part b: articles welfare state reform and social rights

PART B: ARTICLES WELFARE STATE REFORM AND SOCIAL RIGHTS Olivier De Schutter* Abstract In all rich countries, though at different speeds, the Welfare State has been going through an important reform process since the mid-1990s. We have witnessed a gradual merger between social assistance and unemployment assistance, as the former was made increasingly conditional upon the beneficiary actively seeking work and as the levels and the duration of unemployment benefits were drastically lowered; a contractualisation of the relationship between job-seekers and public employment agencies, with a view to “responsibilising” both; and the imposition of a duty to accept “suitable” employment, with a generally broadened definition of what is suitable employment, based on the idea that the job-seeker should be “flexible” and encouraged to adapt to the exigencies of the employment market. This article assessses the contribution of human rights bodies to the discussion about the transformation of welfare. It makes three proposals explaining how the human rights response could be strengthened and made more relevant. Keywords: Social rights; Welfare State; Forced Labour; Right to Work; Waiver of rights; Droits sociaux; Etat providence; Travail forcé; Droit au travail; Renonciation aux droits

1.

THE ORIGINS OF THE MODERN WELFARE STATE: THE BRETTON-WOODS CONSENSUS

Though the modern Welfare State has its origins in the emergence of legislation protecting workers in the late 19th century and in the first social security schemes of the early 20th century, the institutional forms of welfare that we inherit have their source in the Bretton-Woods Era that was inaugurated at the end of the Second World War. This was an era during which social protection, economic growth and trade *

Professor at the University of Louvain (UCL) and at Sciences Po (Paris); Member of the United Nations Committee on Economic, Social and Cultural Rights. The opinions expressed in this article are strictly personal to the author and should not be construed as attributable to the Committee. The author is grateful to two anonymous reviewers for their insightful comments.

Netherlands Quarterly of Human Rights, Vol. 33/2, 123–162, 2015. © Netherlands Institute of Human Rights (SIM), Printed in the Netherlands.

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liberalisation were seen as mutually supportive: a virtuous cycle was established, in which trade contributed to growth and employment, which in turn could finance social protection and protect all those who were deprived from the opportunity to have access to gainful employment either temporarily or permanently. The definition of welfare in the form of rights – benefits that individuals could claim before independent tribunals – was seen as an integral part of this compromise. Partly reflecting the vision of US President F.D. Roosevelt who called for a post-conflict World Order guaranteeing ‘freedom from want’1 and partly building on instruments adopted within the International Labour Organization (ILO) in the 1920s covering issues such as maternity protection, sickness, old age, invalidity, workers’ compensation, occupational health, and unemployment, Article 22 of the Universal Declaration of Human Rights provided in 1948 that ‘[e]veryone, as a member of society, has the right to social security’, and Article 25 stated that ‘[e]veryone […] has the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control’.2 Two recommendations adopted by the ILO in 1944 sought to widen the right to social security, at the same time that this right was being recognised as an internationally protected human right.3 The construction of the Welfare State in advanced economies was not a radical project. Instead, it was a compromise. It sought to defuse revolutionary impulses, whether in the form of demands for the nationalisation of means of production or in the form of workplace democracy, by ensuring that the working class would share in the general increase of prosperity.4 In the course of the 1950s, communist parties gradually ceased to exercise a major influence in most West European countries (with the notable exception of France and Italy until the 1980s), and social democratic parties abandoned the demand for the collectivisation of the economy: at its Bad Godesberg Congress of 1959, the German SPD (Sozialdemokratische Partei Deutschlands) acknowledged that the State should ‘restrict itself mainly to indirect methods of influencing the economy’, reflecting an evolution that all its counterparts across the continent would undergo in time.5 The movements calling for greater participation of workers in decisionmaking within companies, based on arguments of self-fulfillment initially made popular by the writings of John Dewey,6 largely encountered the same 1

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Cass R. Sunstein, The Second Bill of Rights. FDR’s Unfinished Revolution and Why We Need It More Than Ever (Basic Books 2004). UNGA Res 217 (1948) GAOR 3rd Session UN Doc A/810. ILO Recommendation No 67: Income Security (12 May 1944); and ILO Recommendation No 69: Medical Care (12 May 1944). Th is is adequately conveyed by Alan Brinkley in his chronicle of the successive legislative programmes designed by the Roosevelt administration in the 1930s. See Alan Brinkley, The End of Reform. New Deal Liberalism in Recession and War (Vintage Books 1995). Tony Judt, Postwar. A History of Europe Since 1945 (Penguin Books 2005) ch XI. See especially John Dewey, Democracy and Education. An Introduction to the Philosophy of Education (1916), Middle Works 1889–1924 (vol 9, JoAnn Boydston ed, Southern Illinois University Press) 268–269 (calling for ‘direct participation [of workers] in control’ at factory level).

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Welfare State Reform and Social Rights

fate: apart from the introduction of co-determination (Mitbestimmung) in German Company Law – initially in the coal and steel industries and then in the other sectors of the economy, after 1976 – it was not adopted at any significant scale in other countries, though it continues to be referred to in various legislative reform proposals. The strength of the Welfare State, therefore, had largely to do with the support it gained from broad segments of society, and in particular, from workers and employers alike. Workers were content with their newly found security, and the promise of a constant improvement of their working and living conditions. As to the employers, they saw a robust Welfare State as guaranteeing social peace, and as stimulating the continuous growth of demand for the consumer goods they were flooding the markets with. Keynesianism, in the 1950s and 1960s, was not just one economic doctrine among others. It would hardly be an exaggeration to say that it was the shared premise behind which the programmes of all mainstream political parties competing for power adopted. It is this consensus that is now being questioned, under the pressure of globalisation, technological change that accelerates skills depletion, and demographics. Many see the ‘activation’ of social policies as the answer. ‘Activation’ refers to the fact that instead of being treated as passive recipients of support, individuals granted unemployment benefits or social assistance have certain conditions imposed upon them, allowing them, in time, to build skills and to become, or rebecome, active economic agents. Indeed, since the mid-1990s, a range of reforms have been launched, often at the initiative of social democrats, to rescue the welfare systems inherited from the 1970s, albeit at the price of significantly amending how they deliver their benefits. Human rights bodies have been relatively absent from the debate that resulted from the introduction of these reforms. References to the prohibition of forced or compulsory labour proved inadequate to answer to the subtle pressure exercised on job-seekers, who were encouraged to accept work as a condition for being helped. Reliance on the right to work has been more promising, but much of the potential of the right-to-work argument remains untapped. The ‘right to work’ in this discussion is often reduced to a freedom of the individual not to take up employment that is ‘unsuitable’ taking into account age, qualifications, and past remuneration. Yet, the right to work, properly understood, could impose on States the duty to pursue macro-economic policies that promote full employment, and to provide individual counselling and support to the unemployed; and it could lead to the duty to impose on employers the notion that they must re-examine their understanding of the ‘qualifications’ required for any particular occupation. Finally, the right to social security primarily has been used to oppose reforms that would reduce the level of entitlements already achieved, when what is most urgently needed today is not just to protect such entitlements, but to improve the nature of the entitlements provided (building the capacities of individuals rather than simply compensating for a loss of incomes), and most importantly, to encourage individuals to experiment. The next section describes the shift that is occurring under the slogan of ‘activation’. The paper then summarizes the contribution of human rights

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bodies to the discussion about the transformation of welfare. Three proposals suggest how the human rights response could be strengthened and made more relevant, while at the same time guiding the change rather than simply obstructing or delaying it. The final section offers some conclusions.

2.

CHANGING WELFARE STATES: THE NEW FACE OF SOCIAL DEMOCRACY

So strong was the consensus in favor of the Welfare State that we tended to forget that it was based on foundations that were not quite as robust as the political support it could boast. It is these foundations that are now being tested. First, the globalisation of competition, initially in the industrial sector and now increasingly in the services sector, has led to question the ability of the Welfare State to continue to fulfil its redistributive function, at least where this would lead to an increase in the cost of labour beyond the growth of labor productivity. Under the pressure of foreign competition and the competition between world regions to attract investment, the Welfare State gradually has given way to what, 10 years ago, Joachim Hirsch famously called the ‘competitive national State’,7 in which public policies chiefly aim at improving the competitiveness of enterprises based in the jurisdiction concerned, and in which even social rights come to be defined as investments in human capital. Social security, including how unemployment benefits are defined and under which conditions they are granted, appears to form no exception in this regard.8 Second, over the past 50 years, life expectancy has increased significantly. This puts a particular stress on old-age pension schemes, as the ratio between the active population and the total population is declining. In the EU, for instance, life expectancy at birth averaged 79.7 years in 2009 (for EU-27 countries), with a slight advantage to women (82.6 years) over men (76.7 years), though this gap is narrowing down. Over the period 2002–2009 alone, life expectancy increased by 1.7 years for women and 2.1 years for men. At the same time, the fertility rate has strongly declined throughout the past decades, and even taking into account the slight increase in recent years, the current fertility rate of 1.59 live births per woman in 2009 for the EU-27 remains significantly below the replacement level of 2.1.9 In other terms, without migration, the population in the EU would be in slight decline, even taking into account increased

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Joachim Hirsch, Der nationale Wettbewerbsstaat: Staat, Demokratie und Politik im globalen Kapitalismus (Edition ID-Archiv 1995). Chris Grover and John Stewart, ‘”Market workfare”: social security, social regulation and competitiveness in the 1990s’ (1999) 28 (1) Journal of Social Policy 73. Figures from Eurostat Fertility statistics accessed 1 May 2015.

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life expectancy; the population is ageing and the ratio between people in working age and people over the age of 65 is rapidly falling.10 While these developments question the ability of the Welfare State to continue to fulfi l its redistributive functions, or at least to maintain the current levels of protection it provides, other developments question the form in which the services and guarantees that characterise the Welfare State are delivered.11 Specifically, the deindustrialization of Europe – itself the result of the changing international division of labour – went hand-in-hand with the destandardisation of employment relations and the emergence of new social risks, primarily attributable to the acceleration of skills depletion, namely the fact that skills must permanently be rebuilt in order for workers to cope with the technological change. In this changing context, the provision of unemployment benefits for unlimited duration, or at least for a long period of time, simply in order to compensate for the loss of income that results from the loss of employment, increasingly was seen by social democrats as untenable and as threatening the very viability of the Welfare State they had done so much to help establish. The alternative, it would appear, was between reforming it in order to improve its resilience against this changed background, or seeing it gradually dismantled under the assault of more conservative political parties. The 1980s witnessed a wave of reforms motivated mostly by the pressure to reduce the weight of sovereign debt, although also at times by sheer hostility towards the provision of entitlements that were accused of encouraging dependency of the beneficiaries. One way to respond, the new social democrats reasoned, was to provide their own version of the reform of the Welfare State. And so they did. On 22 August 1996, President Clinton signed the Personal Responsibility and Work Opportunity Reconciliation Act (Welfare Reform Act), declaring it to provide ‘an historic opportunity to end welfare as we know it and transform our broken welfare system by promoting the fundamental values of work, responsibility, and family’. Though the legislation was strongly pushed for by a Republican-dominated Congress (the Republican Party had emerged victorious from the November 1994 mid-term elections), Clinton had in fact made welfare reform one of his 1992 campaign pledges (for he coined the terms ‘ending welfare as we know it’) and he considered the proposed legislation to constitute an acceptable compromise. The Welfare Reform Act introduced a new programme called Temporary Assistance for Needy Families (TANF), which entered into force on 1 July 1997. TANF replaced the Aid to Families with Dependent Children (AFDC) programme, which had been in

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The European Commission has noted that ‘from 2013 onwards, for the fi rst time, the size of the population of working age in Europe will shrink, whilst the proportion of older people will expand rapidly. There are now four people to support one person over the age of 65, and this ratio is set to halve by 2040’ See European Commission, Communication from the Commission, Towards Social Investment for Growth and Cohesion – Including Implementing the European Social Fund 2014–2020, COM(2013) 83 fi nal of 20.2.2013 at 4. See Anton Hemerijck, Changing Welfare States (OUP 2013) 51–85.


