Constitution, Human Rights and Housing Law & Property in the body

Question 1

Protection of property

Answer 1

National level: The Constitution 1937 and European Convention on Human Rights Act 2003
Council of Europe: European Convention on Human Rights 1950
European Union: European Union Charter of Fundamental Rights
Case law: Pye v United Kingdom, European Court of Human Rights

Question 2

Right to property in the Constitution

Answer 2

Art 43:
- Ownership of property is a natural right
- Right to transfer property to others and to inherit property- legislated for in a number of acts e.g. Succession Act 1965

State guarantees not interfere with one’s property
- Exceptions: where social justice or the common good requires interference with the right e.g. property purchased with the proceeds of crime
- Right to property is a qualified right- the right can be infringed, any infringements must be provided for in law and be proportionate to the aim to be achieved.

Question 3

Proportionality

Answer 3

In Heaney [1994], Costello J. stated:
“The objective of the impugned provision must be of sufficient importance to warrant overriding a constitutionally protected right. It must relate to concerns pressing and substantial in a free and democratic society. The means chosen must pass a proportionality test. They must: (a) be rationally connected *24 to the objective and not be arbitrary, unfair or based on irrational considerations, (b) impair the right as little as possible, and (c) be such that their effects on rights are proportional to the objective”.

Question 4

Compensation

Answer 4

Barring cases of national financial emergency, it would seem that the obligation to pay compensation is directly related to the severity of the infringement of the property right that has occurred as a result of the operation of the law.

Where the right has been completely abrogated or destroyed, or where there is a serious interference with the right, it would seem that compensation is payable. However, where there is but a minor infringement of the right in question, or where only one right in the large bundle of rights which a landowner has over his property is taken away, it is less likely that compensation is payable.

Question 5

ECHR Article 8 The right to respect for private and family life

Answer 5

1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Question 6

ECHR under Irish law

Answer 6

ECHR Act is legislation, thus is ranks below the Constitution.
This means that the ECHR has been incorporated on a sub-Constitutional level.

The ECHR Act 2003 – Main provisions

• Courts are to interpret legislation and rules of law in the context of Ireland’s obligations under the ECHR (s2).
• Every organ of the state (excluding the Courts) is to perform its functions in a manner compatible with the State’s obligations under the ECHR (s3).
• Superior Courts can issue a ‘Declaration of Incompatibility’ that a law or the actions of a public body is incompatible with the ECHR (s5)

Question 7

Remedies under ECHR Act

Answer 7

Applicant who believes their rights under the ECHR have been violated can apply to the superior courts for a declaration under s5 ECHR Act that the law is incompatible with the State’s obligations under the ECHR

If a declaration of incompatibility is granted, the injured party can make an application to the Attorney General for compensation. An ex gratia payment can be granted by the Government (s5(b)&(c)).

Question 8

Declaration of incompatibility modalities

Answer 8

Once a declaration of incompatibility has been made, the Taoiseach must bring the declaration before the Dáil and Seanad (Senate) within 21 days (s5(3)).
No obligation on the Taoiseach to indicate to the Dáil or Seanad if any remedial action is to be taken.

Declaration of incompatibility under ECHR Act 2003

Declaration of incompatibility have been issued for example in O’Donnell v South Dublin County Council [2007]

Question 9

Property in the body

Answer 9

Haynes (1614) No bodily property- body is equivalent to a lump of clay, but technical advancements have led to the valuation of body components.