A rights-based approach to social problems does not mean difficult problems go away, writes Rory O'Donnell
The idea of social and economic rights is a prominent theme in debates on Irish public policy. There are highly divergent views and expectations about the potential for a "rights-based approach".
Some argue that the creation of legal or constitutional social rights is the key to securing social inclusion and equality. Others reassert that it is for the Oireachtas, and not the courts, to make these decisions and cast doubt on the validity of social rights.
In its 2003 strategic overview of Irish economic and social policy, NESC argues that a more productive dialogue on social problems and rights is possible.
This requires two things: first, some recognition of the complex issues involved and, second, exploration of the relation between rights, public policy and institutions.
There are complex philosophical, political, legal and practical issues in the identification, creation, legislation and vindication of rights, especially social rights. It seems necessary to distinguish between moral rights and legal rights. There is tension between the "air of absolutism" that can attend the public discussion on "rights" and the modern consensus that it is not possible to establish rights on universally valid foundations.
Assertion of rights cannot provide an escape from scarcity, trade-offs, balances and compromises, including conflicts between rights themselves.
Commitment to social rights does not necessarily entail commitment to a bill of rights or insertion of social rights in the Constitution. Indeed, there are a variety of legal, policy and institutional methods that can secure social rights.
There are additional tensions that can arise when the courts are used as the main instrument to enforce social rights. Courts produce occasional, after-the-fact, expensive and selective instructions when they find that a public body has not given citizens their rights. This has a role in any system subject to the rule of law.
But good policy and effective implementation require continuous deliberation among a range of stakeholders. While courts in many countries traditionally specified operating rules for public bodies that are found to have violated rights, standards and outcomes are becoming the focus of the best policy systems.
There are three possible responses to these complexities. The first is to ignore or deny them. This will yield a naïve view of rights and could ultimately discredit the idea of rights.
The second is to see them as an external critique of rights, as reasons to reject the idea of rights. This ignores the fact that rights have proved resistant to philosophical scepticism and will not disappear from public consciousness so easily. Rights are seen as part of our identity as members of democratic societies and, where democracy does not exist, rights are cherished as virtually synonymous with it.
The third response is to see these complexities and tensions as within the rights tradition. This can yield an approach to rights which is neither naïve nor cynical.
We need to find an approach to rights that can both recognise these complexities, particularly the fact that the meaning of a right is always dependent on the context, and still acknowledge the widespread belief that rights ought to be respected. But rights cannot always deliver the simplicity that is sometimes seen as their main advantage.
Experience worldwide shows that the reality of rights depends on the creation of effective institutions and policies. The belief that a right may be established by simply proclaiming it is no longer a serious position to hold.
A right may be established by persuading society that citizens should receive a certain good or service. But it is also common for social rights to emerge from the creation of institutions and policies.
For example, this process is demonstrated by the development of Rape Crisis Centres. A gap in existing health and police services was identified. Institutions were created to provide these services and to demonstrate how they could be provided.
This, in turn, led to widespread expectation that such services should be available. These services, and the types of respect implicit in them, are now seen as a right.
Consequently, the challenge of social rights involves the challenge of creating effective policies and institutions to set and achieve high standards of service for people in need.
This is how the rights agenda is evolving in the US and other countries. It no longer means courts setting detailed rules on how public bodies should allocate resources or do their work.
Instead, it involves a process for setting standards, monitoring outcomes and assisting service-providers and their clients to achieve continuous improvement.
The NESC approach to social rights has definite implications for the important issue of disability. It suggests that a focus on justiciability or non-justiciability could distract all parties from some significant issues.
It is widely agreed that what we need in Ireland now is: needs assessment, transparent and reasonable allocation of services and resources, service standards, service co-ordination, monitoring, continuous improvement and "reasonable accommodation" of people with disability to allow them much greater participation in work and society.
That approach is about rights (understood in the way described by NESC and others), but is not the conventional "rights-based approach". Whatever role is given to the courts, we still face the challenge of designing, delivering, co-ordinating, monitoring and improving those mechanisms and services.
Rory O'Donnell is director of the National Economic and Social Council. The NESC is hosting a conference today in Dublin entitled "Deliberation and Public Policy" to mark the 30th anniversary of its establishment