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place since 1935. The new programme contained strong work requirements, compelling recipients, in principle, to find a job within 24 months of receiving aid, and requiring beneficiaries to participate in work activities (30 hours per week for single parents, and 35 to 55 hours per week for two-parent families). It introduced performance bonuses to reward states for moving welfare recipients into jobs and reducing the rate of births outside wedlock. It thus combined a concern with devolution and states’ rights with conditionalities and incentives for states to move people from welfare to work. Prior to reform, states were given ‘limitless’ money by the federal government, increasing per family on welfare, under the AFDC programme. This gave states no incentive to direct welfare funds to the neediest recipients or to encourage individuals to go off welfare benefits (indeed, the state lost federal money when someone left the system). Instead, under the TANF programme, each state must meet certain criteria to ensure recipients are being encouraged to move out of welfare. This change was further supported by measures encouraging families moving from welfare to work – including increased funding for child care.12 Perhaps the single most important intellectual influence behind the Welfare Reform Act was the work of a professor at Harvard University’s Kennedy School of Government, David T. Ellwood. In 1993, Ellwood joined the US Department of Health and Human Services, where he served as co-chair of President Clinton’s Working Group on Welfare Reform, Family Support and Independence. In the late 1980s he had published a short report for the Ford Foundation and an important book on poverty in America, where some of the key ideas that were later to explain the TANF programme were already outlined.13 In Europe, a similar role was played by Anthony Giddens. A sociologist from the London School of Economics, Giddens published in 1994 Beyond Left and Right – the Future of Radical Politics on the future of social democracy, in which he advocated views that strongly influenced Tony Blair’s decision to rename the Labour Party into New Labour in 1996, one year after he took over the leadership of the party, and to put welfare reform at the centre of its programme.14 The core 12

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Th is freedom of states to experiment in the implementation of the TANF, in order to tailor their activation policies to local conditions, was generally met with approval – and it certainly suited the agenda of the Republican Party, which dominated Congress at the time. It is troubling, however, that certain studies using the lens of racial politics highlighted that, as the states were left free as to how to implement the goals of the Welfare Reform Act (to move people from welfare into work, to discourage early pregnancy, and to promote marriage), the toughest penalties and the most stringent eligibility requirements were imposed in the states with the highest proportion of African-American families on welfare. By 2001, five years after the passage of the Welfare Reform Act, 63 percent of families in the least stringent programmes were white and 11 percent were black, whereas in the most restrictive programmes 63 percent were black and just 29 percent were white (Joe Soss, Richard C. Fording and Sanford F. Schram, Neoliberal Paternalism and the Persistent Power of Race (University of Chicago Press, 2011)). David T. Ellwood, Divide and conquer: Responsible security for America’s poor (Ford Foundation Project on Social Welfare and the American Future. Occasional Paper Series, no 1, Ford Foundation 1987); David T. Ellwood, Poor support: Poverty in the American family (Basic Books 1988). Anthony Giddens, Beyond Left and Right – the Future of Radical Politics (Polity Press 1994). Giddens later contributed two further important books on this theme: Anthony Giddens, The Third Way: The

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argument of the book was that the Left had to reinvent itself. The ‘grand narratives’ of the past, such as those provided by communism, had ceased to be attractive: this disillusionment was definitively confirmed, in the 1990s, by the fall of the Berlin wall and the abandonment of the utopia of a post-capitalist society. In that context, the Left ran the risk of turning conservative: whereas the Right was putting forward bold proposals to seize the opportunities created by globalisation, their opponents were left with a purely defensive strategy – to defend a Welfare State against the pressures it was increasingly being subjected to.15 Instead, Giddens proposes a multi-pronged programme to regenerate the Left. Part of this programme was to reform the Welfare State. He advocated that ‘welfare measures aimed at countering the polarising effects of what, after all, remains a class society must be empowering rather than merely “dispensed”’.16 This is of course at the heart of what later came to be called the “activation” of welfare. It is premised on the idea, which Giddens would defend in a later book,17 that the Welfare State should protect against the new risks that are associated with globalisation and the rapid development of the information society, that both accelerate the depletion of skills. It is not by creating dependency and simply compensating individuals for income losses that the Welfare State will protect them against such risks: it is by guaranteeing lifelong learning, by encouraging mobility and risk-taking, and by investing in the growth of ‘human capital’. While ideology played its role in shaping the European version of the ‘active’ Welfare State, it was a new narrative about the causes of unemployment that exercised the strongest influence on policy-makers: whereas a sociologist may have provided the vocabulary, it is economists, labor economists in particular, who provided the tools. In a series of papers published since the mid 1980s, Richard Layard and Stephen Nickell, together with some others, argued that in order to reduce unemployment it was essential to link benefits to active labor market policies.18 Writing in 1996, just before an exhausted Tory government would cede power in Britain to the reformed

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Renewal of Social Democracy (Polity Press 1998); Anthony Giddens, The Third Way and Its Critics (Polity Press 2000). Thus, Giddens writes: ‘Conservatism become radical here confronts socialism become conservative. With the fall of the Soviet Union, many socialists have come to concentrate their energies on protecting the welfare state in the face of the strains to which it has become subject’ (Anthony Giddens, Beyond Left and Right (n 14) 2). In other terms, the Left is devoid of any radical project, that is transformative of society. In that sense at least, it has deserted the battlefield of ideas. Anthony Giddens, Beyond Left and Right (n 14) 18. Anthony Giddens, The Third Way: The Renewal of Social Democracy (n 14). Richard Layard and Stephen Nickell, ‘Unemployment in Britain’ (1986) 53(210) Economica supp ‘Unemployment’ 121; Richard Layard and Stephen Nickell, ‘The Thatcher Miracle?’ (1989) 79(2) American Economic Review 215; Richard Jackman, Richard Layard and Stephen Nickell, ‘Combatting Unemployment: Is Flexibility Enough?’ (1996) CEP Discussion Papers < http://eprints. lse.ac.uk/47446/> accessed 1 May 2015; Richard Layard and Stephen Nickell, ‘Labour Market Institutions and Economic Performance’ in O. Ashenfelter and D. Card (eds), Handbook of Labor Economics (1st edn, Elsevier19993029.


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Labour party, these authors invoked the factors that explained the low levels of unemployment (less than 2 per cent) in Sweden until the late 1980s, to conclude that what is needed is in fact a change of regime. When people enter unemployment they need to understand that there will be no possibility of indefinite life on benefits. Instead it should be made clear that, after a period of say one year, public support will be provided only through participation in a programme. But access to the programme is guaranteed. This will have the twin effect of (a) helping those who really need help and (b) driving off the public purse those who only want help in the form of cash.19

This was not a neoliberal proposal. It was, in fact, a riposte to the neoliberal alternative that was being proposed, and that had been tested on a large scale during the 1980s both in the UK and in the US. Indeed, these authors explicitly rejected the weakening of employment protection as a solution to the scourge of unemployment. They took the view that the flexibilisation of labour markets had a limited impact on reducing unemployment, in part, because whereas the removal of regulations protecting workers may encourage employers to hire, it also makes it easier for them to lay off workers in more constrained times, and the second impact generally cancels out the first. Rather, they listed the following key factors as explaining persistent high rates of long-term unemployment in the EU: generous unemployment benefits that are allowed to run indefinitely, and the absence an ‘activation’ both of the unemployed (to motivate him or her to search for work) and of the social services (to ensure that they intervene to promote his or her ‘employability’); high levels of unionisation and the decentralised collective bargaining of wages, in the absence of adequate coordination across employers; high levels of tax on labour; and a lack of qualifications in the lowest segments of the workforce. These are the ideas that the New Labour government would seek to implement after it emerged victorious from the May 1997 elections.20 The first budget presented in July 1997 by the newly elected Blair government included a range of ‘New Deal’ programmes (eight in total) to combat unemployment and social exclusion, including a programme to combat unemployment of young workers (below 25 years of age). Young workers were offered four options: training; subsidised private sector work; voluntary sector work; or work with an Environmental Taskforce. Permanent or even long-term reliance on benefits was not among the options proposed. Unemployment benefits were to be suspended beyond six months. But the ‘New Deal’ did include a commitment to truly invest in people. Significant additional spending (equivalent to 0.65 per cent of annual national income, spread over five years from 1997–98) was made available for training and subsidising employers who recruited young people who had been out of 19 20

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Jackman et al (n 18) 12. On the ideas that shaped the New Labour proposals on welfare-to-work, see A. Cebulla, The Road to Britain’s New Deal (UK/US ‘Workshop on Welfare to Work’ funded by the Economic and Social Research Council and Rockefeller Foundation, London, 10 – 11 January 2002).

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a job for six months or more (or older people unemployed for more than two years), financed by new taxation raised from business. The proposals of New Labour were not about the flexibilisation of labour markets. In some respects, they were even doing the opposite: in April 1999, the Blair governement raised the level of the minimum wage (to 3.60 £ per hour, and 3.00 £ per hour for young workers between 18 and 21 years of age), a choice which a commentator noted was ‘a clear break with part of the Thatcherite agenda’21 – indeed, it was the Conservative government, in the early 1980s, that had abolished the minimum wages that had been established at sectoral level. The following year, in April 1998, a green paper was presented on welfare reform, under the title New ambitions for our country: A new contract for welfare.22 The document is broadly in line with the prescriptions described above. The government expressed its determination ‘to build an active welfare system which helps people to help themselves and ensures a proper level of support in times of need’.23 ‘The new welfare state’, it explained, ‘should help and encourage people of working age to work where they are capable of doing so. The government’s aim is to rebuild the welfare state around work’.24 That is what the ‘Third Way’ stood for. As the green paper notes: The welfare state now faces a choice of futures. A privatised future, with the welfare state becoming a residual safety net for the poorest and most marginalised; the status quo, but with more generous benefits; or the Government’s third way – promoting opportunity instead of dependence, with a welfare state providing for the mass of the people, but in new ways to fit the modern world.25

The New Labour programme for welfare reform sought to maximise synergies between welfare to work measures, measures to reduce child poverty, and social inclusion by the reduction of inequalities. The strategy sought to take into account the intergenerational reproduction of disadvantage, seeing work as a means to reduce child poverty and strong support for child care as a means to increase the later opportunities for that child to have access to gainful employment.26 The welfareto-work component of the New Deal launched in 1998 was clearly inspired by the reforms that had taken place in the US in 1996. But there were also major differences with the US precedent.27 Perhaps most significantly for our purposes, the training and 21

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John Hills, Thatcherism, New Labour and the Welfare State, CASE Paper 13 (Centre for Analysis of Social Exclusion, London School of Economics, August 1998) 28. Green paper, New ambitions for our country: A new contract for welfare (Stationery Office, Cmd 3805, April 1998). Id., 16. Id., 23. Id., 19. For a critical discussion of the New Deal, see J. Peck and N. Theodore, “Beyond ‘Employability’” (2000) 24(6) Cambridge Journal of Economics 729. See, for an early study of the reforms introduced by the New Labour government and a comparison between the UK and the US, John Hills and Jane Waldfogel, ‘A “third way” in welfare reform? Evidence from the United Kingdom’ (2004) 23(4) Journal of Policy Analysis and Management 765.


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working requirements attached to support for unemployed people were less stringent than in the US. For instance, under the New Deal for Lone Parents (another of the eight programmes in total that implemented the New Deal), lone parents benefiting from the Income Support cash assistance programme were invited for an interview with a Personal Advisor to receive information about employment and training opportunities and about the benefits and tax credits that made ‘work pay’, at least for those working more than 16 hours per week. The incentive to move from assistance to work was there; but there were no sanctions attached to remaining on welfare, and neither the training nor taking up work were obligatory. Whereas, generally, the changes introduced in the 1998 New Deal made the continued receipt of benefits for the unemployed conditional upon the beneficiary actively seeking employment, the approach was less punitive than what had just been introduced in the US. As has been amply documented, similar trends characterised welfare reform in many OECD Member States, including in most EU countries.28 In Germany, the SPD-Greens coalition government led by Gerhard Schröder introduced reforms in 2002–2003, which Schröder saw as realising his own version of the ‘Third Way’, the ‘Neue Mitte’. The reforms were implemented through four Acts on the Provision of Modern Services on the Labour Market (Gesetze für moderne Dienstleistungen am Arbeitsmarkt). They soon came to be known, colloquially, as the ‘Hartz reforms’, after Peter Hartz, the director of personnel of Volkswagen at the time, who chaired the ‘Commission for Modern Labour Market Services’, an independent group of experts set up in 2002 in order to make proposals to improve the effectiveness of employment policies. In addition to raising the minimum age for early retirement from 60 to 63, the reforms shortened the duration of (contributory) unemployment benefits (unemployment benefit I): after February 2006, people below 55 years of age could receive such benefits for a maximum of 12 months, raised to 18 months for workers above 55 years old. The reforms also created a new unemployment benefit that is a hybrid between the (formerly separate) unemployment assistance benefiting the unemployed whose right to benefits under the contributory scheme had expired and the social aid paid to the needy (unemployment benefit II):29 the level of such 28

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See, for a review, G.J. Van den Berg, B. van der Klaauw and J.C. van Ours, ‘Punitive Sanctions and the Transition Rate from Welfare to Work’ (2004) 22(1) Journal of Labor Economics 211; J.T. Weishaupt, From the Manpower Revolution to the Activation Paradigm: Explaining Institutional Continuity and Change in an Integrating Europe (Amsterdam University Press 2011); Anton Hemerijck, “Two or Th ree Waves of Welfare State Transformation?” in N. Morel, B. Palier and J. Palme (eds), Towards a Social Investment Welfare State? Ideas, Policies and Challenges (Policy 2012) 33. Before the Hartz IV reform entered into force, the unemployed received unemployment benefits, linked to the level of previous wages, under two successive schemes, both codified in the Third Book of the German Code of Social Law (Sozialgesetzbuch Drittes Buch – SGB III). During an initial period, they received benefits thanks to a contributory scheme providing for unemployment insurance, financed through the contributions they paid during employment; once that expired, they received (a lower level of) benefits fi nanced through taxes. The period before which they were downgraded to the second scheme depended on how much they contributed during their past employment. Individuals in need who were not entitled to unemployment benefits were supported through social

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benefits was lower than that of unemployment benefits I, but slightly higher than the former social assistance benefit. This change was part of the fourth of a series of four legislative reforms (Hartz IV), adopted in December 2003 but in force since 1 January 2005. Hartz IV included a broadening of the definition of ‘acceptable’ jobs (which were now allowed to extend, for instance, to jobs that required one to move to another location), and it introduced sanctions for those who refused such job offers. Moreover, those who could not find work were then proposed ‘community jobs’, for instance in the form of jobs to improve the social infrastructure at the municipal level. One of the most contested dimensions of the Hartz IV Law was that, as one commentator put it, every kind of work is basically acceptable. A job cannot be turned down because it does not correspond to an individual’s profession or education or because the conditions are less favourable than in the last job held. Compensation below the collectively bargained wage rate or local wages does not make the job less acceptable. The offer may not, however, be a violation of the law (for example, a universally binding collective agreement) or contra bonos mores.30

