Equalurt Flashcards
What articles refer to equality
40.1 all citizens should be held equal before the law and state should have due regard to the different capacities of individual whether that be physical moral or social.
5- cuz Ireland is democratic implies a commitment to equality
State cases that capture the concept of equality in Irish law
Howard v commissioner of public works - rejected arguments that leg doesn’t apply to executive
McKenna v TD- state can’t fund one side of referendum and not the other, that’s un con
Coughlan v broadcasting complaints commission- rte letting one side of electoral candidate significantly more time to advertise themselves than other side was un con
Kelly g minister for justice- not including electoral costs in publicly funded activities was uncon
D minor v Ireland- guarantee of equality applies to all human persons even non citizens
Hennighen v min for housing-
Talking about elections of third level institutions said they should broaden them
Held: you can’t use article 40.1 to interpret 18. Con didn’t envisage electoral vote that held all citizens equally
Douglass v DPP
Conderned 38- no citizen should be tried for a criminal offence save in due course of law
Held: article 38 had to be interpreted using 40.1. Criminal leg has to be clear and ensure equal treatment of everyone, if it is not clear it risks treating someone less favourably and ir will he struck down as uncon
Who are the addresses of guarantee
Private parties- no
Judiciary- yes
Delegated leg- no
Private parties and guarantee of equality
State case
PP are not bound by guarantee, guarantee only applies to the state
Oireachtas can legislate to impose statutory duties on pp to not disc.
Employment equality bills: employers prohibited from disc against employees and trade unions on 9 diff grounds
Equal status acts: prohibits disc of commission of goods and services, accom and education on 9 diff grounds
Equality authority v portmarnock golf club-
Obiter- 40.1 does not confer obligation on individuals in their private relations
Judiciary and equality
State case
Judiciary are bound by the constitutional guarantee of equality
If they discriminate in court it’s unconstitutional
McMahon v leahy
5 men convicted under same offence 4/5 successfully argued defence of politically motivated offence preventing them from getting extradited back to UK
Held: 5th def could also use the defence and 40.1 could be used to argue defendants case
Delegated legislation and equality
East Donegal v DPP
Concerned delegated legislation on livestock markets
Oireachtas trying to compel minister to exempt certain farmers from application under that act was deemed as unconstitutional. Could not delegate legislation of this manner unless the exemption was necessary to prevent the infringement of some other con rights
Walsh J- article 40.1 could not apply to delegated leg and as a result Oireachtas couldn’t use the different social moral physical capacities to make such a distinction.
Note case only applies when Oireachtas seeking to exempt individuals, doesn’t say whether Oireachtas can distinguish between classes on grounds of social function
Dilane v Ireland
Concerned exemption applied to gardai acting in their course of duty, litigation costs didn’t apply for unsuccessful convictions followinh the arrests they made
Held: read in light of 40.1 and said it was con due to different social function of the gardai
Beneficiaries of guarantee
Doesn’t apply to corporations
Applies to non- citizens as well
Corporations
Name case
Article 40.1 didn’t apply to corporations
Macauley v minister for posts and telegraphs
Concerned phones back in the day which had to be distributed by the relevant minister and the waiting list was very long and pl found that in order to sue the minister he had to get permission from the AG and said that this was uncon.
Held: kenny J said article 40.1 didn’t apply here because minister was acting in his power as a legal corporation and not a private citizen.
However said right to access of court under 40.3 had been breached
Non citizens
Re article 26 and employment equality bill- article 40.1 conferred a right on anyone who was a human being
Ditt v krohne- if rule on litigation costs was to differentiate between citizens and non-citizens it would be uncon.
D minor v Ireland- guarantee of equality applied to all human persons regardless of if they were citizens or not
NHV V MINISTER FOR JUSTICE
facts: man seeking asylum wanted to work whilst application being processed. Legislation didn’t allow him to do so so he challenged its constitutionality.
Held: right to work essential to human dignity and non-citizen can rely on con right specifically related to their status as a human being
Essential attributes of human person
What are the 2 cases to distinguish between
Quinn’s v AG- context of disc
Brennan v AG- basis of disc
Distinguish between Quinn’s and brennnan
In Quinn
Argued that the by laws were contrary to 40.1
Held:
Walsh J- the guarantee of equality is not absolute irs a guarantee of a human person for their dignity as a human.
Focused on someone being treated superiority ir inferiorly due to an essential attribute that they hold.
Focused on the individual and not on the lawful activity they choose to engage in
Kenny J- equality before the law only concerned essential attributes of human person and not trade activities or employment.
Vs
Brennan v AG
Cited Walsh in Quinn’s and said that law not focused on individual in abstract but on individual in society.
Law can view individuals as inferior but regulate this in society
Law also can discriminate against someone in the form of conditions of employment.
Very different from Kenny’s approach
Note that Kenny’s approach doesn’t apply to admin of justice cuz it always applies there
Name other cases that concern personality doctrine
Murtagh properties v cleary
Pub employed woman and unions opposed this so placed a picket and pub wanted injunction to prevent this under 40.1
Held: Kenny J said 40.1 didn’t apply here cuz it didn’t concern trade activities but said implied right to work under 40.3 regardless of gender was breached.
Criticism- kind of contradicting himself cuz gender is an essential attribute to human persons
Predergrast v higher education authority
Concerned distinction between eu and non eu students in relation to education access
Held: Charleton J stated that the distinction had no relation to attributes of human person/ human personality doctrine
Carter v minister for education
Humphries J said that access to higher education was integral part of human personality and was well within personality encompassed in 40.1
The courts moving away from human personality and using their own terms for cases where the classification inhibits a con right
DPP V QUILLIGAN
DENNEHY V MINISTER FOR SOCIAL WELLFARE
RE ARTICLE 26 AND EMPLOYMENT EQUALITY BILL
note that this is sub-silencio and couldn’t be ruled as evidence of overruling kenny
Evidence of courts moving away from human personality doctrine, state cases
Quigley v minister for science-
Laffoy J said the factual context of disc has been moved away from by courts as well as court have abandoned the exemption of 40.1 by Kenny, implying that human personality doctrine has been abandoned
Murphy v Irelands- barringron J saying the essential attribute of human persons are the immutable characteristics that are integral to central identity of the person and may make them subject to stereotyping or disc.
Minister for justice v o Connor
Stated that the narrow conception of human persons in Quinn’s had since been qualified- abandoning human personality doctrine completely?
Essential attributes of a human person
Quinn’s- racial ethnic religious or social background
Re article 26 and employment equality bill- classifications based on age / gender/ religion would be uncon unless justified
An blascand mor teo v commissioners for public works- pedigree only in law of succession and not a ground for discrimination
Fitzgerald v Tipperary cc
Ditt v krohne
S49 of adoption act v k
Gorry v min for justice
