Cassandra Voices

Tag: socio-economic rights

  • Socio-Economic Rights Must Be Vindicated

    The noted American historian, and Putin critic,Timothy Snyder’s recent text Our Malady: Lessons in Liberty and Solidarity (2020) is a cri de coeur against almost non-existent healthcare rights in the U.S. – which the pandemic brought into sharp focus. The cossetted Yale professor saw the light, as his country failed to cope.

    Our Malady is about health care, but it is also an example of confessional literature about how health care provision, or lack thereof, begins to affect even those that are putatively privileged. The pandemic laid bare the limitations of the neoliberal order. But it is not just about healthcare, and not just about the United States, as the pandemic lays waste to income structure, life expectancies and perhaps a whole species’ expectations of the good life.

    We urgently require legal arguments in terms of justiciability, resource allocation and clarification of the limits and extent of judicial powers to enforce social and economic rights.  These arguments are no longer of cautious relevance given the gathering storm we confront. This is not the time for legal casuistry, or politeness either.

    https://vimeo.com/426871719

    In terms of the consensus as to what these rights are let me sketch a list, all of which are denuded or under threat:

    1. A right to adequate nutrition.
    2. A right to clean drinking water, and for bathing.
    3. A right to basic health care and, in particular, to emergency treatment.
    4. A right to housing or shelter; alongside a complimentary right to resist arbitrary eviction.
    5. A right to a minimum or adequate standard of living.
    6. A right to social security, leading to universal basic income.
    7. A right to a healthy environment, including air quality.
    8. A right to education, up to third level.
    9. A generalised right to dignity and self-expression in terms of expressing one’s identity.
    10. A right of a country to development.

    Crucially, there is a lively discussion as to which of such rights must be progressively realised, and which have a minimum content that are immediately realisable. Thus, the right to health care, both domestically and internationally, is progressively realisable, subject to resources.

    A right to emergency health care, however, is a minimum content right with direct enforceability, if justiciable.

    Similarly, the right to shelter is progressively realisable, but the international consensus is that forced or arbitrary evictions are directly enforceable again, if justiciable.

    Social and economic rights, in fact, have a long intellectual pedigree. Indeed, they are even evident in Thomas Hobbes’s enumeration of Natural Rights. Ancient Greek philosophers also identified such fundamental natural rights as inherent to membership of a polity.

    Eleanor Roosevelt with the UN Universal Declaraion of Human Rights.

    The proposal to include them in the UN Charter was aborted by representatives of the developed world. They were reconstituted in the 1966 UN Covenant on Civil and Political Rights, but with limited effectiveness, even allowing for recent rights of individual petition. Now amidst a growing convergence between developed and developing societies in the neoliberal order, we are increasingly all in the same boat.

    Right to Life

    The Indian Supreme Court decision in Olga Tellis v. Bombay Municipal Corporation concerned public interest litigation by thousands of pavement dwellers of Bombay city.

    The plaintiffs argued that they could not be evicted from their squalid shelters without being offered alternative accommodation. They further argued that they had chosen a pavement or slum to live because it was nearest to their place of work, and that evicting them would result in deprivation of a right to a livelihood.

    The petitioners were to be evicted under the Bombay Municipal Corporation Act, which empowered the Municipal Commissioner to remove encroachments on footpaths or pavements over which the public have a right of passage or access.

    Olga Tellis, Ex Editor of Sunday Observer & Asian Age. Source YouTube.

    The relevant article of the Indian Constitution (modelled on Article 45 of the Irish Constitution) excludes the Directive Principles from judicial cognisance, yet the court opined, in finding that the right to life itself was informed by the Directive Principles; that Article 39(a) of the Constitution, which is a Directive Principle of State Policy, provides that the State shall, in particular, direct its policy towards ensuring that citizens have the right to an adequate means of livelihood.

    The court concluded that if there is an obligation upon the State to ensure citizens enjoys an adequate means of livelihood and the right to work, it would be an exercise in pedantry to exclude the right to livelihood from the content of the right to life.

    The judgement thus expanded the right to life guaranteed under Article 21 of the Indian Constitution to include within its scope the right to livelihood, which in this context translated into the right to be allowed to remain on the pavements.

