'Giving Force' without 'Enforcement'

Guest Lecture by Nick O'Brien, Interim Director of Policy and Public Affairs Parliamentary and Health Service Ombudsman

Abstract

This paper considers social rights protection and promotion, and in particular reflects on the effectiveness of equality bodies, human rights institutions and ombudsmen in ‘giving force’ to social rights even if they are not directly enforceable in domestic or international courts.

The paper draws upon three concrete examples for illustration: first, the strategic approach between 2000-2007 of the Disability Rights Commission in Britain to the achievement of social inclusion for disabled people; secondly, the techniques deployed by the Greek Parliamentary Ombudsman in co-ordinating civil society initiatives to improve the participation of Roma communities; and thirdly the combination of NGO campaign, equality body investigation, independent inquiry and ombudsman report as a means of improving health equality for people with learning disabilities (in England).

These illustrations suggest that the lack of ‘enforcement’ is not an insuperable obstacle to effective, albeit indirect, promotion and protection. More importantly, the success in mobilising civil society, which underpins each of these examples, casts doubt on the binary polarisation of individual and State that informs the ‘individual litigation’ model of enforcement.

It is suggested therefore that such a model fails to do justice to the range of intermediate associations that occupy and complicate the social space between individual and State. The existence of this ‘complex space’ in turn draws attention to the limits of law and litigation in this context, and invites further reflection on the conditions that would have to be met if directly enforceable social rights were to achieve their objectives.