Transcript Document

Human Rights, Constitutions and
Austerity
Professor Aoife Nolan
[email protected]
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-rightholders 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.2009-4301 (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?