Human Rights, Constitutions and Austerity Professor Aoife Nolan

What is the Purpose of Putting Economic and Social Rights (ESR) in a Constitution? The purpose of having economic and social rights (or, indeed, any rights) in a constitution is to serve as a mandate for ALL branches of government. – “The State”/“organs of state” who is/are obliged to give effect to constitutional rights under the Irish Constitution is/are made up of legislature, executive and judiciary Constitutional rights (including ESR) should provide framework for all areas of state action and policymaking – not just ‘traditional’ HR areas

What is the Purpose of Putting Economic and Social Rights (ESR) in a Constitution? The primary responsibility for protecting and implementing ESR lies with the elected branches of government – Practical: these are the branches with the ‘purse’ and the ‘sword’ – Legitimate: these are the branches that are directly accountable to the electorate Our domestic experience shows that the Directive Principles (Article 45) which have clear implications for the enjoyment of ESR have not served as effective mandates for state action – Issue of lack of enforceability

A Misplaced Obsession with the Courts Whether domestically or comparatively, the constitutionalisation of ESR has NOT entailed courts assuming the role of primary law or policymakers with regard to economic and social rights policy issues. – This is true even of countries where there is extensive ESR constitutionalisation and adjudication →This is also true in contexts of economic crisis and austerity That is not to say that judicial decisions won’t impact on social and economic policy or distributive justice issues but they do so already! (E.g., decisions on tax law, Re Article 26 of the Constitution and the Health Amendment Bill (No.2) Bill 2004 decision)

So, What Do the Courts Do? As with constitutional civil and political rights, the Courts have a reactive role with regard to ESR protection → Courts only enter the picture in the case of governmental failure to give effect to ESR. The judicial function re. ESR is – To hold the elected branches of government to account for their ESR obligations under the Constitution – To ensure that ESR are vindicated and that ESR-right- holders are provided with effective remedies where violations occur

What Do We See Elsewhere? Hungary: A measure directed at implementing cuts to social benefits required by the IMF was found to be ‘unconstitutionally disproportionate’ (Constitutional Court, Decision 43/1995) This was because: – The measure failed to protect vulnerable groups – Benefits and their related expectations could not be substantially altered overnight or without sufficient reason, thus special reasons were needed for changes to be instigated without a transition period. – With regard to social security benefits where the insurance element has a role to play, the constitutionality of the reduction or termination of benefits should be evaluated according to the criteria of protection of property.

What Do We See Elsewhere? Latvia: Legislation providing for reductions in pensions was passed in an effort to reduce the State’s budget deficit (Constitutional Court, Case No (2009)). The Court found the law unconstitutional and in violation of an individual's right to a pension as: – State hadn’t considered other less restrictive alternatives – Law hadn’t provided an adequate transition period before new scheme took effect – Law hadn’t included a plan for future compensation of the reduced pensions Court noted minimum essential levels must be guaranteed irrespective of resources and vulnerable groups such as pensioners must be particularly protected Court Court stated that loan conditions ‘cannot replace the rights established by the Constitution’.

What Do We See Elsewhere? German ‘Hartz IV’ Decision (1 BvL 1/09, 1 BvL 3/09, 1 BvL 4/09, 9 February 2010) Case required the Court to scrutinise the process by which the legislature set levels of welfare and unemployment assistance as part of broad reform of social welfare system The Court held that the fundamental right to the guarantee of a subsistence minimum that is in line with human dignity from Article 1.1 of the [German] Basic Law in conjunction with the principle of the social welfare state contained in Article 20.1 of the Basic Law ensures to each person in need of assistance the material prerequisites which are indispensable for his or her physical existence and for a minimum of participation in social, cultural and political life.

German ‘Hartz IV’ Decision cont. Court ruled: Constitution doesn’t specify the exact level of benefits. Court’s role is to ascertain whether the benefits are ‘evidently insufficient’ and to examine ‘the bases and of the assessment method of the benefits to ascertain whether they do justice to the objective of the fundamental right’. Court looked at whether the legislature: – Had chosen a fundamentally suitable method of calculation for assessing the subsistence minimum; – Had completely and correctly ascertained the necessary facts; – Had kept within the boundaries of what is justifiable within the chosen method and its structural principles in all stages of calculation, and with plausible figures. Required legislature to disclose the methods and stages of calculation employed in the legislative procedure

Most Recently: 1 BvL 10/10 of German Federal Constitutional Court The provisions governing basic cash benefits according to the Asylum Seekers Benefits Act are incompatible with the fundamental right to a minimum existence, protected as human dignity in Article 1 sec. 1 in conjunction with Article 20 sec. 1 of the Basic Law – The benefits were evidently insufficient because they had not been changed since 1993 despite considerable price increases in Germany – The amounts provided had not been comprehensibly calculated – It was not apparent that a realistic, needs-oriented calculation had been made that served to presently secure the recipients’ existence.

So, Where Might Constitutional ESR Get Us? Require that the State consider the position of the most vulnerable in its law and policymaking with regard to economic and social issues and ensure that the protection of those groups be prioritised Establish ESR as a factor to be taken into account in (a) negotiating ‘bail-out’ terms and (b) in domestic economic decision-making Enable judicial scrutiny of the bases and the assessment methods for levels of ESR-related services to ensure constitutional compliance Establish a minimum beyond that ensured by the ECHR Act 2003 (and perhaps the Constitution) that must be guaranteed irrespective of resources Primarily procedural protections but also substantive elements!

Once More With Feeling… What Are Constitutional ESR For? – The ultimate function of constitutional economic and social rights is to make clear the priorities that government decision-making on policy, law, resource allocation should reflect – in good times and bad Bank bailouts vs. the vulnerable? Lack of reform of tax levels for high-income earners who benefitted greatly from the boom vs. cuts to services and social welfare supports on children, older persons, people with disabilities?

A Final Thought We are prepared to constitutionalise (and hence render the state accountable for) certain goals with regard to resource-related decision-making (e.g., ‘balanced budget’ requirement under EU Fiscal Compact). But we aren’t willing to constitutionalise rights protections/mechanisms by which the State can be held responsible for ensuring goals related to fundamental human rights. Why? Why are we prepared to constitutionally copper-fasten austerity but not to constitutionally entrench rights that would mitigate serve to limit the impact of austerity measures on the most vulnerable?