Constitutional Rights Flashcards
Constitutional rights
summary
Constitutional rights broadly Right to privacy Property rights Family rights Education Equality Freedom of expression
Constitutional rights broadly
summary
- Source of constitutional rights:
- Natural law foundations:
- Remedies for breach of constitutional rights:
• Source of constitutional rights:
rights are interests recognised and protected by a rule of right, or a principle or rule enforced by the cts. The enumeration of a collection of express rights in a document (enumerated rights, as opposed to unenumerated rights, a concept developed by the judiciary- see below) which was given a superior status as a source of law, inevitably give rise to the theory that these rights are of a different class.
Therefore we have legal rights and constitutional rights. The other issue is that there are certain inalienable rights which are fundamental to being human and which no legislature may give or take away.
The tension around describing such rights was seen in State (Ryan) v Lennon where natural law was mentioned as a possible source for such rights and noted that a violation of such rights would be repugnant to natural law and therefore null and void.
Right to privacy
summary
- X v Flynn:
* Right to martial privacy:
Property rights
summary
- Protected under Articles 43 and 40.3.
* Imposition of levies:
Family rights
• MR & An t-Ard Chlaraitheoir, Ireland and AG:
surrogacy contracts were not illegal in Ireland and that because blood testing was permitted under the Status of Children Act 1987 to ascertain motherhood, there was a legal mechanism to change the register.
The applicants were applying for, inter alia, a declaration under the act that the commissioning mother was the mother of the twins born to the surrogate mother and a declaration that she was entitled to be registered as the mother of the twins and to have the register corrected.
Their application was opposed by the State, most particularly on the basis that mater simper certa est (motherhood is always certain) was the basis of registration of births in Ireland and had been imported into BnaH via Article 40.3.3.
Ct concluded while surrogacy contracts were not illegal, they were not enforceable in any ct.
Education
• Article 42:
Sinnott v Minister for Education: recognised the rights of the child, and duty of the State as guardian of the common good. BnaH declares that the primary and natural educator of the child is the family. State guarantees to respect the rights of the parent to provide an education for the child. State requires children to receive a certain minimum education; the wording ‘certain minimum’ does leave a grey area as to what that said minimum standard is. The Education (Welfare) Act 2000 does not give a definition of a “minimum education”. However, it does provide that the Minister may set out a “prescribed minimum education”. That minimum standard may be different for children of different ages and of different capacities. State will not oblige parents to send their child to certain schools and the child can be home educated, once registered. Where a child has special needs which cannot be provided for by the parents, State is obliged to cater for such needs in order to fulfil the child’s basic fundamental right to education. Sinnott established that the appropriate education and that this education should be provided regardless of a person’s age. In that case, the Government appealed HC decision. The objection was against the argument that the constitutional entitlement to a free primary education is based on needs, not on age, and does not cease at age 18. The Government warned that the judgment created dangerous constitutional precedents, because it awarded damages for the first time to a person for the suffering of another. SC overturned HC ruling. In agreeing that Sinnott had not received the education he had been entitled to, but that this entitlement ends at the age of 18. The Government had to put an end to the dangerous constitutional precedents, it was estimated that there were 200 legal actions being taken by parents with children with special needs throughout Ireland in the year that followed the Sinnott case.
Equality
- Article 40.1
- Article 40.1 was successfully raised in Donegal Co-op
- Article 40.1 declares that the guarantee of equity
- Historically, Article 40.1 applies only to human persons
- McCabe:
Freedom of expression
- Rationale:
- Media:
- Morality:
- Restriction on advertising:
• Natural law foundations:
perceived as deriving from some absolute source such as God’s revealed word. These are rights which are immutable and eternally valid and must overrule all positive law. There is a natural law basis for these fundamental rights laid down in BnaH, the markings of which was seen in Ryan v AG and which has continued ever since. Therein it was noted that there are personal rights of the citizen which follow from the Christian and democratic nature of the State which are not mentioned in Article 40 at all. Constitutional rights are therefore superior to positive law but there are many constitutional rights which are not expressly therein set out (unenumerated rights). This is because BnaH is not their source, but natural law is.
CASES McGee v AG Ryan v AG: Merriman v Fingal Co Co: Regulation of Information (Services Outside the State for Termination of Pregnancies) Bill:
McGee v AG
was central to this realisation where it was noted that Articles 41-43 emphatically reject the theory that there are no rights without laws, no rights contrary to the law and no rights anterior to the law. Note that some fundamental rights are declared to attach to citizens while others attach to persons. This distinction is important when it comes to non-Irish citizens who rely on constitutional rights. These fundamental rights, enumerated or unenumerated, can and are broken for the greater good. Articles 40-44 allow for fundamental rights.
