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