Social rights and responsibilities

Anna Coote
Anna Coote looks at the politics of social rights.

From Soundings issue 2 Spring 1996

It has become fashionable, right across the political spectrum, to talk about 'rights' in relation to health and welfare services. The language of rights is deployed by politicians and analysts of various persuasions - with different but overlapping meanings. For some, the concept of social rights can seen as part of a broader effort to diminish the role of the state. Promoting individual rights, with corresponding responsibilities, helps to set limits upon collective activity.
The Patient's Charter is a case in point. It talks about individuals having rights to health care. But it circumscribes provision - by what it leaves out. For example, it proclaims a right to treatment within two years of being placed on a waiting list, but there is no right to be put on the waiting list in the first place. It gives patients the right to complain when things go wrong, but no right to appeal against unwelcome decisions.
Others see entitlement to social goods as a way of strengthening and deepening democracy. Rights to education, health care and a basic income, for example, are regarded as essential components of citizenship, because these things make it possible for individuals to exercise their civil and political rights, and more generally to participate in society. For example, your right to vote is impaired if you can't read; you can't enjoy freedom of speech and rights of movement and assembly if you are too poor or sick to go out of doors. So democratic society depends upon the just distribution of social goods - and these should be a matter of right, not privilege.
Linked to this is the idea that social rights help to shift power from planners and providers of social goods, to citizens and service users. This suggests a model of welfare built not on paternalism or philanthropy but on the principle of equal citizenship and self-determination. Instead of being at the mercy of politicians and professionals who decide who needs what, individuals should be able to claim what has been designated, by prior agreement through the democratic process, as theirs by right.
Rights may also be a means of guaranteeing some forms of welfare provision against the vagaries of short-term political interests. If something is a right there may be an appeal to law which can override political decisions: this depends, of course, on how the right is formulated and how easily it can be revoked by new legislation or undermined in practice. But it must surely be easier for a politician to call for a new right than to call for the abolition of a right that already exists in law.
More generally, the language of rights is used as a way of expressing ideas about social justice. People will say 'we have a right to proper health care' or 'we have a right to a decent education', not because they know the courts would enforce their claims to health care and education, but because there is a widely held view that this is what ought to be available to everyone in a civilised society. In this sense,
rights are about intentions or desires rather than enforceable entitlements. This use of the language of rights is increasingly common, even while (or perhaps because) social conditions are deteriorating, it implies a demand for more, rather than less, collective provision. On the whole people who can afford to buy health care or education do not bother to assert these as a 'right'.
I do not intend to go into the philosophical arguments about what is a real right and what is not. But I do want to address two more practical arguments which are deployed against social rights, as opposed to civil and political rights. The first is that enforcing social rights is far more expensive than enforcing civil and political rights. While it costs money to uphold civil liberties (by means of police, courts, lawyers, judges, prisons), these costs are more modest, more controllable and more predictable than the costs of enforcing substantive social and economic rights. If all citizens had equal and enforceable rights to health care, education and housing, for example, then the state would have a duty to provide extensive - and expensive - services. It would be hard to control the costs of providing such services, or to predict the volume of demand.
The second is that, if the aim is to empower individuals, there are better ways of achieving this - namely choice/exit and voice. Or, put another way, the market, or democratic accountability.
The main problem with choice as a means of empowerment is that some citizens have more power to choose than others - because of where they live, how much they earn, how much they know, or how deftly they can manipulate the system to their advantage. The powers of choice can accumulate with those who are already powerful and drain away from the powerless. Some people seem to accept that cumulative inequalities are a reasonable price to pay for protecting 'freedom' of choice. But for anyone who wants to reconcile this freedom with the principle of equal citizenship, it will be necessary to orchestrate and regulate the conditions in which choices are made.
The second strategy, voice, involves members of the public having a say, through lobbying, campaigning, consultation, negotiation, voting - or a combination of these - in things like planning services, setting priorities and allocating resources. These are important elements of the democratic process but, like choice, they are limited in their capacity to empower the citizen. The distance between the elector and the decision, and the decision and its implementation, is considerable, and the bigger and more complex the society, the greater this distance can be. I shall argue that social rights are not an alternative to choice or voice, but essential as a way of making them fair and equitable.

