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For the day that is in it May 17, 2014

Posted by Tomboktu in Equality, Human Rights, LGBT.
9 comments

Taken yesterday, in Newry (just outside the bus station).

IMG_20140516_091716_7

Sex education in Irish schools March 5, 2014

Posted by Tomboktu in Education, Health, Human Rights.
3 comments

In yesterday’s Irish Times, Jacky Jones uses her column to attack the advocacy of sexual abstinence until marriage as part of Relationships and Sexuality Education in Irish second-level schools. She reminds her readers that “Anyone over 17 years of age, married or single, gay or straight, can choose to have, or not have, consensual sex at any time.”

One of the interesting nuggets she draws attention to is that the Department of Education and Skills cites European human rights law in its 2010 circular to schools reminding them of their obligations (pdf of circular here).

1.5. Access to sexual and health education is an important right for students under the terms of the Article 11.2 of the European Social Charter. The Council of Europe European Committee of Social Rights, which examines complaints regarding breaches of the Charter, has indicated it regards this Article as requiring that health education “be provided throughout the entire period of schooling” and that sexual and reproductive health education is “objective, based on contemporary scientific evidence and does not involve censoring, withholding or intentionally misrepresenting information, for example as regards contraception or different means on maintaining sexual and reproductive health.

Jones asserts in her article that Catholic schools are not entitled to promote Catholic views on sexuality. I don’t know enough about the rights of a Catholic school to know if that is correct, but there is a further aspect Jones did not mention. The Department of Education circular she quotes from also cites the Education Act:

1.4. Regard must also be had to Section 30 (2) (e) under which a child may not be required to attend instruction in any subject which is contrary to the conscience of the parent of the student, or in the case of a student who has reached 18, the student.

At some stage in the mid 1990s I attended the launch, in the city’s museum, of the Derry Pride Festival. A few of us were amused when some Free Presbyterians showed up outside to protest, singing hymns: a handful of zealots were not a threat. But we were mistaken to see it only as amusing. One of the people at the launch inside the museum was the teenage son of one of the singing protesters outside.

Jones points out in her article that we have no information on whether restrictions on young people’s rights to objective relationships and sexuality education are practised, although I would bet that the Opus Dei school in Dublin does not teach objectively about the role of contraception.

The Education Act was passed in 1998, before the European Committee of Social Rights was asked to rule on the Croatian case that the Department quotes in its 2010 circular. It is time to re-visit Section 30(2)(e) to ensure that it cannot be used by parents to restrict their children’s rights to full RSE education.

Constitutional Convention February 24, 2014

Posted by Tomboktu in Bunreacht na hÉireann, Health, Housing, Human Rights, Judiciary, Religion.
13 comments

It would not be correct ot say that the Convention on the Constitution has been radical, but it has wrapped up its work with its most radical recommendation.

In Ireland, economic, social and cultural (ESC) rights are included in the Constitution merely as “directive principles” for the guidance of the Oireachtas. (The exception is the right to a primary education.) The Constitution states that these rights “shall not be cognisable by any Court under any of the provisions of this Constitution”. [An aside: doesn't the word 'cognisable' sound like street slang for 'recognisable'? The image of Dev getting down with the lads doesn't seem right. At all.]

The principles listed under this provision are

  • an adequate means of livelihood
  • ownership and control of the material resources distributed to best subserve the common good
  • the operation of free competition not being allowed so todevelop to the common detriment
  • the aim of the control of credit shall be the welfare of the people as a whole
  • there may be established on the land in economic security as many families as practicable
  • the State whall favour and, where necessary, supplement private initiative in industry and commerce
  • private enterprise shall be conducted to ensure reasonable efficiency in the production and distribution of goods and to protect the public against unjust exploitation
  • the State safeguarding with especial care the economic interests of the weaker sections of the community
  • ensure that the strength and health of workers, men and women, and the tender age of children shall not be abused

Those of us on the Left would hardly think it radical that any of these would move to legal requirements that can be invoked before the courts, and would not be thrilled to see the status of private industry — already sheltered with property rights — re-inforced by being made something judges must take account of in legal decisions.

An overwhelming majority — 85 percent — of the members of the convention voted in favour of the broad proposition that the Constitution should be amended to strengthen the protection of economic, social and cultural rights. A smaller majority — 59 percent — recommended that the Constitution be amended by the insertion of a provision that the State shall progressively realise ESC rights, subject to maximum available resources and that this duty is cognisable by the Courts. This was the strongest of three options the Convention considered for strangthening the status of ESC rights in the Constitution.

