Constitutional Convention

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.