Paper Abstracts

The impact of the financial-economic crisis on the guarantee of social welfare rights:

Abstracts for Sessions 3 – 6

Session 3: The Promise / Limits of Social Welfare Rights in an Age of Austerity

Jeff King: ‘The Role of Judicial Protection of Constitutional Social Rights in Times of Crisis and Austerity’

The author argues that there is a modest but nonetheless worthwhile role for social welfare rights rhetoric and judicial review to play in times of austerity and financial crisis. The topics it will explore include the concept of an economic emergency and its relation to law and fundamental rights in particular; the similarly precarious nature of both social and civil/political rights in times of crisis; a typology of different approaches constitutional courts might take to enforce constitutional welfare rights in economic emergencies; and the attractiveness of judicial incrementalism as a constitutional strategy in times of economic crisis.  The attractiveness of this strategy arises not from its capacity to vindicate fundamental social rights in a context of financial crisis.  It is merely, perhaps disappointingly, the best one can (ordinarily) hope from constitutional judicial review in times of economic crisis.   To ask for more is to risk more than one should reasonably expect to gain.  At the same time, judicial incrementalism may (1) humanize the way in which sweeping reforms are rolled out, and (2) keep social rights values in play as political values that may orient political debate in a helpful direction.

 

Ellie Palmer: Holding Government to Account in a Recessionary Climate: Fiscal squeeze or constitutional crisis?

This paper examines the potential of public law (or lack of it) including fundamental rights jurisprudence to guarantee social rights in an age of austerity with emphasis on key legislative measures introduced by the UK Coalition Government during its tenure – the introduction of the social security system of ‘universal credit’ and the curtailment of legal aid in judicial review. It recognises the fundamental constitutional importance of judicial deference in polycentric resource allocation disputes – particularly in the unwritten constitution of the UK where the right to social welfare protection is tenuous and embryonic. Nevertheless it argues that a more proactive justificatory approach is called for in judicial review of administrative/executive action (a) when government ignores its broad constitutional mandate to provide a basic level of support to vulnerable individuals living at the margins of human existence; (b) where government fails adequately to account for the economic rationality of sweeping legislative measures that impact most severely on vulnerable members of society. It is argued that taken together the standardisation of welfare procedures and the curtailment of legal aid have wholly undermined the fundamental right of access to justice which is the bedrock of the unwritten UK constitution.

Session 4: Theorising the Relationship between Legal Rights and Social Welfare

Stuart White: Are Minimum Income Rights and Work Conditionality Compatible?

Are rights to a decent minimum of income compatible with work conditionality (i.e., making the payment of cash benefits necessary to a minimum income conditional on work-related activity)? The paper sets out and considers two distinct arguments for their incompatibility. The first, definitional argument holds that there is a simple, logical incompatibility between ‘rights’ and ‘conditionality’. I show that on a plausible account of what the underlying right in question is – a right of reasonable access to a minimum income – this argument fails. The second, political argument holds that the political conditions shaping policy-making are typically such that conditionality in practice often violates this right of reasonable access to a minimum income (the conditionality rules make access unreasonable). One response is to address the underlying political context directly by giving those receiving benefits power to control the terms of the conditionality that applies to them. There is, however, also a case for simply eschewing conditionality, in light of the risks to the underlying right, and adopting some form of minimum income guarantee without any form of work conditionality.

 

Beth Watts: Rights-based perspectives on welfare conditionality: reconciling the irreconcilable?

