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Ó Caoláin addresses Amnesty International conference in Dublin

14 March, 2013 - by Caoimhghín Ó Caoláin TD


Speaking today at a seminar hosted by Amnesty International Ireland entitled ‘Pursuing Constitutional Protection of Economic, Social and Cultural Rights’ Sinn Féin Health Spokesperson Caoimhghín Ó Caoláin TD outlined the enforcement of economic, social and cultural rights is entirely possible, and the idea that they are inherently non-justiciable is outdated and wrong.

Deputy Ó Caoláin said:
“Sinn Féin has a longstanding position of support for recognition of economic and social rights, and for bringing these to the centre of a rights-based approach to public policy, as part of our commitment to an Ireland of Equals.

“We have raised these arguments in our negotiations as part of the peace process, in our Programmes for Government and election manifestos, and in our legislative and other initiatives. Examples include our Constitutional Amendment Bill to recognise the right to housing, and our Dáil motions to recognise the universal right to health and to healthcare, and to childcare.

“Economic and social rights are at the core of our various published policies. And they have a special place in the Rights for All Charter that we circulated nearly 10 years ago, as our contribution to the debate on the content of a future All-Ireland Charter of Rights, as provided for under the Good Friday Agreement.

“Féin is seeking long-term a completely fresh constitution for a United Ireland, including a robust and enforceable Bill of Rights, following a positive referendum vote. In this present transitional period, we are seeking a Northern Bill of Rights, together with a reformed constitution for this State including its own comprehensive Bill of Rights, both of which complemented by an All-Ireland Charter, harmonising the protections and guarantees between the jurisdictions.

“We know that constitutionalisation and enforcement of economic, social and cultural rights is entirely possible, and the idea that they are inherently non-justiciable is outdated and wrong. This is demonstrated by the evidence. A majority of world constitutions now include economic and social rights in some form, and we know from a study by the International Commission of Jurists that more than twenty countries, five of which are in Europe, provide for justiciability of these rights in their courts.

“Such constitutional protections and guarantees are more necessary than ever before. This is demonstrated by the appalling decisions taken by both the past and current coalition Governments leading up to and during the course of the economic crisis, decisions that arguably represent clear violations of these rights. Were the Oireachtas and Executive, and indeed all other public bodies, to have binding constitutional obligations with respect to these rights, we could expect that they would have chosen instead the better alternative policy decisions and options that were very much available to them.” ENDS

Note to Editor:
Please find below the full text of Deputy Ó Caoláin’s speech.

Sinn Féin has a longstanding position of support for recognition of economic and social rights, and for bringing these to the centre of a rights-based approach to public policy, as part of our commitment to an Ireland of Equals. For many years we have also specifically argued in favour of the constitutionalisation of these rights in a fully justiciable and fully enforceable form. This is well known.

We have raised these arguments in our negotiations as part of the peace process, in our Programmes for Government and election manifestos, and in our legislative and other initiatives. Examples include our Constitutional Amendment Bill to recognise the right to housing, and our Dáil motions to recognise the universal right to health and to healthcare, and to childcare.

Economic and social rights are at the core of our various published policies. And they have a special place in the Rights for All Charter that we circulated nearly 10 years ago, as our contribution to the debate on the content of a future All-Ireland Charter of Rights, as provided for under the Good Friday Agreement.

We have vigorously advocated the inclusion of enforceable economic and social rights in the Northern Bill of Rights that is long overdue. We did so before, during and after the Bill of Rights Forum process, and we continue to do so at every opportunity. We first formally recommended such amendments to the 1937 Constitution in our several submissions to the Oireachtas All-Party Committee on the Constitution, during its lifetime. And last year, when the current coalition Government consulted us on the terms of establishment of the new Constitutional Convention, we argued forcefully that consideration of these rights should be a central task of that body.

Let me share the context with you. What Sinn Féin is seeking long-term is a completely fresh constitution for a United Ireland, including a robust and enforceable Bill of Rights, following a positive referendum vote. In this present transitional period, we are seeking a Northern Bill of Rights, together with a reformed constitution for this State including its own comprehensive Bill of Rights, both of which complemented by an All-Ireland Charter, harmonising the protections and guarantees between the jurisdictions. We believe that economic and social rights should be guaranteed by all of these mechanisms. Therefore, what we are seeking immediately out of this Constitutional Convention process is an opportunity to debate the best way to improve the recognition, guarantee and enforcement of economic and social rights in these 26 Counties, within the context of the current constitutional arrangement.

