Thomas Pringle (Donegal, Independent) | Oireachtas source

Tairgim: "Go léifear an Bille an Dara hUair anois."

I move: "That the Bill be now read a Second Time."

Since 1973 when Ireland signed the International Covenant on Economic, Social and Cultural Rights, ESC rights, and since its ratification in 1989, rights covered by this treaty have slowly and progressively been eroded by successive Governments intent on the ever increasing commercialisation of our public services. As we emerge from an economic recession, it is becoming ever more evident that every person has traded in something for this recovery at their expense. Most people do not know how to describe or understand what that something is and do not use the terminology we throw across the floor of this House but they do sense a general feeling of unease as if we are heading in the wrong direction, and they are right. What they are feeling is an encroachment of the commercialisation of many aspects of their lives, most vitally, the public services that provide basic security for people in this country and which they are fundamentally entitled to. Why is there such opposition to water charges, the property tax, closure of post offices and Garda stations, and cuts to bus services and health services, including mental health and disability supports? Not to mention the catastrophic housing crisis or, as I prefer to call it, crisis of inaction by this Government, caused by its reliance on encouragement of the private sector to fill the void of an ineffective Government housing policy and which has thrown people out into the streets and families into hotel bedrooms over the Christmas period.

People are asking why can their family members not get a public hospital bed when private beds are lying empty. What they are really asking is, "Where is our right to health care?". It is an intolerable fact that health outcomes are determined by wealth and poverty. Dr. Robert O'Connor, the head of research at the Irish Cancer Society, confirms this, noting that cancer deaths in Mulhuddart are three times those in Castleknock despite them being bordering areas. People ask if their children will get the necessary resource teaching hours or special needs assistance in their local school and if they will have to face third level student loans which will have to be repaid over a lifetime. Workers are asking why they feel less secure in their jobs and more fearful of life in retirement and how they will provide for their families if work dries up. People are asking these questions because during the recent austerity programme from 2008 to 2013, the bottom 10% of people experienced an income contraction of 22% compared with the average fall in income of 13%.

All of this offers a grim picture but it is the reality for many as a result of the ideology pursued by this and previous Governments that commercialisation or privatisation of our public services is best for everybody. That is why, time and again, people feel compelled to protest. They know this ideology is a lie. It is corrosive. The best example is the community led nationwide protest against water charges. Something about the symbol of our water being sold off to private companies caught people's imagination and represented for them where they did not want this country to go. Fine Gael's reaction to this was an example of a Government out of touch with its people and its contempt for the so-called "criminal" protestor was a reaction from a place of blind loyalty to the vision of global capitalism.

The Bill I present offers the exact antidote for which people are searching. It is a countermeasure to all of the corrosive policies of Fine Gael and previous Governments which have led to the breakdown of vital public services, successive cuts to social welfare supports, health services and social housing, supports for schools and cuts to wages, including terms and conditions of work. These policies have perpetuated wealth inequality, gender inequality and social inequality. My Bill seeks to counteract these effects by enshrining fundamental rights such as the right to housing, health care and education in our Constitution by way of referendum.

In the ninth and final meeting of the Constitutional Convention in February 2013, 85% of the members voted in favour of amending the Constitution to strengthen the protection of economic, social and cultural rights. A majority of members of the convention voted in favour of a constitutional provision to realise such rights progressively, subject to the maximum available resources, and to enshrine that this duty be cognizable by the courts. The convention voted on whether specific additional rights should be enumerated in the Constitution and voted in favour of a proposal that all of the rights contained in the International Covenant on Economic, Social and Cultural Rights be enumerated within the Constitution. The Bill is intended to give effect to that determination. In March 2014, the Constitutional Convention sent a recommendation to the Government to implement these rights and the Government was due to respond by July of that year.

I introduced the Bill during the last Dáil in May 2015 but it was voted down by Fine Gael, Fianna Fáil and Labour at the time. Two years later and after a general election in 2016, the programme for Government had watered down commitments on economic, social and cultural rights to the point of only committing to referring the report of the Constitutional Convention to the new Oireachtas committee on housing for consideration. Despite this watered-down commitment, the Government has also failed on this promise. A year into new politics we are still waiting for the Government to address proactively the status of these rights. The proposed wording in the Bill is intended to be in addition to the text of Article 45 of the Constitution to the effect that the State shall progressively realise, subject to its maximum available resources and without discrimination, the rights contained in the International Covenant on Economic, Social and Cultural Rights and that this duty be cognizable by the courts.

Prevailing myths and misconceptions about economic, social and cultural rights, combined with a lack of political will, have hindered their application in Ireland. These misconceptions do not stand up. The first myth that economic, social and cultural rights should not be intended to be part of the judicial system is a misconception. Decisions in courts in other countries have proven time and again that these rights are legally enforceable. These rights have been recognised through a wide range of legal systems found in but not limited to Finland, Germany, Latvia, Portugal, Argentina, South Africa, India, Brazil, Kenya, Colombia and Mexico. Rights currently protected, including freedom of expression and the right to privacy, are as broadly worded as economic, social and cultural rights which has not prevented the courts from adjudicating these issues.

According to the second myth, there is a lot of anxiety about the separation of powers principle. Many who have voted against this Bill reiterate that only Government should decide matters of taxation and distribution. Of course, laws are a matter for the Legislature, but there is also a complementarity as well as a separation between the different parts of the State. The Irish Judiciary has been acutely conscious of not stepping into areas of decision-making that rightly belong with the Executive and the Legislature. A large body of case law on economic, social and cultural rights has emerged from countries such as South Africa showing that courts have remained conscious of their role when adjudicating economic, social and cultural rights claims. A reasonableness doctrine was incorporated as a doctrine which has been held in court proceedings.

A final prevailing myth relates to how Government could possibly meet the huge demand that justiciable rights could create if people can claim these rights through the courts. Economic, social and cultural rights are not unqualified rights. Progressive realisation means that states must provide according to available resources. Reasonableness is another important concept of human rights law interpretation. As such, it simply is not the reality that everybody will be looking for a key to their own house overnight. These myths only reflect the lack of interest in government in being held accountable for policy decisions because fiscal policy takes front stage at every turn. "Progressive realisation" is the key term here. The courts can apply the principle of proportionality and weigh it up against other policy considerations.

Right now, people can only argue against peripheral issues as opposed to the fundamental issue, for example, unfair procedures in accessing housing. Incorporating these rights will have a trickle-down effect into all policy areas at every level of power. If the right to housing was introduced, it would not mean a person would be given a house. It would mean that when the Government was drafting housing policy, it would have to take into account and be aware of the right to housing and be obliged to develop policy with this in mind. It is intended to hold Governments to account, not dismantle them so that if they do not have the resources, they will at least have to show how they came to the decision not to allocate resources which would better defend the rights inherent in this Bill. This will be particularly valid in the lead up to budgets which continuously leave out a balanced approach to economic and social matters.

Enshrining these rights in our Constitution will not change things overnight. We have to be reasonable. It may not translate into an Act, a statutory instrument or even a circular but it will compel decision makers to vindicate these rights as far as they can, subject to the availability of resources. Most importantly, it would fundamentally change the decision-making culture within Government and place it on a rights-based footing.

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