Up, Down, Side to Side: Direct Horizontal Effect and Negative Obligations under Irish

Constitutional Law

One of the defining features of Irish constitutional law, especially from a comparative
perspective, is the existence of the doctrine of direct horizontal effect, which allows for causes
of action to arise from violations of constitutional norms by non-state actors. This is a
markedly different system than for example in the United States where, as Margulies points
out, individual rights guarantees ‘only limit the state and national government’1. Instead of
applying the obligations and duties that rights impose on private individuals, parties in the
United States must prove that an actor is acting as an agent of the state before any remedial
steps can be taken.

The markedly different approach taken by the Irish courts over the years in enshrining the
Constitution not only as a guide as to the conduct of the organs of government, but also that
of private individuals, has led to a similarly markedly different sort of jurisprudence
developing in this respect in comparison to other countries. However, the development of
the doctrine of direct horizontal effect has not been without its difficulties, and indeed some
have argued that the precise scope of the doctrine is unclear, and thus renders it less effective
than it could be. This can most clearly be seen within the context of the scope of the doctrine,
and whether or not the doctrine of direct horizontal effect can be equally applied to all rights
under the constitution, for both state and non-state actors alike.

This response paper will seek to address this vagueness by arguing that the principles of
horizontal and vertical enforcement can be more clearly distinguished as the difference
between positive and negative obligations under constitutional law. That is, that the state has
both positive and negative obligations towards its citizens to protect and vindicate their
rights, whereas individuals only have negative obligations not to infringe on the rights of other
private individuals. Thus, not all rights are enforceable under the doctrine of direct horizontal
effect.

In exploring this argument further, this response paper will first examine some of the
confusion surrounding the applicability of the doctrine of horizontal effect as it stands in Irish
law. Next, it will outline the difference between positive and negative obligations, and argue
that this is a useful way of distinguishing between state and private obligations in the context
of horizontality. Finally, the paper will acknowledge some of the shortcomings of this line of
argument.

In essence, the source of the uncertain scope of the doctrine of horizontal effect is how it
should be applied via the constitutional tort action, or to what degree tort law should be used
as the vehicle of vindication for constitutional violations at all2. Although first articulated in
Meskell back in the 1970s, subsequent cases have been very reticent to discuss the validity of
the doctrine, as well as what rights claims fall under it, how violations could be justified, or
any methods of balancing competing rights claims should they arise. Indeed, the only real
development that the doctrine has seen over the subsequent years is that it only seems to be

1Martin B. Margulies, ‘Standards of Review and State Action under the Irish Constitution’ [2002] Irish Jurist 37(1) 23-55.
2Colm O’Cinneide, ‘Irish Constitutional Law and Direct Horizontal Effect – A Successful Experiment?’ in Dawn Oliver and
Jörg Fedtke (eds), Human Rights and The Private Sphere (Routledge-Cavendish 2007).
applicable on a case-by-case basis, with the courts restricting their rulings insomuch as they
can to the issue at hand, calling into question whether or not the doctrine has any real validity
outside of a handful of circumstances. Of particular need for clarification, and of particular
pertinence to this response paper, is whether or not all constitutional rights are enforceable
against both the state and individuals equally.

In order to best answer this lingering question, it is helpful to distinguish between positive
and negative obligations within the context of constitutional rights. In this instance, I will be
relying on Raz’s conceptualisation of rights in The Morality of Freedom, in which he identifies
obligations as being ‘positive’, that is, implying a duty to act, and ‘negative’ obligations, which
imply a duty not act in a certain way3. Applying this construction to constitutional rights,
positive rights can be construed as necessitating action in order to be properly vindicated,
and negative rights imply a need to not act in such a way that the right is infringed upon. For
the purposes of this response paper, the question of when infringements are proportional
will not be considered. Within this context, it is important to note that negative obligations
require an act to be committed in order to go unfulfilled, whereas positive obligations only
require an absence of action in order for the obligation to go unfulfilled.

Framing the debate around the doctrine of direct horizontal effect in terms of positive and
negative obligations, some useful inferences can be drawn from the rulings of the court in
this area. For one, there appears to be no clear instance in the case law in this area of the
court implying that an individual had failed to positively provide for another person’s right.
The case law in this area seems to be solely confined to the realm of infringements on other
person’s rights, that is, an unfulfilled negative obligation. Indeed, examining the case law
outlined by Binchy in his historical analysis of the doctrine, there is scant evidence of anything
approaching a positive obligation being imposed on private individuals4. On the other hand,
while admittedly far less common than breaches of negative obligations, the courts at least
in theory seem to be more willing to imply that the state at times has a positive obligation to
act in vindicating the rights of an individual, as seen in the case of Sinnott. Furthermore, much
of the case law that has arisen around fair criminal procedure could also be seen, through the
provision of things such as legal representation, as imposing a positive obligation on the state
to vindicate the rights of individuals. Thus, it is argued that insofar as the courts have
articulated positive obligations, they are state obligations only.

There are two main drawbacks to this line of argument that must be noted at this stage. The
first is that in society, relationships exist between individuals that bring about a positive
obligation to act, rather than a negative obligation not to act. One that immediately springs
to mind is that of the parent-child relationship, which necessitates a positive obligation on
behalf of the parent to care for the child due to their dependent nature. However, this case
while valid is not so wholly disruptive as to render the entire argument of this response paper
invalid. The applicability of the distinction between positive and negative obligations still
stands for the vast majority of relationships in society. Alternatively, one could even argue
that the parent-child relationship is closer to that of the state and an individual, than two
private individuals, and thus reconcile the relationship as being an extension of the

3 Joseph Raz, The Morality of Freedom (Clarendon Press 1988).

4 William Binchy, ‘Meskell, the Constitution and Tort Law’ [2011] DULJ 33 339-368.
relationship between the state and individuals. However, this line of thinking may stretch the
argument to breaking point.

A second, more foundational argument that can be levelled at the argument is that the
distinction between positive and negative obligations is entirely arbitrary, and is based on
nothing more than semantics. Briefly exploring this argument, it could be argued that all
obligations have a positive and negative aspect to them. For example, a negative obligation
to avoid committing an act also necessarily implies a positive obligation to guard oneself from
committing the act in question. While this argument has validity within the confines of
jurisprudence, the practical application of it is limited. This response paper seeks to argue a
means of clarifying the distinction between enforcing rights against state and non-state actors
as the courts have developed the doctrine over time, and thus is confined to the established
libertarian conceptualisation of rights and obligations that can be inferred from Irish case law.

In conclusion, it is difficult to say with certainty what shape the doctrine of direct horizontal
effect will take over the coming years. The courts have been very reluctant to articulate a
general rule about the doctrine that could be applied outside of a few specific set of
circumstances. However, examining the case law in this area it is reasonable, as is argued in
this response paper, to construe the distinction between the direct vertical and horizontal
effect of constitutional law as a distinction between the differing obligations owed by the
state and private individuals. Private individuals it is argued can be said to only owe negative
obligations towards other individuals, whereas the state owes both negative obligations not
to infringe on citizen’s rights (at least, not disproportionately), and a positive obligation to act
in such a way that these rights are properly promoted and vindicated. Thus, the doctrine is
not equally applicable to all rights protected under the constitution. While the question of
the degree of positive obligation the state owes to its citizens is still very much up for debate,
especially within the realm of socioeconomic rights, the case law nevertheless suggests that
the state at least has some degree of positive obligation towards its citizens. The same cannot
be said with the same level of surety about citizens via-à-vis each other.