Irlanda

THE RIGHT TO SOCIAL SECURITY AND THE IRISH CONSTITUTION: Tracing the Rights-Free Way out of the Crisis

Dr. Thomas Murray [1]

Introduction

Ireland’s experience of the global economic recession has been pronounced, and greatly exacerbated because of past policies that facilitated major credit and property market bubbles. The consequences have been a major financial crisis, a severe contraction in economic output, and a rapid emergence of high rates of unemployment and emigration. Ireland entered recession in 2009, with its unemployment rate rising to 14.8 per cent. (Unemployment is expected to remain in double digits until at least the second half of this decade).[2] A total of 46,500 Irish people, predominantly young, emigrated in the year to April, 2012, a rise of 16 per cent on the previous 12 months. In 2010, the Irish government, faced with bankruptcy, appealed for an €85 billion ‘bailout’ from the European Union Commission, European Central Bank, and International Monetary Fund and agreed to continue and extend its existing austerity programme. Successive Irish governments have prioritised resolving the immediate fiscal crisis faced by the state through a series of austerity budgets, often at the expense of concomitant, resultant and long-term social crises.

International financial institutions do not incorporate human rights impact assessments when negotiating structural adjustment lending programmes. The social costs have been predictable and, for some, catastrophic. Risk of poverty has increased from 23.1 per cent in 2007 to 29.4 per cent in 2011, compared to EU-27 averages of 24.4 and 24.2 per cent respectively.[3] In 2012, some 1,230,000 people, more than one-in-four of all people in the state, suffered two or more deprivation experiences. At 26.9 per cent in 2012, the level of enforced deprivation has more than doubled since 2007, when it was 11.8 per cent.[4] Some 10 per cent of the Irish population is now in food poverty.[5] There has also been a pronounced rise in inequality: in 2011, 10 per cent of the Irish population received almost 14 times more disposable income than the poorest 10 per cent.[6] The question of whether constitutional law may be an instrument of social protection in Ireland is therefore timely.

If we define the right to social security as the protection that a society provides to individuals and households to ensure access to health care and to guarantee income security, particularly in cases of old age, unemployment, sickness, invalidity, work injury, maternity or the loss of a breadwinner, then the present constitutional basis for the right to social security is very weak at present in Ireland. The Irish state conceives of economic rights primarily in terms of benefits or cash payments rather than social services, emphasising managerial ‘performance’ targets to the detriment of responding to the concerns of those who work in or depend on the state’s welfare infrastructure.^[7] In the Irish model, social security provision has proven highly susceptible to retrenchment in times of crisis.^[8]

Ireland has not witnessed a constitutional challenge to austerity measures threatening or undermining existing levels of welfare provision. Perhaps the most interesting point of comparison here is Portugal, where recent constitutional cases appear to have been quite important to preventing a roll-back of social security rights.[9] Both Ireland and Portugal have experienced severe austerity as ‘peripheries’ in the Eurozone and both state’s constitutions and models of welfare provision share comparable, though not identical, Catholic voluntarist influences.[10] However, and primarily owing to the nature of past and present constellations of power in Irish society, the former’s model of social security provision is not subject to a robust constitutional framework or model of overarching accountability.

In these circumstances, a range of human rights monitoring institutions, opposition political parties and civil society organisations have responded to austerity, retrenchment and privatisation by advocating a more egalitarian, rights-based way out of the crisis. As Des Hogan, Acting Chief Executive of the Irish Human Rights Commission has observed, while customers of privatized water or health services may have access to the law of contract or tort for restitution, where one has no relationship with the private entity delivering State services, recourse to domestic remedies for a socio-economic right will be limited. Constitutionalising socio-economic rights, it is hoped, may address this deficit.[11] Moreover, there is widespread popular support for a rights-based way out of the crisis. Recent polls suggest that over 70% of the Irish public believe that the Irish Constitution should be amended to protect additional human rights like the right to health and social security.^[12] In line with public opinion, the recent Convention on the Irish Constitution voted overwhelmingly in favour of constitutionalising a range of social and economic rights. The government is currently due to respond formally to its proposals and to consider putting them to referendum. 

In light of these past experiences and contemporary developments, I assess whether the Irish Constitution may in fact be useful in stopping the roll-back of the European social model in Ireland and promoting a rights-based path out of the current crisis. The article falls into four parts. Part one outlines the Irish model of social security provision, placing it in a comparative perspective and demonstrating its vulnerability to retrenchment in the course of the current crisis. Part two examines the relationship between the Irish Constitution and social security provision, highlighting what limited provision is made for material rights. Part three examines recent education and disability rights cases in the Irish Supreme Court as well as governmental and civil society responses to such cases before and after the crisis. In the absence of a body of social security rights case-law, these cases provide us with a close approximation of the challenges facing those who would constitutionalise and make effective social security rights.

