Irish Constitutional Law Cases

Front 1

Murray

(Interpretation Approach /Broad Approach)

Back 1

Married couple in prison for life for murder claimed their right to procreate as “inalienable & imprescriptible.”
Ruling: State can clearly restrict the exercise of family rights for example for Prison security. Right to life is superior to right to liberty but right to fair procedures is not less important than right to life.

Front 2

Sinnott Case

(Historical Approach/Right to Education)

Back 2

Argues that primary education is for children only. Claim was brough by a handicapped child who was 23. Ruling is that the right only applies to Minors.

See also Zappone case which uses historical approach to say right to marry is only between man and woman.

Front 3

RE Art 26 and the Regulation of Information (Services of the State for Termination of Pregnancies Bill)

Back 3

P claimed that right to life stemmed from natural law as foundation on which the Constitution was built. SC rejected that natural law is above the Constitution.

Front 4

Quinn Supermarkets

(Freedom of Religion/ Hierarchy of Rights )

Back 4

Case regarding conflict between freedom to profess and practice religion vs.proscription against religious discrimination. SC ruled that the discrimination here (allowing Jewish Butcher shops to be open on Sunday) was less important than the right to practice religion. Doctrine of proportionality was also used as the regulation exempting Jewish shops was allowed after 630 on weekdays and not just Saturday so the exemption went too far and was invalid.

See also Mac Mahon v. AG- requirement of a secret ballot is < general right to vote + in finding they had not secured right to secret ballot did not effect the legitimacy of previous elections.

Front 5

State (DPP) v. Walsh

(Hierarchy of Rights)

Back 5

Trial by jury for minor offenses vs. threat of court contempt. SC held that the right to punish contempt was necessary for the position and functions of courts.

Front 6

O’Bus S

( Hierarchy of Rights, Equality )

Back 6

Case considered Succession Act which excludes illegitimate children from intestacy. This was argued to violate equality but SC ruled it was justified by protection of family under the constitution and was not unreasonable, arbitrary or unjust discrimination.

Front 7

Tormey v. Ireland

(Hierarchy of Rights)

Back 7

Although the constitution gives the High Court original jx, taken literally would produce absurdity and conflict with other provisions which give jx to other bodies

Front 8

The People v. Shaw

(Hierarchy of Rights)

Back 8

Suspect was detained for a longer time in hope that could led authorities to the victim (who was already dead). Ruled that right to liberty was < right to life, ie change of finding the victim alive.

Front 9

Att Gen v. X

(Hierarchy of Rights, Right to Travel)

Back 9

AG sough injunction against 14-yr old rape victim who was suicidal from seeking an abortion in the UK. SC said that the right for the mother to travel and live > than the life of unborn where there was “ a real and substantial risk to the life of the mother.” Note that the State can therefore not engage in an administrative act that creates a real and substantial risk to life.

Note that one judge in this case claimed that this case was not about balancing rights but only about the right to travel and that that existed and could not be curtailed by intent.

Front 10

Finucane v. McMahon

( Abuse of Rights, Extraterritorial Application )

Back 10

Violent activities contrary to govt policy carried outside of the jx served to secure Irish Unity did not equate to subverting the Constitution

Front 11

Crowley v. Ireland

( Abuse of Rights, Right to Education)

Back 11

Teachers went on strike to deprive kids of primary education, thus coercing authorities to concede. Adispute led to the closure of 3 schools and 5 kids brought actions that theywere without schooling for many months. SC held that the free primary edu hadto be defended and vindicated but that it was not a general obligation as thestate could not compel teachers to teach when they did not want to.

Front 12

McGee v. Att Gen

( Use of Preamble to create rights, Right to Marital Privacy)

Back 12

Preamble proclaims the aim of dignity and freedom of the individual. Here a married woman (with 4 kids)’s unremunerated constitutional right to privacy entitled her to import contraceptives for her own use. Doctor told her one more pregnancy could jeopardize her life. Judge noted that the prevailing ideas of constitution may evolve over time. Without the right to contraceptive, the couple would have a life of worry, tension and uncertainty.

Front 13

King v. Att Gen

( Use of Preamble to create rights )

Back 13

Vagrancy act that criminalized acts deemed suspicious or based on reputation was against human dignity. Can delete portions of a provision. D had locus standi only to challenge part of the section; the reset was able to stay

Front 14

In re Philip Clarke

( Use of Preamble to restrict rights )

Back 14

State is allowed to take mentally disturbed people into charge. Otherwise allowing disturbed people at large would not assure common or their own health.

