LEGAL OPINION:Research from the Centre for Economic and Social Rights has warned that austerity measures are undermining the fundamental rights of people living in Ireland.
Yet, while the Government’s Constitutional Convention met for the first time on December 1st, it is disappointing to see that nowhere in its agenda is there space for discussing how the Constitution could be amended to better protect economic and social rights such as access to healthcare and adequate housing.
We need to be clear from the start. The primary responsibility for protecting and implementing economic and social rights rests with our elected representatives, not the courts. These are the people with a democratic mandate; these are the branches of government accountable to you and I as voters.
But the evidence from other jurisdictions where these rights have been written into the constitution, or equivalent body of law, is also clear. It has not led to courts assuming the role of policymakers, nor to an undermining of democratic accountability; if anything, it has strengthened the accountability of the state to its citizens.
As with civil and political rights, the courts have a reactive role with regard to the protection of economic and social rights. The Government’s role is to protect, promote and fulfil those rights. Only when it is alleged that it has failed to do so, do the courts become involved. It is the judicial function to hold the government to account, to ensure that economic rights are protected and to make certain that those whose rights are violated or not protected, get redress.
As part of its efforts to deal with the economic crisis, the Latvian government introduced pension cuts to help reduce the budget deficit. But the constitutional court found in 2009 (Case No. 2009- 43- 01) that the new legislation was unconstitutional.
It criticised the government for not exploring other less restrictive alternatives and noted that minimum essential levels of support for vulnerable groups, in this case pensioners, must be particularly protected. The court also went on to dismiss the government’s argument that it was obliged to impose these cuts as a condition of obtaining loans.
A well-known 2010 German decision (the Hartz IV decision), spells out both what the court felt able to do and what it judged was clearly the business of the legislature. In question was the process by which the government set levels of welfare and unemployment assistance as part of a major overhaul of the German social welfare system.
Article 1.1 of the German basic law guarantees the fundamental right to a subsistence minimum that is in line with human dignity. According to Germany’s federal constitutional court, this obligation, together with the principle of the social welfare state set out in article 20.1 of the basic law, assures to each person in need of assistance the material prerequisites which are indispensable for his or her physical existence and for a minimum of participation in social, cultural and political life.
The court concluded that the constitution does not specify the exact level of benefits being provided, nor was it the court’s place to do so. But it was the court’s role to determine whether the levels set by the government met the requirements laid down in law and to examine the process used to calculate those rates.
The government found itself obliged to set out and justify how it had arrived at the levels of benefits it was proposing – something that would be useful in Ireland to ensure policymakers, including members of the Oireachtas, have a clear understanding of how decisions are made, and resources allocated.
But the judgment had more long-lasting implications than corrections to specific payment rates, however important that was to those entitled to them. Economic and social rights-related issues were firmly established as something that needed to be taken into account in domestic decision-making.
The ultimate function of constitutional economic and social rights is to make clear the priorities that government decision-making on policy, law and resource allocation should reflect, in good times and bad.
Some argue that the Irish Constitution is not the place for these rights or that the courts have no place in economic decision-making. But by signing up to the EU Fiscal Compact Pact and its balanced budget requirement, we have already constitutionalised an aspect of economic policy.
Sadly, it seems we are prepared constitutionally to copperfasten austerity, but not to look at how the Constitution could protect rights that would limit the impact of austerity on the most vulnerable in Irish society.
Aoife Nolan is professor of international human rights law at the school of law, University of Nottingham. This is an edited version of a paper delivered in November at the Amnesty International Ireland conference, A Deficit of Protection – Economic, Social and Cultural Rights in Ireland.