Based on these findings, part four provides an overall assessment of the specific merits of a rights-based way out of crisis in the Irish context. In the absence of wider political transformation, and notwithstanding recent developments at the Constitutional Convention, the Irish state is unlikely to guarantee social security rights at present. That said, the increased emergence of a rights-based discourse concerning social provision in Irish civil society suggests that there are ethico-political limits to welfare state retrenchment and that constitutional change on this issue in the long-run cannot be discounted. While their advocates recognise that social security rights are not a panacea, a number of important yet often unrecognised limitations attach to their constitutionalisation and effective realisation in the Irish context.

These limits include the past practice of the Irish judiciary which is predominantly oriented towards the common law’s strong defence of property rights, as well as the financial barriers to entry to the Irish legal system. Potential support structures, including the lawyers, organisations and money necessary for claimants to access the courts, are also increasingly limited by austerity and by other political constraints.[13] Moreover, given the highly segmented, targeted nature of Irish social security provision, individual victories on a case-by-case basis would not appear to offer a firm basis for developing universal or ‘solidaristic’ models of social security provision. In short, the Irish case-study does not suggest that constitutionalising social security rights will provide any greater or more effective realisation of socio-economic rights than has been achieved, albeit quite limitedly, in other jurisdictions.

1. Ireland’s Social Security in Crisis

Ireland’s social security provision is comparatively low. Among the worlds of welfare capitalism, Ireland’s welfare state has been broadly characterised as ‘Anglo-Saxon’ or ‘liberal’, together with Australia, the United States, New Zealand, Canada and the United Kingdom.[14] Welfare provision in this model tends to be targeted or means-tested rather than universal and predominantly based on cash transfers rather than public service provision. Both Ireland and the UK have historically built their systems around insurance (alternatively described as ‘national’ or ‘social’ insurance) and, to a lesser degree, general taxation.[15] One further distinguishing feature of Ireland and the UK is the separation of income maintenance from health care.[16] The Irish state commits a comparatively small proportion of aggregate wealth to support social services or income transfers. Not unlike the US, it offers tax incentives as a form of state subsidisation to avail of market provision in areas such as housing, health and pensions.[17] The limitations of the Irish state’s welfare effort in this regard tend to be ameliorated somewhat by highly gendered, voluntary and family networks of care.[18]

Social security in Ireland is the responsibility of the Minister for Social Protection. The Department for Social Protection consists of a central policy section and a separate Social Welfare Services office headed by a Director-General, responsible for the operational activities of the department.[19] There are three key forms of payment scheme: social insurance, social assistance and universal. Under social insurance schemes, eligibility for benefit is determined by the level of social insurance contribution paid. Social insurance schemes are mainly financed from compulsory contributions made by employers, employees and the self-employed. PRSI (pay-related social insurance) contributions are normally deducted from an employee’s wages or salary, with a maximum of 52 contributions per annum. In certain instances, the Government may also contribute to the Social Insurance Fund. Social assistance or means-tested payment schemes are aimed at those who have not paid sufficient social insurance contributions and are based on an assessment of individual or family income. Finally, under universal schemes, payments are made to citizens without respect to income or social insurance contributions. The primary example here is child benefit. Non-contributory schemes are financed from general taxation.

The Irish health care system consists of a two-tier mix of public and private service provision. About 80 per cent of total spending on healthcare provision in Ireland comes from public sources, primarily, as in the UK, from general taxation.[20] However, with both forms of health care often provided in the same institution, and by the same personnel, successive Irish governments have increasingly subsidised private care at the expense of public provision. Ireland is the only EU health system that does not offer universal coverage of primary care.[21] Entitlement to a medical card, ensuring entitlement to general practitioner and hospital services free of charge, is based on a means test. In 2001, eligibility for medical cards was extended to all persons aged 70 and over irrespective of income. In 2005, a GP visit-only medical card was introduced, setting higher qualifying income limits and entitling the holder to free GP services but not free prescribed medicines. Those without medical cards are liable to GP fees but are entitled to a subsidised hospital service in a public bed in a public hospital.[22]

There are a number of distinguishing features to note about Irish provision for old age. In contrast to the more unified arrangements of Scandinavian or Continental countries, Irish social security pensions are built largely around private sector employees and the self-employed while public sector employees’ pensions are financed and structured differently. (A number of low-income self-employed and part-time employees are therefore excluded). Social security recipients’ pensions tend to be a flat rate while the latter’s pensions are predominantly income-related.[23] The Irish system has additional flat-rate payments in respect of spouses and children. Also, Ireland has no provisions for deferred or earlier pensions; the only age differentiation is between the Retirement Pension payable at age 65 for a greater contribution record and the Contributory Pension payable at age 66.

