Test for proportionality

Question 1

the doctrine of proportionality

Answer 1

The doctrine of proportionality in irish constitutional law kicks into operation once a litigant’s constitutional rights are potentially abridged in any way

Question 2

The original test of proportionality

Answer 2

The original test of proportionality was a rigorous one and stems from the judgment in Heaney v Ireland wherein it was held that the means chosen to achieve a particular legislative aim must be

1. rationally connected to the objective(s) and
2. not be arbitrary, unfair or based on irrational considerations
3. impair rights as little as possible and
4. be such that their effects on rights are proportional to the objective.

This rationality test has been employed by the irish courts in quite an inconsistent manner nonetheless this judgement stands as authority for the highmark of proportionality in irish constitutional law

Question 3

Tuohy v Courtney

Answer 3

In 1994 the supreme court amended and adapted the test as enunciated in Heany in the case of Tuohy v Courtney. The case established a less rigorous test of proportionality than Heany in holding that it is the court’s role to determine from an objective stance whether the balance contained in the impugned legislation is so contrary to reason and fairness as to constitute an an unjust attack on an individual’s property
rights. There have been cases whereby legislation has been struck down because the means chosen to attain a
particular aim do not use the least restrictive measures possible (the Heaney test).

In Redmond v Minister for
the Environment Herbert J found that section 13 of the European Parliament Elections Act 1997
did not use the least restrictive measures possible to achieve the objective of preventing ‘crank’ candidates
from running as candidates in elections.

Question 4

the redmond decision

Answer 4

The Redmond decision illustrates the operation of the proportionality test as enunciated in Tuohy (although
Herbert J did not mention the doctrine of proportionality in his judgment). If there are less restrictive
measures or means available to achieve a particular legislative aim which do not impugn the constitutional
rights of individuals the courts will surely look upon overly broad legislative powers with a degree of scrutiny
which the doctrine of proportionality allows and indeed provides for.