Courts took the view, nevertheless, that it would not be acceptable to require the beneficiary of unemployment benefits II to accept employment against compensation situated 30 per cent below local wages. At the same time, commentators noted that the sanctions provided for in the Hartz IV Law (a reduction of benefits or a suspension of benefits for those who refused suitable employment) are rarely applied, as the social services are reluctant to impose such sanctions on their ‘clients’.31 Moreover, the duties imposed on the recipients of unemployment benefits II should be read in connection with the kind of support they receive from the Federal Labour Office (Bundesagentur für Arbeit): part of the Hartz reforms consisted in restructuring the Office in order to improve the quality of the services it provides to job-seekers, in particular by decentralising the guidance provided to job-seekers, by intensifying individualised counselling and by making greater use of private employment services.32 In classic New Public Management style, local employment agencies were made accountable for results, though they were at the same time expected to experiment with different tools to provide the best counselling to job-seekers;33 and, they were encouraged to

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assistance, under the Federal Social Assistance Act. Those minimum entitlements, financed through taxes paid by the general population, were not based on the level of previous wages. The Hartz IV reform merged the unemployment benefits financed through taxes and social assistance. Wolfgang Ochel, ‘Hartz IV-Welfare to Work in Germany’ CESifo DICE Report 2/2005 18, 21. See R.A. Wilke, ‘Eine empirische Analyse von Sanktionen für Arbeitslose in Westdeutschland während der 1980er und 1990er Jahre’ (2003) ZEW Discussion Paper No 03–71; M. Gerhardt, ‘Hartz IV: Nur mit ökonomischer Rationalität zum Erfolg’ (2004) 9 Wirtschaft sdienst 582. Th is was the philosophy underlying the Third law for modern services on the labour market (Hartz III) on the restructuring of the Federal Labour Office, which entered into force on 1 January 2004. As explained by the German government in a submission to the Committee on Economic, Social and Cultural Rights: ‘Since greater scope has been granted to the local employment agencies in


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conclude a binding integration agreement (Eingliederungsvereinbarung) with the individual beneficiary stipulating the respective duties of each party.34 What the New Labour achieved with Blair in the UK and what the German SPD achieved in Germany under Schröder, was largely a product of the Right in France. There, the Revenu minimum d’insertion (RMI), instituted originally in 1988 as a means to protect people from social exclusion, was supplemented in 2003 by the Revenu minimum d’activité (RMA), which in fact constitutes a form of subsidised employment. The beneficiary is expected to work a minimum of 20 hours per week, payed at minimum-wage level, in order to ensure social integration through employment. This prepared the way for the introduction, in 2009, under the presidency of Nicolas Sarkozy, of the Revenu de solidarité active (RSA), a replacement of the RMI but also of the previous assistance granted to lone parents.35 The RSA is meant to encourage beneficiaries to move from welfare to work. In order to avoid the ‘welfare trap’, in which people who could find work refrain from taking up employment because they would make less money from being employed part-time at minimum wage level than from the existing welfare benefits they receive, the beneficiaries may continue to receive a portion of the RSA upon returning into employment. Allocation of the RSA includes requirements to actively seek employment.36 The RSA will be suspended if the beneficiary refuses two successive ‘reasonable’ employment offers, unless the beneficiary faces personal obstacles making it impossible to take up employment. At the same time, the administration has a duty to support the beneficiary in his or her search.37 The relationship between the beneficiary of the RSA and the administration is stipulated in a ‘freely negotiated agreement’ (contrat librement débattu), clarifying

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the course of the conversion of the Federal Agency, and they have also been able to take on greater responsibility of their own, it is possible to react more flexibly to regional particularities on the labour market’ (Replies by the Government of Germany to the list of issues (E/C.12/DEU/Q/5) to be taken up in connection with the consideration of the fi ft h periodic report of Germany (E/C.12/ DEU/5) (UN Doc E/C.12/DEU/Q/5/Add1, 15 April 2011) para 51). Initial assessments showed these reforms to be rather successful, with the exception of the outsourcing of employment services. See Lena Jacobi and Jochen Kluve, ‘Before and After the Hartz Reforms: The Performance of Active Labour Market Policy in Germany’ (April 2006) IZA Discussion Paper No. 2100. According to this study, the most successful measures were those associated with wage subsidies (to ‘make work pay’) and start-up subsidies. Perhaps surprisingly, the training of jobseekers was not considered to have had significant positive impacts. Loi no 2008–1249 du 1er décembre 2008 généralisant le revenu de solidarité active et réformant les politiques d’insertion. See Art L. 262–28 inserted into the code de l’action sociale et des familles by Art. 3 of the Law n° 2008–1249 of 1 December 2008 (n 31), imposing on the beneficiary of the ‘revenu de solidarité active’, whose incomes are below a certain threshold the following: to search for employment, to seek to create his/her own business, or generally to take measures to improve his or her social or professional integration (‘de rechercher un emploi, d’entreprendre les démarches nécessaires à la création de sa propre activité ou d’entreprendre les actions nécessaires à une meilleure insertion sociale ou professionnelle’). See Art L. 262–27 inserted into the code de l’action sociale et des familles by Art. 3 of the Law n° 2008–1249 of 1 December 2008 (n 35): ‘Le bénéficiaire du revenu de solidarité active a droit à un accompagnement social et professionnel adapté à ses besoins…’

Intersentia


the obligations of both parties. This agreement should define the ‘positive and repeated actions in search of employment that the beneficiary commits to take’, as well as the nature and characteristics of the employment sought, ‘taking into account the training of the beneficiary, his/her qualifications, his/her knowledge and competence acquired throughout his/her professional life, his/her personal and family situation as well as the situation of the local employment market [and the] geographical zone considered and level of wages expected’.38 The agreement also includes the actions that the administration shall take, ‘in particular in the form of personalised support and, where relevant, of training and aid to mobility’.39 In Belgium, it was in 2002, under a government dominated by center-right Liberals, but including the Socialists and the Greens, that the social aid provided since 1974 in the form of a ‘minimum des moyens d’existence’ would be replaced by a ‘social integration income’ (revenu d’intégration sociale). The social integration income takes the form either of paid employment, or of an allocation (revenu d’intégration).40 Social integration may be facilitated by the conclusion of an agreement between the beneficiary and the local ‘public social action centre’.41 The agreement (the ‘individualized project of social integration’) should list the commitments of each of the parties (the individual beneficiary and the public social action centre) towards the other. A failure by the beneficiary to comply with such commitments may lead to the temporary suspension of the benefit of the integration income for a period of one month, or three months when there is a repeated failure to comply. In addition, one condition for being granted an ‘integration income’ is that the beneficiary be ‘willing to work, unless health or equity reasons prohibit [him or her] from doing do’.42 An official commentary to the 2002 legislation guiding the public social action centres explains this as follows: Persons able to work should be willing to work. This means that both the [public social action centre] and the beneficiaries actively search for employment, but also that the person concerned respond to any offer of employment corresponding to his or her physical and intellectual abilities. This reflects the will of the legislator to responsibilize the public 38

39 40

41

42

See Art L. 262–35 inserted into the code de l’action sociale et des familles by Art. 3 of the Law n° 2008–1249 of 1 December 2008 (n 35). Id. Loi du 26 mai 2002 concernant le droit à l’intégration sociale; complemented by an Arrêté Royal du 11 juillet 2002 portant règlement général en matière de droit à l’intégration sociale. For an excellent discussion of the situation in Belgium, see Daniel Dumont, La responsabilisation des personnes sans emploi en question (La Charte 2012). See also Steve Gilson and Michaël Glorieux, ‘Le droit à l’intégration sociale comme première figure emblématique de l’Etat social actif. Quelques commentaires de la loi du 26 mai 2002’ in Pascale Vielle, Philippe Pochet and Isabelle Cassiers (eds), L’Etat social actif. Vers un changement de paradigme? (P.I.E. Peter Lang 2005) 233. In a terminological shift that is a metaphor for the new philosophy behind the legislative change, the former “centres public d’aide sociale” were renamed “centres publics d’action sociale” to emphasize the active role that such bodies should play in ensuring social integration. Th is is stipulated in article 3, 5° of the Law of 26 May 2002.


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social action centre as well as the beneficiaries of social integration in an active vision of the willingness to work.43

Many more examples could be given of this transformation, variously referred to as a shift from ‘welfare’ to ‘workfare’ or as an ‘activation’ of social policies. The combination of flexibility and security (referred to as ‘flexicurity’) is typical of the European versions of activation policies. In this model, a strong protection of workers is combined with a strong requirement of being ‘adaptable’ in order to meet the demands of the employment market by permanent improvement of skills and active efforts to increase workers’’ ‘employability’.44 This approach is summarised as follows in the European Union’s employment guidelines, that the EU Member States are expected to take into account in the formulation of their employment policies, as part of their National Reform Programmes: Activation is key to increasing labour market participation. Member States should integrate the flexicurity principles endorsed by the European Council into their labour market policies and apply them, making appropriate use of European Social Fund and other EU funds support, with a view to increasing labour market participation and combating segmentation, inactivity and gender inequality, whilst reducing structural unemployment. Measures to enhance flexibility and security should be both balanced and mutually reinforcing. Member States should therefore introduce a combination of flexible and reliable contractual arrangements, active labour market policies, effective lifelong learning, policies to promote labour mobility, and adequate social security systems to secure labour market transitions accompanied by clear rights and responsibilities for the unemployed to actively seek work. Together with the social partners, adequate attention should also be paid to internal flexicurity at the work place.45

What we have seen during the past decade and a half, then, were three closely interrelated developments. First, social assistance and unemployment assistance were gradually merged, as the former was made increasingly conditional upon the beneficiary actively seeking work and as the levels and (especially) the duration of unemployment benefits were drastically lowered. Second, the support provided to jobseekers, in the form of individual counselling by public employment agencies (a role sometimes outsourced to private employment agencies chosen on a competitive basis,

43

44

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The commentary is available (in French) at accessed 30 July 2014. See especially, in addition to Anton Hemerijck’s (n 11), Paul Teague, Economic Citizenship in the European Union: Employment Relations inthe New Europe (Routledge 1999) and Diamond Ashiagbor, The European Employment Strategy: Labour Market Regulation and New Governance (OUP 2005). Council Decision 2010/707/EU (21 October 2010) on guidelines for the employment policies of the Member States, OJ L 308, 24.11.2010, 46 (the excerpt is from Guideline 7: Increasing labour market participation of women and men, reducing structural unemployment and promoting job quality).

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as in the Hartz III legislation in Germany46), as well as the duties of the job-seeker to actively search employment, as a condition for the continued receipt of benefits, were both contractualized. Third, a duty to accept ‘suitable’ employment was imposed on those without employment, with a generally broadened definition of what is suitable employment, based on the idea that the job-seeker should be ‘flexible’ and encouraged to adapt to the exigencies of the employment market. The next section examines the human rights response to these changes, and whether such a response has been appropriate. This paper argues that it is time for human rights doctrine to leave its currently dominant defensive posture, in order to provide a framework that is at the same time more robust, and better suited to accompany the transformation that is taking place in the organisation of welfare. The welfare reforms briefly discussed above, it is important to emphasise, span a wide range of legislative changes. These changes have much in common; but the differences among them matter just as much.47 At one end, some initiatives promoting ‘workfare’ seem to set the clock back to the 1834 Poor Law Amendment Act, when the British decided to restrict social assistance to those who were unable to work, forcing the others into employment or, when they could find none, putting them at work in public workhouses. The 1834 legislative reform in Britain put an end to the experiment launched with the introduction in 1795 in a number of English parishes of a support scheme for the poor, indexed on the price of bread and on the number of children in poor families benefiting from the system. As is well known, the said system, referred to as the Speenhamland – thus named after the Berkshire village where magistrates devised the scheme to ensure access to food for the hungry – was accused by Thomas Malthus and others of encouraging idleness and large families, as it shielded the poor from the impacts of market mechanisms, protecting at least their basic subsistence rights.48 The Report of the Poor Law Commissioners of 1834, in the drafting of which 46

47

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The European Court of Justice found that public employment agencies could abuse their dominant position when conferred a monopoly in the provision of placement services. See Case C-41/90, Höfner and Elser v. Macrotron [1991] ECR I-1979; and Case C-55/96, Job Centre Coop ARL [1997] ECR I-7119. The Court arrived at this conclusion where the public employment agency was unable to meet the actual demand for placement services. See for example the comparison by S. Morel between the ‘punitive’ approach adopted in the United States, and the more inclusive approach pursued in France: Sylvie Morel, Les logiques de la réciprocité. Les transformations de la relation d’assistance aux États-Unis et en France (Presses universitaires de France 2000). Other comparisons also bring to light the diversity of activation models that have been pursued in different jurisdictions: see eg Pascual A. Serrano and Lars Magnusson (eds), Reshaping Welfare States and Activation Regimes in Europe (P.I.E.-Peter Lang 2007); W. Eichhorst, O. Kaufmann and R. Konle-Seidl (eds), Bringing the Jobless into Work? Experiences with Activation Schemes in Europe and the U.S. (Springer 2008). The episode was made famous, of course, by Karl Polanyi’s discussion of it in The Great Transformation. The Political and Economic Origins of Our Time (first published 1944, Beacon Press 2001). See also, putting the experiment in perspective, Fred Block and Margaret Somers, ‘In the Shadow of Speenhamland: Social Policy and the Old Poor Law’ (2003) 31(2) Politics and Society 283 (relating the Speenhamland policies to the debates surrounding the Personal Responsibility and Work Opportunities Reconciliation Act passed by the U.S. Congress in 1996, and questioning


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Edwin Chadwick and the economist Nassau Senior played a major role, took the view that poor laws modelled implementing the Speenhamland idea were bound to fail because, they alleged, they ‘attempt to repeal pro tanto that law of nature by which the effects of each man’s improvidence or misconduct are borne by himself and his family’.49 While this may sound like too naïvely utilitarian an approach, it would be wrong to think that the views thus expressed about the impacts of overly generous social assistance schemes have completely disappeared. A century and a half of social sciences research on the various determinants of human behavior and on the structural causes of pauperism notwithstanding, it is still this view that is defended, for instance, by some German ordoliberals fearing the ‘distortions’ to individual conduct brought about by the welfare state, accused of spreading ‘the lack of a personal sense of responsibility’ as it is ‘the general public that bears the consequences of individual errors’.50 Restoring a sense of personal responsibility is certainly among the objectives pursued by recent welfare reforms. But that is, of course, only a small part of a far more complex story. At another end of the spectrum of reforms inspired by the idea of ‘activation’, and aiming to shift beneficiaries from welfare to work, we find an intention to support individuals’ ability to succeed in the employment market by improving their skills: ‘employability’ as a substitute to welfare dependency. Here, it is the State’s social services that are being activated, not the individual alone; the contract is mutual, and so are the commitments; and the chances for effective social integration, significantly improved. Can human rights help re-direct the current reforms, in order to accompany this reorientation? Is there a progressive, human rights-consistent model of activation?