Putting rights into practice
If we are to try to make social rights work in practice, how do we proceed? We can't escape the fact that rights to health care, education and social services are likely to be much more expensive to enforce than traditional liberties. In addition, there is the problem of political viability. The idea that citizens should have civil and political rights is well-established in judicial and political circles, even though many of these rights are in practice fragile or illusory. But the idea that they should also have social and economic rights remains controversial in political terms, and unrealised in practice. The case for introducing such rights would need, at the very least, to be built upon some positive experience of codified human rights. In some countries, notably the UK, there is little experience of that kind.
Rights can be expressed in different ways. For example, as duties imposed on authorities or as entitlements held by individuals. Individual entitlements are unenforceable without corresponding duties, but duties do not always imply specific entitlements. Most national legislation under which health care and education are provided do not allow for individual enforcement. There are also diverse ways in which new rights may be established and enforced. They can be introduced by statute, with or without entrenchment, or by means of ministerial regulation; they can be set out in statutory or non-statutory codes; they can be issued unilaterally by the authority, or negotiated with groups of citizens or service users. Rights may be enforced through the courts by means of judicial review, through courts or tribunals by individual claims, or through designated complaints and appeals procedures, which may or may not involve a final appeal to the courts.
Where there are no means of enforcement, rights can be expressed as a declaration of purpose: in this case, they maybe implemented by administrative procedures, such as the setting of goals and timetables, with designated strategies for achieving targets. Where there are no means of implementation, the language of rights is purely aspirational: a right is not what is, but what ought to be.
In practice, the elasticity of the idea of rights is probably its greatest strength. I don't think we should assume a scale of worthiness, stretching from 'good/real' enforceable individual entitlements at the top to 'bad/unreal' aspirational rights at the bottom. At best, enforceable entitlements can bring tangible benefits to individuals and help to promote the fair distribution of power and autonomy. At worst, they can clog up the courts, make hay for favour better-off litigants and play havoc greatest with public finances. At worst, aspirational rights can act as a cynical camouflage for government inaction, and deceive and alienate the public. At best, they can play a useful role in raising public expectations, creating a climate of opinion favourable to equal citizenship and providing a focus for campaigns. What is probably needed is a strategic mix of different kinds of rights, addressing the different places where power is located and the different ways in which power is exercised.
There are pragmatic, if not principled, grounds for treating social and economic rights differently from civil and political ones. Political and civil rights can be a route to social and economic rights, but not wee versa. If all individuals in a society were comfortably housed and enjoyed reasonable standards of health care, education and social insurance, but had no civil or political rights, they would have no constitutional means of winning the rights they lacked. By contrast, a society in which individuals enjoyed the right to vote, freedom of speech, assembly, movement and so forth, would hold out the possibility of winning social rights through the democratic process. Social rights may be necessary for the just enforcement of existing civil rights, but on their own they cannot be a means of achieving them. And indeed, without civil rights, social rights are almost certainly unenforceable and therefore meaningless.
Another reason for treating social and economic rights differently is that civil and political rights are already part of the picture. They are widely accepted, even if they are not widely enforced. But we are not yet accustomed to the judges interfering in the allocation of public resources for social goods.
There is a useful distinction to be made between substantive and procedural social rights, and these two kinds of rights can be tackled in different ways. Substantive rights are rights to actual benefits and services: to a hospital bed, a secure income, a school place, a home care attendant. Procedural rights are rights to the fair treatment of individuals as they come into contact (or try to come into contact) with service providers.
How can the idea of social rights be transformed into a tangible asset for citizens? On one side, there could be a new 'Social Charter' for the UK, based on international treaties, such as the European Social Charter, to which Britain is already committed. This charter could embody substantive rights, such as rights to medical care, social security and housing. It could be introduced by an ordinary Act of Parliament. It need not be directly enforceable by individuals. It could impose duties on public bodies and lay down procedures for setting targets and monitoring progress towards them. It would act as a important guide for interpreting and formulating laws - and a set of criteria for measuring the performance of public bodies.