However, progressive realisation subject to maximum available resources is not a very strong standard.

It also voted on five possible specific new rights to be named in the Constitution:

  • housing
  • social security
  • essential health care
  • rights of people with disabilities
  • linguistic and cultural rights

In each case, it voted overwhelmlingly in favour of each of these — the least popular was linguistic and cultural rights, with 75 percent support.

It also voted for the “rights covered in the International Covenant on ESC Rights” to be named in the Constitution — this received support from 80 percent of the members of the Convention.

I do not expect this recommendation to go far. The idea that citizens could go to the courts to invoke rights on these matters is simply too alien to our governments, politcal and permanent. Indeed, when an alliance of NGOs first met last year to discuss the idea of asking the Convention to consider the issue, they held a seminar at which the political parties sent representatives to give their views. It was disappointing to hear the party representatives say that constituional protection of ESC rights is not something they support. I hope some them reconsider in lgiht of the numbers from Sunday’s vote.

Marriage Equality — Distracting our attention February 6, 2014

Posted by Tomboktu in Crazed nonsense..., Human Rights, Inequality, Irish Politics, LGBT.
8 comments

Did you see what David Quinn and Senator Rónán Mullen did there?

They’re like bad magicians, trying to distract the audience — in their case from Panti’s critique on RTÉ (transcript here; 3-minute video here) of the ethos of their case against lifting the ban on same-sex marriage.

David Quinn used his column in the Irish Independent on 31 January to ask if we can have a respectful debate on same-sex marriage. He opened his column with extracts from four emails he has received that contained very nasty suggestions about what the sender wanted him to do or to happen to him.

Then on Wednesday of this week, Senator Mullen asked in the Seanad if GLEN (the Gay and Lesbian Equality Network) would disassociate itself from Panti’s statement on RTÉ. (Broadsheet’s 50-second video clip of Senator Mullen’s contribution is here.)

While not explicitly naming David Quinn or his Iona colleagues, Communications Minister Pat Rabbitte was clearly thinking of them when he said, also on 31 January, that those who enter the arena of public debate cannot expect that Queensbury Rules will always apply. Well, the column by David Quinn and speech by Senator Mullen demonstrate they they, at least, do not in fact play by Queensbury Rules.

Private emails with nasty and unpleasant messages are not part of the debate. Nobody is swayed by them. They are, simply, nasty and unpleasant emails to you from individuals who are angry or sad, or both [1]. Putting them in the public domain makes them part of a debate, but not the debate — on whether the ban on same-sex marriage should be lifted.

GLEN, whom Senator Mullen acknowledged is respectful, did not and does not put into the public domain the nasty emails and letters it receives. Neither does Marriage Equality, and neither does BeLonG To, the lesbian, gay, bisexual and transgender youth service.

There can be times and ways to draw attention to the nasty underside of — to use Minister Rabbitte’s phrase — entering the arena. But when public opinion has lit up in rage that you have received compensation because a drag queen (oh, the irony — a drag queen!) pulls you up on the basic value you espouse in the actual debate, bringing up the work of sad individuals who oppose you serves to distract.

Sadly, the technique adopted by David Quinn and Senator Mullen is not simply an attempt to distract. It is also distinctly cynical and unpleasant: it attempts bring guilt by association to the case for lifting the ban on same-sex marriage.

__________

[1] If emails go beyond being unpleasant to being genuinely threatening, then the place to bring them is the Gardaí, but in fairness, David Quinn did not suggest any sense of threat to his safety, so it is reasonable to assume that is not relevant to this discussion.

Would you want to set up FairPhone? January 14, 2014

Posted by Tomboktu in Choice, Community, Employment Rights, Environment, Ethics, FairPhone, Human Rights, Technology, Workers Rights.
5 comments

Who in their right mind would want to set up FairPhone? Obviously you can check out their site to find out who actually did set it up as a Dutch social enterprise, but would you want to?

Park, for a moment, the ‘fair’ bit and think about what is involved setting up a company to make a new smartphone. Smartphones are complex products, with chips, capacitors, resistors, glass, sensors, casings, displays, batteries, cameras, speakers, antennae, sockets and other bits and pieces that I don’t know about. And you’d need software. You would also need to design all of this, or get people to do that for you, and to set up or find a factory to make it.