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the dominant narrative about the Speenhamland experiment, arguing that the Speenhamland magistrates in fact were seeking to shift responsibility away from failed macroeconomic policies on to the parishes, welfare becoming a means to compensate for economic failures); Gareth Dale, Karl Polanyi. The Limits of the Market (Polity Press 2010) 52–58; or Jacques Rodriguez, ‘De la charité publique à la mise au travail? Autour du Speenhamland Act’ in Robert Castel & Nicolas Duvoux (eds), L’avenir de la solidarité (Presses universitaires de France 2013) 83. Quoted by P.S. Atiyah, The Rise and Fall of Freedom of Contract (Clarendon Press 1979) 239. Walter Hamm, ‘The Welfare State at its Limit’ in Alan Peacock and Hans Willgerodt (eds), Germany’s Social Market Economy: Origins and Evolution (Macmillan 1989). Originally published in German in Ordo (1981) 32, 183. Ordoliberalism is the school of thought associated with German scholars like Walter Eucken and Franz Böhm who proposed to rebuild the doctrine of liberalism after the Second World War, in order to avoid both the risk of the State seeking to control the economy and direct it to buy political loyalty, and the opposite risk of powerful private actors abusing their dominant position. For a classic exposition see David J. Gerber, ‘Constitutionalizing the Economy: German Neo-Liberalism, Competition Law and the ‘New’ Europe’ (1994) 42 American Journal of Comparative law 25 (also presented in modified form as ch VII of D. J. Gerber, Law and Competition in Twentieth Century Europe. Protecting Prometheus (OUP 2001). Ordoliberalism, thus, was about ensuring that the State would act neutrally, as a referee enforcing the rules of the market, but it was also about conceiving welfare that would not result in political patronage and would not distort the normal functioning of the market. See also (n 104).

Intersentia


3.

THE ACTIVATION OF SOCIAL BENEFITS: THE RESPONSE OF HUMAN RIGHTS BODIES

The answers provided by human rights bodies to the developments described above have not been particularly helpful. These answered have been based on essentially three key norms. Each of these norms imposes a limit to which reforms can be introduced in welfare schemes in the name of ‘activation’.

3.1.

THE PROHIBITION OF FORCED OR COMPULSORY LABOUR

A first limit follows from the prohibition on forced or compulsory labour. The notion of forced or compulsory labour is interpreted rather restrictively, however. It would not seem to include situations where a person is pressured to take up employment under the threat of being denied access to certain social benefits. That, at least, is the conclusion that human rights bodies have reached on the few occasions when they were given the opportunity to address the issue.51 Article 4 of the European Convention on Human Rights includes a prohibition of forced or compulsory labour. In an early application alleging a violation of this provision, a builder was complaining that his unemployment benefits had been suspended for 26 weeks due to his refusal of a job offer made to him. He argued that the job proposed, with the municipal plantation services, was not suitable since similar jobs were usually meant for people with disabilities, and, he submitted, it would have been a source of ‘social discredit’, amounting to a violation of a number of provisions of the European Convention on Human Rights.52 The European Commission of Human Rights rejected these allegations. It reasoned that nobody was forced, by penalty, to accept a job offer made by competent public authorities. Rather, acceptance of such an offer was simply a condition of receipt of unemployment benefits, a refusal being sanctioned only by temporary loss of those benefits. The position of the European Commission of Human Rights in X v. The Netherlands, which it reiterated in later cases,53 was based on a purely formalistic distinction between (i) the imposition of a penalty for refusing a particular job offer, and (ii) the denial of an advantage, in the form of unemployment benefits, resulting from the same refusal. As such, the reasoning is unconvincing. It fails to recognise that the need to 51

52

53

On this case-law see, inter alia, Ben Saul, David Kinley and Jacqueline Mombray, The International Covenant on Economic, Social and Cultural Rights. Commentary, Cases, and Materials (OUP 2014) 342–343. X. v. The Netherlands (App no 7602/76) (1976) 7 DR 161 (decision on the admissibility of 13 December 1976). In addition to Article 4 ECHR (prohibition of forced or compulsory labour), the applicant alleged a violation of Article 3 ECHR (inhuman or degrading treatment or punishment) and of Article 8 ECHR (right to respect for private life). Talmon v. The Netherlands (App no 30300/96) decision on the admissibility of 26 December 1997 (concerning an applicant who considered that the only suitable employment in his case would be that of an independent scientific expert or a social critic).


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have access to at least a minimum level of protection against destitution may exercise on the individual a pressure equivalent to the direct threat of penalties in the form, for instance, of fees.54 Yet, this was the approach followed – more than thirty years later, and this time by the European Court of Human Rights – in the case of Schuitemaker v. The Netherlands. There, the applicant complained that she was threatened with the suspension of the unemployment benefits she was receiving unless she would be willing to take up ‘generally accepted’ employment (algemeen geaccepteerde arbeid). In the past, Dutch legislation concerning unemployment benefits or social assistance (the Social Assistance Scheme for the Unemployed (Rijksgroepregeling werkloze werknemers) or the General Welfare Act (Algemene Bijstandswet), respectively) stipulated that an unemployed person was eligible for benefits provided he or she attempted to obtain and was willing to accept employment ‘deemed suitable’ (passende arbeid) for him or her. In contrast, the Work and Social Assistance Act (Wet Werk en Bijstand) which entered into force on 1 January 2004, replacing these other schemes, adopted a much looser definition of which type of employment a person had to accept if he or she wanted to maintain his or her right to benefits. Following the reform, it now also included employment with which the beneficiary has no affinity, excluding only employment which is not generally socially accepted (algemeen maatschappelijk aanvaard) or against which the person concerned has a conscientious objection. The European Court of Human Rights refused to consider that the threshold of ‘forced or compulsory labour’, as prohibited under Article 4 §2 of the European Convention on Human Rights, was reached. In the view of the Court: […] it must in general be accepted that where a State has introduced a system of social security, it is fully entitled to lay down conditions which have to be met for a person to be eligible for benefits pursuant to that system. In particular a condition to the effect that a person must make demonstrable efforts in order to obtain and take up generally accepted employment cannot be considered unreasonable in this respect. This is the more so given that Dutch legislation provides that recipients of benefits pursuant to the Work and Social Assistance Act are not required to seek and take up employment which is not generally socially accepted or in respect of which they have conscientious objections.55

Despite the general wording it uses in the first sentence of this quote, the Court is not suggesting that States who decide to provide certain social benefits may impose any conditions on those seeking to have access to such advantages. It would not be imaginable, for instance, to impose on the intended beneficiaries that they renounce their religious beliefs, or that they pledge to follow a diet that would keep them healthy and productive. Indeed, such conditions, because they would impose disproportionate restrictions on freedom of religion or on the right to respect for private life, would be 54

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For a classic exposition of this view, see Robert L. Hale, ‘Coercion and Distribution in a Supposedly Non-Coercive State’ (1923) 38 Political Science Quarterly 470. Schuitemaker v. The Netherlands (App no 15906/08) (4 May 2010) (inadmissibility).

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unacceptable, even where it could be proven that they are reasonably related to the objective of ensuring that benefits will only be granted to individuals who are truly committed to being socially integrated through work. And the fact that the State could deny benefits altogether and choose only to provide a social protection floor at a much lower level does not provide a justification for the imposition of such constraints.56 The European Court of Human Rights does accept, however, that States providing certain social security benefits may link such benefits to compliance with some conditions provided these are deemed ‘reasonable’. The Human Rights Committee has taken a similar view. In the case of Faure v. Australia, the communication alleged a violation of the prohibition of forced or compulsory labour under Article 8 of the International Covenant on Civil and Political Rights.57 Bernadette Faure, who had been unemployed since she left high school in 1996 at the age of 16, had failed to comply with conditions imposed by the Social Security Legislation Amendment (Work for the Dole) Act 1997. As a result, her unemployment benefits had been suspended for a period of a few months.58 The Work for the Dole Act, under the terms of the statute, aimed to ‘reinforce the principle of mutual obligations’ applying to unemployment benefits by stating that ‘it is fair and reasonable that persons in receipt of such payments participate in approved programmes of work in return for such payments and to set out the means by which they may be enabled, or required, to undertake such work’. The Act made receipt of unemployment benefits conditional upon the person ‘actively seeking and willing to undertake suitable paid work and [attending] such programmes […] and training that may be directed’.59 After receiving unemployment 56

57

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59

In addition, it is arguable that there are at least minimum levels of protection from extreme deprivation that States parties to the European Convention on Human Rights must provide unconditionally, because not doing so would amount to inhuman or degrading treatment. In the case of Larioshina v. Russia, where the applicant was complaining that the level of the old age pension she was receiving did not allow her to achieve a decent standard of living, the Court acknowledged that ‘a complaint about a wholly insufficient amount of pension and the other social benefits may, in principle, raise an issue under Article 3 of the Convention which prohibits inhuman or degrading treatment’; it found no indication, however, in the case it was presented with, ‘that the amount of the applicant’s pension and the additional social benefits has caused such damage to her physical or mental health capable of attaining the minimum level of severity falling within the ambit of Article 3 of the Convention’ (see Larishina v. Russia (App no 56869/00) (23 April 2002) (inadmissibility)). The Court more recently confi rmed its willingness to examine whether ‘the level of pension and social benefits available’ to an individual are sufficient to protect that person ‘from damage to… physical or mental health or from a situation of degradation incompatible with human dignity’ (Antonina Dmitriyevna Budina v. Russia (App no 45603/05) (18 June 2009) (inadmissible)). International Covenant on Civil and Political Rights, UNGA. Res 2200A (16 December 1966) UN Doc A/RES/21/2200A, art 1. Bernadette Faure v. Australia, Communication no 1036/2001 (2005) UN Doc CCPR/ C/85/D/1036/2001. Th is activity test or participation requirement ‘may include: a specified number of job searches; accepting all suitable work offers; attending all job interviews; attending interviews with Centrelink and a person’s Job Services Australia (JSA) provider; attending training courses; never leaving a job, training course or programme without a valid reason; and entering into and complying with the terms of an Employment Pathway Plan’: Department of Families, Housing, Community


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benefits for a period of six months, the person is required to commence a programme or activity aimed at increasing his or her employment prospects. A failure to do so leads the person to be referred to the Work for Dole programme. The said programme imposes on the individual that he or she performs an activity for, at most, 12 hours per week (for persons under 21 years of age) or 15 hours per week (for persons of 21 years or older), and provided, in particular, ‘the person possesses the skills and experience to perform the required tasks’ and ‘the tasks of the employment placement in question are medically appropriate and do not otherwise pose occupational health and safety’. Participation in the programme results in a minor increase of the unemployment benefits, to cover the supplementary costs of participating in the programme. In addition, the Work for the Dole Act provides for the possibility of an agreement being concluded between the unemployed person and the administration, aimed at improving employment prospects through individual counselling and supervision. In defence of willingness-to-work conditions imposed on social security payments, Australia argued that participation in the Work for Dole programme allowed long-term unemployed persons to ‘enhance their skills, employability and thus future self-sufficiency’. It emphasised the contractual nature of support provided to the unemployed: ‘Unemployment benefits in Australia are not dependent on prior contributions, nor are they time-bound. Nobody is forced to accept them, but if an individual does choose to do so, compliance with participation in a Work for Dole programme is a reasonable condition’.60 Moreover, Australia noted, the work projects on which people may be placed ‘provide real tangible benefits to communities in the form of community facilities, infrastructure, care and assistance. The programme is specially designed to improve the skills, employability, self-esteem and experience of young unemployed people’.61 The Committee agreed with the Australian government that the Work for Dole programme did not result in the imposition of forced or compulsory labour. It did so, however, on the rather narrow ground that Article 8, paragraph 3(c)(iv), of the Covenant exempts from the term ‘forced or compulsory labour’ such work or service forming part of ‘normal civil obligations’. It took the view that, ‘to so qualify as a normal civil obligation, the labour in question must, at a minimum, not be an exceptional measure; it must not possess a punitive purpose or effect; and it must be provided for by law in order to serve a legitimate purpose under the Covenant’.62 Considering in particular ‘the absence of a degrading or dehumanizing aspect of the specific labour performed’, the Committee concluded

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Services and Indigenous Affairs (Australia), Guide to Social Security Law (2012) accessed 1 May 2014 [3.2.8.20], [3.2.9.10] (as summarized on the website of the Australia Law Reform Commission, in the chapter relating to Social Security accessed 30 July 2014, fn 223. Bernadette Faure v. Australia (n 58) para 4.12. Ibid, para 4.15. Ibid, para 7.5.

