinces which had been joined as parties to the case. This implies that courts’ and claimants’ awareness of the possible broader effect of a ruling to a wider range of affected parties can help navigate the tension between individual and structural relief.
Canada is a rich source of decisions where courts are able to engage with legislatures and the executive while retaining jurisdiction over cases. A series of minority school language cases, most notably Doucet-Boudreau v Nova Scotia,82 provide a model for the ways in which courts were able to ensure that the issue of providing for minority language schools in the territory of Nova Scotia was addressed. The case had been complex and involved several parties and schools across locations. The lower court ordered a broadly worded remedy that required the government to make ‘best efforts’ to ensure compliance with constitutional rights and achieving homogenous Francophone education. The Supreme Court of Canada upheld the order despite its relative open-endedness, with Justices Iacobucci and Arbour stressing the ‘need to respect general principles about the need for effective and responsive remedies, adherence to a flexible understanding of the separation of power and fairness towards the defendant’.83
Structural remedies through declarations of a state of unconstitutionality
The Constitutional Court of Colombia, after permitting the tutela mechanism to enforce individual SR, was flooded with complaints. Observers began
Structural orders through hybrid individual and systemic relief
Domestic courts that have an exclusive focus on either individual or systemic relief can run into certain difficulties. As discussed previously, individual remedies may fail to prevent future violations or remedy the feature of the domestic legal system that caused the violation. As a corollary, systemic remedies may leave individual claimants within the legal system without a remedy and also not address the intangible harms that rights holders have suffered.90 Twin-track remedies that provide both are more capable of successfully negotiating the tensions between these categories of remedies.
The approach of the Constitutional Court of South Africa in a series of housing rights cases illustrates the benefits of a twin-track approach. In Blue Moonlight,91 the eviction of several unauthorized occupants of a private property was halted pending the provision of alternate temporary accommodation that met constitutional requirements. To do so, the Court had to examine the constitutionality of the Ekhuthuleni Overnight/Decant
Nussberger and Landau highlight that structural approaches to economic, social and cultural rights are underexplored and may have potential that has not been fully realized in the comparative practice of enforcing ESC rights.92 While not a panacea, research suggests that they can be particularly effective in enabling dialogue between impacted communities and decision makers,93 as well as longer-term material change enabled through legislative reform that follows awareness raising of major systemic problems.94 This aligns with the empirical data of the importance of rights claiming as a performative act in a participative and deliberative democracy.
Conclusions
This chapter frames access to justice as a journey. In so doing, it reconceptualizes the access to social justice journey as one that begins with a violation and ends with an effective remedy. The empirical data reflected the sheer frustrations which many of our practitioners felt in relation to the arduous nature of the journey and the danger of getting mired in ‘administrative mud’. It was also clear from the research participants that the system, in its current format, is simply unfit for purpose. People do not have the resources to challenge the system, and the system is stacked against them. The law does not adequately protect SR. The routes to justice are complex. The end results are not effective in practice. Even when a remedy is forthcoming, it does not meet the standard of an effective remedy according to international human rights law. There is no mechanism to address systemic errors in decision making, with tribunal data showing up to 75 per cent of cases being overturned at the tribunal level. Other countries that have embedded SR in their legal framework provide examples of how justice systems can adapt to address systemic and collective violations in different ways. There is much greater scope across the UK to learn from these jurisdictions to address the gaps in the access to justice journey.
In order to ensure the protection of our participants’ identities, all individual names used in the book are pseudonyms.
Vicky Ling et al, The Legal Aid Handbook 20/21 (London: Legal Action Group, 2020), ch 1.
LASPO 2012, s 10(3)(a).
Scottish Government Consultation, Legal Aid Reform Consultation Analysis (2020), https://www.gov.scot/publications/legal-aid-reform-scotland-consultation-response/
Ibid.
Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223.
Council of Civil Service Unions and Others v Minister for the Civil Service [1985] AC 374.