If you did do it, you would be going into a market with big brands like Samsung, iPhone, Sony, Nokia, HTC, and so on, so you would need a pretty strong selling point to attract customers from the products offered by those heavy-hitters.
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Saturday’s radio — two items December 29, 2013

Posted by Tomboktu in Bits and Pieces, Britain, Human Rights.
1 comment so far

I had the radio on this afternoon when the BBC broadcast a repeat of an interview with Cressida Dick, Assistant Commissioner with the Metropolitan Police in London. You can hear the 17-minute interview here.

She was the “Gold command” officer in charge of operations when Jean Charles de Menezes was shot dead by police on 22 July 2005. She has since been promoted, three times. As the BBC notes at the start of the intereview, she was cleared of all blame.

In the evening, I had switched station to Lyric FM, and had Blue of the Night on. Among the songs played was ‘Hollow Point’ by Chris Wood.

Collective confusion December 3, 2013

Posted by Tomboktu in Collective Bargaining, Employment Rights, Human Rights.
13 comments

In the Irish Times on Friday morning, Stephen Collins told us

Plans to introduce compulsory collective bargaining for all companies in the State will be announced tonight by Tánaiste Eamon Gilmore at the opening of the Labour Party national conference in Killarney.

The ICTU’s legal and legislative officer, Esther Lynch, tweeted on Friday that the “devil will be in the detail” but still felt able to declare “Really welcome announcement on progress towards securing proper respect for human right to collective bargaining”.

In the evening, what Eamon Gilmore actually said must have been a disappointment to her:

Labour agreed in the Programme for Government to reform the current law on employees’ rights to engage in collective bargaining, so as to ensure State compliance with the judgements of the European Court of Human Rights. And I am glad to say that Government will begin the process of legislating for that commitment in the coming weeks.

She would realise that enusring compliance with the European Court of Human Rights will not be a major change. The minister responsible for this change will be Richard Bruton, and he has twice told the Dáil what the gap in the Irish law is.

First, a little over a month of taking office, he told Labour’s Robert Dowds that the issue was the Wilson case.

The ECHR judgment found that under United Kingdom law at the relevant time it was possible for an employer effectively to undermine or frustrate a trade union’s ability to strive for the protection of its members’ interests. Accordingly, the ECHR concluded that, by permitting employers to use financial incentives to induce employees to surrender important trade union rights, the UK had failed in its positive obligation to secure the enjoyment of the rights under the European Convention for the Protection of Fundamental Rights and Freedoms.

He confirmed that in June that year to Fianna Fáil’s Willie O’Dea:

The compliance with the European Court of Human Rights judgment arose out of a judgment in the United Kingdom where, to paraphrase, a court judged that employers were giving priority to people who were not members of a trade union and in certain circumstances were deemed to have been victimising those who opted to join a trade union. The court found that the British law in that case was in contravention of human rights. The issue has arisen to proof our legislation against any similar frailty. This is my understanding of the matter.

Important as that is, it is a long way from what Stephen Collins reported on Friday morning.

I would love to know the story behind the differences between the front-page story in Friday’s Irish Times and the actual speech delivered on Friday night.

Was Collins given a dud briefing on Thursday, or did he misunderstand a reference in his pre-conference briefing to the Strasbourg court’s ruling, or did his report provoke contact between Richard Bruton — the minister responsible for the planned legislation — and Gilmore, leading to a change in the line by the time the speech was delivered on Friday evening? I don’t know which of those three possibilities — Collins spouting garbage, Collins being fed garbage, or Gilmore climbing down — is worst.

Awkward question on trans rights. November 18, 2013

Posted by Tomboktu in Gender Issues, Human Rights, Inequality, LGBT Rights.
1 comment so far

The government was asked last week to explain what it is doing to recognise transgendered people’s rights. The UN Human Rights Committee (HRC) included a question on the issue to the State in its list of issues it wants Ireland to explain at the periodoc review next year of Ireland’s obligations under the International Convenant on Civil and Political Rights.

It is now six years since the High Court found that Irish law breaches European human rights standards on the right of a transgender person to obtain a birth certificate in their true gender. That was followed by a government decision to set up an advisory group — consisting of civil servants — to prepare a report, which was published in July 2011. (My post on that is here.)

It took a further two years to produce the Heads of Bill, in July 2013.