    More remarkably in People’s Union for Civil Liberties v. Union of India & OR’s (2003), India’s Supreme Court derived the right to food from the right to life and ordered that that the Famine Code permitting the release of grain stocks in times of famine be implemented.

    The court ordered that the grain allocation for the food to work scheme be doubled and financial support for schemes be increased; that ration shop licensees stay open and provide the grain to families below the poverty line at a set price; that publicity be given to the rights of families below the poverty line to grain; that all individuals without means of support (for example older persons, widows, disabled adults) be granted an Anthodia Anna Yojana ration card for free grain; and that State governments should progressively implement the mid-day meal scheme in schools.

    In terms of stretching the bounds of acceptable judicial intervention this case could not be more dramatic, as the Court utilised mandatory policing orders and even inspectors in the field to ensure compliance with their orders, which have spread nationwide.

    With inflation in food prices already evident in the wake of the pandemic, will our judicial authorities oblige often reluctant, and even compromised, executive authorities to intervene in the market, and avert shortages? And in Ireland will the Court overcome a reluctance to vindicate a right to housing as part of a generalised right to life?

    Canadian Dissenting Opinion

    In Canada a similar conclusion that social and economic rights inform the content of the right to life is evident in a dissenting opinion in the Canadian Supreme Court case of Gosselin v. Attorney General of Quebec (2004).

    The case concerned the denial of unemployment assistance to those under thirty-five, who could do a form of workfare in lieu. The court addressed issues pertaining to discrimination and the right to life and security of the person under the Canadian charter. The majority found the law justifiable and in Thatcherite terms as an incentive for the young to work. “Get on your bike”, as Norman Tebbit would put it.

    Judge Louise Arbour dissented however, as indeed did Mr Justice Lahreux Herbe. Arbour J. derived a right to minimum social assistance from the right to life and indeed security of the person under Section 7 of the Charter, and drew a prudential distinction between corporate-commercial economic rights and economic rights fundamental to health and human survival.

    He indicated that the appeal makes it obvious why ‘those economic rights fundamentals to human life or survival’ should not be treated as akin to corporate commercial economic rights.

    Simply put, the rights at issue here are so intimately intertwined with one’s basic health (and hence ‘security of the person’) – and, at the limit, even of one’s survival (and hence ‘life’) — they could readily be accommodated under section 7 rights of ‘life, liberty and security of the person’, without the need to constitutionalize ‘property’ rights or interests.

    Notably, Arbour J also links the right to health to the guarantee of security of the person. He argued the expansion of the right to life in this fashion gave content to this right, which is to be protected in such a fashion so as to invest the State with a positive duty to protect life.

    Little shop on the main street of Dukathole, South Africa.

    South African Experience

    It might be noted that the South African experience is different in that social and economic rights are textual and thus inherently justiciable, with the word dignity mentioned in several places.

    The relevant housing provision explored in Government of the Republic of South Africa v Grootboom (2000) is Article 26 whereby:

    Everyone has the right to have access to adequate housing. The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right. No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.

    The South African Constitution also specifies an immediately enforceable specific minimum right against forced or arbitrary evictions. Such a right entails:

    1. Meaningful consultation prior to eviction.
    2. Alternative relocation if eviction proceeds.
    3. No eviction to proceed unless the land is being put to productive use.

    Nonetheless, the South African Courts have set down limits for their review and in general such rights are in the text of the document to be progressively realised.

    In Subramani v. Minister for Health (1997) for example the South African Supreme Court was very explicit about the large margin of discretion it would give to the State to set its budget.

    It also states that the court: ‘will be slow to interfere with rational decisions taken in good faith by the political organs and medical authorities.’

    Sachs J went further stating that:

    In open and democratic societies based upon dignity, freedom and equality, the rationing of access to life-prolonging resources is regarded as integral to, rather than incompatible with, a human rights approach to health care.

    However, if decisions taken are deemed unreasonable then the South African courts will step in. Thus, in the Minister of Health v Treatment Action Campaign (2002) and in Azbuka and Others v City of Johannesburg (2009) the extent of the right to water was litigated in South Africa after the case arose in Soweto.

