The Potential and Limits of An Equal
The Potential and Limits of An Equal
The Potential and Limits of An Equal
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THE POTENTIAL AND LIMITS OF AN EQUAL
RIGHTS PARADIGM IN ADDRESSING
POVERTY
Sandra Fredman
BA MA BCL FBA
Rhodes Professor of Law, Oxford University
Honorary Professor of Law, University of Cape Town*
1 Introduction
Poverty is increasingly recognised as a human rights issue. As Paul Hunt,
previous Special Rapporteur for Health, tellingly put it, "[h]uman rights
are not just about prisoners of conscience, they are also about prisoners of
poverty."' But how do we address poverty through human rights? The focus
of most of the papers in this issue is on socio-economic rights. The aim of
this paper is to consider what role the right to equality can and should play in
relation to poverty. The right to equality is important for reasons which are
both pragmatic and principled. While socio-economic rights are still fighting
for full recognition within the human rights arena, the right to equality has
an old and well established position. Indeed, in jurisdictions without express
socio-economic rights within their constitutional bills of rights, the right to
equality, together with rights to life and security, are potentially the primary
vehicles for establishing a human rights approach to poverty. Thus Brodsky
and Day have forcefully argued that women's right to equality brings with it a
justiciable right to income security.2 This makes it important on a pragmatic
level to explore the role of the right to equality in addressing poverty.
This in turn requires a deeper understanding of the relationship between
poverty and the traditional constituency of equality rights, namely inequality
on the grounds of race, gender or other status. With the growing recognition
of the concentration of poverty within status groups has come an increasing
overlap between the areas of concerns of anti-poverty policy and equality
law. Researchers and policy-makers continue to wrestle with the extent to
which inequality should be part of the definition and measurement of poverty.
Equally contested is the question of whether equality should be the desired
outcome of anti-poverty measures, and if so, what this would entail. At the
same time, deepening understandings of substantive equality have illuminated
the continuities between "status" inequalities (or inequalities on the grounds
I am grateful to the anonymous reviewers for their very helpful comments and to Laura Hilly and Chris
McConnachie for their research assistance in the final draft of this paper.
P Hunt "Statement to the Panel on Maternal Mortality and the Human Rights of Women" (2008) UN
Human Rights Council I <http://www.essex.ac.uk/human rightscentre/ research/rth/pressreleases.
aspx> (accessed 11-11-2011).
2 G Brodsky & S Day "Beyond the Social and Economic Rights Debate: Substantive Equality Speaks to
Poverty" (2002) 14 CanadianJ of Women & L 185 189.
566
AN EQUAL RIGHTS PARADIGM IN ADDRESSING POVERTY 567
of race, gender, disability, et cetera) and poverty. Groups which suffer from
discrimination on status grounds are disproportionately represented among
people living in poverty. Conversely, people living in poverty experience many
of the elements of discrimination experienced by status groups, including lack
of recognition, social exclusion and reduced political participation.
The paper begins by considering the relationships between poverty and
inequality, firstly from the perspective of distributive inequalities, and then
from the perspective of status inequality or discrimination. In the third part,
I briefly sketch an analytic framework within which both poverty and status
inequality might be located. In the fourth part, I consider how a right to
equality might function in order to contribute towards addressing poverty,
drawing on the experience in four English speaking jurisdictions: Britain, the
US, Canada and South Africa. Always bearing in mind the need to be sensitive
to legal and social differences between countries, the paper focuses on three
approaches which have been attempted in these jurisdictions. The first is to
include poverty as a protected characteristic or a ground of discrimination.
Secondly, the right to equality can be used to challenge those anti-poverty
measures which are under-inclusive in that they exclude status groups (such
as same-sex partners, Gypsies and Travellers, or asylum-seekers) or entrench
status inequalities (for example by constructing women as dependants). The
third arises in relation to "fourth generation" or proactive understandings of
equality, which recognise that human rights are not merely about refraining
from discrimination, but also include a positive duty to address inequality.
The strong correlation between status inequality and poverty means that
positive duties to address status inequality bring with them a duty to address
the distributive disadvantage attached to status.
The paper concludes that viewing poverty through the lens of substantive
equality allows us to illuminate the ways in which poverty, like status
discrimination, generates stigma, social exclusion and loss of autonomy. It
also demonstrates that a genuine commitment to addressing status inequality
necessarily entails addressing the poverty and economic disadvantage that
have resulted from structural discrimination against women, black people,
people with disabilities and other status groups. This in turn suggests that
the right to equality can have important traction in the field of poverty and
distributive inequality. However, in the jurisdictions examined here, there
remains a deep reluctance to regard the right to equality as generating social
rights in its own right. The result is that while the right to equality potentially
makes a valuable contribution to aspects of poverty based on mis-recognition
and social and political exclusion, it has not yet been sufficiently developed
to address distributive inequalities in its own right. The alliance with socio-
economic rights, as is the case in South Africa, is more likely to yield progress
on both redistributive and recognition fronts.
