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Litigating for social justice with ‘one armed tied behind your back’: Why economic and social rights must be incorporated into UK law

By Imogen Richmond Bishop and Dr Sara Bailey

Millions of people in the UK have reported going hungry since March due to having lost some or all of their income in the context of the pandemic and associated economic downturn. They can no longer afford to buy adequate quantities of food. People with disabilities, single-parent households and ethnic minorities have all been disproportionately affected. In this context, civil society groups have used the law to challenge UK government policy whilst being constrained by a limited legal scope to address the impacts of a crisis like the one caused by the ongoing pandemic.

Sustain, The Alliance for Better Food and Farming, was one such organisation. This summer, we took the decision to undertake legal action in order to try and prevent children going hungry. We chose the mechanism of 'judicial review' – a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body. Because the UK has yet to incorporate its international obligations pertaining to economic and social rights into domestic law, it left us with few legal avenues with which to challenge government policy.

For some context, in recognition of the significant contribution that free school meals make to children’s nutrition and wellbeing, the government decided to extend support for free school meals when the schools closed because of the global pandemic. The support provided was different across the four UK nations, but many schools in England used the official school food-voucher scheme, provided through the private company Edenred but facilitated and paid for by the Department for Education. The scheme provided eligible families with a voucher for each eligible child intended to cover the cost of their lunch.

Initially, the Department for Education insisted that these vouchers would not be provided during the holiday periods because free school meals are not normally provided during the holidays, despite the significant additional financial strain families were under. However, in the end, the government made late u-turns on its decisions for both the Easter and the May holidays – in the latter  case, so late in the day that the holiday was nearly over when the extension of support was announced, causing confusion for both schools and families.

In the lead up to the summer holidays, the UK Government again proceeded to insist that free school meal support would not be provided over the holiday period. The uncertainty around the free school meal support, combined with the significant financial strain faced by families, inspired us at Sustain to work with the Good Law Project  –  a not-for-profit membership organisation, that uses the law to protect the interests of the public – to challenge the UK Government's decision not to extend school meals during the summer holidays.

We sent numerous ‘pre-action’ letters to the government and secured media coverage of our intent to take the government to court. This legal action did not make it to court as the UK government u-turned following a widespread civil society campaign that included an array of  organisations, children, and a passionate intervention by a high profile footballer. Either way the judiciary’s scope of action would have been severely limited; it would not have been able to make any pronouncements on economic and social rights, but at best find that the government’s decision-making process had been flawed.

A second recent gain using the threat of judicial review was the extension of free school meal support to some children whose families have ‘No Recourse to Public Funds’ (NRPF). This immigration condition causes destitution by imposing extreme restrictions on the provision of state support - including free school meals - to certain categories of non-citizen. Again, the government (partially) u-turned in response to the threat of legal action, expanding free school meal support for some families with NRPF.

Whilst these legal actions and associated campaigns have achieved tangible changes for millions of food insecure children, they do not resolve the root cause of hunger in the UK that are caused by an inadequate social safety net, hostile environment immigration policies, and insecure low paid work . If the right to food or the right to social security had been incorporated into domestic law, lawyers would not have to fight with one arm tied behind their backs, relying either on civil and political rights or judicial review to force the government to uphold economic and social rights. Thus, the current pandemic revealed all too sharply that if economic and social rights are truly to be protected in the UK, it is critically important that they be incorporated into domestic law as a matter of priority.  

Sara Bailey is an independent researcher and human rights advisor on the University of Bath's 'social mobilization for social policy in the MENA region' project. She holds a PhD in human rights from the University of Essex's Human Rights Centre in the social practice of human rights. Sara has also previously undertaken work in the areas of human rights and human security for the United Nations Development Programme, UN Women, and several Palestinian human rights NGOs. @DrSaraBailey

Imogen Richmond-Bishop  is the right to food project coordinator at Sustain the Alliance for Better Food and Farming and the research and advocacy manager for the UK based human rights charity Just Fair. She is also a 2020-2021 Atlantic Fellow for Social and Economic Equity and can be found at @imogen_rb

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