When the UN adopted the Universal Declaration of Human Rights 1948, it originally planned to adopt a single treaty to implement the rights within it. However, political disagreements and other factors prompted the UN to instead create two treaties, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). The resulting split led many to view Economic, Social and Cultural (ESC) rights as of secondary importance when compared to Civil and Political rights. The UK government, for its part, has dutifully incorporated treaties predominantly focused on civil and political rights (such as the European Convention on Human Rights via the Human Rights Act 1998) but has not taken the same approach with ESC rights.
This has led to a situation where some human rights (e.g. civil and political rights in the European Convention on Human Rights) are legally enforceable in the UK’s domestic courts, while some others (e.g. economic, social and cultural rights) are not. The long-standing UK constitutional position, as confirmed by the Supreme Court in R. (SC and Ors) v Secretary of State for Work and Pensions, is that domestic courts cannot enforce unincorporated treaties like the ICESCR. Furthermore, the UK has not ratified the Optional Protocol to the ICESCR, which would allow the UN Committee on Economic, Social and Cultural Rights to receive individual complaints of breaches of the rights in the Covenant against the UK, though admittedly uptake of this protocol has been limited worldwide. As such, avenues to remedy both domestically and internationally for these rights are limited. In 2025, The UN Committee on Economic Social and Cultural Rights recommended that the UK “undertake an independent review of the legal and policy framework for economic, social and cultural rights, along with the devolved governments […] to ensure that the rights in the Covenant are given full legal effect and that victims of violations of those rights have full access to effective judicial and non-judicial remedies”.
The UK government as recently as 2024 did not see a problem with the situation, claiming it was “confident that it is fully compliant with its UN treaty obligations including ensuring effective remedies where required for any breaches”. However, that government position may be about to change as it seems the recently installed prime minister, Andy Burnham, disagrees. As Burnham and Steve Rotherham observed in Head North, a book outlining their “ambitious plan to help fix Britain” released in 2024 –
It shouldn’t feel radical to create policies that provide people with access to basic human rights like safe and decent housing, good working conditions and the ability to get health and social care – but, in Britain today, it does.
Each of the rights they mention are economic, social and cultural rights and protected by the ICESCR – housing (Article 11 ICESCR), just and favourable conditions of work (Article 7 ICESCR), the enjoyment of the highest attainable standard of physical and mental health (Article 12 ICESCR). Burnham and Rotherham go on to say “Andy and I are calling for people to have a fundamental, legal right to the essentials of life, starting with housing”. Indeed, pledging to end rough sleeping in the UK was literally Burnham’s first order of business on taking office and he has promised to embark on the biggest council house building programme “since the post-War period”. This could create a window of opportunity to elevate the status of economic, social and cultural rights within the UK and place them on a similar footing to civil and political rights.
This will not be a straight-forward task. One of the reasons that ESC rights have come to be viewed differently to civil and political rights is down to how they are framed. Article 2(1) ICECSR states the rights in the Covenant are to be achieved “progressively”, while Article 2 of the ICCPR creates an obligation to “respect and ensure”. As such there is an express acknowledgement that resource constraints may limit the rate at which states can realise socio-economic rights. Burnham faces significant resource constraints which may limit his ability to advance these objectives. With bond markets in turmoil and the uncertainty caused by the wars in Iran and Ukraine, the conditions are far from ideal for Burnham to commit to wide-ranging protections of ESC rights. On top of that, an arcane planning system and the rampant NIMBY-ism that has driven local opposition to house building and other projects across the UK are also likely to hinder Burnham’s plans. Yet, where there is a will, there is a way and Burnham has repeatedly shown a willingness to use the relatively limited scope of his powers as mayor of Manchester to pursue such policy objectives – introducing a Greater Manchester Good Landlord Charter and Good Employment Charter. As prime minister, the scope of his powers are much greater and he is likely to find support elsewhere in the UK too.
In Northern Ireland, an Ad Hoc Committee on a Bill of Rights was established in the Assembly to consider the creation of a bill of rights for Northern Ireland which contained rights supplementary to the ECHR. In its report, it noted strong popular support, and support from experts that gave evidence to the committee, for the inclusion of a right to housing, healthcare and education and workers’ rights in a Northern Ireland Bill of Rights. Yet, the incorporation of economic, social and cultural rights under the existing devolution framework is also likely to need support and assistance from Westminster, as the Scottish government discovered in their attempts to incorporate UN treaties into their legal system.
The UK Supreme Court forced Scotland to modify its incorporation of the UN Convention on the Rights of the Child following the Reference by the Attorney General and the Advocate General for Scotland – United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill case as I examined in a previous blog post (Human Rights in the UK – A New Front in Battle over Devolution?). This chastening experience for Holyrood is significant because the Scottish government has expressed a desire to take a maximalist approach to the incorporation of other international human rights treaties, including the International Covenant on Economic, Social and Cultural Rights, in a Scottish Bill of Rights. Scotland wants to adopt minimum core obligations, compliance duties for public authorities and effective remedies for the UN treaties.
The problems for Scotland in pursuing this objective have been twofold. First, as McHarg notes, any bill incorporating these treaties “will need to be carefully drafted to ensure that it does not fall foul of the limits on legislative competence contained in the Scotland Act 1998”. Incorporation will likely necessitate exercising powers that are both devolved and reserved meaning Scotland may struggle to take the maximalist approach toward incorporation that they clearly wish to. Second, the previous UK government chose to make human rights advancement an area in which to exert their power over the devolved authorities taking what Busby describes as a “provocatively regressive approach”.
Meanwhile, Wales has been exploring the possibility of adopting a Human Rights (Wales) Act, as Sarah Nason recently examined in this blog. While Wales has largely focused on incorporating the Convention on the Elimination of All Forms of Discrimination Against Women and the UN Convention on the Rights of Persons with Disabilities into Welsh law, both of these treaties contain a combination of ESC and civil and political rights. Yet, Wales faces similar constraints vis-a-vis devolved powers to Scotland. As Sarah notes, if Wales wished to incorporate Article 10 of CEDAW, which concerns equality in education, it would face difficulties. While education is devolved, equal opportunities remains a reserved power and it would also overlap with existing protections for education in Article 2 of Protocol 1 of the European Convention on Human Rights (ECHR). The Senedd lacks legislative competence to introduce laws which modify either the Equality Act 2010 or the Human Rights Act 1998 (incorporating the ECHR).
Thus, Burnham has a unique opportunity – receptive devolved governments, chafing at the constraints of devolution in their efforts to enhance human rights protections, a generation of voters unable to afford their own homes and a public increasingly concerned about food security and its increasing cost. Burnham has a generational opportunity to push for stronger guarantees of economic, social and cultural rights across the UK. The question is, will he take it?
Stuart Wallace.
With thanks to Dr. Clare James for her comments on a previous version of this post.
Stuart Wallace is an Associate Professor at the University of Leeds where he teaches constitutional law and international human rights law. He is a contributing writer for the Constitution Society.
The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.