“Access to Justice for All –
Regardless of Their Means”
Annual Dave Ellis Lecture
By Thomas Hammarberg
Dublin, 13 December 2012
The economic crisis has been talked about as if we had been struck by an unfortunate natural disaster. But the crisis is man-made. It is the result of a series of decisions taken by human beings, among them prominent bankers, investors – and politicians.
This crisis could have been avoided.
Now, Ireland and several other European countries have to face the consequences. The damages have to be limited:
– the damage on the many individual victims, not least on the poor and the most vulnerable;
– the damage on the social fabric as a whole; the damage on trust and the spirit of togetherness and genuine democracy.
This is a political challenge, unprecedented in our time. And it is certainly a human rights priority.
Furthermore, there is an absolute need to learn from this bitter lesson. This in turn requires an honest, self-critical analysis on why it went wrong and how such a disaster can be avoided in the future.
A Presidential analysis
In fact, President Obama, in his inauguration speech four years ago, asked for such a discussion. He said that the crisis was not only the result of “reckless risk-taking by some bank officials” or the “greed on the part of some” but also the result of “our collective failure to make hard choices and prepare [ourselves] for a new age”.
There was little constructive response to this invitation. However, Barak Obama himself came back with a more detailed analysis in a speech in Kansas last December. He mentioned that the crisis had roots long before the recession.
“Those at the very top grew wealthier from their incomes and investments than ever before. But everyone else struggled with costs that were growing and paychecks that weren´t – and too many families found themselves racking up more and more debt just to keep up”.
“We all know the story by now: Mortgages sold to people who could not afford them, or sometimes even understand them. Banks and investors allowed to keep packaging the risk and selling it off. Huge bets – and huge bonuses – made with other people’s money on the line”.
He pointed at the failure of the regulators to warn about the dangers and then he summarized his verdict on what had happened:
“It was wrong. It combined the breathtaking greed of a few with irresponsibility across the system”.
Austerity measures against recession
I quoted the US President as I could not find a speech with similar clarity from any leading European politician. However, his analysis is indeed relevant for us Europeans as well. For one, the gap between the rich and the poor has grown also in Europe during the past three decades.
It was obvious that bank regulations had been insufficient, but it was deemed necessary to pour state money – taxpayers’ money – into the banking system in order to prevent a financial meltdown. We were landed in a situation when debts were nationalised while profits stayed privatised.
Unemployment grew during the recession which in turn reduced state incomes and increased state expenditures. The result was that even less resources became available for social protection.
The inflexibility of the Euro system worsened the crisis in large parts of Europe.
The response from the decision makers has been to force through a a dogmatic austerity policy in spite of the recession. The idea has obviously been was that further budget cuts would produce recovery as the investors would become convinced that good returns were possible.
But the recovery has been anaemic. This is of course not a surprise; growing unemployment has decreased the purchasing power and thereby the demand in the overall economy. The spiral has gone downwards as a number of experienced and independent economists had foreseen.
An austerity program during a severe recession is so obviously in conflict with all wisdom that one wonders if there has not been another agenda behind, an ideological one: to downsize the government.
Obligation to protect economic and social rights
Is there a connection between all this and our agreed human rights standards?
Usually, we try to separate our human rights demands from party politics and political ideologies. This has become much more difficult now when very basic human rights standards are undermined by economic, ideologically- driven decisions which even the US President describes as “reckless”. Social and economic rights have been violated on a broad scale.
It must be stressed that economic and social rights, also, are human rights. There have been attempts to downgrade the status of these rights as compared to civil and political rights. One sometimes hear that the former ones are only “second generation” rights.
In fact, there are concerted efforts to go further and deny the legitimacy of the very concept of rights in relation to these economic and social acts of injustice.
It is therefore important to remember how our human standards in fact have developed. When Franklin D. Roosevelt defined the “Four Freedoms” in his famous State of the Union speech 1942, he included “Freedom from Want” as one of them.
The 1948 Universal Declaration of Human Rights includes several articles about social rights, including the right for all human beings to “a standard of living adequate for their health and well-being, including food, clothing, housing and medical care”.
Human rights conventions adopted through the years, like the one on children’s rights and the one on rights of persons with disability, illustrate how the basic freedoms inter-relate with social and economic rights. The various rights are interdependent. Another reflection of this can be seen in a number of ILO conventions.
States have in most cases ratified these treaties. Governments are obliged to implement their standards “to the maximum extent of their available resources”, as the formulation is in a couple of those agreements.
I would propose that the spirit of this obligation also urges us to take steps to prevent man-made crisis situations like the one we have had in the recent years.
This can obviously not be done by further down-sizing our common, public institutions.
On the contrary, there is, for instance, a need for effective regulations of the banking system, in particular of those banks which are “too big to fail”, those which will be bailed out by the state when in a crisis.
I have been worried to see a trend that even the offices of the ombudsmen and the equality bodies have had their budgets cut – now when their work has become even more urgent. The crisis has created the need for institutions and procedures to protect the rights of vulnerable people.
I am aware of the discussion on these issues here in Ireland and hope that the changes – including the merger of the Commission and the Equality body – will not result in a reduced capacity to monitor and act upon cases and situations of human rights problems in the republic.
