unenumeraed rights

Question 1

describe ryan v AG [1965]

Answer 1

legislation: health (fluoridation of water supplies) act 1960
right: bodily integrity
issue: where was this right in the constitution
kenny j held that art 40.3.2 included an unenumerated right to bodily integrity
textual implication of 40.3.2 ‘in particular’ that there were unenumerated rights protected by article 40.3.1
these rights came from the “christian and democratic nature of the state”- not mentioned but protected

Question 2

4 ways to identify unenumerated rights

Answer 2

1. might be inferred from express rights
2. arise from ‘christian and democratic nature of the state’
3. inherent in human personality
4. drawn from natural law

Question 3

describe inferred from express rights

Answer 3

there is an enumerated right to practice religion under art 44 so it implies there is an unenumerated right not to practice religion
enumerated right to vote by secret ballot so implies unenumerated right to privacy

Question 4

describe ‘christian and democratic nature of the states’

Answer 4

kennedy v ireland [1987]
private phone calls of political journalist were tapped without their knowledge on instructions from minister of justice
act was deliberate and there was no sound security reason-political party reasons
constitutional right to privacy

Question 5

describe ‘Christian and democratic nature of the states’

Answer 5

kennedy v ireland [1987]
private phone calls of political journalist were tapped without their knowledge on instructions from minister of justice
act was deliberate and there was no sound security reason-political party reasons
constitutional right to privacy- under Christian and democratic nature of the state
right to hold conversations without an unjustified intrusion

Question 6

describe inherent in human personality

Answer 6

Norris v AG [1984] IR 36
Henchy J – rights necessary ‘to ensure his dignity and freedom as an individual in the type of society envisaged’.

Question 7

potential issues with inherent to human personality

Answer 7

how do you decide which issues are ‘inherent to human personality’
lack of precision in human personality test
McCarthy J in Norris- look to what secures the dignity and freedom of the individual

Question 8

describe natural law in terms of unenumerated rights

Answer 8

positivism: to exist a law must have been made and promulgated by human agency
natural law: unwritten principles, rights that exist irrespective of content of positive law

Question 9

criticisms of unenumerated rights

Answer 9

-judicial power
-separation of powers (art 15.2.1)
-‘natural law’ is an excuse for judges to interpret rights as to their own worldview
-lack of clear guidance on key aspects of doctrine