Personal Rights

Question 1

Enumerated rights v Unenumerated rights

Answer 1

there are some rights that are expressly mentioned in the constitution. These are known as “enumerated rights” They include the right to life an to one’s good name (article 40.3.2) and the freedom of expression (Article 40.6.1) and the general right to own property (Article 43)

The constitution however also protects certain rights that are not expressly mentioned in the text of the document. such rights not explicitly mentioned in the constitutional text are referred to as “unenumerated” rights

Question 2

how can one recognise a right that is not mentioned in the Constitution

Answer 2

In Ryan v Attorney general, kenny J looked at the provisions of article 40.3 which require that the state defend and vindicate certain rights” in particular…. the life, person, good name and property rights of every citizen”

The judge pointed out that by using the phrase in particular, the article implied that these express rights were not the only rights that warranted protection. Other rights, he concluded, were within the contemplation of the article, unenumerated rights that, he said, flowed from the “Christian and Democratic nature of the state.”

Question 3

what are the facts of Ryan V AG ?

Answer 3

This was a case in which the plaintiff argued that the fluoridation of the public water supply breached her right to bodily integrity.
she faced two massive obstacles in this case. First the right in which she asserted was breached was not expressly referred to in the constitution.
Secondly, she had to establish that the fluoridation of the water supply actually was harmful.
Ultimately the case failed on its facts as it was held that fluoridation was not harmful to public health. However, the enduring significance of the case was the High Court finding that such a right existed and was protected by the Constitution

Question 4

Sources of Unenumerated rights

Answer 4

(i) Christian and Democratic nature of the state - kennedy v Ireland
(ii) Human personality - McGee v AG
(iii) Natural Law - Mcgree v AG
(iv) Collory of other express rights - Macauley v Minsiter for posts and telegraphs
(v) Article 45 - Murtagh Properties v Cleary
(vi) International Agreements - YY v Minister for Justice

Question 5

examples of unenumerated Rights

Answer 5

1. Right to bodily integrity
2. Privacy and marital privacy
3. Right of access to the courts
4. Right to earn a livelihood
5. Right to Marry
6. Right of unmarried mothers
7. Fair procedures
8. Right to communicate

Question 6

The right to bodily integrity

Answer 6

The first unenumerated right to be established in the court of law was the right to bodily integrity.
in other words the state cannot behave in a manner that outs citizens and their health in danger. First established in the case of Ryan v Attorney general

Question 7

what are the facts of state (richardson) v Attorney general - bodily integrity

Answer 7

a prisoner successfully argued that the insanitary conditions of Mountjoy prison’s facilities constituted a breach of her right to bodily integrity. The court ruled that the state had failed “to protect the applicant’s health” whilst she was incarcerated.

Question 8

what are the facts of McGee v Attorney General ? - bodily integrity

Answer 8

The supreme court ruled that that provisions banning the sale, manufacture, distribution and importance of contraceptives infringed the right to bodily integrity of the plaintiff.

Question 9

what are the facts of Re a ward of Court (withdrawal of medical treatment) ? - bodily integrity

Answer 9

The Supreme court ruled that the right to bodily integrity presupposes that a person can not be made to undergo medical treatment, without that person’s consent .

Question 10

The right to earn a livelihood

Answer 10

it is unconstitutional for the state, without good reason, to prevent a person from carrying out a legitimate trade or profession for which that person is qualified for. This does not, of course, mean that the state is obliged to give everyone a job, still less to guarantee all citizens that they may work in whatever field they desire

Question 11

what are the facts of Murtagh Properties v. Cleary? - The right to earn a livelihood

Answer 11

This case involved an attempt by the defendants, who were trade union officials, to prevent the employment of non-union female bar staff in the plaintiff’s public house. Kenny J held that such actions breached the constitutional right to both the plaintiff and the female staff to earn a livelihood.

Question 12

what are the facts of Landers v Attorney general- The right to earn a livelihood

Answer 12

The high court ruled that a law preventing a young boy from singing in pubs for money was not unconstitutional, the rationale being that such an environment was not a suitable place in which a child should be employed

Question 13

what is the general rule of the right to earn a livelihood?