The HRC has asked the government to provide “detailed information on the steps taken to issue birth certificates to transgendered persons” (Link to Word document here). The government will have plenty of “outputs” to report to the Human Rights Committee:

  • the establishment of the advisory group,
  • publication of its report,
  • decision of cabinet on the heads of bill,
  • publication of heads of bill, and
  • discussion of them by the Oireachtas Committee on Education and Social Protection.

It would not surprise me to see the Oireachtas Committee put under some backroom pressure to get a report of its hearings out so that there is another “output” by the time the HRC holds its hearings.

I hope the HRC puts the Irish officials who appear before it under close scrutiny about a new clause it introduced between the publication of a the report of the advisory committee and the publication of the heads of bill. That provision would allow sporting organisations to prohibit trans people from participating in some acivities. Now, there are pros and cons in such a provision, but their introduction into the heads of bill stinks. It has nothing to do with the issuing of a new birth certificate and the processes and requirements for that, and lies well outside the expertise of the Department of Social Protection. It amounts to a change in anti-discrimination law, although is not framed as such. Tellingly, the Department of Social Protection introduced a new proposal to allow discrimination in one area because of a person’s gender identity or the fact that they are transgendered without addressing the need for proposals to prohibit discrimination in other areas. I would not be surprised if it were dropped during the passage of the bill as a “concession” to trans people while leaving the core proposals that are hurtful and demonstrate a lack of any understanding by the drafters of the human cost of what they say should be enacted into law.

The second question that the HRC has asked will provide not so much an opportunity as a need for weasling by the State. The HRC asks “how transgender organizations have been included in such process, including in relation to the Gender Recognition Bill”. No doubt, the government will tell the Human Rights Committee that TENI (Transgender Equality Network Ireland) made a submission to the advisory group which was considered in preparing the final report, and has appeared before the Oireachtas to speak about the issue a number of times. They will probably also refer to the “engagement” with trans organisations by the Minister when she spoke at the Transgender Europe conference in Dublin in 2012.

I expect that the Department’s reply to the HRC will not record that

  1. the advisory committee did not include a single representative of trans people,
  2. the report and heads of bill do not comply with European human rights standard and
  3. the Minister has refused to meet TENI herself.

I hope the officials are called to account on that and squirm while explaining their approach.

* — ** — ** — ** — ** — ** — ** — *

TENI’s submission to the Human Rights Committee sets out in stark terms why action is needed, and needed urgently, and why the Government’s leisurely pace is itself an offence.

(a) Access to services: Formal, legal recognition of one’s identity – by the issuance of an accurate and correct birth certificate – is the gateway for enjoying numerous foundational rights in Ireland. Irish transgender persons who, on the basis of their expressed gender identity, seek to avail of important public services are frequently denied access because the Irish state only recognises the sex and identity assigned to them at birth. In Ireland, obtaining, inter alia, social security, Personal Public Service Numbers and marriage certificates all require the presentation of a birth certificate. The failure of the Irish state to issue new birth certificates to transgender persons means that, in order to access these foundational services, transgender people must present an official document stating that they are somebody other than their true self. Transgender people in Ireland cannot access services on the basis of their self-identified gender, even if they have lived in that gender for the greater part of their life.

The current legal situation creates an impossible and unfair choice for Irish transgender persons: the right to self-determination and dignity, or economic survival. Some transgender individuals ultimately decide to forgo their most basic rights because of the impossibility of presenting in a gender identity not their own. Others choose to access services on the basis of their birth-assigned identity and frequently confront widespread bigotry and discrimination.

(b) Restrictions on travel: The failure of the Irish state to issue new birth certificates restricts the ability of transgender people to travel. In this regard, journeys aboard can be particularly challenging. The 2008 Passports Act gives a transgender person the right to apply for a passport with their correct gender marker. However, the fact that a person’s birth certificate will not match the passport they are requesting means that issuing passports has, despite the existence of a clear legal right, become inconsistent and arbitrary. TENI has worked with people who have had difficulty obtaining a new passport. A transgender male who attempted to access a new passport but was told that not enough time had passed since his transition to apply for a passport with the male gender marker. When the individual tried to reapply with a female gender marker, he was told that he would need to provide “proof of use” of his female gender marker. In addition, many trans people are forced to pay the cost of a ten-year passport in order to obtain a two-year passport.

