Fundamental Principles & Judicial Review

Question 1

General Approach to Non-Citizens and Fundamental Rights

Answer 1

Some rights are broad and apply to both citizens and non-citizens: Art.41 Family (‘man’)
Courts tend not to view the word ‘citizen’ literally and have been guided by the nature of the right:

Question 2

General Approach to Non-Citizens and Fundamental Rights

State (Nicolau) v An Bord Uchtala [1966]

Answer 2

• Non-citizen challenged s in Adoption Act. State didn’t make issue, so no need to address but
• HC: Teevan J didn’t believe the courts were obliged to deny constitutional rights merely bc of lack of citizenship, but Henchy J said nothing supports the concept that citizen = person.
• SC: Walsh J held (1) a non-citizen can challenge a statute where the provision didn’t invoke citizenship and (2) non-c could invoke any rights that were not confined to citizens.

Question 3

General Approach to Non-Citizens and Fundamental Rights

State (McFadden) v Governor of Mountjoy Prison [1981]

Answer 3

• M relied on Art.40.3 re fair procedures to overturn extradition order. No issue of N-C made.
• Noted that the rights and liabilities of an alien may be different, e.g. they may not be able to vote or can be liable to deportation, but once the courts have seisin of a dispute, it’s difficult to see how the
  standards should be any different in the case of an alien than a citizen (e.g. fair proc)

Question 4

General Approach to Non-Citizens and Fundamental Rights

Article 9.2.1

Answer 4

(by June 2004 amendment) restricts citizenship: No automatic right to citizenship if born in Ireland unless the parent is a citizen or it is provided for in law. Curtailing citizenship rights?

Question 5

Article 9.2.1

NVH v Minister for Justice [2017]

Answer 5

• N came to Ireland and applied for refugee status. Process was v long and was not allowed take up employment so challenged on, inter alia, constitutional grounds: right to work.
• HELD: The obligation to hold persons equal before the law means non-citizens can rely on rights in the Constitution that go to the essence of human personality, but can’t rely on rights that are social and tied to the civil society in which citizens live, e.g. the right to vote.
• The nature of the right to work is a freedom to seek work. Whilst linked to the economy, this freedom
  is part of the human personality and thus a non-citizen can rely on it.

Question 6

Extent to which a person can waive a constitutional/fundamental right

State (Nicolau) v ABU [1966]:

Answer 6

Nothing in Art.40 preventing the surrender, abdication or transfer of any rights. M placed child for adoption and thus surrendering custody rights.

Question 7

Extent to which a person can waive a constitutional/fundamental right

G v An Bord Uchtala [1980]:

Answer 7

• Court recognised that a M’s consent to her child being placed for adoption constituted a waiver of her personal right to custody of her child.
• Held such waiver must be on the basis of full knowledge and consent, and consent motivated by fear, stress, anxiety, dictated by poverty etc. was not valid consent.
  Rights excluded from this are Arts.41 and 42 (Family) as they are inalienable and imprescriptible.

Question 8

Unenumerated and Enumerated Rights

TWO TYPES

Answer 8

(1) Art 40.3.1 and Art 40.3.2 and (2) Judicial interpretation of other provisions

Question 9

Unenumerated and Enumerated Rights

Ryan v Attorney General [1965] Birth of unenumerated rights

Answer 9

• Kenny J said the words ‘in particular’ meant the State’s obligations listed in Art.40.3.2 weren’t the
  only rights protected by it. ‘In particular’ meant they were only mentioned ‘in particular’.

Question 10

Judicial Interpretation Rights

IOT v B [1998

Answer 10

• Keane J commented on Ryan: There was no discussion re whether the framers of the Constitution intended the duty of declaring the rights to be the function of the judiciary or the Oireachtas.
• There has been no endorsement of the ‘Christian and Democratic’ nature criterion.
• It’s sufficient to say that, except for when an unenumerated right has been unequivocally established
  by precedent e.g. right to privacy, some judicial restraint should be exercised.

