Constitutional Protection of Economic, Social and Cultural Rights
14th March 2013
Ireland’s History of Protecting Rights
At the very core of our constitution is an innate and explicit fundamental philosophy “to promote the common good … so that the dignity and freedom of the individual may be assured.”
This philosophy and the protection of many rights were set out in our constitution long before these issues were fully recognised by other countries and international bodies, pre-dating the UN Convention on Human Rights by more than a decade.
Although our constitution primarily focusses on civil and political rights it does clearly recognise some economic, social and cultural rights, such as the right to education.
The Directive Principles of Social Policy place many obligations on the Oireachtas:
• it must “promote the welfare of the whole people”; and
• it must assist individuals to “find the means of making reasonable provision for their domestic needs”.
It must also consider the need to “safeguard with especial care the economic interests of the weaker sections of the community, and, where necessary, to contribute to the support”.
As a country we have a long tradition of supporting economic, social and cultural rights, not only in our constitution but also in our support for international agreements and in policy implementation.
Achieving the objectives of the UN Covenant
In 1973 Ireland signed the UN International Covenant on Economic, Social and Cultural Rights.
I would like to isolate some of the rights in that Covenant and show how Government policy has implemented those rights.
Article 9 recognizes “the right of everyone to social security, including social insurance”. And article 11 recognises the right to an “adequate standard of living”
I think most people will recognise that we do have a comprehensive system of social security. Yes, at times there is a lot of debate about the allocation of resources within our social security budget. But, in the round, our policy effectively delivers on both of these rights.
• This year the Department of Social Protection will spend €20.26bn on Social Protection measures.
• €2bn will be spent on Child Benefit in 2013.
• In 2012 €738 million was spent on Jobseekers’ Allowance and at the end of 2012 there were some 85,000 persons in receipt of a Jobseekers’ Benefit payment
• The Department of Social Protection operates a vast range of schemes covering the areas of disability and illness; carers; unemployment; schemes for older and retired people; benefits for families and children; death related benefits; assistance for farmers and fisherpersons; Back to Education allowances; inter alia supplementary welfare schemes.
Included in the article 11 right to an “adequate standard of living” is a right to housing.
We have comprehensive housing policies which are often implemented by local authorities. Section 69 (G) of the Local Government Act 2001 obliges the local authority to have regard to the need to promote social inclusion in its policies, it requires local authorities to implement policies to counteract poverty or other social deprivation.
• In 2013, the housing budget amounted to €310m was provided in current spending and €275m in capital spending. This allocation includes housing for those with special needs (350 units); units for those leaving institutional care (150 units); 400 permanent homes delivered through the Social Housing Investment Programme; 300 transfers under the Mortgage to Rent Scheme; 4000 units to be delivered under social leasing, including property transfer from NAMA, the Rental Accommodation Scheme (RAS) and mortgage to lease.
• In February 2012 the Government launched its Homelessness Policy Statement & announced 2016 as the target for ending long-term homelessness. The Policy Statement contains a ‘housing led approach’ which aims to provide people with long-term, stable housing as early as possible. It moves away from the traditional ‘staircase’ model which sees individuals and families move between various stages, including emergency accommodation, before eventually securing an appropriate place.
Article 12 of the UN Covenant sets out “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health”
Again when it comes to policy implementation this is implemented using a very large budget administered through the Department of Health and HSE.
• This year the Department of Health will spend €13.6bn in current expenditure and €397m in capital expenditure.
The most visible way that the State delivers on its obligation to ensure a right to health is by providing access to health services; for those on low incomes this done through medical and GP visit cards.
In the last few weeks it is likely that the number of medical and GP visit cards that have issued has gone over the 2 million mark, meaning about 43% of our population have direct and automatic access to health care as of right.
Since January 2009 that’s an increase of over 38%, last year alone an extra 165,000 cards were issued. Even at a time of declining resources the Government is still providing access to health care free of charge for more and more people.
Fine Gael position on including ESC rights in the constitution
In keeping with most Western democracies economic, cultural and social rights are not explicitly present in our Constitution; it focuses on civil rights and political freedoms.
The Courts have determined that the distribution of the State’s financial resources lies within the exclusive remit of the elected legislature and not with the courts.
The power to determine how state revenue will be collected, and how it will be spent, is reserved to the Oireachtas, and more specifically to the Dáil.
While it is possible for the courts to restore parties’ legal entitlements decisions involving the redistribution of existing wealth patterns are left to the Dáil.
Fine Gael is in favour of retaining this aspect of the Oireachtas’ role and believes the allocation of taxpayers’ money for the common good is a matter for the Oireachtas, and, more particularly, the Dáil, the members of which are chosen by the people.
In this way, the people ultimately decide on the policies that determine allocation of resources.
Fine Gael believes in the balancing of rights with responsibilities and the nuance of this approach can be pursued through legislation and policy more effectively than in broad constitutional provisions.
I previously outlined many of the ways this is already being achieved. Another example of this is the 10,000 additional places created for employment programmes in Budget 2013.
The Constitutional Convention (200)
As a member of the Constitutional Convention I am pleased to say that as a body it is working effectively and ensuring that the issues are being considered in detail. This is achieved by looking at one clear proposal at each of our meetings. Dealing with each issue separately ensures that it is fully explained and debated by all members of the Convention.
The Constitutional Convention has a detailed programme of work to be completed within twelve months. Most of the weekend sessions for our first twelve months have already been allocated to an issue.
As has been identified there is provision for the Convention itself to identify and consider an issue. Given the time constraints in which it has to report it only has one full weekend free in which it could possibly consider such an issue.
I think that perhaps the complexity involved in considering economic, social and cultural rights would need more than one weekend. There are many issues which would need to be considered and in my opinion it may not be possible to do this before the Convention must report back to the Oireachtas.
The Constitutional Convention is an innovative initiative and, if successful, it is a process that may be used again. Our Constitution is an evolving and living instrument and will, no doubt, be subject to on-going revision if the People, who are sovereign, support further changes.
Effectiveness of our policy approach
Our primary focus should be on the attainment of the economic, social and cultural rights which have been clearly recognised by the State. Some of those rights are enforceable under our constitution, others are there as guiding principles, and even more are recognised by the state in its acceptance of international agreements.
We have achieved a lot in recognising rights to education, housing, social security, an adequate standard of living and in a right to health. While we can debate the specific allocation of resources we have comprehensive policies in place.
There is always more that can be achieved in delivering economic, social and cultural rights, in Fine Gael we are of the view that this can be best achieved utilising the balance delivered by our existing constitutional provisions.