This is the text of my speaking notes to the Constitutional Convention, with added hyperlinks to take you directly to sources of my information, where available. You can access my PowerPoint slides here: What are Economic, Social & Cultural Rights? You can watch my contributions to the Constitutional Convention here, here, here and here.
Good morning delegates and thank you for inviting me to your discussion on the constitutional protection of Economic, Social and Cultural Rights (see here, here and here). I will do the following over the next 15 minutes:
- Define Economic, Social and Cultural (ESC) Rights
- Explore ESC Rights & Duties
- Consider Sub-Constitutional Protection of ESC Rights in Irish Law & Practice
- Reflect on Systems for Protecting & Adjudicating on ESC Rights
1. So how do we define ESC rights?
Economic rights include: the right to work and to fair conditions of work, including the right to engage in self-employment. The right to join and participate in trade unions and the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay. There is also a human right to peaceful enjoyment of private property.
Social Rights include: the right to social security; the right to social assistance; the right to an adequate standard of living and rights to adequate food, water, clothing and shelter. The right to the enjoyment of the highest attainable standard of physical and mental health, the right to education and the right to adequate social protection of the family are protected.
Cultural Rights include the right to participate in the culture of one’s communities and to enjoy the benefits of scientific and technological endeavour. Ethnic, religious and/or linguistic minorities have the right to practice their own culture, faith and language.
Not all of the above examples of ESC rights can be neatly categorised into one or other of the groups listed above and some rights may crosscut through all of the categories. In addition, a failure to protect the economic, social and cultural rights, may lead to a violation of civil and political rights. In a number of cases, we are now seeing the European Court of Human Rights interpreting the European Convention on Human Rights, traditionally viewed as a civil and political rights document, as protecting ESC rights. There are similar examples of this before the Irish Courts (see here and here) and examples before the Court of Justice of the European Union (see here). Courts have interpreted civil and political rights such as the prohibition on inhuman and degrading treatment; the right to private and family life and the right to life, as also, to some degree, protecting ESC rights.
So I have listed all these rights protections, but where do they come from?
ESC rights are protected under, to varying degrees under:
- International law, in particular the International Covenant on Economic, Social and Cultural Rights, but also other UN human rights treaties recognising the ESC rights of children and women.
- EU Law (EU Charter of Fundamental Rights)
- Council of Europe Law (European Convention on Human Rights and European Social Charter (Revised))
- Irish law, both constitutional law and legislation
Let’s take a closer look at the nature of Ireland’s obligations as regards ESC rights under international law.
2. The Nature of the ESC Rights and Duties
There are three obligations on States, including Ireland, who have signed the UN International Covenant on Economic, Social and Cultural Rights (ICESCR). There is a duty to respect, a duty to protect and a duty to fulfil ESC rights (see also, here).
The State must respect the ability of individuals to provide for themselves. States must refrain from engaging in acts or omission that violate ESC rights, such as placing unreasonable limitations on the ability of individuals to take up employment or arbitrary eviction of families from their homes.
States have obligations to protect individual’s ESC rights, by adopting positive measures that protect right-holders from interference by both state and non-state parties. The obligation to protect includes passing laws that, for example, protect people from exploitative employment practices or tenancy agreements, and enabling individuals to gain redress where such a violation of ESC rights occur.
The final duty on the State is the obligation to fulfil. This includes an obligation to promote ESC rights, so States put in place comprehensive legislative and policy reviews so in ensuring individuals are aware of, have access to and can rely upon their ESC rights. An obligation to facilitate ESC rights, such as the State adopting legal, economic and/or social policies to strengthen ESC rights. This includes putting in place systems to adjudicate on ESC entitlements. The final duty on States is provision of certain ESC rights i.e. food, shelter, clothing, health care etc.
Progressive Achievement & Maximum Resources
The main international ESC rights treaty, the International Covenant on Economic, Social and Cultural Rights (ICESCR) gives States time to move towards vindicating individuals’ ESC rights. ESC rights must be ‘progressively realised’. This means that States must work as quickly and effectively as possible towards the full achievement of ESC obligations for all. The State must do this to the ‘maximum of available resources’, which means the totality of actual resources available, and not necessarily the total amount of resources that governments wish to make available. the UN Convention to Eliminate All forms of Discrimination Against Women (CEDAW) and UN Convention on the Rights of the Child (CRC) require States to immediately give effect to the ESC rights discussed above. Under European legal measures that protect ESC rights, some ESC rights are immediately enforceable, and there is no progressive realisation qualification in place.
Once ESC rights are provided by a State, then any retrogressive measures that dilute, limit or reduce current ESC rights, require exceptionally strong justifications.