Question 11

The “natural law” sounding ‘C & D’ nature of the State fits well with:

McGee v Attorney General [1974]:

Answer 11

Arts.41-43 reject the theory there are no rights without laws.

Question 12

Murray v Ireland [1985]:

Answer 12

Costello J held the Const doesn’t confer fundamental human rights on citizens but recognises them as antecedent and superior to positive law + protects them. The argument is the Const
recognises the existence of rights that exist w/o it, but this still doesn’t solve how one finds these rights

Question 13

Horizontal Application of Constitutional Law against Private Inds & Orgs

Doctrine:

Answer 13

The Constitution is applicable vertically against the state, not horizontally against private individuals. This is because it speaks to the state. It governs how it acts in its dealings etc.

Question 14

Meskell v CIE [1973]

Answer 14

• M employed by C. C agreed with TUs to fire all employees and rehire on new contracts including a compulsory TU membership. M sued and succeeded in the SC. Held: if a person suffered damage through breach of a const right, they’re entitled to seek redress against the person who infringed it. If the state can’t infringe rights w/o being held accountable, why should others?

Question 15

Herrity v Associated Newspapers Ireland Ltd [2008]

Answer 15

• A wrote articles re H and a priest + published pics. Sought damages for breach of right to privacy.
• Referred to 2 privacy cases against private bodies (RTE): held right to sue for damages for breach
  right to priv is not limited to State actions. Other than mentioning the cases, no justification given

Question 16

Limiting Constitutional Rights: The Proportionality Test

No right is absolute

Answer 16

State is entitled to limit our rights for various reasons in or implied in the Const.
A limitation on one’s rights must be a proportionate one.

Question 17

Limiting Constitutional Rights: The Proportionality Test

Heaney v Ireland [1994,1996]

Answer 17

• The objective must be of sufficient importance to warrant overriding a constitutional 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 to the objective, not be arbitrary/unfair/ based on irrational consids
  b. Impair the right as little as possible and
  c. Be such that their effects on rights are proportional to the objective.

Question 18

Problems:

Answer 18

(1) Courts apply this inconsistently  New test adopted in Tuohy
(2) The courts have applied (b) of Heaney in very different ways

Question 19

Tuohy v Courtney [1994]

Answer 19

• In a challenge to the constitutional validity of a statute, the courts role is not to impose their view but to determine whether the balance contained in the impugned legislation is ‘so contrary to reason and fairness’ as to constitute an unjust attack on an individual’s constitutional rights.
• This standard is deferential to the Oireachtas. The Heaney test is more rigorous.

Question 20

TF v Ireland [1995]:

Answer 20

Court applied Tuohy without considering Heaney.

Question 21

Re Art 26 and Employment Bill 1996:

Answer 21

Applied both without explaining why.

Question 22

Murphy v IRTC [1997,1999]

Answer 22

• S.103 Radio & TV Act 1988 prevented any religious ads. M argued it was overbroad.
• Rejected: Although not tailored with exactitude to objectives, they will still be upheld.
• Inappropriate to involve state agents (e.g. RTE workers) to decide what ads are offensive.

Question 23

Redmond v Minister for Environment [2001] Contrast with above

Answer 23

• S.13 European Parliaments Election Act 1997 required a candidate to give a £1k deposit which they’d only get back if they won. To prevent against ‘crank’ and non-serious candidates.
• Held not the least restrictive means: Could have required a certain number of signatures.

Question 24

Balancing Rights

Ryan v AG [1965]

Answer 24

• Kenny J: ‘when dealing with controversial social, economic and medical matters on which it’s notorious view changes from generation to generation, the Oireachtas has to reconcile the rights of the personal rights with the claims of the common good.

