VALUES OF JUSTICE, EQUALITY AND FAIRNESS SIMPLY MEAN A CHANGE OF MIND-SET
Noeline Blackwell, Director-General, FLAC
The task that I set myself as part of this panel was to envision a republic of fairness, equality and justice from a human rights perspective and also from a legal perspective. When I do that, I ask what might a republic that had those values of fairness, equality and justice, look like?
For a start, the laws would protect the basic dignity of all of the people regardless of their economic status, their gender, their skin colour or any other defining human characteristic. The law of the land would protect the dignity of its people. In that republic, people would know and respect the law. People would not just know the law exists, but also accept it. In this place, its people would respect the rights of others, knowing that their own rights are respected.
With that would come accountability. Where people transgressed there would be sanctions. Where people needed the protection of the law it would be available to them and they would get redress when they were entitled to it.
Having said all that, I am not envisioning Utopia. This is not a distant dream. In many ways, our existing laws are tantalisingly close to that just and fair society. We don’t actually require a massive revolution: what is needed is a revolution, a turning, of our thinking and our mind set. I am going to propose today that this is a reality that is achievable. I will focus on a few areas where if we took these values of justice, equality and fairness seriously as a society we could accomplish this republic.
Laws we don’t use
Firstly, we have a treasure chest at our disposal in the shape of human rights law – that body of legislation that most comprehensively sets out the structures and systems which can and do protect and promote fairness and equality. We have those laws embedded in our own constitution. We also have them as a result of our membership of the international community. We have many binding and valid international treaties and laws dealing with such issues as the rights of women, the rights of children, the elimination of racial discrimination, specific rights for those in prison, the rights of immigrants, the rights of persons with disabilities and many others.
Yet, in this country we hardly refer to them at all. Indeed, most law students will walk out of college knowing little or nothing about these laws – particularly the international human rights law – which are as real and binding as any other laws relevant in this land. Moreover, most of those who are impacted by those laws – the people who live in this republic – will not know much about these laws. There is a very good reason why not. The realities of international human rights law, which are binding on Ireland remain obscure because there is no domestic accountability.
Those who want to exercise their rights to have their rights protected or promoted have no forum in Ireland to make their case. For the most part, the courts are allowed to note that these laws exist but they are banned from applying them in the same way as they apply the laws and rights articulated in our constitution.
The only accountability mechanism is where Ireland is asked to account for its compliance before a UN committee in a venue outside Ireland once every five or even more years. The courts cannot carry out a scrutiny of individual rights by reference to these rights. There is no Oireachtas committee with the obligation to ensure Ireland’s observance of them. There isn’t even the lip service paid by checking new policies or legislation for compliance with these international human rights treaties. Ireland doesn’t treat other international treaties this way. When it is a trade treaty – for example – there is much more likely to be strict compliance with its terms – much more respect for the treaty. There is a practical reason for that. It is because failure to comply in those cases is going to have economic consequences for us. The only consequences of failure to comply with the binding legal obligations of human rights treaties are that the people – particularly the most vulnerable people – in our society suffer.
This gap in protection, this failure to advance justice, equality and fairness is fixable. With little effort, we could devise a domestic forum to monitor and report on whether the state is observing any legally binding treaty. With a little more effort, we could make these international law treaties ones which our courts could take into account in individual cases in deciding whether a person was being treated fairly, as is the case in many other European countries.
Laws we don’t implement
However, greater recognition and account of international human rights law will only partially solve the problem. It’s one thing to make the law; it’s another to implement it. This is the situation in a case FLAC has been involved with for the best part of two decades. Although the Irish courts must and do take the European Convention of Human Rights into account, some 4½ years have passed since the State understood that Irish law relating to transgender people was incompatible with the European Convention on Human Rights. Litigation before that had lasted more than a decade to get the point across. Despite all that litigation and the recognition by the State that some of our people, transgendered people, are denied their basic human rights, that law hasn’t been fixed so that a transgendered person could acquire a birth certificate. Steps are being taken however, because at least the failure to recognise the rights of transgendered people is on the political agenda. But it shows the need to not just introduce a law – it must also be implemented.
