Download Human Rights Transformed: Positive Duties and Positive Rights and more Study Guides, Projects, Research Civil Law in PDF only on Docsity!
Electronic copy available at: http://ssrn.com/abstract=
LEGAL RESEARCH PAPER SERIES
Paper No 38/2006 August 2006
Human Rights Transformed: Positive Duties and Positive Rights
SANDRA FREDMAN
This paper can be downloaded without charge from the Social Science Research Network electronic library at: http://ssrn.com/abstract= 923936
An index to the working papers in the University of Oxford Legal Research Paper Series is located at: http://www.ssrn.com/link/oxford-legal-studies.html
Electronic copy available at: http://ssrn.com/abstract=
Human rights transformed: Positive duties and
positive rights
Sandra Fredman Oxford University
In the post world war landscape of the UK, positive duties to provide welfare to individuals have been firmly situated within the politics of the Welfare State. Conspicuously absent in this arena has been the discourse of human rights. Indeed, when the decision to enact a justiciable bill of rights was finally taken, it was the European Convention on Human Rights (ECHR), with its overriding emphasis on civil and political rights, which was incorporated. This reflects a well-established view that civil and political rights are duties of restraint, preventing the State from interfering with individual freedom rather than casting positive duties on the State to act. As such, they are thought to be more appropriate for judicial resolution than positive duties. Protection by the State against want or need are assigned to the realm of policy, and socio-economic rights to the realms of aspiration.
However, the attempt to draw a rigid distinction between negative and positive obligations has come under increasing strain in the developing human rights case-law, and with it the demarcation between civil and political rights on the one hand and socio-economic rights on the other. Nowhere is this tension more evident than in the recent string of cases brought by destitute asylum seekers whose right to basic social support had been withdrawn because they had not applied for asylum at the port of entry. Their claim was based on one of the most fundamental of human rights: the right not to be subjected to inhuman or degrading treatment or punishment under Article 3 of the ECHR. In Limbuela, the House of Lords unanimously held that in order to avoid a breach of Article 3, the Secretary of State was obliged to provide support. Treatment which denies the most basic needs of any human being, to a seriously detriment extent, was held to be clearly inhuman and degrading^1
(^1) R v Secretary of State for the Home Department ex p Limbuela [2005] UKHL 66 (HL) at [7]
. Equally importantly, the failure to make provision amounted to ‘treatment’ because it was the legal structure itself which rendered the individuals destitute, by prohibiting them
‘True individual freedom cannot exist without economic security and independence.’^3 The inter-relationship works in both directions: civil and political rights are equally crucial for the achievement of true freedom from want and fear. Thus, as Sen demonstrates, countries with accountable leadership do not suffer famines because leaders know that if they are to remain in power, they must take action to protect the population. Moreover, he argues, ‘political rights, including freedom of expression and discussion, are not only pivotal in inducing political responses to economic needs, they are also central to the conceptualisation of economic needs themselves.’^4
With the recognition of the unity of civil rights with socio-economic rights comes the acknowledgement that all rights, regardless of their nature, can give rise to positive as well as negative obligations on the State. Even a quintessential civil right such as the right to a fair trial requires the State to provide an adequate court system. It is therefore more helpful to focus on the nature of the obligation generated by different rights than on an attempt to categorise the rights themselves. As recent analysis has shown, both civil rights and socio-economic rights give rise to a cluster of obligations:^5 the primary duty whereby the State should not interfere with individual activity; the secondary duty whereby the State should protect individuals against other individuals; and the tertiary duty to facilitate or provide for individuals. Known as the duties to respect, protect and fulfil, these duties are now expressly enshrined in the new South African Constitution, and the International Covenant of Economic, Social and Cultural Rights (ICESCR).
In Limbuela, the House of Lords recognised that it was unhelpful to attempt to analyse obligations arising under Article 3 as negative or positive. ‘Time and again these are shown to be false dichotomies’ Lord Brown declared. Instead, the real issue is whether the State is ‘properly to be regarded as responsible for the harm inflicted (or threatened) upon the victim.’^6
(^3) 11th Annual Message to Congress (11 January 1944) in J Israel (ed), The State of the Union Messages of the Presidents (Chelsea House Publishers, New York 1966) vol 3, 2881, cited in H Steiner and P Alston, International Human Rights in Context (2nd edn, Oxford: OUP, 2000) 243.
