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February 19 2014

Economic, Social and Cultural Rights in Ireland – Why the Constitution?

Constitutional ConventionWe are delighted to welcome this post from Katie Boyle on economic, social and cultural (ESC) rights in the Irish Constitution. Katie is a PhD student at the University of Limerick and an ESRC Research Fellow at the University of Edinburgh. She is also a solicitor and has previously advised state departments and parliamentary bodies on human rights compliance. Katie has lectured in both Ireland and the UK on International Human Rights, Public Law and Constitutional Law.

On the 22 February 2014 the Constitutional Convention will examine whether economic, social and cultural rights should be constitutionalised in Ireland. In August 2013 I made a submission to the Convention outlining the legal arguments for the inclusion of economic, social and cultural (ESC) rights in the Irish Constitution. The purpose of this submission was to set out in clear and accessible terms to the Convention and to people of the island of Ireland why there is a legal mandate for ESC inclusion in the Constitution and the potential legal mechanisms through which this might occur. In advance of the Convention meeting at the end of this week I have reproduced a summary of some of the key points below.

What are economic, social and cultural rights?

Civil, political, economic, social and cultural rights form the body of human rights that are recognised and protected in international law. Examples of economic, social and cultural rights would include the right to education, the right to adequate housing, the right to a fair remuneration for work, the right to health, the right to freedom from destitution, amongst many others. ESC rights also more broadly protect vulnerable groups such as those with disabilities, children, the elderly, minority communities or those who are unemployed.

During the drafting of the Universal Declaration of Human Rights it was accepted that all rights – civil, political, economic, social and cultural rights were indivisible in nature. This means that fulfilment and enjoyment of one right is dependent on fulfilment and full protection of the other. The principle of indivisibility reaffirms that each of these rights is equal in status and that this interdependent relationship is symbiotic. So, the right to life for example, cannot be fully enjoyed, unless there is also adequate protection of the right to health, which is equally dependent on the right to adequate and safe housing and the right to freedom from destitution, the right to a minimum level of social security and so on (for some fascinating discussions on the development of the principle of indivisibility see, for example, this UNESCO consultation paper from 1947).

Are ESC rights already adequately protected in Ireland?

Civil and political rights are predominantly protected under Constitutional provisions (Articles 40-44 ) or the European Convention on Human Rights Act 2003 (incorporating the European Convention on Human Rights 1950). Neither of these mechanisms explicitly protect ESC rights (other than the right to education). Generally there is a reluctance to afford constitutional status to ESC rights through an implied interpretation of civil and political rights by the judiciary in Ireland. Under Article 45 of the Constitution the directive principles of social policy, although referring to socio-economic duties, are not enforceable in court. Some legislative rights-based measures exist, but these are piecemeal and subject to repeal. For an excellent analysis of each of these points see here. In relation to the ECHR, a more dynamic approach to the interpretation of Convention rights by the European Court of Human Rights does allow for the potential to incorporate ESC rights under the rubric of civil and political rights (see for example Yordanova v Bulgaria). The fact remains, however, that even where the dynamic interpretation is available, the domestic remedy in Ireland is limited under the 2003 Act. In some circumstances the only option available to the court following an ECHR violation is to make a declaration of incompatibility (section 5 of the 2003 Act). There is no legal requirement to change the law following this declaration. The only effective remedy then available to the individual is to seek recourse in Strasbourg (and this still does not necessarily result in a change in the incompatible law). This demonstrates that, even where international treaties are incorporated into domestic law through legislation, the court is limited in providing a domestic remedy and there is a gap in accountability. In this sense, non-justiciable constitutional mechanisms (such as the directive principles) and legislation (whether specifically providing for ESC rights or incorporating an international treaty that protects rights) do not go far enough to ensure the substantive legal protection of human rights in Ireland.

Is the Constitution the appropriate place to protect ESC rights?

The Constitution is the only place where human rights can be protected from legislation that is incompatible with human rights, from the future repeal of legislation that specifically protects human rights, or from retrogressive measures taken by the state to dismantle existing good practice in relation to human rights (such as disproportionately punitive austerity measures). This is because the court can only step in to declare actions of the state or legislation unlawful if they are unconstitutional. By affording constitutional status to ESC rights there would be a stronger mechanism in place to ensure accountability for ESC violations by ensuring an effective remedy is available to the citizen. This by no means necessarily facilitates a compensation culture or the redistribution of wealth by the judiciary contrary to the intentions of the legislature. It would merely afford the individual and the court the authority to examine the exercise of power by the state to ensure that there has been no violation of a right unless the state is in a position to justify interference (in the same way that civil and political rights are constitutionally protected).

Is there a legal mandate for ESC inclusion in the Constitution?

There is a legal mandate based on a number of international legal obligations. Ireland has ratified the International Covenant on Economic, Social and Cultural Rights 1966, the European Social Charter 1964, the Convention on the Rights of the Child 1989, the Convention on the Elimination of Discrimination Against Women 1979 and the Convention on the Elimination of Racial Discrimination 1965, each of which contain legally binding obligations to protect civil, political, economic, social and cultural rights in Ireland. There has also been a commitment to protect all human rights through other internationally legally binding obligations as a result of the peace process in Northern Ireland. These obligations are contained in the 1998 peace agreement  and the international binding treaty between the British and Irish governments, which together stipulate for the protection of human rights, including ESC rights, to be extended across the island of Ireland.  The UN Committee on Economic, Social and Cultural Rights has also recommended that Ireland incorporate ESC rights into the Constitution.