Answer 13

The general rule is that provided the state can offer a just reason for such restriction, it is always possible to restrict the right to earn a livelihood

Question 14

The right to privacy

Answer 14

A person has a general right to privacy, especially in relation to his personal and family affairs

Question 15

what are the facts of kennedy v Ireland- The right to privacy

Answer 15

Hamilton P. Ruled that by tapping the phones of two journalists without a good reason, the state had infringed their right to privacy.

A key element of this decision was that the state had no legitimate security interest in the conversations of these reports.

Described the right to privacy as the right to be left alone. Founded the right from the Christian
and democratic nature of the state. Can be restricted by law and public order.

Question 16

is the right to privacy an absolute right?

Answer 16

The right to privacy is not an absolute right. The state may, where it has good reason, impinge upon the privacy of a citizen , where for instance it is necessary to protect the security of the state. In kearney v Minister for justice, the high court ruled that letters sent to a prisoner could be read and censored by prison officials, with the security of the prison in mind.

Question 17

what are the facts of Murray v Attorney general? - The right to have children

Answer 17

The supreme court ruled that ordinarily, married couples have the right to bear children. In that cases however, the plaintiffs were both prisoners, jailed for life for the murder of a garda.
The plaintiffs ruled that although the plaintiffs would normally have enjoyed such a right, the requirements of prison security meant that their right had to be restricted. The court accepted that providing conjugal facilities for all married persons would significantly compromise prison security

Question 18

The right to life

Answer 18

Article 40.3.2 expressly provides for the right to life: The state shall, in particular by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen

Question 19

what are the facts of DPP v Shaw? - The right to Life

Answer 19

A suspect was detained in excess of his lawful period of detention. He was being questioned in relation to the whereabouts of a missing person. The court excused the lawful nature of his detention on the basis that the right to life of the missing person took precedence over the suspect’s right to liberty

Question 20

what are the facts of MEO v minister for justice? - The right to Life

Answer 20

This was a challenge to a deportation order made against a nigerian woman. Her challenge was based on the fact she had been diagnosed with HIV and would receive inadequate medical care if she returned. The court rejected that submission on the facts, but what is of interest is that the discussion on the legal basis which arose. The court considered whether there was a positive obligation on the state to provide medical treatment. Based on the decision in TD and article 45

Question 21

what was held in the case of State v Frawley in regards to the right to bodily integrity

Answer 21

In the case of State v Frawley it was held that the right applied to the exposure of one’s health to risk or danger

Question 22

The protection of the person

Answer 22

In Kinsella v Governor of Mountjoy Prison Hogan J held that Article 40.3.2 protects not only the integrity of the human body but also one’s mind and personality.

Question 23

what was the test laid down by Laffoy J in the case of Fitzpatrick v FK for the circumstances in which a person could be said to have capacity to refuse medical treatment ?

Answer 23

The test was whether the patient’s cognitive ability was impaired to the extent that she did not sufficiently understand the nature, purpose and effect of the proffered treatment and the consequences of acceptance or rejection of it.

Question 24

what are the facts of Governor of X prison v PMcD? - The right to refuse medical treatment

Answer 24

Here the defendant was on hunger strike in prison. The governor sought clarification that he should not force feed him (as per the defendant’s instruction) The court held that the defendant has a right to refuse medicine or food.

Question 25

is the right to refuse medical treatment absolute?

Answer 25

The right is not absolute and could be limited by the rights of others e.g in cases of medical emergency or to prevent spread of contagious disease.

Question 26

what did the SC observe in the case of Fleming v Ireland?

Answer 26

the supreme court observed that suicide per se was no longer a crime in ireland but its decriminalization did not create a right to die. It noted that there was no express right to choose the timing of one’s death in the constitution. It followed the decision in Re a Ward of Court and confirmed that a right to die is not a corollary of the right to life and that one only has a right to let nature take its course.

Question 27

pre-repeal the 8th amendment

Answer 27

Article 40.3.3 had expressly provided protection of the life of the unborn (prior to its repeal in 2018)

The state acknowledges the right to life of the unborn and with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right

Question 28

13 and 14th amendement

Answer 28

the amendments provided that notwithstanding article 40.3.3 the right to travel is not affected and material in relation to abortion services lawfully available in other countries may be made available in the state

Question 29

what are the facts of A &B v Eastern Health board

Answer 29

here a district court judge made an order directing that abortion be made available due to the risk of suicide. The high court confirmed that in such was lawful and should be made available. Obiter, the view was expressed that the right to travel does not oblige the state to facilitate travel

Question 30

what are the facts of AG v X ?

