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Constitutional Convention February 24, 2014

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

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.


1. Anne Mullett - February 24, 2014

See no mention of property right to own one’s own home without fear or favour. Security of title and tenure has been undermined by the new property tax law, a disgrace and unconstitutional. The Lisbon Treaty can’t override the constitution, the constitution is law specific and no plebiscite voted for it to be abolished.


Johnny Forty Coats - February 24, 2014

It should be pointed out that the Treaty of Lisbon is superior to the constitution, as is stated in article 29.4.6:

“No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State, before, on or after the entry into force of the Treaty of Lisbon, that are necessitated by the obligations of membership of the European Union …”


Tomboktu - February 24, 2014

I struggled with what you meant, and then I realised that by superior you mean “higher legal standing” and not “better”. However, it is superior (in that sense) only on those matters where the Lisbon Treaty has legally binding provisions. It does not have legally binding provisions in a number of areas of social policy.

I am open to correction, but I think that for example, the Treaty does not require any particular standard of social welfare for unemployed people, merely that any system of social welfare not discriminate between different EU nationals.


Tomboktu - February 24, 2014

Property rights are a peculiar one. They are protected in the Constitution, but are usually seen as a civil right, part of the other set classicial of rights, civil and political.

I am sure that I am not the first to observe that the economic rights of those who have property are classified as part of the the higher ranking politicial rights, whereas the property rights of those without property are classified as belonging to the second-ranking ESC rights.


2. 34theorchard1 - February 24, 2014

I suppose the nightmare scenario for the politicians is a court finding that a section of the public has not had a particular right respected, resulting in a mass compensation claim.


doctorfive - February 24, 2014
Tomboktu - February 24, 2014

It could be worse. It could mean civil servants being required to draft laws in a way that needed the ESC rights of those who will cost resources are taken into account.


3. RosencrantzisDead - February 24, 2014

I would be interested to hear your thoughts on how such a change might affect the Travelling Community, Tomboktu.

Countries like Colombia have extended ESC rights and protections to the vulnerable and minority groupings. The Convention appears to have endorsed that approach.


Tomboktu - February 24, 2014

I don’t know.

I think there are two key types of oppression the Traveller community faces:
(a) objective oppression, measured through things like life expectancy, educational attainment, etc.
(b) subjective oppression, based on deep-rooted prejudice.

Progress has been made on the first of these, but I doubt there has been much change on the second.

Unlike the other aspects of ‘equality of recognition’, Travellers do not have the same opportunity for “cracks in the facade” that other groups have had. No assistant principal in the civil service or regional manager in a supermarket chain or Circuit Court Judge or driver of interoperability platforms in an IT firm will have a daughter coming home tell them that she is a Traveller (contra a lesbian) or a doctor bring them in to the consultation room to tell them their daughter is a Traveller (contra has a disability). Nor do Travellers have the advantage that Black or Asian people have of being middle class in other countries, thereby providing some of them with somtehing to offset prejudices.

I can’t see how a change in the law would undermine the subjective oppression that Travellers experience.

That said, there is probably a feedback mechanism between the first and second. In particular, Traveller education must help change attitudes. When my 20-something niece was in primary school, the Travellers were in a separate class and had a separate break time. Now, Travellers are not segregated in that way. (However, other forms of educational segregation continue.)


4. hardcorefornerds - February 24, 2014

“progressive realisation subject to maximum available resources is not a very strong standard” – but there isn’t really a stronger standard in ESR that’s actually in place, to my knowledge. it’s the ICESCR language and it’s similar enough to what exists in the South African court rulings on their constitution. all of which was covered in the presentations to the convention, btw.

also, when Michael McDowell SC is agin’ something, that’s gotta count for it, right? http://www.irishtimes.com/news/politics/convention-votes-to-protect-economic-social-cultural-rights-1.1701832
especially when the arguments are a) rather shopworn in the discipline and b) rather odd in the case of referencing the Pro-Life amendment (the reason that backfired was not really that it was ‘vague’, but because it was a hostage to fortune in the inevitable downfall of a socially absolutist position against abortion in the 1980s)

as for property rights, they’re already in the constitution (subject to limitation in the public interest) and usually the foil to the substantive social and economic rights that imply the redistribution of wealth towards social ends.


Tomboktu - February 24, 2014

I wouldn’t yield the point to the Right so easily.

The Revised European Social Charter is not based on a system of progressive realisation (although three specific provisions do adopt that language: on the reuction of the working week (article 2.1 — has any public sector union brought a complaint about Haddington Road on this??); on social security (article 12.3), and on occupational health services (article 3.4)).


WorldbyStorm - February 24, 2014

Hey, that’s handy to know.


Tomboktu - February 24, 2014

when Michael McDowell SC is agin’ something, that’s gotta count for it, right?

Maybe. But the main proponent was a fellow Progressive Democrat, Colm O’Gorman…


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