Should there be a Legal Right to Protection from Destitution?

Ulster University academics in the School of Law last week held a seminar exploring, 'Legal protection against destitution in the UK: the case for a right to a subsistence minimum.'

In 2019 it was estimated that at least 2.4 million UK residents experienced destitution – that is, they were unable to meet their most basic needs for shelter, food, heat, light, clothing and hygiene from their own resources for themselves.

Meanwhile in Ireland, homelessness figures published by the Department of Housing, Local Government & Heritage in September of this year showed a record high of 10,568 people officially homeless and a shocking 30% increase from only a year ago. These figures do not record the ‘hidden homeless’. Focus Ireland CEO, Pat Dennigan noted in response to these figures, “The real number of people who have no home is no doubt considerably higher as local authorities across the country are reporting that every emergency bed is full, and people are being asked to stay temporarily in unsuitable circumstances while new shelters are being commissioned. This hidden homelessness is also at record levels.”

Clearly, the welfare state is failing to protect those most vulnerable from destitution. Worryingly, a statement on the critical nature of child homelessness was among the issues raised by the Irish Ombudsman for Children to the United Nations in September of this year in a report to the UN Committee on the Rights of the Child.

In a 2003 UK Supreme Court judgment, Lord Hoffmann argued that in the absence of a guaranteed minimum standard of living, many other rights are reduced to “a mockery”. Given the aforementioned findings that so many are experiencing destitution, we must consider whether a social floor exists in law and what the implications of its absence or weakness means for the standard of human rights protection in any jurisdiction where this right to protection against destitution does not exist.

In new research on this subject, academics at Ulster University consider the impact of destitution on people’s human rights and explore the extent to which the persistence of extreme poverty in a modern welfare state ought to be regarded as a failure of human rights protection. The Ulster University researchers, Mark Simpson, Gráinne McKeever and Ciara Fitzpatrick have explored a number of avenues by which a right to protection against destitution could be established. They have suggested that the common law, social rights treaties and the European Convention on Human Rights could each play a role in identifying a minimum standard of living, but with variable precision, generosity and enforceability – and subject to the sovereign legislature setting its own social floor, including one that may render people destitute. Through an analysis of the relevant UK case law revealing clear weaknesses in protection against destitution, the Ulster University researchers argue that a specific statutory duty is required to address this failure of rights protection.

As Ireland faces a crisis of the destitute described by President Higgins earlier this year as “our great, great, great failure” as a nation, perhaps it is time for Ireland to consider establishing a legal right to protection against destitution.



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