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principles of constitutional rights - Coggle Diagram
principles of constitutional rights
unenumerated rights
article 40.3
can have direct in unenumerated rights
Ryan v AG
rights in constitution not an exhaustive list of rights
sources
derived rights
Friends of Irish Environment v An Bord Pleanala
indicated preference such rights be referred to as unenumerated rights
Ryan v AG
concerned about fluoride in water - court held there was a right to bodily integrity flowed from
christian and democratic nature of the state
- words 'in particular used in the constitution indicated rights not exhaustive
chiristian and democratic nature of state basis for other rights
right to trave -
State (M) v AG
right to privacy - Kennedy v Ireland
human personality
McGee v AG
right to personal privacy - right inherent in citizens as aspect of human personality
Oran Doyle
finds this concept very vague
corollary of other express rights
has constitutional foundation
McAuley
right of access to courts derives from justice administered in courts
Oran Doyle
has a clear foundation in the Constitution
article 45
international agreements
YY v Minister for Justice
international law may be source of identifying new rights
McGee
natural law
criticism
subjective and too much power to judges
expanding rights beyond what's expressly provided for
TD v Minister for education
sceptic about Ryan, restraint required in recognising new rights - court maybe not best place to identify new rights
Oran Doyle
was beneficial at the time, now most of the key unenumerated rights identified could be gracefully abandoned
Friends of Irish Environemnt v An Bord Pleanala
sceptic over term unenumerated rights should refer to them as
derived rights
-
proportionality
rights aren't unlimited
can be subject to public order and morality or social justce
Murray v Ireland
husband and wife serving life sentence, claimed interfered with right to start a family - held state can restrict rights in certain circumstances - rights not absolute
Cox
challenge ban for 7 years from teaching if convicted by special criminal court- held breached right to earn livelihood - needs to be proportional
two tests
Tuohy v Courtney
challenged limitation period on negligence - test - is balance in legislation
so contrary to reason as to constitute an unjust attack
on persons constitutional rights
very deferential test - stands unless goes against reason
deferential example
Re Article 26 and Illegal Immigrants Bill
- 14 day limit for initiating judicial review - constitutional - legitimate aim of finalising adminstrative decisions - proportional - legislutre not obligated to pick longest limitation period - don't have to pick least restrictive option
Heaney v Ireland
challenge to act, 6 months for failure to account for movements - there was an appropriate balance between right to silence and getting info on criminal activity
3 stage test
proportionate to objective
impairs rights as little as possible
restriction rationally connected to objective
objective sufficiently important to justify overriding rights
less deferential example
Redmond v Minister for Environment
challenge requirement to provide a deposit to stand for election - disproportionate interference - could have gone with a different restriction
Damache v DPP
endorses
Heaney
administrative law
Meadows v Minister for Justice
applies, for a decision to be reasonable needs to be rational, not unfair, arbitary or based on irrational considers, effect on rights should be proportionate
O'Doherty and Waters
- court in clear judgment - proportionality not actually used as a term in the constitution- more a tool to be used in interpreting - look at what text says- look at particular right and text around it -
proportionality useful tool b
ut not a test by itself - anytime use it take into account what the text says
a number of the rights recognised
right to travel
Ryan
free movement within the state
State (M) v Minsiter
legislation struck down, prevented person from obtaining passport - unconstitutional right to travel outside the state
Lennon v Ganly
attempt to block Irish rugby team travelling to South Africa breached right to travel
A & B v Eastern Health Board
no right to travel for abortion, state no right to prevent person traveling
right to consientus objection
M(a) v Refugee Appeals Tribunal
didn't want to go back to Israel due to compulsory military service, court - didn't quash decision as have right to consientus object in Israel - obiter - recognised unenumerated right in Ireland
right to effective remedy
IS v Minister for Justice
found right by combining sections of constitution
no right to healthy environment
vague right, not breached on facts in
Merriman v Fingal
Friends of Irish Environment v An Bord Pleanala
impermissibly vague, environmental issues could be argued under right to life or bodily integrity
3rd level education
Carter v Minister for education
no right in Ireland
right to have ones identity recognised by the state
Habte
could have birth cert changed if wrongly recorded date of birth
balancing rights
AG v X
right to life took precedence over right to travel if in conflict
Shaw
citizens
NVH
citizens and non-citizens likely can be treated differently if for legitimate reason
damages for breach of constitutional rights
if rights breached normally right to sue person in tort
Educational Co of Ireland v Fitzpatrick
enforceable against state and private companies
Meskell v CIE
fired for refusing to join trade union - held breached right to freedom of association - if suffer damage due to breach of constitutional right entitled to seek redress against person who infringed that right
Blehein v Minister for Health and Children
s260 Mental Health act unconstiutional, - not entitled to damages declaration sufficient - generally tort is the answer to civil wrongs recognised some exceptional cases damages possible - in this case striking down act sufficient
Kennedy v Ireland
damages for invasion of privacy
Kearney
damages for prisoners whose letters were witheld
MC v Clinical Director of Mental Hospital
found not guilty by reason of insanity - point moot - damages only possible to be awarded for breach of constitutional rights where no remedy in constiutional law