Unelected judges cannot remedy some wrongs only a government can put right

No decision of the Supreme Court ever appears to have been greeted with such widespread public dismay as the Sinnott judgment. The depth of public sympathy provides its own eloquent tribute to the steadfast determination of a remarkable woman, Kathryn Sinnott.

But equally, no decision of that court appears to have been the subject of such widespread misinterpretation among commentators who have unwittingly distorted the significance of a judgment which has, in truth, greatly expanded the scope of Article 42.4 of the Constitution and, indeed, stretched the interpretation of Article 42 to its limits.

While no one contends that the Constitution is not capable of organic development or that it should be stuck (in the late Prof Kelly's illuminating phrase) in the "permafrost of 1937", it is worth recalling precisely how the drafters of the Constitution came to deal with the issue of socioeconomic rights such as education in March and April 1937.

The Departments of Finance and Justice had been kept off the drafting team by Mr de Valera and were aghast at the draft Constitution's provisions dealing with fundamental rights and the courts' power to invalidate legislation. Both Departments fought a fierce rearguard action in an attempt to dilute the fundamental rights provisions and to emasculate the powers given to the courts.

The Secretary of the Department of Justice pleaded with the drafting committee to think again about the new powers given to the Supreme Court, saying: "I dislike the whole idea of tying up the Dail and government with all kinds of restrictions and putting the Supreme Court like a watchdog over them for fear that they may run wild and do all sorts of indefensible things."

But, while the drafting committee would not budge on the issue of judicial review and the role of the Supreme Court, the Department of Finance had more limited success. By this stage in March 1937 the fundamental rights guarantees included many socioeconomic rights, including enforceable guarantees to help the weaker sections of the community.

Finance thought such guarantees would create a "breeding ground for discontent" and might ultimately "recoil like a boomerang on the government of some future day in circumstances not anticipated by the originators".

De Valera's drafting team agreed it was clear that many of these socioeconomic fundamental rights guarantees "could be invoked as to create very difficult situations." The drafting team then moved many of them into an entirely new clause, Article 45, which they headed Directive Principles of Social Policy. These socioeconomic guarantees were intended to be for the "care of the Oireachtas exclusively" and - unlike all the other constitutional rights - were not to be made justiciable or cognisable by the courts.

The one exception was the free primary education provisions of Article 42.4, the only enforceable socioeconomic right in the Constitution. Even then there were worries: Finance thought it "open to the interpretation that it places on the State an obligation to provide free books etc for children" and the Department of Lands was concerned that - with good reason, as it turned out - it might be interpreted by the courts as requiring the State to build more schools and to maintain school buildings.

The last decade has seen the courts give this particular socioeconomic right real teeth. Significant damages have been awarded against the State (and the teaching unions) for breach of this right, and in hundreds of cases the High Court has now made orders ranging from the size of the pupil-teacher ratio for special schools to directing ministers to build secure units for troubled teenagers.

Thursday's Supreme Court judgments are broadly in line with that expansive, avant-garde trend by giving Article 42.4 a much broader interpretation than would have been thought possible even in the halcyon years of the O'Dalaigh-Walsh Supreme Court of the 1960s.

It is not surprising that the court, while simultaneously stressing the wide nature of its powers to protect constitutional rights, indicated some unease with court orders which effectively usurped the role of democratically accountable politicians.

It rightly stressed that in a parliamentary democracy one expected that these were matters which were in the first instance primarily for the Oireachtas and the Government and not unelected judges.

With the possible exception of India, no other Supreme Court has gone as far as the Irish judiciary on the protection of socioeconomic rights.

In 1973 the US Supreme Court rejected the idea that education was a fundamental constitutional right, and the jurisprudence of the European Court of Human Rights in respect of education and remedies such as damages, injunctions and so forth is pitifully underdeveloped compared what has been done in this jurisdiction.

THE South African constitution of 1996 was much admired for its commitment to (sort-of-enforceable) socioeconomic rights, but in the major test case in 1997 concerning the allocation of dialysis machines in hospitals, the South African Constitutional Court pointedly declined to interfere with the status quo.

And adverse comparison of the Sinnott judgment with Thursday's important judgment of the European Court of Justice in Luxembourg regarding health insurance and the internal market in the EU for medical services is so wide of the mark as to constitute the legal equivalent of missing the goal and hitting the football into the stands.

Nor, contrary to the views of some commentators, does Sinnott prevent the Oireachtas or the Government from fullfilling its (non-enforceable) constitutional obligation in Article 45.4 to safeguard with especial care "the economic interests of the weaker sections of the community", including "the infirm, the widow, the orphan and the aged". Every word of the Supreme Court judgments may be taken as an encouragement to the Oireachtas and the Government to do precisely that.

Last year the Labour Party introduced in the Dail Bills to amend the Constitution which have the strengthened the Constitution's equality clause and which would have conferred enforceable constitutional rights to basic healthcare, housing and so forth.

These measures were voted down by the Coalition Government. If Sinnott reopens this particular debate, this tragic case will have served another useful purpose. By all means let us have a referendum whereby such socioeconomic rights will enjoy constitutional protection.

But if this happens, let us also be under no illusion about one key consequence of such a change: it will mean a further significant transfer of power from the elected branches of government to an unelected judiciary which is already by the standards of most Western democracies extremely powerful.

This is the fundamental issue which the powerfully argued and thoughtful judgments in Sinnott force us to confront.

Gerard Hogan lectures in law at Trinity College Dublin