In Ireland, while civil and political rights are justiciable, both the legislature and the judiciary have traditionally taken a conservative position on the justiciability of economic, social and cultural rights, arguing that it may have cost implications for the Exchequer or that judicial enforceability would interfere with the separation of powers.1 This approach clearly conflicts with the Committee’s interpretation that any distinction between civil and political rights on the one hand, and economic, social and cultural rights on the other, is ‘arbitrary and incompatible with the principle that the two sets of human rights are indivisible and interdependent’.2 While the State has stressed its support for the universality and interrelatedness of all human rights at the international level,3 at the domestic level it continues to defend itself against legal actions related to socio-economic rights. In addition, the Irish judiciary remains deferential on matters which might impinge on State resources. Some examples of the judicial approach to socio-economic issues are outlined below.
Figure 1: Cases involving judicial approach to socio-economic issues
Jama v Minister for Social Protection [2011] IEHC 379
Ms Jama sought back-payment of Child Benefit for her son to the date of his birth following the recognition of her refugee status as she had been denied the payment while she was an asylum seeker. She requested that relevant appeal decisions be provided to her as these are not routinely published by the Social Welfare Appeals Office. FLAC represented Ms Jama and claimed that the Social Welfare Appeals Office, under the remit of the Minister for Social Protection, should maintain a database of decisions to ensure transparency, fair procedures, equality of arms and consistency in decision-making. The High Court Judge was reluctant to impose the cost of establishing such a database on the State declaring, ‘Public policy in this regard, notably in these straitened times, must surely outweigh a right of access to such information’.
O’Donnell (a minor) & Others v South Dublin County Council [2007] IEHC 204
A Traveller family of ten, three of whom had a severe disability, claimed that the housing authority’s failure to provide them with a second mobile home to prevent overcrowding was in breach of the Housing Acts and the European Convention on Human Rights (ECHR) Act 2003. The High Court Judge held that there was a breach of Article 8 of the ECHR Act 2003 (right to family life). However, she refused to interpret the Housing Acts as conferring a right on the family to be provided with a second mobile home agreeing with the argument put forward by the authority that such a finding ‘would have a significant impact on social housing policy and impose a significant burden on housing authorities and their resources’. She held that the only remedy she could grant was damages; she could not order that the Council provide a new caravan.
In re Article 26 of the Constitution and the Health (Amendment) (No.2) Bill 2004 [2005] 1 I.R. 105; [2005] 1 I.L.R.M. 401
The State introduced legislation to charge medical card holders for in-patient services in nursing homes. It already did this on an administrative basis contrary to the express provisions in the Health Act 1970 that this care should be provided free of charge. The legislation sought to put these charges on a statutory footing and apply them retrospectively to those patients who had already unlawfully paid charges. The Supreme Court considered whether the ‘normal discretion of the Oireachtas in the distribution or spending of public monies could be constrained by a constitutional obligation to provide shelter and maintenance for those with exceptional needs’ but held that the Oireachtas could introduce legislation to introduce charges for medical card holders into the future as it did not consider that the fees charged would cause undue hardship. At the same time, in a positive move, it also determined that there had been a breach of property rights under Article 43 of the Constitution and it would not be constitutional to apply the provisions retrospectively.
Sinnott v Minister for Education [2001] 2 I.R. 545
The Supreme Court held that there was no constitutional obligation on the State to provide free primary education for an adult with autism for as long as he or she is able to benefit from that education. This case limited the constitutional right to free primary education under Article 42 to children under 18 years. The Chief Justice stated that the Supreme Court could not find in favour of Mr Sinnott as this would ‘involve the judicial arm usurping the function of the Oireachtas and the executive in the proper distribution of the resources available to the State’.
T.D. v Minister for Education [2001] 4 I.R. 259
Children in need of accommodation and treatment in high-support units sought an order compelling the State to implement its own policy on accommodating children with special needs as it had failed to do so. The High Court held that the State must provide adequate accommodation in a timely manner but this decision was overturned by the Supreme Court which found that apart from the right to free primary education for children, the Constitution does not contain any ‘express provisions therein cognisable by the courts which impose an express obligation on the State to provide accommodation, medical treatment, welfare or any other form of socio-economic benefit for any of its citizens, however needy or deserving’.
1 Amnesty International Ireland (2014) Bringing ESC Rights Home: The case for legal protection of economic, social and cultural rights in Ireland, Dublin: Amnesty International Ireland, pp. 30-42.
2 UN Committee on Economic, Social and Cultural Rights (1998) General Comment No.9: The domestic application of the Covenant, E/C.12/1998/24, Geneva: OHCHR, para.10.
3 UN Human Rights Council documents, ‘Statement by Ireland under agenda item 8 - Follow-up and implementation of the Vienna Declaration and Programme of Action’, 24 June 2014.
Last Updated: 22/01/2015 ^ back to top