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Home , Constitution of Ireland, Supreme Court of Ireland

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ERASMUS SUMMER SCHOOL MADRID 2011

IRISH

Martin Kearns at Law

Historical Introduction

The Treaty of December 6, 1921 was the foundation stone of an independent under the terms of which the was granted the status of a self-governing , like Australia, Canada, New Zealand and South Africa. Although the of the Ireland ushered in virtually total independence in the eyes of many it had been imposed by Britain through the Anglo Irish Treaty. 1

The Irish Constitution of 1922 was the first new Constitution following independence from Britain but by 1936 it had been purged of controversial symbols and external associations by the Fianna Faíl Government which had come to power in 1932.2

The replaced the Constitution of the Irish Free State which had been in effect since the independence of the Free State from the on 6 December 1922. The motivation of the new Constitution was mainly to put an Irish stamp on the Constitution of the Free State whose institutions Fianna Faíl had boycotted up to 1926.

1 Signed in London on 6 December 1921. 2 e.g. under Article 17 every member of the had to take an oath of allegiance, swearing true faith and allegiance to the Constitution and fidelity to the Monarch; the representative of the King known as the Governor General etc. 2

Bunreacht na hÉireann an overview

The official text of the constitution consists of a Preamble and fifty articles arranged under sixteen headings. Its overall length is approximately 16,000 words. The headings are:

1. The Nation (1–3) 2. The State (4–11) 3. The President (12–14) 4. The National Parliament (15–27) 5. The Government (28) 6. International Relations (29) 7. The Attorney General (30) 8. The Council of State (31–32) 9. The Comptroller and Auditor General (33) 10. The Courts (34–37) 11. Trial of Offences (38–39) 12. Fundamental Rights (40–44) 13. Directive Principles of Social Policy (45) 14. Amendment of the Constitution (46) 15. The Referendum (47) 16. Repeal of Constitution of Saorstát Éireann and Continuance of Laws (48–50)

Bunreacht na hÉireann was approved by the people and came into force on December 29, 1937

The 1922 Constitution (Article 1) had opened with a statement of the Free State’s Commonwealth membership; but while the new post 1937 state was still a member of the Commonwealth this was not referred to in the Constitution.

All symbols of Commonwealth were removed from the Constitution. In place of the Governor General a President was to be the for internal purposes.

The 1937 Constitution has a superior structure to its predecessor. There is a clear section headed fundamental rights. New material included Article 29 (international relations), Article 41 (the family), Article 42 (education) and Article 43 (property rights).

The new Constitution is declamatory in tone and contains aspirations and objectives e.g. Article 29.1.2° on international relations, as opposed to that of 1922. The tone is also much more religious with the preamble making references to the "the Most Holy Trinity" and "our Divine Lord, Jesus Christ."

Article 44.1 (religion) had no counterpart in the previous constitution.

However there is a considerable amount of continuity between the two documents. Many of the 1937 provisions are broadly similar in terms to those of the 1922 Constitution e.g. provisions on the Courts (Articles 34-36) and on the Daíl (Article 16). And some of Bunreacht na hÉireann’s new material came from pre-existing statutes. 3

The Oireachtas established under the 1937 Constitution is a bicameral , but the balance is tipped much more firmly in favour of the Dáil.

Processes of change since 1937

Article 46.1 provides:

“Any provision of this Constitution may be amended, whether by way of variation, addition, or repeal….”

The amending power has been successfully invoked on twenty eight occasions to date.3

The major changes, however, affected the courts.

For instances Article 26.2.2° and 34.4.5° stipulate that in cases involving the constitutionality of Bills under Article 26, or Acts under Article 34, the must deliver only one opinion.

Overall, however, it can be said that the amendments go to matters of detail, and that the basic structure erected in 1937 remains in place.

The impact of 4

Judicial review was initially slow to take off. But form the 1960s it began to flourish and it has lead to a heightened awareness of citizens' rights and of the Constitution's role in diffusing and restricting power. Perhaps the most important development has been the judicial recognition that the Constitution protects rights that are not specifically set forth therein.

The courts have come to play a vital role in enforcing constitutional mandates but they have not usurped the function of the . 5

For instance in Norris v. Att. Gen. [1984] I.R. refused to widen the right of privacy so as to invalidate nineteenth-century statutes that criminalised homosexual activity between consenting adult males in private.

Despite the importance of their role under the Constitution, the courts still play a subordinate role in the making of policy for a changing society.

While the courts may invalidate existing legislation, they cannot enact it.

3 Four relate to membership of the European Communities, three to abortion, and three to electoral matters. Others cover diverse matters such as adoption, , the 1998 British/Irish agreement and government confidentiality, divorce and religion.

4 Judicial review is the doctrine in democratic theory under which legislative and executive actions are subject to review, and possible invalidation, by the . Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority, such as the terms of a written constitution. 5 See below under Judicial Power. 4

The People, the Nation and the State

“The State” would seem to mean the political entity created by the Constitution.

But “the State” is not merely an abstract concept. It has a geographical dimension too which arguably makes it equivalent in meaning to “country”, for the President many not leave “the State” without the Government’s consent (Article 12.9).

The expression “” finds no place in the Constitution.

There has been some confusion over what is the correct name for the State in the Constitution. In Ellis v. O'Dea [1989] I.R. 530 the Irish Supreme Court expressed its disapproval of the fact that extradition warrants from UK courts regularly named the State “Éire”. And a majority of the court indicated that such warrants should not be endorsed by the Irish police, but should be returned whence they came for rectification.

The Constitution review group in May 1996 reported that Article 4 was unnecessarily complicated and should be amended to read:

Éire is ainm don Stát.

The name of the State is Ireland.

Article 2 and Article 3

Were adopted with the constitution as a whole on 29 December 1937, but completely revised by means of the Nineteenth Amendment which took effect on 2 December 1999. As amended they grant the right to be “part of the Irish Nation” to all of those born on the island of Ireland and express a desire for the peaceful political unification of the island subject to the consent of the people of . Before 1999, Articles 2 and 3 made the claim that the whole island formed one “national territory”. Prior to 1999 Article 2 and 3 reads as follows:

Article 2

“The national territory consists of the whole island of Ireland, its islands and the territorial seas.”

Article 3

“Pending the re-integration of the national territory, and without prejudice to the right of the parliament and government established by this constitution to exercise jurisdiction over the whole territory, the laws enacted by the parliament shall have the like area and extent of application as the laws of Saorstat Éireann and the like extra-territorial effect.”

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History 6

The drafters of Bunreacht na hÉireann considered the under the 1922 Anglo-Irish Treaty illegitimate. They desired the new constitution to proclaim the existence of a single “Irish nation”, and the theoretical right of the state to encompass the whole island, while for reasons of pragmatism recognising the de facto reality of partition. What emerged in 1937 was a delicately worded legal balancing act.

The Constitution refers to two separate entities: a nation , encompassing the whole island of Ireland, and a state , extending, for the time being, only to the twenty-six counties of the 'South'. In its 1937 form, Article 2 described the island of Ireland as the “national territory”. Article 3, however, stated that the laws of the southern state would apply only to the South. The purpose of Article 3 was to clarify that Article 2 was intended largely as a kind of declaration, rather than as a provision that would have actual force of law.

Current version

Ireland was bound by the terms of the 1998 Good Friday (Belfast) Agreement to submit Articles 2 and 3 to amendment by referendum. To this end, the Nineteenth Amendment of the Constitution was adopted in June of the same year. The new wording describes the Irish nation as a community of individuals with a “common identity” rather than as a “territory”, and is intended to reassure unionists that a will not come about without a majority of the Northern Ireland electorate declaring in favour of such a move.

Full text

Article 2

“It is the entitlement and birthright of every person born in the island of Ireland, which includes its islands and seas, to be part of the Irish Nation. That is also the entitlement of all persons otherwise qualified in accordance with law to be citizens of Ireland. Furthermore, the Irish nation cherishes its special affinity with people of Irish ancestry living abroad who share its cultural identity and heritage.”

The careful wording of, Article 2 as amended provides that everyone born on the island of Ireland has the right to be a part of the Irish nation. The intention is partly to allow the people of Northern Ireland, if they wish, to feel included in the “nation” without making what might be perceived as an extraterritorial claim. In other words nationhood is not to be forced on those on the island of Ireland who claim a different nationality. This is a reflection of the provision in the Belfast Agreement recognising the birthright of all the people of Northern Ireland to identify themselves and be accepted as Irish or British, or both, as they may so choose, and accordingly to confirm that their right to hold both British and Irish citizenship is accepted by both Governments and would not be affected by any future change in the status of Northern Ireland.

6 See Constitutional Law Ryan pp 30-32 6

The new wording of Article 2 also had the legal effect of granting to everyone born on the island the right to Irish Citizenship. However this right has since been qualified by the Twenty-seventh Amendment. Adopted in 2004, this amendment did not alter the wording of Articles 2 and 3 but nonetheless limited the constitutional right to citizenship to those born on the island to at least one Irish parent. Article 2 further recognises the "special affinity" between the people of Ireland and the .

Article 3

1. “It is the firm will of the Irish Nation, in harmony and friendship, to unite all the people who share the territory of the island of Ireland, in all the diversity of their identities and traditions, recognising that a united Ireland shall be brought about only by peaceful means with the consent of a majority of the people, democratically expressed, in both jurisdictions in the island. Until then, the laws enacted by the Parliament established by this Constitution shall have the like area and extent of application as the laws enacted by the Parliament that existed immediately before the coming into operation of this Constitution. 2. Institutions with executive powers and functions that are shared between those jurisdictions may be established by their respective responsible authorities for stated purposes and may exercise powers and functions in respect of all or any part of the island.”

As amended, Article 3, Section 1 expresses the “firm will” of the Irish nation to create a united , though not, explicitly, a united country. It stresses, however, that a united Ireland should respect the distinct cultural identity of Unionists and that it should only come about with the separate “democratically expressed” consent of the peoples of both parts of the island. This provision was intended to diminish the concerns of Unionists, that their rights would be ignored in a united Ireland, should that happen. Under the the people of Northern Ireland's “democratically expressed” consent must be secured in a referendum. Interestingly for a provision that speaks of the “Irish Nation” 's desire for unity, it adds an additional legal requirement for a referendum to be held not only in Northern Ireland but also in Ireland before a united Ireland could be brought about. Section 2 allows Ireland to participate in the cross-border “implementation” bodies established under the Agreement.

Controversy

Until their amendment in 1999 Articles 2 and 3 were the subject of some controversy, particularly among Unionists in Northern Ireland. To Northern Ireland Unionists the articles represented an explicit and hostile claim upon their territory, and a declaration that they might be coerced into a united Ireland without their consent, and in violation of the claim of sovereignty by the United Kingdom over Northern Ireland. Furthermore, they claimed, the articles constituted an extraterritorial claim to a part of a foreign nation and were therefore in violation of international law.

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For many decades the correct interpretation of the articles also caused some controversy among Irish nationalists. Some saw the constitution as placing an enforceable legal obligation on the government of the Republic to use its influence to actively seek the unification of the island. Invoking Article 2, some Northern Ireland nationalists elected to the UK parliament requested, but were denied, the right to be recognised in the southern parliament (the Oireachtas) as TDs (members of Dáil Éireann). Before 1999, however, the Irish Supreme Court affirmed in consistent rulings that Article 2 created no rights or obligations that were actually enforceable in a court of law.

Following the signing of the Anglo-Irish Agreement in 1985, unionist politicians Christopher and Michael McGimpsey brought a suit against the Irish government in the arguing that the Agreement was unconstitutional under Articles 2 and 3, because it recognized that Northern Ireland was part of the United Kingdom. This argument was unusual coming from unionists because of the traditional unionist opposition to these two articles, but was undertaken to undermine an agreement they opposed, albeit not for the reasons they opposed it. Their case failed in the High Court, and again on appeal to the Supreme Court.

Extent and application of laws

Article 3.1 concludes by providing, in effect, that laws enacted by the Oireachtas shall have the same area and extent of application – and extra-territorial operation – as the laws of Saorstat Éireann.

In relation to the extent of application of laws it was held in the case of Re Article 26 and the Criminal Law (Jurisdiction) 1975 [1977] I.R. 129 at 149 that Saorstát Éireann had full power to legislate with extra-territorial effect from its inception. It is presumably this power which underpins the Sexual Offences (Jurisdiction) Act 1996, which makes sexual offences against against children alleged to have been committed by Irish citizens or residents triable in the State. But the prinicipal consequence of the doctrine is that it is competent for the Oireachtas to legislate in respect of matters occurring in Northern Ireland. This it has done as the Criminal Law (Jurisdiction) Act 1976 makes certain acts committed in Northern Ireland criminal offences triable in the Republic of Ireland.

Although the Supreme Court, in McGimpsey v.Ireland described Article 3 of the Constitution as prohibiting “the enactment of laws to the counties of Northern Ireland” this does not caste doubt on the validity of the 1976 Act. For the court distinguished that prohibition from “the extraterritiorial effect of the law of the State in respect of matters occurring outside the State for which persons are made answerable in the courts of the State”. Nonetheless, the Supreme Court’s observations have clearly opened up the possibility that some statutes may be invalid as being “applicable in the counties of Northern Ireland”.

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Article 5

“Ireland is a sovereign, independent, democratic state.”

Case law establishes that the state has a separate legal personality as does a company. The full impact of this doctrine was felt in the case of Byrne v. Ireland [1972]I.R. 241 when the Supreme Court held that the State was liable for torts of its employess, and that it could be sued as “Ireland”, With the Attorney General 7 joined as the State’s legal representative. The court held that the declaration as to the sovereignity in Article 5, meant only that the State was not amenable to any external authority for its conduct. 8

Article 9

NATIONALITY AND CITIZENSHIP

The Twenty-seventh Amendment of the Constitution of Ireland provided that children born on the island of Ireland to parents who were both non-nationals would no longer have a constitutional right to citizenship of the Republic of Ireland. It was effected by the Twenty-seventh Amendment of the Constitution Act, 2004 , which was approved by referendum on 11 June 2004 and signed into law on the 24 June of the same year. It inserted a new section in Article 9 of the constitution stating that, “notwithstanding any other provision of [the] Constitution”, no-one would be automatically entitled to Irish citizenship unless they had at least one parent who was (or was entitled to be) an Irish citizen. The subsequent legislation ( Irish Nationality and Citizenship Act 2004 ) brought Irish into line with British citizenship laws with regard to parentage and ended the anomalous Northern Ireland situation. It partially reversed changes that had previously been made to the Constitution as part of the Belfast Agreement of 1998.

Insertion of new Article 9.2.1:

“Notwithstanding any other provision of this Constitution, a person born in the island of Ireland, which includes its islands and seas, who does not have, at the time of the birth of that person, at least one parent who is an Irish citizen or entitled to be an Irish citizen is not entitled to Irish citizenship or nationality, unless provided for by law.”