    Justice Oregon writing for the Constitutional court found the City’s free basic water policy of twenty-five litres per person per day to be reasonable under section 27(1) of the Constitution, and that the introduction of prepaid water meters to be lawful, procedurally fair, and not unfairly discriminatory.

    The Court noted that the City was under no constitutional duty to provide any amount of free water, but merely to take reasonable measures to progressively realise that right. It said it could not fix a minimum core amount, as this would vary in terms of personal and local circumstances and would prevent context being considered.

    It also argued that this was not a determination for a court to make, as it was properly the role of the democratic branches of government to investigate conditions, having regard to the availability of resources, and to determine achievable targets.

    Irish Housing

    In Ireland, the housing market is chronically under-supplied with affordable units, particularly in Dublin, but increasingly elsewhere too. Many local councils appear reluctant to countenance building modular homes, and the rental market is out of control and extortionate.

    David McWilliams blithely advises homeowners to step away from the market, as there is no security for the mortgaged or rentier class, but for most finding a home to live in is not an investment.

    The Irish State is also tolerating rampant evictions by banks and Vulture Funds and negligently permitting unfair commercial practices to occur, often in breach of consumer protection.

    Thus, lenders have reneged on agreements bartered with consumers at a time of high ostensible economic prosperity by neglecting a contractual obligation to revert the consumer to a tracker mortgage after the expiry of a fixed rate period, or upping interest rates to the highest in the Eurozone, often aimed at those seeking to exit the country.

    Thus, lending institutions with no interest in Ireland such as Danske Bank and The Bank of Scotland simply left the room and disposed of their assets, hiking up the mortgage interest rate payments as they left and/or selling assets off to Vulture Funds.

    Ulster Bank has followed them out the door, while citizens are thrown out on the streets in spite of the pandemic.

    The old cry of the tenant farmer for the 3Fs: Fixity of Tenure; Free Sale and a Fair Rent falls on deaf ears in the era of the Vultures.

    The Sinnott Case

    In the Sinnott case (2001), comprising judgments from all seven members, the Supreme Court was asked inter alia to adjudicate on the legality of mandatory orders made in the High Court by Judge Peter Kelly. This precedent remains an important brake on the capacity of the Court to vindicate the right to life – which includes a right to shelter – of Irish citizens.

    In a leading judgment for the majority Adrian Hardiman, following a High Court decision of Justice Declan Costello in O’Reilly v Limerick UDC (1989) distinguished between commutative and distributive justice, the former bearing on relations between individuals such as found in contract and tort, with the latter involving the distribution of the resources of the State.

    In contrast to commutative justice which Hardiman considered central to the Court’s function, he held that the exercise of the Court’s jurisdiction over distributive justice was repugnant to the Separation of Powers.

    Despite Justice Costello demonstrating a willingness to countenance distributive justice in the subsequent case of O’Brien v Wicklow District Council (1994) Hardiman only brought to bear his arguments in O’Reilly, and sought to elevate non-justiciability to a constitutional principle.

    He said that the apportionment of resources ‘would lead the Courts into the taking of decisions in areas in which they have no special qualification or experience’; and were a judge to engage in ‘designing the details of policy in individual cases or in general, and ranking some areas of policy in priority to others, they would step beyond their appointed role.’ He did, however, allude to generalised ‘human rights to earn a livelihood and hold property.’

    It would appear to have been disingenuous for Hardiman to deny jurisdiction on the grounds of judicial incompetence in budgetary affairs. Detailed financial resolutions are, after all, already executed in the commercial arena. The test is one of proportionality, as the South African case law demonstrates.

    A paramount right to life under Article 40.3 should now require the Court to make mandatory orders, interceding on behalf of citizens whose health and life is threatened by this Housing Crisis, particularly in the presence of contagious disease. Where the executive and legislature fail to vindicate a right to life the Court must surely assume responsibility.

    The Harp needs more than tuning…

    A Constitutional Challenge

    To deal with homelessness and affordable housing a challenge needs to be made through the courts to establish a right to housing.

    The Irish Constitution through Article 45 and a generalised right to life contains minimum rights against forced or arbitrary evictions.