Turning to unemployment payments, Ireland’s provision is again less comprehensive than Scandinavian or Continental systems. Unemployment Benefit is payable to insured persons except self-employed and public servants, with eligibility based on social insurance. Benefits are included in annual taxable income. Partial Benefit is payable for shirt-time working and part-time working. Unemployed aged 55-66 were entitled to a Pre-retirement Allowance after 15 months unemployment. Unemployment Assistance is payable to those with insufficient contributions or after Unemployment Benefit is ended, subject to a means-test. There are two rates of Unemployment Assistance, short-term and long-term. Ireland has flat-rate benefit and assistance payments plus adult and child dependent payments depending on spouse’s income.

In terms of ‘last-resort’ provision for those without specific coverage under insurance or assistance categories, Ireland has a national statutory framework for ‘safety net’ provisions in its Supplementary Welfare Allowances provisions. This gives a legal right, subject to a means test, to a statutorily-determined payment, and permits additional payments for exceptional needs and emergencies. Such frameworks occur in Scandinavian and Continental systems; in contrast, Southern European systems tend to have more regional arrangements, with considerable discretion and variation. Finally, Ireland is unusual in its use of non-cash benefits (or ‘free schemes’) as supplements to cash payments. These comprise of provisions such as universal free (public transport) travel for pensioners, seasonal fuel allowances for welfare-dependent households and for pensioners living alone, or a free television license.[24] 

Over the 1990s and 2000s, in the context of unprecedented levels of economic growth, social security provision in Ireland increased significantly in real terms. However, social security functioned in a wider context of higher overall levels of prosperity and rising employment, as well as profound changes in social and family structures. A number of long-standing challenges to sustaining welfare effort became apparent throughout this period, including the shift from industrial to services employment, the country’s ageing demographics as well as the introduction of budgetary limits in the course of European Monetary Union. The crisis of 2007-08 has accentuated political pressures towards less welfare effort, greater means-testing and increased marketization of social services.

Since the beginning of Ireland’s economic crisis, austerity measures totalling just over €30 billion have been introduced. Budget 2014 marked the ninth fiscal adjustment. Taken together, the total scale of these adjustments has been equivalent to the removal of 17.8% of GDP from the economy.[25] In terms of the nature of these adjustments, social expenditure cuts have outweighed tax increases by two-to-one. The IMF and European Commission have accepted the reverse ratio (one-to-two) as the means to address fiscal adjustments in other countries such as Italy. Successive Irish governments, however, have persisted with reducing expenditure rather than bringing Ireland’s total tax take closer to the European average. Public spending in recent years has approximated 42.6% of GDP, compared to 49.3% of the EU-28. Whereas health and education expenditure tend to match the EU-28 average, social protection spending tends to be lower; 16.4% to 19.9%. IMF forecasts suggest that by 2018, under current budgetary policy, primary public spending (i.e. not including debt interest repayments) will have fallen to the second lowest level in the EU as a proportion of GDP.^[26]

The expenditure and taxation changes from Budget 2009 to Budget 2013 have had a significant cumulative impact on households in Ireland, particularly the old, the young, those with children and those on low incomes. In terms of health care, an international review of the Irish healthcare system in 2012 concluded that continuing budget cuts could lead to a reduction in access to necessary services for certain groups as it is not possible to have a sustainable health system with 3% reduction in expenditure year on year. Access to free GP care to all over 70 was rescinded in 2008 with a return of a means test. On return to work, unemployed people now lose their full medical card status for a GP visit only card. The Government, however, has provided for Free GP Care for children aged 5 and under. Government has also withdrawn subsidies for care and medical expenses, increasing the Drug Payment Scheme threshold by 37% (€54) per month and trebling prescription charges for medical cardholders to €1.50 per item.[27] The weekly Disability Allowance and weekly Carers Allowance has been reduced by almost 8% (€16.30) each, while the Respite Care Grant has been reduced by 19% (from €1780 to €1375 p.a.).

