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
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
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.
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
- reasons for decisions (when a decision is reached, reasons should be
- 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
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.
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
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
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.