Brendan Howlin (Wexford, Labour) | Oireachtas source

I move amendment No. 1:

To delete all words after “That” and substitute the following: “Dáil Éireann: notes that the Convention on the Constitution, in its eighth report, recommended greater constitutional protection for economic, social and cultural rights, making them amenable to supervision by the courts in certain circumstances, and extending in particular to:

— housing;

— social security;

— essential health care;

— rights of people with disabilities;

— linguistic and cultural rights; and

— rights covered in the International Covenant on Economic, Social and Cultural Rights;

further notes the response by the Government to the Constitutional Convention recommendations, given in this House on 14 January 2016, which response neither accepted nor rejected the recommendations but decided that the report should be referred to an Oireachtas committee for consideration of the various issues that arise from it; believes that the proposals require detailed consideration by an all-party committee, with the assistance of expert advice; resolves that:

(a) a special all-party committee, which shall be called the Committee on Economic, Social and Cultural Rights, shall be established, to consider the recommendations of the Constitutional Convention in its eighth report;

(b) the committee shall be made up of 14 Members of the Dáil, of which four Members shall be appointed by the Government, three members by Fianna Fáil, two members by Sinn Féin, one member by the Labour Party, one member by Independents 4 Change, one member by the Anti-Austerity Alliance–People Before Profit, one member by the Rural Independent group and one member by the Social Democrats–Green Party group, and four shall constitute a quorum; members may be substituted as provided under Standing Order 95(2);

(c) notwithstanding Standing Order 93, the committee shall elect one of its members to be chairman, who shall have one vote;

(d) the Ceann Comhairle shall announce the names of the members appointed under paragraph (b) for the information of the Dáil on the first sitting day following their appointment;

(e) the committee shall have the powers defined in Standing Order 85 other than paragraphs (3), (4) and (6);

(f) the committee shall hold hearings in public with expert witnesses, invite and accept written submissions, draw up a report, make findings and recommendations;

(g) the committee shall produce an interim report, containing also its proposed work schedule, to be debated at a meeting of the Dáil no less than one month after its establishment; and

(h) the committee shall publish its final report within eight months of its establishment; and accordingly declines to give a Second Reading to the Thirty-fifth Amendment of the Constitution (Economic, Social and Cultural Rights) Bill 2016.”

I, too, am very happy to have the opportunity to speak on this Bill because it raises a profoundly important question - in truth a number of profoundly important questions. I congratulate Deputy Pringle on tabling it and initiating this discussion. It is too important a subject for any knee-jerk response. It deserves careful analysis, study and reflection so that we actually achieve the objective, because I agree with Deputy O'Callaghan that quite often in this House we like to pretend we are achieving an objective that may not actually have the consequences the House intends.

Recourse to the courts to address socio-economic issues is not new. Test cases, specially selected by social campaigners and argued by lawyers with a campaigning agenda, are a familiar part of the landscape, particularly in recent times. If what is being sought is a radical transformation of society then, frankly speaking, public interest litigation alone will never be up to that task. The Bill proposes to put such litigation centre-stage, as a means of vindicating the rights of citizens of this State. That is a very important objective.

My starting point in considering the proposal is to assert that all democratic politics eventually come down to where one stands between two, sometimes competing, sets of claims - the claim of social cohesion and that of individual liberty. On the one hand, personal freedom is a fundamental human right and, on the other, no society is truly free unless all the men and women who make up that society are free individuals. Poverty, homelessness, unemployment and ignorance are all profound enemies of personal freedom.

Even if we are mostly agreed as to our common purposes across this House, there is still room for debate as to how we achieve those objectives. There is objection on the part of some to the idea of judges as contestants in the process rather than as umpires. That is something we have to think about. We have democratic accountability in this House. We are elected with a mandate from the people. We need to ensure that we jealously guard that right.

There are a range of objections to the idea that the courts should get involved with socio-economic rights and that these rights should be judicially enforceable. We would be familiar enough with the valiant efforts to pursue this course of action before the courts, and how so often, unfortunately, it has failed. At the start of this century, the families of so-called out of control children, of children at risk and of children with profound intellectual and learning disabilities became engaged before our courts in a great civil rights campaign. Theirs was an insistent demand for dignity and independence and they sought from the courts a response under our Constitution. Unfortunately, they were disappointed.

Two cases, Sinnott v.Minister for Education and T.D. v.Minister for Education, succeeded in the High Court, but the appeals taken by the State against the decisions were upheld by the Supreme Court and senior members of that court signalled their strong opposition to the idea that what are called socio-economic rights enjoyed constitutional recognition and protection. I have no doubt but that constitutional provisions dealing with socio-economic rights can be carefully crafted so that the courts would always have to take into account the State's financial position and make decisions in the context of resources that are available.

We need to acknowledge that the Constitution already contains a socio-economic right to free primary education, as Deputy O'Callaghan has already instanced, by imposing a duty on the State to provide for it. The express obligations of the State towards children in the children's rights amendment also give rise to clear socio-economic rights. On the other hand, there are no provisions of the Constitution expressly requiring the State to provide medical services or social protection of any kind, for any of our citizens.

6 o’clock

This gives rise to further questions. Does anyone really believe that, for want of constitutional protection, there is any risk of our health services being dismantled? Does anyone think that, because it is constitutionally protected, our education system is somehow profoundly stronger than our health system?

We should, therefore, be cautious in ascribing too great an effect on simply including a constitutional change. I accept that protecting socio-economic rights is primarily a matter of political interest. The main reason for accepting that is that the political process has much more room for manoeuvre when it comes to formulating policy, not to mention democratic underpinning.

Why, for example, do people with disabilities and their families persist in demanding human rights-based legislation? Their position is based on their insight and experience from the lives they have lived, resulting from various forms of maladministration and being on the receiving end of dubious services yielded by a charity model of service delivery. The drive to move away from charity and towards a rights-based system is also motivated by the fear of families as to what will happen to those who rely on them when they are beyond making choices for their loved ones.

I am reminded of the Department of Finance’s response to the report of Mr. Justice Flood’s commission on the status of people with disabilities. The report included a recommendation that every disabled person be given a statement of needs. This passport would entitle them to public services without having to argue their case repeatedly with Departments and agencies. The Department of Finance's reaction to this recommendation was included in the report Towards Equal Citizenship. It stated:

The Department of Finance cannot accept these recommendations, which imply the underpinning by law of access to, and provision of, services for people with disabilities as a right. This right, if given a statutory basis, would be prohibitively expensive for the Exchequer and could lead to requests from other persons seeking access to health and other services without regard to the eventual cost of providing these services.

That is it in a nutshell. The underpinning by law of access to and provision of services as a right imposes non-discretionary spending obligations which, according to the Department of Finance, could lead to requests from other persons. We need to address these issues.

The whole point about constitutional rights is that they endure and survive economic cycles and changes of Minister and Government. My amendment would give the House an opportunity to fully debate how we will advance this in a way that will have a real impact on and meaning for all of our people. I hope the House will support it.

See this speech in context