Although the State has not inflicted violence or
(^4) Amartya Sen, ‘Freedoms and Needs’, The New Republic, 10 and 17 January 1994, 31, 32, cited in Steiner and Alston (n 5 Error! Bookmark not defined. above) 269. H Shue, Basic Rights: Subsistence, Affluence, and US Foreign Policy (2nd edn, Princeton: Princeton University Press, 1996). 6 Limbuela [92] and see Lord Hope at [53]
punishment, it can still be regarded as responsible when the statutory regime it has established leaves individuals in a position of inevitable destitution. Here the State must be regarded as responsible for the destitution of late asylum seekers because it was the statutory regime which removed any source of social support while prohibiting them from supporting themselves through paid work.
Given that there is little which is not regulated by the law in a complex modern State, this is a far-reaching recognition of the breadth of State responsibility. Baroness Hale in Limbuela notes that it is no longer possible to expect individuals with no means of support to ‘live off the land’. But, apart from a State of Nature without property rules, even living off the land would require a legal regime which gives some exemption from the normal rules of trespass and theft. It is the legal regime which creates property rights and protects them from theft and invasion. Bentham famously declared: ‘Property is entirely the creature of law… It is from the law alone that I can enclose a field and give myself to its cultivation…Before the law, there was no property; take away the laws, all property ceases.’^7
In this sense, then, the legal regime is inevitably responsible for destitution. As Sunstein puts it, if homeless people lack a place to live, it is because the rules of property are invoked and enforced. Similarly, there is no law against eating in the abstract; it is the law which forbids a hungry person to eat any of the food which exists in the community.^8 Sen puts it even more strongly. People are hungry if they lack entitlements that enable them to eat: thus: ‘the law stands between food availability and food entitlement. Starvation deaths can reflect legality with a vengeance’^9. It is thus impossible to imagine a scenario in which individuals who through no fault of their own find themselves destitute within an advanced welfare state without this being due in some way to the legal regime.
Of course, if the individual is somehow responsible for his or her destitution, this picture might change. It is this which explains O’Rourke^10
(^7) J Bentham Principles of the Civil Code (Simkin, Marshall 1898) 1:307 – 8 CHECK
, where the ECHR held
(^8) CR Sunstein The Second Bill of Rights (Basic Books New York 2004) pp23- (^9) A Sen Poverty and Famines (OUP Oxford 1981) pp.165 - 166 (^10) O'Rourke v United Kingdom (Application No 39022/97) (unreported) 26 June 2001
to recall that Article 8 does not in terms give a right to be provided with a home. Nor does any of the jurisprudence of the court acknowledge such a right. While it is clearly desirable that every human being has a place where he or she can live in dignity and which he or she can call home, there are unfortunately in the contracting states many persons who have no home. Whether the State provides funds to enable everyone to have a home is a matter for political not judicial decision.’^19 As will be discussed below, it is only through the equality provision that the positive duty to provide has been manifested.
Other jurisdictions have similarly grappled with the distinction between positive duties to provide and negative duties of restraint. Some constitutions deal with this expressly. One model, found in the Irish and Indian constitutions, is to use ‘directive principles’. This model provides that positive duties in the social policy field are constitutionally required of the State, but that they are not judicially enforceable. This contrasts with justiciable civil and political rights. Thus the Indian Constitution states that ‘it shall be the duty of the State to apply these principles in making laws;’^20 but that the principles ‘shall not be enforced by any court’. The Irish duty is somewhat more dilute: the directive principles of social policy are ‘intended for the general guidance’ of the legislature^21. But the judicial exclusion is more strongly worded: the principles ‘shall not be cognisable by any Court under any of the provisions of this Constitution’. This approach has become particularly relevant for domestic law because of its inclusion in the EU Charter of Fundamental Rights. While the structure of the Charter reflects the unity of civil and political with socio-economic rights, a late amendment distinguished between judicially enforceable rights, and principles to be implemented by legislative and executive acts. Principles ‘shall be judicially cognisable only in the interpretation of such acts and in ruling on their legality.^22 ’
(^19) ibid at [99]. (^20) Indian Constitution (adopted 26 January 1950), Article 37 (^21) Bunreacht Na hĒireann, Article 45 (^22) EU Charter of Fundamental Rights, Article 52(5). See further MP Maduro ''The Double Constitutional Life of the Charter of Fundamental Rights of the European Union' in T Hervey and J Kenner (eds) Economic and Social Rights under the EU Charter of Fundamental Rights (Hart Oxford 2003); S Fredman ''Transformation or dilution: Fundamental Rights in the EU social space'' [2006] European Law Journal forthcoming
An alternative model sees socio-economic rights as justiciable, but moulds the positive duty to reflect the difficulty of providing resources in immediate fulfilment. Thus, under the International Covenant for Economic, Social and Cultural Rights (ICESCR) each State Party undertakes ‘to take steps to the maximum of its available resources, with a view to achieving progressively the full realisation’ of the rights in the Covenant. 23 This has been adapted by the South African Constitution, which makes socio-economic rights justiciable, while expressly providing that the duty on the State is to take ‘reasonable legislative and other measures, within its available resources, to achieve the progressive realisation’ of each of the rights.