    Such a right should lead inter alia: to meaningful consultation begin given prior to any eviction; alternative relocation if eviction proceeds; no eviction proceeding unless the land is being put to productive use.

    An arbitrator should also be able to probe into what banks or Vulture Fund intend to do with this vital infrastructure, fundamental to the lives and livelihoods of citizens.

    Any arbitrator would of course reject spurious defences involving colossal amounts of borrowings, but should achieve a re-calibration of the system. establishing some equality of arms in the process, now desperately needed.

    Shelter from the Storm

    Without adequate shelter no one can live a dignified existence. A home – a place of one’s own – is intrinsic to the good life we have a right to expect. But housing is only one issue.

    Our social structure is unravelling through the hidden hand of American and Canadian Vulture and Cuckoo Funds. In the dystopian aftermath of the Pandemic, and Screen New Deal, once vibrant communities are fracturing, and social atomization is increasing apace.

    In the urban wastelands, we have entered the territory of Chile under Pinochet during the 1970s as Ireland becomes a test case for how much a people can endure.

    Salvador Allende in 1972.

    In her recent novel A Long Petal in the Sea (2019), Chilean novelist Isabel Allende – a distant cousin of the murdered President Salvador Allende – describes the scene in Chile at the time, bearing increasing resemblance to our increasingly dysfunctional society:

    He called to tell them that on the surface the country was modern and prosperous, but one only had to dig down a little to see the damage underneath. The degree of inequality was staggering: three-quarters of the wealth was in the hands of twenty families. The middle class survived on credit; there was poverty for the many and opulence for the few; shantytowns contrasting with glass skyscrapers and mansions behind walls. Wellbeing and security for some; unemployment and repression for others. The economic miracle of recent times, based on absolute freedom for capital and a lack of basic rights for workers, had burst like a bubble.

    Similarly:

    The military government had decided public services should be in private hands. Health was not a right, but a consumer good to be bought and sold. In those years when everything that everything had been privatized had been, from electricity to airlines, a plethora of private clinics had sprung, with state-of-the art buildings and facilities for those who could afford them.

    One thinks of The Beacon Hospital and other facilities reserved for Ireland’s wealthy health consumers.

    Life depends on livelihoods, now threatened by disproportionate measures. There must be an alternative. Otherwise, suicide, shortened lives, poverty, inequality, social exclusion, and social fragmentation await, leading to fascism and extremism. In this respect, COVID-19 has been the perfect storm of opportunism, or a coalition of interests.

  • A Few Good Men and Women

    In the wake of the murder by a police officer of the unfortunate Sarah Everard, and the ensuing justified anger, many media people were calling for “good” men to act more visibly in opposing violence against women. While I back 100% the calls made for “good” men to speak up, I am also concerned that the more general ideas of social equality are fast becoming reduced to a gender-specific proposition, having the potential knock-on effect of splitting the Left.

    This is not to diminish the seriousness of violence against women, but only to attempt to bring to light how the focus on gender equality may be impacting our perception of more general inequality, and how this apparent narrowing of focus risks being manipulated by those whose interests are not necessarily best served by social equality.

    While many women are exploited by many men, in the wider culture there are those still looking to keep wages low; rents and the cost of living high, while reneging on any social housing provision, who will look to spin the fact of female exploitation in order to capture the female vote to the service of their own particular brand of social exploitation.

    Spin

    In a recent tweet, Una Mullally, responding to Josepha Madigan’s dig at the Kerryman newspaper, suggesting the paper be renamed the Kerryperson, called this out for the cynical political ploy it was. Referencing her own Irish Times article of March 8th which predicted this type of play, Mullally described Madigan’s move as an awkward Fine Gael grab for the female vote, which, as things stand, may decide the next government, as it decided the referendum in 2015.

    But the main talking point in the past week has not been Fine Gael attempts to capture the female vote, but the more immediate mystery as to why “good” men don’t speak out against violence against women.

    Fintan O’Toole, writing in the Irish Times on March 16th said that in order for men to make a more overt stand against violence against women they must first learn to be shocked by that violence. At the moment, he argues, such violence all seems routine to most men. I wonder about that, since it seems to suggest that silence equals complacency equals broad approval.

