2015 Workshop at York Law School

Following the Society of Legal Scholars conference at York Law School later this year, there will be workshop on 4th-5th September 2015, focused on the impact of the financial-economic crisis on the guarantee of welfare rights.

This workshop aims to harness and build upon the insights of a three-year research project focusing on the content and orientation of welfare reforms in five core EU Member States (UK, Italy, Germany, France, and Spain). It forms part of a larger research programme funded by the Italian Ministry for Universities and Research, led in partnership between a group of Italian Universities and York Law School, on the impact of the financial crisis entitled: “Democratic Institutions and Public Administrations of Europe: Cohesion and Innovation in the time of Economic Crisis”. The objective of this larger programme has been to explore the impact of the financial-economic crisis on the relationships between the EU and the democratic and public institutions of Member States. This workshop, to be held at the University of York Law School on 4th and 5th September 2015, will focus more narrowly on the impact of the crisis on the guarantee of welfare rights. It will consider especially the interaction between national reforms, supranational and national legal sources about rights, and courts situated at different levels within the European legal and institutional space.

The workshop draws together leading international scholars and younger academics in the fields of public law, EU law, legal theory and political science. Its key ambition is to develop a collection of essays that offers an international and comparative perspective on whether, how, and to what extent the narrative of rights and their enforcement affect and should affect social policies (e.g., health, social security, housing) in times of austerity. The starting point for the workshop’s enquiry is the remarkable increase in judicial enforcement of social rights in recent times. While we find little national and international case law for most of the 20th century, there has been a significant increase in litigation during the last 20 years or so. Indeed, according to some studies, we can count between 100,000 and 200,000 cases around the world that have invoked social or economic rights on the basis of constitutional or international law provisions. South Africa’s Constitutional Court, in particular, has captured international attention due to its clarity of judicial reasoning and reliance on explicit constitutional rights. But there are many other examples, such as the ‘unconstitutional states of affairs’ doctrine of the Colombian Constitutional Court, which upholds the right to immediate access to medicine, or the pivotal role usually acknowledged to India’s Supreme Court.

However, this is not an uncontroversial trend. It has recently been suggested, for example, that we may now be witnessing a problematic harmonisation of socio-economic rights jurisprudence in the era of neo-liberal globalisation (in which, of course, the EU and its central countries are important players). Notwithstanding idiosyncratic constitutional provisions, national courts in various parts of the world “have begun to articulate analogous conceptions of fundamental rights which are atomistic, ‘market friendly’ and, more broadly, congruent with the narrow neo-liberal conception of rights, and consequently antithetical to the protection of socio- economic rights.”[1]

These grand scenarios need to be linked, of course, with specific investigations of the administration of social welfare law and policy in the age of austerity – such an aim is a particular feature of this workshop. Across Europe, how is public administration in the field of social welfare responding to the economic crisis? In what ways have social welfare policies been reformed and altered? To what extent are we witnessing, for example, an increasing emphasis on concepts like conditionality, responsibility and reciprocity, and to what extent is this a response to the economic crisis? Conversely, which areas of policy have been protected (and why)? Further, how has the implementation of these welfare laws and policies been affected? This latter question, of course, begs another: what models of implementation are being employed and what is their significance for the protection of socio-economic rights? Ideal types of the administrative process can be structured according to two cross-cutting dimensions: first, the extent to which welfare policies rely on bureaucratic rules, as opposed to administrative discretion; and, second, the extent and quality of citizen participation in the decision-making process about their entitlements. The precise configuration of these features of the administrative process can affect the approach of the courts when considering the challenges of rights bearers.

[1] P. O’Connell, (2011) ‘The Death of Socio-Economic Rights’, 74(4) Modern Law Review 532

The Structure of the Workshop

The workshop is structured into three main parts with a concluding section.

Session I: Welfare Reforms Around Europe: Towards the End of the European Social Model?

This first session has two parts. The first part will be devoted to the presentation of the five national case studies, having as benchmarks Italy and the UK and focusing especially on non-contributory benefits and social security measures. The aim of each contribution is to briefly describe the basic structure of the national welfare system, to present and discuss whether and how austerity policies have affected welfare entitlements, and to assess whether and how courts have dealt with such policies.

The structure of each paper should be as follows

  1. The State of Welfare: An outline of Welfare focusing on non-contributory Benefits
  2. Welfare Reform Agenda and austerity measures
  • Outline of key policy reforms
  1. Social Rights Adjudication and Judicial Interpretation in the light of human rights

Contributors:

  • UK – Jed Meers, Phd student, University of York
  • Italy – Alessandra Albanese, professor of administrative law, University of Florence; Melania D’Angelosante, lecturer of administrative law, University of Bologna, Gianluca Bellomo, lecturer of public law, University of Chieti-Pescara;
  • Germany – Anna-Bettina Kaiser, associate professor of public law, Humboldt University Berlin;
  • Spain (and Portugal) – Luis Arroyo, associate professor of administrative law, University of Castilla La Mancha;
  • France – TBC

The second part of the first session comprises broader reflections by two leading scholars in the field of social rights adjudication. Building on the case-studies, they will critically assess the role of the courts in relation to the guarantee of social rights.

Contributors:

  • Jeff King, Senior Lecturer in Law, University College of London, Constitutional Social Rights and the Role of Judges in Times of Economic Crisis
    • Ellie Palmer, Professor of law, University of Essex, Protecting Socio-economic Rights through the European Convention on Human Rights 

Session 2: A European Constitutionalisation of Welfare Rights?

The second session will revolve around the legal framework of the EU approach to social welfare and takes on the controversial relationship between the EU project and guarantees of fundamental social rights.

Contributors:

  • Dagmar Schiek, Professor of EU law, University of Leeds, Social governance and social citizenship in the EU
  • Colm O’Cinneide, Reader in Laws, UCL, Vice President of European Committee of social rights, Social Constitutionalism in Europe
  • Charlotte O’Brien, Lecturer, University of York, Social Justice and the Rights of Migrants
  • Francesco Bilancia, University of Chieti-Pescara, Guarantees of Social Right, Economic Crisis and Territorial Asymmetries between the Common Market and the Monetary Union

Discussants:

  • Fabrizio Politi, Professor of constitutional law at University of L’Aquila;
  • Kathryn Wright, Lecturer at York Law School

Session 3: Should We Be Sceptical About the Language of Social Rights?

The third session deals with more theoretical debates on social rights, both legal and political, including sceptical arguments that stem from the idea of the inflation of rights. This session will explore some basic conceptual questions about rights, for example: to what extent is it possible and plausible to account for social rights in terms of human rights? How (if at all) is the idea of “welfare conditionality” reconcilable with a theory of rights?

Contributors:

  • Stuart White, Associate Professor of Politics, University of Oxford
  • Francesco Ferraro, University of Milan and associate professor at the University of Girona (Spain),
  • Beth Watts, Institute for Social Policy, Housing, Environment and Real Estate, Heriot-Watt University, Edinburgh
  • Emilios Christodoulidis, Professor at University of Glasgow

Discussants:

  • Adam Tucker, lecturer at York Law School,
  • Marco Goldoni, lecturer at Glasgow Law School

Conclusion

The conclusion of the workshop will draw the three prior sessions together. A roundtable discussion will take place, chaired and introduced by Roberto Cavallo Perin, University of Turin. Members of different Italian research units (Torino, Firenze, Chieti-Pescara, Cosenza, etc.) will take part in the round table. After questions and discussions Francesco Merloni will offer some final remarks.