The second way in which advances to a republic of justice and equality could come about is access to law, access to the courts. The theoretical right of everyone to access the courts is more and more that – theoretical. Anyone dealing with the courts will know how slow and difficult the process is. While courts aren’t the only mechanism whereby a person can articulate a complaint, they remain a primary organ of the structure of our republic to advance justice, fairness and equality. Right now, they are under enormous strain and much of the frustration and difficulty and cost that people encounter when they use our courts systems is due to the pressure on an administration that is ever trying to do more with less. The result is not just delayed justice. It is also an awful and sometimes unmanageable strain on people who are often engaged in some of the most significant issues of their lives when they come before the courts with the resultant poisonous pressure on family, on health and on welfare. Many people just can’t hack it. They can’t bear the pressure, they don’t have the support and they can’t afford the cost. On normal issues therefore –not the big issues of establishing new rights – people give up on the system. The winners are those who have the power and resources to allow them to continue.
There is of course a system of legal aid for the very poor. The purpose of legal aid is to try to ensure that everyone gets a fair hearing when important matters are at stake. But cut-backs in that system have led to long delays again denying justice – you might wait for 18 months for a first appointment with your solicitor. If you’re not extremely poor you won’t even be eligible for civil legal aid. And in addition, no legal aid is available to people who seek fairness before the Tribunals dealing with Employment Appeals and Social Welfare Appeals, no matter how complex the issue or how deserving the applicant. And if you don’t want to go to court, but rather go to an Ombudsman’s office, you need to be aware that legislation precludes those offices from investigation.
At another level, the cost of going through our courts has a chilling or off-putting effect on anyone who would seek to use the courts to claim a right or to oppose oppression by big business or big government. If you seek to assert that you have been treated unfairly by a large corporation or indeed the state – by people with power and influence – you will be told that you cannot do so without putting every single cent you possess at risk. Even if you manage to get someone to take the case pro bono – as often happens – you risk being saddled with huge costs if you lose the case. So, in this way, we structure our courts to deflect and prevent people from bringing the kind of cases they need to bring.
What is frustrating is that we actually have a fabulous court system, by the standards of so much of the rest of the world. I am reminded of the old story of law being like the Ritz Hotel – anyone is entitled to enter, as long as you have the money to do so. In FLAC, we were working on a project recently to do with the lack of a mechanism for class action in Ireland – people have to litigate individually, making it harder to bring cases and easier to pick people off one by one. Class actions are routinely used elsewhere to combine a number of applicants who have a common grievance to just bring one action against – typically – big business. Informally, I was told that it was a bad idea because it would just encourage litigation. But in truth, there’s no barrier on litigation in Ireland if you’re rich and powerful. The chief barrier to litigation is money, so in fact the real objection to class actions is that poorer people could access the courts just as much as those who are richer.
Budgets and the law
And finally, I return to my suggestion around the need for a shift of mind-set. Inevitably, people will say that all those things that I have suggested so far – expanding the remit of the Ombudsmans’ offices, making legal aid genuinely available to people who need it – are going to cost money, and in our country right now, we don’t have the resources to do it. Well, my answer is that in Ireland we are not actually budgeting in accordance with law right now. This is the case if we recognise and take account of the obligations of our state, entered into freely under international human rights law, to set minimum standards below which no one should have to live.
Furthermore, the implementation of human rights law requires that, before we make decisions on budgeting, we have to measure the impact of these decisions on the most vulnerable in the state and then act in such a way that the most vulnerable are protected. This simply does not happen in Ireland. There is no general impact assessment of our budget on how it affects people. If we did assess budget impact, then the relatively small amount of money needed to realise the proposals I make above – expand the Ombudsman’s remit, improve legal aid, create a domestic remedy for interrogating human rights at home – would be made available to enable the protection of the most vulnerable. This would affect how we actually apply the resources that we have.
As we approach the end of this Troika bailout period, the debate is about what level of debt we need to write down this year to meet the demands of the Troika – the IMF, the EU and the ECB. I do not recall ever hearing that the Irish government, in its discussions with the Troika or any other international lender, ever referred to these legal obligations. However, it is noteworthy that two of the Troika members, as organs of the European Union, are equally bound by the same obligations to justice, equality and fairness as Ireland in many ways but principally and clearly in its own Charter of Fundamental Rights. The third member of the Troika, the IMF, constantly references the obligation to protect the most vulnerable in its reports.
Therefore, if the actions of the Troika put Ireland in a position where it must drop its standards for its people below the minimum core required for a life of basic dignity, then the European Union is itself as much at fault as we are. They may not do that in law. The law demands that they understand the impact of their actions on the most vulnerable. The law demands that they do not force people to live below minimum standards. Thus, if they try to do that, our government will have to re-arrange how we deal with Troika demands in a way that protects the people of this republic in order to preserve justice, equality and fairness.
So my thesis is that in fact a little would do it. A change of priorities, a change of mind-set, and we could be so much nearer that Republic of Justice, Equality and Fairness that we as a society believe we need.