Behavioural conditionality plays an increasingly important role in welfare systems, employed in the developed and developing world, endorsed across the political spectrum and by the general public, and applied in a growing range of welfare ‘spheres’. Rights-based perspectives seem to offer a set of tools to critique conditional approaches. Making access to key welfare goods (a basic income, housing, health care) conditional, casts access to those goods as a tool policy-makers can use in pursuit of other goals, rather than as an entitlement (a human or social ‘right’) to a ‘civilised’ way of life. On this view, rights are ‘trumps’ and cannot be traded against other social goals, no matter how desireable they are. The broadening and intensification of welfare conditionality in the UK, particularly given links with a rise in destitution and food banks, is thus frequently viewed as an affront to established social rights. In the ‘Global South’ by contrast, conditional approaches have been adopted in pursuit of human development goals, poverty reduction and human rights agendas and have been seen as a step along the road to establishing comprehensive social protection systems. Reflecting on several distinct conceptions of ‘rights’ (as natural/socially constructed, moral/legal, positive/negative), this paper ventures that rights-based perspectives do not necessarily offer the firm critique of conditionality some may hope. In doing so, it seeks to clarify the key normative and empirical questions advocates and critics of welfare conditionality must engage with in making their case.

 

Francesco Ferraro: Fundamental rights in times of crisis: indeterminacy and expectations

Economic and/or financial crises have an undeniable impact on the way fundamental rights are enforced and upheld in contemporary legal systems, both in legislation and adjudication. Fundamental rights – as included both in national constitutions and international charters – are powerful expectation-inducing devices, and, when their holders’ expectations are disappointed, they risk to be seen as basically useless “rights on paper”. Responses to this have included the rejection of so-called “social” rights and the pushing for rights’ minimalism. This paper holds that rights’ declarations are by no means a useless relic of the past, and that calling solely for the abolishment of social rights (as opposed to “civil” liberty-rights) is merely an ideological stance. However, the very indeterminacy of fundamental rights is a long standing problem, exacerbated by times of crisis, affecting the citizens as well as the legislature (which have the legitimacy for enacting crisis-oriented policies, but also the responsibility for respecting rights) and the judiciary (which are expected to apply existing laws, but also to enforce the citizens’ basic rights). The best way of addressing this issue, it will be argued, would be to establish dedicated commissions, meant to take on the task of re-defining and qualifying fundamental rights on an ongoing basis. Subsequent legislation should explicitly make reference to the commissions’ works. Judicial review and direct appeal to constitutional rights in adjudication would benefit from this progressive clarification and adaptation of fundamental rights to the ever-changing economic circumstances. This would also strengthen the citizens’ rights-related expectations, by making them more precise and reliable

Session 5: A European Constitutionalisation of Social Welfare Rights? (1)

Colm O’Cinneide: The Hollow Heart of ‘Social Europe’ – The Radically Underdeveloped Social Dimension to European Constitutionalism

This paper makes two, inter-connected arguments – one abstract/conceptual, the other more tangible/critical. First of all, it makes the case that systems of constitutional governance play a key role in regulating the socio-economic organisation of the polity concerned, while their legitimacy partially depends on the contribution they make towards achieving a more just social order, as argued by Michelman, Abendroth and others. In other words, there is an unavoidable, inevitable ‘social’ dimension to constitutional governance, as widely acknowledged in continental European legal scholarship in particular. Secondly, it argues that the social dimension of European constitutionalism remains radically underdeveloped, as evidenced by the uncertain status of social welfare rights within both the EU and Council of Europe systems of constitutional governance. This problem has been recognised to exist since before the establishment of the EEC in 1957: however, its extent and depth has been brutally exposed by the current austerity crisis. Possible legal solutions to this problem are discussed – but the paper concludes by suggesting that the challenge for Europe is to confront the hollowness that current lies at the core of the concept of a ‘social Europe’.

 

Stefano Giubboni: Free movement of persons and European solidarity revisited: On the fragility of transnational welfare rights in the EU

As historical and comparative experience shows, free movement of persons and cross-border access to social assistance ignite a potential field of tension between two conflicting instances. On one hand, free movement implies the opening of the host State’s borders for membership and solidarity while on the other hand the national social protection systems, as a bounded world of redistribution and social sharing, rest on those very borders. In my paper I will address this constitutive tension to re-visit, in a comparative and historical point of view, the different ways in which EU law has struggled to strike a balance between these potentially contrasting needs. I will specifically de-construct the ECJ’s well-known narrative on a certain degree of financial solidarity between the citizens of the several Member States, arguing that the ‘big-bang’ 2004 Enlargement and the Great Recession have dramatically altered the political economy of free movement in the EU and quite inevitably unveiled the inherent fragility of transnational welfare rights in Europe.