Front 15

Russell v. Fanning

( Extraterritorial Application )

Back 15

Ruled that decisions for the reintegration of the territory is for the State, as established by the Constitution. An individual who takes this over without the authority of the State is subverting the Constitution

See also Finucane v. McMahon above

Front 16

Locus Case [1927]

( International law, Extraterritorial Application)

Back 16

Permanent Court of International Justice decided that every sovereign state has the power to legislate with extraterritorial effects in relation to events bearing on peace, order & good governance of legislating State.

Front 17

Byrne v. Ireland [1972]

(State Sovereignty, lack of immunity)

Back 17

SC held that State enjoys no immunity and may be sued as Ireland. Plaintiff was injured on a footpath due to negligent filing of trench by the Dept. of Post and Telegraphs. State is liable for torts but not amenable to any external authority for conduct.

Court mentioned that the Constitution provided for the immunity of the president and the Oireachtas, but did not mention immunity for the state.

Front 18

Webb v. Ireland [1988]

( Republican claim, Treasure Trove )

Back 18

Chalice found buried in land designated as a National monument but owned by a third part was State property, “a republican claim to trove”

Critics say this conflicts with Webb and allows State powers & privileges to exist which are not explicitly in Constitution.

Front 19

Kearney v. Min for Justice [1986]

( State Liability, Right to Communicate )

Back 19

State can be vicariously liable for breach of constitutional rights. Here the Plaintiff was able to get damages for unlawful interference by prison staff with his right to communicate. However, censoring “objectionable” correspondence was necessary in interest of prison security. + a rule which allowed to hear prisoner companies and grievances was sufficient.

Extends to members of Defence force. In Ryan v. Ireland, Army member was injured in Lebanon war. He alleged that a superior had negligently exposed him to risk and this was inconsistent with constitutional guarantees..

Front 20

Kenny v. Cosgrove [1926]

( Limits of Byrne )

Back 20

Ruling: the minister cannot be made personally liable for a contract made by him in a public capacity. Said that the contract could not be binding out of public funds without the sanction of the Oirechtas.

Said to be a rule with permits the state to escape its contractual liabilities : Unlikely to be followed.

Front 21

Cityview Press v. An Chamhairle Oiliuna [1980]

(Separation of Powers, Delegated Legislation)

Back 21

Statute allowed Defendant to impose levies on firms to finance its training activities. SC found the provision constitutional and the delegation of the power to calculate levies was a permissible delegation, did not amount to legislation. TEST: whether that which is challenged as an unauthorized delegation is more than a mere giving effect to principles and policies which are contained in the statute.

Front 22

Harvey v. Minister for Social Welfare [1990]

(Separation of Powers, Delegated Legislation )

Back 22

Applicant challenged power of minister to make regulations which had the effect of overriding statutory provisions. (Minister had apparently made regulations which withdrew certain welfare payments to applicant. SC rejected that this was unconstitutional delegation but on the narrow basis that the 1979 regulations were ultra vires, since the section did not really enable the minister to make regulations altering or amending the substantive law.

Harvey establishes : 1. Principles and policies criteria 2. Principle that the Oireachtas may not delegate the power to make, repeal or amend legislation

Front 23

Cook v Walsh [1984]

(Separation of Powers, Delegated Legislation)

Back 23

An infant Plaintiff injured in a road accident would have been entitled to free medical care but Minister of Health, by virtue of a statutory instrument, excluded people injured by road accidents. Court ruled the Statute did not empower the minister to effectively amend the Statute by Ministerial regulation. The ministerial regulation was condemned as ultra vires.

See also McDaid v. Sheehy where the empowerment to impose, vary or terminate excise, customs or stamp duties was for Government to determine. Cronin v. the Competition Authority, an act allowed Competition Authority to disapply prohibition of anti competitive agreements if the Competition Authority believed it improves technical or economic progress affording consumers benefits. This was within the bound of implementation of the Statute.

Front 24

O’Neill v. Minister for Agri [1998] (Separation of Powers, Delegated Legislation)

Back 24

Licensing regime for the artificial insemination of animal within the state resulted in the State divided into 9 areas, each one with an artificial insemination centre. Court said inconceivable that the Oirechtas would agree to divide state into 9 areas and conferred a power to the executive. Felt this was a “far reaching intrusion on the rights of citizens” and could not be delegated.