(c) Discrimination by state and non-state actors: Lack of recognition legitimises discrimination. Examples of prejudice which transgender persons experience from state actors include inappropriate and degrading questions, refusals to respect expressed gender identity and wilful misunderstanding. A transgender woman told TENI how, while attending a community care clinic, a member of staff had insisted upon loudly and publically calling her by her former male name. The individual recalled how “the room was packed and the laughing and comments were unbearable.” One woman received a phone call from Social Welfare querying her change of name and gender. She explained her transition, and the government agent laughed, said ‘You’ll never be a woman!’ and then hung up. (TENI has heard several similar accounts from people across Ireland.) An Irish transgender woman returning from abroad recalled how her letters to update her Irish bank account and Social Welfare with her change of gender and name were ignored: “The Social Welfare Department sent me a tax certificate in my old male name and informed my new employer of the details.”

(d) Detrimental effect on young people: The failure to issue a new birth certificate may have an especially negative impact on transgender youth. Transgender youth are particularly vulnerable to peer bullying. The perpetuation of young transgender persons’ exclusion through the failure to legally recognise their gender identity reinforces the stress and isolation which Irish transgender youth often feel. TENI has documented the story of a young transgender male who is surrounded by supportive family and friends. However, he is currently required to wear a skirt into school each day because his Principal does not recognise his gender identity.

The refusal to issue new birth certificates also creates significant difficulties for transgender students in applying for university in Ireland. Transgender people regularly miss out on college placements, as the Central Applications Office (CAO), the body responsible for assigning university places in Ireland, is unable to cope with transgender identities. One student transitioned and subsequently decided to re-sit his Leaving Certificate Exam (Ireland’s end-of-secondary-level-education national exam). He gained the required grades for his chosen course of study. The grade the student achieved for English in his first examination results should have been carried over and added to his results the second time he sat the exam. However, the CAO noted the discrepancy in name and gender and assumed an error had been made. In such cases, the CAO office dismisses the application without query. The young man missed out on his college place. TENI has heard of several such cases.

The Government’s Draft Heads of Bill for gender recognition excludes people under the age of 18 from applying for the rights contained within. This is in conflict with the recently passed Children’s Referendum, where the Irish people voted to amend Article 42A of the Constitution to read: “The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights.”

FairPhone June 11, 2013

Posted by Tomboktu in Community, Economics, Employment Rights, Environment, Ethics, Human Rights, Technology.
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[WorldByStorm suggested today that I move this up from a comment to a full post. I've uodated it because the time reference in the original is now out of date.]

Last year, I mentioned (in passing) that when I when I first bought a mobile phone, I made a point of buying from a telecoms company that recognises their workers’ union. I did not mention then that I had also done some research to see if I could buy a model that reflected my concerns — where the minerals are from, or union recognition for the people who make the actual phone.

So, I was pleased to see fairphone.com opened their new phone to pre-purchase.

On June 5 they hit their target of 5000 orders in order to go into production, and there are two days left to order one of the first batch.

And at the weekend just gone, they were working on aspects of the design their second phone.

The ethos is summed up in the invitation to the group of designers who participated in that workshop:

FairPhone was created because most people have no idea where the component parts of their mobile phone come from, how they are manufactured, and by whom. Bas: “Mobile phones are part and parcel of a complex economic and political system. We want to make this system visible to everyone. We do that by manufacturing the FairPhone, which unravels that system step by step.”

They recongise that their product is far from perfect — the rights of the workers is not secured through union recognition — but it’s better than any other phone I know of. Worth a look, I would suggest.

Austerity and human rights II May 15, 2013

Posted by Tomboktu in Austerity, Human Rights, Social Policy.
3 comments

This is the second of two posts on the topic of austerity and human rights. Yesterday I reported on a recent set of five cases taken against Greece. Today, I examine the possibility of applying EU law to challenge the way in which austerity is imposed by the troika.

Yesterday’s post was a report, with some analysis and views, on five cases that have been successful. Today’s is different: it is entirely speculative, but it might prompt action.

Two paragraphs in the Greek pension decisions contain important points. One reports the Greek government saying that it had to restrict the pensioners’ rights because of its obligations to the EU instituions and the IMF for the loans it was getting. The second quotes the ILO (referred to as the “High Level Mission” in the following paragraph):

[...] the Government indicated that data from ELSTAT showed that approximately 20 per cent of the population was facing the risk of poverty but that it did not have an opportunity, in meetings with the Troika, to discuss the impact of the social security reforms on the spread of poverty, particularly for persons of small means and the social security benefits to withstand any such trend. It also did not have the opportunity to discuss the impact that policies in the areas of taxation, wages and employment would have on the sustainability of the social security system.

