“… my contemporary, Declan Costello, committed to social justice, was a potential force within the party. … Our two fathers had been members of the same team at the Imperial Conferences of the 1920s and had served on the Fine Gael front bench together in the 1930s and early 1940s; as a boy I had been at one party at least in Declan’s house and had crossed swords with him at a schools inter-debate in 1942; we had been friends in UCD in the mid-1940s, and we had worked together in the National Observer experiment in the late 1950s. I knew that he shared some at least of the views I had come to hold, and he was the point of access to me as far as Fine Gael was concerned”.
The late Garret Fitzgearld on Declan Costello.
The death of former Fine Gael T.D., Attorney General and former President of the Irish High Court, Declan Costello was recently announced. Not wanting to do any injustice to the achievements of Mr. Costello in areas of law and politics (see here, here and here), two cases which Costello J. gave judgment in started off my own interest in law, poverty and socio-economic rights.
O’Reilly v Limerick Corporation  ILRM 181 revolved around issues relating to the right of Traveller families living in a halting site to have access to running water, toilets, refuse collections and hard surfaces for their caravans. The claimants stated that Limerick Corporation had a duty to provide these services under the Housing Act 1966. In addition, the claimants stated that their constitutional rights had been violated due to the conditions they were forced to live in. The City Manager had described their living conditions as “totally unacceptable”. In this case, Costello J. stated that there was no constitutional right to the basic materials conditions to provide a certain minimum standard of living. If the plaintiffs’ claims were entertained, courts would, Costello J. decided, have to engage in distributive rather that commutative justice. Arguments of this nature should “be advanced in Leinster House [the Irish Parliament]” rather than the courts.
A number of years later, a similar case came before Costello J. The factual situation in O’Brien v Wicklow UDC (Unreported, High Court, June 10 1994) was similar to that of O’ Reilly. In O’Brien, persons living in a halting site where conditions were described as ‘unfit for human habitation’. The claimants argued that Wicklow had a duty to provide for basic sanitary requirements. While Costello J. based his judgment on a provision of law not in force at the time of the O’Reilly, he went on to state that the conditions in which the claimants were living, infringed their constitutional right to bodily integrity.
Subsequent constitutional jurisprudence on socio-economic rights protection accepted the initial distinctions that Costello J. made in O’Reilly between distributive and commutative justice. In T.D. v Ireland  4 I.R 259, Murphy J. stated (at p. 316) that there is no constitutional obligation on Ireland to provide “any other form of socio-economic benefit for any of its citizens, however needy or deserving.” The then Chief Justice of the Irish Supreme Court, Ronan Keane, stated (at p. 282) that he had the ‘gravest doubts’ about whether any form of socio-economic rights should ever be ‘discovered’ under Article 40 of the Irish Constitution.
Gerry Whyte has argued that there may still be glimmers of hope in relation to constitutional protection of socio-economic rights. In re Article 26 and the Health (Amendment) (No.2) Bill 2004 and O’Donoghue v. Legal Aid Board provided some deeper judicial analysis of the protection of socio-economic rights. In the Health (Amendment) (No.2) Bill case, the Supreme Court seemed to accept that in (undefined) exceptional and limited circumstances, the normal discretion of the Irish Parliament “in the distribution or spending of public monies could be constrained by a constitutional obligation to provide shelter and maintenance for those with exceptional needs” (at p. 166). In O’Donoghue, the applicant was awarded damages for the length of time it had taken to be granted civil legal aid. The right to access civil legal aid in a timely manner, was regarded by Kelly J. as incidental to the right to access courts.
The European Convention on Human Rights Act 2003 offers further avenues for challenging violations of socio-economic rights. In Doherty v Dublin South County Council  IEHC 4, the plaintiffs were an elderly couple who were members of the Travelling Community. Both suffered from a number of ailments. The local housing authority offered the plaintiffs a house into which they could move. The plaintiffs refused this offer, however, and argued that there was an obligation under the ECHRA 2003 (in particular Article 8 of the ECHR) for the housing authority to provide an adequate caravan for them. Relying in particular on the European Court of Human Rights judgment in Chapman v United Kingdom, Charleton J. refused the relief sought, noting that there was no obligation under the ECHR to provide persons with a particular form, type or standard of accommodation. However, in two subsequent cases, plaintiffs were awarded damages for a violation of Article 8 rights. In O’Donnell (a minor) v South Dublin County Council  IEHC 204, a number of family members had serious disabilities and lived in a caravan which was unsuited to their basic needs. The applicants sought damages for breach of their ECHR rights. Laffoy J. distinguished Doherty on the ground that the plaintiffs in this case had not been offered any form of alternative accommodation. Laffoy J in O’Donnell stated that this decision did not mean every member of the Travelling Community was entitled to a caravan at the expense of the State but only this particular family, who had three disabled children living in cramped, overcrowded and inappropriate conditions. Damages were to be calculated at a later date, with Laffoy J. making clear that these must be for the benefit of the disabled family members. In her judgment, Laffoy J. made extensive reference to the English court decisions in R (Bernard) v Enfield LBC and Anufrijeva v Southwark LBC.
In O’Donnell v South Dublin County Council  IEHC 454, the applicants argued that the failure to provide a disability friendly caravan resulted in a breach of Article 3 and/or Article 8 rights under the ECHR. The court held that the respondents had failed to provide adequate accommodation for Ellen O’Donnell (a fifteen year old child) who suffered from cerebral palsy and was confined to a wheel chair. Edwards J. then proceeded to make a declaration requiring South Dublin County Council to provide temporary accommodation to relieve the housing conditions of the family (in particular Ellen). However, Mr. Justice Edwards stated that he would not order that this temporary accommodation be provided by means of a caravan, and it would be for South Dublin County Council to decide how best to carry out the effect of the court’s declaration. Damages for a breach of Ellen’s Article 8 rights were to be decided at a subsequent hearing.
In all of the cases discussed above, Costello J.’s distinction between distributive and commutative justice have been central features of judicial discussion. However, it seemed that prior to his elevation to President of the High Court, Costello J’s views on constitutional protection of socio-economic rights may have been changing. Speaking at an event celebrating 50 years of the Universal Declaration of Human Rights, Costello J. (then retired) stated:
A large minority [of the Irish population] lived below the poverty line; international capitalism and market forces increased national wealth but were indifferent to its distribution; services for some of the most deprived in our community – including the poor, the mentally handicapped, young offenders and the travelling community – were chronically inadequate. Sixty years of constitutional adjudication by the courts had shown that Article 40 was not adequate to redress that imbalance, while the consensus was that the courts had enhanced the protection of the basic rights included in the Constitution. There is no reason to assume that the enjoyment of the economic and social rights of the underprivileged and deprived would not be similarly enhanced if they too were constitutionally protected.
Go n-éirí an bóthar leat.