The right to adequate housing in Wales: Feasibility Report Authored by: Dr Simon Hoffman (Swansea University) for Tai Pawb, the Chartered ...
←
→
Page content transcription
If your browser does not render page correctly, please read the page content below
The right to adequate housing in Wales: Feasibility Report Authored by: Dr Simon Hoffman (Swansea University) for Tai Pawb, the Chartered Institute of Housing Cymru and Shelter Cymru Published June 2019
Tai Pawb is a company limited by guarantee (5282554) and a registered charity (1110078).
CIH is a registered charity (244067).
Shelter Cymru is a registered charity (515902).
2
Contents
The Right to Adequate Housing: An introduction.................................... 1
The case for incorporation in Wales.................................................................. 3
Abbreviations ........................................................................................................................5
How to use this report.................................................................................................... 6
Part A: Framework Issues - General....................................................................7
International human rights.......................................................................... 8
Incorporation.......................................................................................................... 8
Direct incorporation..................................................................................... 8
Indirect incorporation................................................................................. 9
Sectoral incorporation............................................................................... 9
Why incorporation matters: Priority and accountability ..10
Addressing the implementation gap..........................................10
Accountability in the UK.........................................................................10
Accountability on a spectrum................................................................... 11
Complaints ....................................................................................................... 11
Strengthening the role of National Human Rights
Institutions ........................................................................................................ 11
Parliamentary accountability: The National Assembly
for Wales ........................................................................................................... 12
Enforcement.......................................................................................................... 12
Enforcement and direct incorporation........................................ 13
Limitations on judicial enforcement:
A self-imposed restraint......................................................................... 13
Enforcement and indirect incorporation.................................... 14
The right to adequate housing in Wales: Feasibility Report 3
Part B: Framework Issues – The Right to Adequate Housing...... 15
The right to adequate housing................................................................ 16
General obligations of the right to adequate housing......... 16
Respect, protect and fulfil..................................................................... 16
Progressive realisation............................................................................. 16
Non-discrimination ....................................................................................17
Minimum core.................................................................................................17
Other obligations of the right to adequate housing................17
Legal security of tenure.......................................................................... 18
Availability of services, materials, facilities
and infrastructure........................................................................................ 18
Affordability...................................................................................................... 18
Habitability........................................................................................................ 18
Accessibility..................................................................................................... 18
Location.............................................................................................................. 18
Cultural adequacy....................................................................................... 19
Part C: Framework Issues – Wales....................................................................20
The right to adequate housing: UK context.................................. 21
The right to adequate housing: Wales context.......................... 21
Incorporation of human rights in Wales......................................... 22
Incorporation of the right to adequate housing in Wales.... 23
Competence and models of incorporation................................... 24
Human rights competence................................................................. 24
The Welsh approach to incorporation........................................ 24
What to incorporate: Wholesale incorporation
of social rights? ............................................................................................25
What to incorporate: The right to adequate housing? ...25
Human rights incorporation: Model A,
indirect incorporation...............................................................................25
4
Human rights: Model B, direct incorporation ....................... 26
A dual approach.......................................................................................... 26
Accountability on a spectrum..................................................................27
Judicial review: Model A.........................................................................27
Judicial review: Model B........................................................................ 28
The right to adequate housing and current
Welsh legislation............................................................................................... 28
The Human Rights Act 1998............................................................... 28
The Rights of Children and Young Persons (Wales)
Measure 2011................................................................................................. 28
The Social Services and Well-being (Wales) Act 2014..... 29
The Well-being of Future Generations
(Wales) Act 2015.......................................................................................... 29
The socio-economic duty under section 1 of the
Equality Act 2010....................................................................................... 29
Part D: Some Insights into the Impact Of Incorporation................. 31
Incorporation and government action ...................................... 32
Incorporation and enforcement...................................................... 33
Finland: A focus on the right to adequate housing............35
Ireland: A rights-based approach to housing
regeneration....................................................................................................35
The impact of incorporation of the CRC in Wales.............. 36
Part E: Impact Analysis................................................................................................37
Case study: Homelessness and intentionality...................... 38
Case study: Security of tenure.......................................................... 39
Case study: Security of tenure and eviction
into homelessness.....................................................................................40
Case study: Accessible housing for disabled people...... 41
Case study: Young people................................................................... 42
Case study: Tenant voice.......................................................................44
The right to adequate housing in Wales: Feasibility Report 5
The Right to Adequate
Housing – an introduction
‘If there had been a right to adequate As we mark the second anniversary of
housing in the United Kingdom, this harrowing tragedy, the image of the
the Government and the local authority burnt out shell, towering high over one
would have had a legal duty to consider of the richest boroughs, of one of the
seriously and in a timely manner, the richest cities in the world, must continue
safety concerns raised by the Grenfell to act as a catalyst; a call to action for us
Tower residents, before the conditions all to fundamentally re-think the value we
became life-threatening.’ Geraldine Van place on social and all housing, and the
Bueren QC, Professor of International role that simple bricks and mortar must
Human Rights Law in Queen Mary, play in acting as a starting point for any
University of London and Visiting Fellow, form of community, economic and social
Kellogg College, Oxford. regeneration.
