The case for economic rights

Christchurch City Councillor Raf Manji makes the case for a constitution with enforceable economic rights.

Since the Magna Carta in 1215, the drive for citizens’ rights has come from the civil and political sphere. The rights to fair and open justice, to democratic representation, and to basic liberty have underpinned developments over the last 800 years. It was not until 1919, and the establishment of the International Labour Organisation (ILO), that economic rights became codified explicitly, through the demand for the provision of a living wage. This was further reinforced in 1944, in the Philadelphia Declaration, where a minimum living wage was demanded, as well as the “provision of adequate nutrition, housing and facilities for recreation and culture”.

However, these were framed as demands, obligations and goals, rather than explicit rights. It wasn’t until the Universal Declaration of Human Rights in 1948 that we saw an economic right formally stated, with Article 25.1 noting “everyone has the right to a standard of living adequate for the health and well-being of himself and his family, including food, clothing, housing and medical care and necessary social services…”. This was codified in the 1966 International Covenant on Economics, Social and Cultural Rights, which is referred to in Article 106 of the proposed Constitution for Aotearoa New Zealand.

The problem with economic rights, even if acknowledged and recognised, is that they are quite difficult to enforce. We already have a very well established welfare system, whose role is to support those who do not have an adequate standard of living, either through unemployment benefits or tax transfers to those in work, but still needing financial help. Whilst the system is often difficult to navigate, inefficient, and often dehumanising, it is functioning and is recognised as a duty of government, whatever its stripe. The question then needs to be asked. Does the welfare “convention” need to be explicitly recognised in a new constitution and, if so, how could it be described?

The answer to the first question is maybe. Given that economic rights have been recognised through convention and practice, why do we need a formal right embedded in a written constitution. The answer to that is probably the same as to why do we need a written constitution, and that is because it helps to have rights and duties written down, just as a reminder to any future government who tries to remove or water them down. The question then remains, how would one describe an economic right? If one took the language of Article 25.1 of the Universal Declaration of Human Rights, the right to an adequate or basic standard of living, then one could, with some argument, create some kind of measurement of what an adequate standard of living would be.

How? Well, we have an example: superannuation for a married couple is fixed at 66% of the average wage. Would it be possible to frame a right that allowed for some variation whilst adhering to an underlying agreement? For example, if a right was framed as “the right to an adequate standard of living”, could that be enforced or challenged? It would be up to any government to define what that might look like, whether a measure of average income or some other measure. What would be challengeable in legal terms would be how far any government varied from what might be classed as “adequate”.

Another example of measurement is the Reserve Bank of New Zealand inflation target, which is set in a range, currently 1-3%, by the Minister of Finance, and often fluctuates outside that range. It is then up to the Governor of the Reserve Bank to report on why that has happened and what they intend to do to bring it back into the range that has been set.

I wouldn’t argue for that specificity in a constitution but by having an economic right defined as in the Universal Declaration of Human Rights, being both broad and specific, it allows for a legal recognition of a right that may not be delivered to an exact number but broadly acknowledges that the right exists, and that, if extinguished, could be challenged in the courts. In other words, if a government abolished all benefits, unlikely as that is, it could be challenged. Also, if benefits were reduced beyond a level that provided an “adequate” standard of living, then that also could be challenged, and would allow a court to rule of what an “adequate” standard of living could be regarded as. Given the enormous amount of data available from the workings of the welfare system over the last 80 years, there would be a reasonable expectation that a clear ruling could be achieved. The courts can and already do rule on economic matters. This has already been observed in recent pay equity deals.

To summarise, the case for economic rights to be codified and judicially enforceable may, at first, seem difficult and unrealistic. But, in reality, with the right wording, they could be enforced, if required. Their informal recognition is already embedded in our current welfare system, and with new policies such as universal basic income being widely discussed, it will be important and necessary to recognise current and future economic rights in any new constitution.