Insertion of new Article 9.2.2:

“This section shall not apply to persons born before the date of the enactment of this section.”

7 The office of Attorney General is created by Article 30 of the Constitution which describes the holder as “the advisor of the Government in matters of law and legal opinion.” 8 See op.cit ., above Ryan p.33. 9

Overview

In 2004, an automatic right to citizenship by birth had existed in the state in law since 1922 and in the constitution since 1999. The adoption of the twenty-seventh amendment was intended to permit laws that would remove this right under certain circumstances, and thus remove a loophole in Irish citizenship laws that the Government argued was being exploited by foreign nationals. Since 1999 Article 2 of the constitution has stated (in relevant part):

“It is the entitlement and birthright of every person born in the island of Ireland, which includes its islands and seas, to be part of the Irish Nation. That is also the entitlement of all persons otherwise qualified in accordance with law to be citizens of Ireland.”

The introduction of this guarantee in 1999 formed a part of the Belfast or ‘Good Friday’ Agreement and was largely intended to ensure that people from Northern Ireland would not be deprived of Irish citizenship. However, following the change to Article 2 complaints started to be made that foreign asylum seekers and/or illegal immigrants were deliberately presenting themselves at hospitals in the Republic or in Northern Ireland in the late stages of pregnancy in order to secure citizenship for their children.

In January 2003, the added to this controversy by ruling that it was constitutional for the Government to deport the parents of children who were Irish citizens. In May 2004 the European Court of Justice ruled in the case of Kunqian Catherine Zhu (the Chen case ) that a non-native mother whose child was born in Northern Ireland and thus acquired Irish citizenship had the right to live with her child in the United Kingdom since denying this would in effect deny residence to the child, in violation of her rights as a citizen. The implications of this ruling were that the parent of an Irish citizen who is still a child would have the right to reside anywhere in the . The mother had been living in Wales and had been liable to deportation there but had travelled to Northern Ireland on legal advice to give birth.

The ECJ ruling acknowledged that, under certain circumstances, a person born in part of the UK (i.e. Northern Ireland) could not gain citizenship of that nation state, but could gain Irish citizenship, without having ever set foot in the Republic of Ireland, or having any connection with it.

The effect of the Twenty-seventh Amendment was not to immediately remove the right to citizenship by birth but rather that it would cease to be a constitutional right . After the amendment the right to citizenship by birth still existed in law and it remained for the Oireachtas (parliament) to pass ordinary legislation that would remove it. Furthermore the amendment did not remove the constitutional right to citizenship by birth from everyone. Today a constitutional right to citizenship still exists for anyone who is both :

• Born on the island of Ireland (including its islands and seas). • Born to at least one parent who is, or is entitled to be, an Irish citizen. 10

Under Subsection 2° no one who was already an Irish citizen before the amendment was adopted would have their citizenship taken away from them. While the changes shown above are those made to the English language version of the constitution, constitutionally it is the Irish text that has precedence.

The President 9

The terms of the Constitution show clearly that the President is intended to play a mainly ceremonial role, similar to that of many other heads of State. The decisions that can be made by the President are, in general, taken “on the advice of the Government”- a polite formula which means that Ministers decide.

As such the President is assigned two different roles under the Constitution. The first – and usual – one is as formal head of State, exercising no political power. The second – for special and unusual circumstances – is as a constitutional long stop. It is in this role that the discretionary powers of the presidential office come into play.

The President’s function in such circumstances is to preserve the basic constitutional scheme – for example the rights and interests of citizens (Articles 26 and 27).

Election of the President

In contrast with other European , such as those of Italy or Germany, Bunreacht na hÉireann anticipates the direct election of the President by the people. But is also provides that if only one candidate is nominated an election shall not be necessary. The term of office of President runs for seven years and the office may be held for a maximum of two terms only.

Most of the President’s functions are purely formal. Article 13 clearly envisages him or her in the role of ceremonial head of state summoning and dissolving the Dáil, signing legislation into law, appointing Ministers, the Attorney General and . The President may also exercise the prerogative of clemency but this power can only be exercised on the advice of the Government.

Discretionary Powers 10

In some instances the President is authorised to exercise an independent discretion. In common with other constitutions in the common law world the President may “in his absolute discretion” refuse a dissolution of the Dáil to “ a who has ceased to retain the support of a majority in Dáil Éireann”.

One of the most important discretionary powers of the President under Article 26 empowers the President to refer the Bill to the Supreme Court: The President may, upon consultation with the Council of State, refer a bill to the Supreme Court to test its

9 See op.cit. Ryan p 55. 10 See ibid p.57. 11 constitutionality. The Supreme Court then tests its constitutionality in toto and the President may not sign the bill into law if it is found to be unconstitutional. 11 This is the most widely used and was indeed used by six of the eight presidents (most frequently by presidents and ), but this power may not be applied to: a , a bill to amend the Constitution, or an urgent bill the time for the consideration of which has been abridged in the Senate.12

Removal from office

The Constitution offers two distinct modes of removing the President from office. The first arises under Article 12.3.1° and covers a situation where the President may become “permanently incapacitated”. The incapacity must be established to the satisfaction of the Supreme Court, consisting of not less than five judges.

Under Article 12.10.1° obviously inspired by the American Constitution Bunreacht na hÉireann outlines grounds for of the President for “stated misbehaviour”.13

The National Parliament/The Oireachtas (Articles 15-19)

The Oireachtas is the name given by Article 15.1.1° to the national parliament. It consists of the President, a house of representatives called Dáil Éireann and a Senate called Seanad Éireann. Article 15.2.1° vests “ the sole and exclusive power of making laws for the State” in the Oireachtas, and declares that no other legislative authority has power to make laws for the State. The Oireachtas is forbidden to enact any law which is in any respect repugnant to the Constitution or any provision thereof. Should it do so the law in question is invalid to the extent of any such repugnancy; Article 15.4.

The Irish Constitution places numerous restrictions on the legislative power of the Oireachtas, many – though by no means all – springing from the provisions recognising fundamental rights. One such restriction is imposed by Article 15.5 – the Oireachtas is forbidden “to declare acts to be infringements of the law which were not so at the time of their commission.” This enshrines the philosophy common to most legal systems and encapsulated in the maxim nulla poena sine lege – that a statute declaring conduct to be criminal cannot have retrospective effect

11 It is not possible to sever the offending portions and pass the rest of the Bill into law. The entirety of the Bill either stands or falls. e.g. Re Article 26 and the Employment Equality Bill 1996 [1997] 2 I.R. 321 and Re Article 26 and the Health (Amendment)(No.2) Bill 2004 [2005] I.E.S.C. 7. 12 Presidents have referred 15 separate Bills to the Supreme Court, seven of which have been deemed to be unconstitutional in whole or in part. On advantages and disadvantages see Ryan pp.20-21. On the effects of unconstitutionality see pp26-29 .

13 The Presidential impeachment provisions of the Indian Constitution (Art.61) are very similar to those of Bunreacht na hÉireann , though the President of India can be impeached only for “violation of the Constitution”. 12

Oireachtas members’ privilege from arrest

Article 15.13 states that:

“ The members of each House of the Oireachtas shall, except in case of as defined in this Constitution, felony or breach of the peace, be privileged from arrest in going to and returning from, and while within the precincts of, either House, and shall not, in respect of any utterance in either House, be amenable to any court or any authority other than the House itself.”14

The privilege from arrest is something of a curiosity in that, though conferred by the Constitution, its scope is subject to change through legislation. The fact is that while “treason” is defined under the Constitution (Article 39), the terms “felony” and “breach if the peace” are not.

Oireachtas members’ freedom of speech

Article 15.13 also guarantees freedom of speech to parliamentarians, who are not:

“………in respect of any utterance in either House, be amenable to any court or any authority other than the House itself.” 15

In Att. Gen. v Hamilton (No.2) [1993] 3 I.R. 227 the Supreme Court held that this protected deputies and senators from any form of civil or criminal liability in respect of their statements in parliament. The court also was of the view that where members of parliament had repeated those statements as evidence given to a tribunal of enquiry, they could not be compelled to disclose their sources of information, as this would make them amenable to an authority other than the relevant House. It would seem, however, that the immunity conferred by Article 15.13 is capable of being waived. Thus a deputy or senator who repeated a defamatory statement outside the relevant House could be

14 There is uncertainty as to the scope of this privilege. In 1989 an Irish senator was arrested by the police and charged with an offence under the Road Traffic Acts. When arrested, he invoked Article 15.13 of the Constitution but was nevertheless charged. When the case came on for hearing the D.P.P announced that there would be no further proceeding in the matter and it was struck out thereby denying the court an opportunity to rule on the matter. 15 The Dáil Standing Order 58 – adopted in 1995- is designed to curb any abuse of this privilege laying down the general principle that a member of the Dáil “....shall not make...... an utterance in the nature of being defamatory.”

13 sued – provided that the repetition was voluntary, conscious and deliberate, constituting a waiver of the immunity.

Article 15.13 is also regarded as covering utterances in official Oireachtas committees; this is on the basis that any such committee is essentially the alter ego of the House which established it and must consequently share the privileges of that House. 16 The Functioning of the Oireachtas

Though the Constitution declares, in Article 15.2.1° , that the Oireachtas has the sole and exclusive power of making laws for the State, and goes on to devote seven Articles (20-27) to legislation, it does not undertake to regulate in detail the legislative process. Instead it is left to be dealt with by the standing orders of each House, supplemented by political arrangements. 17

Dáil Éireann

The electorate

The basic provision here is Article 16.1.2°, as amended. This posits two categories of persons entitled to vote:

2° “ All citizens, and

ii such other persons in the State as may be determined by law,

without distinction of sex who have reached the age of eighteen years who are not disqualified by law and comply with the provisions of the law relating to the election of members of Dáil Éireann, shall have the right to vote at an election for members of Dáil Éireann.”

Proportional representation

Article 16.2.5° stipulates proportional representation by the single transferable vote. This system has two main aspects:

(a) the single transferable vote allows the voter to give his/her preference for the candidates in order – i.e. 1, 2, 3, 4, etc. (b) the vote can be transferred to the next choice when a prior choice has already been elected or eliminated.

16 See op cit Ryan p71. 17 ibid . p.65. 14

Candidature

To be eligible for membership of Dáil Éireann one must be a citizen, have reached the age of 21 18 and not be disqualified by the Constitution or by statute. 19

General Elections

The prelude to a general election is, of course, a dissolution of the Dáil; and this is effected by the President, acting on the advice of the Taoiseach - Article 13.2.1° . While the Constitution fixes a maximu duration of seven years for the Dáil, it also permits a shorter period to be fixed by statute – Article 16.5. Taking advantage of this, the Electoral Act 1992, section 33, specifies a maximum life of five years from the date of first meeting. No minimum period is specified thereby giving the Taoiseach a very wide margin of discretion as to when a general election shall be held.

Seanad Éireann

The Irish upper house of Parliament has been described as “both singular in its composition and circumscribed in its powers.” This arises from the difficult of creating a second chamber because as Abbé Sieyés said some 200 years ago: “when two chambers agree one of them is superfluous, when they disagree oine of them is pernicious.”

By virtue of Article 18.1 the Seanad is composed of 60 members, 49 of whom are elected and 11 nominated. To be eligible, one must be eligible to become a member of the Dáil: Article 18.2.

Elected senators fall into two distinct groups. Six are elected by graduates of higher educational institutions; 43 are elected from a compex system of panels - the electorate not being specified in the Constitution. Common to both groups: the election is to be by proportional representation involving the single transferable vote and by secret postal ballot.

Several Constitutional provisions make it clear that the Seanad has a subordinae role to the Dáil. 20 In making legislation, the Dáil is more powerful than the Seanad. Although a Bill may be introduced in either House, no provision of a Bill may become law without Dáil assent. By contrast, a Bill or part of a Bill that is rejected by the Seanad can become a law, even in the face of such opposition. 21

18 The question whether the second of these conditions is fulfilled involves some difficulties due to a conflict between the English and Irish versions of the Constitution. 19 e.g. Judges, members of the Garda Síochána and civil servants (though the terms of employment of the latter may provide otherwise). 20 e.g. Article 28.4.1° the Government is declared to be responsible to the Dáil with the clear implication that defeat in the Seanad will not undermine its grip on office. 21 See Article 23 of the Constitution. 15

The balance of power between the Dáil and Seanad 22

Of the two Houses of the Oireachtas, the Dáil and the Seanad, the Dáil is clearly the more powerful institution, in matters legislative, financial and governmental alike. For instance in the legislative field the Dáil can outright any legislative proposal (or amendments to legislation) put forward by the Seanad. Proposals made by the Dáil, by contrast, can only be delayed by the Seanand and cannot be vetoed. Article 23 permits the Seanad to delay a Bill that it opposes for only 90 days. Once this period expires, the Dáil may pass a resolution deeming the Bill to have been passed by both Houses of the Oireachtas. Thus, despite Seanad opposition, the Bill may become law.

The Government and the Central Administration

The word “Government” has in Irish constitutional law a precise and technical meaning, equivalent to “Cabinet” in other systems. It is the group of senior ministers which ultimately decides major questions of policy. The Constitution is quite specific about the size and composition of this body; but as to its powers and functions it is, like the basic laws of many other states, deliberately vague. Thus an impression of the institution of Government is derived soley from the Irish Constitution would be seriously misleading.

Composition

Article 28.1 decrees:

“The Government shall consist of not less than seven and not more than fifteen members who shall be appointed by the President in accordance with the provisions of this Constitution.”

It is headed by the Taoiseach (Article 28.5.1°) who is elected to that position by the Dáil and formally appointed by the President. The Taoiseach then nominates the fourteen other members of the Government 23 for formal appointment by the President: (Article 13.1.1°). At least in theory the Taoiseach could opt for a smaller Government although in recent years this has not been the case and all the positions have been filled.

The Constitution also lays down broad rules as to the composition of the Government. All fifteen members of which must be drawn from the Oireachtas. Article 28.7.1° requires that the Taoiseach, Tánaiste and Minister for Finance be deputies (i.e. Members of Parliament), while no more than two from the total fifteen members may come from the Seanad: Article 28.7.2°).

These are the constitutional constraints on the Taoiseach's selection of his or her Government colleagues. However theory and reality differ and in practice the Taoiseach will appoint senior party figures to the main Cabinent posts and his or her choice will be even more restiricted if there is a coalition government.

22 See op.cit., Ryan p.81. 23 In establishing a maximum size for the Government, the Irish Constitution departs from the British model where the size of the Cabinet is a matter for the Prime Minister. 16

Role of Taoiseach

The Taoiseach is the head of the Government and the Constitution assumes that he will be the leading figure in the administration: Article 28.5.1°: In his official capacity he may nominate other ministers 24 and may dismiss them “for reasons which to him seem sufficient” (Article 28.9.4°). It is the Taoiseach who acts as the channel of communication between the Government and President. Finally his resignation entails that of the entire Government: Article 28.11.1°.

