Fundamental Rights

Thursday 8 February 2024 11:35

Some listed in the Constitution; 'unenumerated rights’; Ryan v Attorney General [1965]
rights are not absolute. Argued adding fluoride to water
Articles 40 -44 = basis of many very significant decisions; supply= breach of right to bodily
Declarations of Unconstitutionality invoked with increasing frequency. integrity
Delayed or suspended declarations of invalidity E.g. fundamental rights expressly recognised: Ryan lost the case BUT the SC
PC v Minister for Social Protection [2017] IESC 63; Social Welfare 1. Criminal trials in due course of law (Article 38.1) acknowledged there were
Consolidation Act 2005 prevented prisoners from receiving social 2. Right to trial by jury (with exceptions- Article 38.5) ‘unspecified’ rights under the
welfare benefits, including the contributory old age pension 3. Equality before the law (Article 40.1) Constitution
breached the separation of powers principle- amounted to a 4. Right to Personal Liberty (Article 40.4)
punishment imposed by a body other than a court. 5. Freedom of Expression (Article 40.6.1.i)
SC: appropriate to ‘afford the Oireachtas, and/or the Executive an 6. Rights of the Family (Article 41)
opportunity to decide what the best legislative solution might be’ 7. Education (Article 42)
‘intended to be the exception rather than the rule’ 8. Property Rights (Article 43) Unenumerated Rights in Case Law
9. Free practice of religion (Article 44) The right to bodily integrity - Re a Ward of
Court (Withdrawal of Medical Treatment
(1995)
A Constitution lays down the procedures The right to privacy - Kennedy v Ireland
and powers that a government may Article 40.3- ‘1° The State guarantees in its laws to respect, and, (1987);
wield as far as practicable, by its laws to defend and vindicate the The right to marital privacy - Ryan v AG
A Constitution stipulates what the rights personal rights of the citizen. (1965); McGee v AG (1974)
of a person are and guarantees that 2° The State shall, in particular, by its laws protect as best it may The right of access to the courts - Byrne v
these rights will be respected from unjust attack and, in the case of injustice done, vindicate Ireland (1972)
As a result, the State cannot act in the life, person, good name and property rights of every The right to fair procedures - Garvey v
manner that would violate a person’s citizen.’ Ireland (1981)
rights Until 1963, it was not considered Art. 40.3 contained many the right to travel outside the state: The
rights other than the ones specified State (M) v Attorney General [1979] IR 73.
the right of victims of crime to have an
effective investigation and, where
appropriate, prosecution conducted: PF v
DPP [2016] IEHC 98.

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