Unenforceable rights mean nothing

In today's news we learn that thousands of homeless people may be having their human rights breached. It would perhaps be more surprising was that not the case. It is hard enough for the prosperous middle classes to ensure their human rights are met, never mind homeless families.

This highlights a growing problem in Scotland – the politicians are sloughing off responsibility for core social outcomes and instead transferring responsibility onto the legal system first. Under this model, government need not act to address human rights breaches until compelled to do so by a court.

That means basic human rights in Scotland are only as meaningful as your personal ability (and will) to pursue them through the courts. But your personal ability to pursue your rights through the courts will face three major barriers.

The first is that legal aid for civil cases is very strictly limited. Unless an individual knows where to go for advice and support and is able to patiently follow the processes required, there is no opportunity for them to engage a lawyer at their own expense.

Of course that presupposes they know they have a defined human right in the first place. This is not information that is provided to them so they will need to find a means of learning this fact. Once they do, none of the processes required to be pursued to unlock legal aid and initiate a court case are ones that will ever have been taught or explained to those involved.

That is the second barrier – an enormous knowledge and skill gap that in practice all-but removes the human right from the person (even though it is specified in law). And it leads to the third barrier. Common Weal is working with a number of people who are pursuing or have pursued their human rights in court.

It is an exhausting, draining process which takes over your life. Since there is no consequence for the public sector in fighting these claims (the costs are met by the taxpayer and if they do eventually lose they are only in the position of having to do for one family what they should have done for all of them in the first place), the public sector routinely fights its citizens with overwhelming resources.

This series of tasks is one that we know to be difficult for prosperous and highly-educated middle class citizens with the will to pursue a claim and the time to dedicate to it. The person concerned can expect any ruling in their favour to be appealed for the same 'no consequences – why no?' reason as above.

We know of one case where an error on the part of a legal aid lawyer resulted in a claim being dismissed on purely technical grounds by a judge and the local authority being sued then pursing the claimant for tens of thousands of pounds in costs. (Of course the lawyer is liable, but there is almost no way to get legal aid to sue a lawyer.)

In other cases we observe people winning strings of steps on the way, ruling after ruling, but the public sector (with its overwhelming resources) just appealing and appealing and doing anything but concede.

Human rights are a wonderful concept but in reality they generally offer little or no protection to those who need them most because those who need them most have the lowest ability to pursue the costly, exhausting, knowledge-heavy and time-intensive processes necessary to see those rights enforced.

Common Weal has repeatedly emphasised that rights are meaningless without at least two other things: responsibilities and resources. Unless a right makes clear whose responsibility it is to deliver it and that a named body is legally required to do so, the right is meaningless. There has to be someone to sue.

Resources come next: the body concerned must have the resources to meet the right if they are granted the responsibility, but the citizen must then also have access to the resources to enforce the right. Ideally we also believe in another 'R' – relationships. If there is a responsible body then the best way to avoid litigation in the first place is to have a positive, mutual relationship with the citizen.

But perhaps we should add a 'C' to the 'Rs' – consequences. If there are no consequences for the relevant officers in the responsible body either for failing to deliver a right or for using public money to pursue vexatious defence of legitimate challenges, the human rights of homeless families will continue to be as meaningless as they currently are for many.