“The law failed to protect the residents Grenfell has come to symbolise
of Grenfell Tower. Even if legal aid had something much more deep-rooted than
been available, the fact is that there was questions about fire safety and building
no legislation that would have given the regulations.
court the power to intervene and stop
the process that ultimately led to such For every high-rise tenant living in fear
dreadful loss of life. Only an enforceable that this could happen to them, there
right to adequate housing would have are many more who simply cannot find a
guaranteed the residents the ability to home in their community. There are those
take their concerns to court, have their who are battling to keep a roof over their
questions answered and the dangerous heads or are sleeping rough on our streets
cladding removed before it was too every night.
late. It is time that the right to housing,
long recognised in international law, Grenfell has come to represent how we
is protected in law” – Jamie Burton, have failed those in most need in our
Doughty Street Chambers lawyer who society – those in need of that most basic
acted for various bereaved, survivors and of human requirements: that of access
residents in Phase 1 of the Grenfell Tower to shelter, a place where they feel safe, a
Inquiry. place to call home.
In the early hours of 14 June, 2017, a fire This terrible tragedy, if nothing else,
engulfed the 24-storey Grenfell Tower should commit us to doing everything we
block of flats in North Kensington, West can to ensure it never happens again. A
London. big part of that process should be, in our
view, embedding into Welsh legislation,
the Right to Adequate Housing as outlined
It claimed the lives in ICESCR1 (International Covenant on
of 72 people. Economic, Social and Cultural Rights).
1 https://treaties.un.org/doc/Treaties/1976/01/19760103%20
09-57%20PM/Ch_IV_03.pdf
1
The Housing Crisis in Wales
Over
60,589 21,000
households faced
households on social or experienced
housing waiting list homelessness in 2018
(Shelter Cymru - March 2018)
(Statistics Wales)
1 out of 22
local authorities has accessible
2,139
housing building target
(Statistics Wales)
households in temporary
347
accommodation - of
which 837 are families
with children.
people sleeping rough (Statistics Wales - March 2019)
on our streets
(Statistics Wales - Feb 2019)
42%
1/3 of private tenants do
not have a fixed term
Only one third of us
happy living near social tenancy in Wales
housing (Shelter Cymru - Feb 2018)
(Tyfu Tai Public Perceptions
Survey April 2018)
The right to adequate housing in Wales: Feasibility Report 2
The case for
incorporation in Wales
The case for fully incorporating the Right loss of human life at Grenfell, but also
to Adequate Housing into Welsh law because it cannot be acceptable in a
should not be informed by the tragedy of forward-thinking and progressive Wales
Grenfell alone – although that tragedy is that people don’t have anywhere to live.
reason enough for consideration of what a
rights-based approach could deliver. As a society, therefore, how much of a
priority do we want to place on housing
Wales, as the rest of the UK, is in the in order to ensure universal access to
midst of one of the deepest and far- that most basic of human rights - a safe,
reaching housing crises that we have seen secure and affordable place that we can
in modern times. A crisis which is having a call home.
profound impact on the very fabric of our
society. We believe that at the core of any solution
to the housing crisis must be nationwide
A report by homelessness charity Crisis in commitment to the fundamental principle
2017, revealed that core homelessness in that everyone of us should have a human
Wales – defined as rough sleepers, sofa right, underpinned by law, to access
surfers, people squatting and living in adequate and sustainable housing.
hostels and unsuitable accommodation –
was at just over 5,000. Welsh Government This paper sets out in detail the legal and
reports that in 2018 over 10,000 legislative route to full incorporation of the
households faced homelessness with Right to Adequate Housing in Wales (see
over 11,000 actually experiencing it. Parts A to B)
We have seen news report after news It provides case studies (see Part E)
report highlighting the numbers sleeping which we believe evidence the impact
rough on our streets; the number of that incorporation could have, including
families with young children being forced how a rights-based approach could have
to live in temporary accommodation afforded the residents of Grenfell more
such as B&B for long periods because protection.
there aren’t enough houses at social rent
available; and how the crisis is adversely It is by no means an exhaustive document
affecting the young and failing a whole but we are confident that it can be a
generation. catalyst in igniting a serious discussion
about getting the basics right in terms of
This is the basis for the fundamental reaching our shared goal – providing a
conversation that we need to have as a sustainable housing option for everyone in
nation. Not only as a result of the tragic Wales.
3The political consensus on the right to the rights and obligations in the United
housing already exists in Wales. Almost Nations Convention on the Rights of the
every political group represented in Child (CRC). He also chairs the Welsh Civil
the Senedd, has said that they believe Society Human Rights Stakeholder Group.
housing is a right – now is the time to turn
that consensus into law. We believe that this report makes for a
compelling case for the incorporation
We would like to take this opportunity of the Right to Adequate Housing as set
to thank Dr Simon Hoffman, Associate out in ICESCR (International Covenant on
Professor at Swansea University, for Economic, Social and Cultural Rights) into
authoring this report and Professor Welsh law, whilst also clearly setting out
Geraldine Van Bueren QC for inspiring us the route map for how we get there.
to start on this journey in 2018.
We believe that the dual approach
Dr Hoffman has an impressive academic option set out in Section C is the
background rooted in rights-based
approaches to the delivery of public
best way forward but it’s now
services. Since 2012, he has been a over to you, our representatives
co-coordinator of the Observatory on in Wales’ Parliament. Only you
Human Rights of Children and is currently can deliver on that promise to
a member of the Welsh Government’s ensure that all of us in Wales,
Children’s Rights Advisory Group and was
no matter what our background
involved in the development of the Rights
of Children and Young Persons (Wales) or our personal and financial
Measure 2011 which imposed a duty on circumstance, have a legal right
Welsh Ministers to have due regard to to a place to call home.