The Tánaiste (the Deputy Prime Minister)

Under Article 28.6.1° the Taoiseach is placed under an obligation to nominate a member of the Government to be Tánaiste. The role of this person is act in place of the Taoiseach e.g. should the latter be abroad or ill. In the event that the Taoiseach dies or becomes permanently incapacitated then the Tánaiste would stand in until a successor was appointed.

Functions of Government

The text of the Constitution is quite uninformative about the concerns and functioning of the Government. Though Article 28.2 reveals that the Government exercises the executive power of the State and leaves it at that. The Government, as a collective entity, derives certain powers from the Constitution, while others are conferred upon it by statute. Its constitutional powers include nominating judges (Article 35.1), commuting capital sentences, diplomatic relations and recognising new states or governments. The collective responsibility of the Government is reflected in Article 28.4.1° which provides that the Government shall be responsible Dáil Éireann.

Article 28.4.2° states that:

“The Government shall meet and act as a collective authority, and shall be collectively responsible for the Departments of State administered by the members of the Government.”

This notion of collective responsibility is also understood to mean that the Government must present a united front to the public and that all its members must publicly support its policies and decisions. In practice when dispute occur which is more likely to be the case with a coalition Government these are explained away on the basis that the dissenting Minister was merely "speaking in a personal capacity."

Executive privilege

Prior to 1972, it was widely believed that the Government enjoyed what was called the “executive privilege”. This privilege allowed the Government to refuse to disclose the content of (or even sometimes the very existence of) documents relating to the operation

24 It is at least theoretically possible for an unelected person to be appointed a Minister. The Taoiseach would first have to appoint such a person as one of his or her 11 nominees to the Seanad. Once this was done the relevant person could be given an Ministerial position. 17 of Government. This was a royal prerogative right enjoyed by the King or Queen of England. It was wrongly believed that the executive in Ireland had inherited this right to refuse court access to its documents.

In Murphy v Corporation [1972] I.R. 215, the Supreme Court struck down the executive privilege as being inconsistent with the Constitution. The privilege, the court held, infringed the court’s right and duty to consider all relevant evidence in a case before it. This decision effectively restored to the courts the right to determine whether Government documents should be admitted as evidence. As such, it is an important illustration of how the operates between the executive and the courts.

Cabinet confidentiality

Notwithstanding the decision in Murphy , discussions between Government members around the cabinet table are privileged, that is to say they must be kept confidential, even from a court of law.

The Supreme Court has held that the collective responsibility enshrined in Article 28.4 implies the confidentiality of discussions at Government meetings. This confidentiality priniciple, as formulated, was felt to be too rigid and was modified by what became The Seventeenth Amendment of the Constitution Act 1997 .

“The confidentiality of discussions at meetings of the Government shall be respected in all circumstances save only where the High Court determines that disclosure should be made in respect of a particular matter-

i. in the interests of the administration of justice by a Court, or ii. by virtue of an overriding public interest, pursuant to an application in that behalf by a tribunal appointed by the Government or a Minister of the Government on the authority of the Houses of the Oireachtas to inquire into a matter stated by them to be of public importance.”

The language of this provision clearly imposes an obligation on Ministers and former Ministers. As the amendment provides no time limit it could concievalby apply to historians and biographers using the memoirs of former Ministers and in this regard the prohibition would seem to be excessive.

Resignation of the Taoiseach/Government

Article 28 contemplates two resignation scenarios for the Taoiseach and his administration. Voluntary resignation for personal reasons may be affected under Article 28.9.1° by placing his or her resignation in the President’s hands. The Constitution also requires the Taoiseach to resign in certain circumstances although these are not clarified with percision and a difficulty exists in reconciling the provision of Article 28.10 and 28.11.2° . The former states: 18

“The Taoiseach shall resign from office upon his ceasing to retain the support of a majority in Dáil Éireann unless on his advice the President dissolves Dáil Éireann and on the reassembly of Dáil Éireann after the dissolution the Taoiseach secures the support of a majority in Dáil Éireann.”

Article 28.11.2° provides:

“The members of the Government in office at the date of a dissolution of Dáil Éireann shall continue to hold office until their successors shall have been appointed.”

If, during its period of office, the Goverment is defeated on an issue of confidence in Dáil Éireann, Article 28.10 applies. So, if the Taoiseach were refused a dissolution by the President his resignation would automatically follow. This purported resignation would however be just theoretical, as Article 28.11.1° would presumably oblige the Taoiseach and his administration to “continue to carry out their duties until their successors shall have been appointed.” 25

The Attorney General

The holder of the office of Attorney General occupies two unusually conflicting roles. On the one hand, the holder of the post is the chief legal adviser to the government (Article 30). Although at the same time he is not a member of the Government, the Attorney General is effectively hired and fired by the Taoiseach. At the same time the Attorney General is also charged with protecting and vindicating the public interest, a role that potentially brings him into conflict with the Government he serves. For instance in the Attorney General v X. [1992]1 I.R. 1 the then Attorney General sought an injunction to prevent a 14 year old girl from travelling to Britain for an abortion. While the Supreme Court ultimately ruled that in the circumstances of this case an injunction should not be granted. It nevertheless expressly noted that the Attorney General had acted properly in attempting to vindicate the rights of the unborn child.

Emergency Powers 26

Many constitutions, especially those of continental , provide for the declaration of a public emergency and a consequent suspension of constitutional rights. Bunreacht na hÉireann adheres to this tradition, which is not surprising in a document prepared and enacted during the 1930s, against a background of domestic political turbulence and grave international tension. Unlike other constitutions, however, Bunreacht na hÉireann does not devote a separate Article to the matter. Its principle provisions on this topic are to be found in Article 28.3.3° :

25 On June 29,1989 the recent general election had yielded no clear majority for any single party. The nomination of the Taoiseach did not occur until July 12,1989 so that Article 28.11.2° operated for thirteen days. During this period Mr. Haughey was referred to by some as the “acting Taoiseach” and the Government as a "caretaker administration". 26 See Ryan op.cit., pp.23. 19

“Nothing in this Constitution other than Article 15.5.2° shall be invoked to invalidate any law enacted by the Oireachtas which is expressed to be for the purpose of securing the public safety and the preservation of the State in time of war or armed rebellion, or to nullify any act done or purporting to be done in time of war or armed rebellion in pursuance of any such law. In this sub-section "time of war" includes a time when there is taking place an armed conflict in which the State is not a participant but in respect of which each of the Houses of the Oireachtas shall have resolved that, arising out of such armed conflict, a national emergency exists affecting the vital interests of the State and "time of war or armed rebellion" includes such time after the termination of any war, or of any such armed conflict as aforesaid, or of an armed rebellion, as may elapse until each of the Houses of the Oireachtas shall have resolved that the national emergency occasioned by such war, armed conflict, or armed rebellion has ceased to exist.” The effect of Article 28.3.3° is to provide a means of freeing the Oireachtas from the limits imposed upon it by the Constitution. 27 When this provision is invoked the Oireachtas becomes free to legislate as it thinkgs fit, not merely to suspend fundamental rights but any other aspects - such as the separation of powers - of the basic law as well. In short the Oireachtas is given carte blanche to do as it feels appropriate in a time of emergency. 28

On September 2, 1939 – the day after the German invasion of Poland and the day before the United Kingdom and France declared war on Germany – both Houses of the Oireachtas passed resolutions making Article 28.3.3° operative. The national emergency thus declared remained in force until September 1, 1976, when the 1939 resolutions were abrogated and replaced by new ones referring to a national emergency arising out of the armed conflict taking place in Northern Ireland. 29

The emergency declared by the 1939 resolutions was invoked to cover the passage under Article 28.3.3° of a series of sweeping Emergency Powers Acts. The 1939 Act, in section 2, allowed the Government to make by order such provisions as were, in their opinion, necessary or expedient for securing public safety or the preservation of the State, or the maintenance of public order. Powers (Amendment) (No.2) Act 1940 section 3 extended the use of court martials to persons not normally subject to military law. This statute imposed the death penality for those convicted and denied any avenue of appeal. 30

The approach of the Supreme court to the extensive emergency powers granted to the Government was somewhat lassiez-faire as evidenced by cases in the 1940s. In State (Walsh) v. Lennon [1942]I.R. 112 four men appealed against a death sentence for murder imposed by a miliary tribunal persuant relaxed rules of evidence that permitted

27 Legislation passed under the provisions of Art.28.3 cannot be challenged in respect of its constitutionality, even if such legislation clearly infringes the Constitution. 28 This is in startling contrast to the provisions of the Spanish Constitution of 1978. Art.55 of which spells out the only rights and liberties that may be suspended when a or state of siege (martial law) is proclaimed. Art. 116.4 provides that martial law may be proclaimed only by an absolute majority of the Congress of Deputies. 29 The 1976 resolutions were rescinded in February, 1995. 30 Article 15.5.2 now precludes the State from using Art. 28.3 to impose a death penalty, even in times of emergency. 20 unsworn and unsigned statements of persons not present at the trial to be read in evidence against the accused. Counsel for the defendants agrued that these infringed rights guaranteed not only by the Constitution but by common law but this was rejected by the Supreme Court who upheld the carte blanche powers of the Government to use its emergency powers.

As noted above, the 1939 resolutions bringing Article 28.3.3° into force were annulled by the passage of the Emergency Powers Bill 1976. Section 2 of this Bill allowed for the arrest and detention of persons for a maximum of seven days. This Bill was referred to the Supreme Court under Article 26 of the Constitution where the Court upheld the Constitutionality of the Bill but evidenced a less laissez-faire attitude to emergency powers stating: 31

“a statutory provision of this nature which makes such inroads upon the liberty of a person must be stictly construed. Any arrest shought to be justified by the section must be in strict conformity with it. ……the section is not be read as an abrogation of the arrested person's rights (constitutional or otherwise)…………..If the section were used in breach of such rights the High Court might grant an order for release under the provisions for contained in the Constitution.”

More recently Article 28.3.3° has been considered by the Constitution Review Group who have repeated the view that resultions declaring an emergency should have effect for only three years. It has also proposed that the Constitution should specify that certain fundamental rights and liberties are retained even during a state of emergency and may not be derogated from. However to date this remains little more than a recommendation.

Article 40.4.6°

The Constitution’s other emergency provision is found in Article 40.4.5°. This provides:

“Nothing in this section, however, shall be invoked to prohibit, control, or interfere with any act of the during the existence of a state of war or armed rebellion.”

In other words that nothing in the habeas corpus provision – Article 40.4- may be invoked to prohibit, control or interfere with any act of the Defence Forces during the existence of a state of war or armed rebellion. It must be read in conjunction with Article 38.4.1°.

“Military tribunals may be established for the trial of offences against military law alleged to have been committed by persons while subject to military law and also to deal with a state of war or armed rebellion.”

31 It was subsequently applied in the High Court to hold that a second detention, arising from suspicion of involvement in the same offence, was not justified by section 2 and was therefore unlawful. See State (Hoey) v. Garvey [1978] I.R. 1. 21

Thereby making habeas corpus unavailable to challenge the activities of such bodies though it is for the courts to say whether such as a state of war or armed rebellion exists. Although Article 40.4 impedes the grant of habeas corpus, other remedies such as an injunction or declaration may be available.

International Relations

Membership of the European Communities 32

By signing the Treaty of Accession in 1972 Ireland undertook to become a member of the European Communities. Because of the legal structure of these entities this was more than the signing of an international agreement; it had the character of subscribing to an external constitution, almost as if the State was joining a federation. Consequently it entailed not merely changes in domestic law but in the Constitution itself – hence the modifications necessitated under Article 28.4. inserted by the Third Amendment of the Constitution Act 1972. The new sub-section began by providing that the State could become a member of the Communities, which were specified by name. But this would not have been sufficient so Article 29.10° states that:

“No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State which are necessitated by the obligations of membership of the European Union or of the Communities, or prevents laws enacted, acts done or measures adopted by the European Union or by the Communities or by institutions thereof, or by bodies competent under the Treaties establishing the Communities, from having the force of law in the State.”

The need for this comprehensive amendment was necessitated by the nature of the European Community. The Council of Ministers and the Commission have power, in accordance with the Treaties’ provisions, inter alia to make regulations. A regulation is “binding in its entirety and directly applicable in all member States” (Article 189 (now 249), EC Treaty). Thus an EU regulation immediately becomes part of Irish domestic law, and may be relied upon in any relevant proceedings before an Irish court. This would have been quite incompatible with Article 15’s vesting of the sole and exclusive power of making laws for the State in the Oireachtas, and its specific declaration that no other legislative authority has such power. Article 29.10° removes this difficulty. 33

Once the Constitutional barriers had been removed the Oireachtas passed the European Communities Act 1972 which incorporated into Irish domestic law not only the Treaties

32 See Ryan op.cit., p.44. 33 It was equally effective to remove a difficulty which would have arisen in regard to the European Court of Justice. Article 177 (now 234, of the EC Treaty grants that court jurisdiction to give “preliminary rulings” inter alia on the interpretation of the Treaties and the validity and interpretation of acts of Community institutions – such as regulations or directives issued by the Council or Commission. Article 177 (now 234) obliges a court before which such a matter is raised to bring it before the European Court, if the national court is one “against whose decisions there is no judicial remedy under national law”. This obliges the Supreme Court to send questions of EC law to the European Court. Such an obligation might well run counter to Article 34 of the Constitution which states that a decision of the Supreme Court “shall in all cases be final and conclusive” (Article 34.4.6° ). 22 but all existing and future regulations, directives, etc as well as judgements of the Court of Justice.

Article 29.4.3° did three things. Firstly, it permitted the State to join the European Communities. This “licence to join”, did not merely sanction accession to the Communities as they existed in 1973. It authorised the State - without further – to join in amendments of the founding treaties so long as these did not alter the essential scope or objectives of the Communities. 34

It is clear, however, that fundamental changes in the communities’ objectives, or decision-making processes would require a fresh constitutional amendment as has indeed turned out to be case most recently when the Twenty-eighth Amendment of the Constitution of Ireland permitted the state to ratify the of the European Union. It was effected by the Twenty-eighth Amendment of the Constitution (Treaty of Lisbon) Act 2009, which was approved by referendum on 2 October 2009 (sometimes known as the Lisbon II referendum). 35

Crotty v. An Taoiseach: The Decision

The second sentence of the present Article 29.4.3°- added by the Tenth Amendment of the Constitution Act 1987 - reads as follows:

“The State may ratify the (signed on behalf of the Member States of the Communities at Luxembourg on the 17th day of February, 1986, and at the Hague on the 28th day of February, 1986).”

The Tenth Amendment was adopted in response to the ruling of the Supreme Court, in the case of Crotty v. An Taoiseach , that the constitution, as it stood, did not permit the state to ratify the Single European Act. This was because the Act entailed a diminution of the power of the Government (cabinet) to conduct the nation's foreign policy, a power the constitution explicitly granted to the Government.