The Greeek government is not alone, and the question is: can the troika — or key members of it — also be challenged legally. This post deals only with with the two European members of the troika: the ECB and the European Commission.

A legal challenge would need
(a) to identify the obligations that either of these bodies have that could be used in a legal challenge, and
(b) to identify how the legal challenge could be mounted — who has the right to take a case.

A number of legal obligations are potentially relevant. The key document here is the Lisbon Treaty. (An aside: after Lisbon, there are now essentially three fundamental legal documents governing the EU: (a) the Treaty on European Union (TEU); (b) the Treaty on the Functioning of the European Union (TFEU), and (c) the EU Charter of Fundamental Rights (EUCFR). They are available in a 408-page PDF here.)

The first obligation is set out in the TEU. The European Commission is required to “act within the limits of the powers conferred on it in the Treaties, and in conformity with the procedures, conditions and objectives set out in them” (Article 13(2) of the Treaty on European Union). It is that word “objectives” that provides the potential for action. Those objectives apply also to the ECB, so it is useful to summarise its obligations under Lisbon.

The basis for holding the ECB accountable is a little bit more convoluted, but gets to the same obligation. The ECB’s primary mandate under Lisbon is the objective of controlling inflation, and it has additional banking tasks concerning monetary policy, foreign exchange, etc. That mandate is set out in Article 127 of the Treaty on the Functioning of the European Union (emphasis added, original is on page no. C 83/102 of the PDF here) (thanks to Merijn Knibbe on the Real World Economics Review Blog for pointing this out):

Article 127
The primary objective of the European System of Central Banks (hereinafter referred to as ‘the ESCB’) shall be to maintain price stability. Without prejudice to the objective of price stability, the ESCB shall support the general economic policies in the Union with a view to contributing to the achievement of the objectives of the Union as laid down in Article 3 of the Treaty on European Union.

The point of the emphasis is that the ECB does indeed have a legal responsibility in relation to the objectives of the EU. The text on the ESCB points us to source of those objectives. The objectives set out in Article 3 cover both the neo-liberal economic free-market objectives and social objectives. Paragraph 3 of that Article contains the relevant text (page no. C 83/17), again with emphasis added:

3. The Union shall establish an internal market. It shall work for the sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment. It shall promote scientific and technological advance.

It shall combat social exclusion and discrimination, and shall promote social justice and protection, equality between women and men, solidarity between generations and protection of the rights of the child.

It shall promote economic, social and territorial cohesion, and solidarity among Member States.

It shall respect its rich cultural and linguistic diversity, and shall ensure that Europe’s cultural heritage is safeguarded and enhanced.

The second source of potentially useful obligations of the ECB and the European Commission is the EU Charter of Fundamental Rights (it starts at page no. C 83/389 of the PDF here.)

The EUCFR has 54 articles, 50 of which set out human rights or principles. Since the right to social protection has already been the basis of a finding of a breach of human rights law in the Greek penioners’ cases, it would probably useful to use a similar basis for a legal challenge in the EU system. The relevant part of that article is as follows

Article 34
Social security and social assistance

1. The Union recognises and respects the entitlement to social security benefits and social services providing protection in cases such as maternity, illness, industrial accidents, dependency or old age, and in the case of loss of employment, in accordance with the rules laid down by Union law and national laws and practices.
[...]

It is important to acknowledge that the wording of Article 34 of the EUCFR is different from the wording of the related article, Article 12 of the Council of Europe’s European Social Charter, which was the basis of the Greek pensioners’ case against Greece. However, the explanations of the EUCFR (PDF here) make clear that Article 34 EUCFR does draw on Article 12 ESC. Here is the relevant part of Article 12 of the ESC:

Article 12 – The right to social security
With a view to ensuring the effective exercise of the right to social security, the Contracting Parties undertake:

1 to establish or maintain a system of social security;

2 to maintain the social security system at a satisfactory level at least equal to that required for ratification of International Labour Convention No. 102 Concerning Minimum Standards of Social Security;

3 to endeavour to raise progressively the system of social security to a higher level [...].

