Fundamental Rights, Unenumerated Rights & Equality

What is the constitutional source of fundamental rights in Ireland?

• Articles 40-44 of the irish Constitution

• Recognize both express rights (explicitly stated) and unenumerated rights (implicit)

• Article 40.3 obliges the state to “respect, defend and vindicate” the personal rights of the citizen.

• Article 40.3.2 obliges the state to protect these rights from unjust attack

Key characteristics of fundamental rights

1. Inalienable & imprescriptible - cannot be surrendered or lost through non use.

2. Antecedent to an superior to positive law- they pre- exist the Constitution (Ryan v AG)

3. Justiciable - courts can enforce them against the state.

4. Subject to limitations - may be restricted to protect other constitutional values or the common good (Heaney)

How does the constitution limit or balence rights?

Proportionality Test - Heaney v Ireland 1994

• 1. Limitation must be rationally connected to an objective of sufficient importance.

• 2. Means must impair rights as little as possible.

• 3. Proportionality between the effects of the restriction and the objective.

  Rationality test - Tuohy v Courtney 1994: legislation must not be arbitrary or capricious.

  Balancing - rights weighed against each other (e.g freedom of expression vs fair trial in Gilchrist v Sunday Newspaper 2017)

Can non-citizens invoke fundamental?

• Generally yes, unless expressly limited to citizens (Art 40.1 equality provision applies to “citizens”)

• The State (Nicolaou) v an Bord Uchtala - right to travel recognise to non citizens.

• Rights like political participation may be citizens specific.

Key expression rights & leading cases?

1. Right to Life - Art 40.3.2; protection of unborn (pre- 2018) & born persons.

   Re a Ward of Court (No.2) - withdrawal of life support permissible if in patients best interests.

2. Right to One’s good Name - Art 40.3.2 De Rossa v Independent Newspapers 1999.

3. Right to Earn a Livelihood - Murtagh Properties v Cleary 1972; limits must be proportionate (Re Article 26 Employment Equality Bill).

4. Rights to Bodily Integrity - Ryan b AG; includes freedom from harmful treatment by State.

5. Right to Privacy - McGee v AG (martial privacy); extended in Kennedy v Ireland (communications privacy)

6. Right of Access to Courts - Macauley v Minister for Posts & Telegraphs.

Remedies for Breach of Fundamental Rights?

• Declaration of unconstitutionality - law is void from inception (Article 15.4.1).

• In junctions/ damages - e.g., Kennedy v Ireland (damages for breach of privacy).

• Novel remedy in NVH v Minister for Justice - declaratory relief allowing access to employment.

What are unenumerated rights?

• Rights not expressly listed in the Constitution but recognized by the courts as part of the personal rights” under article 40.3.

• First articulated in Ryan v AG 1965 - right to bodily integrity

• Judicially derived through interpretation; grounded in human dignity and the Christian/democratic nature of the state.

What is the basis for judicial recognition of unenumerated rights?

• The State guarantees in its laws to respect, and, so far as practicable, by its laws to defend and vindicate the personal rights of the citizen") and Article 40.3.2 (listing life, person, good name, and property rights) were not exhaustive.

• Ryan v AG - “Personal rights” go beyond those expressly mentioned; include rights resulting from the Christian and Democratic State.

• Early approach relied heavily on natural law; modern approach is more restrained, focusing on text, structure and underlying constitutional values (Friends of the Irish Environment v Government 2020)

Examples of unenumerated rights and key cases?

1. Right t Martial Privacy -McGee v AG 1974 used natural law approach (contraception case).

2. Right to Bodily Integrity - Ryan v AG fluoridation challenge) - “Christian and democratic nature”

3. Right to Earn a Livelihood - Murtagh Properties V Cleary 1972.

4. Right to Travel - The State (Nicolaou) v An Bord Uchtala 1966.

5. Right to Communicate - Murphy v Independent Radio and Television Commission 1999.

6. Right to legal Aid in Criminal Trials - Sate (Healy) v Donoghue 1976.

7. Right to Litigate - Macauley V Minister for Posts & Telegraphs 1966.

8. Right to Contraception Access for Adults - McGee

Modern limits on recognizing new unenumerated rights?

• Post TD v Minister for Education 2001 - courts reluctant to create socio - economic rights enforceable by mandamus.

• Friends of the Irish Environment 2020 - SC refused to recognize a free- standing, personal constitutional right to a healthy environment; emphasized need for caution and clear necessity. (“Judges looking into their hearts“)

• Focus on rights implicit in the text and necessary for the constitutional order (Adoption authority v C & D 2023)

Relationship with Natural Law?

• early cases like Ryan and McGee referenced natural law.

• Decline in modern use: Regulation of Information (Services outside the State for Termination of Pregnancies) Bill 1995 - SC held natural law is not superior to the constitution.

• Modern recognition grounded in constitutional text and human dignity, not abstract natural law.

Derived Rights

Friends of the Irish Environment v Government of Ireland 2020.

