Equality And Human Rights Law In Ireland

The right to social welfare is protected in a number of human rights instruments on both an international and regional level. This system provides financial assistance to individuals in need of additional support for a variety of reasons. For the past number of years, this system has been eroded and attacked with both the elderly and young adults being the primary targets. This reduction has been described accurately by USI as a financial penalty for unemployed graduates and youths within Ireland. Currently, the rate of social welfare available for an individual aged twenty sic and under is €102.70 a week. Considering that those above the age of twenty six can receive an amount of up to €188 per week, the substantial difference must be noted.

Throughout this paper a legal basis for reinstating full social welfare payments to those under 26 will be set forth. This will be discussed from both a human rights and equality standpoint. In doing so, a number of different legal instruments will be discussed included, the International Covenant on Economic, Social and Cultural Rights, The European Social Charter, The Irish Constitution amongst others. Following this, the discriminatory aspect of this reduced payment will then be discussed. In concluding this paper a basis for reinstating social welfare payments to under 26’s will be outlined from both an equality and human rights aspect.

A legislative that is solely based upon age without due consideration for other factors under equality and anti-discrimination legislation should not be justifiable.

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The International Covenant on Economic, Social and Cultural rights contains a number of articles which directly correlate to the reduced payments of social welfare to young adults below the age of 26. Under ICESCR states are required to adopt a progressive approach to economic, social and cultural rights. Measures adopted must be “deliberate, concrete and targeted as clearly as possible towards that goal”. This implies that any retrospective measures would need undoubtable justification. The obligation to act progressively in the realisation of economic, social and cultural rights is outlined in article 2(1) of ICESCR. This has been outlined as imposing, in particular, three obligations on states party to the convention. Firstly, states are obliged to “take steps by all appropriate means”. Thus, states are obliged to enact legislative and non-legislative measures allowing for the enjoyment of economic, social and cultural rights. The second obligation placed on states party is to ensure that any and all steps taken are aimed at achieving progressively the full realisation of economic, social and cultural rights. From this it can be deduced that states parties are obliged to continuously improve the conditions of economic, social and cultural rights within their borders and refrain from taking regressive measures on such rights. When considering the obligations held within article 2(1) ICESCR it is clear that the reduced rate of social welfare payments for young persons under the age of 26 is neither progressive or in compliance with the full realisation of economic, social and cultural rights within Ireland.

Article 2(2) of the above states ; “The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” Legislative measures introduced within Ireland are, however, inconsistent with the above obligations. Amendments previously introduced lower social welfare available to jobseekers under the age of 26, this differential treatment is solely based on age. It has been previously outlined throughout the work of IHREC in this area that differential treatment based on prohibited grounds may be viewed as discriminatory unless there is reasonable justification for this treatment. It has also been outlined that a lack of available resources cannot justify such treatment unless it can be established that every effort has been made to use all available state resources.

Article 9 of the Covenant outlines the right of all citizens to social security. This article states “States Parties to the present Covenant recognize the right of everyone to social security, including social insurance.” From the outset, this obligation appears to be vague, however, the standard placed on states parties appears to be established through General Comment 19. It is stated that this right encompasses the right to access and maintain benefits, including cash or in kind, without discrimination to secure protection from a “lack of work-related income caused by sickness, disability, maternity, employment injury, unemployment, old age, or death of a family member”. Although these documents are not binding on states, they are strongly considered when a review of a state is in progress or issued. The current status of social welfare in Ireland may be considered in direct contradiction of the above statement. In reducing the rate of jobseekers payments available to all young persons under the age of 26 it is apparent that equal treatment of all has not been applied. Throughout General Comment 19, concerns regarding inequality in social welfare systems has also been related to other such rights contained within the Covenant. Some of which include, articles 10,11 and 12 which outline the right to an adequate standard of living and the highest attainable standard of healthcare. In considering the above, it is important to note that a further General Comment has been issued outlining obligations placed on a state regarding non-discrimination in the realisation of rights contained within the Covenant. Concerns regarding the application of non-discrimination were raised within the 2015 Committee review throughout a review of equality of social welfare schemes. It was outlined that instances of direct and indirect discrimination (based on the nine grounds) were identified which were not justified by a legitimate social policy objective, or where the means of achieving that objective were either unnecessary or inappropriate.

Equal treatment of everyone before the law is outlined within Article 40.1 of the Irish Constitution as it sates: All citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function. However, in 2009 the opposite was proven as young people within the nation saw their Jobseekers benefit cut. This cut was based on nothing other than age alone. Article 40.1 of the constitution imposes an obligation for all citizens to be treated equally. However, the imposition of lower benefits on young job seekers appears to highlight the contrary. It is outlined in the Equal Status Acts 200 that treatment shall be deemed discrimination if it can be shown a person has experienced less favourable treatment then another based on any of the nine grounds (age is included within these grounds).

Bibliography

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