Front 25

Meagher v. Minister for Agri [1994]

( Delegated Legislation & EU )

Back 25

Minister passed some statutory instruments pursuant to a EC Act. In Making regulations the Minister must not contravene the constitution. If the directive of the Minister envisaged any choice of principle or policy then this would require legislation by the Oireachtas. Maher v Minister for Agri came to same conclusion: reorganizing the milk quota regime had no discretionary powers as the EU legislation left no policy choices open.

Front 26

McCauley v Pharmaceutical Society of Ireland

( Delegated Legislation & EU )

Back 26

EU legislation adapted to Irish law said that employing a pharmacist required someone who had been in practice for at least 3 years. Argument was made that the State encroached on the exclusive powers of the OIreachtas and that only the Oireachtas had the power to amend the previous act. ECJ said that imposing this minimum requirement was not a discretionary act of the MS.

Front 27

Laurentiu v. Minister for Justice [1999]

(Separation of Powers, Delegated Legislation)

Back 27

Court struck down that Minister was given power to make deportation order due to absence of specific grounds. SC said that the standard, goal, factors and purposes are absent… AKA the legislature cannot abdicate its position by simply handing over an absolute discretion to the executive Only decisive example where the Act was struck down as a vehicle for delegated legislation. Anything going beyond putting flesh on the bones of an act will be constitutionally suspect and argues that an act which is essentially a vehicle for the making of regulations, will be in peril.

Front 28

Crotty v An Taoiseach [1987]

(Separation of Powers, Foreign Affairs)

Back 28

Government can exercise its foreign affairs powers; this cannot be delegated but can be subject to judicial review. In this case the Plaintiff sought to enjoin government from ratifying an international agreement.

Front 29

Maher v. Att Gen

( Unconstitutionality, Severance)

Back 29

P challenged that the certificate of Blood alcohol content was conclusive evidence based on Toad Traffic Act of 1968. Court thus refused to apply test minus offending work as it would have been an impermissible usurpation of the legislative function. Test of severance: offending part of provision will be held unconstitutional. If what remains is inextricably bound with part that was held to be invalid then remaining part will not be severed and will … 1. Does the section make sense without the offending portion? Does the amended section affect the intentionand objective of the legislature? [must guarantee against judicial legislating]

Front 30

T O’G v Att Gen

( Unconstitutionality, Severance)

Back 30

Parent were to adopt a child but law said that a widower could only adopt if they had another child. Court held this section violated equality clause and thus severed that portion of the legislation.

Front 31

De Burca v Att Gen

( Unconstitutionality, Retroactiveness )

Back 31

Found that jury was not representative of population.

Front 32

Murphy v. Att Gen

( Unconstitutionality, Retroactiveness, Equality)

Back 32

Income tax of 1967 taxed married couples more than unmarried couples. Invoking the doctrine of laches and waive. P could only receive refunds from the year in which they commenced the action. This was subject to public policy and common good as to do otherwise would cause havoc. Re equality, the unfavorable tax treatment of married couples could be set off against favorable conditions.

Front 33

Heaney v. Ireland

( Unenumerated right, Proportionality )

Back 33

Applies a proportionality test which claims it must be: 1. rationally connected to the object and not arbitrary, unfair or based on irrational considerations 2. must impair rights as little as possible effects on rights are proportional to theobjective

Front 34

Gilligan Case

(Restriction of Rights, Right to Property)

Back 34

Property believe to be the proceeds of a crim may be confiscated. First a court must be satisfied before making a forfeiture order that the property in question represented the proceeds of a crime

Front 35

State (Nicolaou) v. An Bord Uachtala

( Rights of Family, Waiver of Rights )

Back 35

Unmarried mother parts with child for adoption. Court allows for the waiver and transfer of rights. By consenting to adoption the mother dispensed of her constitution right to insist on the custody of her child. Note that such waiver must be completed with full knowledge and consent. A consent may be manifest by conduct which must give a clear and unambiguous inference.

Front 36

Norris v. Att Gen

( Right to Privacy )

Back 36

Act which criminalized homosexual conduct between consenting adults was unconstitutional.

Front 37

In re a Ward of Court (No. 2)

( Privacy Right to Bodily Integrity, Right to die)

Back 37

Woman who was in a vegetative state had the constitutional right to refuse treatment even if this would lead to death But euthanasia (process of accelerating death) is illegal in Ireland and widely condemned by the Catholic church. Court can never take steps to terminate life. See US SC Washington v. Glucksberg where physician assisted suicide was not protected by due process. The State was interested in preserving life, protecting ethics of the medical profession and protecting vulnerable groups.