In terms of old age provision, the age of eligibility for the State pension has increased to 66, the first in a series of changes which will raise the qualification age for the pension by a further two years over the next decade and a half. It will increase to 67 years in 2021 and to 68 years in 2028. Various changes have further restricted eligibility to the contributory State pension, including a requirement for ten years PRSI contributions to qualify, up from just five previously. A new ‘total contributions’ approach is due to come into force in 2020, with the level of pension paid to be directly proportionate to the number of social insurance contributions made by a person over their working life. A total contributions requirement of 30 years contributions for a maximum pension will be introduced.[28]

Regarding unemployment assistance, the personal rate of social welfare has been reduced by 8% (€16.30 per week) to €188 per week. Austerity has disproportionately affected the young, with the personal rate of Jobseekers allowance for those under 24 reduced to €100 per week and to €144 a week for those aged 25. The government has increased the number of paid contributions to qualify for Jobseekers Benefit from 52 to 104 paid contributions. Ireland’s duration of entitlement to benefit was 390 days in comparison with Finland’s 500 days and Germany’s sliding scale with a maximum of 64 months.[29] The maximum length of time for claiming Jobseekers Benefit has been cut to 9 months for those with 260 contributions and to 6 months for those with less than 260 contributions.[30]

In terms of universal payments, successive government have reduced Child Benefit by 21% (€36) per month for the 1st and 2nd child, and by 26% (€54) per month for the 3rd child. Child Benefit is no longer payable to children aged 18 in fulltime second level education.[31] Finally, in terms of ‘last resort’ provision, fuel allowance payments have been reduced by 18.7% (€120) per annum. Since 2008, there have also been reductions in the Household Benefits Package, including the abolition of the Telephone Allowance.

The European Social Model of public services and supports are only attainable if Irish society is willing to maintain European levels of public spending. Ireland’s overall tax-take, however, remains peculiarly low. In 2011, Ireland’s total revenue, including social security contributions, was 28.9 per cent of GDP compared to the EU-27 weighted average of 38.8 per cent – less than three-quarters of the average level of European taxation.[32] The primary factor involved in this ‘low tax’ regime is the very low level of social security contributions. In Ireland, social contributions were only 5 per cent of GDP compared to 12.7 per cent of the EU-27; they made up 16.4 per cent of all tax revenue, less than half the EU-27 average (37.3 per cent). Other important factors include the relatively low levels of local government revenue-raising, and the above average levels of tax expenditures or tax breaks, the latter greatly undermining equity in the income tax system. Social justice and human rights organisations have called for much greater transparency in the budgetary process and suggest that the constitutionalisation of social security rights may aid this process.[33]

2. Social Security and the Irish Constitution

 The nature of Ireland’s welfare state and social security provision owes to a variety of historical, structural factors, including its colonial and post-colonial development, its comparatively later and slower levels of industrialization and economic growth, its ‘weak’ state capacity, as well as the manner of trade union, social democratic and left mobilization.[34] Over the 19^th century, successive British governments introduced a heavily centralised model of welfare, prioritising the top-down role of the state’s central planning institution, later the Department of Finance. Meanwhile, the day-to-day running of health, education and charitable services was left to the Catholic Church, a measure cost-effective, pious and ultimately, as recent reports into clerical abuse have demonstrated, detrimental to the well-being of many thousands of men, women and children.[35]

Crucially, secular and left political mobilisation in the independent Irish state, particularly as measured by the performance of the Labour party, has been comparatively weak in European terms. Each government in the history of the state has been led by nationalist political parties, Fianna Fáil and Fine Gael, broadly of the centre and centre-right respectively.^[36] In the post-World War Two era then, organised labour was not in a position in Ireland as elsewhere to generate a cross-class coalition of support for universal social security provision. Instead, such provision as emerged from predominantly Catholic nationalist political forces developed along ‘non-solidaristic’ lines, resulting in the highly segmented system of provision outlined above.[37]

The same constellation of political forces is further evidenced in the specific relationship between the Irish Constitution and the Irish model of social security provision. Adopted by popular vote in 1937, Bunreacht na hÉireann (the Irish Constitution) marked a significant declaration of nationhood based on the principle of popular sovereignty, while simultaneously provided for a conservative entrenchment of existing institutions.^[38] These included the inherited state apparatus, a Westminster model of centralised government and administration, as well as the ‘special position’ of the Catholic Church and its interests in education, health and social policy. The Constitution’s fundamental rights provisions (articles 40-44) reflected both liberal democratic thought and Roman Catholic social teaching, combining ‘negative’ rights of tolerance and non-interference with ‘positive’ duties expressing social justice concerns. Ireland was the first amongst the common law countries to explicitly recognise social and economic rights in its constitution.

