Rights
that can Wrong
In the closing weeks
of 1948, the memory of total war
fresh in their minds, the nations of the world gathered to sign up to
the Universal
Declaration of Human Rights
. It was an ambitious vision. It incorporated the liberal freedoms with
which
we are familiar, such as freedom of assembly and expression, rights to
a fair
trial, private and family life. But it also incorporated what have been
termed
positive rights (to housing, employment, subsistence, leisure and
medicine, for
example) and collective rights to an international order in which a
just
society is realised.
Earlier that same
year, as part of our own post-war
legacy, and to deal with Want, one of Beveridge’s Five
Giants, this country
passed the National
Assistance Act, bringing to an end the Victorian
Poor Law.
Here, I draw those
two threads together to examine the
application of human rights by the social work profession, using section
21 of the National Assistance Act by way of illustration. My
argument is
that we have allowed others to control the human rights agenda which is
our own
natural territory, and we must assert our professional autonomy and
reclaim
human rights with and for our service users.
Human Rights
Human rights are
fundamental to social work.
Did you get a warm
glow at this statement, immediately
recognising a statement that comes from the key
purpose of
social work expressed in our occupational standards? Or do
you have a
sneaking sympathy for the political and public antipathy to human
rights?
Politicians and the
tabloids are falling over each
other in their efforts to denounce the Human
Rights Act, with suggestions ranging from
“let’s go local and write some
human rights for just the UK” to “let’s
pass laws to tell the judges that human
rights mean just what we say they do”.
The very idea of
non-universal human rights may seem
nonsensical at first blush. But it has been reality almost from the
outset. For
example – and this is the example that matters –
the Council of Europe in 1950
approved the European
Convention on Human
Rights.
It is this subset
of human rights, which I
shall call the “European rights”, rather than the
Universal Declaration, that
was incorporated into British law by the Human Rights Act, and to which
we as
social workers have a legal obligation to give effect. And it is this subset
that has prompted not only tabloid hostility but also serious calls for
a more
generous understanding of human rights.
In March, the Social
Care Institute for Excellence co-hosted a human
rights
conference. With a significant service user presence,
questions were
repeatedly being asked why we are leaving it to the courts to determine
what
our human rights are.
Days later, the radio
4 programme “Unreliable
Evidence”
debated the proposition that judges were unwilling to step beyond
‘the
Then in June, a
report by Age Concern found public bodies saw human rights as
legal
obligations to be complied with rather than positive duties to promote
equality
and dignity for older people.
As social workers,
our legal obligation
may be
to adhere to the European subset of human rights, but our professional obligation
is to the “universal rights” of the Universal
Declaration. BASW is quite
unequivocal in its Code
of Ethics – “Social workers have a duty
to… respect basic human rights as
expressed in The United Nations Universal Declaration of Human
Rights…”
(3.1.2(a)). Even if you are not a BASW member, the key
purpose
statement in our National Occupational Standards that human
rights are
fundamental to social work derives directly from the International
Federation of Social
Workers’ definition of social work, and when IFSW
refers to human rights
there is no reason to assume a European understanding.
The National
Assistance Act
Earlier this year, I
spoke for BASW in
While there was a
universal safety net of welfare
benefits, section 21 was generally confined to providing
“Part III”
accommodation such as residential care for elderly people. As
successive
governments of both persuasions have removed the universal safety net,
in
particular from people subject to immigration control, the courts have
ruled
that the provision can be used to provide conventional housing and
subsistence
to those who are destitute.
And now the threads
come together. As social workers,
our powers and obligations will differ according to whether someone is
in an “excluded
class”. A legal provision ominously entitled “Withholding
and Withdrawal of Support” means exactly what it
says on the tin – social
workers are required
not to support people in an excluded class, unless
our
Human Rights Act requires it. We have a two-tier service. For those who
are not
in an excluded class, we are entitled, professionally obliged even, to
interpret human rights generously. In the context of section 21
assistance to
those who are destitute, this is likely to mean we provide our clients
with
accommodation and the means of subsistence. For those who are in an
excluded
class, we are legally obliged to interpret human rights narrowly, and
maybe
contrary to our professional values, potentially turning away the
destitute.