Alicja Zalesinska John Puzey Matt Dicks
Director Director Director
Tai Pawb Shelter Cymru CIH Cymru
The right to adequate housing in Wales: Feasibility Report 4Abbreviations
CRC Convention on the Rights of the Child
CRPD Convention on the Rights of Persons with Disabilities
ECHR European Convention on Human Rights
EHRC Wales Equality and Human Rights Commission in Wales
GWA Government of Wales Act 2006
HA 2014 Housing (Wales) Act 2014
HRA 1998 Human Rights Act 1998
HRBA Human Rights Based Approach
ICESCR International Covenant on Economic Social and Cultural Rights
CCfW Children’s Commissioner for Wales
Child Rights Measure Rights of Children and Young Persons (Wales) Measure 2011
NAW National Assembly for Wales
LHA Local Housing Authority
NHRI National Human Rights Institution
PAC Public Accounts Committee
RBW Regulatory Board for Wales
RHA 2016 Renting Homes (Wales) Act 2016
SDG Sustainable Development Goals
SSWBA Social Services and Well-being (Wales) Act 2014
TMB Treaty Monitoring Body
UK United Kingdom
UN United Nations
UN Committee Committee on Economic Social and Cultural Rights
UNPOP UN Principles for Older Persons
WBFGA Wellbeing of Future Generations (Wales) Act 2015
5How to use this report
This report on incorporation of the right Part C: Framework Issues – Wales: sets
to adequate housing in Wales is intended the right to adequate housing in UK and
to be used by a range of readers with a Wales contexts. It discusses how housing
diversity of interests in the right. It will in Wales meets the expectations of the
be useful for those wishing to know right to adequate housing, and where
more about social rights and the right to there are shortfalls. Part C explains how
adequate housing in international law, human rights have been, and may be
its implications for government, and how further incorporated in Wales. It discusses
the right is currently given effect in the three options for incorporation of the
UK and Wales. The report is particularly right to adequate housing and explains
intended to be used by those seeking to the implications for accountability, and
understand how the right to adequate considers how legislation to enhance
housing might be given better effect in housing duties in Wales this would fit with
Wales through devolved law, and what other statutory duties placed on public
difference this would make to Welsh authorities, including Ministers.
housing policy.
Part D: The Impact of Incorporation
The report is in four parts, covering a – What We Know: this part provides
range of topics. Each part can be read on evidence-based insights on the likely
its own or alongside other parts to enable impact of incorporation of the right to
the reader to develop a comprehensive adequate housing in Wales. It discusses
understanding of the issues. international evidence, as well as
evidence on the impact of incorporation
Part A: Framework Issues – General: this of children’s human rights that has already
introduces international human rights, taken place through Welsh law.
with a focus on social rights. It explains
incorporation and what this means and Part E: Impact Analysis: this part
outlines different approaches that may discusses a number of issues for housing
be taken to incorporating (or embedding) policy and legislation in Wales from a
international human rights in national law. perspective which assumes that the
Part A also discusses why incorporation right to adequate housing is part of
matters, with a focus on government Welsh law. It considers issues relating
accountability for social policy. to homelessness, security of tenure and
eviction, accessible housing, housing and
Part B: Framework Issues – The Right young people, and tenant voice. Each
to Adequate Housing: introduces the of these is discussed in turn to reflect
right to adequate housing. It explains on what might be different if the right to
the different obligations that accompany adequate housing were part of Welsh law
human rights generally before turning and made binding on Ministers and local
to specific obligations arising from the authorities.
right to adequate housing. All of these
obligations are relevant to housing policy,
including housing policy in Wales.
The right to adequate housing in Wales: Feasibility Report 6Part A:
Framework Issues
- General
This part discusses
general issues relating
to incorporation of
international human rights
at the domestic level.
7International human rights for all, across the whole of
the UK.
human rights
In order to monitor whether governments
The United Kingdom (UK) is party to globally comply with their human rights
seven United Nations (UN) human rights obligations the UN has established a
treaties.2 These include two ‘general number of Treaty Monitoring Bodies
covenants’: (TMBs). These consist of experts on
human rights who monitor compliance
• The Covenant on Civil and Political with each human rights treaty. TMBs also
Rights3 guarantees rights such as free publish guidance on how government
speech and freedom of assembly, should go about meeting their human
liberty of the person, property rights rights obligations. Amongst the
and access to justice etc. recommendations made by a number
• The Covenant on Economic, Social and of TMBs is to incorporate human rights
Cultural Rights (ICESCR)4 guarantees treaties in national law.6 The following
rights to social arrangements such as sections discuss what this means.
access to employment and decent
working conditions, health and social
care, social insurance, education, and
Incorporation
an adequate standard of living etc.
Unfortunately, the meaning of
incorporation is far from settled. The
The UK is also bound by a number
sections below explain the most widely
of UN conventions which guarantee
accepted classifications of incorporation,
specific rights to groups experiencing
but it is emphasised that these are rarely
disadvantage and discrimination in
(if ever) encountered in a clear-cut way
society, which include women, children,
in practice. This is because incorporation
disabled people and racial minorities.5
is highly dependent on national
arrangements for policy administration,
The breadth of coverage of human rights accountability, enforcement and judicial
at international level is comprehensive, oversight, all of which differ across
protecting individuals and groups from nations.
unjustifiable interference by the State,
and guaranteeing everyone a basic level
of entitlement in vital areas of public Direct incorporation
services provision such as education,
health and social care, and housing. In Direct incorporation involves transforming
international law the UK Government is an international human rights treaty into
under a duty to implement all human national law by making it part of a national
rights that are set out in the treaties which constitution or national legislation. This
the UK has signed and ratified. It is also approach means human rights become
under a duty to secure the enjoyment of
6 For example: Committee on the Rights of the Child, General Comment
2 For a list of treaties signed and ratified by the UK see: https://www. No.5, 2003, General Measures of Implementation of the Convention on
equalityhumanrights.com/en/our-human-rights-work/monitor- the Rights of the Child; and, Committee on Economic, Social and Cultural
ing-and-promoting-un-treaties Rights, General Comment No.9, 1998, The Domestic Application of the
3 https://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx Covenant. Both are available from the treaty body section of the website
4 https://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx of the office of the High Commissioner for Human Rights: https://www.
