Cruel, Inhuman or Degrading Treatment?

Benefit Sanctions in the UK

Michael Adler

• Publisher: Palgrave Pivot
• Year: 2018
• ISBN:
  9783319903569
• Topic: Law
• Subtopic: Civil Rights in Law
• Index: Law

The book subjects the largely hidden phenomenon of benefit sanctions in the UK to sustained examination and critique. It comprises twelve chapters dealing with the terms 'cruel', 'inhuman' and 'degrading' that are used as a benchmark for assessing benefit sanctions; benefit sanctions as a matter of public concern; the historical development of benefit sanctions in the UK; changes in the scope and severity of benefit sanctions; conditionality and the changing relationship between the citizen and the state; the impact and effectiveness of benefit sanctions; benefit sanctions and administrative justice; the role of law in protecting the right to a social minimum; a comparison of benefit sanctions with court fines; benefit sanctions and the rule of law; and what, if anything, can be done about benefit sanctions. Each chapter ends with a paragraph that attempts to highlight the most salient points in that chapter, and the book ends with a short conclusion in which benefit sanctions are assessed against the chosen benchmark.

© The Author(s) 2018

Michael AdlerCruel, Inhuman or Degrading Treatment?Palgrave Socio-Legal Studieshttps://doi.org/10.1007/978-3-319-90356-9_1

Begin Abstract

1. Introduction

Michael Adler¹

(1)

School of Social and Political Science, University of Edinburgh, Edinburgh, UK

Michael Adler

Email: [email protected]

Keywords

Meaning of ‘cruel’‘Inhuman’ and ‘degrading’European Convention on Human RightsArticle 3Jeremy WaldronShared moral values

End Abstract

The phrase ‘cruel, inhuman and degrading treatment or punishment’ appears in Article 5 of the Universal Declaration of Human Rights (UDHR), which was adopted by the UN General Assembly in 1948, and in Article 7 of the International Covenant on Civil and Political Rights (ICCPR), which was adopted by the UN General Assembly in 1966.

In 1950, members of the newly-formed Council of Europe signed the European Convention on Human Rights (ECHR), an international treaty to protect human rights and fundamental freedoms in Europe. The UK was one of the first members of the Council of Europe to ratify the ECHR when it passed through Parliament in 1951 and it subsequently came into force in 1953. However, it was not until 1966 that the UK granted what is known as ‘individual petition’, i.e. the right to take a case alleging an infringement of ECHR rights to the European Court of Human Rights (ECtHR) in Strasbourg.

Article 3 of the ECHR outlaws torture but it goes further than that in also outlawing ‘inhuman or degrading treatment or punishment’ and it is generally accepted that this right is absolute, i.e. that it cannot be infringed under any circumstances. Due to the incorporation of the ECHR into UK law through the 1998 Human Rights Act, the phrase ‘inhuman or degrading treatment or punishment’ is now part of UK law and cases alleging infringement of any ECHR rights, including Article 3 rights, can now be heard in courts throughout the UK.

There are three points to note about Article 3:

• first, the prohibition applies to ‘treatment’ as well as to ‘punishment’, so Article 3 is much broader in its application than Article 8 of the US Constitution;
• second, unlike all the other rights enshrined in the ECHR, which are ‘limited’ or ‘qualified’, Article 3 is ‘absolute’. This means that no treatment severe enough to meet the Article 3 threshold can ever be justified and that there are no circumstances, such as considerations of what might be in the ‘public interest’, in which an infringement of this right is acceptable;
• third, use of the conjunction ‘or’ in the phrase ‘inhuman or degrading’ implies a lower threshold, which covers either ‘inhuman treatment or punishment’ or ‘degrading treatment or punishment,’ than the phrase ‘inhuman and degrading’, which covers both terms, would have done.

In a case brought against Greece jointly by Denmark, Norway and Sweden and separately by the Netherlands alleging widespread breaches of the ECHR following the coup in April 1967,¹ the Commission found against the Greek Government. In its judgment, the Commission drew a distinction between the different parts of Article 3, describing ‘torture’ as an aggravated form of ‘inhuman and degrading treatment’.² However, it did not attempt to define ‘inhuman’ or ‘degrading’ and, in its jurisprudence, the ECtHR has not considered the components of ‘inhuman or degrading’ separately but has considered the phrase as a single, conjoined entity. But, broadly speaking, it regards treatment or punishment as ‘inhuman or degrading’ if it is premeditated and applied for hours at a stretch, and if the pain and suffering go beyond the inevitable element of pain and suffering associated with legitimate treatment or punishment.