There are three reasons we take this position. The first is that we know that constitutionalisation and enforcement of these rights is entirely possible, and the idea that they are inherently non-justiciable is outdated and wrong.

This is demonstrated by the evidence. A majority of world constitutions now include economic and social rights in some form, and we know from a study by the International Commission of Jurists that more than twenty countries, five of which are in Europe, provide for justiciability of these rights in their courts.

The second reason is that we believe that such constitutional protections and guarantees are more necessary than ever before. This is demonstrated by the appalling decisions taken by both the past and current coalition Governments leading up to and during the course of the economic crisis, decisions that arguably represent clear violations of these rights. Were the Oireachtas and Executive, and indeed all other public bodies, to have binding constitutional obligations with respect to these rights, we could expect that they would have chosen instead the better alternative policy decisions and options that were very much available to them.

The third reason – and I want to emphasise this – is that improved constitutional protection of economic and social rights is arguably a binding obligation on the Irish Government under the terms of Part 6, paragraph 9 of the Good Friday Agreement, which states:

The Government will, taking account of the work of the Oireachtas All-Party Committee on the Constitution and the Report of the Constitution Review Group, bring forward measures to strengthen and underpin the constitutional protection of human rights. These proposals will draw on the European Convention on Human Rights and other international legal instruments in the field of human rights...The measures brought forward would ensure at least an equivalent level of protection of human rights as will pertain in Northern Ireland.

As it appears under the heading ‘Comparable Steps’, this wording is strikingly similar to that regarding the Bill of Rights for the north under a preceding paragraph.
Such a Bill of Rights will, according to the terms of the Agreement, ‘establish rights supplementary to those in the European Convention on Human Rights...drawing as appropriate on international instruments...[which] taken together with the ECHR [will] constitute a Bill of Rights...’ [Part 6, paragraph 4] The wording of both paragraphs would seem to acknowledge that not all fundamental rights are currently adequately protected: neither by the ECHR, nor by the relevant constitutional provisions as they stand, in either jurisdiction.

The demonstrated constitutional viability, arguable necessity and Good Friday Agreement obligation are factors that the Constitutional Review Group either did not or could not take into account in its 1996 recommendations that Article 45 (the non-justiciable Directive Principles of Social Policy) come under review. Yet even so, they managed to agree that Article 45 as it stands does not sufficiently address modern economic and social rights, nor Ireland’s international treaty obligations in this regard.

Likewise, when the Oireachtas All-Party Committee on the Constitution identified this question in their work in 1997, the Good Friday Agreement obligation in particular was not yet a factor. Had this committee reached this question during its working lifetime, it would have had to take account of the Good Friday Agreement provisions in much the same way that the Oireachtas has stipulated that the Convention must. According to its establishment motion, ‘the Convention will have appropriate regard to the Good Friday Agreement’. This means that the Convention must consider any of its provisions with implications for constitutional change. We would argue that this includes Part 6, paragraph 9.

So in conclusion, we commend Amnesty International for taking the lead in organizing a civil society initiative on this crucially important issue of human rights in Ireland. We likewise commend all of you here who will campaign on this issue. Sinn Féin stands with you. The Sinn Féin delegation to the Convention will strongly support the inclusion of economic and social rights on the Convention’s agenda as a priority under item 9.

This will likely involve at the very least some form of amendment to Article 45 on the Directive Principles of Social Policy, and possibly to other articles under the Fundamental Rights heading at Articles 40–44. However our strong preference is that this amendment be by way of a broader Bill of Rights process that could be recommended to the Convention, and by the Convention, as a supplementary or ‘Mark II’ process, so that reasoned consideration of this crucially important area of rights protection does not get truncated by the artificially tight timeframe imposed on the Convention by the Government. But I want to emphasise that if this initiative does not succeed, despite all our best efforts, Sinn Féin remains committed to a longer-term process of constitutionalisation of these rights in an enforceable form. We will not give up until the equal rights of all to housing, to healthcare, to education and to an adequate standard of living are fully and properly guaranteed.

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