5 See footnote 3. ohchr.org/EN/HRBodies/CESCR/pages/cescrindex.aspx
The right to adequate housing in Wales: Feasibility Report 8binding on governments and public in the UK is the Rights of Children and
authorities in law, and individuals are able Young Persons (Wales) Measure 2011 (the
to rely on their rights before domestic Child Rights Measure). This makes the
tribunals or courts. Convention on the Rights of the Child
(CRC) part of Welsh law and requires
An example of direct incorporation in the Welsh Ministers to have ‘due regard’ to
UK is the Human Rights Act 1998 (HRA children’s rights when exercising any of
1998), which incorporates the European their functions.
Convention on Human Rights (ECHR) into
the UK legal system. It is assumed that indirect incorporation
means human rights are not enforceable
Direct incorporation may be in full or by the courts. This is not entirely
in part. Direct and full incorporation correct. The courts may be able to hold
means that a treaty as a whole is directly government to account for policy having
incorporated into national law. Direct and an impact on human rights where there
partial incorporation means a particular is indirect incorporation, and may be
right (or rights) is selected from a treaty, empowered to provide a remedy where
and only this right (or rights) is directly policy is found to contravene rights.
incorporated into national law. However, it is less likely that a remedy
under indirect incorporation will be as
It is assumed that direct incorporation strong as that available where there is
means human rights are enforceable direct incorporation. (Discussed further
by the courts. However, this assumption below: ‘Enforcement’).
is not necessarily correct. Whether
individuals are provided with an effective Sectoral incorporation
remedy for violation of their rights will
very much depend on how a legal system
functions, and the powers given to judges Sectoral incorporation involves giving
to enforce human rights. (Discussed some effect to human rights in national
further below: ‘Enforcement’.) legislation in relevant areas of public
policy (i.e. sectors). This usually means
that a right or rights will be referred to
Indirect incorporation in legislation in a specific policy area,
e.g. education, or housing. The right(s) in
Indirect incorporation means that a question may be quoted directly or an
human rights treaty is given some legal attempt may be made to encapsulate the
effect through national legislation. The right(s) through the wording of legislation.
key distinction from direct incorporation Depending on how sectoral incorporation
is that human rights do not bind takes effect the courts may be given a
governments or public authorities, but role to enforce the right(s) concerned.
have some indirect effect, e.g. by requiring
government or public authorities to take
The UK Government claims that sectoral
human rights into account when making
legislation in the UK is compliant with
policy decisions. As in the case of direct
human rights and is adequate to give
incorporation, indirect incorporation can
effect to its human rights obligations.
be in full or in part.
It points at the enactment of specific
legislation (e.g. the Children Act 1989,
An example of indirect incorporation
9safeguarding vulnerable children) as often leave individuals and groups without
evidence of compliance with its obligation the necessary levels of human rights
to implement human rights. These claims protection or adequate social provision.
are contested. (Discussed further below: In other words, there is ‘implementation
‘Why incorporation matters: Priority and gap’ between human rights rhetoric and
accountability’ and ‘The right to adequate people’s lived experience.
housing: UK context’.)
At international level there is weak State
Why incorporation accountability for human rights through
a system of reporting to TMBs.9 However,
matters: Priority and while TMBs can report their findings on
any implementation gap they have no
accountability power to enforce compliance with human
rights. Incorporation is therefore a vital
An important aspect of incorporation is to step toward more effective national or
move human rights from the international domestic accountability.
to the national. Without incorporation
human rights may be seen as no more
Accountability in the UK
than aspirational standards at a distance
from the real world of domestic policy.
Even worse, without incorporation Human rights offer an ethical as well as
human rights risk becoming ‘dead letters’ a practical framework to guide public
because they are not taken seriously by policy. However, in the UK international
government.7 human rights are not part of UK law. The
operation of the UK’s legal system means
that unless the UK Government decides
An important impact of incorporation,
to incorporate human rights treaties via
whether direct, indirect or sectoral, is
national statute they remain set apart
to make human rights relevant to the
from UK law.
business of government.8 It embeds
human rights in the work of government
now and in the future, insulating them Successive UK Governments have
from political whim by making them part refused to incorporate international
of the national legal framework. human rights treaties into UK law. In 1998,
the ECHR (a regional human rights treaty)
was incorporated via the HRA 1998.10
Addressing the Despite this, while international human
implementation gap rights treaties remain unincorporated in
UK this means:
A further impact of incorporation is to
address the accountability gap between • Important human rights standards
what governments agree as their human are not effectively embedded (or
rights obligations, and their actions which mainstreamed) into policy decision-
making or government action, whether
7 Inter Parliamentary Union and UN Office of the High Commissioner
for Human Rights, Human Rights Handbook for Parliamentarians No.26 9 A comprehensive guide to the treaty monitoring mechanisms is avail-
(Geneva: 2016), p.97, available to download here: able from, Office of the UN High Commissioner for Human Rights, The
https://www.ohchr.org/Documents/Publications/HandbookParliamen- UN Human Rights Treaty System, Fact Sheet No.30/Rev 1 (New York:
tarians.pdf 2012, available here:
8 UNICEF-UK, 2012, The impact of legal implementation of the Conven- https://www.ohchr.org/Documents/Publications/FactSheet30Rev1.pdf
tion on the Rights of the Child. 10 Incorporated by the Human Rights Act 1998.