"On the whole the [capabilities approach] holds that the question we need to ask is what is adequate
- what basic minimum justice requires. Thus it employs the notion of a threshold, and does not
9
comment on what justice requires us to do about inequalities over the threshold."
M Nussbaum "Constitutions and Capabilities: 'Perception' Against Lofty Formalism" (2007) 121 Harv L
Rev 4 12 (original emphasis).
1o P Alcock UnderstandingPoverty3ed (2006) 64.
1 64.
12 Townsend (1962) The British JournalofSociology 218-219.
" 219.
14 221 citing JK Galbraith The Affluent Society (1958) 252.
' Alexy ConstitutionalRights 284.
570 STELL LR 2011 3
included in his notion of necessaries, "not only the commodities which are
indispensably necessary for the support of life, but whatever the custom of the
country renders it indecent for creditable people, even of the lowest order, to
be without." 6 For him, then, a linen shirt was indispensable. The role of basic
needs in defining a person as a full and respected member of society has been
further elaborated in more recent research. For example, Dowler and Leather
argue that food is "an expression of who a person is". There are many ways
in which food represents a social as well as physiological need. People in
poverty lack more than the basic nutrients calculated strictly according to
necessary calories. They also lack the ability to maintain conventional eating
patterns, of experimenting with new diets or of enjoying eating as a social
activity.is
The absolutist definition of poverty does more than ignore the central
relationship between poverty and inequality. It can also entrench inequality
in important ways. Firstly, it assumes inferiority on the part of people in
poverty by defining their needs on their behalf. Rowntree, for example, used
the work of nutritionists to calculate the number of calories and amount of
protein thought to be required by the average man. On the basis of this, he
determined the cost of purchasing a standard diet. This assumes that people
should not have personal tastes; and ignores the role of social expectations
and advertising. It may also set the standard of poverty much too low. As
Townsend points out, individuals may not have the available expertise or the
access to the appropriate shopping or cooking facilities, to translate their own
budgets into precisely the standard diet Rowntree had assumed for them.'9
Secondly, the absolutist definition makes assumptions about people's needs on
the basis of stereotypical roles assigned for them. Most seriously, Rowntree
and other poverty analysts assumed that women need less than men, thus
setting the poverty standard for women at a particularly low level. The
absolutist approach also ignores the fact that time is itself a resource. As Lister
points out, time is needed to convert resources into living standards, and this
is frequently women's time. 20 Thus women's unpaid work is, as in many
other contexts, denuded of value. Thirdly, by setting the standard at a level
unrelated to a general rise in living standards, the absolutist approach makes
it appear that people are no longer in poverty if they have benefitted from a
general rise in living standards. When translated into anti-poverty policies,
this means that success in decreasing poverty can legitimate continuing
extreme inequalities. 2 1
A Smith An Inquiry into the Nature and Causes ofthe Wealth ofthe Nations (1892) Book V, ch 2, part I.
1 E Dowler & S Leather "Spare Some Change for a Bite to Eat? From Primary Poverty to Social Exclusion:
The Role of Nutrition and Food" in J Bradshaw & R Sainsbury (eds) ExperiencingPoverty (2000) 200.
' 200.
" Townsend (1962) The British JournalofSociology 217.
20 Lister Poverty 41.
21 There are also important critiques of a minimalist approach from within the field of socio-economic
rights which are beyond the scope of this paper. See B Porter "The Crisis in ESC Rights and Strategies
for Addressing It" in J Squires, M Langford & B Thiele (eds) The Road to a Remedy: Current Issues in
the LitigationofEconomic, Social and CulturalRights (2005) 9-10; D Bilchitz Povertyand Fundamental
Rights: The Justificationand Enforcement ofSocio-Economic Rights (2007) 197-207.
AN EQUAL RIGHTS PARADIGM IN ADDRESSING POVERTY 571
The relative definition of poverty has several advantages. Perhaps the most
important is its ability to capture the ways in which social expectations can
themselves structure poverty. Thus, as Sen shows, African Americans may
well be many times richer in terms of incomes than poorer people in the rest of
the world, even when taking account of price differences. However, they are
decidedly poorer than American whites. 22 As a start, even when one's income
is high in terms of absolute standards, more income is needed to buy enough
commodities to achieve the same social functioning:
"The need to take part in the life of a community may induce demands for modem equipment
(televisions, videocassette recorders, automobiles and so on) in a country where such facilities are
more or less universal (unlike what would be needed in less affluent countries), and this imposes a
strain on a relatively poor person in a rich country even when that person is at a much higher level of
23
income compared with people in less opulent countries."