The Irish Constitution explicitly protects the right to free primary education (article 42.4), the State’s duty to provide for children in need (article 42.5) and the right to private property (article 43). Moreover, Article 45, titled the ‘Directive Principles of Social Policy’, focuses on a communitarian vision of society and outlines a number of principles directed at achieving the common good. These include the right to earn a livelihood; the distribution of the ownership and control of material resources to subserve the common good; public control of essential industries, including the credit system; economic security; safeguarding the economic interests of the weaker sections of the community, including “support of the infirm, the widow, the orphan, and the aged”, protection of health, and protection against entering into unsuitable work due to economic necessity. Importantly, however, the constitution expressly declares that Article 45 would not be cognisable by any court and would serve merely to guide government policy.^[39] While the subsequent development of legislation and policies in Ireland reflected certain aspects of these socio-economic principles and rights, human rights standards are not routinely incorporated in policy or legislation.^[40]

Over the intervening decades, Irish citizens have periodically sought to have social and economic rights, including social security rights, recognised or further protected in the Irish Constitution. There are two mechanisms for changing the Irish Constitution: amendment via referendum and re-interpretation via judicial review. In terms of the former, the government is responsible for choosing to word an amendment and to submit it to the electorate. Between 1937 and 2014, thirty-six referendums to change the Irish Constitution have occurred. No Irish government has yet decided to offer a referendum on the constitutional recognition of socio-economic or social security rights. In 1989, Ireland ratified the International Covenant on Economic, Social and Cultural Rights, which protects fundamental human rights like the right to health, the right to social security, and the right to an adequate standard of living, but that there has simply never been sufficient political will to give domestic legal effect to the range of rights Ireland has committed to under international law.

Somewhat exceptionally, the Fine Gael-Labour coalition government of 1995-97 considered the issue as part of a wider constitutional review process.[41] Two members of the Constitutional Review Group argued that the constitution should have an article ‘committing us to a democracy based on principles of social solidarity with the aim of eliminating poverty and promoting economic equality through a system of taxation based on principles of equality and progressiveness’.[42] The government concurred with the majority of the expert group who opposed the constitutionalisation of socio-economic rights on the grounds that it would represent a ‘distortion of democracy’.[43]

Most recently, in February, 2014, the government-appointed Convention on the Irish Constitution considered whether economic, social and cultural rights ought to be placed in the Irish Constitution. The one hundred-member Convention, composed of a chairman, twenty-nine parliamentary members of the Oireachtas, four representatives of Northern Ireland political parties, and sixty-six randomly selected citizens, decided that the current limited protection of economic, social and cultural rights is inadequate and voted by an overwhelming majority of 85 per cent to strengthen their constitutional protection.[44] 80 per cent voted in favour of giving constitutional protection to the full range of rights within the ICESCR. A majority also favoured including a provision in the Constitution “that the State shall progressively realise ESC rights, subject to maximum available resources and that this duty is cognisable by the Courts”. The Irish government is not obliged to proceed with any amendment proposal, but has committed to respond formally to each recommendation and debate it in the Oireachtas by the end of July.^[45] 

In addition to direct amendment, Irish citizens have also sought to broaden the Irish Constitution’s recognition of socio-economic rights through judicial review.  Ireland broadly follows the U.S. model of concrete judicial review, in which a legal case activates review once one of the parties invokes the constitution’s provisions.^[46] Given the highly centralised, party-dominated nature of Irish government and administration, the Constitution and the courts have emerged as among the more robust constraints on executive power. In Ireland as in Europe and North America, the rapid emergence of public interest litigation owed primarily to civil society attempts to by-pass existing, ‘blocked’ systems of representative politics and trade union organising.^[47] Particularly from the 1970s onwards, all manner of high-profile constitutional cases have sought to defend ‘minoritarian’ rights for women, children, prisoners, homosexuals, Travellers, the disabled, the transgendered and asylum seekers.^[48]

Concomitantly, mirroring wider global trends in the latter half of the twentieth century, an empowered judiciary emerged in Ireland. Notably, Chief Justice Cearbhall Ó’Dálaigh’s court of the 1960s newly interpreted the constitution so as to acknowledge the existence of rights not explicitly listed in the constitution.^[49] In the course of these developments, the Supreme Court proved particularly ‘activist’ regarding the preservation and enlargement of civil liberties, emphasising limits to police powers and rights of due process as well as expanding the private sphere, most notably with regard to the liberalisation of Catholic social or family law.[50] In contrast to the experience of the Indian Supreme Court, however, the Irish judges stopped short of re-interpreting the constitution’s ‘Directive Principles’ so as to recognise their fundamental rights status.[51] Constitutional scholars have created a variety of plausible justifications for reading socio-economic rights into the Irish constitution, posited primarily in terms of existing liberal democratic, and communitarian constitutional norms.^[52] In light of the history of actually-existing constitutionalism in Ireland, however, most scholars and practitioners accept that such interpretations are extremely unlikely to succeed before the present bench.[53]