• He argued it is "more appropriate to characterise constitutional rights which cannot be found in express terms... as being “derived rights rather than unenumerated rights".

• there must be some root or title in the text or structure of the Constitution from which the right in question can be derived".

• He dismissed the concept of a "right to an environment consistent with human dignity" (as identified in Merriman v Fingal CC ) as ”impermissibly vague". Such a right either duplicates existing rights (e.g., right to life, bodily integrity) or lacks sufficient definition to be a standalone derived right.

What does the constitution say about Equality?

• Article 40.1 -

  • “All citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the State shall not have due regard to differences of capacity, physical and moral, and of social function.

  • Guarantees equality in human dignity, not absolute uniformity.

Is equality absolute?

• No - permits reasonable and proportionate differences in treatment.

• Quinn’s Supermarket v AG 1972: State may classify persons if classification is based on real differences relevant to the laws purpose.

Test for permissible classification? (Quinn’s Supermarket)

1. Classification must be based on real differences between persons.

2. Those differences must be relevant to the legislative objective.

3. Classification must not be arbitrary, capricious, or invidious.

4. Means chosen must be proportionate to the objective.

Examples of breaches of Art 40.1?

• Donnelly v Minister for Social Welfare [1973]: Discrimination against married women in social welfare benefits struck down.

• MhicMathúna v Ireland [1995]: Discrimination between teachers regarding pay.

• O’Reilly v Limerick Corporation – differential treatment based on irrelevant status failed test.

Examples of permissible discrimination?

• Brennan v AG – special tax rules for certain professions upheld as legitimate classification.

• Kavanagh v Governor of Mountjoy Prison – separation of prisoners justified on security grounds.

Interaction between equality and proportionality?

• Even where a classification is legitimate, restriction must meet Heaney proportionality:
  

  • Legitimate aim;

  • Rational connection;

  • Minimal impairment;

  • Balance between benefits and rights impact.

Recent developments?

• O’Meara v Minister for Social Protection [2024] – SC held exclusion of cohabiting partners from certain social welfare entitlements unconstitutional as unjust discrimination.

• Trend towards more searching scrutiny of indirect discrimination where it impacts dignity and substantive equality.

Ryan v Attorney General [1965]

First recognition of unenumerated rights; right to bodily integrity; “personal rights” extend beyond those listed in Constitution.

McGee v Attorney General [1974]

Recognised unenumerated right to marital privacy; struck down ban on contraceptive imports.

Murtagh Properties v Cleary [1972]

Recognised right to earn a livelihood as unenumerated right; limits must be proportionate.

State (Nicolaou) v An Bord Uchtála [1966]

Recognised right to travel; applicable to non-citizens.

Murphy v IRTC [1999]

Recognised unenumerated right to communicate; struck down blanket ban on religious advertising.

State (Healy) v Donoghue [1976]

Recognised unenumerated right to legal aid in criminal trials to ensure fair procedures.

Macauley v Minister for Posts & Telegraphs [1966]

Recognised right of access to courts as unenumerated right.

Kennedy v Ireland [1987]

Recognised right to privacy in communications; awarded damages for phone tapping.

Re a Ward of Court (No. 2) [1996]

Confirmed right to refuse medical treatment; withdrawal of life support permissible if in patient’s best interests.

De Rossa v Independent Newspapers [1999]

Confirmed right to one’s good name under Art 40.3.2; defamation damages awarded.

NVH v Minister for Justice [2017]

Developed constitutional remedy allowing asylum seekers access to employment.

Heaney v Ireland [1994]

Established proportionality test for restricting constitutional rights.

Tuohy v Courtney [1994]

Established rationality test for reviewing legislative classifications; must not be arbitrary or capricious.

Friends of the Irish Environment v Government [2020]

Refused recognition of free-standing right to a healthy environment; emphasised cautious approach to new unenumerated rights.

Adoption Authority v C & D [2023]

Applied modern restrictive approach to unenumerated rights; rights must be implicit in constitutional order.

Regulation of Information Bill [1995]

Supreme Court held natural law not superior to Constitution; rejected argument to strike down law based on natural law alone.

Quinn’s Supermarket v Attorney General [1972]

Established test for permissible classification under Art 40.1; must be based on real differences relevant to objective and not arbitrary.

Donnelly v Minister for Social Welfare [1973]

Struck down discrimination against married women in social welfare benefits.

MhicMathúna v Ireland [1995]

Struck down pay discrimination against certain teachers as breach of Art 40.1 equality.

O’Reilly v Limerick Corporation [1989]

Invalidated arbitrary classification unrelated to legitimate legislative aim under Art 40.1.

Brennan v Attorney General [1983]

Upheld tax classification for certain professions; legitimate difference relevant to legislative aim.

Kavanagh v Governor of Mountjoy Prison [2002]

Upheld classification separating prisoners on security grounds; proportionate difference.

O’Meara v Minister for Social Protection [2024]

Struck down exclusion of cohabiting partners from certain welfare benefits as unjust discrimination.