Through what mechanisms might ESC constitutionalisation legitimately occur?

Of course it is important to examine mechanisms that would suit the particular circumstances of Ireland. This can be done by also taking into consideration the balancing of rights and the limited resources of the state. Any reluctance of the judiciary to adjudicate on these rights can also be dealt with through the use of appropriate safeguards to ensure the balance of power between the state and the courts is not upset. There is much to be said for the court acting as a deliberative forum where rights can be claimed and states can have the opportunity to justify interference if legitimate. One option would be to impose a constitutional duty on the legislature to ensure that it legislates for the protection of ESC rights (similar to the Constitution of Finland and consonant with the doctrine of parliamentary supremacy). Another option would be to impose a minimum threshold duty across particular socio-economic areas with a secondary duty to progressively achieve ESC fulfilment in accordance with the resources available to the State (similar to the South African approach). There needs to be an informed debate in relation to the degree of fulfilment any constitutional duty might impose and the mechanisms most appropriate for achieving this. The decision of the Constitutional Convention to examine this as an issue offers us an excellent opportunity to engage across disciplines in beginning this crucial deliberative discussion.

January 30 2014

Ireland and the European Committee on Social Rights

ESCThere has been much focus on the role of the European Court of Human Rights over the last number of days (see, here and here). A less well known body, the European Committee on Social Rights, is responsible for assessing Ireland’s compliance with the European Social Charter (Revised). The European Social Charter protects a number of social and economic rights, such as employment rights, right to health care, social security, an adequate standard of living etc. Ireland has freely accepted to abide by a large number of obligations (but not all) under the European Social Charter. As my summary of the Committee’s conclusions below show, this report is somewhat of a mixed bag. It is important to note that the  Committee on Social Rights examined Ireland’s compliance with the European Social Charter from 2008 to 2011, so a number of important issues that arose since 2011 are not considered, including the attacks on youth right to full rate unemployment benefit/assistance; maternity benefit cuts; the cumulative impact of successive regressive budgets on those who are already poor and marginalised. In addition, it was somewhat disappointing that the Committee did not mention or consider the social and economic rights of asylum seekers (as it has done in collective complaints).

The European Committee on Social Rights has released its Conclusions on Ireland for 2013 on a number of different rights protected by the European Social Charter, including:

  • Article 3: Right to safe and healthy work conditions;
  • Article 11: Right to protection of health;
  • Article 12: Right to social security (this generally refers to contributory social welfare payments);
  • Article 13: Right to medical assistance and social assistance (social assistance generally refers to non-contributory social welfare payments)
  • Article 14: Right to benefit from social welfare services;
  • Article 23:Right of elderly persons to social protection;
  • Article 30: Right to be protected against poverty and social exclusion.

The European Committee on Social Rights assessed Ireland’s report (here and here) as regards whether the Irish social, welfare and legal system respected the above listed rights.  A significant issue that arose for the Committee was Ireland simply refusing to provide any information in its reports on  how it was meeting specified obligations. Ireland did not provide the Committee with any information on a number of issues, including: on a right to safe and healthy work conditions; aspects of the right to protection of health; development of the social security system

The European Committee on Social Rights found that Ireland was in conformity with its obligations. as regards:

  • The maintenance of a social security system in line with the European Code of Social Security;
  • The level of social assistance for welfare payments for job-seekers, people with disabilities, widows/ers, one parent families is adequate, conforming, in part, to obligations on right to medical and social assistance;
  • The Committee also found that Ireland was meeting its obligations as regards the right to be protected against poverty and social exclusion.

Committee finding Ireland was not in conformity with its obligations under European Social Charter (Revised) in a number of ways, in particular:

On issues relating to the right of the elderly to social protection, the Committee on Social Rights requested further information on the legal framework in place relating to assisted decision making, minimum income guarantees for all elderly people; prevention of elder abuse; institutional care of the elderly. However, Ireland’s report did not address any of these significant issues.

Overall, the report is not as damning as it potentially could have been. In 2015, Ireland’s record on social, economic and cultural rights will be examined before the UN Committee on Economic, Social and Cultural Rights (see here for a primer). This will provide an updated rights assessment as to whether Ireland is complying with its international obligations to respect, protect, vindicate and, in necessary, fulfill, the social, economic and cultural rights of all those in Ireland.

September 16 2013

Reflecting on the International Covenant on Economic, Social and Cultural Rights of 1966

N13252On Friday, 27 September 2013, President Michael D. Higgins will deliver a speech on socio-economic rights, entitled:  ”Reflecting on the International Covenant on Economic, Social and Cultural Rights of 1966″.  The lecture takes place in The Presidents’ Hall, Law Society of Ireland, Blackhall Place, Dublin 7 from 5.30pm. Places and limited and booking is essential. Those interesting in attending should email Joyce Mortimer (j.mortimer[at]lawsociety.ie).