The logical conclusion of the critique of the absolute standard might seem
to entail rejecting an inevitably artificial line below which individuals are
considered poor, and instead focusing on the gaps between the best off and
the worst off in society. However, the relative definition of poverty has its
own difficulties. Most importantly, does a relative definition of poverty simply
collapse the distinction between inequality and poverty in unhelpful ways?
Given that there will always be some sections of society that are badly off in
relative terms, it would, on this approach, be impossible to eliminate poverty:
a society might improve its general living standards without ever reducing the
number of those in poverty. More problematically, if the vast majority have
insufficient for an adequate life, there might seem to be little or no poverty;
and if there is a rapid decline due to a recession or natural disaster, poverty
would not seem to increase.24 It is also difficult to determine whether anti-
poverty programmes have been successful. Sen concludes that
"[i]t is clear that somewhere in the process of refining the concept of poverty from what is viewed as
the crudities of Charles Booth's or Seebohm Rowntree's old-fashioned criteria, we have been made
to abandon here an essential characteristic of poverty, replacing it with some imperfect representation
of inequality as such."
Conversely,
"[i]t would be absurd to call someone poor just because he had the means to buy only one Cadillac a
day when others in that community could buy two of these cars each day. The absolute considerations
cannot be inconsequential for conceptualising poverty.",28
This has resonances with the minimum core debate within the socio-
economic rights dispute. The question of minimum core is not, however, dealt
with here. 29
One widespread way of distinguishing poverty from inequality between
those with acceptable living standards while maintaining a relativist view is
to establish a poverty line. Thus the European Union counts people as poor
if their income falls below 60% of the median of the income distribution.30
While this is a good start, it still runs into difficulties if it ignores inequalities
between those beneath the poverty line. Therefore as Alcock shows, anti-
poverty measures may appear successful because they lower the numbers
of people below the poverty line. However, it is easier to move those just
below the line to just above it than to achieve the same result with those well
below the line.31 It is therefore important to pay attention to the distribution
of income among the poor themselves. This can be expressed in the form of
an "income gap", which measures the additional income that would be needed
to bring all of the poor up to the level of the poverty line.32
The above assumed that income should be the main measure of relative
poverty. However, it is now well recognised that income is not the only type
of poverty. Townsend argues that inequitable distribution of housing, medical,
educational and other resources should also be taken into account.33 This
approach is now reflected in the European Commission's definition, adopted
in 1984, which defines the poor as "persons, families and groups of persons
whose resources (material, cultural and social) are so limited as to exclude
them from the minimum acceptable way of life in the Member State in which
they live".34
More far-reaching still has been Sen's recognition that the same level of
income might yield very different levels of quality of life depending on the
individual's personal and social capacity. Therefore it is not so much income
but an individual's ability to be and do what they choose to be and do which
measures whether a person is in poverty. This is the basis of Sen's ground-
breaking "capabilities approach". This judges individuals in terms of the
"capabilities a person has, that is, the substantive freedoms he or she enjoys to
lead the kind of life he or she has reason to value".35 It may not be feasible for
a person to achieve the goals she values due to social, economic, or physical
constraints, as well as due to political interference. Sen states:
"What people can positively achieve is influenced by economic opportunities, political liberties,
social powers, and the enabling conditions of good health, basic education, and the encouragement
36
and cultivation of initiatives."
For further discussion of the minimum core approach see S Fredman Human Rights Transformed: Positive
Rights andPositiveDuties (2008) 84-87.
30 Alcock UnderstandingPoverty 16-17; Lister Poverty42.
3' Alcock UnderstandingPoverty 85.
32 A Sen InequalityReexamined (1995) 103.
3 Townsend (1962) The BritishJournalofSociology 223-224.
34 Council of the European Communities "Council Decision on Specific Community Action to Combat
Poverty" (1984) 85/8/EEC art 1(2).
3 Sen Development as Freedom 86; see also M Nussbaum Women andHuman Development (2000).
36 Sen Development as Freedom
S.
AN EQUAL RIGHTS PARADIGM IN ADDRESSING POVERTY 573
37 88.
38 96.
3 Sen Inequality Reexamined 111.
40 Sen (1983) Oxford Economic Papers 161.
41 Sen Inequality Reexamined 109.
42 110.
4 M Stein "Nussbaum: A Utilitarian Critique" (2009) 50 Boston College LR 489 494-497, 508-509.
4 R Wilkinson & K Pickett The Spirit Level: Why more Equal Societies almost always Do Better (2009)
15-24.