R (Pantellerisco and Others) v SSWP [2021] EWCA Civ 1454, para 58, referring to Lord Reed in R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26, who cites Lord Bridge in R v Secretary of State for the Environment ex p Hammersmith and Fulham London Borough Council [1991] 1 AC 521.
For a discussion on the ‘proportionality-inflected’ broader reasonableness review adopted by the UN CESCR, see Sandra Liebenberg, ‘Between Sovereignty and Accountability: The Emerging Jurisprudence of the United Nations Committee on Economic, Social and Cultural Rights under the Optional Protocol’ (2020) 48(1) Human Rights Quarterly, pp 48–84, p 72.
Ibid. See also Katie Boyle, Economic and Social Rights Law: Incorporation, Justiciability and Principles of Adjudication (Abingdon: Routledge, 2020), pp 32–35.
Boyle (n 10), p 181.
Oona A. Hathaway, ‘Do Human Rights Treaties Make a Difference?’ (2002) 111 Yale Law Journal, pp 1935–2042.
Katie Boyle, Models of Incorporation and Justiciability of Economic, Social and Cultural Rights (Edinburgh: Scottish Human Rights Commission, 2018), p 14. See also UN Committee on Economic, Social and Cultural Rights (CESCR), ‘General Comment No. 19: The Right to Social Security’ (Art. 9 of the Covenant), 4 February 2008, E/C.12/GC/19, [77]–[80]; UN General Assembly, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law: resolution / adopted by the General Assembly, 21 March 2006, A/RES/60/147. See also CESCR, ‘General Comment No. 9: The Domestic Application of the Covenant’ (1998) E/C.12/1998/24, [4].
See First Minister’s Advisory Group on Human Rights Leadership (2018), https://humanrightsleadership.scot/wp-content/uploads/2018/12/First-Ministers-Advisory-Group-on-Human-Rights-Leadership-Final-report-for-publication.pdf; and the National Taskforce for Human Rights Leadership Report (2021), https://www.gov.scot/publications/national-taskforce-human-rights-leadership-report/documents/
Simon Hoffman, Sarah Nason, Rosie Beacock and Ele Hicks (with contributions from Rhian Croke), ‘Strengthening and Advancing Equality and Human Rights in Wales’ (2021) Welsh Government Social Research Number 54/2021.
Treaty bodies recommending incorporation: CEDAW/C/UK/CO/6 (CEDAW, 2009) Committee on the Elimination of Discrimination against Women; CAT/C/GBR/CO/5 (CAT, 2013) Committee against Torture; CRC/C/GBR/CO/4 (CRC, 2008) Committee on the Rights of the Child. Treaty bodies recommending justiciable enforcement and effective remedies: CRC/C/GBR/CO/5 (CRC, 2016) Committee on the Rights of the Child; E/C.12/GBR/CO/5 (CESCR, 2009) Committee on Economic, Social and Cultural Rights; E/C.12/GBR/CO/6 (CESCR, 2016).
CESCR, ‘General Comment No. 5: General Measures of Implementation for the Convention on the Rights of the Child’ (2003) CRC/GC/2003/5, [20]; Concluding Observations of the United Nations Committee on the Rights of the Child on the United Kingdom (2002) CRC/C/15/Add.188, paras 8 and 9; and Concluding Observations of the United Nations Committee on the Rights of the Child on the United Kingdom (2008), CRC/C/GBR/CO/4, para 7; CAT/C/GBR/CO/5 (CAT, 2013) Committee against Torture, para 7; CEDAW/C/UK/CO/6 (CEDAW, 2009) Committee on the Elimination of Discrimination against Women; E/C.12/GBR/CO/5 (CESCR, 2009) Committee on Economic, Social and Cultural Rights, para 13.
CESCR CRC/C/GBR/CO/5 (CRC, 2016) para 5; Committee on the Rights of the Child, para 7.