 

Dagmar Schiek: Constitutionalising social citizenship in the EU – from free movement of persons to the CFREU

Many EU Member States are constitutionalised social states. The term social state, although frequently translated to welfare state, differs from this concept typical for the residual welfare provision in liberal capitalist states. Its answer to offering full membership in capitalist societies through social inclusion may appear similar at first sight: payments for times of need are offered, as well as attachment to social institutions such as social insurance or the educational systems on the other hand. The difference lies in the fact that constitutionalised social states guarantee social structures on the one hand, and on the other hand do not consider benefits as gracious hand-outs, but rather as rights to which a citizen has a constitutional claim, alongside claims to access social institutions.

 

When these national social states are integrated into a larger entity, such as the European Union, frictions may emerge. This paper analyses the EU’s constitutional framework for overcoming these frictions, consisting of elements of the Internal Market, EU citizenship rights and rights guaranteed in the Charter of Fundamental Rights for the European Union. It advances the argument that there is a radical claim inherent in an Internal Market offering free movement of persons under the condition of equal treatment in the region of their destination, and argues that if this principle is given up in the negotiations on maintaining the UK’s EU membership, the EU will truly loose its soul.

 

Session 6: A European Constitutionalisation of Social Welfare Rights? (2)

Francesco Bilancia: Economic Crisis and territorial asymmetrical effects on Social Rights guarantees within Economic and Monetary Union

The paper focuses on territorial asymmetries of monetary policies’ transmission within the Monetary Union (ECB), which depends on payments and financial imbalances among member States within the Single Market. Consequently national economic and social policies have often been determining macroeconomic effects which could lead to asymmetries on the standard protection of labour as well as social rights. Almost paradoxically, Member States with budget surplus, despite being richer and with lower unemployment rate, should be forced to expand their social expenditure; whilst States with budget deficit, with higher rates of unemployment and extremely hard social needs would cut public expenditure (reduction of public deficit and debts) to equilibrate financial and market imbalances. Ensuing the sovereign debt crisis, constitutional constraints on economic policies as budgetary constraint give rise to the risk of more imbalances among member States in protecting welfare rights. These – as the protection of workers by state law – are becoming means to manage financial imbalances among member States more than a question of individual rights protection. The management of social expenditure aimed at correcting financial imbalances yields further social inequalities among EU citizens. This poses a systemic question about the constitutional framework of the European Union analysed from the perspective of the inconsistencies of the Euro Area. In other words, the necessity of facing the inconsistencies between the Single Market and monetary policies within it, in spite of the promise of a European social citizenship, urges us to explore the idea of a European Single Social System.

 

Emilios Christodoulidis: ‘Dignity’ as ultimum refugium: austerity and the hollowing out of solidarity.

With a focus on the uses of ‘dignity’ in the Courts’ deliberations on proportionality in the age of austerity, we will look at how the concept of solidarity has been variously vacated, collapsed and circumvented. The examples will be drawn from the jurisprudence of the Greek Council of State. The problem, as is so often the case where battles are won by default, is in the difficulty of discerning and establishing the battle lines. The loss of language of solidarity becomes clear in the constitutionalisation of austerity. With each decision is renewed the judicial resort to the standard reference of price stability and with it the denial of the politically-integrative nature of the European project. The givens of market integration prevent any politically mediated evolution of the European polity. If the very idea of constitutionalism involved in its conception and development a co-evolution of the political and the economic around the organizing concepts of the juridical, a sadly diminished European constitutional discourse under the sign of emergency now forecloses the potential for a responsive constitutional sensibility. Emergency comes to stand for the time-frame within which society must be reproduced and necessity becomes the other side of the coin, since any form of resisting that necessity has come undone along the temporal dimension due to the pace of market choices.