Constitutional Law

Introduction

Constitutional law is the body of law which defines the relationship of different entities within a state, namely, the executive, the legislature, and the judiciary. Not all nation states have codified constitutions, though all such states have a jus commune, or law of the land, that may consist of a variety of imperative and consensual rules. These may include customary law, conventions, statutory law, judge-made law or international rules and norms. The Irish Constitution (Bunreacht na hÉireann) is the fundamental law of Ireland. It falls broadly within the tradition of liberal democracy and establishes an independent state based on a system of representative democracy. It guarantees certain fundamental rights, along with a popularly elected non-executive president, a bicameral parliament based on the Westminster system, a separation of powers and judicial review. It is the second constitution of the state since independence, replacing the 1922 Constitution of the Irish Free State. It came into force on 29 December 1937 following a national plebiscite held on 1 July 1937.

Topic 1 – Fundamental Rights in the Irish Constitution

1) Liberal Constitutions and Fundamental Rights

The Irish Constitution falls under the umbrella of a liberal democracy. There are two tenets to this:

  1. Maximize the individuals’ freedoms. 
    • To achieve this, two spheres are created, the public and private spheres. The private should be as large as possible and the public as small as possible. 
  2. Democracy – where political power is derived from the people.

How are this liberal democratic ideas then translated into the Irish Constitution?

  1. Separation of Powers (See “Irish Legal System” for more).
  2. Rule of Law (‘a government of laws, not men).
  3. Fundamental Rights – Split into two categories: Civil and Political (freedoms and liberties) and Economic and Social (entitlements)
    • By doing nothing, the State exercises your Civil and Political rights (negative rights).
    • Socioeconomic rights instead burden the State (positive rights).

What articles of the Irish Constitution discuss these civil, political, social and economic rights?

  • Art. 40 – 44 – These are the primary articles. 
    • They are supplemented by Art. 38 and 45.

As a result of capitalism, rights in Western societies are usually treated as “freedoms” (negative rights). There is a catch however. Art. 40-44 deal primarily with civil and political rights (negative rights). These are justiciable. On the other hand, Art. 45 deals primarily with socioeconomic rights. As a result of these being positive rights, Art. 45 is not justiciable. Art. 45 is primarily a set of guidelines for the Oireachtas.  Further, Art. 42 is another exception to the rule. Art. 42.4, the right to free primary education, is the only enforceable socioeconomic right in the Constitution. Although it is a positive right, it is seen as so fundamental as to warrant it being afforded justiciable constitutional standing. In Summary: Civil and political rights are justiciable, socioeconomic are not with the only exception being Art. 42. 2) Limitations on Fundamental Rights The most important question in this topic is: Are rights absolute? Contrast the example of free speech in different jurisdictions. The Ku Klux Klan (KKK) in America are afforded the right to unfettered free speech. On the other hand, in Ireland, their proponents would be considered an incitement to hatred.  As a result, it is seen that rights are not absolute. Consider however the argument that some rights should be absolute (e.g. freedom from torture, right to a fair trial etc.).  The case of Ryan v AG established that no personal rights are unlimited.

  • ***Ryan v Attorney General [1965] IR 294
    • Per Kenny J – “None of the personal rights of the citizen are unlimited: their exercise may be regulated by the Oireachtas when the common good requires this.”
    • This involves a balancing exercise between affording rights to citizens, but not letting those rights be abused. Although contentious, the KKK example applies in this sense. Would we want to see KKK protests in Ireland?

Interestingly, the Irish Constitution is not necessarily compatible with the European Convention on Human Rights (ECHR). Article 3 (freedom from torture/inhumane treatment) and Article 4 (freedom from slavery) are deemed to be absolute rights. HOwever, under the Irish Constitution, as seen in ***Ryan v AG, no rights are absolute. It has been established that in the Irish Constitution, no rights are absolute. So, when may grounds for legitimate interference emerge (i.e. when can rights be infringed upon)? There are several grounds:

  • The “common good” – This is noted in Art. 42.3.2, 42.5 (education) and 43.2.2 (private property); ***Ryan v AG)
  • “Public order and morality” – Articles 40.6.1 and 44.2.1 (personal rights subject to public order consideration). This specific issue has not yet been addressed in the courts and is therefore we only have a hypothetical understanding of its legal matrix. 
  • The “principles of social justice” – Art. 43.2 (private property)

Although these three tenets exist in determining where interference with rights is legitimized, the best measure in fact is that of proportionality (this is discussed in more depth below). Proportionality Test: – limitation imposed on right must be proportionate to the objective being pursued.

  • **Heaney v Ireland [1994] 3 IR 531
    • Issue: Is the right to silence an absolute right? (Concerned IRA/Offences Against the State Act 1939)
    • The criteria established in the case were:
      • Pursue an objective of sufficient importance
      • Be rationally connected to that objective, and not unfair or arbitrary.
      • Impair the right as little as possible
      • Effect on right must be proportionate to the objective

3) Natural Law in the Constitution

Broadly, natural law is a principle or body of laws considered as derived from nature, right reason, or religion and as ethically binding in human society.

An example of natural law in action: The Nuremberg Trials –> This was where Allied lawyers relied on natural law to convict Nazi generals and soldiers for the murder of Jews contrary to Nazi domestic law at the time which ordered the killing of such persons. They relied on a higher law that is universal and unchanging and discoverable by reason. It was understood that laws that are contrary to the natural law are no laws at all and therefore can be disobeyed.
Cicero identified the differences between humanities ability to reason versus other animals inability to do so. Cicero argued that because we are rational humans, we should be able to derive from reason, what the natural law is.
In the Irish Constitution, the Fundamental Rights identified (Art. 40-44 etc.) are heavily influenced by the natural law. 
Although, articles 40-44 were intended as headliners to subsequent legislature – in 1937 these were not expected to become the mechanism for a vigorous judicial review. In practice they have contributed significantly to the protection of the rights of the individual. 
There are two positions to which the courts determined:
  1. Courts operating under the constitution can enforce only the guarantees to which the Constitution gives expression.
  2. Articles 40-44 merely state, not completely or exactly the fundamental rights (‘personal rights of the citizen’). This is where recourse is still possible to a range of eternal, natural existing rights existing independent of the Constitution.

After the seminal decision in ***Ryan v Attorney General, where the Supreme Court asserted the jurisdiction to identify implied rights enjoying constitutional protection, natural law was relied up by numerous judges, notably Walsh J. as a source for the identification of such rights. (See ***McGee v AG) But, how do we know Arts. 40-44 have a natural law foundation?

  1. Language used
    • “natural”
    • “rational”
    • “inalienable and imprescriptible”
    • “antecedent and superior to all positive law”
  2. Art. 43.1 (examples)
    • “The State acknowledges that man, in virtue of his rational being, has the natural right, antecedent to positive law, to the private ownership of external goods.”
This idea was questioned in several cases before being accepted in Ryan (e.g. **Re Article 26 and the Regulation of Information Bill 1995 [1995] 1 IR 1, **The State (Burke) v Lennon). 
***Ryan v AG was the first case in which natural law theory was vehemently accepted. Some further examples are given below where the use of natural law was affirmed. 
***Ryan v Attorney General [1965] IR 294
Supreme Court accepted the plaintiff’s submission that there was such a thing as a ‘right of bodily integrity’, even though not specifically mentioned in the Constitution.

    • Kenny J found these rights to be derived from the Christian and Democratic nature of the State – here associating these facets of a state under God.
      • But nowhere in the Constitution is the state named a Christian one.
  • *McGee v Attorney General [1974] 1 IR 284
    • Case to invalidate law penalizing the importation of contraceptives.
    • 4 of 5 majority agreed.
    • Walsh J: “In particular, the terms of Article 40.3 expressly subordinate the law to justice” – Earlier in his speech, he indicates that justice is placed above the law and acknowledges that rights are not created by the Constitution but rather recognizes their existence and gives them protection.
  • *The State (Healy) v Donoghue
    • Reference here is undoubtedly given to a higher law. This is in the case where a persons freedom is put in jeopardy.
  • *Murphy v PMPA Insurance Co.
    •  Doyle J made a proposition that certain natural and personal rights may exist side by side with the constitution although not specifically referred to or comprehended in the Articles of the Constitution which give personal guarantees.
  • *Northampton Co Council v ABF [1982] ILRM 164
    • “The natural law is of universal application and applies to all human persons, be they citizens of this State or not, and in my opinion it would be inconceivable that the father of the infant child (father was not an Irish citizen) would not be entitled to rely on the recognition of the family contained in Art. 41… These rights are recognized by the Constitution and the Courts created under it as antecedent and superior to all positive law.”

–Difficulties with Natural Law Theory i) Multiple Meanings

  • There is definitional difficulty in “natural law”.
    • One distinction is made between natural law standards as understood in the common law tradition – concepts such as equity, reasonable man, reasonable price etc. and the now dominant conception of natural law as antecedent to the Constitution.
      • In the former distinction these rights are vulnerable and latent to government whereas the latter are patent and accorded primacy in the constitution.

Although this gives some legitimacy to cases conferring a basis on “natural law” principles and doctrines, this does not raise it to a constitutional power, or immunize a right flowing from it against curtailment.

  • The concept is highly uncertain.
    • Different answers provided by Plato, Aristotle, Cicero, St. Augustine, St. Thomas Aquinas, William of Ockham, John Finnis.
    • Is it the same as morality? If so, whose?

Natural law has previously been a major influence. Recently however, there has been a shift away from reliance on Natural Law

    • Constitution Review Group (p. 348)

But, is there a more advanced analysis of the natural law theory that is less uncertain? Some examples that have been put forward are:

  1. Rights contingent on various natural factors
  2. Rights based on personhood
    • Sub-class of basic rights identified by the interaction of the above two meanings
  3. Rights derived from the nature of justice
  4. Rights derived or conform with God’s agency as recognized in the natural teleology of physical events

ii) Immutability of Aspects of Constitution

  • The SCt rejected the idea that the power to amend the Constitution was restricted by principles of natural law.
    • Arts. 40.3.3, 41, 42 & 43 – prescribe heavily to the influences of natural law over time and within the framework of the common law.
    • The Court considered the role of the judiciary in interpreting the Constitution and in identifying implied fundamental rights. It concluded: (***Byrne v Ireland)
      1. Personal rights (natural law) has been found and can be found impliedly within the provisions of the constitution.
      2. Did not recognize natural law as superior to the Constitution. 
      3. People are entitled as per Art. 46 to amend the constitution as they see fit.

The only thing that is actually made clear here is that natural law cannot be relied upon to invalidate any explicit provision of the Constitution. This was touched on in:

  • ***WO’R v EH
    • Natural father applied to be appointed guardian of his children
    • Debate arose over whether fathers had natural rights/constitutional rights over their children.
    • Held: Natural rights may be invoked only insofar as they are expressly or implicitly recognized by the Constitution comprised in the Common Law; i.e. superimposed onto common law principles.

This case is an interesting development as it touches on the recommendations made by the Constitution Review Group. In their report they suggested that any further unenumerated rights be only found when they are implicit in the Constitution as it stands or implicit in common law principles.  4) Who can rely on Constitutional Rights? In order to rely on a constitutional right, the general rule is that a person must be able to show that their interests are adversely affected by the law or action which is claimed to be unconstitutional.

  • Only the person whose rights have been breached can take the case.
    • There is exception (next friend) – for those who do not have legal capacity (minors, disabled adults etc.)
  • ***Cahill v Sutton [1980] IR 269
    • Propounded the rule of locus standi: Interests must be adversely affected by unconstitutional law or action
      • Hypothetical cases cannot be brought
        • Real facts are a more effective way of deciding cases than doing it in the abstract.
      • Courts do have discretion to hear a case where the person taking it does not have locus standi – where it is in the interests of justice. per Henchy J at p. 285.

i) Corollary of Natural law Theory – Citizenship vs. Non-Citizenship

  • In all tenets of natural law theory above, citizenship was irrelevant.
    • The question of whether the same rights are conferred to citizens as non-citizens only arises as a result of the variable usage of the different terms.

Cannot Invoke Fundamental Constitutional Rights

  • *Kent Co Council v CS – Irish father who had lived in England brought his child to Ireland to avoid wardship jurisdiction of the English Courts – held that his rights as a father under Art. 41 and 42 had not been infringed and ordered the return of the child to the UK.
  • *Saunders v Mid-Western Health Board – Where parents having no connection to Ireland bring their children into its jurisdiction with the intention of being awarded preferable rights to them in their scenario, it cannot be accepted that they can by that act alone confer themselves and their children constitutional rights under Articles 41 and 42 of the Constitution.
  • *Fajujonu v Minister for Justice – Alien parents of Irish citizens can not assert any constitutional right to reside in Ireland.
  • *Minister for Justice v Wang Zhu Jie – referred to Aliens Act 1935 as giving considerable power to authorities which perhaps might not be necessary or even legal against citizens.
  • In three cases concerning personal liberty, it was found that aliens can invoke fundamental rights protected by the Constitution
    • *The People v Shaw
    • *Nantharatnam v Minister for Justice
    • *Ji Yao Lau v Minister for Justice
  • In ***Re Article 26 and ss5 and 10 of the Illegal Immigrants (Trafficking) Bill 1999 – it was noted that illegal immigrants can enjoy constitutional protection for some of their rights, even if these were not co-extensive with those afforded by citizens and other lawfully residing in the State.

—Non-Citizens can Invoke Fundamental Constitutional Rights

  • *Northants Co Council v ABF
  • *The State (McFadden) v Governor of Mountjoy Prison
  • ****Finn v Attorney General
    • In Finn it was argued that the word “citizenship” does not necessarily derive from his citizenship but rather from his nature as a human being.
    • The State does not create rights or remove them but rather recognizes the existence of them (negative law)
  • *The State (Kugan) v O’Rourke – Such relief under 40.4.2 can be sought by any person
    • The view that non-citizens can rely on Articles 41 and 42 is shared by;
  • *The State (Bouzagou) v Stateion Sergeant, Fitzgibbon St Garda Station
  • *Eastern Health Board and TM and AM v An Bord Uchtala
  • *Kennedy and Arnold v Ireland
  • ***Rederij Kennemerland BV v Attorney General (fishing vessels of Dutch nationals)
    • This case allows for the application of the fundamental rights provisions of the constitution to non-citizens without having to invoke any natural law theory.

In none of these cases did the non-citizen have to establish a connection with the State. ii) Companies Corporations and legal persons cannot generally rely on constitutional rights.

  • Quinn’s Supermarket Ltd. v Attorney General [1972] IR 1
    • Case concerned supermarket opening hours extended beyond normal trading hours to allow Jews to buy meat before the Sabbath.
    • Held: For the purpose of corporate bodies, they could not rely on Art. 40.1 which by its terms was confined to human persons; but the plaintiff company was permitted to invoke 44.2.3 (forbidding religious discrimination) which does not use the terms “persons” or “citizens”.
      • This would then allow corporate bodies to invoke constitutional provisions with similar neutral phrasing e.g. retrospective legislation.
  • ***P.M.P.S. Ltd. and Moore v Attorney General. [1983] IR 154
    • Shareholders could claim certain rights however the corporate body could not.

Contrast the general position with the following case however:

  • ***Iarnrod Eireann v Ireland [1996] 3 IR 321 
    • Keane J argued that in terms of the property rights afforded in Art. 40.3.2, the expression of “every citizen” is not confined to individual citizens in their individual capacity as human persons and that artificial legal entities must also be protected by the laws of the State against unjust attacks on their property rights.

iii) Constitution as a Last Resort Constitutional rights should be considered a refuge of last resort.

  • ***McDonnell v Ireland [1998] 1 IR 134
    • “constitutional rights… should not be regarded as wildcards… . If the general law requires an adequate cause of action to vindicate a constitutional right it appears to me that the injured party cannot ask the court to devise a new and different causes of action.” (per Barrington J)

Topic 2 – Personal Unenumerated Rights

This topic is not examinable at UCC for the 2013 summer examination period. As a result, this topic will be update at some point later in time or if time permits.

Topic 3 – Article 41: The Family

1) The Marital Family

Art. 41.1.1 – “The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.”

Art. 41.3.1 – “The State pledges itself to guard with special care the institution of marriage on which the Family is founded and to protect it against attack.”

Both of these articles are laden with natural law terms. 

  • ‘Inalienable’ – cannot give away the right or waive it.
  • ‘Imprescriptible’ – cannot be taken away/the right inheres in them.
  • ‘Antecedent’ – these rights existed prior to positive law.
  • ‘Superior’ – derived from the natural law, therefore there is a limit to which man-made laws can interfere with these rights. 