CESCR (n 13), [10]; E/C.12/GBR/CO/5 (CESCR, 2009), para 13.
CESCR (n 13).
Ibid, [9].
Dinah Shelton, Remedies in International Human Rights Law (Oxford: Oxford University Press, 1999), p 7.
CESCR (n 13), [9].
Remedies should be effective ‘in practice as well as in law’: Council of Europe, ‘Guide on Article 13 of the European Convention on Human Rights, Right to an Effective Remedy’, European Court of Human Rights, 31 August 2024.
The formulation of this principle was first established in 1928 by the Permanent Court of International Justice in the Chorzów Factory case, where the court held that reparations ought to ‘wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed.’ Chorzów Factory, 1928 PCIJ (ser. A) No. 17, at 47. The International Law Commission’s draft articles on state responsibility require states to make reparations for wrongful acts (G.A. Res. 56/83, Annex arts 30 and 31, UN Doc. A/RES/56/83/Annex (28 January 2002)) reflecting the principle first formulated in Chorzów. This area of law is concerned with state responsibility between states rather than between the state and the individual; however, it is increasingly applying to the area of international human rights regarding the relationship between the state and the individual, and to wrongful acts committed against the international community; Shelton (n 22), ch 2; see also International Commission of Jurists ‘The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, Maastricht, January 22–26, 1997’ (1998) 20 Human Rights Quarterly, pp 691–704, para 23.
CESCR, ‘General Comment No. 4: The Right to Adequate Housing (Art. 11(1) of the Covenant)’ (1991) E/1992/23, [17]; Shelton (n 22).
Dinah Shelton, Remedies in International Human Rights Law, 3rd ed, (Oxford, Oxford University Press, 2015).
Council of Civil Service Unions and Others (n 7).
Kent Roach, Remedies for Human Rights Violations: A Two Track Approach to Supranational and National Law (Cambridge: Cambridge University Press, 2021), pp 2–5.
Ibid.
Universal Declaration of Human Rights, UN General Assembly Resolution 217(A) III, 10 December 1948. Article 13 is based on art 8 UDHR, and art 47 of the EU Charter of Fundamental Rights draws its inspiration from arts 6 and 13 ECHR and goes somewhat further than art 6 in its scope of protection.
UN Human Rights Committee (HRC), ‘General Comment No. 31 [80], The Nature of the General Legal Obligation Imposed on States Parties to the Covenant’, 26 May 2004, CCPR/C/21/Rev.1/Add.13.
Ibid, paras 16–17.
UN General Assembly (n 13).
Shelton (n 22), p 7, para 9.
We do not include housing statistics here, as we found the processes of challenging housing decisions to not be very transparent, leading to great difficulties in terms of finding representative tables and figures.
We have not included the data for the year 2021/2022 due to the impacts of the COVID-19 pandemic on the ability to hear tribunal cases and consequent impacts on the data. In our view, the period chosen between 2015/2016 and 2020/2021 best demonstrated the impacts of the post-LASPO access to justice landscape in terms of tribunals data. The raw tribunal data are published by the Ministry of Justice (MoJ) and all tables are accurate as of 12 June 2024. See MoJ, ‘Tribunal Statistics Quarterly: January to March 2023’ (2023), https://www.gov.uk/government/statistics/tribunal-statistics-quarterly-january-to-march-2023
Alex Homer, ‘Seven out of 10 Win Benefits Challenges at Tribunal’, BBC News, 24 September 2021.
For a full discussion of this, see Gaurav Mukherjee, ‘Briefing: Effective Remedies & Structural Orders For Social Rights Violations’, Nuffield Access to Justice for Social Rights, Addressing the Accountability Gap (2022).
See, for example, the work of Michael Molavi, Collective Access to Justice, Assessing the Potential of Class Actions in England and Wales (Bristol: Bristol University Press, 2021).
