Mr. Colm O'Gorman:

We are grateful to the committee for the invitation to discuss the issue of giving greater legal protection to economic, social and cultural, ESC, rights in Ireland.

As members are aware, the Constitutional Convention recommended in February this year, by an overwhelming 85% majority, that the Constitution should be amended to enhance protection of economic, social and cultural rights. ESC rights are those human rights relating broadly to issues such as health care, education and an adequate standard of living, which includes the right to adequate housing. Along with civil and political rights they are part of the international body of human rights. Amnesty International Ireland has launched a report, and the Chairman attended the launch, "Bringing ESC Rights Home", a copy of which has been circulated electronically to the committee. We also have printed copies for the members. This report provides greater detail on some of the points we will outline today.

Legal protection of ESC rights is by no means a new or radical idea in the Irish context, or globally, and is very much within our political tradition. In 1937 the framers of the Constitution put some of these rights in Bunreacht na hÉireann before they were ever set out in the Universal Declaration of Human Rights, UDHR. The UDHR declaration was drafted in 1948 and makes no distinction between civil and political or ESC rights. Over the years, legal protection has also been granted to ESC rights in various treaties which Ireland has signed up to, both at an international and regional level. For example, the International Covenant on Economic, Social and Cultural Rights 1966 is a creation of states themselves, and was intended to be binding. Ireland ratified the ICESCR convention in 1989 thereby agreeing to be bound by its provisions. At a regional level, the European Social Charter also affords protection for these rights, along with the Charter of Fundamental Rights of the European Union.
Let me answer why ESC rights should be made enforceable. First, at the heart of human rights law, and expressly stated in the UDHR, is the right of everyone to an effective remedy. The Committee on Economic, Social and Cultural Rights, the UN expert body charged with overseeing the implementation of the ICESCR, has said that it would be difficult for a State which has signed up to the ICESCR, to justify its failure to provide any domestic legal remedies for the violation of ESC rights.
The right to a remedy does not mean that everyone should be able to run to the courts whenever something goes wrong. This is not what human rights law envisages. Remedies take different forms. We already have some bodies and structures in place in Ireland, such as the Irish Human Rights Commission, the Ombudsman, the Equality Tribunal or administrative complaints mechanisms. Parliamentary committees also play a vital accountability role. For example, in Amnesty International's report, we highlight the distinctive role that the parliament's constitutional law committee plays in Finland. These bodies and processes play a crucial part in ensuring Government accountability but operate within specific mandates and limitations. None can take the place of judicial remedies and people should have access to the courts, as a last resort. International bodies and procedures have on several occasions recommended that ESC rights be made legally enforceable in Ireland yet no steps have been taken in this direction. As Justice Albie Sachs, former judge of the South African Constitutional Court says in the foreword of our report, the Constitutional Convention recommendation is the golden opportunity for the Government to make this happen.
Second, making ESC rights legally enforceable provides individuals and groups with a means to hold the Government to account. ESC rights litigation can also function as a corrective mechanism for the political system, shining a light on issues that otherwise might not be addressed. Case law on ESC rights from other states gives examples of how neglected issues have been brought to the fore and resulted in positive changes in law and policy, therefore directly impacting on people's lives.
Third, ESC rights are as much a tool for government as they are for civil society. When we talk about accountability we are not simply talking about a means through which we react to or repair failure or wrongdoing. Accountability is a vital tool for those charged with making complex and difficult decisions; one that can guide and strengthen decision-making and the development of law, policy and practice. ESC rights are outcomes focused on but also concerned with the process that is used to achieve same. For example, ESC rights require the Government to take steps, over time, to deliver on those ESC rights outcomes identified in international law. They do not specify the policies that must be pursued to deliver on these rights. They require that the Government adopts appropriate processes for planning and decision-making and that decisions are made in a transparent, participatory manner, using reliable evidence.
Government decisions and expenditure must be geared towards those outcomes. For example, one outcome is that everyone has access to health care without discrimination, when they need it. This includes affordability of health care. How that is done is up to Government. For example, human rights law does not prescribe public health provision over private only that all are able to access it without discrimination.