Of course, the difference in the wording of the two legal texts could be a problem. The Greek pensioners’ case centred on paragraph 3 of the article they invoked: the requirement to progressively raise the system of social security to a higher level, which not found in the Article 34 EUCFR.  However, as noted in yesterday’s post, the European Committee of Social Rights described the reductions imposed on pensioners in strong language: “the adopted measures risk bringing about a large scale pauperisation of a significant segment of the population”. And the European Committee of Social Rights also noted that this has been observed by various international organisations, and the Committee pointed to findings by the ILO, the European Court of Human Rights, and Parliamentary Assembly of the Council of Europe. Given the serious nature of the cuts, the strong language of the European Committee of Social Rights, and the range of other bodies it has drawn on in reaching its legal findings, there must be a strong presumption that the situation is also a breach of the Article 34 of the EU’s Charter of Fundamental Rights, even if the exact point on raising the system of social security has not been transfered into the that EU Charter.

The final point to be made about the EU’s Charter of Fundamental Rights is that it applies to the European Commission and the ECB. The Charter makes that explicit:

Article 51
Field of application

1. The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties.
[...]

However, the fact that the EU’s Charter of Fundamental Rights applies to two members of the troika in principle does not mean it necessarily applies in the specific circumstances of a particular situation. That will depend on examining the details of what exactly the two troika members have done, which is beyond the scope of this post.

I do not know if there is established EU case law on the when institutions are liable. Would the EU Court of Justice need to find that the two EU troika members directed that the particular cuts to Greek pensions be implemented before they would be liable to a finding of having breached either the Treaty on European Union or the EU Charter of Fundamental Rights (or both)? Or would the EU Court find that although the Greek government had choices about how it would reduce its spending to comply with troika conditions for support, the two EU members of the troika are none the less liable because they had a responsibility to ensure that the cuts they demanded are not implemented in a way that breaches the rights of Greek citizens?

I am sure that an argument would be made by the EU bodies that since social welfare is primarily the responsibility of the Member States, and since the EU’s powers are severely limited to tasks that “support and complement the activities of the Member States” (Article 153 of the TFEU; PDF here), then the EU institutions cannot be held liable for any breaches of human rights in those areas. And I cite the situation of Greek pensioners only because there is a set of five cases with a legal finding that humn rights have been breached. It may be the case that the situation of a Portugese, Spanish, Cypriot or Irish citizen or group of citizens might make a more useful legal case against the ECB or European Commission. However, my objective is not to present a fully polished case, but to suggest how one might be constructed.

The final point that needs to be addressed is how to get a case to the EU Court of Justice. There are two ways of doing this. One is that a domestic case is taken, and referred by a national court to the EU Court of Justice for a ruling on preliminary questions. I do not know how you would construct a case like that to try to get a ruling against the ECB or European Commission.

A more useful approach, I think, lies in the powers of the European Parliament. Article 263 of the Treaty on the Functioning of the European Union (TFEU) gives the European Parliament to bring action to have the acts of the European Commission and of the ECB reviewed for legality by the Court of Justice of the European Union. One of the bases on which the Parliament can legally challenge the ECB and European Commission are “infringement of the Treaties or of any rule of law relating to their application, or misuse of powers”. That power is constrained. There is a time limit of two months, which means the decisions that lead to the Greek penioners’ cases are well out of time. And a further point that would need to be examined is whether the specific actions by the ECB and the European Commission in their roles as members of the troika come within the term “acts [...] of the Commission and of the European Central Bank”.

I may be missing some key legal rules, but based on what I have read, I would like to see the European Parliament examine how it can use its powers to bring a legal case to ensure that the two EU members of the troika are required to ensure their actions comply with EU human rights law. The ideal outcome would be a judgment that the Commission and ECB have breached EU law because of the effect of the cuts they have a role in imposing. But even second-best outcomes would be a significant step forward. For example, I noted yesterday that the European Committee of Social Rights, the less-well known sibling to the European Court of Human Rights, found that the lack of analysis of the impact of cuts on Greek pensions was a breach of human rights.

The task now is for MEPs to use the resources they have available to them — research staff, legal experts, etc. — to identify suitable case and initiate proceedings. A preliminary step could be for some MEPs to seek to have the Greek pension cases examined by a parliamentary committee with a view to determining if the facts and finding give rise to a need for the Parliament to examine the acts of the Commission and the ECB in light of their Treaty obligations and their obligations under the EU Charter of Fundamental Rights.

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