Intersentia


that the labour demanded from Ms Faure as a condition for the continued receipt of unemployment benefits were not in violation of article 8 of the Covenant.

3.2.

THE RIGHT TO WORK

Considering the meaning generally attached to forced or compulsory labour in international human rights law, it perhaps should have been obvious from the start that such notions would not easily extend to requirements generally imposed as a condition for the continued enjoyment of certain social benefits under ‘workfare’ programmes as they have developed in recent years.63 Another requirement should be taken into account, however, that derives from the right to work, as recognised by instruments such as Article 6 of the International Covenant on Economic, Social and Cultural Rights64 or Article 1 of the European Social Charter. Generally, international human rights instruments do not include a ‘duty to work’, as an obligation of the individual towards society.65 However, nor do they explicitly reject the possibility that unemployment benefits or social assistance be made conditional upon compliance with certain requirements, including proof of a willingness to work or participation in work programmes. This emerges clearly from the standards that have been developed by the ILO on this issue. In 1988, the International Labour Conference agreed on the adoption of ILO Convention (No. 168) Concerning Employment Promotion and Protection against Unemployment.66 This instrument aimed to strike a balance between the need to protect the unemployed by 63

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66

See the individual opinion of Ms Ruth Wedgwood, member of the Human Rights Committee, attached to the Faure v. Australia decision: ‘In a world that is still replete with problems of caste, customary systems of peonage and indentured labor, forced labor in remote areas under conditions that often mimic slavery, and the disgrace of sexual trafficking in persons, it demeans the significance of the International Covenant on Civil and Political Rights to suppose that a reasonable work and training requirement for participation in national unemployment benefits in a modern welfare state could amount to ‘forced or compulsory labor’ within the meaning of Article 8(3)(a)’. She also quotes Manfred Nowak, who concluded that ‘The mere lapse of unemployment assistance when a person refuses to accept work not corresponding to his or her qualifications does not … represent a violation [of Article 8]; in this case, neither the intensity of the involuntariness nor that of the sanction reaches the degree required for forced or compulsory labour’ (Manfred Nowak, CCPR Commentary (2nd ed, N.P. Engel 2005) 202). International Covenant on Economic, Social and Cultural Rights, UNGA Res 2200A (16 December 1966) UN Doc A/RES/21/2200A, art 1. The exceptions are the 1948 American Declaration on the Rights and Duties of Man, which mentions the ‘duty of every person to work, as far as his capacity and possibilities permit in order to obtain the means of livelihood of to benefit his community’ (Article XXXVIII), and the 1981 African Charter on Human and People’s Rights, which refers to the duty of each individual ‘to serve his national community by placing his physical and intellectual abilities at its service’ and to ‘work to the best of his abilities and competence’ (Article 29). Proposals to include a reference to the duty to work in the International Covenant on Economic, Social and Cultural Rights were considered, but defeated: see for reference Matthew Craven, The International Covenant on Economic, Social and Cultural Rights. A Perspective on Its Development (Clarendon Press 1998) 199. 1654 UNTS 67.


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guaranteeing the provision of an adequate level of benefits on the one hand, and the need, on the other hand, to promote access to employment by ‘actively’ encouraging the employability of those unable to find work.67 Various provisions of the convention illustrate the fact that the activation of unemployment benefits is seen as a legitimate tool to promote full employment and improve access to employment, in particular, to those who are least favored on the employment market. In particular, Article 20 acknowledges that ‘The benefit to which a protected person would have been entitled in the cases of full or partial unemployment or suspension of earnings due to a temporary suspension of work without any break in the employment relationship may be refused, withdrawn, suspended or reduced to the extent prescribed’, in particular, ‘(f) when the person concerned has failed without just cause to use the facilities available for placement, vocational guidance, training, retraining or redeployment in suitable work; […]’. Article 21 deserves to be quoted in full: 1.

2.

The benefit to which a protected person would have been entitled in the case of full unemployment may be refused, withdrawn, suspended or reduced, to the extent prescribed, when the person concerned refuses to accept suitable employment. In assessing the suitability of employment, account shall be taken, in particular, under prescribed conditions and to an appropriate extent, of the age of unemployed persons, their length of service in their former occupation, their acquired experience, the length of their period of unemployment, the labour market situation, the impact of the employment in question on their personal and family situation and whether the employment is vacant as a direct result of a stoppage of work due to an on-going labour dispute.

ILO Convention (No. 168) entered into force on 17 October 1991. Though it has attracted only a small number of ratifications,68 it does express a certain consensus across governments and social partners that the purely ‘passive’ allocation of 67

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Th is is reflected in the Preamble, in which the International Labour Conference ‘Recognis[es] that policies leading to stable, sustained, non-inflationary economic growth and a flexible response to change, as well as to creation and promotion of all forms of productive and freely chosen employment including small undertakings, co-operatives, self-employment and local initiatives for employment, even through the re-distribution of resources currently devoted to the financing of purely assistance-oriented activities towards activities which promote employment especially vocational guidance, training and rehabilitation, offer the best protection against the adverse effects of involuntary unemployment, but that involuntary unemployment nevertheless exists and that it is therefore important to ensure that social security systems should provide employment assistance and economic support to those who are involuntarily unemployed’ (Preamble, 7th Recital). The search for a balance between the protection of those who are unemployed and their ‘activation’ is also reflected in how this instrument defi nes the level at which unemployment benefits should be set: ‘In cases of full unemployment’, the convention states, ‘benefits shall be provided in the form of periodical payments calculated in such a way as to provide the beneficiary with partial and transitional wage replacement and, at the same time, to avoid creating disincentives either to work or to employment creation’ (Art 14). On 1 May 2015, only 8 States had ratified the convention: these are Albania, Belgium, Brazil, Finland, Norway, Romania, Sweden and Switzerland. See the status of ratifications on NORMLEX,

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unemployment benefits may not be an appropriate solution, if the end goal is to ensure that the beneficiaries have access to gainful employment. It would be incorrect to dismiss this simply as a concession the workers’ group were forced to make, exhausted after a decade of neoliberal policies implemented in most world regions. In fact, the first significant instrument adopted within the ILO on the protection against unemployment, ILO Unemployment Provision Convention (No. 44) of 1934,69 already made it clear that the right to receive unemployment benefits could be made subject to compliance by the claimant with the condition, inter alia, that ‘he is capable of and available for work’,70 or that he attend ‘a course of vocational or other instruction’.71 Article 10 par. 1 is particularly relevant. It provides that: A claimant may be disqualified for the receipt of benefit or of an allowance for an appropriate period if he refuses an offer of suitable employment. Employment shall not be deemed to be suitable: (a) if acceptance of it would involve residence in a district in which suitable accommodation is not available; (b) if the rate of wages offered is lower, or the other conditions of employment are less favourable: (i) where the employment offered is employment in the claimant’s usual occupation and in the district where he was last ordinarily employed, than those which he might reasonably have expected to obtain, having regard to those which he habitually obtained in his usual occupation in that district or would have obtained if he had continued to be so employed; (ii) in all other cases, than the standard generally observed at the time in the occupation and district in which the employment is offered; (c) if the situation offered is vacant in consequence of a stoppage of work due to a trade dispute; (d) if for any other reason, having regard to all the considerations involved including the personal circumstances of the claimant, its refusal by the claimant is not unreasonable.

The Unemployment Provision Convention also acknowledges that a claimant may be disqualified from receiving an unemployment benefit, inter alia, ‘if he fails to comply with the instructions of a public employment exchange or other competent authority with regard to applying for employment’, or if ‘it is proved by the competent authority that he has failed or neglected to avail himself of a reasonable opportunity of suitable employment’.72 The ILO standards that have been recalled therefore confirm the view that certain conditions may be imposed on the receipt of unemployment benefits. At the same

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accessed on 1 May 2015. ILO Convention (No 44) Ensuring Benefit or Allowances to the Involuntarily Unemployed, adopted on 23 June 1934 at the 18th International Labour Conference, entered into force on 10 June 1938. Art.4(a). Art 8. Art.10, para 2.


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time, these instruments set clear limits to the type of work that may be imposed as part of an ‘active’ employment policy, as indicated by the reference to employment that is ‘suitable’ in Article 21 ILO Convention (No. 168) Concerning Employment Promotion and Protection against Unemployment. In general international human rights law, the same conclusion would appear to follow from the definition of the right to work itself, which human rights bodies have developed by providing a definition of what counts as ‘work’ for the purpose of assessing whether that right was being realised. For instance, the Committee on Economic, Social and Cultural Rights emphasized that: Work as specified in article 6 of the Covenant must be decent work. This is work that respects the fundamental rights of the human person as well as the rights of workers in terms of conditions of work safety and remuneration. It also provides an income allowing workers to support themselves and their families as highlighted in article 7 of the Covenant. These fundamental rights also include respect for the physical and mental integrity of the worker in the exercise of his/her employment.73

Work, in order to contribute to the ‘full development of the human personality’, the ideal stated by the Universal Declaration of Human Rights,74 should be meaningful. As Roosevelt expressed it when he proposed a ‘second Bill of Rights’, there should be a ‘right to a useful and remunerative job in the industries or shops or farms or mines of the Nation’, and a ‘right to earn enough to provide adequate food and clothing and recreation’.75 The right to work is therefore not satisfied simply by providing employment to each individual, regardless of the nature of the employment in question, of the level of remuneration provided and of adequacy of the fit between the individual’s abilities and the employment offered. In other terms, it is not only ‘forced’ or ‘compulsory’ labour that is prohibited, it is also making the allocation of social benefits conditional upon acceptance of certain types of work, that are not suited to the individual abilities of the person concerned or are devoid of any useful purpose, including in ensuring social integration by improving the ‘employability’’ of the person.76 The ultimate 73

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UN Committee on Economic, Social and Cultural Rights, ‘General Comment No. 18: The right to work’ (6 February 2006) UN Doc E/C.12/GC/18, para 7. See articles 22, 26 and 29 of the Universal Declaration of Human Rights (referring to recognition to each individual of ‘the economic, social and cultural rights indispensable for his dignity and the free development of his personality’ (art 22), to the right to education’s contribution to ‘the full development of the human personality’ (art 26), and to the ‘free and full development of [each individual’s] personality’ (art 29)). See President F.D. Roosevelt, Message to the Congress on the State of the Union, 11 January 1944, reproduced in C. Sunstein, The Second Bill of Rights (n 1) 235–244 (quote at 243). The Committee on Economic, Social and Cultural Rights alludes to this idea of work as a means to the self-fulfi lment of the individual, where it states: ‘The right to work is essential for realizing other human rights and forms an inseparable and inherent part of human dignity. Every individual has the right to be able to work, allowing him/her to live in dignity. The right to work contributes at the same time to the survival of the individual and to that of his/her family, and insofar as work is freely chosen or accepted, to his/her development and recognition within the community’ (UN Committee on Economic, Social and Cultural Rights (n 68) para 1). The same idea is expressed

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objective of work-for-welfare programmes should be to ensure ‘full, productive and freely chosen employment’, to borrow a phrase from the 1988 ILO Convention (No. 168) Concerning Employment Promotion and Protection against Unemployment.77 This is consistent with the idea, put forward by philosophers building on Marx’s denunciation of waged labour as alienation, that work should contribute to selfrealisation of the individual.78 The emphasis on the suitability of the employment offered (which, if it is refused, may lead to the suspension of unemployment benefits), is also characteristic of the case-law of the European Committee of Social Rights under Article 1 of the European Social Charter.79 It is this idea too that explains the position of the Committee on Economic, Social and Cultural Rights. In the Concluding Observations it adopted on Germany in May 2011, the Committee expressed its concern about ‘the obligation for recipients of unemployment benefits to take up “any acceptable job”, which in practice may be interpreted as almost any job, and the assignment of longterm unemployed persons to unpaid community service work, may lead to violations of articles 6 and 7 of the Covenant’. It urged Germany to ‘ensure that its unemployment benefits schemes takes account of an individual’s right to freely accept employment of his or her choosing as well as the right to fair remuneration’.80 The views thus expressed by the Committee are consistent with earlier statements it made, for instance, with regard to Canada, when it expressed its concern, already in the early 1990s, that ‘workfare’ programmes may undermine the right to work (Article 6 of the Covenant) or the right to social security (Article 9), where such programmes ‘constitute work without the protection of fundamental labour rights and labour standards legislation’.81

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by the Preamble of ILO Convention (No 168), which emphasizes ‘the importance of work and productive employment in any society not only because of the resources which they create for the community, but also because of the income which they bring to workers, the social role which they confer and the feeling of self-esteem which workers derive from them’ (ILO Convention (No. 168) ‘Concerning Employment Promotion and Protection against Unemployment’). ILO Convention (No. 168) Concerning Employment Promotion and Protection against Unemployment, art 2. See, in particular, Jon Elster, ‘Is there (or should there be) a right to work?’ in Amy Gutman (ed), Democracy and the Welfare State (Princeton University Press,1988); or Jon Elster, ‘Self-realization in Work and Politics: the Marxist Conception of the Good Life’ (1986) Social Philosophy & Policy 97–126; see also Dominique Méda, Travail: la révolution nécessaire (Éd. de l’Aube 2011). The Committee has considered that the ‘activation’ of unemployment benefits or social assistance, by making receipt of such benefits or assistance conditional upon accepting certain job offers, should not be seen as in violation of Article 1 para 2 of the European Social Charter guaranteeing ‘the right of the worker to earn his living in an occupation freely entered upon’ (emphasis added), provided the worker may refuse employment that is not suitable, taking into account the worker’s age, physical aptitude, qualifications and experience, or where the remuneration offered is not reasonable, and provided the worker has a right of administrative or judicial appeal to an appropriate body following the suspension of the benefit. See, for instance, Concl. XVI-1 (2002), 11 (United Kingdom); Concl. XVI-1 (2002), 98 (Belgium); or Concl. VXII-1 (2003) (Greece and Portugal). UN Committee on Economic, Social and Cultural Rights, ‘Concluding Observations: Germany’ (20 May 2011) UN Doc E/C.12/DEU/CO/5 para 19. UN Committee on Economic, Social and Cultural Rights, ‘Concluding Observations: Canada’ (10 June 1993) UN Doc E/C.12/1993/5, para 30 (‘The Committee notes with concern that at least


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3.3.