574 STELL LR 2011 3
not just the most deprived, but also the better off Thus an individual from
the lowest-earning 20% of society in a more equal society is more likely to
live longer than her counterpart from a less equal society. By the same token,
perhaps surprisingly, someone from the highest-earning 20% in a more equal
society has a longer life expectancy than an equivalently well off person in a
less equal society.45 Similarly, more equal societies tend to have lower infant
mortality,46 and lower levels of crime47 than more unequal societies, even
where the latter have higher average rates of income.
Conversely, distributive equality should not be determined independently
of minima. Otherwise, distributive equality could simply be achieved by
removing resources from the better off (levelling down), without redistributing
such resources to the worst off. To avoid such a response, it is necessary to
have regard both to absolute basic requirements for survival and those which
are relative to what others have. 48 Of particular interest in this respect is the
Child Poverty Act 2010, which gives government the task of eliminating child
poverty in Britain by 2020. This includes four specific measures of poverty:
relatively low income; combined low income and material deprivation;
absolute low income; and persistent poverty. 49
4 Ch 6.
6 82-83.
' Ch 10-11.
R Goodin "Relative Needs" in A Ware & R Goodin (eds) Needs and Welfare (1990) 15 15-20.
Ss 1-5 of the Child Poverty Act.
G Rosenblat & K Rake "Gender and Poverty" (2003) FawcettSociety <http://www.fawcettsociety.org.uk/
documents/pov_000.pdf> (accessed 12-10-2011); B Goldblatt "The Right to Social Security - Addressing
Women's Poverty and Disadvantage" in B Goldblatt & K McLean (eds) Women's Social and Economic
Rights: Developments in South Africa (2011) 35. See generally World Bank World Development Report
2011: Gender Equality and Development (2011) 201 <http://econ.worldbank.org/WBSITE/EXTERNAL/
EXTDEC/EXTRESEARCH/EXTWDRS/0,,contentMDK:20227703pagePK:478093piPK:477627the
SitePK:477624,00.html> (accessed 20-11-2011).
This section is taken from S Fredman "Engendering Socio-Economic Rights" (2009) 25 SAJHR 1.
AN EQUAL RIGHTS PARADIGM IN ADDRESSING POVERTY 575
52 Goldblatt "The Right to Social Security" in Women's Social and Economic Rights 35.
sa Rosenblatt & Rake "Gender and Poverty" Fawcett Society 1.
54 J Hills, M Brewer, S Jenkins, R Lister, R Lupton, S Machin, C Mills, T Modood, T Rees & S Riddell An
Anatomy ofInequality in the UK (2010) 11-13.
ss Low Pay Commission National Minimum Wage Report (2009) 98; Report from the Commission to the
Council, the European Parliament, the European Economic and Social Committee, the Committee of the
Regions Equality Between Women And Men - 2009 (Com (2009) 77 Final) 4.
International Labour Office Global Employment Trends for Women: 2009 (2009) 10-12; World Bank
World Development Report 2011 79-80.
Rosenblatt & Rake "Gender and Poverty" Fawcett Society 3.
S Chant "Rethinking the 'Feminisation of Poverty' in Relation to Aggregate Gender Indices" (2006) 7 J
Hum Dev 201 208.
5 Brodsky & Day (2002) CanadianJof Women & L 189.
6o Hills et al Anatomy oflnequality
26.
61 Low Pay Commission NationalMinimum Wage
Report 15.
62 Low Pay Commission National Minimum Wage Report xii. For earlier reports containing
equivalent
findings see Low Pay Commission <http://www.lowpay.gov.uk/lowpay/rep_a p index.shtml> (accessed
12-10-2011).
576 STELL LR 2011 3
69 For valuable analyses of substantive equality, see C Albertyn "Substantive Equality and Transformation
in South Africa" (2007) 23 SAJHR 253; C McCrudden "Equality and Non-Discrimination" in D Feldman
(ed) English PublicLaw 2 ed (2009) 499; Brodsky & Day (2002) CanadianJof Women & L 185.
7o Law v Canada[1999] 1 SCR 497 (Canadian Supreme Court) para 51.
71 Law v Canada[1999] 1 SCR 497 (Canadian Supreme Court); Gosselin v Quebec [2002] SCC 84 (Canadian
Supreme Court); R v Kapp [2008] SCC 41 (Canadian Supreme Court).
72 S Fredman DiscriminationLaw 2 ed (2011) ch 1.
n N Fraser & A Honneth Redistributionor Recognition?A Politcal-PhilosophicalExchange (2003) 1.
7 IM Young Justice andthe Politicsof Difference (1990) 16.
7 16.
578 STELL LR 2011 3
Measure" in J Hills, J Le Grand & D Piachaud (eds) UnderstandingSocial Exclusion (2002) 30 30-32.
