It is the Government's job to protect rights, not the courts

LEGAL OPINION:Research from the Centre for Economic and Social Rights has warned that austerity measures are undermining the fundamental rights of people living in Ireland.

Yet, while the Government’s Constitutional Convention met for the first time on December 1st, it is disappointing to see that nowhere in its agenda is there space for discussing how the Constitution could be amended to better protect economic and social rights such as access to healthcare and adequate housing.

We need to be clear from the start. The primary responsibility for protecting and implementing economic and social rights rests with our elected representatives, not the courts. These are the people with a democratic mandate; these are the branches of government accountable to you and I as voters.

But the evidence from other jurisdictions where these rights have been written into the constitution, or equivalent body of law, is also clear. It has not led to courts assuming the role of policymakers, nor to an undermining of democratic accountability; if anything, it has strengthened the accountability of the state to its citizens.

As with civil and political rights, the courts have a reactive role with regard to the protection of economic and social rights. The Government’s role is to protect, promote and fulfil those rights. Only when it is alleged that it has failed to do so, do the courts become involved. It is the judicial function to hold the government to account, to ensure that economic rights are protected and to make certain that those whose rights are violated or not protected, get redress.

As part of its efforts to deal with the economic crisis, the Latvian government introduced pension cuts to help reduce the budget deficit. But the constitutional court found in 2009 (Case No. 2009- 43- 01) that the new legislation was unconstitutional.

It 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 obtaining loans.

A well-known 2010 German decision (the Hartz IV decision), spells out both what the court felt able to do and what it judged was clearly the business of the legislature. In question was the process by which the government set levels of welfare and unemployment assistance as part of a major overhaul of the German social welfare system.