Why do the references to the natural law matter?

  • It is not really possible to describe a legal right in stronger words. 
  • Provides the family with the utmost protection in the face of legislative backlash or other concerns regarding the treatment of the family in Irish law.
Some other points to consider are: Art. 41.1.2 – “…guarantees to protect the Family in its constitution and authority… .”
    • The reference to ‘constitution’ is not to the Irish Constitution, but instead to the strife undertaken to maintain the family unit as an important entity in the State.
    • The reference to “protect[ing] the family” supposes the State’s lack of intervention in family affairs.
  • A clear implication of Art. 41.3.1 is that the “Family” recognised under the Constitution is the Family based on marriage. 
    • Corollary to this is the point that childless married couples also fit the description of ‘Family’ (Murphy v AG)

In the following case, the natural law ethos of Arts. 41 (Family) and 42 (Education) were considered in some depth:

  • ***Northwestern Health Board v HW & CW [2001] IESC 90 (‘PKUTest Case
    • Keane CJ considered the natural law ethos of Arts 41 and 42:
      • Family unit enjoys rights that pre-date those set down in the Constitution.
      • Discusses ‘love’ as the greatest human virtue.
      • The rights enjoyed are both rights of the family as an institution and rights of the individual.
      • “The Constitution firmly outlaws any attempt by the State in its law or its executive actions to usurp the exclusive and privileged role of the family in the social order.”
    • Denham J (as she then was) expressed different views:
      • “The fact that the family is the fundamental unit group of society is a constitutional principle.
      • “The child is the responsibility of the parents.” Although these are not absolute.
      • “Legislation has long recognized the welfare of the child as paramount.”
    • Keane CJ’s and Denham J’s (as she then was) views differed markedly.
      • Keane CJ had the view that the family pre-existed civil society and because of this it is recognized in the Constitution – a face of negative law. 
      • Denham J viewed the primacy of the family as being established by the Constitution – a fact of positive law.
    • It is seen that the natural law ethos also pervades Art. 42 – Per Glendening J:
      • 1920s Catholic Social movement provided an alternative to the European socialist movement.
      • Papal encyclical Quadragesima Anno (1931) – provides that the State’s role in the life of the child and education is subsidiary to that of the family’s (parents).
        • This became the underpinning of Art. 42 and 44
    • Arts 41 and 42 specifically deal with the position of women/mothers in the family as well as the position of children within the family unit. Men/fathers were never referenced. What is the meaning of this absence? Per Justice Flynn:
      • “When the Constitution’s text is being read by the courts, it becomes apparent that there is a paradigm of masculinity at play within the Irish legal order. In some ways the contours of masculinity as imagined under the Constitution can be drawn in opposition to those of femininity.”

–Definition of “Marriage” and “Family”

  • The terms are not explicitly defined in the Constitution.
    • However, Art. 41.3 provides: the “…institution of marriage on which the family is founded.”
  • ***State (Nicolau) v An Bord Uchtala [1966] IR 567
    • Unmarried father of a child wanted to stop adoption process initiated by mother.
    • Held: Walsh J rejected this argument on that basis that this unit of unmarried parents and the child did not constitute a family protected by Art. 41.

From Nicolau it is seen that the Family is founded in the institution of Marriage. This is interesting since it is nowadays not the only conception of family there is.

What therefore are the effects of this limitation?

  1. It precludes unmarried families from availing of the protections afforded in Art. 41.
    1. Unmarried fathers are excluded completely from constitutional protection.
    2. Unmarried mothers while excluded from Arts. 41 and 42, can rely on the right afforded in Art. 40.3 (personal unenumerated rights)
  2. It provides constitutional authorization for legislative discrimination against unmarried families.
  3. It implicitly deems non-marital families to be less worthy of recognition than marital families. 

As a result, the 1996 Constitution Review Group recommended that Art. 41 be amended to provide recognition to married and unmarried families. This recommendation was premised on statistics citing that 1 out of every 4 births was out-of-wedlock. Since 2002, this has risen to 1 out of 3. There is a clear disconnect here yet oddly, the All Party Oireachtas Committee proposed no change. They believed that such an amendment “would cause deep and long-lasting division in our society and would not necessarily be passed by a majority.” Instead it recommended some legislative (as opposed to constitutional) changes in light of the three issues above ­. 

The discrimination against men is on grounds of gender

We may ask why the courts have been so inflexible in relation to this matter concerning the limited rights of unmarried couples. Simply, it is because the Constitution is so inflexible. The Constitution in stating “… the institution of Marriage, on which the Family is founded… .” leaves nothing for the courts to work with in terms of affording equal rights. It is up to the legislature to make changes. 

Two cases further resolve some questions regarding what constitutes a family:

  • ***Murray v Ireland [1985] IR 532
    • Held: Married couple need not have children to be considered a “Family” under Art. 41.
  • ***G v An Bord Uchtala [1980] IR 32
    • Non-production or death of both or one parent(s) does not affect the status of the unit as a constitutionally protected one, provided the parents were married.

We have established what a “Family” is, now we must ask what “Marriage” is in the Constitution.

The classic position was set out in:

  • Hyde v Hyde [1861-73] All ER 176  (English case)
    • Confirmed in Ireland in **B v B [1995] 1 ILRM 491.
    • The test of Art. 41 was to protect the classic common law definition of marriage from this case; “the voluntary union of one man and woman to the exclusion of all others for life.”

This ‘permanent’ and ‘heterogeneous’ definition was supported in:

  • ***Murphy v Attorney General [1982] IR 241
    •  “Marriage” is defined as the “permanent, indissoluble union of man and woman.”
      • Some points to note from this definition:
        • Marriage is only possible by heterogeneous individuals (opposite sex).
        • Marriage must be monogamous (one man and one woman) as opposed to polygamous. 

However:

  • *N v K
    • Defined marriage also as a “civil contract which creates reciprocating rights and duties… .”
  • **CT v DT
    • Slightly altered (N v K) allowing for divorce. “… it is not entered into for a definite period.”

The Divorce referendum in 1995 altered the traditional definition, as seen in CT v DT.

As a result and in summary, it may be said that:

  • Marrigae is both a necessary and sufficient condition for constitutional protection under Art. 41.

–Legislative Recognition of Non-Marital Families

The Income Tax Act 1967 aggregated the incomes of wife and husband in order to determine their liability for income tax. As a result, many married persons with two incomes paid significantly more tax then they would have if they were single.

  • ***Murphy v Attorney General [1982] IR 241
    • Held: This system of tax breached “…the pledge of the State to guard with special care the institution of marriage and to protect it against attack.”
      • This point was  clarified later in ****Muckley v Ireland
        • The decision in Murphy  was to the effect that the invalid sections penalized the married state. Section 21 of the Finance Act 1980 has the same effect and does not escape through imposing an identical tax burden, the effect is retrospective and not continuing or prospective. It still contains the fatal flaw in common with the invalidated sections of imposing on the married couples to whom it applies a greater burden of taxation that imposed on a man and woman living together outside of marriage.

In Muckley it was held that Art 41 prohibited the penalizations of marriage. This decision was uncontroversially applied in a number of other cases:

  • *Hyland v Minster for Social Welfare (discrimination against married couples in the context of unemployment benefits)
  • *H v EHB (discrimination against married couples in the context of disability benefits)
  • *Greenve v Minister for Agriculture (discrimination against married couples in the context of eligibility for hedage payments)

This was all clouded by however by:

  • ***MhicMhathuna v Ireland
    • The plaintiff here questioned the constitutionality of tax legislation that provided a tax-free allowance to single parents who had a child or children living with them. They also challenged the constitutionality of social welfare legislation that provided an unmarried mother’s allowance.
    • Held: These arguments were not accepted – based on the obvious idea that no woman would rather have a child out-of-wedlock so as to get greater benefits.This can be of no form, an attack on the institution of marriage.
      • Rejected the inducement and penalization arguments.
        • Penalization: rejected on the basis of a direct/indirect discrimination point and a justification point.
        • Inducementas married couples living together

Murphy, Muckley and MhicMhathuna – all arose in the context of a discrete legislative advantage or disadvantage that impacted favorably on married couples.

  • There is considerable judicial support for a penalization test and some judicial support for an inducement test.
  • However, in MhicMhathuna, Carroll J decided that there was no inducement simply because there was no penalization.
  • Outside the Muckley case, this would mean the tests are identical.
— The Right to Marry?
  • ***O’Shea v Ireland [2006] Found that certain legislation barring marriage of former brother-in-law, after divorce was unconstitutional. The reasoning was founded on; relationships would be created regardless, and the fact that marriage was a constitutional right.
  • ****Zappone v Revenue Commissioners [2008] 2 IR 417
  •  Two lesbian women, who were also Irish citizens (although Dr. Zappone was originally Canadian), were married in 2003 in Vancouver. They wrote to the Revenue Commissioners requesting that they should be allowed to claim their allowances as a married couple in Ireland. This was refused as the legislation referred to “husband” and “wife.” During the case, s.2(2)(e) of the Civil Registration Act 2004 came into force. This precluded marriage by same-sex couples. Although no declaration of unconstitutionality was sought in respect of this provisions, the case turned on whether the plaintiffs had an entitlement to marry as a matter of Irish law.
    • Court accepted a right to marry, but held that discrimination was justified by reference to Art.41.
    • The couple referred to “changing consensus” in the world and Ireland with regard to same-sex marriages.
      • Dunne J recognized slight changes in some jurisdictions but rejected the argument based on sheer lack of support.
        • This did raise the question of what role the Courts should play in advocating social change.
        • Note: A constitution with a  strong egalitarian clause (Art. 40.1 in the Irish) might allow for the recognition of same-sex marriage. However, Art. 40.1 in Ireland has been given limited force and the explicit approval of legislature discriminations against non-marital families is consistent with existing case-law for the courts to rely on a traditional, albeit now contested, understanding of marriage in order to exclude same-sex couples from that institution.
        • This decision to the SCt was abandoned although fresh proceedings have been suggested to the HCt, on different grounds, challenging s. 2 of the Civil Registration Act 2004.
  • **Foy v An t-Ard Chlaraitheoir (No. 1) (High Court, Unreported, July 9 2009)
    • Lydia, a woman, was born a man called Donal. Donal married a woman and had children. Subsequently underwent gender reassignment surgery and became Lydia. Lydia applied to have her birth certificate retrospectively changed.
    • Held: “it is crucial for legal purposes that the parties should be of the opposite biological sex”
  • ***Foy v An t-Ard Chlaraitheoir (No. 2) [2007] IECH 470
    • Lydia brought a new case (based on ECHR Act finding UK in breach) – arguing breach of Art. 8 of ECHR to recognize re-assigned gender.
    • If Irish law is required to recognize Lydia as a woman, then she would be de facto in a same-sex marriage.
    • Does this mean same-sex marriages are allowed – or does this mean her marriage is null and void?

The ***Foy (No. 2) case impacts the ***Zappone case in many aspects. There is considerable pressure to decide the matters of same-sex marriages/gender re-assignment in Ireland.

2) The Life of the Woman in the Home

Art. 41.2 provides:

  • “1° In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.
  • 2° The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.”

This Article has been described by Kelly as “perhaps… the single most dated provision of the Constitution.”

Although contentious, interestingly, this aspect of fundamental rights had generated almost no case-law however.

In this next case, Denham J (as she then was) thought Art. 41.2 should be viewed in light of this modern era:

  • ***Sinnott v Minister for Education [2001] 2 IR 545

    • “… it is to be construed in the Ireland of the Celtic Tiger… Article 41.2 does not assign women to a domestic role. It recognises the significant role played by wives and mothers in the home… [and] does not exclude women and mothers from other roles and activities… .”

In light of this ‘modern’ interpretation, it is now seen that Art. 41.2 has in fact been used to justify legislative discrimination in favour of women (**Dennehy v Minister for Social Welfare (High Court, unreported, 26th July 1984) and *Lowth v Minister for Social Welfare [1998] 4 IR 321)

3) Adoption

Adoption, as implemented in 1952 related only to extra-marital children and marital families where both parents had died.

Section 24 of the Adoption Act 1952 provides:

“Upon an adoption order being made – 

(a) the child shall be considered with regard to the rights and duties of parents and children in relation to each other as the child of the adopter or adopters born to him, her or them in lawful wedlock;

(b) the mother or guardian shall lose all parental rights and be freed from all parental duties with respect to the child.”

The Adoption Act 1952 does not require the consent of an extra-marital father where a mother wishes to initiate adoption proceedings (See also **G v An Bord Uchtala [1980] IR 32)

As a natural father of an extra-marital child has no constitutional rights in respect of the child, the 1952 Act does not require his consent when an adoption order is made (usually by the mother). A constitutional challenge to this situation failed in ***State (Nicolau) v An Bord Ucthala [1966] IR 567. However, this was found to be in breach of Articles 6 & 8 of the ECHR in ***Keegan v Ireland (1994) 18 EHRR 342 and so the law was amended by the Adoption Act 1998.

The Adoption Act 1988 introduced a limited mechanism for children of married parents to be put up for adoption under certain conditions (these are seen as overly rigorous) where the parents have failed in their duties (best interests of the child). They are:

  • Parents must fail in their duties continuously  for 12 months.
  • It must be shown that this failure will continue uninterrupted until that child in turns 18 years old.

This is effectively impossible. Even at this restrictive level, the constitutionality of the act was considered because of the family rights being inalienable, imprescriptible etc. – It was referred to the SCt to see whether this was unconstitutional

  • ***Re Article 26 and the Adoption (No. 2) BIll, 1987 [1989] IR 656
    • “The Court rejects the submissions that the nature of the family as a unit group possessing inalienable and imprescriptible rights, makes it constitutionally impermissible for a statute to restore to any member of an individual family constitutional rights of which he has been deprived by a method which disturbs or alters the constitution of that family… .”
    • The 1998 Act was therefore upheld.

Court went on to state that the failure of the parents must be total (must be of 2 parents where both are present); it must be for physical or moral reasons, and ‘physical’ does not include external factors such as poverty. 

4) Parental Failure and the Best Interests of the Child
The Constitution affords very strong rights to the family as a unit. Conversely, the rights of the child do not feature to any great extent in the express provisions of the Constitution.
Note: With the Children’s Referendum and the passing of Art. 42A, whether the rights of the child have been increased, or have remained the same, has been the subject of much debate. 
It has been noted however, in case law, that the child also has natural rights as seen in:
  • ***G v An Bord Uchtala [1980] IR 32

    • “The child also has natural rights. Normally, these will be safe under the care and protection of its mother. Having been born, the child has the right to be fed… reared… educated… have the opportunity of working… . These rights… (and others which I have not enumerated) must equally be protected and vindicated by the State.” (per O’Higging CJ)

As of 10th November 2012 (Thirty-First Amendment of the Constitution (Children) Bill 2012) Article 42.5 of the Constitution has been removed, and Article 42A has been inserted. 

So, the Constitution was criticised for not affording children their rights in an explicit manner. Previously, they are not mentioned. Where they were, they were mentioned indirectly, usually by way of parents – and even when education was concerned, it said that the State will provide it with due regard to the rights of the parents. 

It is arguable whether Art. 42A changes much at all. (See link to constitutional changes here)

Although the Constitution has changed, we must still look at Art. 42.5 to perhaps try and understand that background to Art. 42A and what may occur in future cases with regard to children’s rights.

  • Art. 42.5 (as it was), placed a duty on the State to endeavour to supply the place of the parens in cases where they fail in their duties towards their children:

So, we may ask ourselves where the exception kick in with regard to Art. 42.5?

  • Back to Art. 41.1.2 –> where the State guarantees to protect the family in its constitution and authority, a knock-on effect of this is that the State tries not to remove children from the family.

As a result of this constitutional footing, where the State has seemingly minimal power, this is an area where legislation interacts closely with the Constitution.

Types of cases that arise are:

  • Private Law Family Disputes – disputes between parents about custody, access, guardianship etc.
    • e.g. Guardianship of Infants Act 1954
  • Adoption – Acts 1954-2010
  • Public Law Family Proceedings – this concerns cases involving abuse, neglect etc. pursuant to Art. 42.5

These types of cases have one common denominator –> The Welfare Principle.

  • The Welfare Principle – This is where the child’s best interests (the welfare of the child) is the paramount consideration. This suggests that in a case where a parental right is being exercised which damages the welfare of the child, the welfare of the child should take priority over the parental right; in theory.
    • It is a legislative (not a constitutional) principle. 
  • The interaction between this legislative principle, and the constitutional rights of parents have an interesting role because in the hierarchy of laws, constitutional law supersede legislative law. Also, when producing legislation, the Oireachtas must have regard to the Constitution. In cases of clear conflict, the legislation will be struck down, however this is very rare. There is a grey area where legislation is open to different interpretations. The principle is that it must be given the interpretation which is most coherent with the constitution. 

