Project Details

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