The necessity for this amendment arose from the majority decision of the Supreme Court in the case of Crotty v. An Taoiseach [1987] I.R. 713 . Here the plaintiff had argued that, in the absence of a fresh constitutional amendment, the State lacked the power to ratify the Single European Act (SEA). This measure – an amendment of the EC treaties – consisted of a preamble and four Titles, of which the most important were Titles II and III. While the former modified the EC Treaties in a number of ways the latter significantly introduced a new system of European co-operation in the field of foreign policy. On December 10, 1986 the Dáil approved the SEA, pursuant to Article Article 29.5.2° of the Constitution. Shortly, thereafter the Oireachtas enacted The European Communities (Amendment) Act 1986, to make the SEA – though not Title III thereof – part of the domestice law of the State. The plaintiff’s claim involved a request for a permanent injunction against the law which on appeal was heard by the Supreme

34 In Crotty v. An Taoiseach [1987] I.R. 713 the court concluded that the amendments effected by the Single European Act – and incorporated into domestic law by the European Communities (Amendment) Act 1986 – were within the scope of the authorisation given by Article 29.4.3°. 35 This has brought about the modification of Article 29.4.3°, the deletion of Article 29.4.4° - 29.4.11° and the insertion of new Article 29.4.4°-9°.

23

Court. While the Supreme Court rejected the plaintiff’s claim insofar as it asserted the constitutional invalidity of the European Communities (Amendment) Act 1986 that court did take the view that the SEA could not be ratified without a new constitutional amendment. The court was of the view that Artilces 1 and 5 of the Constitution enshrined full sovereignty in foreign affairs which the Government were obliged to respect. Article 28.2 also stated that the power of the Government to conduct foreign affairs was subject to the Constitution, thus the Government lacked the authority to qualify or restrict that sovereignty in the manner envisaged by Title III. The Supreme Court took the view that it had the right to make appropriate intervention in the State's treaty-making power to uphold the primacy of the Constitution. 36 Debates in the Dáil on the subsequent Tenth Amendment of the Constitution Bill 1987 suggested that the line between executive and judicial power had been blurred, with the result that no one was now certain about the Constitutional limits on the Government's power to conduct international agreements. 37

The Separation of Powers 38

Article 6 of the Constitution enshrines the “powers of government, legislative, executive and judicial” into the Irish Constitution. Subsequent Articles vest the law-making power in the Oireachtas Article 15.2.1°. While Articles 28.2 and Article 29.4.1° place the executive power in the Government and Articles 34.1 and 37 give judicial power in the courts. The Irish Constitution may be said to give the courts a legislative role, if only in a negative sense, by entrusting to them the power to declare legislation unconstitutional. Nevertheless it is undoubtedly the case that in Ireland the separation of powers is not a mere technical concept but a foundation of liberty enacted by the Constitution.

The Legislative Power

The Constitution vests the sole and exclusive power of making laws for the state in the Oireachtas: Article 15.2.1º states:

“The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State.”

This clearly indicates that the Irish executive cannot, unlike its counterparts in some other states, claim any inherent law making-power. 39 To be valid, any instrument issued by the executive that purports to have the force of law must be founded in statute. It is also clear from Article 15.2.1º that the executive cannot by ipse dixit suspend the operation of a statute. For instance in the case of Duggan v. An Taoiseach [1989]

36 In consequence of Art.236 (now 309), EC treaty which provides that amendments to the foundation treaties come into force only “……after being ratified by all the Member States in accordance with their respective constitutional requirements.” 37 e.g. Ireland’s adherence to the United Nations Charter and its acceptance of the European Convention on Human Rights. Under the latter the state has pledged itself to guarantee a series of rights ultimately determined by the European Court of Human Rights. The question might be asked whether this implies an illegitimate surrender of sovereignty? 38 See Ryan op.cit., from p.49. 39 Contrast the position in France where, long before Art.37 of the 1958 Constitution, the executive was recognised as having an autonomous pouvour réglementaire . 24

I.L.R.M. 710 the court found reason to emphasise this doctrine. The facts were that the Farm Tax Act 1985 had established a special system of farmer taxation and arrangement has been made to levy the tax. However, in his 1987 budget the Minister for Finance announced a policy change. The farmers were now liable for normal income tax and the special farmer tax was to be abolished. Arrangements to collect farm tax were then stopped although the 1985 Act remained unrepealed. The plaintiffs sought a declaration from the court that the decision to cease collecting tax was invalid. The High Court ruled that the Government's action was unlawful because they had not sought to repeal the 1985 Act in the Oireachtas.

Constitutional Limits on the Delegation of Legislative Power

Article 15.2.1º also limits the power of the Oireachtas to delegate law-making functions to Ministers and other bodies. In the case of City View Press Ltd. v. AnCO [1980] I.R. 381 the Irish Supreme Court took the opportunity to outline what amounts to the lawful delegation of law making power stating:

“the test is whether that which is challenged as an unauthorised delegation of parliamentary power is more that a mere giving effect to principles and policies which are contained in the statute itself. If it be, then it is not authorised; for such would constitute a purported exercise of legislative power by an authority which is not permitted to do so under the Constitution. 40

Only two statutory provisions have fallen foul of the Constitution on the ground of excessive delegation 41 and one of the cases in question ante-dates the Cityview Press case. In East Donegal Co-op Ltd. v. Att. Gen. [1970] I.R. 317 the issue concerned the Livestock Marts Act 1967, which established a licensing scheme for such marts. The Act allowed the Minister for Agriculture to grant or refuse licences, to attach to a licence such conditions as he thought proper, and to revoke licences in certain situations. Section 4 authorised the Minister to exempt from the Act's provisions “any particular business or business of any particular class or kind.” The Supreme Court held that in this context “any particular business” must mean some individual enterprise. The Court was of the view that this was a far reaching power to exempt individuals as the Minister saw fit from the application of statutory provisions. Noting that Article 40.1 guaranteed the equality of all citizens before the law, Walsh J was of the opinion that:

“The constitutional right of the Oireachtas in its legislation to take account of difference of social function and difference of capacity, physical and moral, does not extend to delegating that power to members of the Executive, to the exclusion of the Oireachtas, in order to decide as between individuals (all of whom are, by the terms of an Act, bound by it) which of them shall be exempted from the application of the Act - unless such exemption were necessary to avoid an infringement of the constitutional rights of such individuals which infringement, because of circumstances peculiar to them, would necessarily result from the application of the statutory provision without such exemption. No such justification appears in the provision under consideration. In the view of

40 City View Press Ltd. v. AnCO [1980] I.R. 381 at 399. 41 This non-delegation doctrine has its origins in the US Supreme Court in the case of Panama Refining Co. v Ryan ( 1935) 239 U.S. 388 and Schechter Poultry Corpn v. United States (1935)295 U.S. 495. Although the doctrine has since fallen out of favour in the United States. 25

this Court the provision purporting to grant power to the Minister to exempt ‘any particular business’ is invalid having regard to the provisions of the Constitution.”

No Judicial Legislation

That the courts have an important role in making law is now clearly accepted. By identifying unenumearted rights, re-examining common law doctrines in the light of the Constitution and “unmaking” laws by striking down statutory provisions as unconstitutional, the courts have transformed our understanding of the basic law. However, it is also recognised that this law-making process has its limits.

An illustration of this is F. (orse.C.) v. C. [1991] 2 I.R. 330, where the applicant shought the annulment of her marriage on the grounds that prior to the marriage (unknown to her) the husband had been a practising homosexual. On this basis the applicant claimed he lacked the capactiy to form and maintain a normal marital relationship. While this ground had been accepted for nullity in other High Court decisions the Court in this instance declined to follow them. Keane was of the view that while the exisitng grounds for nullity should be understood on the basis of modern scientific research the courts could not add new grounds where the legislature had failed to create and on this basis the claim for nullity was rejected. The Supreme Court subsequently took the opposite view Findlay C.J. being of the view that where another party to a marriage had, unknown to the other, an inherent and unalterable homosexual orientation was “... a necessary and permissable development of the law of nullity.” ( [1991] 2 I.R. 330 at 357). In this case while the High Court took a conservative approach the Supreme Court was more radical in its outlook.

However the Supreme Court took the opposite view in the case of L.v L. [1992] 2 I.R. 77 where the court rejected the view that Article 41.2 of the Constitution entitles a married woman on the break up of her marriage, to a beneficial interest of up to 50 per cent in the family home and its contents. The Supreme Court were of the view that this did not amount to developing a Common law principle, but identiftying a brand new right. Unless this was clearly warranted by the Constitution or was essential to protect a right guaranteed thereunder, it was a usurpation of the legislative function. 42

The Executive Power

Article 28.2 states that:

“The executive power of the State shall, subject to the provisions of this Constitution, be exercised by or on the authority of the Government.”

While Article 29.4.1º adds that:

42 The court may have been influenced in its view by proposed legislation concerning the matrimonial home by the then government though this was never enacted. The Judicial Separation and Family Law Reform Act 1989 also gave the courts powers to make wide ranging property adjustment orders. 26

“The executive power of the State in or in connection with its external relations shall in accordance with Article 28 of this Constitution be exercised by or on the authority of the Government.”

This apart the Constitution is silent as to what executive power involves. Other constitutions are equally laconic in this regard, and it has been suggested that so indefinite is the notion of executive power that is amounts to what is left when the legislative and judicial powers are subtracted.

An important question with regard to executive power concerns whether the constitutional grant of the executive power ipso facto creates power? In other words – may the Government exercise power without statutory authority? Clearly in the field of foreign affairs it may and in fact does so. For instance the Government concludes international agreements by virtue of its executive power. It is obliged to lay such agreements before the Dáil but they are binding without either advance or subsequent Dáil approval. 43 If, however, the agreement involves a charge on public funds, it terms must be approved by the Dáil. 44

In certain circumstances the constitutional grant of the executive power may enable the Government to act without statutory authority in domestic affairs. However, it seems clear, that without statutory warrant the executive cannot impose obligations or burdens on any citizen. There is no Irish authority on this point as Governments have doubtless received the appropriate legal advice that statutory authority is essential for such action.

In other contexts, however statutory authority would not seem to be necessary. Examples of this are schemes to give benefits of various kinds – grants, subsidies etc. – that do not have to be enshrined in statute, though statutory authority to spend the relevant sum would be required. The executive may also, without statutory authority, make contracts, and acquire and dispose of property.

Judicial Power

The general Constitutional provisions governing the exercise of judicial power are to be found in Articles 34.1 .

“Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public.”

While Article 37.1 in effect qualifies this:

“Nothing in this Constitution shall operate to invalidate the exercise of limited functions and powers of a judicial nature, in matters other than criminal matters, by any person or body of persons duly authorised by law to exercise such functions and powers, notwithstanding that such person or such body of persons

43 Article 29.5.1º 44 ibid at 29.5.2º 27

is not a judge or a court appointed or established as such under this Constitution.”

The philosophy behind Article 37.1 is that within limits the Oireachtas can select stream off certain existing jurisdictions from the courts and transfer these to other non court bodies 45 which can decide issues coming before them. Meanwhile the courts would continue to exercise certain “core functions” such as for instance in criminal matters.

The principles that flow from these article may be summarised as follows:

(a) the administration of justice in criminal matters is an exclusive function of the courts and of the judges appointed, under the Constitution. 46 (b) in civil matters, limited judicial functions and powers may be conferred on persons who are not judges or bodies which are not courts (c) subject to (b), the administration of justice in civil matters is a function reserved to the courts.

Duration of Sentences: Judicial vs. Executive Power

The dividing line between judicial and executive power is not always clearly delineated and the question has been raised in a number of Irish cases. In State (O.) v.O’Brien [1973] I.R. 50 this precise issue arose. The applicant had been convicted of murder at the age of 16 in 1956. At the time the penalty for murder was death but in the case of a “young person” under the Children Act 1908 section 108 substituted instead a sentence of detention during His Majesty’s pleasure. When sentence was originally passed on the applicant the presiding judge indicated that he “be detained until the pleasure of the Government be made known concerning him.” This was done because it was considered that the Monarch had traditionally held the executive powers and that this had been inherited by the Government. However when the applicant appealed by way of habeaus corpus to the Supreme Court this view was rejected. The Court being of the opinion that the British Constitution was flexible so that judicial power could be conferred on the monarch even though in theory he was head of the executive. It followed that it could not be said that the Irish government had inherited all the powers originally held my the monarch. The question as to what power was inherited could only be established by examining the power in question. It was clear to the Supreme court that the power under the Act of 1908 was a judicial power that belonged solely to the courts not to the Government. The trial court had power to impose indefinite detention, which it could at any time terminate or which could be remitted by virtue of Article 13.6 of the Constitution.

45 e.g. The Employment Appeals Tribunal, Labour Court and An Board Uchtála (the Adoption Board) the latter enjoys the protection of Article 37.2 inserted by the sixth amendment to the Constitution designed to prevent adoptions orders being the subject of constitutional challenges in the courts. 46 This is however subject to the provisions of Article 38 on special criminal courts. 28

This decision subsequently gave rise to some uncertainty concerning the status of section 2 of the Trial of Lunatics Act 1883, which deals with “guilty but insance” verdicts. Section 2 of which gives a the option of bringing in a sentence to the effect that: “Where such special verdict is found, the Court shall order the accused to be kept in custody as a criminal lunatic; in such place and in such manner as the Court shall direct till the pleasure of the Lord Lieutenant shall be known…….” (Italics supplied).

After the O case the practive developed of making an order that the defendant be detained in the Central Mental Hospital until further order. In Application of Gallagher [1991] 1 I.R. 31 the applicant who had been found “guilty but insane” appealed for his release on the grounds that he was no longer insane. The High Court directed that the applicant be detained in the Central Mental Hospital until the pleasure of the Government concerning him be known.

The Supreme Court affirmed the correctness of this order and rejected the argument the italicised words of section 2 above amounted to an unconstitutional intereference on the executive into the realm of judicial power. The Supreme court were of the opinion that the special verdict is in effect a verdict of acquittal. The court does not a pass sentence in such circumstances but its role is to order the detention of the accused until the executive decides what should be done with him. Consequently it was for the Government and specifically the Minister for Justice to decide when the detained person was to be released.

