Constitutional rights apply primarily to natural persons who are Irish citizens. The Courts have recognised that citizens of other countries may rely on most constitutional rights. The rights are recognised rather than granted by the Constitution.
Some rights particularly those relating to elections, rights of office are very clearly limited to citizens.
The Courts have allowed constitutional rights of claims in respect to companies in some limited instances. EU law prohibits discrimination against EU citizens on the basis of origin.
The Constitution guarantees that all citizens as human persons are equal before the law. This does not require equal treatment. The State is entitled to have regard to the differences, physical, moral and social between persons.
The discrimination must relate to the human characteristics of the individual and not other categories such as where they live, what they do, etc. The protection only applies to human persons and not companies or businesses. Discrimination is allowed when there is a good reason for the distinction.
In the last 40 years, there has been a substantial amount of equality legislation. The legislation commenced firstly in the area of employment and has been considerably expanded to provide for certain prohibitions of discrimination on certain prohibited grounds without good reason. See our employment law section.
It is generally unconstitutional to treat males or females more favourably in the absence of good objective reason. Formerly women enjoyed a general exemption from jury duty with the result that most juries consisted of men.
This was found to be unconstitutional both in terms of equality and in terms of the accused right to a jury representative of the community.Legislation had provided that a widower could not adopt whereas a widow could was similarly found unconstitutional.The State has extended some benefits which formerly applied to persons of one gender, to both to apply in order to uphold the constitutional promise of equality.
Express and Implied Rights
The Constitution recognises certain rights even though they are not expressed in the Constitution. For example, rights to bodily integrity, rights to privacy and other rights have been recognised as constitutional rights under the Constitution.
Certain basic human rights are recognised expressly in the Constitution. Many others are implied in the Constitution from the nature of the State created by it.These are so called unenumerated rights. Formerly the Courts justified unenumerated rights as being within the implied from the Christian and democratic nature of the State.
It has been suggested that some such rights are natural rights which enure to individuals by virtue of their human personality. They are fundamental to the standing of the individual in the context of the social order envisaged by the Constitution.
Implied rights that have been recognised include the following.
- right and bodily integrity. This is a right not to have one’s health put in danger by actions of the State.
- right to protection of health while in prison.
- right to marital privacy. This was famously recognised in a case which struck down the prohibition on contraception in a particular context.
- right not to associate from a right to associate.
The Courts have recognised a right to livelihood. This prevents the State preventing a person carrying out a legitimate business for which is qualified without a good reason. However, it is constitutional for the State to regulate publications for particular employment. Likewise, professional disciplinary legislation or barring a licence on conviction is justifiable provided that it is fair and reasonable.
The unenumerated rights are not absolute rights. Where there is a good objective reason and a legitimate interest they may be interfered with but not otherwise.
The right of access to justice is a fundamental right which cannot be restricted. The Courts had decided that there is no constitutional right to civil legal aid but there is in respect of criminal legal aid where a person may be deprived of his liberty in criminal cases.
The right to travel has been recognised.
Freedom of Expression
The Constitution sets out a person’s freedom to express his or her convictions or opinions. The State is not prohibited to penalize a person on account of his opinion. The freedom of speech is viewed as a fundamental principle in a democracy.
The Constitution guarantees liberty of the press and freedom of expression. However, it provides that it shall not be used to undermine public order, morality or the authority of the State.
What constitutes public order or morality has changed over time. Censorship of films and publications was justified as being required for public morality. A speech which is likely to incite persons to crime or induce a breach of the peace is prohibited. This would constitute offences under public order legislation.
Restrictions designed to protect the authority of the State may be upheld. The famous Section 31 of the Broadcasting Act permitted Orders prohibiting Sinn Fein from being broadcast on the broadcast media.
Similarly, contempt of Court which brings the legal system may be restrained. Restrictions on freedom of expression of the so called sub-judicial rules are valid for the purpose of proper determination of matters before the Courts. There are necessary in criminal trials to ensure a fair hearing.
The freedom of expression must be balanced against a person’s rights to their good name. Accordingly the civil runs of tort and liable allow persons compensation in respect of false statement which bring them lower in the estimation of the community. Archaically the Constitution requires that blasphemy be prohibited.
Rigth to Associate
Persons are entitled to join clubs, associations and unions. Equally, there is a right not to join which has been applied in this right. See our section on employment equality. The right to associate is not unconditional. It is subject to curtailment in the interests of public order and morality.
Where CIE attempted to require all its employees to join one of four unions this was found to be unconstitutional. Employers cannot be forced to recognise a work particular union.
The Constitution protects the right to private property. This includes both lands and buildings as well as movable goods and other equivalent rights.
The scope of the protection is unclear. The general right to own property is protected. The general right to buy an own property, sell it, pass it by Will and comply with ownership generally is protected.
It is contemplated that the right to property is limited to achieve the common good where it is necessary to promote the interests of the community as a whole. The property rights are said to be subject to the principles of social justice.
The State may limit the exercise of the rights with a view to reconciling the exercise with the requirements of the common good. Planning law, the law of nuisance, environmental law are valid to limitations of property rights in the public interest.
Property may be required compulsory but the payment of compensation is usually requirement. An unjust attack on the property rights of the individual is contrary to the Constitution. State acquisition of ownership without compensation would generally be an unjust attack. In a case involving placing of ESB pylons, it was constitutional to undertake such work compulsorily but the absence of legislation in respect of compensation was invalid.
Famously the old rent restrictions legislation was found invalid as an unjust attack on property rights. The legislation had introduced in the 1940s and rents frozen. By the late 1970s, the effect of inflation was such that the rents were small in nominal terms. The Supreme Court found the rent controls constituted an just attack. Equally, rent restriction designed to redress this issue was found unconstitutional where it was proposed to phase out rent controls over five years.
The State may limit property rights but may not do so in an arbitrary discriminatory way or unfairly deprive persons of the fair market value of what they own.
In a case where employees were required to upgrade their premises to make them accessible to disabled persons, the Supreme Court found legislation an unjust attack on property rights. In effect, the legislation was singling out businesses as opposed to society as a whole to fund particularly socially useful objectives.
The requirement for social affordable housing in planning legislation was found valid. See our guides in relation to planning law.
The Constitution also provides protections in the area of personal family rights and rights to religion. They are not of great significance in the context of businesses and they are not looked at further here.
McMahon Legal, Legal Guide Limited and Paul McMahon have no liability arising from reliance on anything contained in this article nor on this website.