AN EQUAL RIGHTS PARADIGM IN ADDRESSING POVERTY 581
its focus is on the relationship between the included and the excluded, and in
particular on the role of the former in causing or perpetuating exclusion. 90
"A person's social and economic situation when living in poverty or being homeless may result in
pervasive discrimination, stigmatization and negative stereotyping which can lead to the refusal of,or
unequal access to, the same quality of education and health care as others, as well as the denial of or
92
unequal access to public places."
However, as yet this has not been achieved in the fourjurisdictions examined
here. Insomejurisdictions, such as UKdomestic anti-discrimination legislation,
the equality guarantee includes an exhaustive list of grounds.93 Including
poverty entails convincing the legislature to amend the statute. Although a
new Equality Act was adopted in 2010, with an expanded list of grounds,
poverty was not included. As will be seen below, a short-lived provision
included socio-economic disadvantage among the proactive equality duties
introduced by the statute. But it was made clear that this should not include an
individual right to claim on the grounds of socio-economic disadvantage.
Other equality guarantees are open-ended94 or non-exhaustive.
Including poverty would entail convincing courts that it should be regarded
as an analogous ground. Most resistant to this possibility is the US Supreme
Court, which has been particularly adamant in its insistence that policies
which discriminate against poor people cannot attract heightened judicial
scrutiny. Unlike racial classifications, which are suspect because they concern
a "discrete and insular minority"96 , poor people should not be regarded as
discrete or insular.9 7 Therefore a system which funded schools on the basis of
local taxes, leading to under-resourced schools in poor areas, was not subject
to the heightened scrutiny which would have been appropriate had the system
provided inferior schools to African Americans.
More progress has been made in Canada, where, at provincial level, three
Canadian jurisdictions have adopted "social condition" as a prohibited
ground of discrimination,9 and the remaining jurisdictions recognise
narrower grounds such as social origin, source of income and receipt of public
assistance. 99 At federal level, the Canadian Human Rights Act Review Panel,
which reported in 2000, found "ample evidence of widespread discrimination
based on characteristics related to social conditions, such as poverty, low
education, homelessness and illiteracy".100 It strongly recommended the
inclusion of "social condition" as a ground of discrimination under the federal
92 Para 35.
9 Ss 4-12 ofthe Equality Act.
94 Amendment XIV of the US Constitution (1868).
See for example s 9 of the Constitution of the Republic of South Africa, 1996 and s I (definition of
"prohibited grounds") of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of
2000; art 14 of the European Convention on Human Rights 1950 ETS 5; 213 UNTS 221; s 15 of the
Canadian Charter of Rights and Freedoms (Part I of the Constitution Act, 1982).
96 United States v Carolene ProductsCo 304 US 144, 152 n 4 (US Supreme Court).
San Antonio Independent School Districtv. Rodriguez 411 US 959 (1973) (US Supreme Court).
98 See s 10 of the Quebec Charter of Human Rights and Freedoms, RSQ C-12 Quebec, New Brunswick and
the Northwest Territories. See W MacKay & N Kim Adding Social Condition to the CanadianHuman
Rights Act Canadian Human Rights Commission (2009) 2.
See the summary in Canadian Human Rights Act Review Panel Report of the CanadianHuman Rights
Act Review Panel, Ottawa: Department of Justice and Attorney General "PromotingEquality: A New
Vision" (2000) 107.
" 114.
AN EQUAL RIGHTS PARADIGM IN ADDRESSING POVERTY 583
'os 117.
02 Bill C-559 Third Sess, 40th Parliament, 59 Elizabeth II, 2010 <http://www.parl.gc.ca/HousePublications/
Publication.aspx?Docld=4640207&File=24&Language=E&Mode=l> (accessed 12-10-2011).
103 MacKay & Kim Adding Social Condition to the Canadian Human Rights Act 64.
104S 34 of the Promotion of Equality and Prevention of Unfair Discrimination Act.
0os 1(xxii).
'0' S I of Bill C-559 Third Sess, 40th Parliament, 59 Elizabeth II, 2010.