NON-RETROGRESSION IN THE PROVISION OF SOCIAL SECURITY

A third norm, finally, is the right to social security, understood as a right to basic support from the State in situations where individuals are unable to provide for themselves. The activation of social policies over the past decade has resulted in reducing the duration of unemployment benefits, and sometimes the level at which they are set;82 and it has typically made the continuation of the receipt of such benefits conditional upon compliance with certain requirements, linked to proving the willingness to work or the active search for work, to participating in certain forms of training or to the performance of certain types of work as a means of social integration and of improving skills. Such steps backward are looked upon with suspicion by human rights bodies. The Committee on Economic, Social and Cultural Rights made it explicit that retrogressive measures taken in relation to the right to social security are presumptively a violation of the duty of progressive realisation: If any deliberately retrogressive measures are taken, the State party has the burden of proving that they have been introduced after the most careful consideration of all alternatives and that they are duly justified by reference to the totality of the rights provided for in the Covenant, in the context of the full use of the maximum available resources of the State party. The Committee will look carefully at whether: (a) there was reasonable justification for the action; (b) alternatives were comprehensively examined; (c) there was genuine

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six provinces in Canada… have adopted ‘workfare’ programmes that either tie the right to social assistance to compulsory employment schemes or reduce the level of benefits when recipients, who are usually young, assert their right to choose freely what type of work they wish to do. In many cases, these programmes constitute work without the protection of fundamental labour rights and labour standards legislation’). In some cases, the levels of social assistance too were lowered as a result of welfare reform in recent years. Th is was the case, for instance, under the Hartz IV law which entered into force in Germany on 1 January 2005. In a much-commented decision, the Federal Constitutional Court (Bundesverfassungsgericht) considered on 9 February 2010 that the Legislator had not appropriately justified how the level at which social assistance was provided under the new legislation had been calculated: it concluded that, until the problem was fi xed, the statute was in violation of Articles 1.1 and 20.1 of the Basic Law (Grundgesetz) (1 BvL 1/09, 1 BvL 3/09, 1 BvL 4/09 of 9 Feb. 2010, English translation available at accessed 30 July 2014): there is, the Court stated, a ‘fundamental right to the guarantee of a subsistence minimum that is in line with human dignity’ (BVerfGE 125, at 175). Article 1.1. GG states that ‘Human dignity shall be inviolable. To respect and protect shall be the duty of all state authority’; Article 20.1 states that ‘The Federal Republic of Germany is a democratic and social federal State’. For comments, see Stefanie Egidy, ‘Casenote – The Fundamental Right to the Guarantee of a Subsistence Minimum in the Hartz IV Decision of the German Federal Constitutional Court’, (2011) 12(11) German Law Journal 1961; Henk Both, ‘Human Dignity in Comparative Perspective’ (2009) 2 Stellenbosch Law Review 171, 178–96; Claudia Bittner, ‘Casenote – Human Dignity as a Matter of Legislative Consistency in an Ideal World: The Fundamental Right to Guarantee a Subsistence Minimum in the German Federal Constitutional Court’s Judgment of 9 February 2010’ (2011) 12(11) German Law Journal 1941. The issues raised in this litigation concerning the Hartz IV reform before the German courts are not central to the discussion in this paper, however.

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participation of affected groups in examining the proposed measures and alternatives; (d) the measures were directly or indirectly discriminatory; (e) the measures will have a sustained impact on the realization of the right to social security, an unreasonable impact on acquired social security rights or whether an individual or group is deprived of access to the minimum essential level of social security; and (f) whether there was an independent review of the measures at the national level.83

This requirement explains, for instance, why the Committee was particularly critical of the successive reforms to unemployment insurance introduced in Canada, that resulted in approximately halving the proportion of unemployed workers receiving benefits, as well as in the lowering of benefit rates, in reducing the length of time for which benefits are paid and in ‘increasingly restricted access to benefits for parttime workers’.84 This was the Committee’s answer to measures that the Canadian government was presenting to ‘promot[e] improved skills in the workforce and [to reduce] the disincentives to work’.85 The non-retrogression principle has also been regularly relied upon by domestic courts in social rights litigation.86

4.

RE-DEFINING A HUMAN RIGHTS RESPONSE

A number of factors seem to explain the hesitations of human rights bodies confronted with the generalisation of ‘workfare’ reforms. In part, such hesitations stem from the fact that overly rigid prescriptions – such as an absolute prohibition on any ‘retrogressive’ measures or on the imposition of any form of work as a condition for the continued enjoyment of unemployment benefits – would be incompatible with the answers that States are expected to provide to the complex situations they are confronted with. Changing circumstances on the employment market and in the budgetary balance of social security schemes call for adaptive solutions, well tailored to those changes. Indeed, such adaptability of social protection schemes is a requirement of human rights law itself. Because the right to work included in human rights law includes a duty of States to take measures to promote full employment, the effectiveness of employment policies in reducing the number of unemployed must constitute an important criterion to assess their overall human rights impacts. Under Article 6 of 83

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UN Committee on Economic, Social and Cultural Rights, ‘General Comment No. 19: The right to social security’ (4 February 2008) UN Doc E/C.12/GC/19, para 42. UN Committee on Economic, Social and Cultural Rights, ‘Concluding Observations: Canada’ (10 December 1998) UN doc. E/C.12/1/Add.31, para 20. See ‘Th ird Report submitted by Canada in accordance with Articles 16 and 17 of the International Covenant on Economic, Social and Cultural Rights’ (20 January 1998) UN Doc E/1994/104/Add.17, para 125. For an extensive discussion see International Commission of Jurists, Courts and the Legal Enforcement of Economic, Social and Cultural Rights. Comparative Experiences of Justiciability, Human Rights and Rule of Law Series No. 2 (International Commission of Jurists, 2008) 29–33.


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the International Covenant on Economic, Social and Cultural Rights, the right to work requires that States Parties ‘adopt, as quickly as possible, measures aiming at achieving full employment’.87 Therefore, to the extent that activation measures are effective in realising this objective, they will be criticised only with great reluctance, and they will be condemned only in situations where such measures are obviously restrictive of the right of the individual to freely choose employment. In the very same Concluding Observations addressed to Germany in 2011, in which the Committee on Economic, Social and Cultural Rights expressed concerns about ‘duty to work’ impositions resulting from the Hartz reforms, it applauded ‘the reforms to the labour market which have made it possible to reduce unemployment to its lowest level in the past 20 years’.88 The statement provides a good illustration of the dilemma facing human rights bodies in this area. And it is significant, too, that the architects of the new welfare state generally defend the measures adopted, primarily, on the basis of the results achieved: the interests of society, they may argue, are better served when they are fewer people on welfare, and more people into employment.89 Similarly, one of the major arguments for welfare reform is that, due to the demographic trends mentioned above, maintaining the existing system unchanged may be untenable. The ratio of the employed population towards the total population cannot continuously decrease, without affecting the fiscal sustainability of the scheme. This, too, is an argument that human rights bodies cannot dismiss as irrelevant. The Committee on Economic, Social and Cultural Rights noted, in its General Comment on the right to social security, that ‘the schemes should also be sustainable, including those concerning provision of pensions, in order to ensure that the right can be realized for present and future generations’.90 There is a more fundamental reason, however, why the guidance human rights bodies have provided to States in this area has been relatively unhelpful. Whatever guidance was offered has been the result, for the most part, of an almost exclusively defensive posture. The acquis of the Welfare State as they had been gradually strengthened until the late 1970s, it seemed to many, were now being threatened by the ‘activation’ of social benefits and the tendency towards the contractualisation of the relationship between the beneficiary and the public employment services. The priority, it would seem to follow, was to preserve such acquis, and to build safeguards against the risks of the welfare edifice being dismantled. Indeed, that is the very 87 88

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UN Committee on Economic, Social and Cultural Rights, ‘General Comment No 18’ (n 73) para 19. UN Committee on Economic, Social and Cultural Rights, ‘Concluding Observations: Germany’ (20 May 2011) UN Doc E/C.12/DEU/CO/5), para 5(a). Th is requirement is discussed further below. Eg Bill Clinton, Giving. How Each of Us Can Change the World (Knopf, 2007)173–174 (noting that since the adoption of the Welfare Reform Act of 1996, ‘the welfare rolls have dropped nearly 60%, more than 7 million people, by the time I left office, and have continued to drop since. In 2000, the percentage of Americans on welfare reached its lowest point in four decades. During the economic downturn of 2001, many of those who came off the welfare rolls were able to stay in the workforce in part due to policies designed to help them succeed’). UN Committee on Economic, Social and Cultural Rights, ‘General Comment No. 19’ (n 83) para 11.

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premise of the principle of non-retrogression: if there is only one direction of social progress, it follows that any change in the system of social protection that would result in weakening the position of some members of the community should be treated with suspicion, and should only be accepted in limited circumstances. Yet, this conveys the impression that rights are conservative, not transformative. It is telling that one of the most perceptive commentators of the transformation of the Welfare State includes as one of the key reasons why needed reforms cannot be achieved the fact that governments have pre-committed themselves to provide certain advantages, making it difficult for them, or even impossible where such benefits have been codified in the form of rights, to re-examine past choices.91 Even more important, this defensive position risks protecting those that already are recognised certain entitlements (the ‘insiders’, who are employed or have been employed, and the more senior workers), at the expense of those who the State has only recognized limited protection hitherto, and are in a comparatively much more marginal position (the ‘outsiders’, who have never been in employment, and the young workers).92 Instead, a more positive approach can be taken: one that accepts the constraints that States face and acknowledges the need for reform, but broadens the political imagination of governments in order to ensure that their responses to the predicament they are facing will be guided by human rights. Three proposals could be explored in this regard. None of them condemns activation absolutely. Each of them builds on a reading of human rights, however, to clarify the framework under which the activation of unemployment benefits or social assistance could be envisaged.

4.1.

PROVIDING A SUPPORTIVE MACRO-ECONOMIC ENVIRONMENT, INDIVIDUALISED COUNSELLING AND SUPPORT TO THE UNEMPLOYED

As already mentioned, ‘activation’ of benefits granted to the unemployed may take different forms: some are clearly penalising, others strengthen the capacity of the unemployed by developing his or her skills, equipping the beneficiary to meet the exigencies of the employment market. Similarly, the ‘activation’ can be understood as a two-way process. While it can mean improving the employability of the individual 91

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See A. Hemerijck (n 24) (‘pre-committed resources of past policy choices, such as old age pensions, ‘lock in’ social provisions, which in turn come to constrain budgetary leeway for present-day social policy innovation’). Although this comment does not refer explicitly to the consequences of defi ning social benefits as legal rights that the beneficiaries may claim, defi ning them thus of course only reinforces this ‘lock-in’, forcing governments to remain bound to past policy choices. For a similar critique focused on the role of courts in protecting social rights in developing countries, see David Landau, ‘The Reality of Social Rights Enforcement’ (2012) 53(1) Harvard International Law Journal 189 (noting that remedies typically used by courts in litigation concerning social rights, which either protect individual rights of claimants or prohibit the Executive or the Legislator from removing certain benefits that were formerly granted, ‘benefit primarily upper income groups’ (201) rather than the poorest groups of the population).


