The Government should commit to holding a referendum to insert economic, social and cultural rights in the Constitution, Amnesty International has said.
The Constitutional Convention recommended by a majority of 85 per cent last February that protection of these rights be strengthened in Bunreacht na hÉireann, and the Government must respond to that call by the end of July.
Publishing a report to coincide with the Government’s deliberations, Amnesty’s Irish branch urged Ministers to commit to holding a referendum in due course. It argued that giving constitutional status to rights such as housing and health would be a “fundamental reform” that would place people and their rights at the heart of the State’s decision-making.
“It would require all Government departments to clearly link what they spend with what they hope to achieve with that spending, and place people’s rights at the centre of such decisions,” said executive director Colm O’Gorman.
The report argues that giving legal protection to such rights would be neither new nor radical. It observes that, since 1990, Ireland has been bound by the International Covenant on Economic, Social and Cultural Rights, an enforceable treaty that protects the right to health, social security and an adequate standard of living. “These are fundamental human rights which this State undertook to protect, but which have never been given domestic legal effect,” Mr O’Gorman said.
Article 45 of the Constitution sets out general principles of social policy "for the general guidance of the Oireachtas" but expressly states that they cannot be used in court. David Fennelly, assistant professor of law at Trinity College Dublin, told the launch event that amending the Constitution would not result in overnight change. Primary responsibility for giving effect to the new constitutional rights would fall to the Government, but "in extreme individual cases", people would have recourse to the courts.
Amnesty suggests the status quo in Ireland is out of step with international practice. It says 26 EU states make some form of constitutional provision for economic, social and culture rights. Some 106 constitutions protect the right to work, and 133 include a right to healthcare.
Opponents of inserting rights such as these in the Constitution argue they are too vague to be enforceable and would involve unelected judges trespassing onto the territory of the Government and Oireachtas by deciding how public resources are allocated. Former Minister for Justice Michael McDowell has said such a change would carry with it a danger that the judiciary “will become ever more politicised in carrying out their functions.”
In response, Amnesty says a large body of case law on these rights in other countries shows that courts have remained conscious of their role when adjudicating on claims. It points, for example, to the approach taken in the South African constitutional court in applying the "reasonableness" doctrine. Pia Janning, Amnesty's legal officer, said the Swiss courts stressed minimum obligations the State must meet, while German judges - conscious of not straying beyond their role by telling the Government how to spend taxpayers' money - instead saw their role as stipulating and assessing whether the state had met its procedural obligations in making decisions.