Answer 30

It relates to a 14 year old girl who became pregnant having been raped. She had travelled to England with her parents in order to have an abortion over there. The attorney general sought an injunction restraining her from travelling to the UK on the basis that it violated the right to life of the unborn

The high court granted the injunction. It noted that while there was a risk of suicide of the injunction was refused this had to be contrasted with the certainty of death to the unborn if an abortion was procured.

The supreme court took a different approach and lifted the injunction. it held that the right to life was at the top of the hierarchy of constitutional rights. It found that the test for when an abortion would be legal in ireland was where there was a real and serious risk to the life of the mother if the pregnancy was not terminated

Question 31

what was held in the case of Roche v Roche?

Answer 31

The court held that for the purposes of the constitution embryos were not the unborn

Question 32

Post repeal of the 8th amendment

Answer 32

on May 25th 2018 a referendum was held to repeal the 8th amendment. That referendum was passed and signed into law on 18th September 2018. It repealed the 8th, 13th and 14th amendments

They were repealed with a single line of text: provision may be made by law for the regulation of termination of pregnancy

It does not create a constitutional right for an abortion merely that the provision may be made by law for such procedures.

Question 33

what other rights does the unborn have

Answer 33

The supreme court in M v Minister for justice has unanimously held that the right to life was the only constitutional right afforded to the unborn.

Question 34

what are the facts of DPP v Harty? - The right to Privacy

Answer 34

A blood sample was taken from an accused which showed that he had consumed alcohol prior to the crash.
He argued that the retention of the sample breached his privacy rights. The court of appeal agreed that a person does have a right to privacy over their medical records but that right is not absolute

Question 35

what was held in the case of The Child and Family agency v AA

Answer 35

The court held that it was common knowledge that STIs could be transmitted by unprotected sex. Accordingly the court held that a party’s interest in being warned that he or she might contract diseases when the risk was well-known did not prevail over a person’s right to privacy

Question 36

what are the facts of Abertos v DPP - surveillance

Answer 36

Neighbour set up CCTV to watch him and caught him illegally cutting the bush.

This did not impact his privacy as camera was only on the part of the house which is ordinarily visible from the front of the house and only
recorded what was visible from neighbours window.

Question 37

doctrine of Proportionality

Answer 37

Rights are not unlimited
E.g. Freedom of expression is subject to ‘public order and morality’
E.g. Property rights can be regulated by ‘social justice’ and in accordance with the ‘common good’.

Question 38

Tuohy v. Courtney - Proportionality test

Answer 38

This test is used where 2 rights conflict. usually described as the deferential test. It provides that the position adopted by the legislature will stand unless it is so ‘contrary to reason’ as to constitute an ‘unjust attack’ on a person’s rights

Question 39

Heaney v Ireland - Proportionality test

Answer 39

1. The restriction must be rationally connected to objective
2. It must impair the rights as little as possible;
3. it must be proportionate to objective

Question 40

is there a right to proportionality?

Answer 40

Proportionality is not a free standing right

Question 41

example of a deferential case

Answer 41

• Re Art 26 and the Illegal Immigrants Bill 1999 [2000] 2 IR 360
• Issue - 14 day time limit on immigration JRs
• Held – Was constitutional and had legitimate aim of finalizing administrative decisions
• On Proportionality – Legislature is not obliged to pick longest limitation period consistent with objective; HOWEVER, they must not undermine or compromise a constitutional rights.

Question 42

Nottinghamshire CC v HSE [2013] 4 IR 662 (Supreme Court) (O’Donnell J)

Answer 42

• Proportionality is not an entirely transparent concept
• Can be can be applied strictly to strike down legislation or generously to sustain it.
• “Proportionality is a tool for analysis, rather than an end in itself.”

Question 43

what was held in the case of Meadows v Minister for Justice

Answer 43

Held (majority) – Proportionality test applied where decisions affecting constitutional rights were the subject of judicial review.