    When you remove the particular instance O’Toole is referring to, that is, the emotive and highly charged question of violence against women, and replace it with say, general social inequality; you immediately already have an answer as to why “good” men appear to do nothing in the face of violence against women. The truth is, the majority of good men, and good women too, tend to remain strategically schtum on a wide range of problematical social issues until they see which way the political winds are blowing.

    Good Men

    Edmund Burke is reputed to have said that ‘The only thing necessary for the triumph of evil is for good men to do nothing.‘

    Burke wrote the line in a letter in 1770, which is more than a little while ago. The point being, the good men idea is far from being new. In fact, Burke’s quote needs updating, since at the time of his writing the realization of women’s suffrage was a long way in the future. An updated version would read: ‘The only thing necessary for the triumph of evil is for good men and good women to do nothing.‘’

    So instead of posing the question, Why do good men do nothing, in such a way as to refer to a specific issue – in this case male violence against women – it is perhaps clearer to ask why do good people, regardless of gender, not raise their voices in say, situations where right-wing policy creates homelessness and subsequent deaths from exposure; or privatisation results in poor services and deaths due to cut corners and profit-conscious oversights? Why do good people not raise their voices en masse on these issues too?

    By the strict criteria of the “good” men concept as framed by Edmund Burke and others, we are all responsible, good men and good women alike, for homeless deaths, for direct provision deaths, for deaths caused as a result of medical privatisation, for domestic violence in all its guises and so on. Since this is a democracy, we all, strictly speaking, bear equal responsibility for the failings of democracy to deliver equal treatment to all. But these are difficult questions when applied to the real world.

    For instance, if you were an arts practitioner cosying up to Josepha Madigan when she was Minister for Arts, with a view to gaining favour and financial support for some project you had planned, are you complicit in Madigan’s rallying support to oppose Traveller accommodation? Or are the two issues compartmentalised? One being her political position and the other being her apparent social and class intolerance. Do you sacrifice your project to make a point, or do you compromise?

    Herds

    Along with such moral quandaries you also have the problem of the behaviour of crowds, which tend to behave like herds. Even politicians don’t really lead, they too follow the herd in the form of the public mood glimpsed in polls. Most people are spectators, going with the flow of the herd. We stand and watch the game until some critical mass is reached and then we raise our voices in support of whatever new majority appears to be on the rise. This works for every growing gang, from commies to fascists. A critical mass is reached and the herd follows. History shows that the herd will follow any old idea once this critical mass is achieved.

    Søren Kierkegaard, writing on this phenomenon, noted that an individual is worth more than a crowd of individuals, because an individual has personal agency, whereas a crowd tends to go with the flow of the herd. As a result, Kierkegaard comes to the conclusion that truth always belongs to the minority, since the majority tend towards unthinking obedience to the movement of the herd.

    It could be that now is the time where the issue of violence against women is to be embraced by the herd as an issue whose time has come. An issue for which good men are expected to speak up. But the point is, that apart from the particular issue, the question as to why do good people do nothing might be more properly considered in relation to a wider sense of social equality, encompassing all issues of social inequality.

    This applies equally to the politician allowing the market to decide the fates of those seeking housing, as it does to the person turning a blind eye to white collar corruption, or a man turning a blind eye to violence against women.

    Good Men and Good Women

    In this regard, for Fintan O’Toole to suggest that the evil of violence against women is exacerbated by good men doing nothing, is disingenuous at best, or is simply more political gamesmanship.

    Because the Irish Times also plays politics with notions of equality, quietly supporting right-wing Fine Gael policy through the manner in which it shapes and pitches stories, while always being first up with the property supplements when the market shifts, eager supporters of the housing Ponzi scheme, where the wealthy business class figuratively eat our young by selling them over-priced houses, while their political cronies refuse to enter into any believable form of social housing policy.

    Which begs the question, that when Fintan O’Toole is calling on “good” men to be more vociferous in condemning violence against women, is he referring to the same “good” men who remain silent in the face of social inequality on a more general level, keeping strategically schtum on a range of social equality issues, in order to ensure the perpetuation of a neoliberal status quo that is giving rise to social inequality in the first place?