Front 38

Pretty v UK

(RIght to die)

Back 38

ECHR refused to establish a right to die, although there is a right to pursue harmful activities like euthasia the state also had a right to ban it as necessary for the protection of others.

Front 39

Klass v. Germany [1978]

( Right to privacy )

Back 39

Powers of secret surveillance of citizens are tolerable under the Convention insofar as strictly necessary for safeguarding democratic institutions Halford v. UK extends this to calls from an office. These cases also should there must be requisite procedural safeguards, required degree of justification such as the investigation of a crime or the issue of state security.

Front 40

Reck v. UK

( Right to privacy )

Back 40

CCTV footage which was disclosed to public. Court found that CCTV monitoring is normal and that a private life consideration may arise when the record comes into the public domain. Complilation of data by security service may intervene into private life.

Front 41

Copland v. UK

( Right to privacy )

Back 41

Emails sent from work should be protected although monitoring may be necessary in a democratic society in certain situations in the pursuit of a legitimate aim

Front 42

Van Hannover v. Germany

( Right to privacy)

Back 42

ECHR accepted that private life activities extended to ordinary daily activities such as walking, eating at a restaurant, kissing a bf (as in this case). This encompassed right to contract the use of your image even if you are a society figure. Not a violation if a good faith disclosure to discuss a subject of importance.

Front 43

Herrity v. Associated Newspapers

( Right to Privacy)

Back 43

Prioritizes privacy over freedom of expression. Case was about an affair a woman was having with a priest. Judge claimed although it was true it did not outweigh the fact that it was obtained unlawfully.

Other defenses :

1. act was to lawfully defend or protect a person or property

2. was an act authorized by law

3. was an act by a public servant acting in course of duties

4. consisted of installation or operation in good faith of a closed circuit television system for purpose to prevent the commission of an offense or to protect persons

5. act of newsgathering where reasonable and necessary for publication or broadcasting

Front 44

Campbell v. MGN Ltd.

( Right to Privacy)

Back 44

Daily mail publishes a story and picture of Naomi Campbell going to a narcotics anonymous meeting. Although pictures were taken in public they were still wrongful. Court considers that anyone even if they are known to the general public must be able to enjoy a legitimate expectation of protect of and respect for private life.

Front 45

Murtagh Properties v. Cleary [1972]

( Right to Livelihood)

Back 45

Flows from Art. 45.2.i, case was regarding picketers who wanted to stop part-time waitressing and said that this was an infringement of a a waitress’ right to earn a livelihood. Ruling: Article 45.2.i implied every citizen had a right to earn livelihood. But this was not to be enforceable against the State

Front 46

Landers v. Att GEn

( Right to Livelihood)

Back 46

The P tried to enforce the right of an 8 year old to perform in public and challenged a prevention of cruelty to kids act which limited extent to which children could perform in public. Ruling: not unconstitutional. State can place restrictions on work. Same goes for compulsory retirement.

Front 47

RE Article 26 & the Employment Equality bill

( Right to livelihood)

Back 47

The provision of special treatment for disabled people was held to violate the employers right to earn a livelihood as well as their right to property

Front 48

Att. Gen & Minister for Post v. PaperInk (Right to livelihood, Freedom of Expression)

Back 48

Company was delivering letters in Dublin in breach of a statutory monopoly by the minister. P sought to restrain this. P won and ruled that State could impose restrictions on this.

Front 49

Cafolla v. O Malley and Att Gen

( Right to Livelihood)

Back 49

P tried to declare provisions of Gaming and Lotteries Act 1956 unconstitutional. Court said that laws having a damaging effect on the profitability of a business (fishing quotas, licensing hours) or even plain banning were not unconstitutional per se so long as they were reasonably required for the common good. Another Judge claimed this was not for the Courts to decide but for the Oirechtas.

Front 50

Kenny v. Dental Council[2004]

( Right to livelihood )

Back 50

State was entitled to restrict the practice of dentistry to persons who met certain requirements as to training and competency. This was a limitation on a right qualified by interest of the common good by public health- implication of allowing unqualified persons to practice dentistry

Front 51

Parsons v. Kavanagh

( Right to Livelihood against private parties )

Back 51

This case allowed a plaintiff to enforce competition business which was operation without a license by the Road Transportation Act. Case is important because it raises questions as to what extent a constitution right may be enforce against a private party “horizontally”. This principal cannot be asserted horizontally in cases re equality, see Equality Authority v Portmarnock Golf Club.

