The future of economic, social and cultural rights in Scotland: prospects for meaningful enforcement

The area of economic, social and cultural (ESC) rights law is often misunderstood and under-utilised in the public law domain across the UK’s legal jurisdictions. Whilst public law engages with ESC rights across areas such as health, social care, education, social security, housing and social services it does not traditionally embrace broader conceptual frameworks that encompass the full international human rights framework. When socio-economic rights are addressed in the public law sphere they tend to feature under the aegis of something else. In other words, our discourse around social rights is dominated by existing domestic human rights structures and our existing domestic human rights structures marginalise social rights to the side lines – such as forming aspects of civil and political rights, or featuring as part of formal equality. This pre-disposition is to be expected. Why would public law lawyers concern themselves with the full breadth of economic, social and cultural rights if the domestic system has not incorporated them? Why would they seek to invoke international instruments in court to be told that they hold no force unless incorporated into domestic law?