Procedural rights
Such a Charter, for all its limitations, would provide a framework of aims and values within which procedural rights could be introduced - and here it is possible to envisage individuals having some enforceable entitlements. Although procedures do cost money, they do not have the same implications for resource allocation as do substantive rights. It is almost certainly easier to predict and control the costs of enforcing fair procedures, whereas the introduction of enforceable rights to services and benefits would imply unpredictable and open-ended demands on public funds. Procedural rights would be based on principles of fairness which are already well established in law. In effect, it would mean extending civil liberties to the realm of social provision.
The basic principles of fair treatment recognise a citizen's rights to:
- a fair hearing
- equal and consistent treatment
- unbiased decisions
- structured discretion (where a decision involves an element of discretion, for example, an expert's assessment of an individual's predicament, it should follow
explicit guidelines)
- reasons for decisions (when a decision is reached, reasons should be given)
- appeal and complaint (the person concerned should have a right to appeal against a decision, or to complain about any action that is taken as a result of
a decision)

There is no single formula for putting these principles into practice. Each area of provision would have to be examined separately to find out the most appropriate ways of applying procedural fairness. A package of rights (and mechanisms for implementing them) could be custom-made for each one, following the same principles and set within a common framework of aims and values.

Enforcing rights
There are clearly tensions between the desire to confer genuine and empowering rights on individuals, and the desire to avoid rigidity and proliferation of rules and regulations, to keep open the channels of democratic debate and to keep lawyers at bay. But there are ways of enforcing rights which do not inevitably fall into these traps. For example, we can make more of non-statutory codes and procedures. We can further develop the role of the Local Ombudsman, the Health Service Commissioners and the Audit Commission. We can resolve not to use courts where tribunals will do and to strengthen advice and advocacy systems so that lawyers are brought in only as a last resort. Any attempt to increase rights - political, civil or social - should in any case be part of a broader campaign to modernise the British legal system and reform the judiciary.

Deciding about rights
A strategic mix of rights, of the kind outlined above, would require a considerable amount of devolved decision-making, particularly in developing procedural social rights. The matter of how decisions are made and by whom, as well as how decisions are reviewed and their impact assessed, therefore becomes crucial. If decisions about rights are to check and redirect the flow of power and opportunity, they cannot be left to those who already have more than their fair share of both. In this sense, rights and are like a horse and carriage. You can't have one without the other. They are interdependent and can reinforce each other. However, it is neither possible nor desirable for everyone to participate in all decisions: so the ideal of maximal participation is tempered by the practical requirements of modern government.
Working out how the public should participate in decisions about rights is not just a technical matter: it is highly political. The 'public interest' is multi¬dimensional and often inharmonious. It is not just that different communities and groups have different and conflicting interests; individuals can have more than one set of interests, reflecting different relations with state and society. We are 'customers' when we use public services, and as such we are concerned with how we ourselves and our immediate family are affected by various forms of provision at the point of use. We are 'citizens' not by virtue of our use of services but because we are part of a community. As citizens, we have wider concerns - not just about ourselves, but about our neighbours and other members of the community, both now and in the future. The interests of customers and citizens may conflict, within and between individuals and groups. Citizens' rights and customers' rights are different, but related, instruments. Customers and citizens exert power, and experience powerlessness, in different ways and with different consequences.
So what are the means of public participation in political decision-making? Representative democracy with universal suffrage and regular elections is of course the best known form of collective decision-making. In theory, at least, it addresses the diverse and shared interests of the population as a whole. But in a large and complex society, the distances between the decision and the elector are so great that the amount of power actually exercised by the individual citizen is negligible. How else may the public participate?

One option is for members of the public to vote on a specific question or series of questions, in local or national referenda. There are examples (in the US) of 'people's referenda' where an issue is raised in the community and, if sufficient support is demonstrated, must then be put to the vote. A referendum may prompt an extensive and well-informed public debate, or railroad public opinion into over¬simplified decisions about complex questions. A great deal depends on how much the public knows and understands about the issue in question, on how the question is worded, and on how power is distributed between those who campaign for and against.
Another possibility is to apply the jury principle to some local decisions. Individuals would be selected at random from the electoral register to form a citizen's jury for a finite period, to deliberate upon matters of local concern. There are various ways in which the juries might be used - for example, to monitor performance following decisions taken by elected representatives or government agencies, to assess and review decisions before they are implemented, to advise on decisions yet to be taken, or to take decisions on behalf of the community, which would then be implemented by the elected authority. A selected jury could perform a local function similar to that of either a select or a standing parliamentary committee. How well this worked would depend on how the juries received evidence, on what resources they had at their disposal, and on procedures for deliberation.

