#UNIRL Update No. 6 : Minister Sherlock and Irish Committee Respond to ICESCR Committee

ICESCRThis is a summary of the response of Minister Sherlock and the Irish Delegation to the Committee on Economic, Social and Cultural Rights. [Finalised. Where the Government did not respond directly to a question, this is to be provided for in a written answer post the meeting and within 48 hours. Concluding Observations to be issued within 10 days.]

General response: Minister Sherlock

Between 2007 and 2015, our expenditure on social protection increased in % terms by 33%. That is how Ireland responded to issues of austerity. In terms of the lessons learned, may discuss this later.

Minister Sherlock also discussed overseas aid. It will be challenging for Ireland to reach the 0.7% target.

Health, education and social welfare spending were “as best protected” as possible during the recession. The social welfare budget was increased by €4 billion during the recession. The number of teachers increased throughout the period of the recession. Ireland sought to ensure that dilapidated and pre-fabricated school buildings were replaced by bricks and mortar. Every child, no matter their background or religion, “as citizens would be taught in classrooms that would be conducive of learning”.

The Constitution is a living document. The State guarantees not to endow any religion. Article 44 of the Constitution is interpreted harmoniously as regards equality of treatment. The Irish Supreme Court has consistently said that all persons are guaranteed freedom of conscience and religion, to all persons, and to those of no religious persuasion.

In spite of the difficult decisions, Ireland has done its level best to ensure we’ve lived up to the spirit of ICESCR. We will endeavour to ensure all our citizens to flourish. Government policy is now conducted in a much more collaborative way. Ireland is more collaborative as regards governance and ensure we are “compliant with and adherent with” our international obligations. Ireland will continue to progressively realise economic, social and cultural rights. Minister thanks the Committee on Economic, Social and Cultural Rights.

Colin Wrafter (Director of Department of Foreign Affairs, Human Rights Unit)

Ireland has not yet ratified the optional protocol (but have signed this document). Ratification will only be done after screening of obligations and appropriate government consultation. This is to ensure that State can comply with obligations once ratified.

The Constitutional Convention was an “innovative” method of assessing constitutional issues. The Government held referendums on marriage equality and age of Presidential candidates. The Convention recommended the insertion of ICESCR rights, and these rights are cognisable by the Courts. The Government’s response to this recommendation will be given shortly.

Geraldine Luddy (Department of Health) (Abortion Matters)

Acknowledged that the law in Ireland on abortion is very limited. The 8th amendment was inserted in 1983. Abortion is prohibited unless a woman’s life is at risk, and that risk can be averted by termination of her pregnancy. Once the clinical decision is made, that a woman has a right to abortion, she is then entitled to that termination. In this particular case, the right to life of the woman takes precedence. In terms of rape, incest, fatal foetal abnormalities, a further referendum will be required.

Ireland has free services as regards post-abortion counselling. Migrant women, and in particular women “in our asylum centres”, the Crisis Pregnancy Programme have drafted guidelines to ensure that women are “aware of their rights in relation to the termination of their pregnancy”. Proper referral pathways are also been considered by medical practitioners.

Paula O’Hare (AG’s Office-Justiciability and Incorporation of ICESCR)

Recognises that the Committee contains a significant number of (former) Supreme Court judges. As regards why we would incorporate ECHR and not ICESCR?: Ireland is not distinguishing between civil and political rights, and economic, social and cultural rights. However, we cannot assess the resource implications of providing justiciable economic, social and cultural rights.

The context of ICESCR is mainly incorporated through legislation (i.e. social welfare acts, housing acts, health acts). These laws are completely justiciable before the Irish courts. People can challenge non payment of a benefit within structures and systems. Nothing about this is barred from the courts on the basis that the content of the right giving rise to litigation is an economic, social and cultural rights. Procedural fairness as regards welfare (etc.) and other decisions are also justiciable (fair process, taking into account rational considerations, duty to give reasons for decisions). The Irish courts deal with these issues.