Some cases that consider Art. 42.5 and the Welfare Principle are:

  • ***Re JH (an infant), Case E v An Bord Uchtala [1985] IR 375
    • A young, unmarried woman, became pregnant. Decided to place child for adoption.
      • When a child is placed for adoption, there are two stages: 1) The initial consent to placement (with prospective adoptive parents). 2) Final consent to the adoption order.
        • The idea of this two stage process is that there is an opportunity for the mother to change her mind (this is seen as being in the best interests of the child).
          • However, the welfare of the child must be considered as well. The Adoption Act 1974 allows for the adoptive parents to apply for a waiver on the second consent, and proceed with the adoption, based on the interests of the child such that going back to the natural mother would not be in the child’s best interests.
        • In this case, the mother and father continued their relationship. After some time, they decided to get married then the child was 2 years old and had been with adoptive parents since birth (at this point the second stage had not been consented to).The mother, now married, wanted the child back and refused to provide second stage consent.
    • Issue: Whether or not the second consent should be waived, as it might be detrimental to the child?
      • Per Justice Lynch – The evidence presented was that returning the child would cause the child serious psychological harm.
    • Held: Declined for the child to be returned. Similar decisions to dispense with consent have been held for children of merely 12-15 months.
    • The mother appealed to the SCt. What is interesting about the SCt case was how it approached the question of the welfare principle.
    • SCt Held: Justice Lynch had applied the incorrect test; Lynch J had not given adequate attention to the constitutional rights of the parents, who were now married and could rely on Art. 41 and 42 of the Constitution.
      • “There is a constitutional presumption that the welfare of the child is to be found within the family… unless there are compelling reasons why this cannot be achieved, or unless the Court is satisfied that the evidence establishes an exceptional case where parents have failed to provide education for the child and continue to fail to provide education for the child for moral and physical reasons.”

What did it take to rebut this presumption?

  • The case went back to Lynch J in HCt – the child was, by this time, 3 years old.
    • Based on presumption of best interests, Lynch ordered the child to be returned.
  • This shows us that: a risk of psychological harm and evidence of that risk was not sufficient to rebut the presumption that the welfare of the child was to be found in the constitutional rights of the family.

This next case follows the same thread:

  • ***North Western Health Board v HW [2001] 3 IR 622, (PKU Case)
    • A PKU test is a heel prick test by which a sample of blood is taken to screen babies for a range of different conditions, which are easily treated if identified early, but if not identified, can prove to be very serious in later life. The test carries, in effect, no risk to the child, yet also carries a significant benefit. However, like any other medical issue which involves medical contact and breaking of the skin, it requires consent. Parents have to give consent on the infant’s behalf as the infant does not have the requisite capacity. Here, the parents refused consent to the test. They said they held a belief that no human should harm another. However, the Health Board disagreed and wanted to proceed with the test. The Health Board brought an application for an interim care order.
    • Issue: Is the welfare of the child is the first and paramount consideration for the court? (this case is under the Child Care Act).
      • Having said that, the court must presume that the best interests lie in the family (That the family’s authority be respected) (following obiter provided in numerous cases, including ***Re JH)
    • Denham J: “…Welfare Principle must be read in light of the Constitution.”
    • Held: The parents decision was: “ill-advised, unwise and disturbing, but it was their constitutional right to do so.”

To summarize these two cases then:

  • In both of these cases, legislation is overridden by the Constitution.
    • What must it take to rebut this presumption (that legislation supersedes the Constitution)?
      • Re JH – seen that psychological harm was insufficient.
      • PKU  – death or serious injury is required.
  • ***N v Health Services Executive (Baby Anne) [2006] 4 IR 473
    • Involved a young couple in which the girl became pregnant and didn’t want to keep the baby. The child was placed for adoption. The mother gave initial consent but then not final. After 2 years the case came to the High Court (the child had spent its entire life with adoptive parents) – The High Court said that the evidence suggests that returning the child would be damaging. Re JH and PKU case were strongly approved.
      • HCt ruled contrary to Re JH 20 years earlier. The HCt seemed to be inviting the SCt to reconsider.
    • SCt unanimously overturned the HC’s decision.
      • Presumption was that the child’s welfare was to be found in the marital family. Baby Anne was to be returned to her natural parents.
  • This test for intervention is developed by this case, yet there is a lack of commentary provided by the judges on the exact requirements/test.

Where the HSE (Health Services Executive) takes child protection actions, they are done so in the District Court and are usually not reported so we do not have many examples of cases where intervention is allowed/warranted. However, sometimes they are appealed to the HCt etc. such as:

  • ***Re Baby AB [2011] 1 IR 665
  • Baby required blood transfusion. Medical advice was that there was a serious risk the baby would die without the transfusion. The parents were Jehovah’s Witnesses. Hospital applied to the HCt to override that decision by the parents.
  • Since the child’s life was at risk and the PKU test outlined that the presumption (Constitution supersedes legislation) can be rebutted, the HCt overruled the parents in order to save the child’s life.

What about the grey areas however, that are between the PKU case and Re Baby AB. What is the tipping point at where intervention becomes permissible? We must ask ourselves whether this tipping point been set too close to catastrophe (life at risk)?

Some useful commentary can be taken from ***North Western Health Board v HW [2001] 3 IR 622

  • Denham J: “In assessing whether State intervention is necessary the fundamental principle is that the welfare of the child is paramount. However… ” the child’s place in a family must be taken into account.
  • Murray J: “… there must be some immediate and fundamental threat to the capacity of the child to continue to function as a human person, physically, morally or socially, deriving from an exceptional dereliction of duty on the part of parents to justify such an intervention.”
Out of all this case-law came a series of reports, ultimately leading to the Thirty-First Amendment of the Constitution (Children) Bill 2012 and the replacement of Art. 42.5 with Art. 42A on November 10th 2012. To get there however, a series of reports and investigations happened:
In a series of reports, the Constitution was seen to strike the balance too much in favor of the parental rights, and not enough in favor of children’s rights. In other words, the State’s hands are tied too tightly by the Constitution.
  • **Kilkenny Incest Investigation Report – “…the fear of impinging the rights of the family (parents) ultimately results in a situation where abuse/neglect is left unsolved.” The report suggested including an explicit statement of the welfare principle, along the lines of Art. 3(1) of the UNCRC. 
  • Constitution Review Group 1996 – Also recommended that in particular, the Welfare Principle should be put into the Constitution. This would give constitutional force to that principle and counterbalance the powerful rights of the family (parents).
  • Similarly, The All Party Oireachtas Committee at p. 124 of their Tenth Progress Report, stated that they were “firmly of the view that there is a need to improve the constitutional rights of the child, while at the same time preserving appropriate parental authority.”
    • They suggested adding to Art. 41 in providing that “[i]n all cases where the welfare of the child so requires, regard shall be had to the best interests of that child.”
Subsequently a Joint Oireachtas Committee on the Constitutional Amendment on Children proposed the wording of an amendment as early as 2007 which has, as of now, replaced the existing Art 42.5.
The wording of Art. 42A has arguably, not done must in changing/putting to the fore, the rights of the child. (See: Kilkelly & O’Manohy, “The Proposed Children’s Rights Amendment: Running to Stand Still?” [2007] 2 Irish Journal of Family Law 19.)
Topic 4 – Article 40.3.3 and the Rights of the Unborn
1) Background to the Eighth Amendment
Abortion is a criminal offense in Ireland under s.58 of the Offenses Against the Person Act 1861 –> “To procure an unlawful miscarriage…”
However, after the legal prohibition of the importation and sale of contraceptives was found to be unconstitutional as a breach of an unenumerated right in ***McGee v Attorney General [1974] 1 IR 284, fears arose that the doctrine of unenumerated rights might be stretched so as to invalidate the criminalization of abortion. Indeed, this is what had already happened under similar provisions in the US Constitution; the right to privacy had been applied to the issue of contraception in **Griswold v Connecticut 381 U.S. 479 (1965) and this was found to legalize abortion in certain circumstances in **Roe v Wade 410 U.S. 113 (1973).
  • **Griswold and ***McGee are very similar. **Griswold took place in 1965, the same year as the Unenumerated Rights doctrine was found to exist in Irish law in the case of ***Ryan v Attorney General.
    • In **Roe v Wade, a constitutional right not explicitly stated/provided for in the US Constitution was found to extend to the legalization of abortion in the first trimester as in **Roe v Wade. This right was that of the Right to Privacy – and this was what was found in ***McGee.
      • It is not hard to identify the correlative connection between occurrences in the US and fears of the same occurring in Ireland. **Griswold v Connecticut identified an unenumerated right in the US Constitution to privacy. In Ireland, the same was found in ***McGee v AG. In the US, as a result of **Griswold, **Roe v Wade allowed for abortion in some cases. The fear was that in Ireland, because of the precedent set in the US between **Griswold and ***Roe v Wade, abortion might succumb to be allowed in Ireland in certain instances. 

Consequently in Ireland, a successful campaign (PLAC) resulted in the insertion of a new provision recognizing the right to life of the unborn in Article 40.3.3. It provided:

“The State acknowledges the right to life of the unborn and, with due regard for the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.”
This was the 8th Amendment to the Constitution and took place in 1983.
Through this campaign the vagueness of the Constitution was amended (or at least had tried to be amended) to preclude the possibility of abortion being recognized as an extension of the right to privacy as found in ***McGee with the rejection of legislation criminalizing contraceptives. Ideally, the Oireachtas should fill in the blanks with regard to the Article for the right of life to the unborn e.g. clarify with regard to frozen embryos, IVF etc. but this is yet to be done. It is a politically hot topic. 
Kelly went on to remark that the newly inserted Art. 40.3.3 “tried to achieve the impossible – it expressly equated two rights which, on those rare occasions when they come into conflict, cannot be reconciled.”
Dr. Neville Cox noted that the amendment was sectarian and an oversimplification of a complex problem. 
2) The State’s Duty to Protect the Right to Life of the Unborn
Having achieved in inserting Art. 40.3.3 into the Constitution, the pro-life lobby decided to push ahead by taking a case against abortion information providers.
  • ***Attorney General (SPUC (Ireland) Ltd.) v Open Door Counselling Ltd. [1988] 1 IR 593
    • ODC provided information to pregnant women about abortion services available in the UK.
    • Issue: Was providing information about abortion procedures overseas, in Ireland, a violation of Art. 40.3.3?
    • Held: Article 40.3.3 is self-executing (no need for the Oireachtas to pass legislation) and imposes an obligation not only on the Oireachtas, but also the courts. The courts were not only entitled, but obliged to act directly on foot of Art. 40.3.3 to protect the right to life of the unborn if asked to do so – the fact that the Oireachtas had not passed any relevant legislation did not matter.
      • Also, there cannot be an unenumerated right to receive information about a service outside of the State which, if availed of, would have the direct consequence of destroying the expressly guarantees constitutional right to life of the unborn.
    • ODC’s arguments were based on the right of communication etc. It was seen that this was not viable as an unenumerated right as it would destroy the express right afforded to the unborn in Art. 40.3.3.

This case went on to the European Court of Human Rights.

Similar to ***SPUC v Open Door Counselling Ltd. is ***SPUC (Ireland) Ltd. v Grogan (No. 1) [1989] IR 753 which concerned the Trinity College Dublin student handbook where numbers of UK abortion clinics were provided. The Students Association lost this case, yet it was appealed to the Court of Justice of the European Union (formerly the European Court of Justice). 

  • The SPUC cases were later found to be in breach of Art. 10 (freedom of expression) of the ECHR. The CJEU went on to say that abortion was a service within the meaning of the Treaty and that a commercial agent of an abortion clinic, lawful in another Member State, could distribute information about that abortion service in Ireland.”

3) Threats to the Life of the Mother

One of the most significant cases in Irish legal history is ***Attorney general v X [1992] 1 IR 1, more commonly known as The ‘X’ Case, established the right of Irish women to an abortion if a pregnant woman’s life was at risk because of pregnancy, including the risk of suicide.

  • *****Attorney General v X [1992] 1 IR 1
    • Background: A fourteen-year-old girl (‘X’)who had been raped by a neighbour, became pregnant. X told her mother of suicidal thoughts and as abortion was illegal in Ireland (in both Northern Ireland and the Republic), the family travelled to England for an abortion. Before the abortion was carried out, the family asked the Garda Síochána if DNA from the aborted foetus would be admissible as evidence in the courts, as the neighbour was denying responsibility. Hearing that X planned to have an abortion, the Attorney General, Harry Whelehan, sought an injunction under Article 40.3.3 of the Constitution preventing her from having the procedure carried out. The injunction was granted by Mr Justice Declan Costello in the High Court. The case was appealed to the SCt.
    • Issue: Whether or not Art. 40.3.3 entitled X to travel to England to have this abortion or precluded it.

    • Arguments against travel:
      • SPUC cases determination and unequivocal non-recognition of Art. 10 of the ECHR.
      • Travelling for an abortion would undermine Art. 40.3.3 as a constitutional provision and disregard the right to life of the unborn.
    • Arguments for travel:
      • Balancing the right to life of the mother vs. unborn.
      • The life of the unborn is wholly contingent on the life of the mother.
    • Held: The Supreme Court overturned the HCt decision by a majority of four to one (Hederman J. dissenting). The majority opinion (Finlay C.J., McCarthy, Egan and O’Flaherty J.J.) held that a woman had a right to an abortion under Article 40.3.3 if there was “…a real and substantial risk” to her life. This right did not exist if there was a risk to her health but not her life; however it did exist if the risk was the possibility of suicide.

      • This allowed for the abortion to take place in Ireland. The 1861 Act made it an offence to procure an unlawful miscarriage. So, there are situations where it is necessary to remove a foetus to save the mother’s life. This is the case in an ectopic pregnancy for example. The SCt saw this as much the same thing, the unborn child’s life was for lack of a better word, doomed either way. The SCt did emphasize that it must be a risk to the mother’s life and not merely to the mother’s health. 
    • However, the SCt went on to say that if the mother’s life was not at risk, they would have granted the injunction, preventing her from traveling – the right to life took priority over the right to travel.
        • X miscarried shortly after the judgement. The perpetrator was sentenced to 14 years in prison, reduced on appeal to 4 years.

There are conflicting interests in this case: Mother’s right to life vs. the unborn child’s right to life.

  • What seems to have arisen in this situation is that the mother’s right to life succeeds over the unborn’s right to life, when they come into conflict with one another. Forgetting any moral implications, and basing this ruling on logic, it makes sense when we consider that the life of the child is contingent on the life of the mother (if X committed suicide, the child would likely die as a consequence). 
    • An interesting question, and something that has not been parsed yet is the issue of whether this hierarchy of rights is absolute. An example might be if a mother, after being raped and becomes pregnant, threatens suicide. She may be placed on suicide watch if the unborn is in a stage of development such that it may be saved if the mother were to take her own life. In this sense would the courts decline to permit an abortion?

The ‘X’ Case caused much controversy: Neither side was happy:

  • Pro-life – On the basis that when the amendment to the constitution was made, the intention was to prevent people from having an abortion in Ireland. This they claimed, made it too easy. It was “flouting” the intended achievement of the amendment. (People could abuse this and go to their doctors and say “I am suicidal” etc.)
  • Pro-choice – On the basis that the court retained the right to stop travel to get an abortion. They felt this was a draconian measure.

While this (The ‘X’ Case) was ongoing, influences from EC and ECHR law were making it clear that a further constitutional amendment would be required; the ***Open Door Counselling case led to a successful application to the ECtHR, which the ***Grogan case led to a successful application to the ECJ (now the CJEU).

  • ***Attorney General (SPUC (Ireland) Ltd.) v Open Door Counselling Ltd. [1988] 1 IR 593
    • This case went to the ECtHR in Strasbourg.
    • Argued: Women did have a right to receive information about abortion overseas under Art. 10 of the ECHR.
      • The right to free expression in Art 10 included the right to receive information about legal activities in another member state.
    • Held: They did have the right to receive information.
  • This placed Ireland under political pressure. However, it was only pressure rather than automatic legal information
  • ***SPUC (Ireland) Ltd. v Grogan (No. 1) [1989] IR 753
    • This case went to ECJ in Luxembourg
    • Argued: That prohibiting the distribution of information about legal services that are lawfully available in another member state was contrary to the Free Movement of Services
    • Because of Art 29.4.6 – this was a legal intervention.
    • Held: They did have the right to receive information.