The idea of public consultation overlaps with that of citizens' juries, but offers further possibilities. Its effectiveness, from the public's point of view, depends on what questions are asked, by whom, of whom, by what means and on the basis of what information; on whether any dialogue takes place and, if so, with whom; on how the answers are processed and conclusions drawn, and on what action is taken as a result. All these decisions remain in the hands of those who consult - as is the decision whether or not to consult in the first place. At worst, public consultation can be a highly manipulative process, benefiting no-one but the consulting body. At best, it can be a route towards more open and appropriate decisions, more enlightened decision-makers and a better-informed public.
There is a critical difference between consultation and negotiation, in that the latter culminates in some form of shared decision-making. One model is provided by the local service agreements pioneered by a handful of local authorities in the UK. Well-publicised open meetings are called at which members of the public are invited to discuss in detail the planning of a local service. These neighbourhood forums are asked to suggest improvements. Officers respond and a dialogue takes place, leading to a negotiated agreement which embodies changes to the service. This is published and distributed in each neighbourhood as a form of guarantee, with a procedure for complaining if the terms are breached.

Negotiated agreements call for clear and thorough communication of relevant information. They can set high standards of participative democracy and can be expected to raise the expectations of the public about the quality of service. The success of this approach depends upon a supportive political culture, not just on the part of the local authority, but within the local community. This can be nurtured but cannot be sustained unless the formula is applied sparingly. Negotiation takes time and energy, which are scarce and precious resources - especially among women. If every service were subjected to local negotiation, the likely result would be increasing apathy and disbelief, leading to anger and resentment.
There is no perfect way of deciding about rights. But the process of making such decisions is a vital one which must be seen to be fair and which could itself be subject to a rights-based approach. If the principles of judicial fairness were applied, decision-making would have to be open and to follow explicit guidelines, to be unbiased and to treat individuals equally and consistently. Reasons for decisions would have to be given, with rights of appeal. Procedures for decision-making could be established nationally or locally, and could be set out in statutory or voluntary codes. The rights of appropriate associations to be consulted in policy formation, to participate in decisions and to pursue complaints and appeals could be promoted through similar means.
Rights have an intrinsic and an instrumental value. They express the just claims of the individual upon the community, and enforceable rights provide a means for ensuring those claims are met. Neither choice nor voice does this. As a declaration of aims and aspirations, such as might be found in a Social Charter, rights have a unique part to play in creating a climate of opinion favourable to the goals of social justice. Furthermore, rights can protect the interests of individuals against the volatility of political and administrative decisions, as well as against the arbitrary and random effects of professional discretion. Voters don't like the idea of rights being taken away from them.

Rights can help to reconcile choice with the principle of equal citizenship. They can create a framework of shared aims and values in the form of a Charter of Rights which places duties on government bodies. Procedural rights, meanwhile, can help to equalise the power of choice. Suppose Citizen A and Citizen B have vouchers to buy education for their children: both choose to send their children to the same school; the school has only one place, but Citizen A knows the head teacher and Citizen B does not and consequently the A child gets the place. A right of appeal could help Citizen B to fight through the web of privilege which divides her from Citizen A. If choices are made within a framework of judicial fairness, they are less likely to compound existing inequalities.
It is a matter of opinion whether rights weaken democracy: that depends how much faith one has in the effectiveness of voice, and in the capacity of representative democracy to protect and empower individuals - especially vulnerable minorities. In my view, social rights can help to ensure that all citizens are able to exercise their civil and political rights (e.g. through a Charter which expresses rights to education and health care, even if only in aspirational terms). They can enhance the effectiveness of voice as a means of empowennent through a statement of rights which makes shared aims and values explicit rather than implicit. Voice may also be strengthened by means of group rights and by applying the principles of judicial fairness to decision-making procedures.
Talking about rights in abstract terms can be an important consciousness-raising exercise. Putting rights into practice, so that people can feel the difference, is a daunting and complicated task. The strength of the rights-based approach lies in its flexibility, if we can work out ways of applying it in different ways to different power relationships. The approach must be gradual and experimental, so that lessons can be learned along the way, and public support encouraged and sustained. But if the goal of a democratic state is to create the conditions for all citizens to enjoy autonomy in equal measure, then citizens need rights. They must have a fair say in how they are developed, and they must know what to expect from whatever rights are produced by that process.