Irish judges are appointed and have minimum standards of practice. Everything mentioned above, judges are trained and expert in these issues. Judges undertake to do further training as presidents of their courts request them to do. This is for judges to decide. There is no judicial resistance to hearing of economic, social and cultural rights. There is deference by the judiciary as regards the role of the Executive and Legislature in matters of economic, social and cultural rights.

There is no judicial resistance to hearing of economic, social and cultural rights. There is deference by the judiciary as regards the role of the Executive and Legislature in matters of economic, social and cultural rights. In the last Supreme Court decision on housing (ed. note, case of O’Donnell) the Supreme Court did not make reference to ICESCR. However, the Supreme Court did note constitutional concepts of human dignity.

The Law Reform Commission is examining (as part of their work programme in 2015) the extent to which Irish government departments comply with international human rights obligations.

Response of ICESCR Committee Chair: While the Covenant provides for progressive realisation, it also imposes on State parties various obligations that are of immediate effect. Please keep this in mind. Certain rights under ICESCR are of immediate effect, and the party must take immediate steps to realise these rights (under General Comment No 3 & 9). 

On Tuesday, 9 June, Paula O’Hare responded to the Chairperson’s question responding to General Comments No 3 and No. 9. There must be access to redress for discrimination, that is not subject to progressive realization. There is explicit statutory protection under the Employment Equality Act & Equal Status Act that complies with our obligations under ICESCR. If the Committee disagree with this, then reference can be made to Article 40.1 of the Constitution, an article that “all Irish people are proud of….this has governed the country well since its enactment…other articles of the Constitution must be governed by this duty..” All of this is without prejudice to the fact, the Constitutional Convention has recommended greater inclusion of ICESCR, and this is still a live question that the Government has yet to consider.

National Minimum Wage

Minimum wage is high by international standards. The Low Pay Commission will be in operation. No plans to reduce exemptions to minimum wage, close relatives/apprentices. Family relationships reflect family  and cultural practices.

Deaglán Ó Briain, Department of Justice (Racism, Disability, Legal Aid, Magdelene Laundries, Direct Provision, Gender)

National Action Plan on Racism up to 2008 is still being implemented. Racism is a problem that the Irish government and police force takes seriously.

Ireland is not necessarily in favour of an over-arching human rights plan. Would this plan “add value”?

In terms of particular vulnerable groups (travellers, Roma, persons with disabilities), the Government are introducing inclusion plans. This is been passed in an open way. The case of two Roma children, wrongly taken from their parents, the Irish government is planning to ensure that this cannot take place again.

In terms of the legal aid scheme, legal aid will only be granted to the Refugee Appeals Tribunal. However, legal advice can be provided to persons as regards the social welfare appeals office. The purpose of not granting legal aid before various tribunals (social welfare, employment etc.) is that they are more informal and not necessary to seek legal advice and aid.

Ireland has a robust equality infrastructure, and there are no plans to widen the grounds for prohibited discrimination under the Employment Equality Act or the Equal Status Act.

As regards the Magdelene Laundries, finance has been provided to persons in these laundries, regardless of whether any abuse took place. The payments have not come to a stop. A substantial amount of money has been expended on this redress scheme. The “group working with the largest number of survivors” are not interested in bureaucratic processes, or further inquiries. The Government have but forward “a generous, eh, a humane” scheme as regards Magdelene survivors [My note: Direct Quote of misspoken official!].

A working group has been set up under a “High Court judge” as regards direct provision. Direct provision was never intended to be a solution and we recognise issues. The report of the Working Group, “we understand”, will have recommendations on a right to work, right for asylum seekers to prepare their own food etc.

Tuesday, 09 June 2015

There is an increased gender pay gap between 2011 and 2012 on the provisional figures available to the Dept of Justice. Within the private sector, the gap has remained unchanged at 20%. The gap continued to decrease in a number of areas: defence, social work, administration. There is a 29% gender pay gap in the education sector, and the State is currently considering this issue.

The  Tainaiste has stated that she will consider introducing two weeks paid paternity leave in the forthcoming budget.