What then is the relationship between the duty and the right? Does the individual have an immediate right to claim the benefit? Or is the right merely one to call on the State to demonstrate that a plan is in place to realise the right? The ICESCR committee has responded in two ways. Firstly, although the State need not achieve the full realisation immediately, it does have an immediate duty to construct a programme to realise the duty. Secondly, every State party has a ‘minimum core obligation’ to ensure minimum levels of essential foodstuffs, primary health care, basic shelter and housing, and basic forms of education. State parties ‘must demonstrate that every effort has been made to use all resources at its disposition in an effort to satisfy, as a matter of priority, those minimum obligations.^24 ’
The South African Constitutional Court, which has been given a frontline role in adjudicating entrenched rights against a background of desperate poverty and inequality, has approached the issue differently. It has rejected not only the notion of minimum core obligations, but also of any interpretation which would “give rise to a self-standing and independent positive right’ enforceable irrespective of the express qualifications to the State’s duty^25
(^23) ICESCR Article 2(1)
. As Makgoro J put it: ‘Section 27(1) [the right] and section 27(2) [the duty] cannot be viewed as separate or discrete rights creating entitlements and obligations independently of one another. Section 27(2) [the duty] exists as an internal limitation on the content of section 27(1) [the right] and the ambit
(^24) General Comment No 3 (^25) TAC para. 39.
protection of the right to vote^30. Section 7, in her view, gave rise to two separate rights, the positive right to life and the negative right not to be deprived thereof. This in turn means that the government need not be proved to have caused the problem. Instead, the duty arises when government intervention is needed to secure the effective exercise of a claimant's fundamental rights. This specifies and takes further Lord Brown’s formulation in terms of whether the State can be said to be responsible^31
Still more adventurous has been the Indian Court, which has interpreted the right to life in section 21 of the Indian constitution as the font of a stream of positive duties, centred on the right to quality of life, and the right to live with human dignity. The right to life entails the right to livelihood, since no-one can live without the means of living
(^32). Similarly, the right to health of a worker is an ‘integral facet of meaningful
right to life’, so that the right to life includes the right to medical aid to protect the health of workers while in service or post retirement^33. The right to life even encompasses the right to communication with the outside world, which for citizens living in inaccessible hilly areas means the right to a road^34. Particularly important has been the Court’s intervention in the right to food case, where the Court has required States to implement food distribution schemes, including the provision of cooked mid-day meals at school. This is a facilitative duty par excellence, since cooked school meals draws children to school, diminishes family’s needs to send their children out to work, and educates children for a better future. It has proved particularly important in helping girls gain an education. CITE.
Limbuela sees human rights as operating in the heartland of the Welfare State, so that political responsibility interacts closely with legal duties. This makes it essential to have a better understanding of changing notions of political responsibility, and the influences of background political theory. It is for these principles that positive human rights duties must provide a framework of legality. These are the subject of the next section, before turning to potential principles of justiciability.
(^30) Gosselin [320] (^31) Gosselin [381] (^32) Olga Tellis v Bombay Municipal Corporation (1985) 3 SCC 545 (Supreme Court of India) (^33) Consumer Education & Research Centre v Union of India A.I.R. 1995 Supreme Court 922 (Supreme Court of India) para [26] 34 State of Himachal Pradesh v Umed Ram Sharma AIR 1986 SC 847 (Indian Supreme Court)
[In this, it recognises that the commitment to make provision for the basic welfare of everyone within the jurisdiction is just as much part of the unwritten constitution as the common law civil liberties referred to by Dicey. Even during the neo-liberal era of Thatcher and Major, there was no possibility of wholly dismantling this commitment^35
Part II New Deals for Old: Responsibility and the Welfare State
. With this recognition come complex challenges, first to determine the shape of the rights and duties lurking beneath the policy commitments of the Welfare State, and then to establish justiciability. Each is examined in turn. ]
(i) Changing Ideals
Embracing positive duties as a central aspect of human rights raises questions as to the nature of the duty, to whom it should be attributed, and how a focus on duties affects the understanding of the right and the rights bearer. The answers to these questions have been shaped by a complex amalgam of political theories, including liberal individualism, social democracy, communitarianism and civic republicanism. The earliest influence was that of liberal individualism, according to which the individual should be free to pursue his or her rational self interest in the market without State interference. Failure to make provision for oneself was seen as the fault of the individual, and State provision could only be justified if it functioned as an incentive to greater industriousness. Thus nineteenth century Poor Laws attributed unemployment and poverty to individual idleness^36
(^35) A Ware and R Goodin 'Introduction' in A Ware and R Goodin (eds) Needs and Welfare (Sage London 1990) p.