It is also essential that that monitoring be done in broad consultation with civil society. When in Iceland I learnt about the functioning of a “Welfare Watch” set up in cooperation with the civil society in order to ensure precisely that. I heard that FLAC has proposed special procedures for poverty impact assessments.
Equal societies are more fair – and better for everyone
It is by now demonstrated that equal societies are better off in many respects, not least in the social sphere. They have less illness and a longer life expectancy than unequal communities. Factual data about social problems and crime rates show that inequalities, even in the most rich societies, create insecurity which harms everyone.
Do the agreed human rights norms support an advocacy for more equality in society?
Yes, several of the international human rights treaties include provisions against all forms discrimination. This is broadly interpreted to include positive actions for persons who for different reasons are disadvantaged – in order for them to be ensured equal opportunities.
The treaties describe minimum standards but do not put a ceiling on higher social and economic standards for any individual. However, there is a golden rule that one’s freedom does not include the right to harm and limit some else’s freedom.
I would argue that the rapid and enormous enrichment of a few indeed has harmed the interests and wellbeing of others before and during this crisis.
My conclusion is that it is not sufficient to pay lip service to the “social dimension” in the debate about economic policies. The agreed standards on social and economic rights must be given a much more prominent position when crucial decisions are to be taken on all aspects of economic policy.
This is the lesson.
Civil society – important counter balance
Will this crisis remind us about the need for social solidarity and political idealism? Do we, to use Barak Obama’s language again, have the courage to make the hard choices and prepare ourselves for a new age?
I am convinced that many do dream about an age in which greed is not rewarded, but care and respect for others would be. An age in which we all have the possibilities – and the relevant information – we need to exercise our democratic right to influence political decisions, both locally and globally.
With this I have come to the role of civil society.
I believe we cannot overestimate the importance of non-governmental groups and initiatives as a counter balance to the trends I have just described.
The deliberate and gradual weakening of the trade unions is therefore of great concern. Likewise, there is a need to oppose a tendency among governments to subcontract some of their basic obligations to non-governmental entities while at the same time undermining their possibilities to pursue advocacy programs. Instead they should welcome and encourage reform proposals from civil society.
Particularly important are NGO:s which are engaged in concrete community work; support and represent the rights of individuals and families; and use their knowledge and experience to advocate reforms for justice.
Free Legal Advice Centres is one of them. FLAC campaigns for access to justice for all, regardless of their means. It defines access to justice in a broader sense – access to basic legal information; access to legal aid and advice to defend one’s rights in the court system; access to social security; and access to a fair solution in cases of chronic over-indeptedness.
These efforts are crucial. They give tangible relief to people whose rights are at risk. They set an admirable example. They represent a caring, democratic spirit which gives some hope in the darkness.
FLAC’s work on a fair and workable legislation on personal insolvency cases, for instance, is a model of meaningful, relevant initiatives. I understand that such efforts are very much in the spirit of Dave Ellis, whose many years of community work with marginalised individuals and communities has been an inspiration to FLAC activists and others.
Destitute and vulnerable people
Work in a caring, democratic spirit does require that special attention is paid to destitute and marginalised people, many of them belonging to minorities.
Roma people, travellers and migrants are not only generally disadvantaged in our European societies and often denied access to justice. They have also been targeted by racist extremists and suffered from hate speech and even hate crimes – and increasingly so during the economic crisis.
Lesbians, gays. bisexual and transgender persons have also been discriminated and harassed, not least in some of the former Communist countries. Unfortunately, the prejudices are widespread also in countries with a longer democratic tradition.
I know that FLAC has supported the struggle of Dr. Lydia Foy to have her real gender identity fully recognised. Five years have passed since it was clarified that Irish law was not compatible with the European Convention on Human Rights and I really thought that this would have been remedied by now, that a transgender recognition legislation would be in place. Such a step would be natural in a caring society in which human rights for all are a priority.
Persons with disabilities have not been protected against the negative consequences of the European crisis in spite of the pledges given in the 2006 UN Convention on the Rights of Persons with Disabilities. Budgets for carers and support for independent living projects have been reduced.
Elderly people have been hit by the austerity measures. Pensions and allowances have not been increased parallel to price increases. In particular, women – some of them with little or no old-age allowance – have fallen into destitution. There appears to be no strong voice for their interests among the decision makers.
As you know, we have also child poverty in today’s Europe. Children are growing up in conditions which will make many of them disadvantaged in schooling and in future job seeking. Cuts of child benefits have a most negative impact on families which are already destitute. Poverty tends to go from one generation to the next. Not to break that vicious cycle is a terrible waste, but also a human tragedy.
The most poor have least access to justice
Poverty and marginalisation is not only an issue of limited economic resources, it is a question of powerlessness – lack of access to those who decide.
The EU Fundamental Rights Agency has now published another report on access to justice problems within the European Union bloc. It organised a series of interviews in eight countries among persons who had complained as well as among people who had had problems but for some reason had not sought remedies.
The report showed a number of problems: little help to find an entry point where one could start claiming one’s rights; complicated procedures which were not explained; difficulties to understand the law; and uneven access to legal aid.
The report confirms that those most of need of justice and fair treatment tend to be those with least access.
That is why FLAC’s campaign is so totally relevant.