Mr O Briain provided the Committee with figures on domestic violence prosecution statistics, as well as orders under the Domestic Violence Act 1996. Ireland is committed to publishing new legislation on domestic violence by the end of the year. The State is also seeking to ratify the Istanbul Convention on Domestic Violence in the near future.

The State has achieved its targets for public sector employment of persons with disabilities. In the private sector, a different approach is needed, as regards support and facilitation of private sector employers to ensure they can employ persons with disabilities. Ireland will not ratify the UN Convention on Persons with Disabilities until the State is sure that it can comply with its obligations. This issue is not a resource issue. The real issue is legislative issues, currently being addressed as regards mental health legislation and disability rights legislation, getting rid of outmoded language from our electoral laws. The objective is to bring a road map to government with time-scales to completing ratification of UNCRPD.

In terms of asylum seekers right to work and cultural life. “I have no doubt” the right to work will be dealt with in the forthcoming report on the direct provision. Sporting and other organisations have been involved in ensuring access of minorities to cultural life.

In terms of Traveller ethnicity, this issue is being addressed and explored by the Minister for State for Equality. Travellers self identify as Irish, but a distinct culture and identity and hugely important that in terms of self-esteem for Travellers. Ireland needs to engage in process of examination to see what issues remain to possible recognition.

Antoinette Connolly (Department of Finance?)

Economy is recovering and revenue is increasing. The Irish economy is still not back to where we were. Our fiscal policies are still aimed at reducing our deficit. In Budget 2015, the Irish government began to increase expenditure. There has been some modest increase in budgets. There were also a number of “tax measures” to provide “tax reliefs” valued at €500 million. There could be up to €1.5 billion in “fiscal space” to provide increase in government expenditure and also tax adjustments. Ireland still needs to reduce our deficit, but in the period to 2020, there will be scope for fiscal adjustments and expenditure increases. As of now, it’s too early to determine what these expenditure adjustments will be.

Departmental Representative (apologies didn’t catch a name) (Housing)

In terms of social housing, Ireland “responded to social housing need in the crisis”. There is a recent social housing strategy presents a fundamental effort to deal with the housing list. There will be 35,000 new housing units to be delivered. Other reforms in areas of social housing, with €1.5 billion of housing targets. “State is responding to housing need in Ireland”.

The Private Residential Tenancies Act 2004 provides for secured tenure for four years-Part 4 tenancy rights (once initial 6 month period finished). The Private Residential Tenancies Board “have initiated”  an “extensive” advertising campaign informing landlord and tenants of their rights and obligations. While rents have been rising in Ireland, the core response of Government is to enhance supply. Issues of rent certainty is under consideration. The core focus of the government is to ensure that the rent benefits of landlords, tenants and all others in society.

Jim Wells (Social Protection)

In terms of the lessons for Ireland:

How have we dealt with austerity and the economic crisis?

The crisis was one of unemployment. The social welfare system acted as an “automatic stabiliser” in preventing poverty and growing economic inequality. Ireland had invested heavily in social protection prior to the crisis, with an emphasis on providing an adequate standard of living. The spending on social protection doubled between 2000 and 2007. This created a “robust, comprehensive” welfare system. Between 2007 and 2015, social protection system increased by 1/3, “that’s the bottom line, we spent more money”. The number of recipients increased and the system responded to this. A quarter of the Irish population was lifted out of poverty due to social protection, social transfers. Ireland was 2.5 times more effective in preventing poverty than Portugal, Italy and Greece. This data highlights the crucial role of social protection in preventing poverty. The Irish social protection system is one of the best in Europe and this is a key lesson from the recession.

Ireland had to make trimmings to a number of expenditures due to the “discretionary measures that Ireland were forced to take…” Social Impact Assessments are utilised throughout budgetary decision making processes. The 2014 Social Impact Assessment of Budget 2014: there was a 0.8% reduction in living standards. Only 1/4 of the loses were from welfare cuts. The remainder of the reduction was due to property tax, which had “regressive effects on lower income households”. However, in 2015, the negative impact of 2014, was almost wiped out with a 0.7% increase in living standards. This was in the year of water charges. “Water charges, by their nature are a regressive measure”. It is expected that Budget 2016 will have a similar increase in living standards. The Government spoke to the Community and Voluntary Sector about these issues.

