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Ireland
The Potential Problems of Constitutionalising Socio-Economic Rights By Mark McGrane, SF Law The addition of socio-economic rights, such as a right to housing, to the Irish Constitution seems to be an increasingly likely prospect, more and more often being touted as an imminent political reality. Doubtless, this stems from the repeated failure by the Irish Government to effectively cope with increasing strains on the housing market and health service. Also adding to calls for constitutionalisation are the admirable notions of many commentators that such an addition would affirm values that the Irish people hold dear. Yet these ideas, like all great shifts in the operation of public policy, would not be without cost. Thus, a full examination of these costs is a necessary element of the debate around the proper place of socio-economic rights. The first step in this examination is to outline exactly why we give constitutional protection to a certain issue: we add elements such as rights and freedoms to the Constitution to protect against unwarranted intrusion from the political branches of the State. When we enshrine something in our Constitution; some right, some freedom, we do so because we believe that our approach to that subject will remain sufficiently fixed, so as to necessitate little or no alteration (and certainly no overhauling by the legislature). We add it to protect that matter from mutable policy concerns. We add rights in order to allow them to endure, raise them to a level of permanence not generally afforded to the purely political. Why then, might this be inappropriate for socio-economic rights? The first reason is the fundamental mutability of socio-economic issues. The best, most proper distribution of the State’s resources at any given point in time is determined by innumerable, shifting factors. Projections of growth or recession, estimates of supply and demand, expectations of the likely tax intake of the State, of population growth, of immigration and emigration: all in some way impact how the Government will approach its expenditure on social issues. This is right and necessary, fundamental to how a state must organise its policies. But it makes constraints on how we approach these issues intensely unhelpful. None of this is to suggest that constitutionalisation would render the legislature and executive entirely constrained in how they approach these issues. However, it does suggest that constitutionalisation would be a flawed process in its application to, say, housing. In times of good economic fortune, the Courts may set constraints on the Government, which in times of economic hardship, may do far more harm than good, forbidding what may be necessary financial rectitude. The second reason, one not entirely separate from the first, is best understood through a term introduced by Professor Lon Fuller: polycentricity. This term describes issues that require the balancing of many different claims and interests, an understanding of the perspectives of many different parties. In this instance it refers to the apportioning of scarce resources between competing needs. Thus, it involves consideration of consequences and policy concerns of which Courts cannot have a proper overview. Furthermore, the predictive powers of any body taking on a policymaking role (which the courts would likely have to do) are sufficiently limited to make one-off court decisions inappropriate. Far more appropriate bodies for decisions in these areas are ones subject to democratic accountability, such as the Dáil, or administrative oversight, such as the civil service. Courts are also inappropriate for considerations involving the interests of many parties given the fact that not all of these parties will be represented in the cases which affect their interests.