No Executive/Legislative Intervention

Article 1, section 9 of the U.S. Constitution forbids Congress to pass any “Bill of Attainder”. In Cummings v. Missouri (1866) 71 U.S. (4 Wall.) 277 the Supreme Court defined this terms as: “A bill of attainder is a legislative act, which inflicts punishment without a judicial trial…..”. While the text of Bunreacht na hÉireann contains no similar prohibition, there can be not doubt that any legislation of this kind would violate its separation of powers provisions. In Maher v. Att Gen [1973] I.R. 140 See Ryan p.63 a somewhat less dramatic legislative intervention was condemned as unconstitutional. This was section 44(2) of the Road Traffic Act 1968, which provided that in prosecutions for “driving under the influcence” an analyst’s certificate as to the concentration of alcohol in a blood or urine sample should be “conclusive evidence” as to the concentration of alcohol in the body of the person from whom the sample was taken. This sub-section was attacked as being an invalid legislative infringement upon the judicial power, and the Supreme Court agreed with this analysis. In entrusting the administration of criminal justice exclusively to the courts, it was held, the Constitution necessarily reserved to them the power to determine whether all the essential ingredients of an offence had been proved against an accused person. Since the subsection of the offending statute made it clear that the analyst’s certificate amounted to conclusive evidence, section 44(2) purported to remove the determination of an essential ingredient from the courts. Hence it was invalid.

29

The meaning of “limited”

Article 37.1 states that the exercise of “limited” powers by non judicial bodies in non criminal matters shall be permitted. But what does “limited” mean in this regard as the Oireachtas, is legitimately entitled to grant “unlimited” powers of a non-judicial nature on any person or body. 47 The Supreme Court’s decision in Re Solicitors Act 1954 [1960] I.R. 239 is the principle authority on the meaning of “limited”. The facts of the case involved the Disciplinary Committee of the Incorporated Law Society which had found two solicitors guilty of professional misconduct and ordered that their names be struck off the roll of solicitors. The committee was acting under the 1954 Solicitors Act, which transferred the power to strike off from the to the committee. On appeal to the Supreme Court the two solicitors argued that the 1954 Act unconstitutionally conferred a non-limited judicial power on the Disciplinary Committee. This argument was accepted by the Supreme Court which decided that the powers being exercised by the committee were in effect judicial in nature. With regard to the question of what “limited” signified the Court was of the following view:

“The test as to whether a power is or is not ‘limited’ ....lies in the effect of the assigned powers when exercised. If the exercise of the assigned powers and functions is calculated to affect in the most profound and far-reaching way the lives, liberties, fortunes or reputations of those against whom they are exercised they cannot properly be described as ‘limited’.”48

Given this decision it could have put the decisons of tribunals in other professions in danger as these could be held to be limited and judicial in nature. This was subsequently argued in the case of Keady v. Commr.,Garda Síochána [1992] 2 I.R. 197 where an attempt was made to argue that Police disipline procedure were akin to the power exercised by the Law Society over solicitors. However the court did not apply the same reasoning to the police and in this regard they seem to have been influenced by the historical fact that originally judges did hold the power to strick solicitors off the record before it had been transferred through legislative intervention. So it would appear that statutes governing discipline in other professions should be constitutionally safe - at least as far as the separation of powers is concerned.

The Abbey Films Case

Here the question before the court raised an interesting aspect in relation to the separation of powers involving a question not of intrusion into the judicial realm but as to whether the High Court was granted too much power. The facts involved an investigation into film distribution by the Examiner of Restrictive Practices persuant to powers granted under Section 15 of the Restrictive Practices Act 1972 which allowed the examiner to enter a business and require the production of documents relating to the business. Section 15(3) provides that where a person refuses to comply with such a request, he shall within seven days apply to the High Court for a decision “that the exigencies of the common good do not warrant the exercise by the Examiner of the

47 Subject of course to other constitutional constraints such as the fundamental rights provisions. 48 [1960] I.R. 239 at 263-264. 30 powers conferred on him by this section.” If such a declaration is granted, the Examiner must withdraw the requirement.

On appeal to the Supreme Court the plaintiff company alleged that section 15 violated the separation of powers because:

(a) it empowered the High Cout to decide upon the exigencies of the common good; and that this was a purely legislative function: (b) it usurped the legislative function by empowering the High Court to create offences.

The Supreme Court rejected both submissions being of the view that the framers of the Constitution had not adopted a rigid separation between the legislative, executive and judicial powers. In relation to the promotion of the common good the Supreme Court stated:

“While this promotion is primarily the function of the legislature, the Courts are invested with the jurisdiction to determine whether what is purported to be done in the interests of the common good is or is not repugnant to the Constitution. Furthermore, there is nothing to prevent the legislature from investing the Courts with the sole juridiction to determine whether a particular act is or is not required by the exegencies of the common good. That is what is being done by section 15. We reject the submission that it is repugnant to the Constitution.”

In relation to the plaintiff’s second argument:

“What the High Court had to decide under the sub-section is whether, in a particular case, the exercise of the powers of the examiner was or was not warranted by the exigencies of the common good. This is not the creation of a new offence: it is the application of the conept of the common good to the facts of the particular case. The offence is created by the legislature: the question whether it has been committed is to be decided by the Courts, and this involves no more than a determination whether the exercise of the powers of the Examiner was or was not warranted by the exigencies of the common good.”

Personal Rights and the Constitution

Articles 40 – 44 Fundamental rights

• Equality before the law : Guaranteed by Article 40.1. • Prohibition on titles of nobility : The state may not confer titles of nobility and no citizen may accept such a title without the permission of the Government (in practice this is usually a formality) (Article 40.2). 31

• Personal rights : The state is bound to protect “the personal rights of the citizen” and in particular to defend the “life, person, good name and property rights of every citizen” (Article 40.3). 49 • Unenumerated Rights : The language used in article 40.3.1° has been interpreted by the courts as implying the existence of unenumerated rights afforded to Irish citizens under natural law. Rights so upheld have included the right to marital privacy and the right of the unmarried mother to custody of her child.

• Prohibition of abortion : Prohibited by Article 40.3, except in cases in which there is a threat to the life of the mother. However, this prohibition may be circumvented because there is also the right to travel abroad, as well as the right to distribute and obtain information of services (such as abortion) not available within the state, but lawfully available in other countries. • Habeas Corpus : Guaranteed by Article 40.4. The Defence Forces are exempt from habeas corpus during time of rebellion or war. Since the Sixteenth Amendment it has also been constitutional for a court to deny bail to someone charged with a crime where it suspects they may commit an offence. • Inviolability of the home : An officer of the state may not forcibly enter someone's home unless permitted to do so by law (Article 40.5). • Freedom of speech : Guaranteed by Article 40.6.1. However, this may not be used to undermine "public order or morality or the authority of the State". Furthermore, the constitution explicitly requires that the publication of "blasphemous, seditious, or indecent matter" be a criminal offence. • : Guaranteed by Article 40.6.1, but only when exercised "peaceably and without arms" and not a "nuisance to the general public".

• Freedom of association : Article 40.6 protects this right, but states that it may be regulated by the state “in the public interest”, provided it is not regulated in a manner which is discriminatory. • Family and home life : Under Article 41 the state promises to “protect the family” and its “imprescriptible rights, antecedent and superior to all positive law”. Under the same article the state must ensure economic circumstances do not oblige a mother to work outside of the home. The provision also provides that before a divorce is granted adequate financial provision must be made for any children and for both spouses. • Education : Article 42 guarantees parents the right to determine how their children shall be educated, provided a minimum standard is met. Under the same article the state must provide for free primary level education. Currently Irish law also guarantees free second and third level education. • Private property : Guaranteed subject to “social justice” and the “common good” (Article 43).

49 The right to one’s good name Art. 40.3.2 and to liberty Art. 40.4 were both relied upon in C.C. v Ireland [2006] I.E.S.C. 33 where the Supreme Court struck down a law criminalising sexual intercourse with a person under the age of 15, on the basis that the measure potentially penalized the mentally innocent. The plaintiff had been charged with unlawful carnal knowledge of a girl under the age of 15. The girl had told him that she was 16, a statement that he believed. The Act, however, did not excuse a mistake as to age. So the accused could be convicted despite despite the fact that he was not aware that the girl was under 15. Hardiman J. concluded "the Section contains no balance: it wholly removes the mental element and expressly criminalises the mentally innocent." 32

• Freedom of worship : Guaranteed subject to “public order and morality” (Article 44.2.1). • Prohibition of establishment : The state may not endow any religion (Article 44.2.2). • Religious discrimination : The state may not discriminate on religious grounds (Article 44.2.3). Currently, Irish law also forbids discrimination in employment and services (from both the public and private sectors) on grounds of gender (including transsexuals), marital status, family status, sexual orientation, age, disability, race (including nationality) and membership of the Traveller community, as well as religion (or lack thereof).

Under other provisions

• Prohibition of the death penalty : Under the twenty-first amendment of 2001, the Oireachtas (parliament) may not enact any law allowing for the imposition of the death penalty (Article 15), even during a time of war or armed rebellion (Article 28). • Prohibition of ex post facto laws : The Oireachtas may not enact ex post facto criminal laws (Article 15). • Trial by jury : A trial for a serious offence must usually be before a jury (Article 38). However, in certain circumstances a trial without a jury may occur before a military tribunal or "special court". • Sexual discrimination : The sex of an individual cannot be a reason to deny them the right to citizenship (Article 9), or to vote for or be a member of Dáil Éireann (Article 16).

Articles 40-44 of the Constitution – which are headed “Fundamental Rights” – recognise and guarantee certain personal rights regarded as classical in liberal democracies. These include inviolability of the dwelling, freedom of association, expression and assembly, property rights and freedom of religion. But these Articles are emphatically not the only source of constitutionally-protected rights; other provisions play a role here too. Article 38.1’s declaration that “no person shall be tried only criminal charge save in due course of law” is a source of rights in the sphere of criminal procedure, while a series of rights in the electoral field flow from Article 16. More generally, constitutional provisions imposing restrictions on the State or its institutions, which do not employ the language of rights, are nevertheless capable of generating them. Thus a person specially affected may invoke the separation of powers provisions or the non-retroactivity prohibition of Article 15.5.

In addition to this, the Supreme Court has accepted in the seminal case of Ryan v.Att. Gen [1965] 2 I.R. 294 50 that Article 40.3 of the Constitution guarantees rights not expressly enumerated elswhere – a view that has never since been questioned.

50 In which the court had to decide whether there was a constitutional right to bodily integrity that was not expressly mentioned in the Constitution. The court rule that the Constitution by using the phrase “in particular…the life, personal good name and property rights of every citizen” implied that these were not the only rights that were protected. 33

Limiting rights

The rights enumerated in Article 40 are all either expressly or implicitly subject to qualification. Freedom of expression, assembly and association are all “subject to public order and morality” (Article 40.6.1°) and to specific individual qualification also. The rights to personal liberty and to inviolability of the dwelling are both subject to regulation “in accordance with law”, a phrase which clearly gives the legislature some flexibility. The unenumerated rights, as is evident from their textual base in Article 40.3, are guaranteed “as far as practicable,” and the State’s obligation is to protect them “as best it may from unjust attack.” The qualifying words “as best it may” of Article 40.3.2º implies circumstances in which the State may have to balance its protection of the right as against other obligations arising from regard for the common good. 51

It is now well established that the Constitution does not confer on citizens of the State fundamental human rights but rather recognises their existence as being antecedent and superior to positivie law and protects them accordingly but the rights so describled are not restricted to the limited ones specifically mentioned in the Constitution. While the power of the state to limit cetain constitutional rights is specifically laid down in some Articles of the Constitution it is not mentioned in others. For instance Article 41 makes no reference to any restricitve power but it is clear that the exercise by the Family, of its imprescriptible and inalienable right to integrity as a unit group, can be restricted by the State, for example, when its laws permit a father to be banned from a family home. So when interpreting the Constitution bearing in mind that it is both a political and a legal document, the courts need to look at the whole text and identify its purpose and objectives in protecting human rights.

Balancing constitutional rights

On occasion one person’s exercise of his/her constitutional rights will come into conflict with those of others. A vigorous invocation of the right to express one’s convictions and opinions may conflict with another’s right to their reputation. The right to life of the unborn, guaranteed by Article 40.3.3°, is capable of conflicting with that of the mother, equally guaranteed therein. 52

In resolving such conflicts the courts will obviously have to weigh carefully the constitutional rights involved and endeavour to achieve an accomodation between them. This may involve ranking rights in a hierarchy, perhaps deploying a purposive interpretation of the Constitution to this end. Such a question arose in the case of Tuohy v. Courtney [1994] 3 I.R. 1. The facts were that the plaintiff had sued the defendant – his former solicitor – for negligence but the High Court had found the action time-

51 See Moyihan v. Greensmith [1977] I.R. 55 at 71. 52 Att. Gen. v. X [1992] 1 I.R. 1. 34 barred. 53 Under section 11 of the Statute of Limitations 1957 the period for bringing an action such as the plaintiff’s was six years form the date when the cause of action accrued. That priod had expired in 1984 some three years prior to the date of proceedings in 1987. The plaintiff argued that, in the circumstances, he could not have known that he had a cause of action until after the six year time-limit had expired. A statutory provision which could produce such a result, it was argued, violated the plaintiff’s property rights under Articles 40.3.2º and 43, and his right of access to the courts under Articles 40.3.1º . The Supreme Court rejected this claim and in relation to the question of balancing different constitutional rights it stated:

“….the Oireachtas in legislating for time limits on the bringing of actions is essentially engaged in a balancing of constitutional rights and duties...... The Court is satisified that in a challenge to the constitutional validy of any statute in the enactment of which the Oireachtas has been engaged in such a balancing funtion, the role of the courts is not to impose their view of the correct or desirable balance in substitution for the view of the legislature...... but rather to determine from an objective stance whether the balance contained in the impugned legislation is so contrary to reason and fairness as to constitute an unjust attack on some individual's constitutional rights."

The Court took the view that in setting limitation periods the Oireachtas was engaged in a balancing of constitutional rights and duties. The courts would only intervene in circumstances where the balance struck between constitutional rights was so contrary to reason and fairness as to amount to an unjust attack on these rigths. The Oireachtas had granted a substantial six year period in which to bring actions and while this could have been extended by reference to the disocoverability of the cause of action this had not been done. This decision the court felt could be fully supported by just and reasonable policy considerations.

UNENUMERATED RIGHTS

The doctine of unenumerated rights springs from the wording of Article 40.3. Its first subsection contains a general guarantee of the personal rights of the citizen; its second pledges protection “in particular” for “the life, person, good name, and property rights of every citizen.” Since the other provisions of Article 40 do not specifically protect the citizen’s right to life or a good name, the inference has been drawn that those provisions are not an exhaustive enumeration of the rights guaranteed. Ultimately, it falls to the courts to determine which unenumerated rights the Constitution implicitly guarantees. The rights that have been recognised so far may be listed as follows:

(a) the right to strike; (b) the right of dissociation; (c) the right to privacy; (d) the right to earn one’s living; (e) the right to communicate;

53 The cause of the action was a dispute involving the purchase of lease which the plaintiff thought could be converted into a freehold. What he had in fact purchased was an unexpired lease of 99 years from October 1999. 35

(f) the right of access to the courts; (g) the right to legal representation on criminal charges; (h) the right to protection of one’s health; (i) the right to travel; (j) the right to marry and found a family; (k) the right to know the identity of one’s natural mother; (l) the right to fair procedures in decision making.