In fact, the Court, ostensibly distinguishing between ‘distributive’ and ‘commutative’ justice as well as claiming a commitment to the principle of the separation of powers, has characteristically refrained from challenging duly enacted legislation or issuing compulsory injunctions to the government in the realm of social security.[54] Seminal cases concerning court-ordered public expenditure, notably the introduction of free legal aid[55] and the payment of welfare arrears[56], have had to be fought and won at the European Court of Human Rights. In those few constitutional cases where the Irish Court has struck down social legislation, it has been broadly in defence of negative liberties or property rights. Special interest groups, including employers, landlords and farming associations, have successfully used the constitution to challenge state regulation of the market place. Most notably, these took the form of successful constitutional challenges to rent restrictions,[57] taxation measures[58] and trade union protections.[59]

Traditionally then, the Irish judiciary has adopted a narrow conception of rights, emphasising liberal individualism, anti-statism and ‘negative liberties’ at the expense of ‘positive’ rights to welfare and social security or the interests of the ‘common good’.[60] This position is not atypical and owes to a combination of factors, including the strong defence of individual and property rights in the common law, the sociological conditions shaping judges’ formation and ideological preferences as well as the party-dominated judicial appointments process.[61] In the absence of a body of social security rights case-law then, recent education and disability rights cases in the Irish Supreme Court provide us with the closest possible approximation of the challenges facing those who would both constitutionalise and make effective social security rights.

3. Expanding the Irish Constitution’s guarantee of socio-economic rights?

The Irish Constitution, as noted in Fig. 1, explicitly recognises the right to free primary education (article 42.4), and the State’s duty to ‘supply the place’ of parents who cannot or will not provide for their children (article 42.5). That these provisions do not fall under the non-enforceable provisions of Article 45 signals that citizens may have recourse to the courts to vindicate these rights. The Irish Courts have interpreted both provisions as conferring corresponding rights on children to receive the services that the State is obliged to provide.[62] Between 1993 and 2001, a number of seminal constitutional cases were taken seeking to use Article 42 so as to compel state provision of resources to children with special educational needs and severe behavioural disorders. These cases illustrated a number of key features of the Irish state’s minimal welfare effort: centralised decision-making, segmented welfare provision, underfunding, continued state reliance on the institutionalisation of children as well as the crucial role of voluntary and family networks of care. They further tested the ability and willingness of the Irish Courts to enforce a socio-economic right explicitly stated in the Irish Constitution.

Fig. 1 Irish Constitution: Education Rights Provision

Throughout the 1980s and 1990s, autistic children in Ireland continued to receive ‘baby-sitting’ rather than fully resourced educational facilities. In 1993, Paul O’Donoghue, a profoundly autistic child, brought a constitutional action against the State, claiming he was not being provided with any educational services.[63] While the State argued that he was incapable of being educated and that the services required by him did not fall within the constitution’s definition of ‘primary education’, the Court rejected both of these arguments. Expert evidence indicated that the applicant was capable of educational development. Crucially, and drawing on the UN Convention on the Rights of the Child, Judge O’Hanlon concluded that ‘primary education’ involved ‘giving each child such advice, instruction and teaching as will enable him or her to make the best possible use of his or her inherent and potential capacities, physical, mental and moral, however limited these capacities may be’.[64] In this case, the Court issued a declaratory order, stating that the applicant’s right to free primary education had not been vindicated. Responsibility shifted to government to change its actions to vindicate its newly clarified constitutional obligations.

The most high profile of subsequent socio-economic rights cases centred on the state’s informal provision of treatment and education to Jamie Sinnott, a twenty-three year old autistic adult, and Kathyrn Sinnott, his mother and primary care-giver. Up to the hearing of the Sinnotts’ court action in 1999, when Jamie was 23 years old, the State had provided him with no more than two years of primary education. (His classes at the Education and Development Centre at Lota, Co. Cork were discontinued following budget cuts). In the High Court, Judge Barr found that, while the applicant was over eighteen, he was still entitled to free primary education appropriate to his needs for as long as he was capable of benefiting from such education. The Court granted a mandatory injunction enforcing this entitlement. On appeal, however, the Supreme Court overturned this decision, deciding that the State’s duty to provide primary education did not extend to adults.^[65] In a society where some 25% of adults have literacy difficulties, such a constitutional obligation, Chief Justice Keane recognised, would have ‘more far-reaching implications’.^[66] The Supreme Court also took a more restrictive view of the role of the courts in the enforcement of the right to education, and in particular in relation to the types of relief the courts are entitled to grant.^[67]  

Over the same period, a series of constitutional cases were also taken seeking to direct the State to make adequate provision in relation to both the accommodation and educational needs of children with behavioural problems. On a number of occasions, the Departments of Health and Education assured the High Court that such children would be provided with ‘high support units’.^[68] Notwithstanding the courts’ issuing of several declaratory orders to this effect, the State did not implement the policy in a timely manner. As a result, applicants for institutional care were being placed in detention centres intended for children convicted of criminal charges. Subsequently, in T.D. v. Minister for Education, Judge Kelly granted a mandatory injunction requiring the Minister for Education to complete the development of suitable accommodation within a specified time scale.^[69]  