What do we do?
Professional autonomy
Do we decide for
ourselves, in conjunction with our
service users and bearing in mind our professional values, what respect
for
human rights might mean for service users? Or do we bow to a
‘legal model’ of
human rights, just as we have been accused of bowing to a
‘medical model’ of
community care? It seems we are diffident about making decisions about
human
rights.
Most of the time, our
obligation as social workers is
to give effect to human rights. As Local
Authority
Circular (2000) 17 expresses it, “Social Services
Departments should
actively develop existing good practice in a manner suited to the new
human
rights culture…” There is no inconsistency between
this obligation and our
professional obligations to respect human rights more generally. The
only
question is whether we remain loyal to the wider universal rights
agenda, or
whether we come to view human rights as a burden rather than a positive
tool.
Section 21 does,
however, raise a legal and
professional dilemma for social workers, because of the
“Withholding and
Withdrawal of Support” provision. Where this provision
applies, the usual
social work practice is subverted. Instead of the social worker
pursuing the
wider universal rights agenda (that is, of course, consistent with but
much
broader than the narrower legal obligation), the social worker must
not give effect to anything other than the narrow
European human rights
agenda.
In the particular
context of section 21 assistance,
many statutory social workers are actually instructed to take legal
advice, but
it is worth pausing to deconstruct the context in which that advice
will be
provided. For local authority solicitors, the authority itself is their
client,
not the service user. Such solicitors, quite rightly, are expected to
protect
the interests of the authority, including its financial interests. And
therefore:
For all these
reasons, the questions the lawyer would
address and the questions you would want to decide are different.
So are we entitled
to make our own decisions? I believe we are not only entitled to make
our own
decisions, but also effectively obliged to do so. If our professional
status as
social workers means anything, it means we form our own judgements
within our
sphere of expertise, and are professionally accountable for those
judgements.
If “human rights are fundamental to social work”
then they are within our
sphere of expertise. If we don’t feel expert, we should be
developing our
expertise. We should be looking within social work for support in doing
so. And
it is in the nature of social work that that will result in service
user
involvement in developing and interpreting our human rights culture. If
we have
to go outside of social work we should bear clearly in mind the
limitations on
the advice and support we receive.
When we make our
own decisions, based on our broad understanding of “universal
rights”, when we
consult with service users as to their understanding, when we stand by
and
defend the judgements we make, we are acting professionally, just as we
are
whenever we advocate for the services we truly believe our service
users need,
rather than what we believe they will get. When we see human rights
only in
narrow terms, the liberal rights but not the social rights, the narrow
but not
the wider agenda, a burden rather than a positive duty, we are not
being true
to our professional values. Sometimes, but rarely, we are being true to
the
letter of the law.
In two further
articles, I continue to use section 21
of the National Assistance Act to examine two further professional
dilemmas for
social workers: what to do if your employer instructs you to act in a
way that
is unlawful; and what to do if you are required to act in a way that is
lawful
but ultimately unjust.
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The
definition and key purpose of social work "A
profession which promotes social change, problem solving in human
relationships and the empowerment and liberation of people to enhance
well-being… Principles of human rights and social justice
are fundamental to social work" Extract
from Universal Declaration of Human Rights Everyone has the
right to work… Everyone has the
right to rest and leisure… Article 25 Article 26 Everyone has the
right to education… Education shall be directed to the full
development of the human personality and to the strengthening of
respect for human rights and fundamental freedoms. It shall promote
understanding, tolerance and friendship… Everyone has the
right freely to participate in the cultural life of the community, to
enjoy the arts and to share in scientific advancement and its
benefits… Article 28 Everyone is entitled
to a social and international order in which the rights and freedoms
set forth in this Declaration can be fully realised. |