584 STELL LR 2011 3
Quebec, which has included social condition since its Charter was adopted
in 1975, is of particular interest, in that it includes both an objective element,
referring to factors such as income, occupation or level of education, and a
subjective component, which reflects the recognition dimension of poverty,
namely social perceptions or stereotypes associated with low levels of income,
education or occupation.' 0 7 The South African statute uses the term "socio-
economic status", but goes on to define it as including "the social or economic
condition or perceived condition of a person who is disadvantaged by poverty,
low employment status, or lack of or low-level educational qualifications". os
What would be the added value of such a ground? As the Canadian Human
Rights Panel put it, "at the very least, the addition of this ground would ensure
there is a means to challenge stereotypes about the poor in the policies ofprivate
and public institutions".109 In Quebec, the inclusion of "social condition" has
meant that stereotypical assumptions, such as those of landlords refusing
to let premises to social assistance recipients or precarious workers, can be
challenged. 0 Equally, there are a range of indirectly discriminatory practices
which could be challenged. The Canadian Panel found evidence of barriers to
employment (for example, unnecessarily high educational requirements, costs
of paying for aptitude tests, tools or uniforms, or transport to interviews) and
services, particularly in banking, telephone services (for example, through
the need to provide a deposit), and housing. It is of course possible that the
same effect could be achieved without an express ground, if the experience
of discrimination can be fitted into that of a "status" group such as gender or
race. But this would not include disadvantaged or socially excluded individuals
such as poor white men who are not members of historically stigmatised status
groups. The same is true for indirect discrimination. The correlation between
poverty and status would need to be proved statistically, and may exclude
areas where all people in poverty, not just women, blacks, ethnic minorities
or people with disabilities, are affected."' Nevertheless, this is not a complete
solution, particularly if housed within an individualistic complaints system.
While recognition claims may succeed, distributive inequalities are unlikely
to be addressed. Indeed, even if a claim succeeds in principle, redistributive
issues may re-emerge as a potential defence.
107MacKay & Kim Adding Social Condition to the Canadian Human Rights Act 22-23.
1os S I(xxvi) of the Promotion of Equality and Prevention of Unfair Discrimination Act. It should be noted
that socio-economic status is only a directive principle, not a ground as such. See s 34(1).
' Canadian Human Rights Act Review Panel Promoting Equality 110.
no MacKay & Kim Adding Social Condition to the Canadian Human Rights Act 24.
1n 108.
AN EQUAL RIGHTS PARADIGM IN ADDRESSING POVERTY 585
Although this has been criticised as not going far enough, it can
in practice function as a valuable way of extending existing benefits to
excluded groups, or challenging the rules of eligibility on the grounds that
they reinforce stereotypes or exclude marginalised groups. In a surprisingly
similar approach, the European Court of Human Rights ("ECtHR") has held
that a member State is not obliged to provide welfare to its citizens. But if it
does, its scheme is subject to the equality guarantee." 5 Similarly, the State
has no duty to provide housing"'6 or education,'"7 but if it does, it must provide
them without discrimination." 8 This approach has been replicated in the UK
courts, applying the European Convention on Human Rights ("ECHR") via
the Human Rights Act 1998."
The South African Constitution has the advantage of containing express
socio-economic rights. However, these rights are qualified: they do not
give rise to immediate entitlements, but instead require the State to take
reasonable measures within available resources to progressively realise the
right.120 The equality guarantee in section 9, by contrast, gives an immediate
right to equality. By interpreting the Constitution so that rights reinforce
one another,121 the equality guarantee can considerably strengthen socio-
economic rights. This use of the equality guarantee to extend benefits to an
excluded class is most clearly seen in Khosa, where permanent residents were
denied the right to child benefit and old age pensioners provided to citizens.
112Auton v British Columbia (Attorney General) [2004] 3 SCR 657 (Canadian Supreme Court).
1' Para 42.
114B Porter "Expectations of Equality" (2006) 33 Supreme Court LR 23.
us Stec v United Kingdom (2006) 43 EHRR 47 (ECtHR) para 53.
116 Chapman v United Kingdom (2001) 33 EHRR 18 (ECtHR) para 99.
" Belgian Linguistic Case (No 2) (1968) 1 EHRR 252 (European Court of Human Rights) para 3.
' Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557 (HL); DH v Czech Republic Application
No 57325/00 (2008) 47 EHRR 3 (ECHR (Grand Chamber)).
"l Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557 (HL).
120See for example ss 26(2), 27(2).
121This follows from s 39(1)(a) of the Constitution which provides that when interpreting the Bill of Rights
courts "must promote the values that underlie an open and democratic society based on human dignity,
equality and freedom". As a result, the Constitutional Court has affirmed that "constitutional rights are
mutually interrelated and interdependent and form a single constitutional value system". See De Reuck v
DirectorofPublic Prosecutions, WitwatersrandLocal Division 2004 1 SA 406 (CC) para 55. See further
S Liebenberg & B Goldblatt "The Interrelationship Between Equality and Socio-Economic Rights under
South Africa's Transformative Constitution" (2007) 23 SAJHR 335.
586 STELL LR 2011 3
The Court held that this was a breach of the equality guarantee and the right
to social security.122
The question then becomes whether a court is prepared to recognise that
the boundaries drawn by a particular classification are in fact stereotypical.
