The Justiciability of Social, Economic and Cultural Rights

‘Simply stated, universality of human rights means that human rights must be the same everywhere and for everyone…Human rights are indivisible. This means that civil and political rights, on the one hand, and economic, social and cultural rights, on the other, must be treated equally…We must not be selective, for these rights are interrelated and interdependent…Universality is, in fact, the essence of human rights: all people are bound to observe them, all state and civil actors should defend them. The goal is nothing less than all human rights for all.’

Since a government promise to include the issue of constitutionally protected social, economic and cultural [ESC] rights on the agenda of the constitutional convention, there has been a considerable amount of legal commentary on the issue. In this post, I intend to further the argument that has been advanced in favour of justiciable social, economic and cultural rights. While historically, the courts may have been reluctant to recognise a constitutional protection to ESC rights, there appears to be a growing call for their entrenchment in the Constitution, an outcome which I suggest would indeed be favourable. I hope to demonstrate the unsustainability of arguments purporting to distinguish between civil and political rights on the one hand and ESC rights on the other, finding support from the powerful words of a powerful woman, Mary Robinson, above. I also wish to tackle issues such as the doctrine on the separation of powers and democracy which arise in this debate.

First, I will address the current status of socio-economic rights in the Constitution of Ireland. Article 45 sets out provisions regarding directives of social policy recognising the protection of socio-economic rights. However, it adds that these principles be the exclusive remit of the Oireachtas and shall not be cognisable in the courts. The issue that will be addressed in this blog-post therefore, will be the question as to whether it is necessary to entrench these rights in the Constitution so as to render them judicially enforceable.

The distinction between social, economic and cultural rights, and civil and political rights is grounded in the fact that provision purporting to protect the civil and political rights of an individual are costless, while ESC rights are resource dependant and cannot therefore be satisfied when resources are scarce. This distinction is unsustainable however. As Aoife Nolan points out, the provision of certain civil and political rights will incur expenditure by requiring state infrastructure be put in place to fulfil that right. Take, for example, the right to a fair trial which incurs costs of implementing measures to ensure that right is fulfilled such as the provision of criminal legal aid. The most notable example of this can be seen in State (Healy) v Donohue [1976] IR 325, where, as Gerry Whyte points out, the decision of the courts to establish a right to be informed of a right to legal aid, resulted in state expenditure on legal aid increasing by 500%. Similarly, following O’Donoghue v Legal Aid Board [2006] additional state resources were made for the Civil Legal Aid Board to shorten the waiting lists for civil legal aid applications, following the court’s decision that an unreasonable delay constituted a breach of one’s right of access to the courts and fair procedures. While the court’s decision in Carmody v Minister for Justice [2010] IR 635, also has significant consequences for state resources as a right to both a solicitor and to counsel in criminal cases was recognised by the court.

Additionally, some ESC rights provisions, it could be argued, reduce state expenditure in the long term. For example, the protection of a person’s right to education, it could be argued will reduce expenditure on unemployment in later years.

The perception of costless civil and political rights exists as a result of the fact that, in developed countries, the infrastructure to provide for civil and political legal aid is already in place, and the expenditure that comes as a consequence of this is therefore less controversial. While the protection of ESC Rights does indeed incur a cost to the state, this is not distinct from civil and political rights on grounds of nature, rather of degree. The argument that ESC rights should not be constitutionally protected on the grounds of cost, does not therefore stand, since the protection of civil and political rights is not, in fact, costless.

The Courts have long been reluctant to recognise constitutionally protected ESC rights. Costello J in O’Reilly v Limerick Corporation [1989] IRLM 181 evoked the doctrine of the separation of powers as reason for precluding the court from exercising a role of distributive justice. However, Aoife Nolan, once again, offers a compelling argument, contrary to the idea that the separation of powers doctrine inhibits the courts from protecting ESC rights. She suggests that since the tasks of reviewing state action for compliance with fundamental rights is generally assigned to the courts, there is a flow of power to the judiciary which forms part of the very notion of the balance of powers. Excluding ESC rights from judicial review is therefore in essence to allocate the judicial role to the legislature. This distorts the notion of the balance of powers as it confers unchecked power to the elected representatives. As such, any argument purporting to preclude from the courts the protection of ESC rights on the basis of an infringement on the doctrine of the separation of powers is unsustainable, since the very notion of the separation of powers is, in fact, enhanced through protection of ESC rights through the courts.

Additionally, it is suggested that the courts already make decisions which have a considerable effect on resources. This is once again supported by the cases Healy and O’Donoghue cases.