The right to privacy

In McGee v. Att.Gen. [1974] I.R. 284 the Supreme Court identified an unenumerated right of marital privacy. The plaintiff who was a married woman with four children, had attempted to import spermicidal jelly which was seized by customs officers, acting under section 42 of the Customs Consolidation Act 1876, as amended by the Criminal Law Amendment Act 1935, section 17(3). 54 The plaintiff sought a declaratioin that section 17 of the 1935 Act was inconsistent with the Constitution. The Supreme Court held that section 17(3) did not survive the enactment of the Constitution and that Article 40.3.1° guaranteed a right of privacy in marital relations, including a right to decide to use contraceptives, and that section 17(3) violated this guarantee.

The plaintiff in Norris v. Att. Gen. [1984] I.R. 36 attempted to build on the decision in the McGee case to establish that certain 19 th century statutes penalising homosexual conduct between consenting male adults in private were unconstitutional. The argument was that the Constitution guaranteed a right of privacy ( one aspect of which involved matiral privacy), and that this meant that there was a limit on the State’s power to control personal conduct where neither the common good nor the protection of public order or morality necessitated such control. While the Supreme Court seems to have accepted that such a right to privacy is guaranteed the essential disagreement boiled down to whether right to privacy invalidated the statutes impugned. 55 The majority of the court held that it did not. O’Higgins C.J. said that the preamble to the Constitution indicated an acceptance of Christian values. This argued against any conclusion that in adopting the Constitution “the people rendered inoperative laws which had existed for hundreds of years prohibiting unnatural sexual conduct which Christian teaching held to be gravely sinful” (at 64). Moreover, the State was entitled to discourage conduct which was “morally wrong and harmful to a way of life and to values which the State wishes to protect” (ibid). It should be noted that in dissent Hency and McCarthy JJ. held that the onus lay on the State to show that the maintenance of public order and morality outweighed the plaintiff's claim to privacy. This onus had not been discharged; the consensus of evidence given in the High Court was that the beneficial effect of relaxing the impugned provisions would outweigh any possible ill-effects on society as a whole. 56

54 s.17(3) provided that contraceptives should be included among the table of prohibited goods in s.42 of the 1876 Act. 55 Offences against the Person Act 1861, ss 61 and 62 and the Criminal Law Amendment Act 1885 ,s.11. 56 Henchy J., it may be noted, described the relevant provisions as “doomed” and referred to the judgment of the European Court of Human Rights in Dugeon v.U.K. (1981) 4 E.H.R.R. 149 where the court held that the same statutory provisions - then still in force in Northern Ireland - violated the European Convention. 36

It is now clear that the Constitution acknowledges a zone of autonomy, within which the individual is free to act without legal hinderance. The Supreme Court had to consider an application by the family of a woman in a vegetative state to terminate her artifical nutrition and hydration. The Court upheld the view that the constitutional right to privacy included a right to refuse medical treatment even where this would lead to death. While the woman’s mental incapacity did not operate to deprive her of her constitutional rights; its effect was simply that the protection and vindication of those rights became the responsibility of others, in this instance the High Court.

The right to privacy protects individuals from intrusion into their private lives by material published in the media. In this field the courts in Ireland have come to different decisions as for instance in Att.Gen v.X [1992] 1 I.R. which concerned a young girl who was at the centre of public attention over the Attorney General's attempt to impose an injuction over her travelling to the U.K. for an abortion. The High Court in this case granted an injuction against various journalists and newspapers publishing material that in the plaintiff's claim violated her constitutional right to privacy. In M.v.Drury & Ors. [1994] 2 I.R. 8. the High Court rejected the plaintiffs claim for an injuction preventing the press publishing a story over her husband’s claim that their marriage had failed because of her affair with a Catholic priest. O’Hanlon J too the view that:

“There are extreme cases where the right to privacy ...... may demand the intervention of the courts...... Generally speaking, however, it seems desirable that it should be left to the legislature, and not to the courts to ‘stake out the exceptions to freedom of speech’ (in the words of Lord Denning). In the present case the court is asked to intervene to restrain the publicaton of material, the truth of which has not yet been disputed, in order to save from the distress that such publication is sure to cause, the children of the marriage who are all minors. This would represent a new departure in our law, for which, in my opinion, no precedent has been shown, and for which I can find no basis in the Irish Constitution, having regard, in particular, to the strongly-expressed guarantees in favour of freedom of expression in that document.”

In Kennedy v. Ireland [1987] I.R. 587 the plaintiffs were journalists, whose telephones had been tapped on foot of a warrant issued by the Minister for Justice. Conversations had been recorded and transcripts made without any justification. The Supreme Court upheld the Constitutional right to privacy in the following words.

“The dignity and freedom of an individual in a democratic society cannot be ensured if his communications of a private nature, be they written or telephonic, are deliberately, consciously and unjustifiably intruded upon and interfered with.”

However the Court made it clear that the right to privacy was not unqualified. Its exercise could be restricted by reference to the constitutional rights of others, or the requirements of the common good or of public order and morality. The 37

interception of communications - oral or written - is therefore not unconstitutional per se , and it is authorised by statute. 57

The right to marry and found a family

In Ryan v.Att.Gen. [1965] I.R. 294 Kenny J. suggested that the right to marry was one of the citizen's personal rights. This was explored further in the later case of Murry v. Att.Gen. [1985] I.R. 532 – the plaintiffs were a husband and wife who had been convicted of capital murder and sentenced to life imprisonment. While in person the couple were allowed to meet regularly, but these visits were strictly supervised and intimate marital relations were not permitted to them. The plaintiff's had no children but they wished to start a family, and by the time they were released it would be biologically impossible for them to do so. Consequently they claimed that they had a constutionally protected right to beget children, and that this right was being unconstitutionally infringed; and they sought declarations that they were entitled to be provided with facilities enabling them to exercise this right.

Costello J. held that the right to beget children was a personal right protected by Article 40.3.1º. The issue here was, therefore, whether the restriction on the right caused by the exercise of the State's power to imprison the plaintiff's was constitutionally permissible. The judge concluded that no claim by the plaintiffs to be allowed to leave prison on bail, from time to time, to exercise the right here in issue could be sustained, as it was incompatible with the constitutionally permitted restriction on their liberty. Judge Costello stated that a prisoner could exercise such rights as did not place unreasonable demands on the place where he was imprisoned. Observing that the right claimed by the plaintiffs must extend to all married prisoners, even those with children, the judge held that it would place unreasonable demands on the prison service to require prison authorities to make facilities available within the confines of the prison to enable all such persons the right to beget children. And if this was so, prisoners in that category, including the plaintiffs, could not validly complain that the exercise of their rights had been unconstitutionally restricted. On appeal the Supreme Court upheld this decision: [1991] I.L.R.M. 465. The right to beget children is thus not an absolute one, and the same must hold for the right to marry. The law may therefore place restrictions on the right to marry, as it does by specifying age limits and prohibiting marriage with certain relatives. But such restrictions must be reasonable. So, for example, a statute setting a minimum age for marriage higher than the voting age of 18 would be open to challenge on this basis.

The right to marry normally entails a right to the society of one’s spouse; but this, of course, is no more absolute than the former right. A person deprived of that society by state action – as where a husband or wife is imprisoned or, if in the Defence Forces, is sent to serve abroad – cannot claim that this is unconstitutional. Nor can an Irish citizen whose alien spouse is required to leave the State. 58

57 Postal Packets and Telecommunication Messages (Regulation) Act 1993, section 3. 58 See Pok Sun Shum v. Ireland [1986] I.L.R.M. 593 and Osheku v. Ireland [1987] I.L.R.M. 330. 38

The right to know the identity of one’s natural mother

The fecundity of Article 40.3 was demonstrated in the case of I.O’T.v.B. [1998] 2 I.R. 321, which featured a new candidate for recognitionn as an unenumerated right – the right to know the identity of one’s natural mother. The case had been brought in the by two women, born to unmarried mothers and subsequently adopted under the auspices of the adoption board. The two women now wished to know the identities of their natural mothers, and they sought orders directing the adoption society to reveal their names and addresses. The Supreme Court ruled that the Constitution did indeed gurantee the right to know the identity of one's natural mother. The Court took the view that it was a basic right flowing from the natural and special relationship which existed between a mother and her child. However, it was not an absolute or unqualified right; its exercise could be restricted by the constitutional right of others - such as that of privacy and confidentiality of the natural mothers. While the Court granted the existence of this right it felt that it was not possible to lay down all the critieria to be applied in balancing the respective rights of mother and child. All that could be done was to indicate some of the factors to be consider. Ultimately this was a task for the legislature.

The right to die a natural death

A person generally has the right to refuse medical treatment or surgery, however necessary this may be, even if this results in the death of that person. In Re a Ward of Court [1996] 2 I.R. 79 this right was extended to its logical conclusion, with the Supreme Court ruling that citizens generally have a right to die a natural death. That case involved a woman who had remained in a near-persisitent vegetative state for nearly 23 years. Her family applied to have the artifical means supporting her life removed. The Supreme Court agreed that a person has the right to refuse such medical treatment even if it resulted in the death of that individual. In the event that the individual in question was incapable of making this decision the court itself would decide. This does not, however, permit a person to actively take his own life or another’s life. The constitutional right is confined to death by natural means.

The right to fair procedures in decision-making

The common law concept of natural justic guaranteed a right to fairness of procedure in decision-making. At a minimum, this meant that a person affected by a decision had a right to a fair hearing by an unbiased body. Now that common law doctrine has been elevated to constitutional status. The true importance of constitutionalising the right to a fair hearing lies in emphasising the need for its recognition and application by the courts.

39

The right to fair procedures is, of course, no more absolute than any other constitutional right and may have to yield to opposing considerations. For instance it does not apply to emergency situations e.g. where swift action is necessary to protect the interests of the public.

In the case of O’Brien v. Bord na Móna [1983] I.R. 255 the plaintiff invoked the maxim nemo judex in causa sua in his challenge to the validity of part of the Turf Development Act 1946. This Act established the defendant board to develop the country’s peat resources and equipped it with extensive powers of compulsory purchase. The board sought to acquire bogland belonging to the plaintiff. He contended that the Act failed to honour the constitutional guarantee of fair procedures deriving from Article 40.3. It was, he said, defective in that:

(a) it failed to require that notice of intention to make a compulsory purchase order be given to a person affected; (b) it failed to provide for any inquiry or for an opportunity for representations or objections; (c) the absence of any procedure for confirmation or appeal made the board judge in its own cause.

Keane J. in the High Court rejected arguments (a) and (b). The 1946 Act attracted the presumption of constitutionality, and this required that the powers thereby conferred be exercised in accordance with fair procedures. The Court however did accept argument (c). The decisioin of the board could not be impartial or disinterested, for it necessarily had an interest in achieving the objectives for which it was created. Though the court emphasised that the constitutional guarantee of fair procedures was not absolute; it was qualified by the words "as far as practicable" and "as best it may" in Article 40.3. The Oireachtas should have hounoured the guarantee of fair procedures by an alternative form of procedure involving confirmation by another body.

On appeal the Supreme Court reveresed the decision of the High Court. It concluded that although Board na Móna was obliged to act judicially when making a compulsory purchase order, this did not mean that its function here could be classified as judicial. The court took the view that the order for compulsory purchase under the 1946 Act was essentially an administrative act. It could be reviewable by the courts should the board act “from an indirect or improper motive or without due fairness or procedure or without proper consideration for the rights of others” - [1983] I.R. 255 at 283. But the absence of a right of appeal or provision for external confirmation did not constitute a breach of the plaintiff’s constitutional rights. 59

The Supreme Court has gone on to clarify the test for bias as follows:

59 The board's decision was annulled by the Supreme Court on a different procedural ground - see [1983] I.R. 255 at 287-288. 40

“First, that there should be no actual bias, i.e. a subjective test. And secondly, that there should be no reasonable apprehension that there is bias, i.e. the objective test." 60

Here the plaintiffs were seeking a declaration that, following the Fourteenth Amendment of the Constitution Act 1992, they were entitled to provide information on abortion services lawfully available in other EC member states. In the High Court when the matter came on for hearing counsel for the plaintiffs made an application that the judge hearing the case, Carroll J., discharge herself as in her capacity as chairperson for the Second Commission on the Status of Women, she had made certain statements on its behalf inrelation to abortion and the amendment to the Constitution. When the judge refused to do so the Supreme Court subsequently decided that she had been incorrect in her interpretation of the law, and ought to have discharged herself from hearing the case. While there was no quesiton of personal interest i.e. subjective bias. The test here was objective - would a reasonable person fear that in respect of the issues involved he/she might not get an independent hearing? Applying this test the applicant had made out the case of reasonably apprehended bias in the circumstances i.e objective bias.

Abortion

Long before the enactment of the Constitution the law prohibited abortion, whether self-induced or performed by another, Offences against the Person Act 1861. The prohibtion, however, was not total, since the word “unlawfully” recurs throughout the section; and in the United Kingdom, where the same Act applied, medical opinion came to accept abortion as lawful in situations threatening the mother’s mental and physical health, as well as her life. Irish practice did not go so far for moral and religious reasons rather than on legal ones.

The Supreme Court’s recognition, in McGee v.Att.Gen. [1974] I.R. 284, of an unenumerated constitutional right of privacy led some to fear an Irish parallel to developments in the United States, where a similar right had successfully been invoked to invalidate statutes criminalising abortion: Roe v. Wade (1973) 41U.S. 113. Following a campaign to secure constitutional amendment to protect unborn 61 life this lead to the passing of the Eight Amendment of the Constitution Act 1983. A new Article 40.3.3° was thereby inserted, which provides as follows: “The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.”

60 Dublin Wellwoman Centre Ltd v. Ireland and Others [1995] 1 I.L.R.M 408 61 In M.R.v T.R. [2006] I.E.H.C. 359 the High Court ruled that embryos created and stored outside the womb do not attract the protection of the Eight Amendment. 41

This provision has given rise to a considerable amount of litigation, both within Ireland and in Europe.

The first case was Att.Gen. (S.P.U.C. (Ireland) Ltd.) v. Open Door Counselling Ltd. [1988] I.R. 593. The plaintiffs sought an injunction restraining the defendants from counselling or assisting pregnant women within the jurisdiction from obtaining an abortion or of obtaining advice with regard to procuring an a abortion. On appeal to the Supreme Court the defendants argued that included in the unenumerated constitutional rights was a right to receive and impart information; and that this included a right in pregant women to receive information about the availability of abortion outside the jurisdiction; and that the courts could not make an order obstructing the exercise of that right. The Supreme Court rejected this argument in the following terms:

“The performing of an abortion on a pregnant woman terminates the unborn life which she is carrying. Within the terms of Article 40, s.3, subs.3 it is a direct destruction of the constitutionally guaranteed right to life of that unborn child. It must follow from this that there could not be an implied and unenumerated constitutional right to information about the availability of a service of abortion outside the State which, if availed of, would have the direct consequence of destroying the expressly guaranteed constitutional right to life of the unborn... no right could constitutionally arise to obtain information and purpose of the obtaining of which was to defeat the constitutional right to life of the unborn child."

