Presentation on theme: "Homelessness, Human Rights and Legal Rights: Does Scotland Provide a Model for Europe and Beyond? Inaugural Lecture by Professor Suzanne Fitzpatrick, 4."— Presentation transcript:
Homelessness, Human Rights and Legal Rights: Does Scotland Provide a Model for Europe and Beyond? Inaugural Lecture by Professor Suzanne Fitzpatrick, 4 th May 2011
The ‘Right to Housing’ Demands for a ‘rights-based approach to tackling homelessness’ – Europe (FEANTSA), US, Australia Intuitively appealing – but what precisely does a ‘rights-based approach’ mean? And does it deliver the things we expect it to in practice? Global realm (natural and human rights) and national realm (programmatic and legal rights) Scotland has a very strong focus on legal rights – does it provide a model for the developed world?
The Global Realm Natural rights – universal, inalienable rights held by all human beings. Bestowed by God or fundamental nature of humanity Human rights – modern successor. International instruments, e.g. UN, EU, Council of Europe Moral statements about human beings – they ought to have access to these rights, including the right to housing
Limits of Human Rights (1) - Foundations Self-evident, inalienable and non- negotiable? Or a rhetorical device to shut down debate? - ‘rights are trumps!’ What is their foundation? -global normative consensus -core human ‘needs’, ‘frailties’ and ‘capabilities’
Limits of Human Rights (2) - Enforceability “Rights do not come into existence merely because they are declared. They come into existence because they can be enforced. They can be enforced only where there is a rule of law… Outside the nation state those conditions have never arisen in modern times… When embedded in the law of nation states, therefore, rights become realities; when declared by transnational committees they remain in the realm of dreams – or, if you prefer Bentham’s expression, ‘nonsense on stilts’.” (Scruton, 2006, p20-21)
Limits of Human Rights (3) - Courts Decide Policy Broad and abstract rights Transfer of policy-making power from political sphere to legal sphere Judges determine allocation of scarce resources
Rights or Justice? Human rights important in pursuing humanitarian goals on a global basis But in allocation of scarce resources in democratic countries – a progressive politics based on ‘social justice’ not ‘human rights’ A focus on justice/fairness enables: -debate on distributive criteria - need, equality, desert -hard choices and trade-offs – freedom, economic efficiency, social cohesion/harmony
The National Realm The ‘social rights’ of citizenship – substantive entitlement to goods and services Programmatic rights – the ‘right to housing’ often in constitutions; a ‘political marker of concern’ Legal rights – enforceable in court; very rare
Legal Rights and Homelessness Almost always limited to emergency shelter Enforceable rights to settled housing – UK and France only UK – since 1977, LAs must ensure accommodation made available to ‘unintentionally homeless’ households ‘in priority need’ Scotland – abolish ‘priority need’ criterion by 2012 = virtually all ‘homeless’ people will be entitled to settled housing
Advantages of Legal Rights Alternative to ‘odious discretion’ Empowers claimants – ‘right of action’ Reduces stigma – not charity but entitlement; reflects equal status as citizens rather than unequal status as dependant/beneficiary
Disadvantages of Legal Rights ‘Over-legalisation’ – frustrates purposes Adversarial not ‘problem solving’ Perverse incentives ‘Legalistic’ rights = selective = stigmatising But enforceable statutory rights – counter exclusion of poorest and most vulnerable
Future Research Benefits and disbenefits of legalistic approaches – for homeless households and others in ‘housing need’ Comparative research on attitudes to housing ‘rights’ and ‘entitlements’ – public and professional Social democratic and liberal welfare regimes; universal and selective housing policies – how do most disadvantaged fare? ‘Housing rights’ as well as ‘rights to housing’, e.g. security of tenure
Conclusion Maintain critical perspective on ‘rights’ discourses Abstract rights enforceable by courts can undermine democratic control over public policy decisions ‘Legalistic’ rights – such as those in Scotland – seem likely to do more good than harm
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