Yesterday the Dáil spent two hours debating a Private Members Bill brought forward by the Independent TD from Donegal, Thomas Pringle.
The Bill was the Thirty-Seventh Amendment Of The Constitution (Economic, Social And Cultural Rights) Bill 2018.
If it is passed it will set in train one of the most radical revisions to the Irish constitution and the law-making process ever to have taken place here.
The stated aim of the Bill is to amend Article 45 of Buncreaht na Eireann by adding to the end of that Article a provision, that the State “shall progressively realise, subject to its maximum available resources and without discrimination, the rights contained in the International Covenant on Economic, Social and Cultural Rights (ICESCR), and that this duty be cognisable by the courts.”
This last part, about being cognisable by the courts, is profoundly important, because up to now, as the accompanying memorandum to the Bill makes clear, any ratification of a treaty (other than an EU treaty) is not directly enforceable before the courts in Ireland as Ireland is a dualist state.
This means that international agreements have the force of law only to the extent determined by the Oireachtas.
What this Bill seeks to do however is restrict the level of discretion currently available to the Oireachtas and essentially mandate or force it to introduce legislation protecting economic social and cultural rights as defined by the international covenant.
This would further weaken the role of the Oireachtas and deepen even further the perception that it is merely a rubber-stamping platform for legislative objectives in which we have no hand act or part in framing.
This is not to say that some of the goals of the International Covenant on Economic, Social and Cultural Rights (ICESCR) are wrong headed, such as the obligation on states to provide decent housing and education and good working conditions.
But major problems remain, and they often create profoundly counter-productive outcomes. Take the ‘right’ to housing. As John McGuirk has pointed out on this platform, if such a provision to be made a constitutional right then it could lead to disastrous outcomes for the people who need it most.
And what about the so called ‘right’ to abortion? Yes, we now have abortion provision here in Ireland and yes, the Oireachtas can change or amend the legislation surrounding how and when it can be accessed.
But what if the International Covenant on Economic, Social and Cultural Rights brought with it a demand that ‘all barriers’ to abortion access be removed? Where would that leave the Oireachtas? It would be obliged, even more intense international pressure than already exists, to bring forward legislation to give effect to this.
This was made clear in the submission made by the Irish Human Rights and Equality Commission to the operation of the ICESCR in 2015:
“In the context of ICESCR, the IHREC notes the Committee’s General Comment No. 14 which reminds States that the ‘realisation of women’s right to health requires the removal of all barriers interfering with access to health services, education and information, including in the area of sexual and reproductive health.”
So, if this Bill is passed then it is likely that we will be inserting a wide-ranging constitutional obligation demanding or at the very least facilitating the expansion of abortion access barely three years after we removed the Eighth Amendment.
Anyone recall how it was said at that time that ‘the constitution is no place to deal with abortion’?
We should be under no illusions about the impact this Bill will have. If passed, it would bind the Oireachtas, and by the extension, the rest of us, to ‘progressive’ concepts of rights and culture that are as dangerous as they are misleading.
The government, for its part, did not actively oppose the Bill today but decided instead to put forward its own proposal, to the effect that it will debated again this day eighteen months, “to allow for greater analysis of the complex issues concerned and for such considerations to be taken into account in further scrutiny of the Bill.”
This demonstrates a welcome degree of caution. It also creates a bit of breathing space within which citizens can be made aware of the profoundly radical agenda that lies at the heart of the Bills objectives.