Equality Flashcards
where does the constitution provide for equality?
Article 40.1 - All citizens shall, as human persons, be held equal before the law.
what is the human personality doctrine?
The human personality doctrine is derived from that phrase “as human person”. The constitutional guarantee of equality is thus limited to equality as human persons
what is wrong with the right to equality in ireland
- Jurisprudence on equality is ‘remarkably underdeveloped’ compared to international cases on equality.
- “Article 40.1 was effectively sidelined by a restrictive judicial interpretation of the human personality doctrine.”
explain the two different approaches to the human personality doctrine
- Context approach
i. Discrimination takes place in context that relates to essential aspect of human personality
ii. shortcomings - would allow for discrimination in an area that isnt an area of human personality - Based-on approach
i. Discrimination is based-on an essential aspect of human personality
ii. is the basis for this treatment relating to an aspect of human personality
what are the facts of Quinn’s Supermarket v Attorney General in relation to Equality
A. Argued exemption for
Jewish shops breached equality
B. Kenny J (context approach) - Trading hours is not an essential aspect of human personality
I. Per Oran Doyle – A rule that all Jewish people wear a yellow star would not be violated under this approach
C. Walsh J (based-on approach) – Discrimination was based on religion which was an aspect of human personality - limited to people
I. On facts – ‘Superquinn’ was not a person and so couldn’t rely.
What was held in the case of Murtgah Properties v Cleary - Equality?
Kenny J relied on the context
approach to find that Article 40.1 does extend to trade disputes as they are not an essential
aspect of human personality.
What was held in the case of Brennan v. AG - Equality?
the Supreme Court noted that Article 40.1 was the most ‘difficult and elusive’ concept in the Constitution.
the case adopts ‘based-on’ approach: “Art. 40. 1 is not dealing with human beings in the abstract but with human beings in society
what are the facts of Re Article 26 and the Employment Equality Bill 1996 - Equality
The Bill contained an
exception from the prohibition on age discrimination for persons over 65 and under 18 in the context of employment. The Court found that the discrimination was based on age and so Article 40.1 was engaged.
But it went on to uphold the discrimination as it was not arbitrary or irrational.
It noted that one cannot expect a child or nonagenarian to be employed as a pilot.
It is worth noting that Hamilton CJ set out a list of differences in treatment which are presumptively invalid: sex; race; language; and religious or political opinion.
what makes the right to equality one of the most limited rights?
- The language of the constitution itself: Human Personality Doctrine
- Concept of justifiable discrimination - Physical or moral capacity and social function
what did Quinn’s Supermarket v Attorney General define as a human person?
Kenny J pointed out that the right to be treated equally “refers to human persons for what they are in themselves rather than to any lawful activities, trades or pursuits which they engage in or follow”
Majority of the court held “under no possible construction of the constitutional guarantee could a body corporate or any entity but a human being be considered to be a human person for the purpose of the provision
what was significant about the case of Murphy v Ireland and Others for equality
courts showing more nuanced approach to equality principles
the scope of Article 40.1. can be wider than asking whether the discrimination is based on a fundamental aspect of human personality.
Instead, the Court can also look at whether a particular law or decision is going to affect a fundamental aspect of human personality and whether it does so in a discriminatory manner.
what was noted as the essence of an equality claim in the case of Minister for Justice v O’Connor
“The essence of an equality claim is the sense of injustice that someone experiences when a person similarly situated is being treated differently and normally more favourably and in particular if the circumstances are suggestive of a discriminatory ground related to a persons human personality.”
what are the facts of An Blascaod Mor Teoranta v Commissioners of Public Works - equality
- Power to CP land on Great Blasket Island to create national park
- Exception for persons (or descendents) who owed land since 1953
- Held – Hard to see the legislative purpose
- Held – Pedigree has no place outside succession
- Held – Courts should be pedigree blind, colour blind and gender blind
what are the facts of *MD v Ireland [2012]
- defilement of a child
- Offence to have sex with someone under 17 (s.3, 2006 Act)
- Exception – Females under 17 - she doesnt commit an offence
Applicant (15) had (anal) sex with 14 year old girl. she wasnt liable and he was - Argued – Unequal treatment was unfair - blatant gender discrimination only difference between them is their gender
- Held SC – Danger of pregnancy justified unequal treatment
what are the facts of *O’B v S? - equality
- Succession Act Intestacy rules provided that non-marital children could not inherit property.
- Held – Discrimination not justified by Article 40.1 exceptions
no reason why legitimate and illegitimate would be treated diff……… - BUT – Was justified by special protection of family in Constitution
(institution of marriage) - Relevance – Shows wider exceptions to equality