Equal Education and Others v Minister of Basic Education and Others (22588/2020) [2020] ZAGPPHC 306; [2020] 4 All SA 102 (GP); 2021 (1) SA 198 (GP), 17 July 2020.
Victoria Miyandazi, ‘Setting the Record Straight on Socio-Economic Rights Adjudication: Kenya Supreme Court’s Judgment in the Mitu-Bell Case’, Oxford Human Rights Hub, 1 February 2021, https://ohrh.law.ox.ac.uk/setting-the-record-straight-on-socio-economic-rights-adjudication-kenya-supreme-courts-judgment-in-the-mitu-bell-case/
Manuel José Cepeda Espinosa and David Landau, Colombian Constitutional Law: Leading Cases (Oxford: Oxford University Press, 2017), especially ch 6 on social rights.
Katharine Young, ‘A Typology of Economic and Social Rights Adjudication: Exploring the Catalytic Function of Judicial Review’ (2010) 8(3) International Journal of Constitutional Law, pp 385–420.
Kent Roach, Constitutional Remedies in Canada, 2nd edn (Toronto: Canada Law Book, 2013).
Also in relation to class action, multi-party proceedings and group proceedings.
Systemic and structural can be used interchangeably in the literature and in practice. See further Roach (n 29); and for national examples of interchangeable use of the term structural remedies, see the South African Constitutional Court and Kenyan Constitutional Court, which has issued ‘structural remedies’ that are framed in similar terms: Mahlangu and Another v Minister of Labour and Others [2020] ZACC 24; Equal Education and Others v Minister of Basic Education and Others (22588/2020) [2020] ZAGPPHC 306; and Mitu-Bell Welfare Society v Kenya Airports Authority, SC Petition 3 of 2018
Roach (n 29), p 77.
Ibid.
Katie Boyle and Nicole Busby, ‘Subnational Incorporation of Economic, Social and Cultural Rights: Can Devolution Become a Vehicle for Progressive Human Rights Reform?’ (2023) 74(1) Northern Ireland Legal Quarterly, pp 63–94.
These orders are granted under Rule 61 of the Rules of Court. For an explanation, see Janneke Gerards, ‘Abstract and Concrete Reasonableness Review by the European Court of Human Rights’ (2020) 1(2) European Convention on Human Rights Law Review, pp 218–247.
European Court of Human Rights, Pilot Judgment Procedure, Information Note Issued by the Registrar, para 6.
Ibid.
Broniowski v Poland no. 31443/96, ECHR 2004-V. See also Broniowski v Poland (friendly settlement) no. 31443/96, ECHR 2005-IX 2 and E.G. v Poland, no. 50425/99 and other big river applications, decision of 23 September 2008.
Inter-American Court Of Human Rights, Case of the Xákmok Kásek Indigenous Community v Paraguay, Judgment of 24 August 2010 (Merits, Reparations, and Costs), para 2.
Ibid.
Toussaint v Canada, United Nations Human Rights Committee, CCPR/C/123/D/2348/2014, 7 August 2018. See also Mbongo Akwanga v Cameroon, Merits, UN Doc. CCPR/C/101/D/1813/2008, IHRL 172 (UNHRC 2011), 22 March 2011, para 14 – the state was required to prevent such violations from occurring in the future.
X and Y v Georgia, Communication No. 24/2009; UN Doc. CEDAW/C/61/D/24/2009, para 11(b)(ii).
Communication submitted by: Rosario Gómez-Limón Pardo Rosario Gómez-Limón Pardo v Spain, E/C.12/67/D/52/2018.
Toussaint v Canada (n 57), para 13.
Order of the Inter-American Court of Human Rights, 16 November 2009, Case of Molina-Theissen v Guatemala (Monitoring Compliance with Judgment), para 32. For a discussion of this, see Lucrecia Molina Theissen, ‘Until We Find Marco Antonio’ (2020) 12 Journal of Human Rights Practice, pp 157–162.