In Auton, the Canadian court concentrated on finding an appropriate
comparator group. In a highly restrictive decision, the claim was ultimately
rejected because no "mirror" group could be found which was treated less
favourably.123 However, in the more recent case of Withler v Canada(Attorney
General),124 the Court rejected the emphasis on a mirror group, recognising
that by looking for sameness, the Court might find it impossible to identify
substantive inequalities. Instead, the key test was whether the law perpetuates
disadvantage or negative stereotypes. Nevertheless, the Court rejected the
claim that a law reducing pensions in the armed forces as a person got older
was based on age-based stereotypes that people needed less as they got older.
As a broad-based scheme meant to cover the competing interests of various
age groups, distinctions on general criteria, including age, had to be made.
Since these were effective in achieving the goal of the provisions, the scheme
as a whole did not breach the equality guarantee.
In ECHR jurisprudence, the most successful claims for inclusion into
socio-economic benefits have been on behalf of same-sex couples,125
a pattern which is mirrored in Canada and South Africa. This is possibly
because sexual orientation is ground which resonates most strongly with the
recognition dimension of substantive equality, rather than the distributive
dimensions. This approach has also been effective in relation to groups, such
as the Roma, where there is an almost complete overlap between status and
poverty. Roma in Europe are not only the largest single minority, but are the
most disadvantaged on all measures, whether in terms of income, housing,
health or education. Using the equality principle to challenge such policies is
potentially more effective than requiring minimum standards on their own,
since it measures deprivation relative to local standards. This means that such
measures can address "pockets of poverty", relative deprivation and social
exclusion. A series of challenges have been mounted in the European Court
of Human Rights against exclusion and segregation of Roma children in
schools in several countries in Eastern Europe.126 In these cases, the State has
argued that placing Roma children in "special" schools and classes was aimed
at addressing their specific needs. In reality, however, such special schools
and classes provided inferior education and reinforced the marginalisation of
Roma children. Initially, the Court took a formal view of equality, holding that
the fact that these policies were not expressly directed against Roma meant
that there was no breach of prohibition on race discrimination. However, in an
important breakthrough, the Court recognised the indirectly discriminatory
122 Khosa v Minister ofSocial Development 2004 6 SA 505 (CC) paras 68-85.
123Auton v British Columbia (Attorney General)[2004] 3 SCR 657 (Canadian Supreme Court).
124 Withler v Canada(Attorney General) [2011] 1 SCR 396 (Canadian
Supreme Court).
12sGhaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC
557 (HL).
126 v Czech Republic (2008)47 EHRR 3 (ECtHR); Sampanis & Others v Greece Application no. 32526/05,
unreported judgment of 5 June 2008 (ECtHR); Oriug & Others v Croatia(2011) 52 EHRR 7 (ECtHR).
AN EQUAL RIGHTS PARADIGM IN ADDRESSING POVERTY 587
effects of these policies. Particularly important was its rejection of the State's
argument that parents had agreed to these measures, and its corresponding
acceptance of the real constraints on choice. 127
However, as the excluded class more closely resembles a group defined by
its poverty, the standard of scrutiny tends to be diluted. In both the UK and
Canada, equality guarantees have been used to challenge welfare to work
programmes which prescribe a lower welfare rate for claimants under a given
age or make the full benefit conditional on participation in training or work
programmes. In both these cases, the Court did not regard socio-economic
disadvantage as itself infringing on an individual's dignity. Thus the UK
case of R (on the application of Reynolds) v Secretary of Statefor Work and
Pensionsl28 concerned regulations pursuant to which applicants under 25
years of age were entitled to less by way ofjobseeker's allowance and income
support than those of 25 years and over. It was argued that this breached
Article 14 of the ECHR by discriminating against the applicant on grounds of
her age. In the House of Lords, Lord Rodgers stated:
"There is no doubt that the relevant Regulations, endorsed by Parliament, deliberately gave less to
those under 25. But this was not because the policymakers were treating people under 25 years of age
29
as less valuable members of society."l
127DH v Czech Republic Application No 57325/00 (2006) 43 EHRR 41 (ECtHR) para 142.
128Carson,R (on the applicationof) v SecretaryforStatefor Work andPensions [2005] 2 WLR 1369; [2005]
UKHL 37 (UKHL).
129 R (on the applicationof Reynolds) v Secretary of Statefor Work and Pensions, R (on the applicationof
Carson)v SecretaryofStatefor Work andPensions [2005] 2 WLR 1369; [2005] UKHL 37 (UKHL) para
45.
130Gosselin v Quebec [2002] SCC 84 (Canadian Supreme Court).
13' Gosselin v Quebec [2002] SCC 84 (Canadian Supreme Court) para 61 (per McLachlin J). See R v Kapp
[2008] SCC 41 (Canadian Supreme Court).
132Regina (RJM) v SecretaryofStatefor Work andPensions [2008] UKHL 63 (HL).