    Conclusion

    All of this is not to suggest that the call for “good” men to raise their voices on the subject of violence against women is a wasted exercise; but only to point out that such a call to “good” men is not new; and furthermore, that by repackaging that call as an issue-specific moral imperative, while ignoring the same demand across a more general range of social equality issues, is to have the effect, whether knowingly or not, of splitting the Left by narrowing the imperative of social equality to a divisive gender issue, in such a way as to assist the project of the establishment parties and the elite they appear to represent.

    This will doubtless remain the situation until such time as good men and good women of all classes speak out against social inequality in all its guises.

  • Declan Costello and the Decline of the Just Society

    Fifty years ago a politician published a manifesto which, if implemented, would have changed the nature of Irish society, would have defied the ethos of contemporary political culture and would have spared us so much of the misery caused by the recent crisis.
    (Vincent Browne ‘Remembering when Fine Gael flirted with a left-wing agenda’, Irish Times, February 12th, 2014)

    As a young man I was an admirer of the former President of the High Court, Attorney General and architect of Fine Gael’s Just Society, Declan Costello. I was then privileged to engage with him on an informal basis, appearing before him in court on a number of occasions. He was a complex and often divisive figure, and I disagree profoundly with many of his judgments, but there is no doubting the profundity of the intellect.

    He was one of the most impressive public speakers I have seen in action. It was a marriage of content and rhetoric abetted by a dry – very dry – sense of humour, albeit his diction was marred by a faintly detectable lisp. He was a remarkably civilized human being – a petite mannequin – whose pristine intellect was ill-suited to the rough and tumble of Irish politics.

    https://www.youtube.com/watch?v=BuHZlTBgSSk

    Born into a Fine Gael dynasty – as the eldest son of Taoiseach and barrister John A. Costello – he seems to have cut a dash as a young man. According to one story, Jackie Beauvoir (future Kennedy-Onassis) became infatuated with what would have been a slightly frail young man – he recovered from a bout of tuberculosis in his teens – after they met on her visit to Ireland in 1950.

    An unlikely match.

    I suspect she would not have had to worry about a husband having affairs with the likes of Marilyn Monroe if the match with Declan had borne fruit.

    The curse of hereditary connection is a disease that afflicts Ireland. A privileged few families have dominated power and patronage throughout the history of the state, with the GPO in 1916 Rising acting as an Irish Mayfair. W.B. Yeats presciently described his fellow Senators in the 1920s in the following terms: ‘hot and vague, always disturbed always hating something or other … [they] had … signed the death warrant[s] of their dearest friend[s] … Yet their descendants, if they grow rich enough for the travel and leisure that make a finished man, will constitute our ruling class, and date their origin from the Post Office as American families date theirs from the Mayflower.’

    Reference to an Irish ruling class recall a remark that Aneurin Bevin made of Anthony Eden that for all his apparent sophistication, he had the unplayable stupidities of his class and type. The charge of stupidity could not be levelled against Declan Costello, who, despite his flaws, sought to remould Ireland along Christian Socialist lines. Sadly, despite being one of the richest countries in Europe, almost three quarters of a million Irish people were still living in poverty in 2019, a figure that seems likely to rise in the months and years to come.

    I remember Paddy McEntee once referring to him once as a cold fish. I am not so sure. Dispassionate might be a better description. Anyway I’d be more inclined to trust someone with Declan Costello’s detachment than the kind of avuncular, back-slapping figure that one often encounters in Ireland.

    Declan Costello was legendary for his work ethic, which perhaps compensated for an obvious social awkwardness. His practised remoteness even seemed to extend to his fellow judges at social gatherings.

    ‘Fine Gael: Social Democratic Party’

    Declan Costello will always be associated with the authorship of the Just Society document in 1966 that set out the ideals of the Christian Socialist movement which he promoted within the party.

    Despite being clearly at variance with the current neo-liberal hegemony this tradition occasionally crops up in debates within Fine Gael. Notably, during the leadership debates in 2017 Simon Coveney implausibly differentiated himself from Leo Varadkar by claiming to represent it.

    The document speaks of ‘the very wide areas in our society where great poverty exists, poverty which is degrading and capable of remedy, to appalling social conditions.’