Although we now see that the SPUC cases granted abortion information to be distributed, these cases took place in the European courts. We shall take a quick look at the relationship between the ECtHR and CJEU.

ECtHR CJEU (ECJ as it was in Grogan)
Location Strasbourg Luxembourg
Law ECHR EU Law (Treaties, Directives etc.)
Organization Council of Europe (much larger than the EU) European Union
Domestic Law ECHR Act 2003 – this is sub-constitutional. Irish constitution therefore takes priority Article 29.4.6 – This has constitutional footing.
  Open Door Counselling – Art 10 ECHR – Freedom to Communicate Information GroganFree Movement of Services
With the ECtHR and CJEU handing down critical judgments of the law and application of that law in Ireland, the Government saw that a referendum was needed. Proposed were three amendments to Art 40.3.3.
  1. Travel Amendment – whether or not people should be allowed to travel – This was passed. 
  2. Access to Information – This was passed. 
    • Therefore the SPUC cases (Grogan and ODC) were no longer good law.
  3. Do we want to remove suicide as grounds for abortion – This was not passed. It remains good law in Ireland.

10 years later in 2002, the 3rd amendment (removal of suicide as grounds for abortion) was put forth again. Once again, it was rejected. However, the issue has still not disappeared. This is seen by the closeness of the votes: 50.4% voted NO and 49.6% voted YES in 2002.

Art 40.3.3° now reads:

“The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.

This subsection shall not limit freedom to travel between the State and another state.

This subsection shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another state.”

Note that legislation regulating the provision of information relating to abortion services was challenged, but found to be constitutional, in Re Article 26 and the Regulation of Information (Services outside the State for Termination of Pregnancies) Bill 1995 [1995] 1 IR 1. 

  • ***A and B v Eastern Health Board [1998] 1 IR 464
    • This case was very similar to the X case – the girl was 13 (14 in X case), she was a rape victim and wanted an abortion, saying she was going to commit suicide if she could not have one. The circumstances were, unfortunately, worse in this case.
      • The girl was living in poverty (they were also members of the traveler community (this is noted only for a cultural/background understanding of the girls position)).
      • The alleged rapist was a friend of the family and the girl’s parents were not supportive of 1) the prosecution and 2) her request for an abortion.
    • The Health Board sought to take the girl into care for they believed her life was at risk (she was suicidal). Under the travel amendment, she could travel to the UK if her parents let her, but her parents would not allow this.
  • Held: The District Court granted a care order (child’s welfare/life is at risk). Once in the care, the HSE then has the legal authority to consent to the girl travelling and to consent to the medical procedure (abortion).
    • The parents appealed this to the High Court where their appeal failed. Ultimately the child was taken to the UK where she had an abortion.
      • The HSE took the case to court to “rubber stamp” the girl’s travel and deflect criticism onto the judiciary.

This case does not add much to the law, however it illustrates the controversy that surrounds the issue. Some arguments from either side that surround this case are:

  • Pro-life: The taxpayer is paying for the girl to have the abortion (the pro-life activists feel they are contributing to the murder of a child).
  • Pro-choice: The X case said that you are entitled to an abortion in Ireland – if you are entitled to it in Ireland, you shouldn’t have to travel — so abortions were not available in Ireland with regards to rape victims who may commit suicide. – she was not able to get an abortion because no legislation has been enacted and doctors are not willing to take the risk.
    • Medical council guidelines allow for termination in 3 cases:
      • Ectopic
      • Cervical cancer
      • Pre-eclampcia
        • There is no legislation clarifying when abortions are permitted.

Another case (seen below), although less important, it illustrates the controversy found in ***The X case and ***A and B v Eastern Health Board:

  • **Miss D (The Irish TImes, May 10, 2007)
  • 17-year-old girl was in the care of the State when she became pregnant (the sex was consensual). Her unborn baby was diagnosed with a severe abnormality (portion of brain was missing) and would die within a day or two of being born (i.e. incapable of surviving outside of the whom). Miss D took the view that she did not want to go to the trauma of carrying the child full term, birthing the child and then having the child die in her arms. She wanted an abortion and said that she was not suicidal.
    • Since there was no threat she was not entitled to an abortion in Ireland.
  • Held: As the child would be born alive, the child will accumulate legal personality, even if for mere hours only. Also, the child has the right to life in the womb, pursuant to Art. 40.3.3 since it is as likely as any other fetus to be born alive.
    • Nevertheless, she was still entitled to travel by virtue of the amendment to the Constitution after the X case.

An interesting question is why did this case end up in the High Court if the legal position is relatively clear (as seen in X)? This occurred for two reasons:

  1. No legislation
  2. Overhang of the ***A and B case.
  • ***A, B and C v Ireland (25579/05, December 16, 2010)
    • Three women had different forms of cancer. In each case an abortion was necessary to treat their illness effectively. In each case they failed to have their abortion in Ireland because they did not fall within the narrow category as set out in The X case. All the women travelled to the UK to have abortions and had issues with their after-care (since their abortion doctors were in the UK).
    • Held: Ireland is permitted to ban abortion, however, Ireland’s failure to implement legislation clarifying the circumstances in which abortion is legal, is a violation of Art. 8 of the ECHR.

We are still waiting on the Report by the expert group on their recommendations coming from ***A, B and C. — This might be the next big political storm we will see in Ireland. 

4) Threats to the Unborn other than Abortion

  • ***Baby O’ v Minister for Justice [2002] 2 IR 169
    • A mother was being deported to Nigeria and argued that her unborn child was at a risk in Nigeria due to the statistically higher infant mortality rate there.
    • Held: The SCt felt that the deportation of a pregnant mother to another State with a higher infant mortality rate does not interfere with the right to life of the unborn child, since the Irish State is not trying to terminate that pregnancy.

The development of technology such as the morning-after pill, embryo research and in vitro fertilization (IVF) has raised major questions as to the point at which the right to life of the unborn comes into effect (Art 40.3.3) – Is it on conception? Implantation? Viability? What constitutes viability? These are all interesting and current questions, yet the law has been slow in catching up. 

  • ****Roche v Roche [2010] 2 IR 321
  • Background: Couple had undergone successful IVF treatment and had a child. There were a number of fertilized embryos in storage but the couple later split up. Subsequently, the mother wanted to be implanted with the remaining embryos. She was referring to the embryos as “her children.” The father did not want more children and objected  (did not consent).
  • Issue: Whether or not the mother could be implanted with embryos when the father objects?
    • Contractual dispute: contractually, the father’s consent was required (clinic would not release embryos without father’s consent)
    • However, the mother argued that the embryos had a right to life under Art. 40.3.3.
  • Arguments For:
    • They are fertilized embryos, as would be in the womb.
    • The word “unborn” is a broad term (does not refer to fetus specifically etc.)
    • By Art. 40.3.3 referring to the mother, her rights may trump those of the father.
    • No qualification on the unborn in the text of Art. 40.3.3
    • The constitution is a living document and must be read in light of new technological developments, such as IVF.
  • Arguments Against:
    • The concern in 1983 with the amendment and insertion of Art.40.3.3 was abortion only (did not consider IVF). Allowing the mother to implant the embryos would possibly stretch the limits of the courts jurisdiction – it may be the job of the legislature.
    • The text of the provision does not make it clear the status of embryos of IVF treatments.
  • In the HCt, McGovern J (his first case as a HCt judge) held against the mother. He said: “the case was not about when life began, that was a philosophical question, the question for the court was whether frozen embryos fell within the meaning of Art. 40.3.3”
    • The Attorney General submitted to the High Court that the general electorate in 1983 were concerned with abortion.
    • McGovern J accepted this argument – “…the 8th amendment was motivated by concerns about abortion and the electorate in 1983 did not have IVF/embryos in their mind.”
    • McGovern J noted the fact that there was no legislation protecting embryos and held that the original meaning stood, and to extend it would be the job of the legislature or the people (by referendum).
  • But, what did the electorate mean in 1983? – During the course of the SCt appeal, a woman who voted in the 1983 election applied to be a party to the case because the AG had, in her mind, misrepresented the electorate’s intentions. The SCt however, declined to add her to the proceedings.
  • Held: On appeal, the SCt unanimously rejected the mother’s appeal. They reached their decision however, on different grounds (in contrast to McGovern J in the HCt).
    • They stayed away from speculating about what the electorate had in their mind in 1983. They took a very narrow approach, focusing on the wording of Art. 40.3.3.
    • It came down to two points:
      1. The word “unborn” implied the potential to be born, but this does not arise until the embryos are implanted.
      2. In Art. 40.3.3 you have a balancing between the right to life of the unborn and right to life of the mother – The Court asked why this was done and they said the only reason was to do this if they came into conflict. This can only happen when the embryo is in the womb. An embryo in a test tube does not pose any threat to the mother. “The provision only makes sense where there is a physical connection between the unborn and the mother, and in the absence of such a physical connection, the provision does not apply.”
    • Essentially, the mother could not rely on Art. 40.3.3 as there was no physical connection between the herself and the embryos – Therefore, it may be deduced that Art. 40.3.3 requires some sort of physical connection to be invoked. 
  • The SCt was however, extremely critical of the Oireachtas for failing to legislate on the issue – this is the same point that arose in the ***A, B and C case in the ECtHR.

Topic 5 – Article 42: Education

1) Parental Rights in Education

Art. 42 approaches the issue of education from the standpoint of the parents. It only mentions children indirectly –-> in parents having rights over their children. It emphasizes the position of parents and the rights they have with respect to making education decisions on behalf of their children.

The State plays a subsidiary role to the parents. It is there merely to support the parents in the education of their children.

So, the question we must ask is; what are parents entitled to decide with respect to their children and how do these decisions interface with the role of the State?

Parents have the right to:

  • Art. 42.1 – Provide for the religious ad moral, intellectual, physical and social education of their children.
  • Art. 42.2 – Establish and direct private schools.
  • Art. 42.2 – Educate their children at home.
  • Choose their child’s school (State (Doyle) v Minister for Education (1995) [1989] ILRM 27)

2) Role of the State

The State has the following duties:

  • Art. 42.3.2 – To ensure a certain minimum standard of education
  • Art. 42A – To intervene in cases where parents fail in their duty to provide for the education of their children.

Consequently, all parental rights are subject to restrictions, e.g. the admissions policies of schools, the duty of the State to verify standards and ensure a certain minimum standard of education.

  • ***O’Shiel v Minister for Education [1999] 2 ILRM 241

    • A group or parents applied for the State to fund a new “Steiner” school for their children.
      • Cases stated to the SCt.
    • Held: While the State must have regard to parental choice, it is not obliged to grant funding to every group of parents who apply for it. The State is entitled to have a scheme in place so as to allocate funding, and the current one is permissible under the Constitution. In an obiter statement, “certain minimum education” was seen to be of a lower standard than the “primary education” referred to in Art. 42.4.

See also the case of Carberry v Yates.

How does the State address the issue of providing a certain minimum education requirements as per Art. 42.4?

  • Under the Education Welfare Act 2000, it is compulsory for children to attend a recognized school up to the age of 16, with certain exceptions in place, seen in s. 17(2) of the Act. This is in support of Art. 42.3 where children must receive at least a minimum education.
  • ***DPP v Best [2000] 2 ILRM 1

    • Parents were not happy with the education their children had been receiving in school so removed them and began home schooling. The children’s syllabus was inspected and it was found that the education being provided at home had a “lack of structure and they were not being taught the Irish language.” The parents were served with a school attendance notice. When the parents did not comply, they were prosecuted in the District Court. The parents tried to defend the case by arguing that a“certain minimum education” is not defined in Art. 42. The District Court stated a question to the SCt.
    • Justice Denham: pointed out that because the Constitution is a living document, “certain minimum education” is a standard which varies from time to time and is to be interpreted in light of prevailing conditions and ideas.
      • Further, the standard must be conducive to the child achieving intellectual and social development and must not place the child in a discriminatory position.
    • Keane J: The primary school curriculum is above the constitutional minimum and we should not equate the term “certain minimum education” with the standard primary school curriculum.
      • This brings us to the issue of the Irish language and whether or not this forms part of this “certain minimum education.” – Because in Art.8, Irish is the first official language, is this bearing on the education requirements? – Keane CJ said that “the absences of Irish from the curriculum does not, of itself, indicate that the standard has not been reached; however, it can be taken into account.” But, because Irish is the first official language and knowledge of it is required in certain forms of employment – it must be taken into account.

3) The Right of the Child to Receive Education

Art. 42.4 places a duty on the State to “provide for free primary education”

***Crowley established that the duty on the State to provide for “free primary education” created a corresponding right held by those on whose behalf it was imposed to receive what must be provided.

  • ***Crowley v Ireland [1980] IR 102
    • Background:
      • Art. 42.4 notes “the State shall provide for free primary education” – in the original drafting the word “for” was not inserted. De Valera inserted it however so as to distance the State from the schools, where in Ireland  the system of national schools are run and owned by the churches, but funded by the State (1800s).
        • So schools in Ireland are privately owned and privately managed, but paid for by the State. – this was established in the Crowley case. 
    • HeldPer O’ Higgins CJ – “the imposition of the duty under Art. 42.4… creates a corresponding rights in those in whose behalf it is imposed to receive what must be provided.”
  • ***Sinnott v Minister for Education [2001] 2 IR 545
    • With regard to the “… duty to provide for”, Barr J. in the HCt commented “… [the State] may elect to dischage its duties through third party organizations. However… it has an obligation… in discharge of its constitutional obligations…; to take a positive role in the organization, provision and supervisions of services offered on its behalf, and also to provide funds necessary to meet its constitutional obligations.”

The bigger question that comes up however is what does “free primary education” mean, and who does it extend to?

  • We must first consider what was in the mind of De Valera in 1937. This, undoubtedly, would have been your basic primary school education as seen then: 3 R’s – Reading, Writing and Arithmetic. This was between the ages of 4 and 12.
    • But, the constitution is a living document, so the fact that that what was understood in 1937 does not mean this is the case now.
  • In particular we must ask to what extent does “free primary education” require the state to make provisions for disabled and special education children?

4) “Primary Education” and Special Educational Needs

The following cases outline the questions surrounding the role of the State with regard to special educational needs of its citizens.

  • ***O’Donoghue v Minister for Health [1996] 2 IR 20
    • Paul O’Donoghue’s educational needs, as an autistic child, were not being met by the State.
    • Arguments put forth on behalf of State:
      • Art. 42.3.2 presupposes that only a “minimum”  education is required – nonetheless, every child is supposed to get a minimum.
      • What is the distinction between healthcare and education? The State felt that Paul’s needs fell more in terms of healthcare as opposed to education.
      • “On behalf of the common good” the State felt that they needed to manage resources effectively. To attest to Paul’s needs would be far too burdensome.
      • Paul O’Donoghue was incapable of being educated as he was so profoundly disabled (This is a question of fact, rather than a question of law)
        • Expert evidence however, showed that he was capable, to a degree. (This argument failed entirely)
      • “Primary education” in Art. 42.4 is scholastic in character and refers to the primary curriculum – the State said this was available to anyone, but said that what was available wasn’t of use to Paul O’Donoghue.
    • Arguments put forth by Paul O’Donoghue:
      • He was entitled to equal treatment under the law – this was therefore a discrimination case in the eyes of P’s legal team.
    • Held: Looking to ***Ryan v Attorney General [1965] IR 294, and O’Dalaigh CJ’s commentary, the definition of “education” was determined. O’Hanlon J stated: There is a duty imposed by Art. 42 on the State to give provide free basic elementary education and this involves “giving each child such advice, instruction and teaching as will enable him or her to make the best possible use of his or her inherent potential capacities, physical, mental and moral, however limited these capacities may be.  
      • The addition to the definition given in Ryan is seen in bold. This qualification to the Ryan definition expanded the scope of the State’s requirement to include in its ambit, disabled children and those with special needs. As a result, hundreds of cases flooded the courts. 

McGuinness J went on to **Comerford to affirm this principle set down in ***O’Donoghue.

  • **Comerford v Minister for Education [1997] 2 ILRM 134
    • McGuinness J: “the right to free primary education extends to every child, although… [it] must vary in accordance with the child’s abilities and needs.”

On establishing that the right to “basic elementary education” should include in its ambit all children, “however limited… [their] capacities”, what about their education into adulthood? ***Sinnott asked exactly this question.

