Should Economic, Social and Cultural Rights Be Protected in Our Constitution?
Guest Blog by Professor Gerry Whyte
In May 2014, the Constitutional Convention called for enhanced constitutional protection for economic, social and cultural rights. In particular, the Convention called for explicit recognition in the Constitution of the right to housing; the right to social security; the right to essential healthcare; the rights of people with disabilities; linguistic and cultural rights; and rights covered in the International Covenant on Economic, Social and Cultural Rights.
If these recommendations were acted on, what impact, if any, would that have on people currently experiencing social exclusion in Ireland?
At the outset, it has to be acknowledged that constitutional recognition of such rights will not, of itself, solve problems such as the current housing crisis. A lasting solution to such problems requires a comprehensive political response and the allocation of appropriate resources.
However, marginalised individuals in Irish society often find that the political system is not responsive to their needs. Providing constitutional recognition for economic, social and cultural (ESC) rights would enable such individuals to bring pressure to bear, through judicial oversight of State policy, on the Oireachtas and the government to take reasonable steps to protect such rights.
A good example of this may be seen in the case of litigation taken during the 1990s enforcing existing constitutional rights on behalf of two distinct groups of children: children with severe or profound learning difficulties and children at risk in need of State-funded secure accommodation.
In relation to the latter group, a series of High Court cases beginning in the mid-1990s succeeded in highlighting the plight of these children, some of whom were being placed in B&Bs or held temporarily in Garda stations or even in prison, and in establishing that the State had a constitutional duty to look after them.
In 2001, however, the Supreme Court indicated that some High Court judges had exceeded their constitutional jurisdiction in explicitly ordering the State to build and operate such accommodation. While this had the effect of ending litigation strategy in this context, the political pressure generated by the earlier High Court cases did result in improved provision such that, by July 2007, a judge was able to record that no situation had arisen that year in which a court had been unable to make an order for the care of a child by reason alone of absence of a place in an appropriate facility.
A similar outcome may be seen in relation to the education of children with severe or profound learning difficulty where – even though a Supreme Court decision in 2001 indicated that the courts could not order the State to provide specific forms of appropriate education – political pressure generated by two earlier High Court cases in the 1990s had led to significant improvement in the educational provision for such children, even if, admittedly, from a very low base.
Some commentators argue that judges do not have the expertise or knowledge to engage with ESC rights and that such matters are better left exclusively to the politicians. However, the experience of the Constitutional Court in South Africa since 1996 should allay any such concerns. That court has generally enforced provisions in the South African Constitution guaranteeing various socio-economic rights by examining State action (or inaction) to see whether it is reasonable under all of the circumstances. In one case dealing with the right to housing, the Court said:
“A court considering reasonableness will not enquire whether other more desirable or favourable measures could have been adopted, or whether public money could have been better spent. The question would be whether the measures that have been adopted are reasonable. It is necessary to recognise that a wide range of possible measures could be adopted by the state to meet its obligations. Many of these would meet the requirement of reasonableness. Once it is shown that the measures do so, this requirement is met.”
At the same time, the Court indicated that the State could not simply ignore the housing needs of people in desperate situations, saying:
To be reasonable, [State] measures cannot leave out of account the degree and extent of the denial of the right they endeavour to realise. Those whose needs are the most urgent and whose ability to enjoy all rights therefore is most in peril, must not be ignored by the measures aimed at achieving realisation of the right. It may not be sufficient to meet the test of reasonableness to show that the measures are capable of achieving a statistical advance in the realisation of the right. Furthermore, the Constitution requires that everyone must be treated with care and concern. If the measures, though statistically successful, fail to respond to the needs of those most desperate, they may not pass the test.
Testing State policy against a standard of reasonableness is something Irish judges have done on many occasions and one would expect that, if ESC rights were given constitutional protection, our judges would prove equally as adept as their South African counterparts in vindicating such rights.
Professor Gerry Whyte lectures in the School of Law, Trinity College Dublin. The second edition of his book, ‘Social Inclusion and the Legal System: Public Interest Law in Ireland’, was published in June by the IPA.