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Topic 13- The Right to Earn a Livelihood (Not a right to a particular job,…
Topic 13- The Right to Earn a Livelihood
Unenumerated Right
Article 45.2
The State shall, in particular, direct its policy towards securing
i That the citizens (
all of whom, men and woman equally, have the right to an adequate means of livelihood)
may through their occupations find the means of making reasonable provision for their domestic needs.
Murtagh Properties v Cleary:
Kenny J recognsied right to earn livelihood as an unenumerated right
Regard to A45.2
Facts: P employed female bar staff
D trade union who objected to employment of women, picketed property
Issue: P sought an injunction to remove them
Held: men and women have
equal right to earn a livelihood
Picketing infringed that right
Operates horizontally- can apply against a private, non-state entity
Not a right to a particular job
Best understood = negative right not to be stopped from wokring
General ramifications for scope of right
In absence of this clarification, right would sail dangerously close to becoming justiciable socio-economic right that could, bankrupt state
AG v Paperlink:
Respondent operated courier service in breach of An Post's statutory monopoly
Held; State monopoly did not breach right o earn a livelihood
Held: Not a right to a partiuclar job
state monopoly was ok: failed to disharge burden saying it was unconstitutional; inefficiencies of AN Post's operation were a matter for the legislature
Freedom to exercise this constitutional right is not an absolute one, however, and it may be subject to legitimate legal restraints
Casey v Minister for Arts
HELD: SC: legislative limitation on the right to land boats at the popular destination of Skellig Michael was constitutional
Although certain ferry-boat operators now unable to land on island, Court not convinced livelihood taken away AS NO INHERENT RIGHT TO LAND ON THE ISLAND
Greally v Minister for Education (No 2)
Facts: Catholic schools required prior teaching experience in Catholic schools
Issue: Argued breach right to earn livelihood
Held: Not breached as only applied to Catholic schools,
no right to receive employment from a particular employer
White v The Bar Council
Facts: Applicant was a retired judge, wanted to resue practice at Bar
Minister refused to put him on legal aid panel
Bar Council also refused him membership
Held: RE BAR COUNCIL- HC- Dimsised case against Bar Council
noted Bar was effectively a 'private club'
Membership thereof not required for legal aid panel
Breach right to freedom of association of existing members to direct that the applicant be admitted as member
Held: RE MINISTER: Re suggestion that he could work elsewhere= a 'theoretical possibility but a practical nonsense'
Situation could be different for a younger lawyer
No rule of law prohibted a judge from returning to practice despite a 'conventional understanding' that this had been the position
MINISTER APPEALED: Disagreed with HC- didnt really say why- 'having regard to evidence adduced as to other sources of paid work for persons who previously held judicial office'
Regard to other employment opportunities available to retired judges: whenever judge retires, idea there is tribunals etc therefore idea nothing else as suggested in HC wasn't true
No right to a parituclar joh
Right subject to Regulation
State is entitled to regulate particular industries and activities
Cafolla v O'Malley
:
Facs: Argued the legislative limit on stakes and prizes in slot machines was unconstitutional
This was because cost of living had increased without any corresponding change in stakes limits
Held; Court confirmed right to earn livelihood= personal right under A40.3
BUT that the
common good required regulation of gambling
Court noted that such regulation was a matter for the legislature
Noted P's business still profitable, but same conclusion would have been reached even if this not the cse
Hand v Dublin Corporation:
P x2 convicted of unlawful street trading and therefore prohibited from seeking a street trading licesce for a number of years
Issue: argued this breached right to earn a livelihood
Held: Rejected argument on basis that hte Oireachtas entitled to regulate in teh common good
Muldoon v Minister for the Environment:
: De-regulation of taxi industry in 2000
Prior to this, in order to operate a taxi one had to have a license
Upon de-regulation these licences became valueless overnight whereas previously they could have been worth up to 100,000
Held: Despite massive impact on taxi drivers- regulation= permissible in the public interest
Right to earn livelihood not breached
Disproportionate Interference
Cox v Ireland
Applicant challenged 7 year ban from wroking in public service if convicted by Special Criminal Court
As result of ban unable to obtain work as primary school teacher
Argued= disproportionate interference w right to earn livelihood
Hed: Court agreed
nothing length of ban and lack of other employment options for a primary school teacher
Re Article 26 and the Employment Equality Bill 1996
:
Facts: Bill provided that the employer should bear the cost of adapting a premises to accomodate disabled employees
Held: This was unconstitutional
Noted aim legitimate
but it went too far as it failed to provide an exemption for small employees for whom cost of adapting premises would be prohibitive
H(N) v MJE: Burmese national arrived in 2008 and by 2013 refugee status had not been determined
Living in direct provision
Issue: Received a job offer and sought temp permission to reside- Minister refused (Felt bound by s9(4) of the Refugee Act)
Challenged constitutionality of that section
HELD:
On issue of non-ciizen's rights- not always same as citizens, status in state is a relevant consideration, no right to earn a livelihood
Everyone would have right to fair procedures
: Completely disproportionate interference with right to earn livelihood, breach of right to dignity and right to earn livelihood
Problem here was 5 year period and total ban
might be different if 6 months- good public policy in determining status
GS v Commissioner of An Garada Siochana:
Applicant started psychiatric nursing in TCD
Issue: Practical placement required Garda Vetting
Vetting disclosed one previous conviction and 2 charges that were struck out
Held: Disproportionate breach of right to earn livelihood, private life and fair procedures
Blanket disclosure of minor convictions and strike outs had to be placed in proper context
Should have been told in advance of disclosure and allowed to make submissions
Failed to articulate any reasons for disclosing strike outs
Horizontal Effect
Operates against private bodies as well as the state
Lovett v Grogan
P operated a licsenced coach service from Dub to Clare
Respondent operated similar service but was unlicensed
P obtained injunction from HC restraining the respondent from operating its unlicensed business on basis it was in breach of P's right to warn livelihood
SC: agreed- noted respondents' illegal act breach P's rights