Front 52

O’Brien v. Keogh

( Right of Access to Courts)

Back 52

Court held to be unconstitutional a statute of limitation for 3 years for infants in custody of parents when the cause of action occurred and 6 years for other infants. Court claimed this failed to provide adequate safeguard for infants. This was subsequently changed to be 3 years after reaching the majority age. O’Domhnaill v. Merrick. SC found that the extended period could be struck own if there had been a delay in prosecuting it. (This is a matter for the Oireachtas)

Front 53

Cahill v. Sutton

(Accessto Courts, Locus Standi )

Back 53

Locus Standi Rule is that the person challenging the statute must be able to assert that their interest has been adversely affected or they stand in real or imminent danger of being adversely affected by the statute. Argued that a three year limitation for person injury as of breach occurred was unconstitutional and shut off someone’s claims before they knew of it. Court said P lacked locus standi, as she had been aware of her cause of action within the statutory period) but called the Oireachtas to amend the subsection. In practice, it is very difficult to challenge limitation periods. Three Exceptions to the locus standi rule: 1. those whose rights were in danger were not in a position to assert adequately or in time their constitutional rights [ex: pregnant women] 2. if the impugned provision was directed or operable against a group which included the challenger[ homosexual asserting validity of an act against homosexuality] 3. weighty countervailing circumstances justifying the departure from the rule. Careful balance must be taken in these cases as the line must be drawn between an impermissible interference by the legislature in the judicial domain. Also formulated the jus tertii rule which says that courts will consistently refuse to entertain arguments based on the circumstances of fictional or abstract non-parties.

Front 54

In RE Eve

( Right to Bodily Integrity )

Back 54

Courts could not consent on behalf of a mentally disable woman for her sterilization to prevent a pregnancy and parental rights of which she was not capable of fulfilling.

Front 55

In the Baby Paul Case

( Right to Bodily Integrity/Right to Family/Right to Religion )

Back 55

Court could not oblige tests to be conducted on a child against the wishes of the parents. “Micromanagement of family would not be desirable. There must be something exceptional arising from a failure of duty before the state can intervene in the interest of the child.

Front 56

In re a Ward of Court

( Right to Bodily Integrity /Right to Religion)

Back 56

Baby Janice needed a life-saving operation. The Mother originally consented but then changed her mind by the support of the religious community. Court considered this would be considered a risk any parent would take on behalf of a critically ill child. See another case of Jehovah’s witness where someone who lost blood was ordered to accept a blood transfusion.

Front 57

AD v. Ireland

( Right to Bodily Integrity )

Back 57

Rapevictim who could not get compensation for pain and suffering claimed that theconstitution right to bodily integrity required appropriate compensation. Courtheld that compensation was a matter for Oireachtas

Front 58

Wainwright v. UK

( Right to not be tortured)

Back 58

Court indicated that general rules on Ill-treatment must attain a minimum level of severity, depending on the circumstance of the case: sec, age, health, duration of treatment, and its physical and mental effects. Court will also consider if object is to humiliate or debase the person. Note that the absence of such a purpose does not rule out a finding of a violation See case regarding a “sloppy” search of relative visitors to a prison. Poor living conditions may amount to inhuman or degrading treatment.

Front 59

State (M) v. Att Gen

(Right to Travel)

Back 59

Unmarried Irish and Nigerian wanted to bring child to Nigeria but Adoption act did not allow child to leave with permission of mother to live with relatives. Nigerian parents did not count as relatives. Court held that constituitonal right to travel outside jx was choice of mother and the statute failed for defend that right

Front 60

O’shea v. Ireland

( Right to Marry)

Back 60

Court struck down marriage law which prevented a divorced woman from marrying her husband’s brother. Court said this restriction on marriage was unconstitutional. Not justified by the need to protect marriage, nor the family, not by the common good more generally

Front 61

State (Healy) v. Donoghue

( Right to Legal Representation on a Criminal Charge)

Back 61

Accused was charged with breaking and entering but not told of right to apply for legal aid and was not legally represented. SC held convictions could not stand as no solicitor was able to defend him. @No person shall be tried on any criminal charge save in due course of law. See also The People (DPP) v. Healy right of access to solicitor in respect of a person in Garda custody was a constitution right as opposed to a legal right.