On appeal, the Supreme Court reversed this decision and indicated that, in accordance with the separation of powers doctrine, mandatory injunctions can only be obtained in the rarest of circumstances. The Court defined such circumstances as being restricted to where an organ of the State had shown a ‘clear disregard’ for its constitutional obligations, described by Judge Murray as ‘a conscious and deliberate decision by the State to act in breach of its constitutional obligations to other parties accompanied by bad faith or recklessness’. The courts, Judge Hardiman claimed could not ‘fill the vacuum’ in policy-making because it would transfer power to ‘an unelected judiciary at the expense of the politically accountable branches of government’.^[70] The European Court of Human Rights has since offered a sharply contrasting opinion on the Irish State’s provision for detained minors, finding it to be in breach of obligations under the European Convention on Human Rights.[71]

4. The future of social security rights and the Irish Constitution

The experience of educational rights contestation outlined in the previous section illustrates a number of key challenges facing those in Ireland who would both constitutionalise and make effective in practice social security rights. Taken together, these challenges suggest that the constitutionalisation of social security rights may even be overrated.[72] Firstly, in terms of the Supreme Court, the TD and Sinnott decisions, in particular, clearly signal its restrictive view on the role of the courts in relation to public expenditure and socio-economic rights in general. It is possible that this view may change over time as new judges are appointed and alternative interpretations of the constitution pursued. However, these cases demonstrate that even an explicit constitutionalisation of a right may not ultimately translate into that right’s substantive realisation in practice.    

A second factor, and an important influence on judges’ conservatism, that these cases reveal is institutional capacity to process case-loads, a capacity subject to politically determined resource constraints. Judges would appear to have responded to the rapidly escalating tide of litigation before the Superior Courts by raising the bar for judicial intervention higher.[73] There are grounds for thinking that the Irish courts did not recognise socio-economic rights, at least in part, for fear of creating insurmountable case-loads that might overwhelm the existing legal system. Judge Hardiman explicitly stated that if the courts acknowledged socio-economic rights they ‘would certainly be appealed to again and again...’ and cited media coverage of the ‘hundreds of cases’ recently taken by parents of children with special needs.[74] Beyond the courts, legal practitioners further suggested that the ‘huge increase in litigation in this area’ demonstrated how recognising socio-economic rights would result in the courts being ‘overwhelmed’.[75]

Thirdly, these cases suggest the importance of legal aid and organisation underpinning access to the courts and the concomitant development of rights protections. The constitutional cases to secure special needs education and resources for autistic adults, children and carers, unlike those taken on behalf of detained minors, were accompanied by civil society campaigning, notably featuring the Irish Autism Alliance of which Kathy Sinnott was patron.[76] This dual approach yielded immediate concessions. On the day of the Sinnott verdict, the Minister for Education stated that he had a ‘virtually open cheque book’ to ensure ‘full and appropriate provision’ for both the education and care of people with disabilities.[77] New legislation followed soon after.[78] Since the crisis, however, disability service users, service providers and statutory bodies have reported a cumulative 14% cut to their core organisational funding between 2009 and 2012.[79] Moreover, elements of legislation specifying commitments to inclusion are currently postponed or suspended due to austerity.[80]

The more general points for the effective realisation of social security rights, however, are that the uneven distribution of capacities to access justice has been a long-standing issue in Ireland and that corresponding ‘support structures’ for realising constitutional rights are limited in important respects. The Irish state’s free legal aid scheme imposes a strict means-test on applicants, excludes the taking of class actions or test cases and is severely under-resourced.^[81] Post-2008, the Irish state has drastically shrunk key human rights monitoring organisations, merging the Equality Authority and the Irish Human Rights Commission and reducing their budgets. The bill for the new ‘Irish Human Rights and Equality Commission’ has attracted criticism that the director will not be independent of government and, moreover, that the body’s mandate with respect to socio-economic rights will be weakened.[82] State and philanthropic support for non-governmental organisations has also declined significantly, while those sources of funding that remain are often tied to ngos’ remaining uncritical of either government or pro-market policies.[83]

Even if social security rights were constitutionalised and successful cases taken, victories on an individual, case-by-case basis in other jurisdictions suggest their capacity to advance progressive notions of social solidarity or distributive justice is strictly limited.[84] This might be particularly true of Ireland given the highly segmented nature of its social security provision, the unavailability of a class action system on US lines and the correspondingly narrow focus of representative action. Judicial review functions such that ‘the courts are required to focus on the operation of the law as it affects the individual plaintiff and do not, generally speaking, have the capacity to examine how such a law impacts on the public at large’.^[85]