  • ***Sinnott v Minister for Education [2001] 2 IR 545
    • Background: Sinnott argued that the right to free primary education should extend into adulthood if necessary. Sinnott had  one year of appropriate education provided by the State during his 23 years of life.
  • Barr J in the HCt looked at the provision in two ways:
    1. He looked at Art. 42.4  and determined that “there is no age limitation on a citizen’s right to on-going primary education provided by or on behalf of the State.”Literal interpretation.
    2. It is evident that the right to primary education would be fundamentally flawed if narrowly interpreted as ending at an arbitrary age…” — Purposive interpretation.
  • Barr J – : The ultimate criterion in interpreting the State’s constitutional obligation to provide for primary education of the grievously disabled is “need” and not “age”.” –This was the decision of Barr J in the HCt.
  • The Supreme Court, by a majority of 6-1, overruled the HCt (This was the first time in Irish history that 7 judges heard a case).
    • The majority, using harmonious interpretation, felt that Art. 42.4 was addressed to meeting the needs of children up to the age of 18 years and no further. The majority rejected the arguments that a severely disabled adult such as Sinnott, who was entirely dependent on his family for care, could be regarded as a “child” merely for the purposes of Art. 42.
    • Keane CJ was the dissenting judge who cited 7 different ages that were “transition” ages in the law. He said there cannot just be a cut off point. 

We may ask ourselves why one court uses one approach to constitutional interpretation (the HCt using the literal approach) and another court uses something different (the SCt using the harmonious approach)? Most likely in this case, the SCt had a discomfort with ordering the Government to spend their resources in a certain way, and thereby they were protecting the separation of powers. It may be argued that this question in ***Sinnott boiled down to a policy issue – and in this sense, they chose the harmonious interpretation to give way to this. It is somewhat of a cop-out by the judiciary, but perhaps a necessary one at that. 

We have moved now from the cases where the State was providing nothing, to where in this case (**O’Carolan), what was being provided was thought not to be good enough:

  • ***O’Carolan v Minister for Education [2005] IEHC 296
    • Background: The plaintiff had been offered placement in a school in Dublin but his parents did not think it was suitable for his needs. They argued he should be placed in a different unit that happened to be in Bangor, Wales.
      • Note: In ***Crowley v Ireland [1980] IR 102, as discussed above, the word “for” was deliberately inserted into Art. 42.4 so as to distance the Government from the operation of schools, as they were predominantly run by churches, and therefore the provision of education through third parties. The question was whether or not the plaintiff was entitled to this?
    • Held: Per MacMenamin J – In determining whether a child’s constitutional right to education was being vindicated, the test is not whether an alternative placements is better or the best; the question is whether the placement in question is appropriate to the needs of the particular child.

This decision is interesting because although ***O’Donoghue was cited as the law on this area, and said that education must provide for the “best possible” whereas in ***O’Carolan the State’s obligations are being alleviated. However, as of recent, we have seen the courts retreating from Barr J’s high water mark for education provisions as set out in ***O’Carolan.

5) Religion and the Education System

The education system in Ireland:

  • 92% of public schools in Ireland are Catholic denominational schools.
  • 6% are Protestant schools (of all denominations)
  • <3% are multi-denominational schools – (Educate Together Organization) – the vast majority of these are in the big population centers (Dublin, Cork etc.)

In theory, religious freedom is fully protected in the education system

  • Art. 42.1 – Provides parents the right to ensure the religious education of their children.
  • Art. 44.2.1 – Freedom of conscience – prohibits State discrimination
  • Art. 44.2.3
  • Art. 44.2.5

Starting with Art. 42.1 – the reality facing many parents is that the only type of school in their immediate neighborhood is a catholic school.

Is this really a problem though because if we see Art. 44 – the State cannot discriminate and children do not have to attend religious instruction classes. Therefore, freedom of conscience are protected. 
  • ***Quinn’s Supermarket Ltd. v Attorney General [1972] 1 IR 1
    • Background: Case concerned legislation regulating the opening hours of butcher shops, but made exceptions for Jewish butcher shops with regard to the Sabbath. This was challenged on the equality ground – Art. 44.2 was one of the grounds.
    • Issue: Whether companies can rely on constitutional rights?
    • Held: Prima facie, discrimination is present in this case, however, Art. 44.2 must be in harmony with the Constitution and the beginning of said Article.
      • The primary purpose of art. 44.2 was to guarantee “freedom of conscience.” Prohibition or discrimination was secondary to that overall aim. As a result, sometimes you have to treat people differently in order to facilitate them in their freedom of religion – Discrimination is permissible where it is necessary to the overall aim of practicing religion.

Topic 6 – Equality Before the Law

This topic is not examinable.

Topic 7 – Remedies for Breaches of Constitutional Rights

i) Invalidity of Legislation

Pursuant to Art. 50 of the Constitution certain rules:

  • Pre-1937, unconstitutional laws are valid up to December 29th 1937
  • Post-1937 laws, if struck down, were never law (‘void abinitio’ or void retrospectively)
  • Pre-1937 laws, are not afforded the presumption of Constitutionality (Art. 15.4), but remain law until struck down.

A declaration of invalidity can take two forms:

  1. Unconstitutional in isolation –> Severance
  2. Unconstitutional in whole –> Entire statute is struck down

Severance may only take place where what remains is constitutional and capable of surviving and being operated independently (**Maher v Attornery General [1973] IR 140). An example of severance in practice can be seen in ***T O’G v Attorney General [1985] ILRM 61 where only the proviso s. 5(1) was severed leaving the rest of the Act intact.

–Retrospectivity

Where a declaration of invalidity is made, the question arises as to the effect of the invalid legislation during the period between its enactment and its being declared invalid.

If the invalid legislation was a pre-1937 Act held invalid under Art. 50, then it is deemed not to have survived the enactment of the Constitution and to become invalid from that time (i.e. 1937) onwards.

There is clearly an issue here. If the declaration made under Art. 50 amounts to a “judicial death certificate” (Murphy v AG [1982] IR 241), what about all the people convicted/held liable post-1937, under unconstitutional laws?

In the interests of orderly administration of justice, a number of limits have been places on the retrospective effect of a declaration of unconstitutionality.

  1. A person convicted of a criminal offence under unconstitutional legislation that is subsequently struck down can only seek to benefit from its invalidity if the issue of constitutionality was raised in his case.
    • ***DPP v Kavanagh [2012] IECCA 65
      • Defendant was convicted of armed robbery. Part of the evidence against him had come from the issue of a search warrant. Subsequently, the legislation governing search warrants was struck down in another case.
      • Because his lawyer had brought up the issue, he was allowed to avail of this.
  2. The courts have distinguished between the retrospective effect of invalidity on the legislation itself and on acts done pursuant to the legislation.
    • ***Murphy v AG [1982] IR 241
      • Income Tax Act 1967 – Tax was collected under this Act for 15 years but was found void ab initio.
      • Held: Not retrospectively invalid.
    • ***de Burca v AG [1976] IR 38
      • Juries Act 1927 – Struck down after 40 years of criminal trials being conducted in accordance with it.
      • Distinction was drawn between the law itself and acts done pursuant to the law.
    • ***McMahon v AG [1972] IR 69
      • Legislation governing elections did not comply with rewquirement of the secret ballot and therefore was deemed unconstitutional.
      • Held: Elections conducted in accordance with the invalid electoral legislation were not invalid.
    • ***A v Governor of Arbour Hill Prison [2006] IESC 45
      •  Defendant pleaded guilty to a 1935 Act governing rape and was sentenced to 3 years in prison. Subsequently in **CC v Ireland [2006] 4 IR 1, that law was struck down because it did not allow for a mistake of age.
      • Mr. A brought a case under Art. 40.4 (habeas corpus). HCt released him. However, this cause “moral panic” in Ireland and on appeal to the SCt, the decision was overturned, perhaps as a result of societal pressure.
        • Also, Mr. A did not raise the issue of constitutionality in his case in the first instance (DPP v Kavanagh). In the words of the SCt – “The egg cannot be unscrambled.”

What if the SCt overrule one of its earlier decisions holding a statute invalid? In the US, re-enactment is not required (*Chicot County Drainage v Baxter State Bank (1940) 308 US 371). In Ireland however, it may be necessary. In Murphy’s case it was pointed out that whereas judicial review of statutes only arises by implication under the US Constitution, Bunreacht na hEireann specifically provides therefor; and there are other differences between the two which were held to make some American options unavailable to the courts here.

Judge McMahon reasoned that to become law legislation must 1) Pass through the Oireachtas and 2) conform to the Constitution. So, if a decision of unconstitutionality is overturned it would seem the Chicot doctrine would apply in Ireland.

The Constitution Review Group suggested an amendment to “creeping unconstitutionality” cases. This is where legislation become unconstitutional by reason of changing circumstances. They recommended that the courts should be empowered to fix the date upon which the legislation became invalid.

ii) Horizontal Effect: Remedies against Non-State Actors

Constitutional law normally regulates the relationship between the citizen and the State (vertical effect). The purpose of a Bill of Rights (Art. 40-45) is usually to require the State to protect fundamental rights, not to protect a private individual’s right against the actions of other private individuals (horizontal effect). However, the language of the Constitution is sufficiently open-textured that in certain circumstances, it may be permissible to pursue an action against a private individual or body in respect of a breach of constitutional rights, and this has occurred on a number of occasions.

  • ***Educational Co. of Ireland v Fitzpatrick (No.2) [1961] IR 345
    • Per Budd J: There “…exists a correlative duty on the part of other citizens to respect” the rights another citizen is afforded under the Constitution.

Successful cases where actions were brought include:

  • ***Conway v Irish National Teachers Organization [1991] 2 IR 305
    • Strike by teachers on behalf of children who were not able to access private education.
    • The children were subsequently able to sue a private body for breach of their constitutional rights.
  • ***Sinnott v Carlow National Newspaper
    • Here, a football player whose testicles were photographed and published sued the newspaper who did so. He could not sue for defamation because the picture showed a true image however he argued it breached his constitutional right to privacy. He won this case.
  • ***Hayes v Ireland [1987] ILRM 651
    • Breach of constitutional rights = breach of statutory rights.

iii) Damages

  • ***Hayes v Ireland [1987] ILRM 651
    • Per Carroll J: “A plaintiff who establishes unlawful interference with a constitutional right must be in as strong a position as a plaintiff whose statutory rights have been infringed, and is entitled to recover damages for injury suffered by him.”
    • Infringement of constitutional rights = or > infringement of statutory rights
  • ***Conway v INTO [1991] 2 IR 305
    • Finlay CJ set out three headings of damages which may arise in the event of a breach of a constitutional rights:
      1. Ordinary compensatory damages
      2. Aggravated damages
      3. Punitive/exemplary damages

iv) Declaratory Relief

Declaratory relief is where a court makes a declaration of the law and assumes that the parties to the case will respond in such a way as to bring their conduct into line with the law as declared by the Court.

This is often used where the courts do not want to intervene as the issue properly lies within the domain of the legislature or executive.

  • ***O’ Donoghue v Minister for Health
    • This case concerned the the meaning of parts of the Constitution.
    • The Court merely stated the “true legal position”, then noted the State’s failure in this, but leaves it to the State to decide what to do next.

This type of relief is made when there are issues surrounding the Separation of Powers.

  • ***Doherty v Government of Ireland [2010] IEHC 369
    • Government had 4 vacant seat in the Dail and was not filling them for political reasons. However, under the Constitution, they have to organize by-elections.
    • Doherty took a case against the Gov’t for failing to do this. He won and the Court made a declaration that there had been an “unreasonable delay”.
      • The Gov’t did go on to hold the elections.

But, what about where the party does not respond to a declaration from the Court, particularly where they are the State or a member of the Executive?

  • ****FN v Minister for Education [1995] 1 IR 409
    • Held: The State should honor its constitutional obligations “as soon as reasonably practicable.”
      • Damages in this case were not an adequate remedy
      • Also, a huge volume of litigation was underway in respect of the same issue.
        • Nothing happened for 4 years.

Can the Court, where a declaration is not responded to, grant an injunction? The Court here has to choose between observing the Separation of Powers or allow the State to breach constitutional rights with impunity.

v) Injunctive Relief

As guardians of the Constitution, the courts should arguably have available all powers necessary to ensure the Government comply with their Constitutional duties (Boland v An Taoiseach [1974] IR 338).

There are two types of injunctions available to the Courts:

  • Prohibitory Injunctions (prohibit actions)
  • Mandatory Injunctions (require actions)

This raises a sort of action/inaction dilemma.

Nevertheless, prohibitory injunctions have been granted without causing undue difficulty:

  • ***Crotty v An Taoiseach [1987] IR 713
    • Case considered the Single European Act. The Government was trying to ratify it without holding a referendum. However, the SCt granted a prohibitory injunction from doing this.

This shows us that the courts are willing to “step on the toes” of the Government where they are clearly acting unconstitutionally.

However, what about mandatory injunctions? This is a more contentious issue as it does not so much “step on the toes” of the Government as “shackles and whips” it. In effect, by granting a mandatory injunction, the courts are seriously curbing the doctrine of Separation of Powers and bringing themselves into dangerous territory.

In the field of educational rights, declarations were granted in ***O’Donoghue v Minister for Health [1996] 2 IR 20 and ***Comerford v Minister for Education [1997] 2 ILRM 134.

Matters came to head in;

  • *****DB v Minister for Justice [1999] 1 ILRM 93
    • This case followed the *FN v Minister for Education where there was a 4 years gap  where the Gov’t did not respond to declaratory order. As a result, Justice Kelly was tired of the Gov’t failing to fulfill their duties and so in this case went on to grant a mandatory injunction.
    • Kelly J said that the situation was a “scandal” and that “[t]he addressing of the rights of the young people that I have had to deal with appears to be bogged down in a bureaucratic and administrative quagmire.”
    • Even though Kelly J granted the mandatory injunction, he justified this on the basis that he was “not dictating or even entering into questions of policy. The order that I propose making will merely ensure that the Minister who has already decided on policy lives up to his word and carries it into effect.”

This reasoning by Kelly J is weak yet it appears to be the only way to justify the order. With the Separation of Powers being the pinnacle of the Irish legal system, it must be treaded lightly on. Kelly J, although not doing this, managed to come up with something that was afforded legitimacy, however minimal it was.

  • *****TD v Minister for Education [2000] 3 IR 62
    • Kelly J reaffirmed his decision in ***DB and went on to set down four criteria to be considered when granting a mandatory order.
      1. Whether declaratory relief has already been granted, allowing the Gov’t the opportunity to put things right.
      2. The need to act expeditiously in order to secure rights to applicants before they attain majority and lose entitlement to those rights.
      3. The effect of the Gov’t’s failure (inluding any risk of harm).
      4. Due regard is to be had to the efforts of the Gov’t.

This case was successfully appealed to the SCt. The SCt (Denham J dissenting) felt that the order was a breach of the Separation of Powers. They relied heavily on the HCt decision in ***O’Reilly v Limerick Corporation [1989] ILRM 181, where Costello J relied on Aristotle’s distinction between distributive and commutative justice:

  •  ***O’Reilly v Limerick Corporation [1989] ILRM 181
    • Travellers took a case arguing they had a right to certain facilities (toilets etc.) on their campsites.
    • Costello J reasoned that:
      • Distributive Justice = fair distribution of goods and burdens in society;
      • Commutative Justice = correcting a wrong.
    • In this, he articulate that commutative justice is a matter for the courts, not distributive, which is better sought in the legislature (“Leinster House, not the Four Courts”).

Other relevant aspects of the SCt decision include:

  • Once Kelly J made his order in relation to policy formulated by the Minister, it became the policy of the Court and therefore the Minister could not change it without permission of the Court.
  • The order assigned to the judiciary a dominant position over the legislature and executive which was not justified under the Constitution.
  • An order may only be made where there is “a conscious and deliberate decision by the organ of the State to act in breach of its constitutional obligations accompanied by bad faith or recklessness” and as an “absolutely final resort in circumstances of great crisis and for the protection of the Constitutional order itself.”

There has however been a slight step back from the strict approach set down by the SCt in ***TD. This is seen in:

  • ***Cronin v Minister for Education [2004] 3 IR 205
    • Laffoy J granted a mandatory interlocutory injunction. Laffoy J distinguished this case form TD in that the facilities were available, however the applicant was merely being denied access.
    • Reasoning this, as the facility already existed, the Minister had already sanctioned it and was therefore solidified policy.
  • ***Doherty v Government of Ireland [2010] IEHC 369
    • Here, although no mandatory injunction was granted, as the Gov’t acted on the declaratory order, the court said it would be willing to grant such an order.