The right to adequate housing in Wales: Feasibility Report 10at UK level, at devolved level, or local might be made available where human
government level. rights are incorporated into domestic law.
• There is an accountability gap in
public policy, as there are no effective
Complaints
mechanisms for accountability or
enforcement of international human
rights in the UK. Complaints mechanisms are informal
procedures which enable an individual
aggrieved by some decision or action
The significance of this shortfall in human
of government to bring their grievance
rights coverage at a domestic level was
to the attention of the decision-maker.
highlighted during the visit to the UK by
Incorporation would make it easier for
the UN Special Rapporteur on Extreme
individuals to complain about decisions
Poverty and Human Rights (November
which fall below human rights standards
2018). The Rapporteur raised numerous
established by human rights treaties: as
concerns about the impact of austerity
these would be part of the domestic legal
and welfare reform in the UK, and the
framework. Complaints mechanisms
consequences for human rights. The
for human rights might include
Rapporteur’s statement following his visit,
existing mechanisms (commissioners,
and his subsequent report, describes
ombudsman, formal complaints
numerous instances where the UK is in
procedures etc), or new mechanisms
clear breach of social rights guaranteed
established specifically to receive human
by the ICESCR, e.g. on adequate housing,
rights complaints.
social security, health care, and provision
for vulnerable groups.11 The Special
Rapporteur’s concerns are consistent In order for complaints mechanisms to
with the Concluding Observations of the be effective they should be accessible,
UN Committee on Economic Social and especially to those from disadvantaged
Cultural Rights (UN Committee) published communities, and should include the
when the UK last reported on compliance opportunity for a relevant authority to
with the ICESCR in 2016.12 reconsider or review a decision which is
claimed is not human rights compliant.
Accountability on a Strengthening the role of
Spectrum National Human Rights
Institutions
Incorporation would help ensure
appropriate mechanisms for Legislation to incorporate human
accountability, although this does rights treaties can provide for National
not necessarily imply court-based Human Rights Institutions (NHRIs) to be
mechanisms. A number of informal (non given powers to investigate and hold
court-based) accountability mechanisms government to account for breaches of
human rights.13 However, even without this
11 Access the Special Rapporteur’s initial reports here:
step, incorporation would strengthen the
https://www.ohchr.org/EN/Issues/Poverty/Pages/CountryVisits.aspx role of NHRIs.
12 Committee on Economic, Social and Cultural Rights, Concluding
observations on the sixth periodic report of the United Kingdom of Great
Britain and Northern Ireland, 2016, available here:
https://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/Countries. 13 Consideration of what this might involve is beyond the scope of this
aspx?CountryCode=GBR&Lang=EN briefing.
11Relevant NHRIs in Wales are UK-wide
(Equality and Human Rights Commission
Enforcement
(EHRC)), or Wales-national (Children’s
Commissioner for Wales (CCfW), Older Social rights establish targets for public
People’s Commissioner for Wales). policy. How best to make progress to
Incorporation of children’s human rights meet these targets is a matter for public
in Wales (above ‘Incorporation’) has debate, public discussion and public
established an accountability framework accountability. The informal accountability
against which to assess government mechanisms outlined above are
decisions, and against which NHRIs appropriate to support these processes.
in Wales can hold Welsh Ministers to In addition to informal mechanisms for
account.14 Incorporation of the right accountability, incorporation can underpin
to adequate housing in Wales would formal court-based accountability and
enhance the capacity of NHRIs to hold judicial enforcement. This is an additional
government and other public authorities layer of protection for social rights in
to account for housing policy and action cases where informal mechanisms fail to
against human rights standards. provide adequate safeguards, and rights
are violated.
Parliamentary accountability: It should be noted that enforcement
The National Assembly for Wales does not necessarily imply court-
based procedures. However, the term
Incorporation of human rights means enforcement is widely understood as
that national parliaments are better referring to court-based mechanisms, and
able to hold government to account for this is the sense in which the term is used
compliance with international human in this section.
rights. In Wales incorporation would mean
that meeting the obligations associated When it comes to protection of individual
with human rights would be a condition of and group rights the courts represent
legitimacy of Welsh Government policy. a strong form of accountability, and
Incorporation of the children’s rights in a potentially powerful mechanism to
Wales (above ‘Incorporation’) has given ensure that social policy is human rights
the National Assembly for Wales (NAW) compliant. However, where there is court
the opportunity to scrutinise proposals for based enforcement of human rights
policy or legislation against human rights judges may be seen as interfering with
standards.15 Incorporation of the right to the authority of democratic government
adequate housing would give opportunity if they set aside the decisions of elected
for the NAW to hold Ministers to account representatives, e.g. Welsh Ministers.
for housing policy and action by reference Incorporation therefore needs to strike a
to human rights standards. balance between the role of the judiciary
to protect rights and the democratic
mandate of politicians to make law and
policy.
14 Hoffman, S. and O’Neill, S., The Impact of Legal Integration of the
UN Convention on the Rights of the Child in Wales, EHRC Wales, 2018,
It is often assumed that direct
available here: incorporation means human rights are
https://www.swansea.ac.uk/media/The%20Impact%20of%20Legal%20
Integration%20of%20%20the%20UN%20Convention%20on%20the%20 enforceable by the courts, and that
Rights%20%20of%20the%20Child%20in%20Wales_ENG.pdf
15 Ibid.
indirect incorporation means they are not.
