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The Potential Problems of Constitutionalising Socio-Economic Rights
By Mark McGrane, SF Law
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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.
Of course, many see democratically elected bodies as having become the problem, having allowed themselves to become neglectful and overly stultified; perhaps this is so. But the mechanisms of democratic change already exist for failures of policy. Constitutional change cannot become our first recourse when the parties in power fail. Proponents of greater expenditure on social housing must achieve this through the political branches of the state.
When proposing any alteration to the Constitution, it is worth examining how such an amendment would interact with the other foundational facts of the Irish constitutional landscape. One such fact is the conception of the separation of powers, currently enforced by the Irish judiciary. This conception is based on the 1988 case of O’Reilly v Limerick Corporation, in which Mr Justice Costello drew a distinction between “commutative” and “distributive” justice. Distributive justice essentially encompasses issues pertaining to how a polity distributes its resources, which in Costello’s view, “can only be made by reference to the common good and by those charged with furthering the common good (the Government).” In this case, later followed in cases such as TD and Sinnott, he goes on to say that such decisions are best made by those in Leinster House, not the Four Courts. In Costello J’s view, judges should concern themselves solely with the kind of commutative or corrective justice that the adversarial system is designed to facilitate.
It is not to be suggested that the precedent is absolute, and that this conception cannot one day be revised or rejected. But Costello J’s arguments remain both powerful and widely accepted, if not entirely by Ireland’s legal academics, then by Ireland’s judges, evidenced by the majority judgments in cases such as Sinnott v. Minister for Education and TD v. Minister for Education. This is all the more salient given that they are likely the group who would be tasked with teasing out what the exact effect of the constitutionalisation of socio-economic rights would be.
Next, it is worth responding to a rhetorical strategy often undertaken by those seeking to advocate for addition to the Constitution. Namely, a de-emphasis of the legal effects that constitutionalisation would have, often done while inviting the listener to focus on the symbolic value of such rights. Apart from leading us to wonder what would make the suggested additions to the Constitution so valuable, this kind of rhetoric is a mere distraction.
When we add a right to the Constitution, we cannot do so under the presumption that it is being added as some vague yearning.
In the words of the late Justice Hardiman, we must not enshrine a right “...unless one is prepared to see it used against some person or body of persons to force them to do something or to abstain from doing it.” None of this is to deny the importance of symbolic value but it is to emphasise that the Constitution is, first and foremost, a legal document with legal effects and it is these effects that principally demand our collective attention.
In conclusion, while there are many problems with how our political system approaches social issues, and there is a legitimate debate to be had around the role the Constitution might play in ailing these ills, the constitutionalisation of socio-economic rights is an insufficient attempt to do so and may even be injurious to our efforts. A full examination of socio-economic rights and what their effects might be is far beyond the scope of this article. But in this article, I have attempted to lay out the concerns that would have to be kept in mind if the constitutionalisation of socio-economic rights reached the referendum stage, something which is looking increasingly likely, given the increased focus on housing insecurity in this country.