Two key principles that underpin the enjoyment of economic, social and cultural rights are equality and non-discrimination. States can distinguish the enjoyment of ESC rights for people, provided any distinctions are reasonable, legitimate and proportionate. For example, looking at the right to work, barring someone from entering certain employment areas because of their race or ethnicity would not be reasonable, legitimate and proportionate but doing so because they do not meet objective criteria could be reasonable, legitimate and proportionate.
So how then does Ireland protect ESC rights, and I should point out that Dr David Fennelly will discuss constitutional protection of ESC rights very shortly.
3. Sub-Constitutional ESC Rights in Irish Law
The aim here is to highlight that ESC rights are already protected, to a greater or lesser degree and in different ways, in Ireland. Two very important provisos:
Firstly, this is not a systematic evaluation of the adequacy or inadequacy of the ESC rights that are protected under Irish law. This section simply highlights that these rights are protected, to some degree, in Ireland.
Secondly, it is essential to note, that with sub-constitutional protection of ESC rights, legislation can be easily amended, or administrative practices changed, to reduce or remove particular ESC rights.
Economic rights: The right to property enjoys constitutional and legislative protection. However, there are limitations on this right: for example you cannot violate planning laws. The right to work is protected for those who are citizens or who have a regularised migration status. There is a right for individuals to join and participate in a trade union but there is no obligation on the State or employers to recognise trade unions. There is legislation on minimum wage and minimum conditions of employment (health and safety law; employee rights legislation). Irish law provides employees with minimum entitlements as regards holiday pay and work rest periods. However, there are limitations on the right to work. It is a criminal offence for asylum seekers to enter employment.
Social rights: Those who are habitually resident and have a right to reside in Ireland, if they meet all other legislative criteria, enjoy social security and social assistance payments such as child benefit, jobseekers benefit, disability allowance, rent supplement, supplementary welfare allowance, carers benefit, old age pension (contributory and non-contributory) etc. The rates of these payments are set by the Oireachtas, and may be increased or decreased from year to year and rates of payment may differ between individuals. For those under a certain income threshold, there may be an entitlement to a medical card and/or a GP medical card. Certain social assistance payments exist that could be viewed as protecting the family, including one parent family payment, family income supplement and child benefit. Irish housing law provides a system for determining who is entitled to social housing, although there is not enough social housing to meet overall need. Irish law provides for tenant and landlord protections in terms of their mutual rights and obligations.
Cultural rights: The State supports (monetarily or in kind) museums, cultural events and encourages investment in scientific or technological endeavour. The right to practice religion is protected in law, while there are some supports for languages, especially the Irish language (which also enjoys constitutional recognition). As regards positive measures to ensure individuals can practice their own culture and the State has equality and incitement to hatred legislation.
So with this protection of ESC rights in international and domestic law, what systems and processes are in place for adjudicating on ESC rights.
4. Systems and Processes for Adjudicating ESC Rights in Ireland
At the international/European level, there are judicial and monitoring mechanisms for determining Ireland’s compliance with ESC rights.
At the European level, the European Court of Human Rights in the late 1970s determined that the lack of a system to enable a person to access justice, was a violation of her ECHR rights. This has socio-economic implications.
The Court of Justice of the European Union in 2011, stated that Ireland would be in breach of EU law if an asylum seeker was returned to Greece, where he would be subjected to poverty, hunger and lack of shelter.
These international judicial mechanisms for protection social and economic rights can be contrasted with the supervisory mechanisms.
The UN Committee on Economic, Social and Cultural Rights and the European Committee on Social Rights determine whether Ireland is meeting its international obligations on ESC rights. There are also other UN treaty bodies that assess Ireland’s compliance with our international ESC rights obligations.
Once again, Irish courts already play a role in determining whether, even implicitly, violations of ESC rights. In cases from 2007 and 2008, the Irish High Court held that in these particular cases, lack of adequate shelter lead to a violation of right to private and family life, and awarded damages to the plaintiff.
Decision Makers and Tribunals
For some of the ESC rights highlighted above, systems and processes exist for (i) determining entitlement to an ESC right and/or (ii) appeal mechanisms for considering whether an individual should be entitled to an ESC right. Such systems, processes and mechanisms do not exist for all ESC rights in Ireland. The approach of some of these bodies to assessing entitlement or otherwise, may not even refer to ESC rights obligations that exist upon the State. At the domestic level, there are employment rights bodies; social security and social assistance bodies; education bodies; Ombudsman and Commissions (the Office of the Ombudsman, Ombudsman for Children and Irish Human Rights Commission) and, as highlighted above, the courts. Some of these bodies are limited in their powers. The adequacy of some of these mechanisms for protection of ESC rights can be questioned. For example, there are very significant, long running delays in deciding whether individuals are entitled to a social security or social assistance payment. Therefore, while these mechanisms to determine (mainly) legislative ESC rights are in place, there are significant constraints on some of these bodies in determining whether there has been a violation of an individual, family or groups ESC rights.