The Need for Judicial Activism in the Adjudication of Socio-Economic Rights for Disadvantaged Groups

by Nikola Wieclawska, JS Law

Recently, socio-economic rights have gained a significant amount of exposure due to the ongoing economic crisis in Ireland. Socio-economic rights are basic human rights, essential for one’s survival and human development. They include the right to food and water, essential healthcare, relevant education, appropriate housing, cultural respect, and participation in society As stated aptly by academic Claire Smyth, past failures to adequately provide for these rights “ha[ve] had a devastating impact on the most vulnerable in society ” Apart from the right to free education safeguarded by Article 42.4 of the Constitution, no other socio-economic right is guaranteed protection under the Irish Constitution. Given that these rights concern our survival and provide for the most fundamental aspects of human experience, it is unsettling to note that with one exception, there are no express provisions directly referring to socio-economic rights Certain limited protections can be deduced from Article 45 relating to broad principles of social and economic policy, with subsection 4 1° outlining that “The State pledges itself to safeguard with especial care the economic interests of the weaker sections of the community.” However, this protection is tainted by the fact that these provisions have been intended solely for the general guidance of the Oireachtas, and are not enforceable by any court.

The question remains as to what could be done by the judiciary in order to sufficiently protect these rights, with constitutionalising them being on the political agenda Education is explicitly protected by the Constitution yet is not always upheld under the law; this is exemplified in the cases of both Sinnott v Minister for Education and TD v Minister for Education. We therefore must ask ourselves what such a reform would accomplish. Although both of these cases did not specifically deal with the issue of socio-economic rights, the commentary of judges in relation to judicial activism is of importance. In

Sinnott, the Supreme Court questioned whether the judiciary could issue a mandatory injunction directing the Minister to take specific action regarding the educational needs of the plaintiff. Leading the majority decision, Hardiman J ultimately concluded that such an issue was to be dealt with solely by the legislative and executive branches of the government, relying heavily on the doctrine of the separation of powers Yet, in a notable obiter, Denham J expressed the view that she was open to judges intervening in “rare and exceptional” circumstances

Article state is obliged to offer protection to these disadvantaged groups, yet in reality, these groups do not stand a chance of having their voices heard.

The Supreme Court in TD further aggravated the decision in Sinnott, with Murray J clarifying that a mandatory order would only be granted if the state had “flagrantly” breached its constitutional duties. For a disadvantaged plaintiff or group, the threshold to establish that a right has been breached by the state is therefore set very high. Nevertheless, what further complicates the process is that the courts have not defined the ‘exceptional circumstances’ they deemed as capable of intervention Hence, if the constitutionalising of socio-economic rights were to occur, there is the possibility that courts would still only be able to intervene in “exceptional cases,” and that prospective plaintiffs would be left with both uncertainty in the court process, and in the executive’s decision-making process.

In an ideal world, if implied socio-economic rights were to be constitutionalised, it would be followed by greater freedom for judicial creativity so that fairness is achieved for marginalised and disadvantaged groups in particular Dr Niamh Hardiman insightfully offers several reasons why disadvantaged groups would be incapable of effectively influencing political decision-making in Ireland. She clearly argues that such groups are not provided with adequate living circumstances in which they can build networks of involvement and acquire a voice with which to lobby the government. It is paradoxical that under Article 45, the state is constitutionally obliged to offer protection to these disadvantaged groups, yet in reality, these groups do not stand a chance of having their voices heard This issue of majoritarian democracy as not adequately serving the needs of minorities is where I believe the argument that parliamentary democracy by itself achieves fair results falls apart.

One reason that judges are unable to cast greater power in matters of socio-economic rights is because they are unelected representatives As a result, greater power offered to the judiciary to determine matters of distributive justice would be an undemocratic process since the voice and votes of people would not be given equal consideration across the three branches of government. Hardiman deals specifically with the disadvantaged and the political process in her studies. Gerard Whyte in an IHRC Conference on Economic, Social and Cultural Rights in 2015 suggested that the studies conducted by Hardiman portray that long-term non-voters are much more likely to be socially disadvantaged than regular voters Furthermore, there are significant correlations between poor electoral participation and social deprivation in the Dublin area at an aggregate level. Conversely, swing voters consisting of those who “occupy far more of politicians' and party activists' attention ... are far more likely to be urban, middle-class, and articulate about their interests and preferences.” From the above analysis, it is clear that the views of disadvantaged groups will never be given priority under liberal democratic theory, which inherently prefers judicial conservatism As the democratic process does not always create fair results by excluding minority views, it is difficult to see how judges would be adding further unfairness to the process by supporting those individuals with minority rights.

The need for protection of the disadvantaged groups is particularly acute at the current moment Recent CSO statistics indicate that a vast number of people in Ireland are at risk of their socio-economic rights being breached on account of the economic crisis. According to the survey, 54 per cent of households with children reported making food cuts, 17 per cent reported making healthcare cuts, and 5 per cent reported making education cuts. From these statistics, it is evident that the most vulnerable are making the most considerable cuts to the fulfilment of their fundamental socio-economic rights Interestingly, a complete percentage of 93 per cent reported in the survey that they felt their current economic situation would remain the same or get worse over the next year, asserting their uncertainty about whether the Irish State would be capable of managing the economic crisis and aiding their socio-economic rights.

Although judicial activism could be regarded as breaking the high constitutional doctrine of the separation of powers, such an issue does not have to arise in these circumstances As noted by Conor O’Mahoney, a move from judicial restraint would not signal a move to the complete freedom of judges, but rather it would permit judges to act when the fundamental rights of disadvantaged groups are at stake, and where the state has not done enough to vindicate these rights. Furthermore, the Supreme Court in the recent case of Friends of the Irish Environment v Government of Ireland [2020] has advocated for greater judicial activity when it was declared that judges could become involved in the identification of new rights if they could be ‘derived’ from the structure of the text or title in the Constitution. In order to achieve adequate protection of socio-economic rights, in particular those of disadvantaged groups, a step must be taken forward to allow for greater judicial activity. Arguably, Friends of the Irish Environment could be the case to advance this step forward