We are delighted to welcome this post from Katie Boyle on economic, social and cultural (ESC) rights in the Irish Constitution. Katie is a PhD student at the University of Limerick and an ESRC Research Fellow at the University of Edinburgh. She is also a solicitor and has previously advised state departments and parliamentary bodies on human rights compliance. Katie has lectured in both Ireland and the UK on International Human Rights, Public Law and Constitutional Law.
On the 22 February 2014 the Constitutional Convention will examine whether economic, social and cultural rights should be constitutionalised in Ireland. In August 2013 I made a submission to the Convention outlining the legal arguments for the inclusion of economic, social and cultural (ESC) rights in the Irish Constitution. The purpose of this submission was to set out in clear and accessible terms to the Convention and to people of the island of Ireland why there is a legal mandate for ESC inclusion in the Constitution and the potential legal mechanisms through which this might occur. In advance of the Convention meeting at the end of this week I have reproduced a summary of some of the key points below.
What are economic, social and cultural rights?
Civil, political, economic, social and cultural rights form the body of human rights that are recognised and protected in international law. Examples of economic, social and cultural rights would include the right to education, the right to adequate housing, the right to a fair remuneration for work, the right to health, the right to freedom from destitution, amongst many others. ESC rights also more broadly protect vulnerable groups such as those with disabilities, children, the elderly, minority communities or those who are unemployed.
During the drafting of the Universal Declaration of Human Rights it was accepted that all rights – civil, political, economic, social and cultural rights were indivisible in nature. This means that fulfilment and enjoyment of one right is dependent on fulfilment and full protection of the other. The principle of indivisibility reaffirms that each of these rights is equal in status and that this interdependent relationship is symbiotic. So, the right to life for example, cannot be fully enjoyed, unless there is also adequate protection of the right to health, which is equally dependent on the right to adequate and safe housing and the right to freedom from destitution, the right to a minimum level of social security and so on (for some fascinating discussions on the development of the principle of indivisibility see, for example, this UNESCO consultation paper from 1947).
Are ESC rights already adequately protected in Ireland?
Civil and political rights are predominantly protected under Constitutional provisions (Articles 40-44 ) or the European Convention on Human Rights Act 2003 (incorporating the European Convention on Human Rights 1950). Neither of these mechanisms explicitly protect ESC rights (other than the right to education). Generally there is a reluctance to afford constitutional status to ESC rights through an implied interpretation of civil and political rights by the judiciary in Ireland. Under Article 45 of the Constitution the directive principles of social policy, although referring to socio-economic duties, are not enforceable in court. Some legislative rights-based measures exist, but these are piecemeal and subject to repeal. For an excellent analysis of each of these points see here. In relation to the ECHR, a more dynamic approach to the interpretation of Convention rights by the European Court of Human Rights does allow for the potential to incorporate ESC rights under the rubric of civil and political rights (see for example Yordanova v Bulgaria). The fact remains, however, that even where the dynamic interpretation is available, the domestic remedy in Ireland is limited under the 2003 Act. In some circumstances the only option available to the court following an ECHR violation is to make a declaration of incompatibility (section 5 of the 2003 Act). There is no legal requirement to change the law following this declaration. The only effective remedy then available to the individual is to seek recourse in Strasbourg (and this still does not necessarily result in a change in the incompatible law). This demonstrates that, even where international treaties are incorporated into domestic law through legislation, the court is limited in providing a domestic remedy and there is a gap in accountability. In this sense, non-justiciable constitutional mechanisms (such as the directive principles) and legislation (whether specifically providing for ESC rights or incorporating an international treaty that protects rights) do not go far enough to ensure the substantive legal protection of human rights in Ireland.
Is the Constitution the appropriate place to protect ESC rights?
The Constitution is the only place where human rights can be protected from legislation that is incompatible with human rights, from the future repeal of legislation that specifically protects human rights, or from retrogressive measures taken by the state to dismantle existing good practice in relation to human rights (such as disproportionately punitive austerity measures). This is because the court can only step in to declare actions of the state or legislation unlawful if they are unconstitutional. By affording constitutional status to ESC rights there would be a stronger mechanism in place to ensure accountability for ESC violations by ensuring an effective remedy is available to the citizen. This by no means necessarily facilitates a compensation culture or the redistribution of wealth by the judiciary contrary to the intentions of the legislature. It would merely afford the individual and the court the authority to examine the exercise of power by the state to ensure that there has been no violation of a right unless the state is in a position to justify interference (in the same way that civil and political rights are constitutionally protected).
Is there a legal mandate for ESC inclusion in the Constitution?
There is a legal mandate based on a number of international legal obligations. Ireland has ratified the International Covenant on Economic, Social and Cultural Rights 1966, the European Social Charter 1964, the Convention on the Rights of the Child 1989, the Convention on the Elimination of Discrimination Against Women 1979 and the Convention on the Elimination of Racial Discrimination 1965, each of which contain legally binding obligations to protect civil, political, economic, social and cultural rights in Ireland. There has also been a commitment to protect all human rights through other internationally legally binding obligations as a result of the peace process in Northern Ireland. These obligations are contained in the 1998 peace agreement and the international binding treaty between the British and Irish governments, which together stipulate for the protection of human rights, including ESC rights, to be extended across the island of Ireland. The UN Committee on Economic, Social and Cultural Rights has also recommended that Ireland incorporate ESC rights into the Constitution.
Through what mechanisms might ESC constitutionalisation legitimately occur?
Of course it is important to examine mechanisms that would suit the particular circumstances of Ireland. This can be done by also taking into consideration the balancing of rights and the limited resources of the state. Any reluctance of the judiciary to adjudicate on these rights can also be dealt with through the use of appropriate safeguards to ensure the balance of power between the state and the courts is not upset. There is much to be said for the court acting as a deliberative forum where rights can be claimed and states can have the opportunity to justify interference if legitimate. One option would be to impose a constitutional duty on the legislature to ensure that it legislates for the protection of ESC rights (similar to the Constitution of Finland and consonant with the doctrine of parliamentary supremacy). Another option would be to impose a minimum threshold duty across particular socio-economic areas with a secondary duty to progressively achieve ESC fulfilment in accordance with the resources available to the State (similar to the South African approach). There needs to be an informed debate in relation to the degree of fulfilment any constitutional duty might impose and the mechanisms most appropriate for achieving this. The decision of the Constitutional Convention to examine this as an issue offers us an excellent opportunity to engage across disciplines in beginning this crucial deliberative discussion.