Further information is available here.

 

May 06 2013

The Right to Water and Privatisation in Ireland

We are delighted to welcome another cross-post by Dr Shane Darcy from the Business and Human Rights in Ireland Blog.  The Business and Human Rights in Ireland Blog is dedicated to tracking and analysing developments relating to business and human rights in Ireland. It aims to address legal and policy issues, as well as highlighting human rights concerns raised by the activities of Irish companies or multinational corporations based in Ireland. The blog is run by Dr Shane Darcy who is a lecturer at the Irish Centre for Human Rights, National University of Ireland Galway.

The privatisation of water in Ireland may be imminent. In its correspondence with the International Monetary Fund, the Irish Government has stated its intention to “move towards full cost-recovery in the provision of water services”. This involves the introduction of water charges, metering and the establishment of a State agency, Irish Water. The Department of the Environment, Community and Local Government say Irish Water is a public utility, and that “there is absolutely no intention to privatise water services”.

Nonetheless, the centralisation of water provision from local authorities in one entity would certainly make privatisation easier. As does the introduction of a customer-supplier relationship by way of charges and metering, as Ryan Meade has noted. The Irish Times ran an article in February 2013 with the headline ‘Dail warned legislation will open floodgates for new Irish Water to be privatised’.  Former Green Party Minister John Gormley sees the establishment of the water authority as the first step to privatisation. However, according to Minister of State for Natural Resources Fergus O’Dowd last month:

there will be a legal guarantee to give an absolute assurance as best we can that there will be no question of privatisation arising as an issue.

A qualified commitment from a Government under pressure from the IMF and the EU (with its controversial proposed Concessions Directive). In light of the introduction of water charges, legislation is reportedly to be adopted addressing exemptions, including for those who might not be able to afford the charges.

What does international human rights law say about water and its privatization? None of the major treaties refer to a right to water, although it can be taken as implicit in the International Covenant on Economic, Social and Cultural Rights. It was only in 2010 that the United Nations General Assembly adopted a declaration on the right to water. The declaration recognizes “the right to safe and clean drinking water and sanitation as a human right that is essential for the full enjoyment of life and all human rights”. Ireland abstained from the vote on the declaration.

The Committee on Economic, Social and Cultural Rights does not seem to oppose the privatisation of water per se, or that it be paid for, provided it remains affordable:

Any payment for water services has to be based on the principle of equity, ensuring that these services, whether privately or publicly provided, are affordable for all, including socially disadvantaged groups. Equity demands that poorer households should not be disproportionately burdened with water expenses as compared to richer households.

The Committee has noted the increase privatisation in various areas affecting human rights (e.g. here, here and here), but does not treat privatisation itself as inherently contrary to the protection of those rights. That said, in its 2011 Concluding Observations on Israel, the Committee recommended “a scaling down of the privatization of social services”.

In the global economy, water is now treated as a tradable commodity, and privatisation of the supply is an intrinsic part of this development. Water was designated as “an economic good” at an international conference of government experts held in Dublin in 1992. The Dublin Principles emphasised the economic value of water:

it is vital to recognize first the basic right of all human beings to have access to clean water and sanitation at an affordable price

Privatisation of water does not absolve the State of its human rights obligations, or those of companies either. While the international human rights machinery is mostly addressed to States, the human rights responsibilities of the private sector are being recognised. The Committee on Economic, Social and Cultural Rights has even called on States “to prevent their own citizens and companies from violating the right to water of individuals and communities in other countries”.

When the debate on privatisation in Ireland happens, there were be talk of increased efficiency, reduction of waste, and savings to the taxpayer. Short-term financial gain will likely hold the day. Dr Frank Groome predicts that privatisation will not take place until after public funds have covered the upgrade of the water supply network – “an irreversible and costly investment that no private company could afford or would be willing to pay for”.

The most likely eventual buyer would be one of the major multinational water companies such as Veolia, Suez or Thames Water. Veolia already have a sizable water operation in Ireland. The other likelihood is retaining Irish Water in public ownership, but allowing for competition from private companies. PriceWaterhouseCoopers, who conducted an independent assessment of Ireland’s water provision in 2011, suggested that:

… once Irish Water is well established as a self-funding utility the Government and Regulators may wish to assess international experience of the introduction of competition in water and sewerage services to identify whether Ireland could benefit from competitive markets in the water sector at a later date.

The privatisation of water has had disastrous results in other countries. Two Irish filmmakers, Muireann de Barra and Aisling Crudeen, have made a documentary Water Rising on the impact of privatisation of water in Bolivia. The Bechtel corporation was effectively forced out of the country following a popular revolt against its water policies in the city of Cochabamba – a licence was required to collect rainwater – and the water supply was returned to public ownership. In 2004, the people of Uruguay voted in a constitutional amendment to ensure State ownership of water. This is a suitable but unlikely candidate for consideration as part of Ireland’s current Constitutional Convention. A constitutional commitment would offer far more legal certainty than legislation as to the future of Ireland’s water.

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