Ryan v AG:
ct held that rights are not confined to those specified in Article 40’. By focusing on the words ‘in particular’, ct allowed for rights to be ‘read into’ Article 40.3.2.
The doctrine has led to the recognition of, amongst others, the right to marital privacy, the right to earn a livelihood and, more recently, a right to environment consistent with human dignity.
Merriman v Fingal Co Co:
friends of the environment opposing planning permission for north runway at Dublin Airport. Noted that a right to the environment is consistent with human dignity and wellbeing at large is an essential fulfilment of all human rights and is enjoyed under Article 40.3.1.
Regulation of Information (Services Outside the State for Termination of Pregnancies) Bill:
is authority that natural law is antecedent and superior to all positive law.
• Remedies for breach of constitutional rights:
McGee v AG: p and other married people were entitled to have access to artificial contraceptives.
State (Gilliand) v Governor of Mountjoy Prison: an extradition order was quashed on the ground that the State had not observed BnaH
Further, under Article 40 an individual can apply to a ct to complain that their detention was not in accordance with the law: State (Trimbole) v Governor of Mountjoy Prison.
Another remedy is for an unlawful interference with a constitutional right as was seen in Meskell v Cie. An individual may also receive an injunction for breach.
Right to privacy
• X v Flynn: right to privacy may be infringed by the continued conduct of newspapers publishing false stories about p.
OTHER CASES
M Drury: Van Hannover v Germany: Campbell: Sinnot: Herrity: Douglas v Hello: Douglas and Zita Jones’ wedding, Leander v Sweden Kennedy v Ireland:
M Drury:
in extreme cases, there is a right to confidential communications.
Van Hannover v Germany:
concerned photos of Princess Caroline of Monaco in her private life. This case emphasises that private life encompasses the right to control the use of your own image.
Campbell:
concerned Naomi Campbell and the daily mirror speaking about her attendance at a narcotics anonymous meeting. Ct agreed with the p that the intrusion was disproportionate as regards freedom of expression and right to privacy.
Sinnot:
indecent exposure by p published in newspaper. Argument centred on whether this was in the course of a public act or not whereas Princess Caroline and Naomi Campbell were in private. Here, he was at a match so should have known that pictures would be taken. A similar view was taken in McNamara.
Herrity:
priest having an affair with a woman which was reported in a newspaper. Ct stated that there are cases where the right to privacy will prevail over the freedom of expression. Held: information published was not in the public interest.
Douglas v Hello:
Douglas and Zita Jones’ wedding, emphasis here was on tort of breach of confidence.
Data retention can also be an argument; the mere storing of data relating to private life of an individual is interference as per Article 8 ECHR:
Leander v Sweden.
General Data Protection Regulation (GPDR) has particularly reformed this area and strengthened the rights of the data subject. BnaH does not specifically state a right to privacy but the courts recognise that the personal rights in BnaH imply the right to privacy. The unenumerated right to privacy has been interpreted as protecting individuals against certain kinds of intrusion others, your private written communications and telephone conversations cannot be deliberately and unjustifiably interfered with. However, your right to privacy may be limited or restricted by legislation in the interests of the common good.
Kennedy v Ireland:
unenumerated fundamental right to privacy has been interpreted as protecting individuals against certain kinds of intrusion by persons or bodies. In that case, p’s were journalists whose telephones had been tapped, on foot of a warrant, issued by the Minister for Justice. Tapes were made of the recorded conversations and journalists were claiming for breach of their constitutional rights.
• Right to martial privacy: McGee v AG:
p alleged that she had been warned by her medical adviser that her life would be in danger if she were to become pregnant again.
She further alleged that, having considered this advice, she and her husband decided that they should have no more children and would resort to the use of contraceptives.
She further alleged that her doctor prescribed the use of a diaphragm together with a contraceptive jelly known as “Staycept Jelly”, and that he supplied her with a quantity of it. The jelly was seized by Irish customs as a prohibited substance. P claimed that this act prohibiting the jelly was inconsistent with BnaH and that, therefore, it was not carried forward by Article 50, and that it no longer forms part of the law of the State. SC found in her favour and vindicated her right of privacy in her marital relations with her husband.
The right to marry and the intimate relations between husband, wife and the four infant children of the marriage were entitled to be considered by the law as being entitled to protection as having an interest in seeing that the family was not further enlarged, or furthermore that nothing would happen to the wife/mother due to a medical issue that could have been avoided, these are fundamental rights which have existed in most, if not all, civilised countries for many centuries.