The right to adequate housing in Wales: Feasibility Report 12However, while it is generally true that about the scope and effect of legislation
direct incorporation is more likely to lead to incorporate rights.
to court-based enforcement, the extent
to which this is effective to protect rights
Limitations on judicial
is dependent on the powers given to the
courts to remedy violations of rights. This enforcement: A self-imposed
is illustrated by the two examples below. restraint
Enforcement and direct The effectiveness of the courts to uphold
rights may be further undermined
incorporation by self-imposed restraint on the part
of the judiciary. In the UK, but also in
The HRA 1998 is often given as an many countries worldwide, judges are
example of direct incorporation of a prepared to allow elected representatives
human rights treaty in UK law, i.e. the significant discretion to introduce policies
ECHR. The HRA 1998 prohibits public that have economic consequences,
authorities from acting in a manner or resource implications. These are
which is incompatible with rights set out often policies affecting social rights e.g.
in the ECHR.16 The HRA 1998 makes the housing, health, education, welfare. This
ECHR enforceable by UK judges who are deference on the part of the judiciary
empowered to provide redress where an can mean that human rights are not
individual’s rights are violated. However, properly enforced. An example of judicial
the HRA 1998 includes exceptions to reluctance to interfere with government
this enforceability regime. Parliament is policy, even where this means a breach
excluded from the requirement to act of human rights for vulnerable groups,
compatibility with the ECHR, and public is the recent UK Supreme Court case
authorities compelled by statute to act on the issue of the ‘bedroom tax’ or
in a manner which is incompatible with ‘housing benefit cap’. The case is R (on the
rights under the ECHR are absolved of application of SG) v Secretary of State for
liability.17 Instead of being able to enforce Work and Pensions [2015].19 The Supreme
rights where statute is in breach of the Court was asked to decide whether
ECHR, the courts are empowered to welfare reform legislation imposing a
issue a ‘declaration of incompatibility’.18 cap on housing benefit is lawful taking
The intention being that once such a into account the adverse impact on sole
declaration is issued Parliament will parents and children. It was argued by
act quickly to remedy the breach. This representatives of the applicants that the
exception to full enforceability of the cap is discriminatory and in breach of the
ECHR is an attempt to strike a balance ECHR as it affects mostly sole parents,
between the democratic authority of who are mostly women. It was also
Parliament to make law, and the function argued that the cap is having an adverse
of the courts to hold politicians to impact on children in breach of their rights
account. This example demonstrates that under the CRC. The majority of the court
full enforceability does not necessarily (three judges) felt unable to declare the
follow as an aspect of direct incorporation legislation unlawful, for reasons which
but remains dependent on choices made included a deference to government
policy decision-making in the field of
16 HRA 1998, section 6.
17 Ibid.
18 Section 4, HRA 1998. 19 UKSC 16.
13welfare policy. A minority of the Supreme Judicial review is only partially satisfactory
Court in the SG case (two judges) were as a mechanism to enforce human
convinced that the government’s policy is rights. The role of judges is limited to
discriminatory and in breach of children’s consideration of procedural issues,
human rights. However, the court reached and whether policy is unreasonable or
its decision by a majority. The case disproportionate. The nature of judicial
demonstrates that judicial willingness review means that judges are restricted
to defer to the will of government may in how far they can go to examine the
undermine court-based mechanisms for substance of a policy for non-compliance
enforcement of human rights.20 with rights. Instead, judges are limited to
examining whether or not the policy at
issue has been properly thought about
Enforcement and indirect
and all relevant considerations taken into
incorporation account. Indirect incorporation can help
ensure that the factors taken into account
Although indirect incorporation is often at judicial review include the extent to
seen as lacking judicial enforcement which policy reflects the objectives of
mechanisms, this does not mean that the human rights. (Discussed further below I
courts play no part in holding politicians Part C.))
to account for political decisions that
affect human rights. This is illustrated In short, while judicial remedies are more
by legislation in Wales to indirectly accessible and likely to be more effective
incorporate the CRC in Welsh law. where there is direct incorporation, the
availability and effectiveness of court-
The Child Rights Measure makes the CRC based accountability mechanisms should
part of Welsh law via a schedule to the not be assumed. As discussed above,
legislation. The rights set out in the CRC there are limitations. Where there is
are not directly binding on Welsh Ministers indirect incorporation there is scope for
but Ministers are required to have ‘due court-based accountability and judicial
regard’ to the CRC when exercising their oversight, albeit that this is unlikely to be
functions. For this reason, the CRC is said as strong as under direct incorporation.
to have indirect effect. Welsh Ministers are
not legally accountable for compliance
with the CRC, however, any failure to have
due regard to children’s human rights in
the exercise of policy decision-making is
grounds for judicial review. Any adverse
finding at judicial review could result in
Welsh Government policy being set aside
with Ministers required to revisit their
decision.
20 South Africa is often lauded as a State which has incorporated social
rights and made them enforceable. For a critique of how the courts
have approached their responsibility to enforce social rights in South
Africa: O’Connell, ‘The Death of Socio-Economic Rights’, The Modern Law
Review Vol. 74, No. 4 (JULY 2011), pp. 532-554.
The right to adequate housing in Wales: Feasibility Report 14Part B: Framework
Issues – The Right
to Adequate
Housing
This part discusses issues relating
to incorporation of the international
human right to adequate housing
at national level.
15The right to example: refraining from policy or
legislation which undermines access to
adequate housing housing or security of tenure.
• To protect the right to adequate
housing right means taking action to
The right to adequate housing is an
prevent third-parties from interfering
international human right. It is set out in
with rights, for example: preventing
Article 11(1) of the ICESCR which reads as
unlawful evictions or harassment of
follows:
tenants by their landlord.