Subsequently the defendants claimed that their right under the European Convention of Human Rights had been infringed, and the European Court of Human Rights ruled in their favour. 62

In S.P.U.C. (Ireland) Ltd. v. Grogan (No.1) [1989] I.R. 753 the plaintiff organisation discovered that various student bodies proposed to publish, in the 1989/90 academic year, welfare guides containing information about abortion clinics in England, including addresses. It moved to restrain this by way of injunction on the grounds that the information supplied by the defendants was in breach of Article 40.3.3º. The Supreme Court ruled that the previous Open Door Counselling case clearly established that the activities of the defendants in the proceedings were unlawful. The mode of communication did not matter; the illegality lay in the fact that information on abortion was conveyed to pregnant women. The Open Door Counselling and Grogan cases indicate that, in the absence of a threat to the life of the mother, no other constitutional right could take precedence against that.

Att. Gen. v.X involved an application to prevent a 14 year old girl, pregnant as a result of unlawful carnal knowledge, from travelling to England for an abortion. There was evidence from an experience clinical psychologist of a real and substantial risk that the girl would take her own life. The High Court granted the

62 Open Door and Dublín Wellwoman v. Ireland (1992) 15 E.H.R.R. 244. 42

order sought, holding that the risk to the life of the girl was of a different order of magnitude that the certainty that the life of the unborn would be terminated if the order was not made. On appeal the Supreme Court reversed this decision, holding – by a majority – that there was a real and substantial threat to the life of the girl, and that in such circumstances the termination of the pregnancy was constitutionally permissable.

The X. case was the first in which the Supreme Court had to consider a conflict between the right to life of the foetus and that of the mother. The court concluded that Article 40.3.3° permitted abortion, within or without the jurisdiction, in situations where there was a real and substantial risk to the life of the mother which could be avoided only by the termination of her pregnancy. But a risk to mental or physical health will not suffice; the reference to the mother’s equal right to “life” in Article 40.3.3º is not, it seems, to be interpreted to cover these matters. Moreover, a majority of the court was clearly of the opinion (a) that absent a risk to the mother’s life, her constitutional right to travel abroad would be subordinate to the right to life of the unborn; (b) that in such situations the court would grant injunctions restraining a pregnant woman form travelling abroad to have an abortion.

The facts of the X. case indicate a less absolutist approach to Article 40.3.3.’s guarantee of unborn life than prior Supreme Court decisions. The Supreme Court has also subsequently indicated that a woman has a right to information to seek a lawful abortion. 63

Subsequent developments

In the aftermath of the X. case, and the decision of the European Court of Human Rights in the Open Door and Dublin Wellwoman case, the Government and Oireachtas resolved to put three separate and distinct constitutional amendments to the electorate. Of these the electorate accepted the second change proposed. In accordance with this the Thirteenth Amendment of the Constitution Act 1992 now provides that:

“This subsection shall not limit freedom to travel between the State and another state.” [Article 40.3.3°]

In A. and B.v. Eastern Health Board & Ors. [1998] 1 I.R. it was held that this amendment was negative rather than positive in its effect. It did not confer a right to travel, but simply precluded the grant of injunctions against travelling. 64 However the wording of the thirteenth amendment leaves open the possibility that rights arising from constitutional provisions other than Article 40.3.3° might be invoked to restrain a non-suicidal pregnant women from travelling outside the

63 See In re Article 26 and the Regulation of Information (Services outside the State for Termination of Pregnancies)Bill 1995 1.I.R.1. 64 This case involved a girl from a traveller family, pregnant as a result of an alleged rape, who was in local authority care. The girl's parents shought to prevent the Eastern Health Board from arranging for he to have an abortion abroad. However, there was evidence of a risk of suicide if the pregnancy was to continue. The judge concluded that the girl could lawfully have her pregnancy terminated in Ireland, and that it would consequently be lawful for her to go abroad for this purpose. 43

State to have an abortion. 65 It may be, therefore, that the parents of a pregnant minor, or the father of an unborn child, could assert constitutional rights which might prevail over those of the woman.

The electorate also accepted the third change proposed and this introduced the Fourteenth Amendment of the Constitution Act 1992 which states that:

“This subsection [Article 40.3.3º]shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another state.”

On the basis of this amendment the Oireachtas enacted the Regulation of Information (Services outside the State for Termination of Pregnancies) Bill 1995. This legislation closely regulates the provision of information about abortion services abroad.

Personal Liberty

Article 40.4 of the Constitution opens with a declaration as follows:

“1° No citizen shall be deprived of his personal liberty save in accordance with law.”

On its face this provision might seem to give the Oireachtas carte blanche to enact anything it wished, so that personal liberty would be at the mercy of a bare parliamentary majority. The courts have, however, read the Constitution as reinforcing the common law’s traditional presumption in favour of liberty. The constitutional emphasis on individual liberty is reflected in the fact that the common law machinery for challenging the legality of a detention through habeas corpus is set forth in Article 40.4.2° - 5° making the procedure part of the Constitution. So when a complaint is lodged as to the legality of an individual's detention alleging unlawful detention there must be an inquiry forthwith into the legality of the detention and the High Court must, if satisfied that the detention is not lawful, order the release of the detainee.

65 In D.vHealth Service Executive (HSE) unreported, McKechnie J., May 9, 2007 the facts also involved a child in the care of the State. The girl in this case wished to travel to the UK for an abortion, but was prevented from so doing by the HSE. By contrast with earlier cases, there was no risk to the life of the mother (and no suggestion of rape). The child in question suffered from anencephaly and could not have survived for more than a few days outside the womb. The High Court ruled that the HSE had no authority to prevent the girl from travelling to the UK for an abortion but there was no right to an abortion in Ireland even thought the child’s prospects for life were limited. 44

Inviolability of the dwelling

Article 40.5 of the Constitution provides:

“The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law.”

In the light of this in the absence of a warrant, or specific statutory authority, Garda officers or other State agents may enter a dwelling only be invitation or permission. This invitation or permission may be express, or it may be inferred from circumstances. But this will depend on the circumstances of the case. If the Police entry is not authorised by law, and is thus a breach of Article 40.5, an arrested in such circumstances will be unlawful.

The forcible entry of a dwelling by agents of the State will not violate Article 40.5 where the motive behind it is to protect the constitutional rights of persons therein. The Supreme Court so decided in the case of the D.P.P. v Delaney [1997] 3 I.R. 453. On June 6, 1993, at approximately 3 a.m., a force of ten Gardaí went to a street in Dublin where a disturbance was in progress. A crowd in the street, hostile to the persons in a flat, was threatening to petrol bomb the flat. Through the window the police saw that the defendants had barricaded themselves inside the flat and were armed with weapons. The defendants refused the police request that they leave under police escort. The Garda sergeant in the operation believed there were children in the flat and entered it accordingly under a power he believed he had at common law. The defendants were arrested and subsequently charged with various offences. Four children were subsequently found in the flat.

In the it was argued on behalf of the defendants that the entry into the flat was illegal and in breach of the second defendant’s constitutional rights, and that accordingly the arrests in the dwelling were unlawful. The High Court decided that the Gardaí did have such power and this was affirmed by the Supreme Court. The court concluded that there was a hierarchy of constitutional rights, and on occasion one such right might have to yield to another. This was the case here – the safeguarding of life and limb must take priority over the inviolability of the dwelling, especially when it was under attack in any event.

45

TRIAL IN DUE COURSE OF LAW

Article 38.1 of Bunreacht na hÉireann states that:

“no person shall be tried on any criminal charge save in due course of law.”

The Irish courts have interpreted the concluding words as broadly analogous to the due process guarantees of the United States Constitution and requiring “fundamental fairness in criminal trials.” The basis of this doctrine was outline by O’Higgins C.J. in State (Healy) v. Donoghue [1976] I. R. 325 at 348-349.

“Being so considered, it is clear that the words ‘due course of law’ in Article 38 make it mandatory that every criminal trial shall be conducted in accordance with concepts of justice, that the procedures applied shall be fair, and that the person accused will be afforded every opportunity to defend himself. If this were not so, the dignity of the individual would be ignored and the State would have failed to vindicate his personal rights.”

The United States Supreme Court has held that the Fourteenth Amendment on due process guarantees a defendant against conviction under vague and indefinite laws; and the rights to a speedy trial, to legal representation, to exclude illegaly obtained evidence and to be free from compelled self-incrimination and double jeopardy. The Irish courts have subsumed some - but not all - of these rights under the "due course of law" heading. They have also treated it as a general overall criterion of fairness.

The presumption of innocence

At common law an individual was presumed innocent until found guilty and as a consequence the prosecution had to prove that person’s guilt beyond a reasonable doubt. This principle has found expressoin in international instruments and constitutional documents, and the United States Supreme Court has held it implicit in the Fourteenth Amendment’s due process guarantee. Though the presumption has always been part of Irish law and the State is under an interational obligations 66 to respect it, it was not until quite recently that it clearly achieved constitutional status. In O’Leary v. Att. Gen. [1995] 1 I.R. 254 the Supreme Court stated that:

“…..the presumption of innocence in a criminal trial is implicit in the requirement of Article 38,s.1 of the Constitution that no person shall be tried on any criminal charge save in due course of law.”

However not every provision shifting the burden of proof on to the accused is invalid. If for instance the effect of a statute was that provided certain facts were proved a court must convict an accused should he/she fail to supply exculpatory evidence, the Constitution might be infringed. But a provision requiring or permitting an inference to

66 By virtue of Art. 6(2) of the European Convention on Human Rights. 46 be drawn once certain facts are established will not necessarily fail the test of constitutionality.

In the O'Leary case the plaintiff had been convicted in the of possession of incriminating documents, contrary to section 12 of the Offences Against the State Act 1939. The prosecution supplied evidence that the plaintiff had been found in possession of 37 copies of a poster showing a man in a paramilitary uniform brandishing a rifle, and displaying the words "IRA calls the shots." Section 24 of the Act provides that:

“On the trial of a person charged with the offence of being a member of an unlawful organisation, proof to the satisfaction of the court that an incriminating document relating to the said organisation was found on such person or in his possession or on lands or in premises owned or occupied by him or under his control shall, without more, be evidence until the contrary is proved that such person was a member of the said organisation at the time alleged in the said charge.”

The plaintiff claimed that section 24 was an unconstitutional infringement of the presumption of innocence. Counsel for the plaintiff argued that the words “… until the contrary is proved…..” in section 24 imposed the burden on the accused of proving that he was not a member of an unlawful organisation. This point was not accepted by the Supreme Court. Proof of possession of incriminating documents was to amount to evidence only; it was not to be taken as proof of an offence, and the probative value of the possession of such a document might be shaken in many ways – e.g. by cross examination. Consequently the plaintiff had failed to establish that section 24 was repugnant to the Constitution.

Vague and indefinite laws

The Supreme Court’s decision in King v. Att.Gen. [1981] I.R. 233 establishes that statutory provisions creating criminal offences in vague and indefinite terms are invalid. The case dealt with certain parts of section 4 of the Vagrancy Act 1824 – which created the offence of “loitering with intent”- which were struck down as being unconstitutional. The impugned section applied to every “suspected person or reputed thief” proved to have been frequenting, or loitering in, various public places “with intent to commit a felony." But to prove that intent no overt act was necessary; instead that intent could be inferred from the circumstances and the accused’s previous convictions. The Supreme Court held that the offence, both in its essential ingredients and the mode of proof of its commission, violated Article 38.1 and Article 40.4.1° - the latter because the guarantee that no citizen should be deprived of personal liberty save in accordance with law meant “without stooping to methods which ignore the fundamental norms of the legal order postulated by the Constitution.” The court also was of the view that important phrases in the section such as “suspected person” and “reputed thief” were so uncertain that they could not form the foundation for a criminal offence. In the light of Article 38.1 if the ingredients of an offence were vague and uncertain the trial of an alleged offence based on those ingredients was not in due course of law.

47

The right to trial with reasonable expedition

In State (O’Connell) v. Judge Fawsitt [1986] I.L.R.M. 639 the High Court and Supreme Court successively held that the Constitution gurantees that a trial will occur with reasonable expedition. In that case the prosecutor had been charged in Cork with certain offences of January 25, 1981. Following a series of remands on bail he was returned for trial on July 8, 1982, but no trial was fixed until July 12, 1984. By then the prosecutor was working in England. He returned for each session but his case was not taken and a series of adjournments - all resisted by him - followed. (The delays were due to the fact that only one judge was availabe to hear both civil an– criminal business in Cork city and county.) The delays continued throughout 1984 and into 1985. The prosecutor was having to pay a week’s wages to pay for the return trips and putting his job in danger. On February 5, 1985 the case was called but two defence witnesses, previously available, were not available then. The case was further adjourned unto February 7, when one defence witness became available and at the prosecutor’s request the case was then adjourned until April 30. The prosecutor applied to the High Court for an order prohibiting any further proceedings but this was rejected. On appeal to the Supreme Court the Chief Justice ruled that if a person’s trial had been so excessively delayed so as to prejudice his chance of a fair trial the appropriate remedy for defending and protecting his constitutional rights was an order of prohibition. The court noted that in the case before it a material witness for the defence was not, and could not now be made, available; thus the delay was both excessive and prejudicial and the prosecutor was entitled to an order of prohibition.

What is reasonable expedition must depend on the circumstances. A balance must be struck between the fundamental right to a fair trial within a reasonable time and the public interest in the attainment of justice in the context of the prevailing system of legal administration. The factors to be assessed in striking the balance were:

(a) the length of the delay; (b) the prosecution’s reasons justifying the delay; (c) the responsibility of the defendant for asserting his rights; (d) prejudice to the defendant.

Exclusion of unconstitutionally obtained evidence

Several decisions of the Court of Criminal Appeal and the Supreme Court have established the principle that evidence obtained by a deliberate and conscious violation of constitutional rights by the State or its agents must be excluded in the absence of “extraordinary excusing circumstances.” No question of judicial discretion arises; the court has a duty to exclude evidence thus obtained, and the accused may therefore be said to have a correlative constitutional right to have it excluded.

It is also clear from the case law that for a violation of constitutional rights to be “conscious and deliberate”, it is not necessary that those who perpetrated it should have acted wilfully or with mala fide . Thus in the People (D.P.P.) v. Healy [1990] 2 I.R. 73 at 88-89 McCarthy J. stated:

48

“…the only test is whether or not the act or omission that constituted such violation was itself a conscious and deliberate act; the fact that the violator did not realise he was in breach or a constitutional right is irrevelant.”