Topic 8 – Constituent Power: The People

i) The Referendum: Article 47

  • ***McKenna v An Taoiseach (No.1) [1995] 2 IR 1
    • Case concerned the spending of £500,000 by the Government to promote a “Yes” vote in the fifteenth amendment to the Constitution (Divorce Referendum).
    • This case took place in the HCt per Costello J
    • Held: “Not every grievance can be remedied by the courts… judges must not… be led… into areas calling for adjudication on political and non-justiciable issues.” “The plaintiffs complaint… is a complaint of political misconduct on which this court can express no view.”

This decison was overturned in the SCt:

  • *****McKenna v An Taoiseach (No.2) [1995] 2 IR 10
    • Held: A majority (Hamilton, Blayney, O’Flaherty, Denham JJ; Egan J dissenting) of the Supreme Court held this was an interference with the democratic process and an infringement of the concept of equality which is fundamental to the democratic nature of the State. Grounding this reasoning in the Constitution, Article 47.1 is being read, inter alia in light of Article 40.1 (equality provision).
    • This case established the McKenna principles, which although elusive, have been somewhat clarified in the subsequent case of:
  • ******McCrystal v Minister for Children [2012] IESC 53 where Denham CJ made a list of nine principles. They were:
    1. The Gov’t can campaign by any method, except by the expenditure of public funds.
    2. Members of the Gov’t can, in their personal capacity campaign for change (also entitled to use State transport).
    3. Right to equality applies in a referendum process.
    4. Spending public monies in favor of one side puts one class of citizen above another (not equal).
    5. Gov’t must not spend public monies to espouse a point of view that may be anathema to certain citizens.
    6. There exists a right to a democratic process in a referendum – Gov’t cannot benefit one side over another.
    7. Right to fair procedures – scales must be held equally.
    8. Right to freedom of expression – corollary to this is the point that public monies should not be spent to fund only one side.
    9. Government has a right to disseminate information, but not with the use of public funds to the benefit of only one side.
    • The TEST laid down is that: A publicly funded publication must be fair, equal, neutral and impartial.
    • Murray J on the other hand ostensibly considered the principles to be summarized into just two points; that “[t]he right to a fair and democratic process is a right vested in the People…” and “such a right means that the use of funds… to promote one side of the referendum… would be in breach of that constitutional right”.

Some differences between McKenna (No.2) and McCrystal should be considered.

McKenna (No.2)

McCrystal

“Vote Yes” “Inform”
4 Judgments made. Condensed into 9 principles by Denham CJ
“Vote Yes” is clearly unconstitutional Due to this being “inform” the application of the law is tricker, however, it is still found unconstitutional.
Gov’t loses 1 week before the referendum Gov’t loses two days before referendum, but voting had begun on the islands.

Some specific references to the booklet are:

  • Page 9 – “it will continue to be the case”
  • Page 12 – “Other rights and interests”
  • Page 14 – ‘Campaign’ language is extensively used.
  • Logos and slogans are not impartial.
  • Child’s voice on radio/TV advertisements.

Moving onto the next case (Hanafin), which concerned the divorce referendum (fifteenth amendment), it is useful to first see some statistics concerning the referendum, so as to contextualize the case:

  • 10th Amendment => 36.5% / 63.5%
  • 15th Amendment => 50.3% / 49.7%

Clearly the 15th Amendment was very close. In this regard can it be said legitimately that the advertising campaign by the Government materially affected the outcome of the referendum?

  • ***Hanafin v Minister for Education
    • Pursuant to the Referendum Act 1994, it states that the validity of a referendum may be questioned by petition to the HCt (s. 42) and that only if a referendum is materially affected by:
      • obstruction or interference
      • failure to abide by this act
      • mistake or other irregularity in the conduct of the referendum
      • or anything else that materially affects the outcome.
    • May the referendum be deemed illegitimate.
      • However, this situation creates a ‘catch-22’ scenario:
        • You can never ask somebody what they voted or why.
          • When this fact is excluded, there is only hypothetical/speculative evidence left to utilize in such a case.
          • Also, the burden of proof is on the plaintiff to prove that the misuse of public funds “materially affected” the outcome of the referendum. Obviously this is impossible since there is no hard evidence to prove this.
            • Also, none of s. 43(1) is designed to catch illegality in the campaign run-up (e.g. misue of public funds/bias advertising)
    • There were five judgments given: All refused the petition (agreed with HCt)
      • Hamilton CJ:
        • Looked to McKenna (he was a judge in McKenna). In McKenna he said that the use of public funds was wrong but now states that it is not the use of funds that is wrong per se but instead how those funds are used. In this way he is distinguishing McKenna. His arguments now rest on s. 43 of the 1994 Act
        • He says that the “will of the people is sacrosanct” and cannot be interfered with”
          • In effect, this means that no matter what the wrongdoing, the referendum cannot be impugned if the result was not materially affected. The evidence is impermissible in court and therefore although the burden of proof rests on the plaintiff, there is no actual way of proving that the referendum was “materially affected.”
      • O’Flaherty J:
        • He says that although the margin is tiny (0.56%), whether or not the referendum was materially affected by the Government’s campaign is “impossible to prove”. He also says that each voter must be considered to be “sufficiently enlightened” to exercise free choice.
      • Denham J:
        • “We have to take what the HCt has said and accept it.” She states that there is no way of determining if the result of the referendum was materially affected.

Some arguments put forth in a newspaper article include:

  • That the burden of proof should be on the Gov’t.
  • The SCt should not confine itself to s. 43 of the 1994 Act.
  • The act should read: “might” or “may” be materially affected – allowing for hypothetical/speculative judgments.
  • ***Coughlan v Broadcasting Complaints Commission [2000] 3 IR 1
    • This case concerned the Divorce Referendum (15th Amendment), the same one as Hanafin.
    • It was argued that it was the public media’s responsibility to be impartial.
    • Pursuant to s. 18 of the Broadcasting Act 1960, news and current affairs must be “impartial”
      • On the divorce referendum, 42.5 mins was reserved for arguments of the “Yes” vote while only 10 mins was given to the “No” vote.
      • Held: SCt found this illegal by a SCt majority of 4:1.

ii) The Power of Amendment: Article 46

Article 50 of the 1922 Irish Free State Constitution allowed for the Oireachtas to amend the Constitution for a period of eight years, at which point it either becomes permanent law by way of majority vote in a referendum or ceases to exist as law.

So, could the Oireachtas perhaps have eradicated fundamental rights for at least a period of eight years?

Looking to German Constitutional law:

  • Art. 79(3) – allows for amendments to the Constitution, bar any affecting Art. 1 (human dignity) or Art. 20 (democracy).
    • This exception would not be possible under the 1922 Constitution as Art. 50 seems to be absolute in its ambit.

Similarly, Art. 46 seems absolute in Ireland.

Beginning in 1929, the Oireachtas passed two amendments to the Constitution which in many ways rattled the Irish political system.

  • Amendment No. 16 of the Irish Free State Constitution, 1929
    • Increased the 8 year period to 16 years
  • Amendment No. 17 of the Irish Free State Constitution, 1929
    • Implemented Art. 2A – which allowed for certain offenses (even some minor) to be tried in a special military court. Some offenses included: unlawful assembly, common assault etc.

As a result of this, this next case came about:

  • ***State (Ryan) v Lennon [1935] IR 170
    • Two arguments were advanced against Amendments 16 & 17:
      • Amd. 16 – contrary to Constitutional principles
      • Amd. 17 – Contrary to natural law (habeas corpus etc.)
    • Majority: Fitzgibbon J: Decided here is that Art. 50 is absolute and there are in effect no limits on the powers of amendment
    • Kennedy J dissented: “provisions of this kind are the antithesis of the rule of law, and are, within this scope, anarchy.”
      • He also felt that Art. 2A was not so much an amendment as a radical alteration to the Const. He felt it was up to the courts to stand between the citizen and executive as Art. 2A gives too much power to the Executive Council and takes away all aspects of a fair criminal procedure.
      • He also said that there were 4 limits on the powers of amendment:
        1. Natural Law
        2. Anglo/Irish Treaty
        3. Rule of law
        4. 8 years (this is absolute and cannot be changed)

Other relevant cases here are:

  • ***McGee v Attorney General [1974] IR 284
  • ***Re Article 26 and the Information (Termination of Pregnancies) BIll 1995 [1995] 1 IR 1
  • ***Hanafin v Minister for Environment [1996] 2 IR 321

Topic 9 – Legislative Function

Before delving into this topic, we must begin with an outline of the relevant principles of the Constitution.

  • Art. 25.2.1 – This outlines the normal procedure for signing bills into law.
  • Art. 25.4.1 – One the President signs the Bill it becomes law.

The preamble to Art. 26 (judicial review) provides:

  • “cannot be applied to a Money Bill, or a bill containing a proposal to amend the Constitution, or a bill the time for consideration of which by Seanad Eireann shall have been abridged under Art. 24 of this Constitution.”

Art. 26 further provides:

  • Art. 26.1.1 – Allows for any bill to be referred to the SCt if the President feels it is repugnant to the Constitution.
  • Art. 26.1.1 – Every reference shall be made no later than the 7th day after presented for signature.
  • Art. 26.2.1 – The SCt, when entertaining an Art. 26 reference must be comprised of not less than 5 judges and must deliver a judgment within 60 days. The Attorney General defends the bill whilst appointed lawyers assigned by the Court argue against it: This is called the Abstract Review Procedure.
  • Art. 26.2.2 – Only one judgment is delivered.
  • Art. 26.3.1 and Art. 26.3.3 – If it is deemed to be constitutional the President must sign the Bill into law, whereas if the Bill is deemed unconstitutional he cannot sign it into law.

— Abstract Review Procedure

  • **In re Article 26 and the Offences Against the State (Amendment) Bill 1940 [1940] IR 470
    • Due to the presumption of constitutionality, the burden of proof rests on those who argue that the Bill is unconstitutional to prove it is so.
    • The repugnancy must be clearly established.
  • **In re Article 26 and the School Attendance Bill1942 [1943] IR 334
    • Confirmed In re Article 26 and the Offences Against the State (Amendment) Bill 1940 [1940] IR 470
  • ***In re Article 26 and the housing (Private Rented Dwellings) Bill 1981 [1983] IR 181
    • The matters to be dealt with, should be done so as abstract issues – in this regard evidence may not be introduced and is not necessarily required.
    • Employing evidence would make it far more difficult for the Court to make a unanimous/single judgment.
      • However there is one issue. If a Bill is deemed to be constitutional (it cannot be questioned again in any court). Without evidence being given in the court, how may a full hearing and therefore judgment be made? It seems a little unfair to people who may see the Bill in the future as unconstitutional but can unfortunately do nothing about it.

— Concrete Review of Legislation (Art. 34.3.2 and 34.4.5)

Some provisions of the Constitution we must consider are:

  • Art. 15.2 – Provides that only the Oireachtas can make laws for the State.
  • Art. 15.4 – The Oireachtas cannot enact legislation that is contrary to the Constitution.
  • Art. 34.3.2 – Jurisdiction is vested in the Supreme Court to determine the constitutionality of a bill.
  • Art. 34.4.5 – Only one judgment may be handed down.

‘Concrete Review’ is where a real plaintiff, with locus standi brings a case arguing that an Act or some part of an Act is unconstitutional. However, the true battle remains between the organs of the State (Judiciary, Executive and Legislature).

There are four principles of Concrete Review:

  1. Presumption of Constitutionality
    • Def: Until the contrary is proven, legislation will be deemed constitutional.
      • ***Pigs Marketing Board v Donnelly [1939] IR 413
      • ***Buckley v Attorney General [1950] IR 67
        • Note: Pre-1937 legislation is not afforded this presumption.
  2. Rule of ‘Self-Restraint’
    • Def: If there is any way of solving the plaintiff’s case without examining the issue of constitutionality, the judge(s) should do that.
      • ***M v An Bord Uchtala [1977] IR 287
      • ***Cooke v Walsh [1984] IR 710
  3. Double Construction Test
    • Def: If there are two possible interpretations of the legislation where one is constitutional and the other is not, the court should choose the constitutional interpretation.
      • ***McDonald v Bord na gCon [1965] IR 217
  4. Doctrine of Severability
    • Def: Art 15.4.2 – The legislation under scrutiny shall to the extent only of such repugnancy be deemed invalid.
      • ***Maher v Attorney General

i) Constitutionality of Legislation

  • ***State (Sheerin) v Kennedy [1966] IR 379
    • This case makes some important remarks about the status of law as it proceeds through either Art. 26, 50 or 15/34.
      • Under Art. 50.1 – Pre-1937 legislation, under the Continuity Provision can only be deemed inconsistent with the Constitution (as opposed to ‘unconstitutional’ etc.)
      • Under Art. 26 – the Bill may be described as being ‘repugnant’ to the Constitution as it is merely a proposal put forth by the Houses of the Oireachtas and has not in fact become law.
        • Under Art. 15/34 – Under this the Oireachtas is the only body that can legislate for Ireland and so in this respect the question of determining the validity of a law, can only refer to laws enacted by the Oireachtas established by the Constitution.

What about primary legislation vs. secondary legislation.

In challenging primary legislation, this is done through a challenge against its constitutionality.

In challenging secondary legislation, this is done through arguing it is ultra vires.

In Ireland the Government effectively controls the legislature (Party WHIP system). As a result, the legislature is inclined to give a substantial amount of power to the 2nd legislature, whether those be Ministers of other bodies. This is a difficult concept as there are arguments on both sides, as will be shown in the following case law. Nevertheless, by the legislature delegating such vast powers to non-elected officials, the doctrine of separation of powers and the fundamental principles of democracy are being altogether undermined. 

As a result of this conundrum, the courts try to limit the amount of power that can be delegated. This is called the Non-Delegation Doctrine. We will explore it below:

ii) Interference with Legislative Function

(a) Ministerial Orders

  • ***Maher v Minister for Agriculture [2001] 1 IR 139

    • This case found in favor of the secondary legislature. Fennelly J made some interesting arguments for the delegation of power.
      1. The secondary legislation consists of complex, technical and detailed rules. This would burden the legislature beyond capacity.
      2. The evaluation of such specific, complex technical problems are better left to experts (i.e. Ministers, not TD’s)
      3. There is a frequent need for flexibility and rapid adjustment to meet changing circumstances (the legislature could not cope).
    • In summary: Complexity, Expertise, Efficiency.

On the contrary however, we have a more recent judgment outlining the cons of secondary legislation.

  • ***Kennedy v Law Society of Ireland [2002] 2 IR 458

    • Interestingly, this case was also decided by Fennelly J.
      1. Defeats the legislative intent.
      2. Undermine the democratic principle (Ministers are not elected).
      3. Undermining the rule of law itself (not being agreed in a public forum).

Maher was argued from a practical standpoint, whilst Kennedy was argued from a principled standpoint. There are merits to both arguments, however they are in conflict with one another. A balance must be found. 

We now come to one of the most significant cases on this topic:

  • ******City View Press Co. Ltd v AnCO [1980] IR 381

    • This case concerned s. 21 of the Industrial Training Act 1967. This allowed AnCO to make an order imposing a levy (2nd legislation). As a result, the Industrial Training Levy (Printing & Paper Industry) Order, 1972 was enacted which made employers pay for the training of their employees instead of employees paying for themselves.
    • This was challenged on two grounds (there are always two grounds).
      1. That s. 21 of the 1967 Act is unconstitutional.
      2. That the 1972 Order is ultra vires.
        • Held: SCt found the Act not unconstitutional and the Order, not ultra vires. 
    • Per O’Higgins CJ: “The ultimate responsibility rests with the courts to ensure that constitutional safeguards remain, and that the exclusive authority of the National Parliament in the field of law-making is not eroded by a delegation of power neither contemplated nor permitted by the Constitution… In the view of this Court, the test is whether that which is challenged as an unauthorised delegation of parliamentary power is more that a mere giving effect to principles and policies which are contained in the statute itself. 
      • Note: McMahon J in the HCt stated “… the legislature will not be allowed to abdicates its legislative function.”

 

Principles & Policies

Detail

Primary Legislation

              √

Secondary Legislation

X Ultra Vires

Professor David Gilmorgan – Raised the issue that there hould have been a principles and policies guideline in the Act itself (e.g. price limits, wages etc.). Leaving this entirely up to the secondary legislature, in this case the Minister is wholly incorrect. 

Note: The City View Test can only be used on primary legislation. This goes without saying. 