Front 62

The People v. Buck

( Right to Legal Representation on a Criminal Charge)

Back 62

Allowed questions of a subject pending arrival of solicitor but was contrary to ECHR.

Front 63

I O’T v. B

( Rights of unmarried)

Back 63

Right of child to know the identity of parent was unenumerated right guaranteed by the constitution. Two women applied to identify their natural mother. Note that in Keegan v. Ireland the European Court confirmed that under the convention the right to family life was not confined to marriage based relation ships but could encompass de facto families. Thus an Irish law permitting the secret placement of child for adoption without applicants knowledge or consent intervened with the right respecting family life.

Front 64

W.OR v EH

(Rights of unmarried)

Back 64

Natural father was with 2 kids from woman and lived together for 12 years. Then woman married another guy and they apply to adopt the kids. Natural father had no rights and Court said that a de facto family is not recognised by the constitution. Contrastingly in G.T. v. KA.D. A natural father with a longstanding relationship with Kids could prevent the mother from going to the UK. Note this case calls into question that an unmarried father does not have an automatic right to the day to day care of children (custody) or a right to a say in bringing up children.

Front 65

MAcMathuna v. Att gen

( Equality)

Back 65

Married couple with 9 kids claimed they were discriminated against in that unmarried or separated wives received greater financial support. SC held that this case raised issues of legislative allocation of available resources and was not suitable for court.

Front 66

Somjee v. Minister for Justice

( Equality)

Back 66

Irish Nationality and Citizenship Act provided for almost automatic citizenship rights to a female alien upon marriage with Irish man, but Minister of Justice had absolute discretion in deciding the same issue for men. Claim was brought by someone whose application was rejected who that it was discrimination based on sex alone. Court presumed that the Oireachtas action had legitimate reasons for doing so and was entitled to make such a “diversity of arrangements”

Front 67

De Burca and Anderson v. Att Gen

( Equality)

Back 67

Special provision whereby women were exempted from jury duty acknowledges the importance of woman’s role within the home.

Front 68

O’B v S

(Equality)

Back 68

Challenge to the Succession Act where only marital children could inherit where the deceased died intestate was accepted under the State’s special duty of protection institution of Marriage under Art 41

Front 69

Mitchell v. Ireland

( Exceptional case where equality clause prevailed)

Back 69

A disparity in sentencing giving an indecent assault of a male subject to max imprisonment of 10 years violated constitution. Court referred to a case from Kansas where court concluded that more severe penalties for same sex teenage activity rather than different sex activity did not pass rational basis scrutiny and was broad, over-reaching and undifferentiated which bears no relationship to state interests.

Front 70

Murphy v. IRTC

( Right to Communicate, Freedom of Expression/Religion)

Back 70

Aban on religious advertising was not viewed as a form of discrimination andcould not be viewed as an attack on the citizen’s right to practice his or herreligion. SC found that right to communicate is different from freedom ofexpression in that. One is a right to convey one’s needs and emotions by words,or gestures and rational discourse. The other is concerned with the publicactivities of a citizen in a democratic society. Established that non-verbal expression iscaptured under the right to communicate. Both of these may be limited in the interests of the common good.The Oireachtas may have thought that rich men should not be able to buy access to airwaves to the detriment of their poorer rivals. Thiscase went to the eCHR where the court found no violation of Article 10 of the convention. EC says governments are entitled to be prudent in this regard.

Front 71

Colgan v. IRTC

( Freedom of Expression)

Back 71

Case was on a ban of advertising for any political end. Court held that a blanked ban was acceptable if a rational for the wider infringement is available. Similarly, Court also allowed the minister for justice to proscribe certain organizations from broadcasting on airwave was a legitimate restrain on the freedom of Expression in the Lynch case.

Front 72

SPUC v. Coogan

( Locus Standi)

Back 72

Changes rule in Cahill. A Bona fide P could challenge unenforcement although he had never been prosecuted under the Act, of the right to life of unborn with the interest being used in the sense of proximity of objective interest. It seems to allow private persons or interest groups to police activities of others to bring constitutional actions not founded on their own personal grievances but for general political, ethical, religious or social motives. Question is whether there is a bona fide interest or concern in the matter. See also UN Human Right committee granting standing to relatives of people who disappeared during South American dictatorships.

Front 73

Question on Sovereignty:

Back 73

· Sovereignty is the source of legal validity,power and authority of the state. Sovereignty ultimately has two aspects:internal sovereignty which operates at a domestic level and externalsovereignty which encompasses the relations with other countries. All powersderive from the people who have the right to designate rules of the state anddecide questions of national policy (article 6 of Constitution). A referendumis to be submitted to the people for an amendment of the constitution underArticle 46.