NB: When there’s competing interests, deference will be afforded to the

Question 25

Re Art. 26 and the Health (Amendment) Bill 2004 [2005]

Answer 25

• The bill wanted to retrospectively validate illegally levied hospital charges.
• Unsatisfied: Invoking the balancing argument in circs where rights such as these, rights of persons of
  modest means, are extinguished in the sole interests of State finances would require extraordinary circs

NB: When there’s competing interests, deference will be afforded to the

Question 26

Socio-Economic Rights

O’Reilly v Limerick Corporation [1989]

Answer 26

• Travellers in poverty claimed a right to basic and comparatively modest standard of living
• Rejected on distinction bw Distributive Justice and Commutative Justice: DJ is re distribution of common goods and CJ is re what is due to a person from another (incl. public authorities).
• Held Oireachtas decides distributive justice and the courts commutative justice.
• Held the claim involved a claim to nation’s wealth and thus political – not for courts.

Question 27

Sinnott v Minister for Education [2001]:

Answer 27

4/7 SC judges held instructing the State to provide for certain kinds of education for an autistic person involves Court making policy.

Question 28

TD v Minister for Education [2001]:

Answer 28

Held no mandatory injunction may be ordered by a court to enforce the State to effectively spend money in vindicating a right. All about enforcement. But some of the judges
in TD expressed doubt about the existence of socio-economic rights.

Question 29

O’Donoghue v Legal Aid Board [2004]

Answer 29

• Argued a failure to provide LA in a timely fashion (2yr delay) was a breach of const rights.
• This is because the board was under-resourced by the Minister.
• Kelly J held FPs and the right of access would require legal aid so, the delay amounted to a breach of their constitutional entitlements. Was this instructing the State how to spend money? No
• Kelly J said this didn’t concern a claim for mandatory relief against the State, he is simply ensuring that a constitutional right is protect and given effect (just telling the M to listen!!).

Question 30

Cronin (A Minor) v Minister for Education [2004]

Answer 30

• C suffered from number of disabilities and sued the State claiming various declaratory reliefs in order to receive free primary education and free therapies and care.
• Only the interlocutory stage (claims pending the determination) so tests applicable not as rigorous
• Laffoy J held that, with particular regard to TD, he’s satisfied granting the mandatory injunction doesn’t breach TD as the relief is limited to C’s particular needs and merely extends a programme

Question 31

O’Carolan (A Minor) v Minister for Education [2005

Answer 31

• O severely autistic. Legal case started, State made proposals the parents felt weren’t good enough
• Held the State’s offers were objectively adequate: no case has been cited to prove parents are entitled to choose the exact care/education. Parental choice re adequacy is not the baseline.
• Cited Sinnott, saying the courts should be circumspect re matters re public finances. But then said Sinnott was not determinative as it dealt with man relief not adequacy of existing offers.
  Is the circumspection encouraged in Sinnott creeping out into a wider sphere?

Question 32

Doherty v South Dublin County Council [2007]

Answer 32

• Offers of accommodation made to travellers which S admitted equivalent standards for social housing couldn’t be achieved in a mobile home (e.g. plumbing, heat, etc.)
• D claimed this failure to provide breached Art 8 ECHR and Housing Act provisions.
• Rejected: (1) Claim not supported by ECHR decisions and their statutory entitlements exceed any benefit available under Art 8 interps + (2) If welfare is given and at what level is a political decision
• For a court to declare the absence of welfare to be wrong, need to show ‘complete inability to exercise a human right and a serious situation with prospect of serious long term harm’
• Held if rights were violated, TD prevented a mandatory order, but declaration of violation allowed

Question 33

Summary of Current Position

Answer 33

1. The courts have a jurisdiction to declare that rights have been violated.
2. This jurisdiction seems to be a cautious one where the rights do not yet have a solid basis in our constitutional history.
3. However, the mere fact rights look like they require money to be spent is not a reason for them to have no constitutional status: Re Art 26 and Health Amendment Bill 2004 (see above).
4. TD shows mandatory relief is impermissible.
5. Cronin: difficulty whether such relief might be possible where it’s more limited than that sought in TD