, placing responsibility squarely on the shoulders of the individual. State maintenance was both punitive and disciplinarian, requiring destitute able- bodied persons to enter the workhouse and be put to work as a condition of relief. Any other provision of support took the form of charity, rather than entitlement, leaving the recipient in the position of grateful suppliant. Although this approach has clearly been supplanted, the notion that welfare beneficiaries are idle, scroungers and a burden on society is never far from the surface of political rhetoric. Similarly tenacious has been the notion of welfare as charity,
(^36) Royal Commission Report in 1834, S Webb and B Webb English Poor Law Policy (Longmans 1910) p.
structures and institutional contexts which underlie these distributive outcomes^41. Thus Young argues: ‘‘Individuals are not primarily receivers of goods or carriers of properties, but actors with meanings and purposes who act with, against, or in relation to one another.’^42 Instead of conceiving of rights as possessions, she concludes, they should be seen in terms of relationships, ‘institutionally defined rules specifying what people can do in relation to one another.’^43 Finally, placing the full responsibility on the State makes it difficult to address broader questions of the role of community and the responsibility of individuals to each other.
This depiction of State responsibility is challenged by various strands of communitarian thinking. On this view, State responsibility is a contribution to the community as a whole not just to the individual recipient, 44 thus avoiding the divisive discourse of transfer of wealth from rich to poor. Thus Ritchie argued at the end of the nineteenth century that fundamental or natural rights were ‘mutual claims which cannot be ignored without detriment to the well-being and in the last resort to the very being of a community….They represent a minimum of security and advantage which a community must guarantee to its members.’^45 Modern thinkers take this further, to reshape the understanding of the individual. Thus Young argues that the individual is not an autonomous, self-centred entity, but a ‘relational self’, who is partly constituted by society, although not wholly absorbed into it.
Situating the individual within the community means that responsibility moves beyond the bipolar relationship of State and individual, to include the interaction between individual and community, generating mutual obligations of support and a sharing of available social goods. Those who have access to power, particularly in the form of material wealth, have specific responsibilities to the community to contribute proportionately to their ability. The transfer is not of wealth from the rich to the poor, but from those on whom the State has already endowed property to the community as a whole. Nor is the State’s responsibility simply to each specific individual. Instead, provision of public facilities, such as education, health, child-care and leisure, is a (^41) IM Young Justice and the Politics of Difference (Princeton Paperbacks Princeton 1990) p. (^42) Young p. (^43) Young p. (^44) M Freeden ''Rights, Needs and Community: The Emergence of British Welfare Thought'' in A Ware and R Goodin (eds) 45 Needs and Welfare (Sage London 1990) p. D Ritchie Natural Rights (Allen & Unwin London 1894) p.
central part of State responsibility, building up social capital as well as taking the pressure off income as the chief means of fulfilling individual needs.
Community, on some accounts, also counteracts what is perceived to be the undue power of the social democratic State. Thus community performs a dual function. It is an alternative to the ‘lonely individual’ in the neo-liberal market, empowering the individual to realise her potential. But it is also a counter to a centralised and bureaucratic state. Thus Gordon Brown argues that it is essential to use the community to achieve many of the ends wrongly left to the State^46.
The stress on community is an important corrective to both liberal individualism, and the coercive potential of an all powerful Welfare State. However, community is not necessarily democratic or accountable.^47 While highlighting the richness of inclusion, the language of community is necessarily exclusive too. Furthermore, by subsuming individual identity to the community, communitarianism can embrace an unacceptable level of conformism. It is therefore necessary to address questions of access to community as well as power relationships within the community and between communities^48. Moreover, the concept of community adapts, chameleon- like to different political ideologies. Thus the rhetoric of community was used under neo-liberal governments to give legitimacy to cuts in State provision, an example being ‘community care’ for the mentally ill^49. On the other end of the spectrum, the notion of community can become a ‘conception of subjectivity in which the person is simply engulfed or determined by her social and bodily context’^50.