Accountability has become the byword in recent years for the promise to do things differently, to make better decisions and deliver better outcomes. If we look at how courts have protected ESC rights in other countries, like Latvia and Germany, we see a focus on good process. The courts ask the question whether decisions have been made in a transparent manner, using reliable evidence. Real accountability, also requires that decision-makers consult with those affected by their decisions and when implementing these decisions. In this way accountability becomes a vital tool to inform good decision-making and ensure that policy decisions serve the people they most affect.
Fourth, making ESC rights legally enforceable, would show that the Government attaches the same importance to all human rights, civil and political, economic, social and cultural. While we are slowly emerging from the economic crisis, this is still not felt by many people who are currently affected by issues such as access to health care, and adequate housing. Showing a strong commitment to the protection of ESC rights has never been more important and what better way to do this than in the Constitution, the basic law of the State?
Finally, making these rights legally enforceable, would also bring Ireland in line with a growing trend among many countries to legally recognise ESC rights as enforceable. Around the world the right to health care is included in 133 constitutions, the right to housing in 81 constitutions, the right to work in 136 constitutions, to name but a few examples.
What is stopping us? In Ireland, as sometimes in other countries, myths and misconceptions around ESC rights have hindered their application in the domestic legal system. These myths and misconceptions often relate to the nature and definition of ESC rights and the resources involved. In the interest of brevity I shall only speak about two misconceptions here but we address more of them in chapter 2 of our report.
Regarding resources, there is a fear among some that ESC rights require huge levels of resources and that it is a reason they should not be given legal protection. International human rights law recognises that no government has infinite resources and cannot be held to an impossible standard of perfection. Important checks and balances are put in place. Under the ICESCR, states must progressively realise the rights in the convention, subject to the maximum amount of resources available to it. This phrasing is directly reflected in the full recommendation of the Constitutional Convention. These may seem like abstract concepts, but the UN Committee on Economic, Social and Cultural Rights has laid out clearly what the concepts mean in practice. This is outlined further in our report. It is not about spending more and more but ensuring that the resources we do have are used appropriately, in a transparent and evidence-based way, delivering equitable outcomes for all.
A particularly prominent argument against enforceable ESC rights is the separation of powers argument. It is claimed that legally enforceable ESC rights distort democracy as the Judiciary become unelected decision-makers. ESC rights throw up complex and difficult questions. But if we look at the body of case law on ESC rights from other jurisdictions, it shows that courts have found ways of dealing with these issues that are appropriate to their respective legal system and respects the separation of powers. For example, the South African Constitutional Court has adjudicated on many ESC rights cases but limited its judgments to its appropriate role. It has made clear that when considering the reasonableness of state actions, it would not look at whether better measures could have been adopted or public money could have been better spent but whether the measures that were adopted were reasonable. In our report we show how countries such as Portugal, Finland and Germany have enforced ESC rights. Different approaches can be adopted in different national contexts. These approaches are outlined in greater detail in our report. It is clear that it is possible to adjudicate on ESC rights in a way that respects the separation of powers between the different branches of government. Examples from these jurisdictions also show that it is possible to take what might appear to be abstract ESC rights related obligations and apply them in domestic legal systems. There is no reason that the same cannot be done in Ireland.
In conclusion, time and again we have seen the public support that exists for ESC rights. In polls carried out by Red C on behalf of Amnesty International this year, 71% of people polled believed that the Constitution should be amended to protect additional ESC rights. The Constitutional Convention overwhelmingly voted in favour of strengthening protection of ESC rights in Bunreacht na hÉireann. Also, according to the terms of reference of the convention, the Government now has until the end of July to respond to its recommendation.
Amnesty International Ireland urges the this committee to press for the Government's acceptance of the recommendation made by the Constitutional Convention on ESC rights, that the Government engages robustly on the issue, and that it ensures full transparency and clear timelines in any measures adopted to take the matter forward. Giving greater legal protection to ESC rights in the Constitution would not cure all our ills. It would require that the Government designs systems that prioritise good, evidence-based decisions, in the interest of all our people.