WE MUST HAVE THE COURAGE AND VISION TO RADICALLY CHANGE THE REPUBLIC
Colm O’Gorman, Director, Amnesty International
Annie Doran was 47-years-old when she filled out the 1911 census. She lived in a tenement slum she shared with nine other families at 24 Gloucester Street, Dublin, just the other side of the Liffey from the Custom House. Over the course of her life Annie gave birth to eight children; only three survived. Across the tenements of the inner city, the child mortality rate was over 50 per cent. 26,000 families lived in one-room dwellings. On Henrietta Street an astonishing 835 people lived in just 15 houses.
I learned all of this from a lecture delivered by President Michael D. Higgins last month, remembering the 1913 Lockout, and I started to think about how the poverty and deprivation visible to the men and women who founded our republic, indeed experienced by many of them, drove the writing of what is considered to be one of the two founding texts of our Republic – the Democratic Programme of the First Dáil.
“It shall be the first duty of the Government of the Republic to make provision for the physical, mental and spiritual well-being of the children, to secure that no child shall suffer hunger or cold from lack of food, clothing, or shelter, but that all shall be provided with the means and facilities requisite for their proper education and training….”
It goes on to guarantee the right of every citizen to have enough to live a life with dignity, to make it an obligation of the State to guard the health of its people, even to give the Government the right to prevent food or necessities from being exported from this country until the needs of the poorest in Irish society are met.
The language of the Democratic Programme is of its time, but what it outlines are what today we would understand as economic and social human rights – the right to adequate income, the right to health, to social security, to food. Almost three decades before the Universal Declaration of Human Rights would first outline these rights in international human rights law, the men and women who founded our Republic embraced these principles as a response to the inequality and murderous poverty that characterised early twentieth century Ireland.
Their response to the grave crisis Ireland faced at that time was not to replicate a discredited system, but to replace it with something new, a different and better Ireland. They set out that vision, in both the Proclamation and the Democratic Programme, but sadly for us it was a vision never fully realised. In reality, something slipped between revolution and statehood, the governments of the Irish Free State did not radically change Ireland but simply carried on much as before once the crises of the revolutionary period had ended.
Of course there is no comparison between the poverty of that time and life in Ireland today. As difficult as the recession has been, as much suffering as it has brought, they are different realities. But it seems to me that we now face that same challenge to radically re-imagine and rebuild our society and our political and legal systems. We hear so much talk about the need to regain our sovereignty, but sadly very little about what we will do differently when we do so. Will we simply regain our sovereignty and go back to being the state and society we were, the one that led us to this crisis, or will we instead begin to think about the state we might be: a true republic of equals, built upon the principles of fairness, justice and human rights imagined by those who gave their lives for the foundation of the modern Irish state?
I fear that in Ireland we pay mere lip service to those ideals, and there is no real indication of that changing. Our history is littered with broken promises and empty political pledges, from the proclamation and the Democratic Programme all the way through to the modern era. Successive Irish governments have pledged to deliver those social and economic rights outlined in the Democratic Programme. They have signed and ratified legally binding international human rights treaties that make it a legal, as well as a moral, obligation on our leader to fulfil the pledges made to the Irish people in 1919.
But so often they have dismissed those obligations as mere aspirations, as idealistic. They are not. They are laws written and adopted by States, our own included, which set out not lofty aspirations but minimum standards. Shouldn’t our state at least pay proper regard to the very laws it helped write? Shouldn’t our Government place at least equal importance on its legal obligations to people living in this state as it has to the debt it agreed to take on at the behest of the international financial system, the ECB and our European partners? We must boldly rethink our approach to such questions. It’s not enough to aspire to get back to where we were before the economic crisis. If all we aspire to is a return to some imagined halcyon time before the Troika came to Ireland we have learnt nothing.
Ireland before the recession was a deeply unequal and divided society. In 2004 almost 20 per cent of people were at risk of poverty. For families headed by lone parents, the figure rose to two-thirds. One in four private patients did not attend their GP when sick because they were worried about the cost. Our country was run by a political and financial elite, accountable to no one, that made decisions which shaped and corrupted our economy and our communities, which saw accountability and transparency as threats to the proper order of things. Bad decision making, which served not the public good, but the selfish needs of various vested interests and powerful elites who were, and it appears, remain, above the law were the reality of that time.