  • ******John Grace Fried Chicken v Catering Plc [2011] IEHC 277

    • This case concerned the Industrial Relations Act 1946, s.42, 43 & 45 and the Industrial Relations Act 1990, s. 48. These Acts gave power to the JLC (Joint Labour Committee) to make ERO’s (Employment Regulation Orders). This procedure has its origins in pre-1937 legislation (Trade Board Acts 1909, 1919) and as such there are no specific rules guiding the JLC’s specific policies, in effect giving their ERO’s free range. 
    • The ERO being challenged, ERO, S1142 of 2008, was sanctioned in the Labour Court and increased the minimum wage rates as well as holiday and Sunday pay rates. This took place during the years of the Celtic Tiger. 
    • When the recession hit, JGFC (John Grace Fried Chicken) could not pay such high wages to its employees as he was affected due to the standard form ERO contracts. As a result, he took the case to court and argued that:
      1. IRA 1946 and 1990 are unconstitutional. (But note ERO, S1142 had already been rescinded)
      • Usually there are two challenges, but here the ERO had already been rescinded. 
    • It was so evident that the two Acts were unconstitutional, the State did not challenge JGFC. Feeney J in the HCt discussed the City View Test, affirmed it as the correct test, and determined the legislation unconstitutional at para. 5 in his judgment (very early on).
    • Feeney J, perhaps in response to Professor David Gilmorgan in para. 22 outlined 17 factors to look out for when determining what constitutes policies. Some of these include:
      1. Striking a balance between the exclusive law making function of the Oireachtas and the proper function of the legislature.
      2. The principles and policies test is a flexible test.
      3. The purpose of the legislation must be taken into account.
      4. Court should have regard to the entire statute.
      5. Whether standards, goals, factors and/or purposes can be identified
      6. The absences of particularity does not render a delegation ultra vires.
    • Held: The legislation was”entirely silent” with regards to principles and policies.
  • ***Burke v Minister for Labour 
    • Feeney J used this as a precedent in the JGFC case as it concerned the same legislation. Henchy J provided here obiter that “the power to make a minimum remuneration order is a delegated power of a most fundamental, permissive and far-reaching kind.”

(b) Henry VIII Clauses

HistoricallyStatute of Proclamations 1539 – This was an Act passed by the Parliament that permitted King Henry VIII to legislate by decree (in effect, secondary legislation/legislature) which should be obeyed as though it were enacted by Parliament itself.

Definition: Clauses in a Parent Act that provide that that parents act (or another piece of primary legislation) can be amended by way of statutory instrument.

This is not compatible with the Constitution for obvious reasons. Namely the principles of democracy are undermined, and in relation to Art. 15.2, it is the exclusive authority of the Oireachtas to legislate for Ireland. As McMahon J provided in the HCt hearing of City View, “the legislature will not be allowed to abdicates its legislative function.”

  • ****Cooke v Walsh [1984] IR 710

    • A boy was injured in a car crash. Pursuant to the Health Act 1970, Part IV:
      • s. 45 – full entitlement to heave healthcare covered by the State.
      • s. 46 – with limited eligibility.
      • s. 72 – allows for the Minister to make changes to these sections (s. 45 and s. 46).
        • On this basis, the Health Services Regulations, 1971 came into force. This transferred the boy from a person eligible under s. 45 to a person under s. 46 (reduced eligibility).
    • On using the double-construction test, the Court said that s. 72 must be read very narrowly. This was done in light of the presumption of constitutionality afforded to legislation.
      • The procedure is as follows:

Presumption of Constitutionality —-> Double-Construction Test (Court read s. 72 narrowly) —-> 1971 Regulation is ultra vires.

    • By narrowing the scope of the Act they saved it, but went on to determine that the Regulation was ultra vires
  • ****Harvey v Minister for Social Welfare [1990] 2 IR 232
    • Woman had 3 pensions. Under s. 75 of the Act, this gave power to the Minister to disallow OAP pensions, widow pensions, children’s allowance etc. to certain categories of people.
      • Looks like a Henry VIII Clause.
    • Court used the double construction test and read the provision is a very narrow manner.
  • ***Mulcreevy v Minister for Environment [2004] 1 IR 72
    • This case concerned licenses to dig/excavate for archeological reasons.
    • This case merely confirmed the City View Test.

Topic 10 – Judicial Function

Judicial Function, in the Constitution concerns a number of Articles:

  • Art. 34 – Provides that justice shall be administered in the courts – also provides to the type of courts to be set up. 
  • Art. 37 – Provides that some small judicial functions can be exercised outside of the courts where they are of 1) a limited function, 2) not of a criminal nature and 3) authorized by law (backed up by statute).

The following cases will try to decipher these articles.

i) Interference with Judicial Function: Art. 34

  • *****Buckley v Attorney General [1950] IR 67

    • People donated money to Sinn Fein party to support widows and children of soldiers during the War of Independence (1924). Not all the money donated was spent however. Arguments were put forth that they want their money back since it was not spent. At this time De Valera was in power.
    • The Sinn Fein Funds Act 1947 came along.
      • s. 9 – maintenance and management of monies
      • s. 10 – any ongoing proceedings to be stayed by order of the HCt if exparte application is made by the AG. The AG made the exparte application to stop P’s claim. As a result Buckley sued the AG to stop him being successful in his exparte application.
        • Buckle began proceedings in 1942.
    • Per Gavan Duffy P:
      1. The Separation of Powers is very important. It follows that;
      2. The Courts have the power to administer justice, no other organ has this power.
      3. The HCt has full original jurisdiction, with a right of appeal to the SCt.
      4. 1) Laws should be general and not directed at an individual. The 1947 Act is aimed at one specific case, namely Buckley’s proceedings which began in 1942.
      5. 2) A trial must proceed before ex parte application can be made.
      6. 3) Proceedings upon inquiry.
      7. 4) Renders judgment only after trial.
        • In essence, Gavan Duffy P felt that the courts could not abdicate their proper jurisdiction to administer justice to the Oireachtas, which in the 1947 Act had decided a case before it went to trial, and in this sense, administered justice outside of a Court of Justice.
    • Per O’Byrne J:
      • the effect of Art. 6 and 34-37 is to vest in the Court the exclusive right to determine justiciable controversies. The Act is clearly repugnant to the provisions of the Constitution, as being an unwarrantable interference by the Oireachtas with the operations of the Courts in a purely judicial domain.
  • *****Maher v Attorney General [1973] IR 140
    • This case concerned s. 44(2)(a) of the Road Traffic Act 1968 where it provided that a certificate of blood alcohol level “shall be conclusive evidence.” The plaintiff argued that this interferes with judicial function as it does not allow for courts to weigh the evidence of the case.
    • Application re. this statute:
      1. Precludes the District Court judge from another judgment with regard to blood alcohol levels.
      2. Precludes the accused from contesting this vital evidence.
    • Per Fitzgerald CJ (SCt) – The admin. of justice, especially in criminal matters is reserved for the courts. This provision is an “invalid infringement of the judicial power.”
      • The whole section was struck down.
  • ****Deaton v Attorney General [1963] IR 170
    • This case concerned a pre-1937 piece of legislation (No presumption of constitutionality).
    • The Act prescribed a penalty; either £100 or treble the value of the goods, to be determined by the Revenue Commissioners. The HCt found this no be not unconstitutional.
    • Per O’Dalaigh CJ – “…clear distinction between… a fixed penalty and the selection of a penalty… [a] fixed penalty is the statement of a general rule, which is one of the characteristics of legislation; this is wholly different from the selection of a penalty to be imposed in a particular case.”

What  about pre-1937 cases?

  • ***Lynham v Butler (No.2) [1933] IR 74

    • In this case it was seen that judicial power is an attribute of sovereignty.

ii) Administration of Justice: Article 34

  • ******In Re Solicitors Act, 1954 [1960] IR 239

    • Two solicitors were accused of stealing money. Under the Act concerned, a disciplinary committee was established, consisting of other solicitors (difficult to be impartial) who investigate such claims. If found guilty, they had the power to remove their license to practice (S. 18(1)).
    • It was argued that such matters should be dealt with by a court of law and therefore the judgment in this case revolves around whether this disciplinary committee and their actions amount to an administration of justice. Note: s. 23 of the Act provided for a right of appeal to the SCt. 
    • Per Kingsmill Moore J:
      • There is no exact definition as to the nature of judicial power.
      • Look to the effect of the powers given to a tribunal.
      • “Such a far-reaching nature”
    • Held: Act is unconstitutional – must be tried in the courts.
  • *******McDonald v Bord na gCon [1965] IR 217 (HCt)
    • McDonald brought someone elses greyhound to a racetrack (he was the trainer). The Bord suspected that the dog did not belong to him.
    • In the context of the Greyhound Industry Act 1958;
      • Set up Bord na gCon (7 members)
      • Greyhound tracks must be licenses/maintained etc.
      • Regulates the breeding, sales, bookmaking etc.
      • Bord na gCon can investigate all issues of non-compliance.
        • s. 44 – Bord na gCon can investigate at any race.
        • s. 45 – Bord member has the power to make a disqualification order, wither preventing attendance or preventing the sale/purchasing od greyhounds.
        • s. 47 – Exclusion Order from 1) being on any racetrack, 2) public sale of dogs 3) course meetings
      • The accused may have representation, however there is no appeal afforded against the order.
    • McDonald challenged the constitutionality or particularly s. 47.
    • Per Kenny J: He felt that the administration of justice had certain characteristics:
      1. Justiciable dispute
      2. Determination of rights/liabilities
      3. Final determination (Lynham)
      4. Enforcement of rights/liabilities (Lynham)
      5. Making an order
    • The HCt and SCt came to different conclusions on the application of the same test.
      • HCt – felt that it was administration of justice and therefore unconstitutional.
      • SCt – using the double-construction test, felt that it was not administration of justice and therefore constitutional.
  • *****Goodman International v Hamilton (No.1) [1992] 2 IR 542
    • This case concerned the infamous “Beef Tribunal”. Goodman was under investigation for fraud/malpractice/illegality, which were criminal allegations. however, the tribunal only decided issues of fact (in vacuo) which had no legal effect. It was inquisitorial rather than adversarial.
    • Held: HCt and SCt agreed there was no administration of justice and therefore was not unconstitutional.
      • This case developed the law from **Bord na gCon in that Finlay CJ pronounced the “most important clause is number 5 (making an order).” He felt this was the case because it was defining feature of administration fo justice. However, in the tribunal there was only a report produced.
  • ****Keady v Garda Commissioner [1992] 2 IR 197
    • P (Gardai) was served a summons alleging that he obtained public funds under false pretenses. This came before the District Court, but the DPP entered into a ‘do not pursue’ (nuelle prosequiplea.
    • There was then an inquiry into the matter and P was found to be in breach. There was subsequent action to dismiss him from the force.
    • Held: SCt and HCt agreed that the inquiry was not administration of justice and therefore was not unconstitutional.
    • But why?
      • Looking to the Solicitors case, even though factually it is the same as it, the outcome is very different. In this regard did they overrule or distinguish In Re Solicitors Act 1954
        • We are not sure. Here is why;
          • Per McCarthy J: he seemed to put a question mark over the 5 point test established in McDonald, instead opting to favor a feeling of ‘knowing it when we see it’.
          • Per O’Flaherty J: He reduced the 5 point test to a two stage test:
            1. Contest between parties
            2. Liability or penalty
        • So, they seem to accept the 5 stage test, yet go on to undermine it.

iii) Limited Functions: Art 37

Art. 37 provides that some small judicial functions can be exercised outside of the courts where they are of 1) a limited function, 2) not of a criminal nature and 3) authorized by law (backed up by statute).

The definition of “limited” was discussed in :

  • ******In Re Solicitors Act, 1954 [1960] IR 239

    • It is not a question of ‘limited jurisdiction’. It is also not a numbers game.
    • This was seen to mean that the “powers and functions” must be limited, not the ambit of their exercise.
    • The test as to whether a power is limited or not lies in the effect of the assigned power when exercised.
      • lives, liberties, fortunes or reputations.
    • In summary: The powers and functions themselves must be limited, and the test is the effect of which those have on the lives, liberties, fortunes and reputations of those against whom they are exercised.
  • ****Cowan v Attorney General [1961] IR 411 
    • Elections for Dublin CIty Council, governed by pre-1937 legislation. It established an Election Court that could nullify the election of someone if they were found bankrupt. This court consisted of one barrister.
    • Issue: Is this valid?
    • It was argued that this was not a limited function.
    • Held: “will affect in the most far reaching way the lives, liberties fortunes and reputations of tose against whome they are exercised.”  – Confirmed the test and found the election court unconstitutional.
  • ****Keady v Garda Commissioner [1992] 2 IR 197
    • This case distinguishes the Solicitors case, and though it must be regarded as exceptional and perhaps anomalous. It owes a great deal to the historic fact that it was the judges who struck solicitors off the roll.
      • This case almost distinguishes the test established in Solicitors out of existence.
      • Instead- O’Flaherty J here says that there is well chartered administrative law now in place that deals with such things.

Topic 11 – Executive Function: Internal Relations

i) Government and Oireachtas (Articles 13 & 28)

Some provisions include:

Art. 13

  • Art. 13.1.1 – President shall, by election of the Dail, appoint the Taoiseach.
  • Art. 13.1.2 – Resignation of PM/Taoiseach is subject to approval by the President
  • Art. 13.2.1 – Dail is summoned and disslved by president on advice of Taoiseach
  • **Art. 13.2.2 – May refust to dissolved if Taoiseach has ceased to retain majority in Dail Eireann.
    • The President might refuse as generally there should not be elections outside of the 5 year cycle as this causes instability. The President will see if it is possible to form a new Government without an election (a coalition).
    • How do we tell if the Taoiseach has ceased to retain a majority? There are 4 signals:
      1. Motion of no confidence.
      2. Motion of confidence in himself to try show confidence (backhanded approach).
      3. Losing at the second stage of a bill proposal (Breaking the WHIP).
      4. Losing on a major bill (Breaking the WHIP).
  • Art. 13.2.3 – President can arrange at any time a meeting with both Houses.
  • Art. 13.3.1 – Bill must be sent to the President for signature.
  • Art. 13.8.1 – President is not accountable when acting in exercise of his powers.
    • This is balanced/countered by Art. 13.12 where he can be put under review for misbehavior.

Art. 28

  • Art. 28.1 – Gov’t shall consist of 7-15 members appointed by the President (Junior Minister by-pass this rule). 
  • Art. 28.2 – Executive power of the State is controlled by the Government, subject to the Constitution.
  • Art. 28.3.1 – War can only be declared with the assent of Dail Eireann.

ii) Executive Power: Executive Privilege; Cabinet Confidentiality

To begin, we will look at Executive Prerogative. This is a residual power (remaining portion of the Crown’s original power). It is not found in the Constitution however and this is why we must look to case law.

Some traditional executive privileges include:

  • Conferring titles/issuing honors (In Ireland Art. 40.2.1 prohibits this)
  • Issue & withdraw passports (This is being subjected to more laws over time)
  • To refuse to dissolve Parliament (Art. 13.2.2)

But there are still some things we are yet to deal with; Executive Privilege, Treasure Trove and Sovereign Immunity. These are all part of the Executive Prerogative but have not been dealt with by the 1937 Constitution or legislation. We must instead look to case law.

Executive Privilege to whomever/whatever holds it, the power to withold certain types of information, where there are competing interests involved (e.g. classified security files, military intelligence etc.)