    And, ‘We are not living in a just society. This fact must be understood and complacency must be dispelled and enthusiasm created to remedy the social injustices in our midst.’

    Fine Gael, it was said, sought ‘office to work towards a society in which freedom and equality are not concepts from an academic textbook but are expressed in real and tangible conditions which all our people can enjoy.’

    However, in February 1967, having served as T.D. for Dublin North-West, Declan Costello announced his retirement from the rough and tumble of politics. But the ideals of the Just Society were carried on by ideological fellow travellers such as his brother-in-law Alexis FitGerald, Michael Sweetman, Jim Dooge and Garret Fitzgerald.

    FitzGerald went on to become an unsatisfactory two-term Taoiseach in the 1980s. During this period a new kind of party crystallised, influenced by the Progressive Democrats, with figures like John Bruton coming to the fore, that adopted a laissez faire approach at variance with the Keynesianism of the previous generation.

    Remarkably, the Fine Gael party was on the brink of changing its name to ‘Fine Gael: Social Democratic Party’ at the 1968 Árd Fheis. Apparently the majority in attendance were in favour of the motion but the coup was resisted on a technicality by the old guard.[i]

    Looking back on the period Vincent Browne recently recalled:

    I was one of those beguiled by that at the time, believing that a right-wing party, such as Fine Gael, could be hijacked by a left agenda and be transformed via a procedural, albeit unintended, ambush. The ambush occurred at a time when Fine Gael felt self-conscious about standing for nothing and offering no alternative to a resurgent Fianna Fáil led by Seán Lemass.

    Since then the conservative faction of large farmer and comfortable professionals serving multinational corporations has assumed pre-eminence. The party now led by Leo Varadkar is distinctly neo-liberal, with concessions to individual rights. The pole opposite of Declan Costello’s political credo.

    Yet senior members of the party do continue to claim allegiance to the Just Society. The current Minister for Finance Paschal Donohoe, who has been elected to the same constituency as Declan Costello seat, claimed in 2017 that he possessed a copy of the document and that ‘he [Leo Varadkar] values the just society as much as I do and places its spirit in a modern, outward-looking and dynamic Ireland.’

    Judicial Appointment

    Like many of his contemporaries Declan Costello was a devout Catholic, which informed the noblesse oblige of the Just Society. Under Garret Fitzgerald and beyond, however, Fine Gael diverged from Costello’s ideals, embracing a socially liberal approach on issues such as contraception, marriage equality, and finally abortion, but an increasingly non-interventionist approach to the economy. This was anathema to Declan Costello’s moral outlook. His religion foregrounded a Christian Socialism that presaged John Rawls’s theory of justice as fairness, but also brought an overly moralistic approach to the private lives of individuals.

    Former Taoiseach Garret FitzGerald.

    The conversion of Fine Gael from authoritarian conservatives to social liberals has, however, been cosmetic, even under Garret Fitzgerald. It is clear that a neo-liberal consensus began to emerge in the wake of Fianna Fail’s landslide election victory in 1979, and individual rights gradually took the place of social supports as policy planks.

    Declan Costello was appointed a High Court judge in 1977 having served as Attorney General under Liam Cosgrave. Owing to the tribalism bedevilling Irish politics successive Fianna Fail administrations. ignored his undoubted abilities as a jurist, passing him over for appointment to the Supreme Court.

    This diminished his opportunities for progressive judicial leadership. Only towards the end of his career was he appointed to the largely administrative position of President of The High Court. But by that stage, frankly, the arteries had hardened and the reforming zeal that marked his earlier life had ebbed away.

    Socio-Economic Rights

    Costello’s judicial record on socio-economic questions is in marked contrast to his political career. The case of O’Reilly v. Limerick Corporation 1989 ILRM 181 suggests he had caved into a prevailing neo-liberal mindset of laissez faire. He claimed the Courts had no business allocating or redistributing resources, which was, he argued, a matter for the Dáil in Leister House alone.

    The plaintiff Travellers sought a properly serviced halting site in order to vindicate their constitutional rights under Articles 40.3 and 41.2. Costello refused to grant it on the basis that such an order would involve:

    [T]he imposition by the Court of its view that there has been an unfair distribution of national resources. To arrive at such a conclusion, it would have to make an assessment of the validity of the many competing claims on those resources, the correct priority to be given to them and the financial implications of the plaintiffs’ claim.