In strictly limited circumstances the breach of constitutional rights may be excused and the evidence admitted. This could occur in the event of and inadvertent mistake, for example getting the address on a search warrant wrong 67 . The two other excusable categories are (a) evidence obtained by a search incidental to and contemporaneous with a lawful arrest though made without a warrant: (b) “extraordinary excusing circumstances” – such as the imminent destruction of vital evidence or imperil the victim.

What amounted to “extraordinary excusing circumstances” was considered by the Supreme Court in the case of People (D.P.P.) v. Shaw [1981] I.R. 1. There the accused was arrested with another person late on September 26, 1976. About one hour subsequently he was informed of the grounds of arrest – possession of a stolen car – and it was accepted that he was then in lawful custody until 10.30 a.m. on September 27, when the District Court sat. But the accused was not brought before the court; his first court appearance was on the evening of September 29. Prima facie therefore his detention was unlawful between 10.30 a.m. on September 27 and the evening of September 29. The reason the Gardaí continued to detain the appellant was because they suspected his involvement of the abduction and possible murder of two young women. The Gardaí wished to question him about this and they believed that one of the women might still be alive and could be found. At around 6.50 p.m. on the evening of September 28 the accused completed a statement admitting to the rape and murder of one of the young women, Mary. The appellant volunteered to accompany the Gardaí to locations (“the Connemara episode”) where the body had been disposed of. The appellant was later convicted of rape and murder. On appeal it was argued that neither of his statements of September 28 nor the evidence obtained during the Connemara episode should have been admitted because the appellant was at both times in unlawful custody, and there had been a deliberate and conscious breach of this contitutional right to liberty.

The Supreme Court unanimously held that the challenged evidence was admissible, but different reasons were given for this conclusion. Some judges taking the view that the appellant’s constitutional right to liberty had to be subordinated to the obligation to vindicate Mary’s constitutional right to life. This rendered the appellant’s continued detention lawful. However Griffin J in a subsequent passage stated that the police concern for Mary’s right to life was “an extraordinary excuising circumstance for keeping the appellant in custody for what would otherwise have been an impermissibly long period.” But if the detention was lawful, the question of extraordinary excusing circumstances can hardly arise.

The analysis of Walsh J. was different again. He did not regard the Garda concern for Mary’s right to life as justifying the illegal detention. Rather, it furnished extraordinary excusing circumstances for admitting the appellant’s statements.

The conflicts between these approaches still awaits resolution.

67 e.g. as occured in the O'Brien case [1965] I.R. 142. 49

Illegally obtained evidence

In contrast to evidence obtained in breach of constitutional rights which is automatically inadmissible - in the absence of inadvertence or extraordinary excusing circumstances - evidence obtain in breach of legal rights is treated differently. In D.P.P. v.McMahon and Ors [1986] I.L.R.M. 393 at 399 the Supreme Court unanimously held that:

“…evidence obtained by illegal means, not involving conscious and deliberate violation of constitutional rights, shall be admissible unless the court in its discretion excludes it.”

Therefore the presiding judge must balance the public interest in the detection and punishment of crime against the public interest in the repression of illegal investigative methods, and the balance struck must depend on a consideration of all the circumstances of a given case.

The privilege against self-incrimination

The United States Constitution, in its Fifth Amendment, contains a specific privilege against self-incrimination, which has been held binding on the states via the due process clause of the Fourteenth Amendment. 68 In this case Brennan J, referred to the privilege as “the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty.” Thus a statute compelling someone to give answers to police questions would be unconstitutional unless it gave immunity from prosecution to that person. 69

Like wise the Irish Supreme Court in People (D.P.P.)v.Finnerty held that the right of suspects in custody to remain silent, recognised by the common law, was also a constitutional right. While it might validly be modified by legislation, such modification must be in express terms and could not be implied. So where a person detained under the Criminal Justice Act 1984 declined to answer Garda questions, a jury must not be invited to draw inferences adverse to him/her from that silence.

However, this constitutionally protected right to silence is not absolute; it is capable of being modified by legislation. This has been established by the decision of the Supreme Court in Heaney v. Ireland [1996] 1 I.R. 580 where the question before the court was the correctness of the High Court's ruling that section 52 of the Offences Against the State Act 1939 was constitutionally valid. Section 52 obliges persons detained in custody under the 1939 Act to give, under pain of penal sanctions, an account of their movements and actions during a specific period. The Supreme Court agreed with the High Court though for different reasons relying in its judgment on the proposition that the right to silence was a corollary of the freedom of experession guaranteed by Article 40.6.1°i. However, the right to freedom of expression was not absolute - the Constitution itself states that it is subject to public order and morality - and the same must hold for the correlavtive right to silence.

68 Malloy v. Hogan (1964) 378 U.S. 1. 69 The privilege does not rule out compulsory taking of blood samples from a suspected drunken driver California v. Byers (1971) 402 U.S. 424. 50

O'Flaherty J., at 590 stated:

“….the State is entitled to encroach on the right of the citizen to remain silent in pursuit of its entitlement to maintain public peace and order. ….The Court holds that the prima facie entitlement of citizens to take such a stand must yield to the right of the State to protect itself. A fortiori , the entitlement of those with something relevant to disclose concerning the commission of a crime to remain mute must be regarded as of a lesser order. The Court concludes that there is a proper in the provison between any infringement of the citizen’s rights with the entitlement of the State to protect itself.”

Thus legislation may validly require a person to answer questions, even where the answers tend to incriminate him or her. The question then arises as to whether it goes further and could make those answers admissible in criminal proceedings against that individual. In the case of In re National Irish Bank Ltd. [1999] 1 I.L.R.M. 321 70 the Supreme Court indicated that such legislation was not unconstitutional per se , but that it would be for the trial judge to decide whether such evidence should be excluded in the interests of fairness and justice.

Freedom of Expression and Assembly

Article 40.6.1° i of the Constitution provides as follows:

“ The State guarantees liberty for the exercise of the following rights, subject to public order and morality:

i. The right of the citizens to express freely their convictions and opinions.

The education of public opinion being, however, a matter of such grave import to the common good, the State shall endeavour to ensure that organs of public opinion, such as the radio, the press, the cinema, while preserving their rightful liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or the authority of the State.

The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law.”

70 The case arose out of a statutory inspection of the bank under the Companies Act 1990. Section 10 of the Act obliged officers and servants of the bank, on pain of criminal penalties, to answer questions posed to the inspectors. And section 18 provided that an answer given by a person to a question put to him or her under section 10 could be used in evidence against the person. In the circumstances the bank's officers and agents invoked the privilege against self-incrimination to refuse to answer questions. The Supreme Court rejected this stating that the right to silence might have to yield to the exigencies of the common good, provided that the means used to curtail the right were proportionate to the public objective to be achieved. 51

It is evident from this that while speech is comparatively free in Ireland this right of expression is a much qualified one. Not only is the citizen’s right subject to legislative restriction in the name of public order or morality, but the “organs of public opinion” may be subject to control on the same grounds, as well as of “the authority of the State.”

The freedom of expression guarantee has not given rise to so much litigation in the courts as for instance that generated by the First Amendment in the United States. But there is nevertheless consdirable respect for freedom of expression and the Constitution explicitly protects the right of the media to criticise government policy.

In Ireland both common and statute law impose restrictions on freedom of expression. Some of these are traditional in the common law world and are imposed in the interests of the administration of justice or of protecting individual reputations. Others are clearly referable to public morality, e.g. controls on obscene material, or of the authority of the State, e.g. the Broadcasting Authority Act 1960, section 31.

Contempt of court

It is contempt of court – and restrainable by injuction, or punishable by fine and/or imprisonment – to make comments on, or statements about, pending criminal proceedings calculated or intended to interfere with the pending decision.

On of the most notorious murder cases in Ireland in the early 1980s involved an application by the accused, who was facing trial on murder charges, claiming that six contempt offences had been committed by the press and others. The accused had been arrested in the flat of the then Attorney General, who shortly afterwards went abroad for a prearranged holiday. Because of intense media pressure surrounding the case the Attorney General subsequently returned to Dublin and offered his resignation which was accepted. The then Taoiseach held a press conference in which he praised the Gardaí for their thorough investigation and said they had found “the right man”. This statement the applicatn claimed was contempt. Refusing the application, Costello J. noted that the Government Information Service had asked journalists not to report his remarks, and that the remark was a slip of the tongue. He continued:

“It is true that the test which the court is to apply in an application of this sort is whether the words complained of are calculated to prejudice the due course of justice and that the test is an objective test. But if, as here, it is established that the words were spoken inadvertently in the course of a long press conference in which it was necessary to answer many quesitons, some of which touched on a pending criminal trial, and if it is shown, as it is shown here, that immediate steps were taken to avoid any possible prejudice …and …that any possible prejudice can be obviated by the direction which the trial judge can give to the jury, then is seems to me highly unlikely that the court would exercise its extraordinary punitivie powers and punish such a person for contempt in the circumstances which I have outlined."

Equally publication, or broadcasting, of material calculated or intended to prejudice the fair trial of a civil action constitutes contempt, and is punishable or restrainable by injuction. In this regard it had been held that a song or ballad could constitute contempt just as much as a leading article in a newspaper. In State (Butterly) v. Moore and others 52

(, August 10, 1985) the complaint was about a widely-distributed record featuring a song about the Stardust fire tradgedy of February 1981. It was claimed by the applicants (the owners of the premises) that some of the lyrics prejudiced the fair trial of personal injury actions, in which they were defendants. The court agreed that statements in the lyrics went further than anything said by other commentators, and consituted a real and serious threat to a fair trial of the civil proceedings.

Freedom of the press has been emphasised in cases such as Irish Times v Ireland [1998] 1 I.R. 359. where the Supreme Court ruled that the facts of the case did not justify withdrawal of the media's right to cover and report the trial. Likewise in Foley v Sunday Newspapers Ltd. [2005] 1 I.R. 89 Kelly J. endorsed the view that a free press “is an important right and one which the courts must be extremely circumspect about curtailing”.

Restrictions on Broadcasting

Section 10(3) of the Radio and Television Act 1988 provides as follows:

“No advertisement shall be broadcast which is directed towards any religious or political end or which has any relation to an industrial dispute.”

This provision is enforced by the Independent Radio and Television Commission, established under the 1988 Act, which can prevent the commercial radio and television stations from transmitting material in breach of section 10(3). These restrictions find their motivation and justification in considerations of public order and equality.

The issue of religious advertising arose in the case of Murphy v. Independent Radio and Television Commission [1998] 2 I.L.R.M. 360. The facts of the case were that the plaintiff wished to broadcast an advertisement on an Irish commercial ratio station. The station's owners had no objection to this, but they were informed by the defendant commission that, under section 10(3), they could not lawfully do so. The proposed advertisement read as follows:

“What think ye of Christ? Would you, like Peter, boldy say he is the son of the living God, have you ever exposed yourself to the historical fact about Christ? The Irish Faith Centre are presenting for Easter Week an hour long video by Dr Gene Scott, PhD on the evidence of the resurrection from Monday, 10th to Saturday, 15th April every night at 8.30 and Easter Sunday at 11.30 a.m. and also live by satellite at 7.30 p.m., The Irish Faith Centre, 360A North Circular Road, Phibsboro."

The plaintiff argued that section 10(3) was repugnant to the Constitution. The Supreme Court dismissed the appeal stating that section 10(3) did not contravene Article 44.2.3° . While section 10(3)'s ban on religious advertising was a restriction, however slight, on the freedom of the citizen to profess, express or practice his/her religion. It was also a restriction on freedom of expression. Both freedoms, were, however, subject to limitation in the interests of the common good. The court’s conclusions were as follows ([1998] 2 I.L.R.M. 360 at 374):

53

“It therefore appears to the court that the ban on religious advertising contained in section 10(3) of the 1988 Act is rationally connected to the objective of the legislation and is not arbitrary, unfair or based on irrational considerations. It does appear to impair the various constitutional rights referred to as little as possible and it does appear that is effects on those rights are proportional to the objective of the legislation."

The right of free expression is not, however, confined to the media, but extends to every citizen. In March 2007 the High Court DeValera J struck down as unconstitutional a provision of the Vagrancy Act 1847, which penalised the act of begging in public. The judge agreed that the measure in question disproportionally interfered with the accused’s right to free expression and his right to communicate.

In Holland v Governor of Portlaoise Prison [2004] 1 I.R. 573 the High Court declared invalid a ruling of the prison governor refusing permission to a prisoner seeking approval for visits by members of the media. The prisoner was attempting to gain public support for his claim of wrongful conviction. The governor had imposed a blanket ban on contact between prisoners and the media. While the court acknowledged that limits to the freedom of speech existed this was outweighed by the prisoner’s right to clear is name and overturn a conviction he alleged was a miscarriage of justice.

Public morals

The fianl paragraph of Article 40.6.1°.i states that the:

“publication or utterance of …indecent matter is an offence which shall be punishable in accordance with law.”

At common law the publication of obsecene material was an indictable offence. The Irish law is now governed by the Censorship of Publications Act 1946 and 1967 and unlike wartime censorship of newspapers it is not a system of prior examination; rather, it takes effect only following purblication.

Section 1 of the 1946 Act defines “Indecent” as including “suggestive of, or inciting to , sexual immorality or unnatural vice or likely in any other similar way to corrupt or deprave.” The word “obscene” is not defined in the legislation, but at common law the test of obscenity was "whether the tendancy of the matter charged as obscene was to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall". So it would appear that there is a certain degree of overlap between the words "indecent" and "obscene" as defined.

In Irish Family Planning Association Ltd. v.Ryan [1979] I.R. 295 Kenny J. said at 319:

“The words ‘indecent or obscene’ in the Act of 1946 mean that the book is, in its general tendency, indecent or obsecene. They do not mean that there are indecent or obscene passages in the book: if they did, a prohibition order could be made in respect of Shakespeare’s plays for they (e.g. 'Timon of Athens’) contain indecent or obscene passages. But this is absurd and leads me to the conviction that 'indecent or obsecene' in the Act of 1946 means 'in its general tendency indecent or obscene.’ " 54

The actions of the Censorship Pubications Board in applying its notions of what is ‘indencent and obscene’ have caused much controversy as some of the works banned were of unquestionable literary merit e.g. Kingsley Amis’ Lucky Jim ; Aldous Huxley’s The Devils of Loudun and Ernest Hemingway’s Fiesta . Though nowadays, the board makes very little impact on public consciousness.

Censorhip of films is regulated by the Censorship of Films Acts 1923-1970. This body of legislation creates the office of the Official Censor and that it is an offence to show a film in public unless the Official Censor has certified that it is fit for public exhibition. On the whole censorhip of films has never generated the same controversy as censorship of books. At least one film – the Monty Python Life of Brian – was refused a certificate as blasphemous, but apart form this instance the offence of blasphemy has made little impact on the Irish legal scene.

Bibliography

Bunreacht na hÉireann 1937 Constitutional Law in Ireland James Casey Round Hall Sweet & Maxwell (2000) Constitutional Law Fergus Ryan Round Hall Nutshells (2008)