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job-seeker, it can also mean encouraging employment services to be more proactive, to provide more individualised counselling and training, rather than to limit themselves to the provision of financial support. The relationship between the right to work and the duties of the public authorities to provide ‘active’ support is well-established in certain human rights instruments. In Article 1 of the European Social Charter, the right to work includes the obligation on the State to maintain ‘as high and stable a level of employment as possible, with a view to the attainment of full employment’ (para. 1 of Art. 1); its obligation to provide ‘free employment services’ to all (para. 3); and its obligation, finally, to ‘provide or promote appropriate vocational guidance, training and rehabilitation’ (para. 4). The right to work under Article 1 of the ESC does refer, of course, to the effective protection of ‘the right of the worker to earn his living in an occupation freely entered upon’ (para. 2), but this ‘negative’ freedom (that essentially imposes on the State not to obstruct efforts by individuals to be employed) is thus complemented by positive duties imposed on the State to support the individual’s efforts by providing an appropriate macroeconomic environment, as well as by providing guidance and training. Similarly, the right to work in Article 6 of the International Covenant on Economic, Social and Cultural Rights is not limited to the free-standing freedom of the invididual to take up whichever employment he or she may happen to find. It imposes on the State an active duty to pursue policies that create employment opportunities, and to equip individuals in order to ensure that they can seize such opportunities. This is what the Committee implies when referring to the availability of work (‘States parties must have specialised services to assist and support individuals in order to enable them to identify and find available employment’), which together with the dimensions of accessibility (non-discrimination) and acceptability and quality (‘Protection of the right to work has several components, notably the right of the worker to just and favourable conditions of work, in particular to safe working conditions, the right to form trade unions and the right freely to choose and accept work’) form the normative content of the right to work.93 Rebalancing the duties between the individual and the State, as required under human rights law, is especially important today given the current tendency to reduce the right to work to an economic freedom – that of the individual to seek work and to engage in work of his or her choosing – while omitting correlative State duties. Article 15 of the EU Charter of Fundamental Rights is typical of this shift. That provision states in para. 1 that ‘Everyone has the right to engage in work and to pursue a freely chosen or accepted occupation’.94 But it is silent on any duty of the State to strive towards full employment, by creating appropriate macro-economic conditions; 93 94

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UN Committee on Economic, Social and Cultural Rights, ‘General Comment No. 18’ (n 68) para 12. The second and third paragraphs of Article 15 of the Charter relate the freedom to choose an occupation and the right to engage in work to the freedom of citizens of the Union to seek employment in another EU Member State, or to exercise his or her freedom of establishment or freedom to provide services (para 2), and to the right of third country nationals authorised to work

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as well as on any duty to support the individual’s quest towards ‘employability’.95 This is a surprising omission, since the European Employment Strategy (EES), which has been developed by the EU since the Luxembourg Summit of 1997, has systematically referred to the need to create jobs, an objective mentioned in Article 3(3) of the Treaty on the European Union (which stipulates that the Union shall aim at full employment), and since the employment guidelines adopted within the EES emphasise the need to develop skills that correspond to labour market needs so as to increase the employability of workers.96 There is a strong reluctance to formulate these objectives in rights-based terms, however – as a duty that the State owes to individuals, who in turn should have a right to claim certain forms of support in order to move towards increased ‘employability’ –. This betrays either a misunderstanding about what the ‘right to work’ entails – for it does not mean that unemployment is per se a violation of the said right, but rather that the absence of any effort by the State to move towards full employment may engage its responsibility 97 – or, more plausibly, a framing of the issue of the unemployment that places almost all the burden on the individual to ‘adapt’ to the exigencies of the labour market, and much less on the collectivity to provide an environment that enables those individual efforts and rewards them. It is indeed the framing it suggests of the issue of unemployment that constitutes one of the major concerns associated with the discourse of ‘activation’. While Layard and Nickell, for instance, are quite explicit in rejecting the relaxation of employment protection legislation as a solution to unemployment, at the same time, they quite deliberately do not adopt the Keynesian view that unemployment is the result of macro-economic policies that fail to support demand by generous levels of

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in the territory of the EU Member States to working conditions equivalent to those of citizens of the Union (para 3). See Diamond Ashiagbor, ‘Article 15’, in Steve Peers, Tamara Hervey, Jeff Kenner and Angela Ward (eds), The EU Charter of Fundamental Rights. A Commentary (C.H. Beck – Hart – Nomos 2014) 423, 428 (noting that ‘the most prominent dimension of the [European Social Charter’s] understanding of the right to work – namely, the right to have work made available, implying a duty on the state to provide work – is missing from the EU’s version of this right’). See, in particular, Recital 11 of the Preamble to the guidelines for the employment policies addressed to the EU Member States (Council Decision 2010/707/EU of 21 October 2010 on guidelines for the employment policies of the Member States, OJ L 308, 24.11.2010, 46–51) (‘Ensuring the effective functioning of the labour markets through investing in successful transitions, education and training systems, appropriate skills development, raising job quality, and fighting segmentation, structural unemployment, youth unemployment, and inactivity while ensuring adequate, sustainable social protection and active inclusion to prevent and reduce poverty, with particular attention to combating in-work poverty and reducing poverty amongst the groups most at risk from social exclusion, including children and young people, while at the same time adhering to agreed fiscal consolidation, should… be at the heart of Member States’ reform programmes’), and guideline 8 (‘Developing a skilled workforce responding to labour market needs and promoting lifelong learning’). See, for instance, Diamond Ashiagbor, ‘The Right to Work’, in Gráinne de Búrca and Bruno de Witte (eds), Social Rights in Europe (OUP 2005) 241; or Philip Harvey, ‘Benchmarking the Right to Work’, in Shareen Hertel and Lanse Minkler (eds), Economic Rights. Conceptual, Measurement, and Policy Issues (CUP 2007) 115.


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redistribution (through progressive taxation and high levels of social protection). The key obstacle they see to a durable reduction of unemployment is in the failure to build human capital in a way that corresponds to the exigencies of the labour market, and in the availability of generous unemployment benefits for long periods of time without such benefits being made conditional upon the active search for employment and/or retraining.98 The message that is conveyed is that the ‘problem’ is located in the individual, or at least in the mismatch between the individual’s efforts and qualification and the demand side of the labour market, rather than in the macroeconomic choices made by society as a whole.99 There is a symbolic value to law and public policies: legislation and governmental practices convey a worldview and a message about citizenship and the respective roles of the individual and the collectivity. The Keynesian diagnosis about unemployment saw it as a macro-economic problem to be addressed by growing the economy and stimulating demand. The new message about unemployment sees it as a microeconomic problem to be addressed by reforming the individual in order to better satisfy the needs of the market. Activation policies send the message that unemployment is a problem of the individual, not of the collectivity, despite ample evidence that the growth of unemployment since the 1970s is the result of the reduction of demand of employers for low-skilled labor, itself largely the result of technological change.100 This may be problematic where jobs are scarce, especially where this scarcity is not simply the result of a lack of qualifications, but also of growing inequalities lowering the demand for goods and services: it may be a source of discouragement for the jobseekers; it may exercise a downward pressure on wages; and in certain contexts, it may reinforce racial stereotypes.101 Requiring the State to fulfil the right to work by 98 99

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See above, text corresponding to nn 18–19. See also Emma Carmel and Theodoros Papadopoulos, ‘The new governance of social security in Britain’, in J. Millar (ed), Understanding Social Security: Issues for Social Policy and Practice (Policy Press 2003), 5–6 in the online version accessed 20 July 2014, noting that an approach emphasizing the duty of the government to promote full employment is ‘markedly different from the New Labour approach of “work for those who can”. [Where “full employability” is emphasized rather than “full employment”,] the reason for unemployment is […] fi rmly anchored to an individual’s capacities and capabilities, implying that they themselves are responsible for their employment status. The state’s responsibilities are to provide only opportunities for training and skills development, which the risk-taking individual is required to take up. […] The individual of working age is made responsible for their employment status, and for the provision of their own security, including in old age’. See for instance for studies concerning the United States: Richard B. Freeman & Peter Gottschalk (eds), Generating jobs: How to increase demand for less-skilled workers (Russell Sage Foundation 1998); or Frank Levy and Richard J. Murnane, ‘U.S. earnings levels and earnings inequality: A review of recent trends and proposed explanations’ (September 1992) 30 Journal of Economic Literature 1333. Indeed, some authors have linked this shift in the framing of the question of poverty to racial politics: in the U.S., the emergence of a discourse about individual ‘responsibility’ went hand in hand with the mostly implicit, but nevertheless powerful idea that certain groups of the population, particularly among the African-American community, were illegitimately benefiting from a

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adopting pro-employment macro-economic policies and by providing strong support to job-seekers is one way to counter these risks.

4.2.

CLARIFYING THE DUTIES OF PRIVATE EMPLOYERS TO CONTRIBUTE TO THE “EMPLOYABILITY” OF JOB-SEEKERS

Within the approach to unemployment that sees it as primarily a micro-economic problem, a further shift has taken place. It is not the structures that must be adapted to the individual – it is he, or she, who is expected to adapt. It is true that some lip service is being paid to the duties of employers. Thus, guideline 8 of the EU’s employment guidelines include a paragraph referring to the contribution of the private sector to the objective of ‘Developing a skilled workforce responding to labour market needs and promoting lifelong learning’: In cooperation with social partners and firms, Member States should improve access to training, strengthen education and career guidance. These improvements should be combined with the provision of systematic information on new job openings and opportunities, the promotion of entrepreneurship and enhanced anticipation of skill needs. Investment in human resource development, up-skilling and participation in lifelong learning schemes should be promoted through joint financial contributions from governments, individuals and employers. To support young people and in particular those not in employment, education or training, Member States, in cooperation with the social partners, should enact schemes to help those people find initial employment, job experience, or further education and training opportunities, including apprenticeships, and should intervene rapidly when young people become unemployed (emphasis added).102

It is unclear whether these references to the role of employers are intended to impose on them a form of burden-sharing, or whether they primarily should be interpreted as requiring that the private sector be involved, and its needs taken into account, in defining the characteristics that the workforce should present. What is clear, however, is that there is no reference in this paragraph, nor in the employment guidelines as a whole, to the need to question the definition of ‘qualifications’ the prospective workers are supposed to possess, in order to shift to more inclusive employment markets – employment markets that could, in particular, reward and value difference. The one exception to this is the reference, in the same paragraph of the employment guidelines, to the need to put in place ‘systems for recognising acquired competencies’, in other words, for overcoming the rigidities that may result from overvaluing diplomas and

102

system that others, ‘hard-working’ average (White) Americans, were fi nancing. Th is is what some sociologists have called the ‘story of illegitimate takings’ (see Joe Soss, Richard C. Fording, and Sanford F. Schram, Neoliberal Paternalism and the Persistent Power of Race (University of Chicago Press 2011)). Council Decision 2010/707/EU of 21 October 2010 on guidelines for the employment policies of the Member States (n 92).


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the acquisition of competencies through formalised channels, while competencies acquired through informal means, including through past professional experience, would remain undervalued. But this is only a minor admission, of relatively minor import. For the most part, the discussion on ‘activation’ assumes that employers know whom they need – that they are irreproachably ‘objective’ in defining which ‘competences’ or ‘qualifications’ are required from the job-seeker. Employers, of course, are prohibited from practicing discrimination. Beyond that minimum requirement however, which only serves to screen out the most irrational forms of exclusion (and generally protects job-seekers to the extent that they present certain ‘suspect’ characteristics or belong to certain traditionally disadvantaged groups), employers remain free to set requirements for access to employment as they see fit. ‘Merit’ as defined by the employer, thus, is fetichised. Two implications follow. First, because of this reification of what it means to be ‘qualified’, and the reference to an impersonal and anonymous ‘employment market’ that rewards certain ‘qualifications’ only serves to reinforce this impression, any active intervention by the State to strengthen access to employment is seen as paternalistic, both creating a risk that the ‘market signals’ will be distorted (a classic ordoliberal theme103), and resulting in individuals not gaining ‘self-respect’ by obtaining employment at conditions that are not those imposed by ‘the market’. It is perhaps worth noting in this regard that Jon Elster, because of his strong emphasis on work as a means for the individual to gain self-respect, rejects on that basis a duty of the State to provide work. Such support by the State, he reasons, would negate the very idea of satisfaction and self-respect that the individual should gain through work.104 Yet, his argument presupposes that the market is somewhat neutral; that the competencies as defined by employers in accordance with business necessities are somehow immune to challenge; and that if one is excluded from access to employment, this has to do with one’s failure to make the right choices, rather than to a definition of qualifications that is unnecessarily demanding, or culturally biased, or simply the result of unchecked assumptions about certain ‘normal’ ways of performing a function. A second implication is that we miss the opportunity, with such an approach, to ‘activate’ the employer. Yet, a number of studies originating in the field of institutional (or, in the French version, ‘conventionalist’) economics have highlighted the importance of how qualifications are defined (what François Eymard-Duvernay calls ‘épreuves d’évaluation’, or ‘assessments proofs’) in order to understand the sources of

103

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Thus, the ‘social market economy’ as promoted initially by Alfred Müller-Armack, one of the most influential figures of ordoliberalism, was premised on the idea that any social measures should be strictly ‘in conformity with the market’ (marktkonform); otherwise it would be disruptive of the market’s equilibrium and it would distort the signals the market sends to economic actors through ‘normal’ price mechanisms (see A. Müller-Armack, ‘The Meaning of the Social Market Economy’, in Alan Peacock and Hans Willgerodt (n 45) 82–86 (initially published in 1956 in Handwörterbuch der Sozialwissenschaften 9)). Jon Elster (n 73) 74.