133Para 56.
588 STELL LR 2011 3
In Britain, over the past two decades, positive duties in relation to equality
have been imposed by statute on public bodies. The duty is a light-touch one:
instead of requiring public bodies to take steps to achieve equality, on the
model of socio-economic rights, it requires such bodies to "have due regard
to" the need to eliminate discrimination, advance equality of opportunity and
foster good relations.' 36 This "public sector equality duty" has been concerned
with status inequality, rather than distributive inequality or poverty, although
the Equality Act13 7 briefly signalled a recognition of the role of equality in
relation to poverty by including a specific duty in relation to socio-economic
disadvantage. However, a change of heart came with the change of government
in 2010, and the relevant Minister announced that the socio-economic duty
would not be brought into effect.13 8
In the event, the status-based equality duty will continue to bear the burden of
litigation on behalf people in poverty in Britain. Indeed, there has been a spate
of litigation challenging cuts in welfare on the basis that the public authority
failed to pay due regard to the impact on women, people with disabilities, or
ethnic minorities. In the absence of the express socio-economic disadvantage
duty, these claims must be framed in terms of status inequality. At times the
intersection is close enough for all people living in poverty to benefit from the
gains made by a particular status group.' 39 However, the duty has proved to
5 Conclusion
Analysing poverty through the lens of substantive equality reveals that
many of the stigmatic and exclusionary aspects of status discrimination are
also a feature of poverty. Moreover, measures aimed at addressing poverty
can themselves reinforce status discrimination. It is in these cases that the
right to equality has most traction. Indeed, lifting some of the stigmatic
and exclusionary barriers associated with poverty can have important
redistributive consequences in themselves. However, courts and legislatures
remain reluctant to regard the right to equality, interpreted and enforced
by judges, as the appropriate arena for addressing what are viewed as the
essentially distributive and polycentric issues that arise in relation to poverty.
It is possibly in the area of "fourth generation" equality rights, entailing
positive duties in relation to both socio-economic disadvantage and status
inequality, that attention should be focused.
SUMMARY
The aim of this paper is to consider what role the right to equality can and should play in relation to
poverty. Unlike socio-economic rights, which are still fighting for full recognition within the human
rights arena, the right to equality is well established and could therefore be a primary vehicle for
140 R (Brown) v Secretary ofState for Work and Pensions[2008] EWHC 3158 (Admin) (HC).
141 R (on the applicationofKaur & Another) v London Borough ofEaling [2008] EWHC 2062 (HC) (review
of decision to close loss-making branches of the postal service, impacting on access to postal services
by the disabled, elderly and "vulnerable" persons); The Queen (on the applicationof Harris)v London
Borough ofHaringey[2010] EWCA Civ 703 (CA) (planning permission for a substantial development set
aside for failing to show due regard to the need "to promote equality of opportunity and good relations
between persons of different racial groups" under s 71(1)(b) of the Race Relations Act); The Queen (on
the ApplicationofHajrula)vLondon Councils[2011] EWHC 448 (Admin) (HC) (review ofdecision to cut
funding to a Roma Support Group as part of a scheme to prioritise social spending).
142 R (Domb) v London Borough ofHammersmith [2009] EWCA Civ 941 (CA) pars 67.
143 S 149(3) of the Equality Act.
590 STELL LR 2011 3
establishing a human rights approach to poverty. This in turn requires a deeper understanding of the
relationship between poverty and the traditional constituency of equality rights, namely inequality
on the grounds of race, gender or other status. The first part of the paper examines the relationships
between poverty and inequality first from the perspective of distributive inequality and then from
that of status inequality. While the relationship between poverty and distributive inequality remains
contested, deepening understandings of substantive equality have illuminated the continuities
between status inequalities and poverty. The paper then develops an analytic framework within which
both poverty and status inequality might be located. In the last section, drawing on the experience in
Britain, the US, Canada, and South Africa, the paper considers three possible ways in which a right to
equality could function in relation to poverty: including poverty as a ground of discrimination; using
equality to challenge under-inclusive or discriminatory anti-poverty measures; and "fourth generation"
models of equality, which include positive duties. It concludes that viewing poverty through the lens
of substantive equality allows us to illuminate the ways in which poverty, like status discrimination,
generates stigma, social exclusion and loss of autonomy. Conversely, status inequality will only be
fully addressed by addressing distributive inequalities. It is in these cases that the right to equality
has most traction. However, in the jurisdictions examined here, there remains a deep reluctance to
regard the right to equality on its own as generating social rights if the latter are not explicit in the
constitution. The result is that while the right to equality potentially makes a valuable contribution
to aspects of poverty based on mis-recognition and social and political exclusion, it has not yet been
sufficiently developed to address distributive inequalities in its own right.