IDG v Spain, Merits, UN Doc. E/C.12/55/D/2/2014, IHRL 3882 (CESCR 2015).
Note that Spain has signed the OP-ICESCR (Optional Protocol), which opens the door for individual complaints.
Daniela Ikawa and Chris Grove, ‘Historic Step towards Access to Justice for ESCR Violations at UN’, Open Democracy, 1 December 2015, https://www.opendemocracy.net/en/openglobalrights-openpage/historic-step-towards-access-to-justice-for-escr-violatio/
Yordanova and Others v Bulgaria, No. 25446/06.
The ECtHR, under r 39 of its Rules of Court, grants interim measures that may be directed at any state party to the Convention.
Yordanova and Others v Bulgaria (n 65), para 123.
People’s Union for Civil Liberties v Union of India and Others Writ Petition (Civil) No. 196 of 2001, (2002) (India).
Roach (n 29), p 415.
Chaoulli v Quebec [2005] 1 SCR 791, para 103.
Roach (n 29), pp 416–417.
Kent Roach, ‘The Courts and Medicare: Too Much or Too Little Judicial Activism?’ in Colleen Flood, Kent Roach and Lorne Sossin (eds), Access to Care, Access to Justice (Toronto: University of Toronto Press, 2005), p 200.
Rodriguez v San Antonio School Board, 411 US 1 (1973).
Edgewood Independent School District v Kirby, 777 S.W.2d 391 (Tex. 1989).
Edgewood II, 804 S.W.2d 491 (Tex. 1991); Edgewood III, 826 S.W.2d 489 (Tex. 1992).
Edgewood IV, 893 S.W.2d 450 (Tex. 1995).
Rose v Council for Better Education, 790 S.W.2d 186 (Ky. 1989).
Roach (n 29), p 418.
Equal Education and Others v Minister of Basic Education and Others (22588/2020) [2020] ZAGPPHC 306; [2020] 4 All SA 102 (GP); 2021 (1) SA 198 at para 88.2: ‘Children are categorically vulnerable, poor hungry children are exceptionally vulnerable. The degree of the violation of the constitutional rights are thus egregious.’
Equal Education and Others v Minister of Basic Education and Others (22588/2020) [2020] ZAGPPHC 306; [2020] 4 All SA 102 (GP); 2021 (1) SA 198 (GP) (17 July 2020).
Equal Education and Others v Minister of Basic Education (n 80), para 88.
Doucet-Boudreau v Nova Scotia [2003] 3 SCR 3.
Roach (n 29), p 392.
David Landau, ‘The Reality of Social Rights Enforcement’ (2012) 53 Harvard International Law Journal, pp 190–247, p 225. Note the pushback against the pro-hegemonic critique: Mila Versteeg, ‘Can Rights Combat Economic Inequality?’ (2017) 133 Harvard Law Review, pp 2017–2060, p 2034: ‘my own best reading of the official statistics is that both the poor and the middle classes benefited from the tutela’.
Boyle (n 10), p 17.
César Rodríguez-Garavito, ‘Beyond the Courtroom: The Impact of Judicial Activism on Socioeconomic Rights in Latin America’ (2011) 89 Texas Law Review, pp 1669–1698, p 1676.
T-760/08 (Decision T-760/08 (2008) (Colombia).
Alicia Ely Yamin (Decision T-760 (2008) (Colombia).
David Landau, ‘Political Institutions and Judicial Role in Comparative Constitutional Law’ (2010) 51(2) Harvard International Law Journal, pp 319–378, pp 342–344.
Roach (n 29), pp 14–15.
City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another [2011] ZACC 33; 2012 (2) SA 104 (CC).
Angelika Nussberger and David Landau, The Justiciability of Economic, Social and Cultural Rights (Cambridge: Intersentia, 2023).
Ibid, pp 44–45.
Ibid.