    This appears to contradict his stated view that the Irish Constitution was informed by natural law, which in the Thomistic tradition encompasses fundamental socio-economic rights. Importantly, he recanted the O’Reilly decision a few years later in the case of O’Brien v Wicklow UDC 1994.

    But damage had been done with his introduction of a neat Aristotelian distinction between commutative and distributive justice. This absolves the courts from any role in ensuring that elected representatives maintain basic standards of living – so elegantly articulated in the Just Society and also expressed in Article 45 of the Constitution – which underpins any true republic.

    This argument was seized on by the libertarian Adrian Hardiman in the case of Sinnott v. Minister for Education 2001 IESC 63, to dismiss the claims of the intellectually disabled plaintiff to an ongoing education. Since then fundamental rights to housing or a living wage have been dismissed by the courts on grounds of non-justiciability.

    Authoritarian Streak

    Declan Costello became an enforcer of a dominant Catholic morality that pervaded the country until the 1990s. The disgraceful decision to uphold Eileen Kelly’s sacking from her position as a secondary school teacher after she became pregnant during an extra-marital affair was perhaps a nadir.

    On due process he displayed equally authoritarian tendencies. Thus in O’Leary v. Attorney General 1995 1 IR 254 he determined that possession of an incriminating document provided sufficient proof that a person was a member of an illegal organisation. The documents in question amounted to thirty-seven posters of a man holding a rifle, with the words ‘IRA calls the shots’ printed on them. Costello determined that the provision was consistent with the presumption of innocence and benefitted from a presumption of constitutionality.

    Growing up in a privileged family, he perhaps assumed that the police force could do little wrong, and counted on their probity in executing public function. One wonders what he would make of the case of Garda whistleblower Maurice McCabe, and the dirty tricks campaign against him and others. The litany of Garda abuses is well attested to in Adrian Hardiman’s ferocious dissenting judgment in D.P.P. v J.C. 2015 IESC 31.

    Thus, after doing the state some service in displaying authoritarian tendencies Declan Costello saw out his career as an occasionally despotic President of The High Court. I appeared before him in the inception of the Gilligan Litigation, which, in fairness, he handled with even-handedness; at one point booting out a certain barrister of ill-repute, who had appeared unauthorized in private proceedings. It was an intellectual thrill to appear before him.

    In my view his most disgraceful, and certainly his most notorious, decision was in Attorney General v. X 1992 1 IR 1. In that case, the facts of which are well known, Costello granted an injunction preventing a fourteen-year-old rape victim from leaving the State for nine months (with the purpose of preventing her from going to the U.K. to obtain an abortion), a decision that was overturned in the Supreme Court, which decided that abortion was permitted where there was a real and substantial risk to the life of the mother, including suicide.

    Place in History

    Adrian Hardiman.

    Alongside Adrian Hardiman, Declan Costello was the finest Irish judge since the halcyon days of judicial activism in the 1960s and 1970s. Alas figures of that calibre are not evident on the judicial benches today. I fear the intellectual decline is irreversible, which represents a threat to decent governance of the state.

    We are all products of our time and looking back on history we enjoy the benefit of hindsight. Declan Costello was a great man, with flaws. He had a quiet charm and displayed a courtly graciousness towards others. His brilliant mind was activated by a concern for social justice and, crucially, he possessed a sense of humour.

    Within the establishment his intellectual calibre was a form of subversion, meaning he was always the Man Who Would Be King, but never the king. There was nevertheless a certain contradiction between his progressive, even transgressive, instincts as a politician and the reactionary tendencies he displayed as a judge.

    The Just Society document stands unsurpassed as one of the last political statements of substance on social reform in Irish history. It displays a coherent vision for a better Ireland that politicians would do well to take off their book shelves today.

    [i] Ciara Kelly, ‘Michael Sweetman and the Just Society’, from The Widest Circle: Remembering Michael Sweetman, Edited by Barbara Sweetman-FitzGerald, A&A Farmar, 2011 p.69