Work in a charity like Justice can get a trifle unremitting. But, just often enough to keep your spirits up, an invitation arrives out of the blue to something that looks worthwhile, or is at least set in an irresistible location (the combination of both is particularly cheering). Would I, the International Human Rights Internship Program, a US-based NGO, enquired, be interested in an expenses-paid trip for a two-day conference in Barcelona in early September? Was I interested? Within minutes I was booked.
The topic of debate was intriguing – though this may not be immediately apparent to those not in the fields of public law or human rights. We were to explore the use that analysis of government budgets has in the implementation of rights. There is actually a rich seam to be mined here. Back in the day, to use a contemporary expression, I spent a considerable amount of time exploring whether you could mount a legal challenge to a local authority under what was then the Chronically Sick and Disabled Persons Act. Councils were under a duty to assess a disabled or sick person’s need for assistance and then meet the cost if necessary. We were looking for a local authority with a consistent prior budget allocation and subsequent audited expenditure of zero. Would that not indicate the intended fettering of a statutory discretion? As I remember it, some authorities along the south coast presented themselves as particularly prime targets. However, in the event, nothing came of it.
The same issue has arisen more recently in the context of legal aid in different European countries. Common standards in criminal defence are mandated not only by the European Convention on Human Rights (ECHR) but now also the EU. Minimum safeguards for suspects and defendants are particularly important in the light of such cross-border criminal justice mechanisms as the European Arrest Warrant. Yet, a recent study, in which Justice participated, found levels of payment which surely indicated problems with the standard of work. In Hungary, for example, criminal lawyers were being paid €12 an hour. This must raise a prima facie argument that acceptable quality is prejudiced.
Latins in the leadThe world leaders in budget analysis and human rights turn out to come from Latin America. Countries such as Argentina, Brazil and Colombia developed new constitutions as they came out of military rule in the late 1980s and early 1990s. Their histories gave them a commitment both to human rights and budgetary transparency. In this drive, countries manifested different strengths. Brazil turns out to have maintained excellent government statistics even under the military. Thus, reliable information can be obtained on the potentially discriminatory impact of various policies. In turn, this has fuelled challenges on the basis of a breach of a constitutional right to equality.
The strongest court in the region is the Colombian Constitutional Court. Its remit was originally negotiated between insurgents and government as part of a highly political peace negotiation. The court has embraced the role of defending the democratic constitution against a sometimes resistant executive. It has gone so far as to overrule a government policy of adding VAT to certain basic goods on the grounds of discrimination against the poor. The court has also waded into government policy on dealing with displaced persons. These are a particular problem in Colombia because of the consequences of a long-running civil war and the vulnerability of indigenous peoples. The court found that 3 million people (out of a total population of 43 million) were officially registered as displaced and many more unregistered. It estimated that no fewer than 27 indigenous groups were at risk of disappearing as a result of armed conflict. It required the government to estimate the cost of dealing with displaced persons in a manner consistent with constitutional guarantees and then proceeded to monitor its performance against that budget. To do so, the court formed a multidisciplinary team, including an anthropologist, to ensure that it had the appropriate expertise.
Accentuating the positiveBudgetary analysis has a pretty obvious role to play in relation to social or economic policies. These inherently involve expenditure and, in any event, the UN International Covenant on Economic, Social and Cultural Rights requires that a state act to the ‘maximum of its available resources’ towards their progressive achievement. Thus, examination of levels of expenditure is central to decisions on compliance. The International Covenant on Civil and Political Rights has no equivalent reference to resources and the ECHR, which is based upon it, simply mandates states ‘to secure’ specified rights. The silence on costs in relation to civil and political rights derives from the fact that they were traditionally seen as ‘negative’ in character and, thus, implying no expenditure. States just had to stop doing things like torture or the suppression of freedom of expression. However, it has been increasingly recognised that some civil rights impose positive obligations either by implication, such as the duty to investigate a death in custody, or expressly, such as in the requirement to provide legal aid in criminal cases. The implications that can be drawn from low levels of expenditure have yet to be adequately explored and look as ripe for examination as did local authority spending on the needs of the disabled in the 1980s. Thus, budgetary analysis might become useful in European court cases to prove, for example, that adequate legal aid could not possibly be provided for the cost available. These arguments could become important.
In any event, Barcelona in early September was warm, gracious and all that you would expect.
Roger Smith is director of the law reform and human rights organisation Justice