· A core case is Byrne v. Ireland where it wasruled that Arti. 1 shows that the sovereign entity superior to the state is thepeople and that the State is not sovereign in respect to its internal affairsand can be sued.

Case details: P wasinjured at a footpath due to the negligent filling of the trench by the Dept ofPosts and Telegraphs. State was indeedliable for the torts of its employees but the state was not amenable to anyexternal authority for its conduct. · Webb acknowledged the State’s claim to atreasure trove, for a chalice found on land designated as a national monument. Thetrove was found to not be arightderiving from the crown but an attribute of a sovereign state. Doesn’t sitright with Byrne, in that the case resurrects the concept of internal statesovereignty.

· This was confirmed in Crotty v. Antaoisech wherecourt found that Art. 1 established the states right to determine its relationwith other states and thus Title III of the Single European Act which obligedIreland to consult with other Member States in matters of foreign policy wascontrary to the constitution. Powers of external sovereignty were implicit inArt. 5. However, following a referendum on may 26, 1987 Art. 29 was amended topermit Ireland to ratify the Sea

Front 74

Question on Judicial Legislation:

Back 74

· Art. 15 vests Oireachtas with law-making power;aRt. 34 &37 vests judicial power in courts. If the judicial branch assumesthe functions of the legislative branch this can be said to be a breach of theseparation of powers. Technically thejudicial branch should be used when there is a contest and the potentialinfliction of a punishment or liabilities. For example, the judiciary cannottell government how to spend money (allocation of resources).

· However, it could be argued that, in practice,courts do legislate by the creation of unspecified rights.

· In LvL Justice gave a full-time wife a 50% sharein the family home and the SC disagreed finding that courts could not identifya brand new right unless warranted by constitution otherwise function oflegislature would be usurped

· Maher v Att gen, court refused to remove theword conclusive from a statute , as but for that word the statute would beconstitution, in order to not produce a result not intended by the Oireachtas.Court’s role is not to “fill in the gaps left by the legislature”

Front 75

Delegation Powers:

Back 75

· Two very important rules:

· 1. The delegated body must not be given bystatute the power to legislate

· 2. The delegated body must not go beyond theprinciples and policies of the parent legislation.

· Main case is City view Press AnCO- Stat.provision allowed the defendant to impose levies on firms to finance trainingactivities. SC found that the provision was constitution and this did notamount to legislation: Test is if the delegation power is merely giving effectto principles and polices which are contained in the statute.

· In Harvey court found that the empowering of aminister to make regulations which would have the effect of overridingstatutory provisions was ultra vires bud did not amount to an unconstitutionaldelegation of legislative power.

· Cook v. Walsh also found that a Minister couldnot be empower to amend the act by ministerial regulation and that this wasultra vires.

Front 76

Blake

( Right to Property)

Back 76

Legislation froze rents. Measure was found o restrict the rights of one group of citizens to the benefit of another group . No limitation period, no opportunity for review. For this reasons the measure was considered to be arbitrary, unfair and an unjust attack on property rights of affected LL RE Article 26 & the Employment Equality bill where court held that there was no exemption for small firms and this could be undue hardship for employers

Front 77

Re Article 26 and the Health Amendment (no 2) Right to Property

Back 77

Bill sought to allow in-patient charges for certain persons although there was no lawful basis for the imposition for these charges. Court said that bill is imposed on very vulnerable part of society (patients) and that they are entitled to recover charges as a right . Had a right to recover $. Test: 1. Examine nature of the right at issue 2. If bill regulates that right is it in accordance with social just and for common good? 3. In light of those issues does it constitute an unjust attack on the property rights? Remember that compulsory acquisition without compensation may be justified by the common good. In general courts are hesitant to act in “distributive justice” as this would involve courts in the allocation of resources. But in Art 26 there was a shirt pro-distributive justice.