At the end of the crisis, there has been slight increases between 2009 and 2015 of core social welfare payments. Measures were adopted “protected the most vulnerable”.

At the heart of our economic crisis, our unemployment rate went from 4% to 15%. Since then, major progress has been made, with unemployment is below 10% “with further falls expected”. In terms of long-term unemployment, there has been a larger fall in numbers in long-term unemployment. This was due to the government’s creating signifiant employment pathways to work. The Government has created a range of active labour activation measures. The rate of in-work poverty is 5%, and has fallen during the crisis. Significant social supports have been put in place (child care, social transfers, back to work payments) to enable persons realise their right to work.

Ireland has a long history of setting and meeting poverty targets in terms of adults and children, and their are positive signs that jobs are being created. Ireland has dynamic targets on poverty prevention.

Colm Desmond (Health Questions)

Disability services are governed by the value for money report. There is now a new model of support for persons with disabilities and has been a decrease in the number of persons with disabilities in congregated settings. This is subject to ensuring a person can be properly supported in the community. The reforms in the Congregated Settings Report are currently being implemented. Services for disabilities can be inspected by HIQA since 01 November 2013. The voluntary service providers in congregated settings must have their personal dignity and privacy met under agreements with these providers. HIQA inspects on rotation, and HIQA has reported many elements of good practice. The HSE must adopt action plans for a number of centres where concerns about health and human rights of residents were in question. The Aras Attracta centre was inspected by HIQA and passed muster. However, after the Prime Time report, a HSE 6 step programme was put in place to safeguard vulnerable persons at risk of abuse. The outcome of Aras Attracta, regrettable as it was, will ensure that disability standards will be implemented in full. Due to ongoing inquiries, State does not want to say anything further.

The Disability Value for Money Report was “widely welcomed by the disability sector”

The State’s mental health services are “progressively moving” towards a community care model. The Government are also seeking to look at other important mental health issues: eating disorders etc. The Government has provided “very substantial funding” for mental health. The government’s system of mental health gets “quite a bit of support” from mental health advocates.

On the question of free and informed consent of mental health treatments, will be moving away from a paternalistic view of mental health treatment. Therefore, a stronger voice for the individual is anticipated. There will be safeguards to involuntary patients as regards those who are detained voluntary. There will be changes as regards considering status of different patients. The Assisted Decision Making Capacity legislation is also progressing to provide changes.

Drugs and medicines are made available through the medical card scheme, or through the Drugs Payment Scheme. The question (posed yesterday) was where an individual needs an expensive drug, which the State is not in a position to cover the cost. The HSE is in a position to negotiate with pharmaceutical companies to make particular, if rare, treatments available. State needs to be mindful of best use of funding.

Female Genital Mutiliation is an issue that the State “does need to address”. A special clinic has been established in Dublin to deal with these issues. There is an estimate of about 3,700 persons who are victims of FGM. The State’s dealing with FGM is “as good as is possible in the circumstances”.

It is acknowledged that Travellers health outcomes are not the same as many within Irish society. The HSE has adopted strategies and plans to deal with Traveller health outcomes.

On health services reform generally, the Universal Health Insurance policy is governmental policy. The most immediate manifestation to this, is to extend free GP treatment and medical cards to all children under 5, followed by extension to all persons over 70. The Government has already increased the coverage of medical cards “very substantially” in a time of economic recession.


Tulsa (Child and Family Agency) have a statutory duty to ensure proper education. The number of children who were home educated was just over 1,000 children. A register of such children is maintained.

Government is aware of patronage and pluralism in primary education and the need to provide greater diversity. In relation to new schools, between 2011 and 2016; – 20 schools established are muti- denominational. In areas of stabilised population, a process of divesting, in terms of surveying parents. There have been 8 schools divested to date.

Traveller education is now mainstreamed.