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Just what is our Constitution for?

19th February 2014, 15:09:09 UTC

The end of the bailout was marked not in December but, quietly, with a whisper, in mid-January. Without international fanfare, of no interest to the banks and cabinet tables of Europe, Ireland of old re-emerged.

The politics became local, the headlines no longer about bond-holders, bank guarantees and European markets but about pylons, property prices and pay-offs. Left to our own devices, the idea of doing things differently seems ever more remote. This government promised reform, and all across the benches and late-night panel discussions heads nodded in agreement that such reform was vital.

But can it be delivered?

The Edelman Trust Barometer, published last month, would seem to suggest little public confidence in how our government makes difficult decisions. Only 5 per cent trust the government leaders to make ethical and moral decisions, with only 4 per cent trusting them to solve societal or social issues.
So why don’t people have confidence that the government can take on challenging issues and make the right call?

This state was founded upon the principle that it exists to serve its people. That the government, elected by the will of the people, was charged with serving the common good and the protection of the welfare of the people. But where are those reference points in making ethical and moral decisions or solving societal or social issues? We hear much about the government’s economic policy, but where is the linking of economic and social policy?

Post-bailout, Ireland is faced with a hangover. A belief that decisions are made to balance the books whatever the impact on sections of society, to protect those vested interests able to shout loudest to protect their turf, to focus on the economy, and the economy alone, at any cost. So what could be done differently?
Next weekend, the Constitutional Convention will be asked to consider whether our Constitution should protect economic, social and cultural rights. Rights such as health, an adequate standard of living and social security. Charged with examining a limited set of issues decided by the government, this is the Convention’s moment to push the boundaries. To ask what our Constitution should say about the priorities of the state and how it does its business.

One hundred people, representative of the population, are charged with considering whether in making decisions about policy, in allocating resources, in deciding who to prioritise and how, Irish governments should have to do so in line with a set of constitutionally enshrined human rights.

Since 1989, Ireland has been bound by the International Covenant on Economic, Social and Cultural Rights. Devised not by special interest groups, the treaty was conceived of, negotiated by and agreed to by states, including Ireland. Its provisions are meant to be legally binding and enforceable. This United Nations treaty protects fundamental human rights like, amongst others, the right to health, the right to social security, the right to an adequate standard of living for you and your family, including housing.

These are fundamental human rights, which this state undertook to protect, but which have never been given domestic legal effect. Human rights which require simply that government take steps, over time, using the resources that are available, to deliver outcomes to people, in line with the international commitments it has made.

Some suggest that such rights have no place in our constitution. But on this, we are on the outside looking in. Twenty-three of our fellow EU states make constitutional provision for these rights, 133 global constitutions protect the right to work, and 130 provide for access to healthcare.

The use of these rights, the oversight of their delivery by courts, shows that governments can operate within this framework, pressed to deliver outcomes for people and to demonstrate systems of evidence-based, transparent, needs-based decision-making.

Putting economic, social and cultural rights into Bunreacht na hÉireann will not cure all our ills. It will not provide a magic tonic for our failure to put people’s needs first, our failure to design systems that prioritise good, evidence-based decisions. But it can play a solid and vital role in addressing those well-identified deficits in our current system.

The Department of Public Expenditure and Reform is currently carrying out a consultation on civil service accountability.

The consultation document reminds us that “[t]he Programme for government commitments focus on enhancing accountability arrangements so that both the civil service and the political system can be empowered to be more effective and help build trust among citizens that well informed choices are being made as to how taxpayers’ money is spent.”

The Constitution should be our most significant accountability mechanism. And it is not silent on what we would call economic, social and cultural rights. The Directive Principles of Social Policy contained these provisions well before they were codified into international human rights law. They were not however made legally binding and therefore have been largely ignored.

But the framers of our constitution clearly believed that they should have some directive force. And so we need something stronger. Constitutional protection of human rights, like the right to health, to housing, to a decent living, would compel the elected and permanent governments to identify who is responsible for the delivery of those rights, to make choices about resources that are based on respecting those rights – not by the demographics of constituency boundaries or electoral cycles or competition between ministers or ministries – and to ensure that when those rights are not delivered someone can explain why.

Polling commissioned by Amnesty International shows a very high level of public support for such constitutional provisions: 71 per cent of those polled believe that the Constitution should protect human rights like the right to health, housing and an adequate standard of living.Around 83 per cent believe government must show that it is spending our money it is delivering on these fundamental human rights and 71 per cent believe we should be able to hold government to account for human rights failures, in the areas of the right to health, housing and adequate standard of living, including taking it to court as a last resort.We need Constitutional protection of human rights to promote good governance, to foster accountability. We need to increase those levels of trust in government and in our political system. We need to do something radically different. The truth is our system needs to be compelled to govern well. We’re told we learned financial management under the troika. We now need to show we can learn accountability, and good governance, without them.

by Colm O’Gorman, Executive Director, Amnesty International Ireland 

The Constitutional Convention, charged by the Government to examine areas of constitutional reform, will examine economic, social and cultural rights on 22 and 23 February. Further information about the work of the Constitutional Convention can be found at www.constitution.ie

This article was first published in the Sunday Business Post on 16 February 2014.