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McDonald v. Bord na g con Separation of Powers Clause (Art 37)

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5 criteria to establish whether the exercise of power amounts to an administration of justice: 1. Dispute as to the existence of legal rights or violation of the law

2. Determination of rights/imposition of liability/infliction of penalty

3. Final determination (subject to appeal) 4. Enforcement of rights

5. Making of an order

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Comerfordv. Minister for Edu

Back 79

Statewas held to have failed n its duty under 42.4 (obliging the sate to provide for freeprimary education). The Child suffered from ADD and was not provided withsuitable education

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O’shiel and Ors v. Minister for Education Education

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AGroup of parents established a school to educate their children in accordancewith the principles established by Rudolph Steiner. They were rejected forstate funding on the basis that the teachers lacked appropriate qualifications and that inadequate provisions were made for teach in Irish. Judge held thatalthough Article 42.4 did not entail that the state was merely required toprovide a single education system on a take it or leave it basis. The judgesaid that they were not automatically entitled to funding and that he was notsatisfied in applying the teacher qualification rules.

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O’donoghue v. Minister for Heath

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where ahandicapped 8 yr old boy sued and the court said that the minister had deprivedthe P of his educational rights. This approach contrasts with Crowley which wasmore deferential towards departmental decisions.

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DPP v. Best (Education)

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Respondent was charged with failing to send children to primary school. Although the respondent was doing her best to follow the primary school curriculum the education being received had serious shortcomings and did not amount to a suitable education. Thus although parents have the right to education children at home or away from a traditional school e, they have to comply with the child’s right to receive a minimum education and the state can justifiable intervene in the exercise of its constitution duty to provide the child with a minimum standard of education where it perceives the parents are failing in their duties.

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Merrimanv. St James Hospital

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Court ordered the reinstatement of a hospital worker who had been dismissed for refusing, on grounds of conscience, to bring a crucifix and candle to a dying patient. Can suggest that freedom of conscience embraces both religious and secular morality

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Re Article 26 and the Employment Equality Bill Religion

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EmploymentEquality bill endowed certain vocation training bodies and religious bodies todiscriminate on the grounds of religion in order to maintain the religiousethos of the institution. “It is constitutionally permissible to makedistinctions and discriminations on grounds of religious profession, but onlyin so far as this may be necessary to give life and reality to guarantee thefree profession and practice of religion.

Front 85

Flynn v. Power Religion

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Dismissal of a woman who became pregnant by a married man was upheld as there were substantial grounds for dismissal in a religious school.

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Wainwright v. UK

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Established what would be a minimum level of severity for ill-treatment depends on the circumstances: sex, age, health, duration of treatment, its physical and moral effects. Court will also consider if the object is to humiliate r debase the person. (note that the absence of a purpose does not rule out a finding of violation)

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State (Gleeson) v. Minister for Defense

(Right to fair procedures)

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SC squashed applicant's dismissal fro defense forces in circumstances where he was not told the reason for his dismissal nor given an opportunity to make representations

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McCormack Decision

(Right to fair procedures)

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indicated that whether decision should include reasons. Court should consider:

a) nature of the statutory function decision maker is carrying out

b)statutory framework which is founded on

c) possible detriment that complaintant may suffer from failure to state reasons.

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Flanagan v. UCD

(Right to fair procedures)

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Applicant suspended from college for 1 year following accusation of plagiarism but was not informed of the details of the charge, facts grounding allegations or opportunity to challenge evidence. Ruling: As this was a serious academic issue she should have been entitled to fair procedure analogous to a court hearing.

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ECHR vs. Irish view of Freedom of Expression

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The ECHR view is different from Irish SC:

-More protective of the freedom of expression no how absolute or shocking

-Libel can be breached

-Private figures are more protected

-But leaves it up to Member States on morals or religion

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Mahon v. Post Publications Ltd.

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A tribunal sought to claim its documents were confidential and could not be published by the Press. SC said this was disproportionate and that the order was too wide in respect to unspecified information which would affect the media.

Holland v. Portlaoise Prison- prisoner had the right to communicate with the media on the basis he had been a victim of a miscarriage of justice.

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Prisoner rights?

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Prisonders are still entitled to vote but their exercise to vote may be in suspension during imprisonment.

Prisoners also have an access to media.

Prisoner is charged with an alleged breach of discipline then they are still entitled to consult a solicitor.

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People v. O'Brien

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Ruling: evidence obtained as a deliberate breach of a constitutional right should be excluded except if there are extraordinary excusing circumstances. In O'Brien the Gardai searched the persons home on the foot of a warrant which had mistakenly recorded his address. Evidence was still admissible because the error was purely formal and accidental.

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What are extraordinary circumstances where can admit unlawfully obtained evidence?

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Need to rescue someone in peril or need to prevent imminent destruction of vital evidence. A Judge must balance public interest in detection and punishment of crime with public interested in the repression of illegal investigative methods.