Elsewhere, trade unions have been the crucial support structure for advancing more solidaristic or universal systems of social security rights, notably through corporatist negotiating in Scandinavian and Bismarckian welfare states. In Ireland’s pluralist model of interest group articulation, however, trade unions have traditionally played a weaker consultative role in tripartite decision-making with government and employers.^[86] Moreover, the inherited segmentation of provision draws sustenance from the present division of labour in Irish society. Public sector employees and multinational private sector employees receive relatively high benefits through public occupational pensions and private occupational benefits respectively; the largest group, indigenous private sector employees are covered only by flat rate public welfare benefits. The fact that substantially non-unionised parts of the labour force and the highly unionised public sector are covered by private and occupational welfare may undermine the formation of cross-class coalitions in favour of welfare state expansion, as well as ‘solidaristic’ or universal social security rights.[87]

Conclusion 

Given wider constellations of power in Irish society, Irish governments past and present have consistently pursued a ‘rights-free’ way out of economic recession, often with predictable and devastating social consequences. The effects of the crisis of 2007-08 will be long-lasting. The ‘tough decisions’ successive Irish governments have made and continue to make are dismantling a social model that has underpinned development for more than half a century, producing a more deeply divided, two-tier society. Not only are the legacy banking costs and debt repayments being passed on to younger generations but austerity cuts to public services and social security are likely to deepen inequality in society and put Ireland’s economy onto a lower developmental trajectory for years to come.[88]

Among proponents of economic, social and cultural rights then, there is a critical awareness that better protecting such rights in the Constitution will not solve all problems.^[89] Minimally, however, the provision of access to an effective remedy for the violation of a human right is an obligation under international law. Constitutional rights litigation, when combined with accompanying civil society mobilisation and advocacy, can function as a corrective for minoritarian groups, requiring the political system to address issues of social exclusion that might otherwise be ignored.[90] Without disability rights activists pursuing such a dual track campaign, it is unlikely that the state would have introduced legislation and increased expenditure for disabled children and adults. Maximally, proponents draw on international experience to show that socio-economic rights entrenchment would require government to promote meaningful engagement between state authorities, service providers and citizens, thereby facilitating better planning processes and outcomes, as well as greater accountability and transparency.

This article has sought to provide a holistic, critical assessment of the challenges facing the constitutionalisation and effective realisation of social security rights in practice. Ireland’s ‘Anglo-Saxon’ model of welfare state development is characterised by a comparatively low tax-take and welfare effort, with its limitations offset by a network of family and voluntary networks of care. The constellation of political forces shaping its development (as well as the development of the Irish Constitution) has ensured that such provision has remained highly segmented and targeted rather than solidaristic and universal. The education rights cases examined here demonstrate in sharp relief the implications of laissez-faire orthodoxies for autistic children and adults as well as associated care-givers. Similar experiences of hardship and inequality could be replicated across Irish society, notably the experiences of welfare-recipients, homeless people, asylum-seekers or Travellers.[91]

Moreover, these experiences involve more complex, intersectional systems of class, race and gender oppression than the present article has been able to explore.

Based on the foregoing assessment of these particular cases and of the history of wider constitutional development, the constitutionalisation and effective realisation of social security rights in Ireland appears unlikely in the near future. Notwithstanding remarkably high levels of public support, the efforts of non-governmental organisations or recent developments at the Constitution Convention, the orientations of those political parties and judges with formal decision-making authority over the amendment or interpretation of the Irish Constitution remain opposed to constitutionalising such rights. In fact, in the particular area of disability rights, the Irish state responded to the disability rights campaigns of the 1990s and 2000s by curtailing opportunities for further public interest litigation in the future. The Disability Rights Act (2005), for example, prohibits access to an independent arbiter until internal review procedures are exhausted.[92] The logic is clear: recent austerity cuts and postponements of disability services cannot be contested in the courts.[93]

Finally, even if successfully constitutionalised, there are strong grounds for thinking that social security rights may not function as effectively in Ireland as in other jurisdictions. The past practice and common law orientation of the Irish judiciary as well as the legal system’s institutional incapacity to process cases constitute important barriers to substantive constitutional protection, particularly regarding any constitutional rights involving public expenditure. Moreover, important limitations in terms of funding, power and internal democracy attach to the support structures necessary to ensure the taking of social security rights cases. Ultimately, even winning on an individual, case-by-case basis may not be sufficient to secure a more solidaristic, universal form of social security rights provision. It is precisely these forms of provision, dependent on mobilising cross-class coalitions of support, that appear to be more robust in providing a rights-based way out of the crisis.