While communitarianism takes issue with the absence of community in the social democratic matrix of responsibility, civic republicanism challenges its assumption that the rights bearer is a passive recipient. Drawing on the classical Greek idea that a citizen only expresses his or her full potential through political participation, civic republicanism sees participation as a civic virtue, a condition of citizenship^51
(^46) Brown pp120 - 122
Participation is both a right and a duty, so that it is not only the State, but also the
(^47) Phillips in Milliband p. 124 (^48) Lacey p. (^49) N Lacey Unspeakable Subjects (Hart, 1998) p. 131 (^50) Lacey. 139 (^51) R Lister Citizenship: Feminist Perspectives (2nd ed Palgrave 2003) p.13, 15-
cope with risks’^56 , giving real freedom, backed by the means to make it effective, to take full part in social and economic life,.
Nor are individuals conceived of as atomistic entities in the ‘lonely market’. Drawing on the communitarian insight that individual rights are to the benefit of the community as a whole, social rights are portrayed, not as a burdensome cost to society, but a ‘productive factor^57 ’, an essential contribution to the economy. Thus, according to the EU Social Policy Agenda in 2000, social expenditure on health and education represents ‘an investment in human resources with positive economic effects’^58. Crucial too is the community solidarity which comes from giving everyone a stake in the welfare state. Instead of simply transferring income to the poorest in society, social rights should have a public and universal dimension. Access to public services, such as vocational training, health care, transport, education and child-care, should be considered as collective benefits, giving individuals real rather then formal opportunities. 59
More complex is the view that State responsibility should be matched by individual responsibility. Resonating with civil republican notions of civic virtue, third way thinkers propose, that ‘a prime motto for the new politics [is] no rights without responsibilities’^60. Thus, declares Gordon Brown, the true role of government is to ‘foster personal responsibility, not substitute for it.^61 .’ This notion needs to be handled carefully, however. At one level, it chimes with the positive momentum towards active citizenship. At another level, it can look backwards towards a liberal view that individuals can only reap the harvest they themselves have sown. Thus Giddens, from the individualist side of the spectrum, focuses primarily on the duty of the individual recipient to reciprocate. Vandenbroucke, by contrast, insists that individual responsibility should not consist only of the ‘easy rhetoric about the moral responsibilities of the poor and powerless.’^62
(^56) A Supiot Beyond Employment (Oxford University Press Oxford 2001)pp197-
Instead, the web of interlocking
(^57) Commission of the European Communities ‘Social Policy Agenda’ COM (2000) 379 final (henceforth 58 Social Policy Agenda ) para 1.2; and see Mid term Review para 3.3. 59 Social Policy Agenda,^ para 1.2. 60 Supiot p. 144 61 A Giddens^ The Third Way and its Critics^ (Polity Press London 2000) p. G Brown ''The Politics of Potential: A New Agenda for Labour'' in D Miliband (ed) Reinventing the Left 62 (Polity Press Cambridge 1994) p. Vandenbroucke ibid quoting T. Wright, Socialism, Old and New (1996) p.147.
responsibilities 63 includes that of the State, to intervene where the market is not a true reflection of personal responsibility and effort, and the rich and powerful. This is reinforced by Hutton, who argues that property should not be seen as an absolute right, but a ‘concession, made by the society of which it is part, that has to be continually earned and deserved’.^64 Those who own property are members of society ‘to which necessarily they must contribute as the quid pro quo for the privilege of exercising property rights.’^65
(ii) Translating Ideals into Practice: Models of the Welfare State
These strands of thinking have all been influential in the development of notions of responsibility within the Welfare State. Liberal individualism has been reflected from the earliest days of the Welfare State in the principle that individuals should ‘earn’ their welfare entitlements through their contributions to the national insurance system. The insurance principle has retained its central role, although the link between the actual contribution record and the level of payments has weakened, and employers are expected to make complementary contributions. At one level, the insurance principle gives everyone a stake, since everyone faces risks of unemployment, injury, illness and old age. On the other hand, because it stresses the individual’s duty to earn entitlements, the insurance principle favours those in work and particularly those with a continuous and regular working life. It is therefore deliberately biased against women and other non-standard workers. It also tends to entrench inequalities, in that it aims to maintain the beneficiary in his or her previous position, for example, through a link to previous earnings.