• To fulfil the right to adequate housing
‘The States Parties to the present means taking steps to ensure the
Covenant recognize the right of realisation of the right for everyone,
everyone to an adequate standard but in particular for those at greatest
of living for himself and his family, disadvantage in society, for example:
including adequate food, clothing introducing policies which improve
and housing, and to the continuous housing conditions or access to
improvement of living conditions. The housing.
States Parties will take appropriate
steps to ensure the realization of this Progressive realisation
right, recognizing to this effect the
essential importance of international
Under the ICESCR social rights, including
co-operation based on free consent.
the right to adequate housing may be
(Emphasis added.)’
given effect in different ways, and may
be fulfilled progressively over time.21 This
General obligations of does not mean that government can
avoid complying with the duty to fulfil
the right to adequate the right to adequate housing altogether.
housing Rather, it means that government is
required to make progress toward the
fullest possible realisation of the right
There are a number of obligations which through the application of resources as
accompany all human rights. These they become available.22 Any assessment
include general requirements to respect, of the extent to which government has
protect and fulfil rights. complied with this obligation will need
to take account of the resources it has
Respect, protect and fulfil available, the demands made on those
resources, and the prioritisation given to
At a general level government at all levels the right to adequate housing alongside
is required to respect, protect and fulfil other pressing policy considerations
those human rights which are binding on (including other human rights).
the State, including the right to adequate
housing where the State is party to the
ICESCR.
• To respect the right to adequate 21 ICESCR, article 2.
housing means refraining from actions 22 UN Committee, General Comment No.9, The nature of States parties’
obligations, available here:
that result in violation of the right, for https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.
aspx?symbolno=INT%2fCESCR%2fGEC%2f4758&Lang=en
The right to adequate housing in Wales: Feasibility Report 16Non-discrimination It is worth noting that the extent to
which government housing policy,
Although all social rights set out in including housing policy in Wales, meets
the ICESCR are subject to progressive the obligations of non-discrimination,
realisation, some obligations are of progressive realisation and the minimum
immediate effect. One such obligation core as they apply to the right to
is non-discrimination.23 The ICESCR, for adequate housing are matters for public
example, prohibits discrimination based debate, discussion and accountability. The
on ‘race, colour, sex, language, religion, best approach to meet the right is not set
political or other opinion, national or social in stone and may be subject to different
origin, property, birth or other status.’24 interpretations. What is essential is that
In the context of the right to adequate mechanisms exist to hold politicians, and
housing this means that policies or laws in particular Ministers to account for the
on housing should not discriminate choices they make in relation to housing
against these social groups in ways policy and how this meets the obligations
that undermine their enjoyment of the of non-discrimination, progressive
right. Another example of an immediate realisation and minimum core.
obligation is to ensure at least the
minimum level of enjoyment of a right, or Other obligations of the right
a minimum core (below). to adequate housing
Minimum core In addition to the general obligations
discussed above there are particular
While the fulfilment of social rights obligations which apply to the right
under the ICESCR may be achieved adequate housing. These are set out in
progressively, all such rights are said guidance issued by the UN Committee in
to have a ’minimum core’ or ‘minimum its General Comment No.4, The Right to
essential level’ of achievement.25 The Adequate Housing (1991).28
minimum core is not defined but may be
understood as the basic level of a right
which should be secured consistent with It has already been noted that as a
ensuring the dignity of the person.26 This minimum the right to adequate housing
minimum essential level of a right must be includes the right to access basic shelter
provided immediately so that no individual (above ‘Minimum Core’). The guidance
is left to live a life of destitution or to suffer issued by the UN Committee however
degrading treatment. In application to the encourages a broader understanding
right to adequate housing the minimum of what the right involves. The UN
core is the provision of basic shelter so Committee states:
that no-one is left homeless or without
sanitary and habitable accommodation.27
23 ICESCR, article 2.
24 Ibid.
25 Ibid fn.23.
26 Ibid.
27 See, Maastricht Guidelines on Violation of Economic Social and 28 Available at:
Cultural Rights (1997), para. 9, available at: https://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.
http://hrlibrary.umn.edu/instree/Maastrichtguidelines_.html aspx?symbolno=INT%2fCESCR%2fGEC%2f4759&Lang=en
17‘In the Committee’s view, the right to and nutrition. These include access to
housing should not be interpreted safe drinking water, energy for cooking,
in a narrow or restrictive sense heating and lighting, sanitation and
which equates it with, for example, washing facilities, means of food storage,
the shelter provided by merely refuse disposal and drainage.
having a roof over one’s head or
views shelter exclusively as a
Affordability
commodity. Rather it should be
seen as the right to live somewhere
in security, peace and dignity.’ Individual or household financial costs
associated with housing should be at such
a level that the attainment and satisfaction
General Comment No.4, para.7 of other basic needs are not threatened
or compromised. Tenants should be
The reference to the right to adequate protected against unreasonable rent
housing as a right to live in ‘peace, levels or rent increases.
security and dignity’ reflects the view that
housing is of fundamental importance to Habitability
humanity, to individuals and households.
The right to adequate housing reflects
Adequate housing must be habitable,
the need of everyone to have somewhere
providing adequate space and protection
to call a home, to use as a base for living,
from cold, damp, heat, rain, wind or other
for employment, education or retirement,
threats to health, structural hazards, and
or to raise a family. The right to adequate
disease.
housing is therefore essential for personal
dignity and well-being.