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unemployment.105 Understanding the right to work as a human right should lead us to question the principles of allocation of employment as a scarce social good. How jobs are being allocated should not be left to the magic of whichever preferences are stated by employers: it should be asked, in each case, whether the working environment should not be accommodated to fit the need to accelerate the inclusion of job-seekers, especially those that are long-term unemployed or that belong to a category (young or old workers, women, minorities, etc.) which has been traditionally disadvantaged. This, after all, simply expands on the duty of reasonable accommodation, which has been developed in recent years in the context of antidiscrimination law for the benefit of people with particular religious beliefs106 or with disabilities.107 The major shift that took place with reasonable accommodation consists in redefining what was formerly seen as a problem located with the individual (a characteristic, as we have seen, of the discourse on ‘activation’108) as a problem attributable to social structures that are insufficiently inclusive, and thus must be rethought in order for difference not to be a source of disadvantage. In this view, ‘merit’ does not become irrelevant but it is to be constantly questioned and redefined in the process of accommodation itself. And whereas the duty of reasonable accommodation is not absolute or unlimited, it stops where the burden becomes disproportionate or causes ‘undue hardship’,109 the employer is required to rethink the work environment in order to avoid such an

105

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107

108 109

See in particular, in chronological order, Olivier De Schutter, Discriminations et marché du travail. Liberté et égalité dans les rapports d’emploi (P.I.E. Peter Lang 2001); Christian Bessy, François Eymard-Duvernay, Guillemette de Larquier et Emmanuelle Marchal (eds), Des marchés du travail équitables? Une approche comparative France Royaume-Uni (P.I.E. Peter Lang 2001); François Eymard-Duvernay, ‘Conventions de qualité du travail et chômage’ (2005) Economies et sociétés, Série ‘Socio-économie du travail’, AB, 26, 1381; François Eymard-Duvernay (eds), Epreuves d’évaluation et chômage (Octarès éd 2012). Supreme Court of Canada, Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970; Supreme Court of Canada, Multani v. Commission scolaire Marguerite-Bourgeoys [2006] 1 SCR 256, 2006 SCC 6. Convention on the Rights of Persons with Disabilities (2515 UNTS 3), opened for signature on 13 December 2006, in force since 3 May 2008. Article 2 (3) and (4) (defi ning reasonable accommodation as ‘necessary and appropriate adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms’). See, eg, Committee on the Rights of Persons with Disabilities, H.M. v. Sweden, communication n° 3/2011 (CRPD/C/7/D/3/2011), Views of 19 April 2012. In the EU context, see Council Directive 2000/78/ EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, OJ L 303 of 2 December 2000 at 16 (Article 5: ‘In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation shall be provided. Th is means that employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer. Th is burden shall not be disproportionate when it is sufficiently remedied by measures existing within the framework of the disability policy of the Member State concerned’). See above, text corresponding to nn 94–95. Supreme Court of Canada, Multani v. Commission scolaire Marguerite-Bourgeoys (n 102) para 53.


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environment becoming an obstacle to the professional integration of people who do not ‘fit’ some preconceived notions of the “normal” employee.

4.3.

RESPECTING THE CHOICE OF ALTERNATIVE LIFESTYLES

There is, finally, a third direction in which a human rights response to the activation of social policies could be improved: it is as a safeguard against the risk of imposed uniformity. In political philosophy, this risk is seen as a threat to the plurality of conceptions of the ‘good life’.110 In human rights law, it may be seen as a threat to the right to privacy. It has once been remarked that the right to privacy is perhaps best understood not as a protection of the individual against what the law may prohibit, but rather as a protection against what the law imposes. The distinguishing feature of the laws struck down in privacy cases, it was noted in support of this approach, has been ‘their profound capacity to direct and to occupy individuals’ lives through their affirmative consequences’.111 The right to privacy is not simply about confidentiality, or preserving from public scrutiny information that an individual wishes to keep for himself.I It is fundamentally about the freedom of each individual to express his or her identity, be it by entering into relationships with others, or alone.112 Such freedom, in turn, depends on the creation of conditions that allow an individual to reflect on the reasons why he or she entertains certain desires, or as expressed by Gerald Dworkin, to ‘reflect upon one’s motivational structure and to make changes in that structure’.’113 Only by being confronted with a plurality of life options and with various understandings of the ‘good life’ can an individual make a fully informed choice as to which life he or she wants to lead. This, indeed, may be the ultimate challenge posed to human rights by the activation of social policies. It is often said that activation policies encourage a ‘work ethic’, and that individuals should be active members of society in order to share in its advantages; to which it is added that moving people from welfare to work ensures their social integration. It is important to note, however, that such a reasoning 110

111 112

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See, for instance, Jürgen Habermas, ‘Equal Treatment of Cultures and the Limits of Postmodern Liberalism’ (2005) 13(1) Journal of Political Philosophy 1. Jed Rubenfeld, ‘The Right of Privacy’, (1989) 102 Harvard Law Review 737, 740. Th is of course paraphrases the defi nition provided by the Human Rights Committee under Article 17 of the International Covenant on Civil and Political Rights: see Human Rights Committee, Raihman v. Latvia, communication No 1621/07, decision of 30 November 2010 (CCPR/ C/100/D/1621/2007 (2010)), para 8.2. (where the Committee notes: ‘the notion of privacy refers to the sphere of a person’s life in which he or she can freely express his or her identity, be it by entering into relationships with others, or alone’). Th is echoes the approach of the European Court of Human Rights under Article 8 of the European Convention on Human Rights, which it sees as protecting ‘a right to personal development’, described as ‘the right to establish and develop relationships with other human beings and the outside world’, and the interpretation of which should be guided by the notion of ‘personal autonomy’ (see, eg, ECHR (4th sect.), Pretty v. the United Kingdom, judgment of 29 April 2002 (App no 2346/02), para. 61). Gerald Dworkin, The Theory and Practice of Autonomy (CUP 1988) 108.

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presupposes that in order to achieve social integration, individuals should succeed as market participants. This is a much narrower and more materialistic definition of ‘work’ than is useful to society and than could in fact ensure social integration; and it robs individuals of the possibility to choose alternative means of self-fulfilment. As remarked by Emma Carmel and Theodorus Papadopoulos: [The] narrow definition [of work as security] as paid work in a labour market underlines an exclusionary vision. Important welfare-creating activities that are not part of the cash/ market nexus and thus are not ‘registered’ as productive are absent from such definition – two obvious examples here being care-work or voluntary work. Further, work seen in this way potentially enhances the social differences between able-bodied and disabled-bodied people of working age, and echoes a rather narrow vision of social life – we do not work to live but rather live to work.114

Must work necessarily remain so central to our lives, and almost the only channel through which to achieve social integration? Historically, the centrality of waged employment has gone hand in hand with the dismantling of informal networks of solidarity, at the local level, through neighborhood communities, or through professional corporations.115 Today, however, a new range of social innovations seeks to re-establish these networks of solidarity, reducing the dependency of the individual both on access to waged employment and on protection through Stateled social security schemes. For these innovations to prosper, citizens wishing to invest in them should be given time, and they should be given support. Should we not seek to make activation policies ‘social innovations friendly’, by maintaining a right to unemployment benefits or, as the case may be, to social assistance, to all those who are pursuing socially useful activities, whether or not such activities measurably contribute to economic growth?116 It is this profound intuition, of 114

115

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Emma Carmel and Theodoros Papadopoulos, ‘The new governance of social security in Britain’ in J. Millar (ed), Understanding Social Security: Issues for Social Policy and Practice (Policy Press 2003) 5 of the online version accessed 20 July 2014 (internal citations omitted). See also, formulating a similar critique, B. Lund, Understanding State Welfare. Social Justice or Social Exclusion? (Sage Publishers 2000) 202–3; or John Hills, Thatcherism, New Labour and the Welfare State, CASE Paper 13 (Centre for Analysis of Social Exclusion, London School of Economics, August 1998) 27 (noting that ‘the Government has started using language borrowed from Continental Europe of “social exclusion” and “social inclusion”, but much of the way in which it uses it implies that the main way in which inclusion is achieved is through paid work, rather than other activities. Its Green Paper on welfare reform, has for instance been criticized by social policy academics for ignoring “other forms of work, most notably care work undertaken in the home, still mainly by women… [this] has left the impression that the Government does not value care work as an expression of citizenship responsibility”’(citing Open letter from Professor Peter Alcock and others to the new Secretary of State for Social Security, Alistair Darling, the Guardian 29 July 1998)). See especially Robert Castel, Les métamorphoses de la question sociale. Une chronique du salariat (Fayard 1995). In their article ‘Beyond ‘Employability”’ (n 26) J. Peck and N. Theodore mention the failure to take into account the potential of the social economy in the New Deal implemented in 1998–1999 by the


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course, that provides their key motivation to the proponents of a universal basic income.117 Quite apart from the controversial nature of this proposal and whether or not such a guaranteed and unconditional basic income to all is the best way to achieve social inclusion,118 one clear benefit that would result from even a partial implementation of this idea would be in its encouragement to sociodiversity: to the coexistence, within society, of different life choices, that will not all necessarily be guided by the imperative to meet essential needs. Th is will reward experimentation, and it will contribute to the autonomy of the individual. Real choice can only flourish in the context of a society in which a variety of life options are open to the individual.

5.

CONCLUSION

The human rights response to activation policies can redefine itself, without either renouncing the principles on which human rights were built in the post-Second World War period, or ignoring the very real challenges that welfare States are facing, and to which social-democrats have sought to answer. I have argued here that such a response should take into account two considerations. First, it should focus not only on the job-seeker or on the recipient of social benefits (and on the need for a balance between the right to freely chosen employment and the duty to work), but also on the duties of other actors, namely the State, which should be held accountable for the adoption of macro-economic policies that seek to achieve full employment and provide opportunities to all, and the prospective employer, whose definition of the qualifications required from the job-seeker should be critically examined in order to ensure that such definition shall not result in unnecessary exclusion from work. The right to work, including the right not to face discrimination in access to employment, requires such a triangulation: responsibility for delivering opportunities for decent work should be made mutual, in order for work, as a scarce social good, to be equitably shared. Second, the human rights response should take into account the need to allow the individuals to choose lifestyles that are not employment-centered, and whose contribution to the community may take forms other than that of entering into an economically ‘productive’ activity. Ultimately, the objective should be to encourage individuals to seek personal fulfilment by providing them with a range of alternatives from which to choose, provided the choices remain within the right balance between

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Blair government. However, social innovations that can support the shift to more inclusive societies go beyond the social economy alone. See, notably, Philippe Van Parijs, Real Freedom for All: What (If Anything) Can Justify Capitalism? (OUP 1995); and Ph. Van Parijs (ed), Arguing for Basic Income: Ethical Foundations for a Radical Reform (Verso 1992). Contra the proposal for a basic income guarantee, see Philip Harvey, ‘Basic Income and the Right to Work: Competing or Complementary Goals’ (2005) 2 Rutgers Journal of Law and Urban Policy 2.

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what an individual contributes to the community and the level of support he or she receives from the community. This latter component of the human rights response to activation leads, almost inevitably, to more fundamental questions about the world we intend to shape for ourselves. Our societies are trapped into a race in which technological progress results in improved labor productivity, thus reducing the volume of work required per unit of output. Labor-saving technologies manufacture unemployment, as people are being replaced by machines and become redundant. The solution to this has been, historically, twofold. First, a range of activities or resources that, formerly, had not been part of the ‘market’, were commodified. This, for instance, is how the services industry emerged. To a large extent, the growth of this industry has resulted in services being provided by paid professionals, now delivering services which, in the past, were free, as they were provided through family and community networks.119 Second, new ‘needs’ were created by advertising, by certain mirages of happiness based on material well-being, and by mimicry of the lifestyles of the most affluent classes – what Veblen referred to as ‘conspicuous consumption’.120 Thus, we seek to compensate the destruction of jobs by displacing the frontiers of the market and by making people feel unhappy if they did not consume more (though often unnecessary) stuff. This futile and never-ending quest for more, based on a deliberately entertained confusion between ‘more’ and ‘better’, has been responsible for the spectacular increase of our ecological footprint, both in the form of the rapid depletion of natural resources and of the destruction of the natural balances of the ecosystems. Yet, we continue to destroy jobs in the name of allowing each job to produce more, and to encourage people to consume more in order to ensure that this superfluous production with be absorbed. This is not peripheral to the debate about the activation of social policies. Instead, it highlights that the solution that ‘activation’ proposes as a remedy to unemployment, for all its promises, does not question the perverse trajectory we seem unable to escape from. The startling increases in labor productivity over the past century could have provided an opportunity, for the first time in human histoy, to allow whole societies to escape, for most people during most of their active lives, from the drudgery of having to work for a living. They could have enjoyed music, conversation, reading, or walking around in parks. To avoid gaps from emerging between members of society, work could have been shared more equitably, and robust redistributive social programmes 119

120

See Robert L. Heilbroner, The Nature and Logic of Capitalism (W.W. Norton & Co 1985), 60 (‘Much of what is called “growth” in capitalist societies consists in this commodification of life, rather than in the augmentation of unchanged, or even improved, outputs’). See Thorstein Veblen, The Theory of the Leisure Class. An Economic Study of Institutions (Dover Publishing 1994 [1899]) (noting that ‘the standard of expenditure which commonly guides our efforts is not the average, ordinary expenditure already achieved; it is an ideal of consumption that lies just beyond our reach, or to reach which requires some strain. The motive is emulation – the stimulus of an invidious comparison which prompts us to outdo those with whom we are in the habit of classing ourselves’).


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implemented to ensure that inequalities would remain within reasonable margins. Instead, more people were put to work, often too long hours to compensate for low wages – low, that is, in comparison to what kind of wages they should receive in order to have access to the cornucopia of goods in the acquisition of which, they are told, resides the secret to felicity. This article has proposed to rely on human rights to broaden our political imagination about unemployment and what to do about it; much more remains to be done in this regard.

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