The liberalism of the insurance principle is balanced by the social democratic model , which places responsibility on the State rather than the individual, and therefore focuses on demonstrable need rather than employment status or earnings. The needs- based principle has the advantage of targeting those in need unconditionally and regardless of their ability to contribute. However, because it only benefits those who fall below the means test, it militates against solidarity in that the middle classes feel
(^63) F. Vandenbroucke, ‘European Social Democracy and the Third Way’ in S White (ed) p.170-171. (^64) Hutton, ibid, p.84. (^65) W. Hutton, The World We’re In (Abacus, Great Britain 2002) p.63.
opportunities and to help people take advantage of them. It is the responsibility of those who can take them up to do so.’^68
Central to this approach has been work-fare, which makes the right to benefit conditional on the duty to seek work or undergo training. Sporting glossy labels such as New Deal for Young People, New Deal for those over 25, and New Deal for Lone Parents, workfare programmes have mushroomed since 1997 under New Labour. New Deal programmes manifest many characteristics of Third Way thinking. They represent ‘facilitative’ State, which empowers citizens to find their own pathways out of poverty, and to participate in society in a meaningful way through paid work. Similarly, social rights are characterised, not as a cost to society, but as productive factors which benefit to the community as a whole by moving people off benefit into work and combating social exclusion.^69 Citizenship is an active concept: individuals have access to public resources to develop their own human capital and thereby to be in a position to reciprocate.
Work-fare schemes, however, have a dark side. Firstly, they include an element of compulsion in the sense that benefits are withdrawn if the recipient does not participate^70. This ‘tension between compulsion and individual rights in social democratic thinking’^71 raises the question of whether conditionality undermines the status of a right. Secondly, Welfare to Work privileges paid work. Civic virtue is no longer associated, as in classical Greece, with political participation, but with paid work. This sidelines all the other activities that individuals should be valued for, most prominently caring work, but also volunteering and political work^72.
(^68) Green Paper, New Ambitions for our Country: a New Contract for Welfare (Cm 3805 1998) pp.24,
- 69 See for example Department for Work and Pensions and BMRB Social Research Destination of Leavers from NDYP and ND25 Plus (3rd Draft Report September 2004) p.
(^70) Under the New Deals in the UK, participation is mandatory for adults aged 25 to 49 with 18 or more months of unemployment within a 21 month period and for young people (18 – 24 years old) after six months of claiming jobseeker’s allowance 71 A Glyn and S Wood 'Social Democracy in Neo-Liberal Times' in A Glyn (ed) New Labour's Economic Policy 72 (OUP Oxford 2001) p. There is a small exception for volunteering CHECK
Thirdly, it runs the risk of paying too little attention to quality of work. While paid work can be liberating, it can also be exploitative. This can be seen in the US, where a large proportion of total service job growth has occurred in jobs without access to decent earnings, fringe benefits, occupational social insurance or employment security. Even in the core workforce, many corporations have reduced or eliminated their provision of occupational health and pension plans in order to cut production costs and gain flexibility^73. A subtle transformation of the right to work into the duty to work is therefore highly problematic unless it is accompanied by a properly enforced floor of rights guaranteeing quality of work. Third Way policy-makers have accepted this point in principle, as reflected in the slogans ‘more and better jobs’ and ‘making work pay.’ Some attention to quality of jobs is seen as way of legitimating the element of compulsion in welfare to work programmes. Thus welfare to work has been complemented by measures to increase the rewards for working in the form of the minimum wage, in –work benefits^74 , and the national childcare strategy.
Finally welfare to work assumes that increasing the supply of workers will create its own demand for labour in the market. It also means that if workers cannot find work, it appears to be their own fault, resuscitating the old notion that unemployment is a moral failing of the individual. Glyn and Wood demonstrate that workers with low qualifications who live in areas of mass unemployment could find themselves with responsibilities but no prospect of fulfilling them unless jobs are created in these areas and their skills significantly increased.^75 Nickells and Quintini show that indeed, at least in the early years of its operation, the New Deal had little impact on low-skilled men, where levels of inactivity have been rising very quickly as a result of low levels of demand for the unskilled^76 ..
Part III Positive duties and the judiciary
(^73) G Esping-Anderson ''Equality and Work in the Post-industrial Life-cycle'' in D Miliband (ed) Reinventing the Left 74 (Polity Cambridge 1994) p. 75 Formerly working families tax credit and now child tax credit and working tax credit 76 Glyn and Wood p. Nickells and Quintini p.