Accessibility
The UN Committee has identified several
aspects of the right to adequate housing Adequate housing must be accessible
which ought to be addressed by law and to those entitled to it. Disadvantaged
policy.29 These are: groups must be accorded full and
sustainable access to adequate housing
resources and should be ensured priority
Legal security of tenure consideration in the housing sphere. Both
housing law and policy should take fully
Irrespective of the type of tenure into account the special housing needs of
everyone should possess a degree of these groups.
security of tenure which guarantees
legal protection against arbitrary eviction,
harassment and other threats. Location
Availability of services, materials, facilities Adequate housing must be in a location
and infrastructure which allows access to employment,
healthcare services, schools, childcare
An adequate house must contain facilities centres and other social facilities. Housing
essential for health, security, comfort should not be built on polluted sites or
in proximity to pollution sources that
threaten the right to health of occupiers.
29 Un Committee, General Comment No.4, para.8.
The right to adequate housing in Wales: Feasibility Report 18Cultural adequacy It is important to state that the right to
adequate housing does not require
government to provide housing for all.
Policies supporting housing construction
Instead, housing policy should pursue
and modernisation should enable the
‘enabling strategies’ to help realise the
expression of cultural identity and
right to adequate housing for everyone
diversity of housing.
through a range of housing options.
Particular attention should be given
Of crucial importance is that housing to disadvantaged groups who are to
policy and legislation should give be afforded ‘some degree of priority
due priority to social groups living in consideration in the housing sphere’ to
unfavourable conditions. Policies and ensure ‘full and sustainable access’ to
legislation should not be designed to adequate housing.33
benefit already advantaged social groups
at the expense of others.30
It can be seen that the international
right to adequate housing provides a
The UN Committee recognizes that the comprehensive framework for assessing
most appropriate means of achieving the and auditing national housing policy.
full realization of the right to adequate The right is accompanied by guidance
housing will inevitably vary depending which is sufficiently clear to provide a
on context, but notes that this will require robust foundation for housing policy,
the adoption of a national housing but is also allows room for application
strategy with defined objectives. This to context and local discretion. The next
strategy should also identify resources to part of this report discuss the right to
meet those objectives within a set time adequate housing in Wales and options
frame and should be prepared following for incorporation.
‘extensive genuine consultation with,
and participation by, all of those affected,
including the homeless, the inadequately
housed and their representatives’.31 The
UN Committee empathises the need to
ensure coordination between government
departments and local authorities. This
is in order to ensure that housing and
related policies are implemented in such
a way as to meet the obligations arising
under the right to adequate housing.32
30 UN Committee, General Comment No.4, para.11.
31 UN Committee, General Comment No.4, para.12.
32 Ibid. 33 Ibid.
19Part C:
Framework
Issues – Wales
This part discusses the
reasons why Wales should
incorporate the right to
adequate housing, and how
this might be achieved.
The right to adequate housing in Wales: Feasibility Report 20The right to adequate The right to adequate
housing: UK context housing: Wales context
It has already been noted that the UK UK government welfare policy, which is
has not incorporated international human non-devolved, will have a direct impact
rights treaties, as well as the shortfall on how people experience the right to
in human rights coverage at domestic adequate housing in Wales. However,
level. The housing situation in the UK has housing is a devolved matter (discussed
attracted adverse comment from the UN further below, this Part), and the Welsh
Committee, including when the UK last Government has a crucial role to ensure
reported on compliance with the ICESCR (as far as possible) that the right to
in 2016.34 The UN Committee commented adequate housing is respected, protected
on the right to adequate housing: and fulfilled in Wales.
‘The Committee is concerned about Recent evidence gathered by the EHRC
the persistent critical situation in Wales, and reported in its publication Is
terms of the availability, affordability Wales Fairer (2018),35 draws attention to
and accessibility of adequate shortfalls in the right to adequate housing
housing in the State party, in part as for many in Wales. Reference should be
a result of cuts in State benefits. The made to the EHRC Wales report for a
Committee also notes with concern full account of the issues, however key
that the lack of social housing has concerns identified in the report relevant
forced households to move into the to housing policy in Wales include: high
private rental sector, which is not levels of homelessness, an increase in
adequate in terms of affordability, rough sleeping, a shortage of affordable
habitability, accessibility and housing, and the frustration felt by
security of tenure. The Committee disabled people at the lack of suitably
reiterates its previous concern adapted accommodation.
that Roma, Gypsies and Travellers
continue to face barriers in
Shelter Cymru has reported on a number
accessing adequate and culturally
of housing issues directly relevant to
appropriate accommodation across
the right to adequate housing in Wales.
the State party, with adequate
Issues of concern include an increase in
access to basic services such as
street homelessness,36 a need to increase
water and sanitation.’
the supply of affordable housing,37 the
insecurity of tenure faced by some private
Committee on Economic Social and
Cultural Rights
Concluding Observations on the UK
State Party, 2016, para. 49
35 Available at:
https://www.equalityhumanrights.com/sites/default/files/is-britain-
fairer-2018-is-wales-fairer.pdf
36 Shelter Cymru, Trapped on the Streets (208), available at:
https://sheltercymru.org.uk/wp-content/uploads/2018/09/Trapped-
34 Committee on Economic, Social and Cultural Rights, Concluding on-the-Streets-Full-Report.pdf
observations on the sixth periodic report of the United Kingdom of Great 37 Shelter Cymru, Response to Welsh Government consultation: Review
Britain and Northern Ireland, 2016, available here: of affordable housing supply in Wales (2018), available at:
https://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/Countries. https://sheltercymru.org.uk/wp-content/uploads/2018/09/Affordabili-
aspx?CountryCode=GBR&Lang=EN ty-of-social-housing-review-final.pdf
21You can also read