Another argument frequently advanced opposing the idea of justiciable ESC rights is that put forward by the Supreme Court in T.D. v Minister for Education [2001] 4 IR 259. It was suggested that it would be inherently undemocratic for the court to protect the socio-economic rights of the plaintiff. Judicial Activism, it was claimed, represented a significant transfer of power from elected politicians to an unelected and unaccountable judiciary, the so-called counter-majoritarian difficulty. The formation of social and economic policy is, without doubt, the remit of the elected representatives. However, surely there should exist a method to ensure that the rights of marginalised voiceless minorities do not go unheard as a result of a majority decision? Shouldn’t there exist a method of ensuring accountability in the decision-making of elected representatives, rather than a ‘Nanny knows best’ approach, whereby those adversely affected by a decision accept it purely because of who has made the decision? Being held accountable for decisions, leads to better decisions as it encourages a careful examination of the relevant issues, as well as transparency in decision making.

The theory of the ‘Tyranny of the Majority’, evoked by J.S. Mill springs to mind. While it is true that decisions on social and economic policy are taken by elected representatives, and are therefore majority decisions, these areas are those in which the most disadvantaged and politically marginalised groups will often have the most at stake in terms of personal security and dignity. A failure to protect the rights of marginalised individuals, and a failure to put in place measures of protection of socio-economic rights purely on the basis that these policies should be decided solely by the government, represents a failure to protect the most vulnerable and disadvantaged in our society in an appalling manner and thus, does indeed represent tyranny, tyranny of the majority.

Gerry Whyte suggests that the courts should interpret the Constitution in its current form, as implying the protection of socio-economic rights by having regard to the references in the preamble to human dignity and true social order as well as from the interpretation of civil and political rights in articles 40-44. He suggests these be used as a ‘pre-interpretive value’ when dealing with individual cases. However, Katie Boyle’s arguments on the matter are convincing, as she recognises the courts’ reluctance to afford constitutional status to ESC rights through an implied interpretation. ‘Non-justiciable constitutional mechanisms do not go far enough to ensure the substantive legal protection of human rights in Ireland.

One doesn’t have to look far to witness the failure to protect socio-economic rights in the present day. Marginalised groups in our society are the ones who have suffered most as a result of the austerity measures of recent times. The facts are plain and simple. A report commissioned by the European Foundation Centre on Human Rights and Disabilities found that the rights of people with disabilities have been disproportionately compromised by austerity measures. The risk of poverty for Irish people with disabilities increased by 26% in the years 2008-2010, a steeper increase than any of our European counterparts. A report commissioned in 2013 on the impact of austerity on travellers, found similarly, that government spending on accommodation, health care services, education, jobs initiatives and anti-drugs schemes for members of the travelling community had been cut in some cases by a percentage of over 80 from 2008-2013. Overall government spending fell by a mere 4.3% in the same time-period. Let’s compare this baseline figure to cuts in government expenditure on accommodation for the travelling community, which fell by 85%. The allocation of funding for initiatives against drugs fell by 32.5%, while money spent on the Local Community Development Programme fell by 42.3%. Similar reports show equally stark statistics in relation to children, older people, homeless people and women.  To prevent such a disproportionate infliction of hardship upon vulnerable groups in society recurring in future, I suggest that a system of judicial review of justiciable socio-economic rights is necessary.

Having tackled issues of democracy and the separation of powers, I will finish by emphasising a key point addressed by Mary Robinson in the opening lines of this post.  All categories of rights are recognised by Robinson, and indeed by the UN, as indivisible in nature. They are interrelated and interdependent. Katie Boyle’s analysis on this is particularly helpful: The right to life cannot be fully enjoyed unless there is adequate protection of the right to health, which is equally dependant 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. The fulfilment and enjoyment of one right is therefore dependent on the protection of many others.

As for the potential mechanisms for the justiciability of ESC rights, Boyle offers three potential solutions, here, all based on existing models in other jurisdictions.

The distinction between civil and political rights on the one hand, and ESC rights in the other, is unsustainable. The courts’ reluctance to protect ESC rights on the basis that it entails spending public monies doesn’t stand up against decisions like O’Donoghue, Healy and Carmody, which are clear examples of  judicial decisions having a direct and profound effect on state expenditure. The doctrine of the separation of powers would, if anything, be enhanced by the protection of ESC rights, while the argument that such protection would be undemocratic fails to stand up against the Tyranny of the Majority witnessed in the present day. But as Aoife Nolan notes, having regard to the inclusion of the matter on the agenda of the Constitutional Convention in 2014: ‘Those in favour of extending the constitutionalisation of ESC rights in Ireland have arguably never had it so good.  This opportunity must not be allowed to slip away.’ Let’s hope she’s right.