An English case on this matter is:

  • ***Duncan v Camell Laird [1942] AC 642
    • the HMS Thetis (Navy submarine) sunk and 99 officers died. The relative of the deceased sued the ship builders.
    • However, the Government wanted the details of the submarine to be kept confidential due to the war efforts.
    • Held: Admiralty files are not to be disclosed.
      • However, the HofL took it at face value that non-disclosure was the best option – no question were asked of that decision. What happens when the Gov’t ask for this same rule to be applied in less serious situations (Ministers spending, tax spending etc.?)
  • *****The State (C) v Minister for Justice [1967] IR 106
    • It was held here that “[t]he executive power of the State s not the same as a specific ad hoc power conferred by statute upon a Minister or some other member of the executive
  • ********Murphy v Dublin Corporation [1972] 2 IR 215
    • This case concerned a compulsory purchase order of property under the Housing Act 1996. The State claimed that they had a right to withhold relevant evidence from a civil action by its own judgment.
    • Kenny J in the HCt noted that there was “no absolute right to withold documents”. He felt there were “two general rules which should guide the court in reaching such a decision.”:
      1. There are classes of documents which ought not to be produced under any circumstances (e.g. military/diplomatic matters, proposed legislation
    • There is a catch 22 scenario here:– If a Court would require a Minister to say why a document should be kept privileged, he must expose it to a certain degree.
    • Walsh in the SCt:
      1. He first outlines the doctrine of separation of powers and explains its importance, then goes on to describe the function of the judiciary, namely the administration of justice. He says that withholding documents is overstepping the boundary to some degree, however, he recognizes that these are competing public interests, but goes on to say that “it is judicial power which will decide which public interest will prevail.”
      2. It must be the judges who make the final call.
      3. He rejected Kenny J’s ‘class of documents’ test. He said that no such thing exists and each document must be decided on its own merits.
    • The function in this case was declared to not be an executive power.
  • ****Ambiorix Ltd v Minister for the Environment [1992] 1 IR 277
    • Case concerned the Urban Renewal Act 1956 – which incentivized development in certain areas. It was argued that we (the public) should know the reasons why certain areas were mentioned and others weren’t.
    • The HCt ordered the production of documents.
    • The SCt, per Finlay CJ grounded its argument in a system of checks and balances. He had 3 conclusions:
      1. Executive power cannot prevent judicial power from examining documents so as to decide whether to publicize them or not.
      2. The Court does not need to see the document to make a decision.
      3. No class of document is exempt.
  • ****Attorney General v Hamilton (No.1) [1993] 2 IR 250
    • Case concerned the ‘Beef Tribunal’ (See supra). 
    • Burke’s legal team argued that he should not have to expose confidential cabinet meetings.
    • In the HCt, O’Hanlon J ruled that an absolute ban was unconstitutional.
    • The SCt (Finlay CJ, Hederman J, O’Flaherty J; McCarthy J, Egan JJ dissenting) held that the cabinet meeting documents should be kept confidential.
      • Finlay CJ even stated the documents could not be revealed by a subsequent Government.
      • Hederman J noted that if it were permissible to compel in any circumstances the disclosure of the content of discussions which take place at Government meetings the executive role of the Government as envisaged by the Constitution would be undermined, perhaps even de-stabilized.

In response to this decision, the 17th Amendment of the Constitution, 1997 came to the fore. From this. Art. 28.4.3 came to be:

iii) Executive Power: Prerogative; Sovereign Immunity

  • **********Webb v Ireland [1988] 1 IR 353
    • Facts: Father and son using metal detector discovered Hoard. These are worth a lot of money (Sotheby’s estimates; £5-8 mil. and NM estimate £2.5-3 mil) and huge historical significance. They were ‘trespassers’ when finding artifacts. National Museum requested the Hoard to be given up in a letter to Webb which stated that they will be ‘honorably treated.’
      • National Museum made offers:
        • Webb – £10,000
        • Land Owners £25,000 – This was accepted.
    • This cases concerned the prerogative of Treasure Trove.
    • Issues: Is Ireland entitled to the Hoard (Right of Treasure Trove)? Are the owners of the land the owners of the artifacts? Are Webb & Webb, as founders, entitled to ownership?
    • Law: Both the 1922 Irish Free State Constitution must be taken into account. We are trying to first ask the question of whether the right of treasure trove exists (as this will trump Webb’s and landowners rights, if either have any) – The Articles we need to consider are:
      • 1922 Constitution:
        • Art. 2 – Assertion of independence – all authority is derived from the people.
        • Art. 11 – All resources (geographic sovereignty) belong to the Irish Free State – “all royalties and franchises”.
        • Art.51 – Executive authority is vested in the King (this is why we call the 1922 Const, ‘compromised’). 
        • Art. 73 – Pre-1922 laws will transfer for continuity.
      • 1937 Constitution:
        • Art. 5 – Ireland is a sovereign and independent State.
        • Art. 10 – Similar to Art. 2 of 1922 Constitution.
        • Art. 49.1 – All powers, functions, right and prerogatives in 1922 Constitution fall to the people.
          • But, did the prerogative exist in the 1922 Constitution?
        • Art. 50.1 – Subject to the Constitution, laws will transfer.
    • So, did the right to treasure trove exist the enactment of first, the 1922 Constitution and then, did it successfully transfer to the 1937 Constitution?
      • HCt:
        • Blayney J looked to ****Byrne v Ireland as a precedent. Here it was decided that all prerogatives prior to the 1922 Constitution, due to Art. 2 of the 1922 Constitution were inconsistent and therefore not carried over by Art. 73.
        • SInce the right of treasure trove did not exist in the 1922 Constitution, Art. 49.1 in the 1937 Constitution could not have carried the right over. Therefore, there is no right of treasure trove. 
        • In this respect, since the landowners had signed away their rights by accepting the payment from the National Museum, Blayney J ordered that the Hoard either be returned to Webb (him paying for the restoration work) or he be paid the difference.
    • However, the SCt disagreed with this finding. On appeal:
      • Issue 1: Does the plaintiff (Webb) have ownership rights?
      • Law: Owners’ rights > finder’s rights, but the owners rights now belong to the State following the pay-off.
        • Does the trespass vitiate any claim?
          • Criminal Offense Act  and National Monuments Act 1930.  – even if not classified as trespassers on entry, they would become so on breaking the ground. As trespassers they should not acquire any rights of ownership.
    • There is a twist however: Customary law provides the finder of artifacts an ex gratia payment and therefore no both the plaintiff and defendant want to argue that the right of treasure trove exists
      • Issue 2: Does the right of treasure trove exist?
      • Law: Finlay CJ agrees with the HCt in that the prerogative did not carry over per Art. 49.1 of the 1937 Constitution. Instead he sees Art. 10 – “all royalties and franchises” including the sovereignty of the State. By virtue of Art. 11 of the 1922 Constitution, as extended by Art. 10 of the 1937 Constitution, the right of treasure trove exists. Summary: Sovereignty –> right of treasure trove.
      • Finlay CJ found that Webb was not disentitled by trespass to an ex gratia payment.
    • Walsh J instead uses Art. 5 to find a right of treasure trove.
  • ***********Byrne v Ireland [1972] IR 241
    • Plaintiff injured herself whilst waling on a street. She attempted to sue the State.
      • HCt – Murnaghan J
      • SCt – Walsh J, Budd J, FItzgerald J and O’Dalaigh CJ, O’Keefe P dissenting.
    • Arguments by P:
      1. State is a juristic person (legal fiction).
      2. State can only act through its agents
      3. State sovereignty implies that the State is nationally independent, not that it is free from the law internally (Sovereign only from an external perspective).
      4. The State’s powers are always defined and limited (Art. 10, 40-45) and therefore the State is subject to the Constitution and therefore not internally sovereign.
      5. Her injury was due to negligence of servants of the State.
    • HCt:
      • No, P cannot sue Ireland. Murnaghan J looks at how “Ireland” and “State” are used in the Constitution. Sometimes they are used in a geographical sense, sometimes in a demographic sense etc. He questioned how a perhaps geographical mass could be sued and saw the impracticalities with suing the State – who would exactly be responsible? He found the State to be “sovereign in all respects”.
    • SCt:
      • Walsh J located the sovereignty in the people, rather than the State. This is based in the authority of Art. 6. He then asked the question of whether “judicial powers of the government which is exercised by the judiciary is exercisable so as to bind the State itself.?” – The answer disagreed with Murnaghan J in the HCt. Walsh J cited Art. 13.8.1, 15.3 and 45 so as to show explicitly where the State is immune from suit. He went on to say that it they intended Ireland to be free from suit, they would have provided so explicitly.
      • Walsh J also found that prerogatives did not succeed the 1922 Constitution by virtue of Art. 2. He saw that Art. 2 rejected the power of the King.

Topic 12 – Executive Function: External Relations

–Features of International Law

International law can be either very specific & technical (e.g. treaties on whaling, civil aviation) or very general and aspirational (e.g. charters on fundamental rights).

People do not usually vote for treaties – indirect democratic legitimacy

Each nation decides for itself if it wants to be bound: Therefore it is inherently more difficult to enforce.

Consent of the Nation-State:

Monism

Dualism

National & International legal orders are unitary. National & International legal orders are not unitary.
Act of ratifying international law constitutes into incorporation into the national legal order International law must be specifically incorporated into national law in order for it to be applicable.
Displaces national law Does not displace national law
Can be invoked by citizens and can be applied by judges. Cannot be invoked by citizens and cannot be applied by judges.

Per Art. 29.6 – Ireland is a dualist state.

i) International Law (Articles 29.1, 29.2, 29.3)

  • ***State (Summers Jennings) v Furlong [1966] 1 IR 183
    • Case concerned the extradition of a man during the Troubles pursuant to Part III of the Extradition Act 1965. He sought to rely on the Rule of Speciality, which provides that you cannot be prosecuted in a new state, for something you have already been prosecuted for. (Art. 14 on the European Convention on Extradition) – Ireland was not a signatory so the plaintiff here sought to rely on Art. 29.3 of the Constitution.
    • Held: Art. 29.3 is not to be read in this fashion, it cannot overrule the Oireachtas. Per the Irish interpretation of the Constitution, it translates into a “guide” as opposed to a “rule”
  • ***Kavanagh v Governor of Mountjoy Prison [2002] IR 97
    • Kavanagh was convicted by the SCCt of 7 offenses under the OASA 1939 (designed to catch IRA members). The SCCt however does not afford the same rights and protections as an ordinary court does. Kavanagh sought to rely on the ICCPR to quash his conviction as it finds the OASA 1939 to be in contravention of it.
    • Held: The notion that the views of a Committee, even fo admittedly distinguished experts could prevail against the concluded decision of a properly constituted court is patently unacceptable.
  • ***ACT Shipping v Minister for Marine [1995] 3 IR 406. 
    • Art. 38(1) if the International Court of Justice State confirms that customary law is accepted.
    • This case concerned the Right of Refuge (an internationally recognized customary law). A German ship was stranded off the coast of Bantree. There was a 10m hole in the side of it. The Minister did not allow the right of refuge to it.
    • The plaintiff sought redress in domestic law that there is a prima facie right of refuge which had transpired into Irish domestic law from customary international law.
    • Barr J in the HCt: Held: Art. 15(2)(1) (law making power exclusive to Oireachtas) does not inhibit the evolution of customary law into domestic law. The constitutional provision relates explicitly to the ‘making’ of law. Customary law is not made in this sense, it evolves over a period of time through conduct which becomes widely accepted.
      • The right of refuge has merged into Irish law. However, that right was not absolute (e.g. oil spill) and so the Minister was entitled to deny it refuge.

Irish courts are much more open to Customary law than they are to Treaty law. 

  • *****Boland v An Taoiseach [1974] IR 338

    • The format of this case is slightly different: Here, the plaintiff sought that the Government should not agree a treaty until a referendum.
    • Sunningdale Agreement 1973 – established the Council of Ireland.
      • Clause 5:
        • Irish Gov’t won’t accept there will be a change in the status of Northern Ireland unless a majority of people in NR want that change.
        • GB recognizes that NI is a part og GB, but if a majority want to become Irish, this could happen.
    • Kevin Boland argued that this clause was in contravention of Art. 2.3 of the Constitution and only a referendum could place this into law.
    • Held:
      • Fitzgerald CJ took the view that the court had no power to intervene unless the Gov’t was acting in clear disregard of its powers conferred by the Constitution.
      • Budd J felt that this matter was one of policy and it was not for the courts to intervene.

ii) European Convention on Human Rights (ECHR Act 2003)

–Council of Europe/ECtHR

The Council of Europe is separate from the European Union (EU).

It was established in 1949 and has 47 member states. The ECHR is a formulation of the Council of Europe and the ECtHR interprets the convention. It sits in Strasbourg. It is a supernational court.

The structure of the ECHR is such that it identifies a right and then gives ways in which that right may be inhibited or limited.

To bring a case before the ECtHR you must be comply with Art. 35 (Admissibility criteria):

  • Exhausted domestic remedies
  • Wait 6 months after final hearing
  • Cannot be anonymous
  • Not “substantially similar” to another case already heard.
  • Not “manifestly ill-founded”/abuse of the right of individual application
  • Significant disadvantage suffered by the victim.

These criteria are malleable however (e.g. ABC v Ireland).

  • ***In re O’Laighleis [1960] IR 93

    • Plaintiff arrested under s.30 of the OASA 1939 sought to rely on the ECHR,
    • Maguire CJ noted that there was an insuperable obstacle to importing the provisions of the ECHR in the form of Art. 15-29.6 of the Constitution. Also, the Court could not accept the idea that the primacy of domestic legislation would be displaced by the State becoming a party to the ECHR.
      • This is similar to **Kavanagh and **Summer Jennings

In 2003, the Oireachtas enacted the ECHR Act 2003. Some important aspects of it concerning its relationship with Irish law are:

  • s.2 – When interpreting Irish law, the courts should try to do so in line with the ECHR (Double-construction test)
  • s.3(1) – Every organ of the State shall perform its functions in such a way that is compatible with the ECHR, subject first to domestic law however.
  • s.3(2) – If a person suffers loss/damage/injury in respect of (1), they may recover damages.
  • s.4 – Notice shall be taken of ECtHR decisions.
  • s.5 – If Irish law is incompatible, a declaration is to be issued
  • s.5(1) – HCt or SCt may make sucha  declaration
  • s.5(2) – A declaration of incompatibility shall not a) affect the validity, continuing enforcement of law b) shall not prevent proceedings.
  • **********McD v L & M [2010] 2 IR 199
    • This is the most important decision by the SCt on what ‘we’ think of the ECHR.
    • Facts: Two women asked McD to be a sperm donor. He understood that he would not have any rights, but became attached and applied under s.6(a) of the Guardianship of Infants Act 1964. The lesbian couple wished to defeat any right he had. Note: They were not recognized as a family under Irish domestic law so nothing can help them in Irish law – they seek Art. 8 of the ECHR (respect for private and family life) but the ECtHR had never said that same sex couples have rights under Art.8.
    • HCt per Hedigan J finds in favor of the couple and defeated McD’s statutory rights. However the SCt found ruled against the couple and said that McD’s statutory rights still existed.
    • Three stages to the judgment (conflict between SCt and HCt):
      1. Place of ECHR law in hierarchy of law sources.
      2. Role of national judges vis-a-vis Irish and ECHR law
      3. Implications for an individual applicant seeking to rely on ECHR law before the Irish Courts
    • HCt per Hedigan J:
      1. Recognizes that there are no explicit rights afforded to same sex de facto families in Irish law. However he goes on to say that this does not necessarily preclude the Court from recognizing certain rights and duties (he is saying there are some gaps in the Constitution and is trying to fill them. This however is contrary to the doctrine of separation of powers, presumption of constitutionality etc. etc.). He connected the ‘silence’ in Irish law to ECHR law.
      2. Domestic courts/judges have the primary obligation to interpret and apply the ECHR (this is atypical). He feels the European Court is more of a supervisory body and is subsidiary to the national systems safeguarding human rights.
      3. From the two principles recognized above, he comes to the conclusion that silence in the ECHR, and due to the fact that no case law had recognized same sex couples as constituting families, it must be regarded that they have rights under Art.8
    • SCt per Murray CJ
      1. Ireland is a dualist state. In this sense national law > international law.
      2. The duty of the courts is to uphold and enforce the Constitution – that is what judges say in their oath. The HCt had no jurisdiction to apply directly the provisions of the Convention in that manner.
      3. The ECHR is a living document.
  • ***Foy v AntArd Chlaraitheoir [2007] IEHC 470
    • Concerned a transgender seeking to have her birth certificate changed (See supra).
    • With the Civil Registration Act 2004, the court issues a declaration of incompatibility and as a result Foy is perhaps entitled to an ex gratia payment under s.3(2) of the ECHR Act 2003.
    • There are four consequences of such a declaration:
      1. Taoiseach must notify the Dail and Seanad.
      2. Reasonable expectation that the order will be taken seriously
      3. Applicant can apply for ex gratia payment
      4. Court will order the Gov’t to pay all legal costs.

iii) European Union Law (Article 29.4)

4 responses to “Constitutional Law

  1. Pingback: Infertility Unfair Dismissal Laws | Secret Pregnancy Blog·

  2. Pingback: Infertility Unfair Labor Law | Secret Pregnancy Blog·

  3. Pingback: Infertility Unfair Dismissal From Job | Secret Pregnancy Blog·

  4. I don’t understand why the inalienable and imprescriptable right of a family to be afforded the special protection of the state is then alienated two clauses later by declaring that families will only be recognised after signing a marriage contract. These two clauses are directly in contradiction. Surely what is inalienable cannot be impinged upon by any man-made dictat , including those in the constitution? What is inalienable transcends all law. Can anyone explain this please??

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