Jeremy Waldron takes a different approach.³ He argues that each of the components of ‘cruel, inhuman or degrading’, which are the terms used in the title of this book, should be considered separately. He describes his approach as ‘textualist’ but distinguishes it from what he calls an ‘originalist’ approach. Originalists hold that the proper approach to understanding rights provisions in the US Constitution is to determine how members of the founding generation would have applied these terms two hundred or more years ago. As he points out, in no other jurisdiction in the world is this methodology deployed and nowhere else in the world is it taken seriously.⁴ Waldron describes his preferred approach as an ‘ordinary language approach’ that focuses on the meaning of each of the words in question. He argues that terms like ‘cruel’, ‘inhuman’ and ‘degrading’ represent unspecified standards rather than unambiguous rules and that the challenge is to determine what they mean in different contexts. He also notes that this necessarily involves making value judgments.

Ronald Dworkin ⁵ argues that one should do this by trying, to the best of one’s ability, to determine what each of the terms means. He suggests that we should ask ourselves ‘as honestly as we can and in as objective a spirit as we can muster’, certain quite specific evaluative questions, for example, ‘what really is cruel?’, ‘what forms of treatment really are such that no human should reasonably be expected to endure them?’, ‘what really is inhuman?’, ‘what really is degrading or an outrage on human dignity?’ He notes that any sensible person will recognise that, as with all objective inquiries, the best you can hope to get is the person’s considered opinion, and that opinions will necessarily differ.

Rather than, as Dworkin suggests, everyone applying their own critical views of what counts as ‘cruel’, ‘inhuman’ or ‘degrading’, Jeremy Waldron thinks that a better way to understand these terms is to recognise that ‘they purport to elicit some shared morality, some common shared values, some moral code that already exists and resonates among us.’ He thinks that ‘they appeal to what is supposed to be a more-or-less shared sense among us of how one person responds as a human to another human, of what humans can and should be expected to endure, of basic human dignity, and of what it is to respond appropriately to the elementary exigencies of human life’, arguing that it is more satisfactory to view these terms in a social and collective light than to see them simply as invitations to make our own individual moral judgements. Dworkin’s approach is that of the moral philosopher while Waldron’s is more in tune with that of the sociologist and the socio-legal scholar, and this is the approach that will be adopted in this book.

The ECtHR has not, so far, been asked to determine whether benefit sanctions in the UK, or elsewhere, are in breach of Article 3 and constitute ‘inhuman or degrading treatment or punishment’, and no explicit attempt is made to do so in this book. Rather, against a set of shared understandings of what the three terms ‘cruel’, ‘inhuman’ and ‘degrading’ mean, the book attempts to give a critical account of the benefit sanctions regime in the UK and to determine whether it is acceptable as it stands, whether it is capable of being reformed or whether it needs to be replaced.

The origins of this book can be traced back to a lunchtime seminar in the Edinburgh University School of Law on ‘Punishment and Welfare’ in January 2015. My colleague Richard Sparks, who is Professor of Criminology at the University of Edinburgh, invited David Garland, who is now Professor of Law and Sociology at New York University but is also a part-time Professorial Fellow at the University of Edinburgh, and me to present papers. The subject was, of course, familiar territory for David Garland but I was put on the spot and had to come up with a suitable topic. My academic interests lie at the interface between public law and social policy and I have a long-standing interest in social security. A paper on benefit sanctions enabled me to tick several boxes and I thought that there would be some mileage in writing about this subject. The paper generated a fair amount of interest and I was encouraged to develop it. An expanded version of the paper was published in the Journal of Law and Society in June 2016.⁶ As I became more and more engrossed (some people might say obsessed) with the subject of benefit sanctions, I followed up the Edinburgh seminar paper with papers on different aspects of benefit sanctions for a range of audiences. I presented papers at the annual conference of the Law Society of Scotland held in Edinburgh; at the annual conference on ‘European Social Security Law’ at the Academy of European Law (ERA) in Trier, Germany; at a seminar in the Institute for Social Policy, Housing and Equalities Research (I-SPHERE) at Heriot-Watt University; for the Panel on ‘Workfare and Labour Rights’ at the Labour Law Research Network (LLRN) Conference, held at the University of Amsterdam; at the annual conference of the Law and Society Association in Seattle; at the annual conference of the Socio-Legal Studies Association at the University of Lancaster; and at the Northern Conference of the P...