Who does the State serve? Who have the Governments of our supposed Republic served? And equally as important, who have they failed? Those communities, marginalised, deprived and ignored today, are the same communities who suffered from the same problems before the recession even if their plight today is more acute. And those who perhaps considered themselves safe, who did not see a role for the State in their lives, who believed that they could provide for themselves all that they might need, now feel the vulnerability that so often has touched others.
If we could contemplate social and economic rights in the Ireland of 1919, when the notion of self-government for Ireland was a contested one and our elected representatives faced imprisonment for the pursuit of national sovereignty, why can we not do the same in the Ireland of today? At a time when it is commonly understood that a lack of transparent, effective and evidence based decision making, as well as poor systems of administration and oversight, led us to this place of crisis, shouldn’t the overwhelming demand be that we radically change? For example, should we not be looking at putting obligations on the State to protect our fundamental human rights like health, social security and education, thus ensuring that the primary responsibility of the state is to serve the common good in those areas, as opposed to the muddy and failed old horse trading between various political and other vested interests?
Economic, social and cultural rights are not foreign to our constitutional tradition. We have the education provision in Article 42; we have a particularly well-upheld provision on the right to property. We have the Directive Principles of Social Policy in Article 45 –the right of all men and women to an adequate means of livelihood, the safeguarding of the weaker sections of the community, ensuring the strength and health of workers.
It is clear that the Constitution envisaged a role for the State in vindicating these rights. They were meant to be part of our political culture, they were supposed to guide our leaders in how they made decisions, allocated resources and served the people. It has been a failure of our political system to make this happen. And it is where we have a systems failure, politically or administratively, that we must give a role to the courts, to defend the rights of our people against the failures of the State.
There are those who argue that we cannot afford these rights, that once written into our Constitution the ‘floodgates’ will open. But this is not an argument against protecting those rights; rather it is a challenge to the State to understand what these rights mean.
Putting the right to housing in the Irish Constitution on Thursday does not mean that on Friday anyone without a house can take the Government to court. Human rights law is not about enriching a generation of barristers. It is about putting a framework in place that promotes accountable decision making, that obliges a government to say, ‘These are our priorities, these are the rights we are trying to deliver, and here is how we are going to do the best we can with the money we have available’. In economic and social rights, as they are in civil and political, the courts are the last resort.
Others argue that economic and social rights are different to civil and political rights because they have resource implications. Of course they do. All human rights have resource implications. So, the right to a fair trial requires the State to put in place and fund a functioning criminal justice system. The right to vote necessitates paying for elections, funding political parties and paying for the salaries of our elected representatives.
Nor is this an argument for unlimited public spending. The Government already spends money on delivering healthcare, on supporting the housing needs of the population, on providing a system of social protection. But how does it set the priorities for that spending? Is it on the whim of a minister, fulfilling an election pledge or because one section of society was able to shout loudest? And how do we, as taxpayers, ensure accountability in the delivery of these services? We cannot.
The reality is that our systems of administration are so flawed that the Government often cannot even account for how it spends our money. Research carried out for Amnesty International Ireland by Indecon, for example, revealed that the HSE is unable to account for how the mental health budget is spent every year. Human rights law is about how we set our priorities and ensuring that we then allocate resources to those priorities in a transparent and accountable way.
It is not about taking authority away from our elected representatives or undermining the accountability of our Government to us as voters. The responsibility to protect and fulfil our economic and social rights rests with the Oireachtas, not with the courts. But we can learn from the experience of other states where these rights have been inserted into the constitution or written into the equivalent body of law. The state has been made more accountable to the people, not less. The courts have not set themselves above our elected representatives, directing how the country is run and how money is spent.
It is the Government’s job to respect, protect and fulfil human rights. It is for the courts to step in where it is alleged that there has been a failure by government.
A 2010 German court decision, Hartz IV, showed how this might work. The court was asked to rule on the constitutionality of government legislation setting the level of unemployment and child benefits. The court concluded that provisions of the German constitution gave rise to a right to a minimum subsistence level to ensure human dignity.
