Rosalind McKenna was until recently the Economic, Social and Cultural Rights Team Co-Ordinator at Amnesty International Ireland. She has recently taken up a position at Open Society Foundations in New York.
If you have queries about Amnesty International Ireland’s work on economic, social and cultural rights, you can contact Niamh Kinane on NKinane@amnesty.ie or 01 863 8330.
“Should the Constitution be amended to strengthen the protection of Economic, Social and Cultural (ESC) rights?” – this was the question posed to the Constitutional Convention on Sunday 23 February.
After a day of intense debate the previous day, it was crunch time.
Ireland’s Constitutional Convention was established in 2012, with an agenda of topics for consideration set by the Government. Through 2013 it worked through them – Presidential term length, the role of women in the home, marriage equality for same-sex couples, Dáil reform, and removal of the blasphemy provision, amongst others. Alongside the Convention deliberations, a civil society campaign called upon the Convention to examine economic, social and cultural (ESC) rights. Despite competing calls for the Convention to review other important topics, in December 2013 Convention members of the Convention were polled and opted to select ESC rights as one of their final two issues for examination.
In February, the examination took place. Almost twenty years after the Constitutional Review Group rejected the need for greater protection of socio-economic rights, and more than a decade since the All-Party Oireachtas Committee made its (ultimately unfulfilled) commitment to examine ESC rights, the moment had arrived.
Professor Aoife Nolan, Dr Liam Thornton and Dr David Fennelly were invited to address the Convention as academic experts, explaining what ESC rights are and how they could be enforced. Amnesty International and the Irish Human Rights Commission made the arguments about why these rights should be given greater legal protection, before former Attorney General and Minister for Justice Michael McDowell presented the counter argument. Focus Ireland and Rossa Fanning BL joined for a panel discussion, allowing members of the Convention to question the presenters and to challenge whether and how these rights might be offered greater protection under Bunreacht na hÉireann.
And on a bright Sunday morning, the answer came back. 85 per cent of the Convention supported amending the Constitution to strengthen protection of economic, social and cultural rights. This is a victory for those who believe greater constitutional protection of these rights would make a difference to Irish people’s lives and how Government makes decisions.
The Convention favoured the insertion of a strong provision protecting ESC rights. They voted to recommend that the Government insert in the Constitution a provision that says the “State shall progressively realise ESC rights, subject to maximum available resources and that this duty is cognisable by the Courts”. They also rejected the option of updating of the Directive Principles, or the insertion of a more explicit, yet still unenforceable, ESC rights provision.
Notably, the Convention members drew from the language of the International Covenant on Economic, Social and Cultural Rights (ICESCR), recognising that language around “progressive realisation” and “maximum available resources” helps to clarify the nature of the obligations on the State.
The Convention members also recognised that ESC rights are not foreign to the Irish political or constitutional traditions, and that there is already, limited, existing provision for these rights. When polled on which rights, in particular, should be given further protection, there was strong support for housing, essential health care, social security, cultural and linguistic rights, and 80 per cent supporting the protection of all rights contained in the ICESCR.
The report of the Convention was submitted to Government in March, and the Government has 4 months to respond on whether they accept the recommendation.
Government can accept or reject the recommendation, or can decide that the matter requires further examination e.g. by a working group or taskforce set up to address the matter. It’s a real possibility that ESC rights will be given further examination, given that there was 85 per cent support for amending the Constitution to strengthen ESC rights and 43 per cent of the Convention favoured referring the issue. It would be critical that appropriate terms of reference and timeline are set for the taskforce in order that this issue does not drop off the public and political agenda.
Minister for Social Protection, Joan Burton, in her address to the recent PILA conference made some comment on the impact that existing ‘socio-economic’ rights provision in the Constitution – namely Article 45 - has on Irish policy-making. Perhaps this is an early indication of the Government’s response to the Convention recommendation?
But that is for another day.
The Constitutional Convention understood the meaning of ESC rights and the implications of their further constitutional enshrinement. They recognised that those who framed our Constitution 77 years ago had a vision for our Republic and that further enshrining ESC rights would help give effect to that vision.
This is a very significant win, one more step towards ensuring that we secure meaningful ESC rights protection here in Ireland.
As one of the leading organisations in Ireland working with the law for the benefit of marginalised and disadvantaged people, the Free Legal Advice Centres (FLAC) seeks to coordinate and produce a civil society shadow report for Ireland’s forthcoming examination in 2015 by the UN Committee on Economic, Social and Cultural Rights (CESCR). For details of this project, upcoming consultations and for further information on how to feed into the report please go to www.flac.ie or contact the project team on 085 836 3300 or by email at icescr@flac.ie