The constitution did not prescribe what that amount was, nor was it for the court to do so. That’s the job of the elected representatives and I would not argue otherwise. But it was for the court to examine whether the process of determining the level of benefits was needs-oriented, realistic, transparent and evidence based, and that the process took account of the fact that there was a constitutional right to be upheld. In Latvia, in 2009, the country’s Constitutional Court examined a decision by the government to cut pensions as part of a plan to reduce the budget deficit. The court found that this legislation was unconstitutional.
The court criticised the government for not exploring other, less restrictive, alternatives and noted that minimum essential levels of support for vulnerable groups, in this case pensioners, must be particularly protected. The court also went on to dismiss the government’s argument that it was obliged to impose these cuts as a condition of the loans from international creditors. It’s important to note that the court did not challenge the right of the Government to make those cuts, but instead argued that other, less damaging, choices should have been made.
To those who argue that provisions on resources and economic decision-making are not for the Constitution nor the courts, I would point out that the Irish people voted just a year ago to reject that notion. The EU Fiscal Compact Pact, approved in last year’s referendum, contains a requirement on the State to balance the budget. We are prepared, it seems, to insert these requirements when they are required of us by the European Union to meet financial or budgetary targets, but not to discuss how our Constitution could be strengthened to guarantee the rights of the most vulnerable in Irish society.
Eamon de Valera famously said in 1934, “No longer shall our children, like our cattle, be brought up for export”. But twenty years later, in the 1950s, mass emigration was one of the central features of Irish life. Hundreds of thousands of people left the country and never returned.
Those who stayed, who endured, reared children that would go through the recession of the 1980s; the return of mass unemployment, of RTÉ filming bars in New York at Christmas time filled with young Irish men and women in their 20s looking for work.
I was one of those who left Ireland in the 1980s. In 1986, just over two years after I left school and with no prospect of a future here at home, I signed on for the last time in the old exchange in Gardiner Street in Dublin and used my dole money to buy a ferry and bus ticket to London.
I returned to what appeared to be a very different Ireland in 2003, an Ireland of immigration and prosperity rather than one of emigration and decline. The Tiger was roaring and few people foresaw the rapid crash of recent years and the return of economic decline and emigration.
Every time our economy has a crisis like this we are told we must knuckle down and go through it, pick up the pieces and try to rebuild, without ever wondering whether we really want to rebuild the system and the society that has failed us so utterly, whether we might want something better, something of which we, as citizens, could feel a sense of ownership.
Economically we have been through our greatest economic growth and our worst recession in the space of a decade. We must ask what we will do differently this time.
The fundamental law of our land dates from 1937. It’s a different world today, and we need different rules for it.
Successive governments have made their promises to this country. They have promised to fix the health service, improve education standards, get people back to work, ensure everyone has enough to live on. This Government has promised universal healthcare, based on need not income, a basic premise of the right to health. The intent of Government is there to deliver on these outcomes. The will of the people is clear; more than 80 per cent of Irish people want health and housing rights in our Constitution.
Put these promises in law. Use them to drive reform. Use them to sustain that delivery over time.
Constitutional human rights protections are not “handcuffs” on the Government. They are about establishing a role for the State, a baseline of protection which will be built on over time, and a process for good governance. What would it look like if, in negotiating the options open to the Government, in implementing decisions of the Troika, our Government had had to balance those demands with obligations enshrined in the Constitution to protect fundamental human rights?
Irish governments of whatever political composition, and in whatever economic circumstances we find ourselves, must understand and be bound by a clear obligation to prioritise the rights of people living in this country. Our Constitution values human rights; our political heritage is littered with calls to arms based on the idea of a Republic based on fairness, justice, equality. It is for all of us, our political classes, the media who shape our responses, our judiciary, and most of all our people to recognise that this time we must not simply re-build.
This time we must do more than look backwards through misty eyes and clap ourselves on the back for the courage and vision of those who died for the birth of an imagined republic. This time we must have the courage and vision to radically change and become the republic they dreamt of – the republic our people deserve.