Directive Principles of Social Policy
The so-called directive principles of public policy are not recognised as a basis for holding legislation invalid. However, account may be taken of them in interpreting the Constitution.
Article 45.2 provides:
the State, in particular, shall direct its policy towards securing:
that, especially the operation of free competition shall not be allowed to develop so as to result in the concentration of the ownership or control of essential commodities in a few individuals to the common detriment;
that in what pertains to the control of credit, the constant and predominant aim shall be the welfare of the people as a whole;
Article 45.3, provides
that the State shall favour and where necessary supplement private initiative in industry and commerce.
that the State shall endeavor to secure that private enterprise shall be conducted so as to ensure reasonable efficiency in the production and distribution of goods and to protect the public against unjust exploitation.
The constitutional rights are subject to regulation and limitation in the public interest. Accordingly, most challenges to regulation on constitutional grounds have failed, except where the regulation is wholly unjustifiable.
Until the European state aid legislation, public monopolies were the norm in Western Europe including in the State. A challenge to the State’s near-total postal monopoly failed in Attorney General v. Paperlink in the early 1980s failed. The defendant sought to undertake a letter and parcel courier business. The Attorney General took action to restrain the business on the basis of the Post Office’s monopoly. It was held that the defendant’s right to trade and earn a livelihood was subject to restraints in the public interest.
The State was not required to justify the alleged inefficiency of the Postal Service before the courts. Such an analysis would be an unwarranted and unconstitutional interference with the powers exclusively conferred on the executive and the Oireachtas. The High Court was not in a position to decide whether a general Postal Service organised, along lines advocated by the defendant and its witnesses was one which met the requirements of the common good.
Regulation of Business
Numerous areas of business are regulated for various reasons. See generally the sections on regulations. The courts have generally deferred to the State in relation to the principle of regulation of a particular sector.
In Pigs Marketing Board v. Donnelly (Dublin) Ltd. In 1939, it was argued that any interference with free trade was unconstitutional. This was unequivocally rejected by the High Court.
The Supreme Court held that the Act was not unconstitutional. The legislation was reasonable taking account of the public interest and requirements. It was not been unjust attack on the property rights of the bodies concerned.
In Hand v the Dublin Corporation, restrictions on obtaining vendor’s licences after criminal convictions were upheld.
Business Property Rights
In Dellway Investments v National Asset Management Agency, the court emphasised that it was particularly reluctant to second-guess a reasonable policy balancing judgment on the part of the Oireachtas in cases involving controversial social and economic matters. The Oireachtas should be allowed a significant degree of deference as to how far it was necessary to go to provide an adequate solution to the problems that exist. However, where there is no reasonable basis for believing that an aspect of the measure is required policy response needed to achieve the ends of legislation, the courts may intervene.
In BUPA Ireland v. Health Insurance Authority, the risk equalisation scheme was invalidated on other grounds. It was not accepted however that it was an unjust attack on property rights.
In Gorman v. Minister for the Environment, changes in the taxi licensing rules caused a significant loss to the value of the existing licences. The courts held that that the holders of the licence must have been aware of the risks attached, that the regulation might affect the value of the licence.
In the reference in respect of the Planning and Development Bill 1999, it was held that there was no right to be paid the market value of the land on implementation of the social and affordable housing provisions.
Right to Earn Living
The right to work or carry on a business is implicitly protected by the Constitution. Article 40.3 includes an unenumerated right, the right to earn a livelihood, which includes the right to be employed to work and to engage in a trade or business.
In McDonald v. Bord na gCon, the extensive powers of regulating racing vested in Bord na gCon were challenged. The claimant, who had been banned from attending racetracks, and from the sale of greyhounds, claimed that he had been effectively deprived of his right to earn a living. It was claimed that the decisions amounted to administration of justice.
The Supreme Court held that the barring of the claimant from the racetracks and other activities was not so comprehensive as to prohibit him from earning his living. A person could be prohibited from coming on a racecourse on common law grounds and such a decision did not require to be made by a judicial body.
Provisions in the Offences against the State Act which had caused a person convicted of terrorist type offences to lose their position and pension entitlements, were held to be invalid by the Supreme Court. It violated proprietary rights and arose on the prosecution of the offence through the Special Criminal Court, by direction of the DPP.
Constituiona Justice and Decisions
There is a presumption of an entltement to a fair hearing in circumstances where a person may be adversely affected by a decision, even where the legislation does not so expressly provide.
In instances where licences to conduct business are revoked or restricted, constitutional justice requires that there be fair procedures. The opportunity to make representations must be afforded. There may be an entitlement to a hearing and a right to present evidence. A hearing may be required where a person’s rights are directly and significantly affected. A lesser degree of participation may satisfy requirements of constitutional justice in other cases.
Many regulatory provisions provide powers for the regulatory authority to investigate misconduct and generally to enforce standards. There is commonly a right to enter premises and examine documents. The officer concerned may require persons to answer questions. In some instances, a warrant may be required to enter premises. A warrant is invariably required in the case of entry into the dwelling house.
The regulatory authority may have significant discretion in relation to the exercise of powers. Generally, such discretion must be exercised in a manner which respects the constitutional rights of persons affected.
In Cassidy v. Minister for Industry and Commerce, a wholly discriminatory regulation which applied in one place but not in other, was held to be invalid as it was wholly unfair, arbitrary and inequitable.
In East Donegal Corporative v. Attorney General, the right of the Minister to dispense with licensing requirements for some individuals was held to contravene the guarantee of equality before the law. In effect, the Minister was given a dispensing power.
Ostensibly unlimited discretions will be interpreted as being subject to requirements of constitutional justice and fair procedures. This will apply both to grant of licences, tier variation and revocation.
Many professions are regulated in detail by law. Others are regulated through membership of an association. There are thoroughgoing requirements for fair procedures in actions by regulatory bodies, which interfere with or affect a person’s right to conduct the business or trade in question.
Discipline and Livelihood
Most of the medical professions, solicitor’s profession, the bar, architects are subject to detailed statutory regulation. Persons may not practice the relevant profession or activity without being registered or licensed. There are ongoing obligations to comply with codes of conduct in practice. The bodies may investigate complaints and misconduct. Disciplinary procedures with significant sanctions may be provided for. The sanction may extent to suspension of licence to practice and striking off.
In an early case under the Constitution, Re Solicitors Act, 1954, it was held that the powers of the Law Society Committee constituted the administration of justice. It did not comprise judicial functions of a limited nature because of the far-reaching effect of the decisions on the persons affected.
The effect of the legislation is that most statutory regulations provide that the ultimate decision in respect of far-reaching sanction such as striking off, in particular, striking off must be made by a judge. Commonly, the bodies undertake the requisite investigatory functions. They restrict fair procedures and constitutional justice rights apply. The exercise of the powers has the most far-reaching effect on the liberties, fortunes and reputations of those against whom they are exercised.
In Gagan v. Institute of Chartered Accountants, the Institute’s disciplinary powers were held not to constitute the administration of justice because they were based on a contract.
Under most modern schemes of regulations, the committees’ findings of misconduct and recommendations are made subject to an application to the court. The court imposes the final sanction so as to ensure that they need not constitute the administration of justice.
European Court of Human Rights cases have held that there should be an impartial element in the composition of tribunals making decisions regarding professional discipline. This is to ensure a sufficient quality of impartiality.
FIn TD v. Commissioner of An Garda Síochána, it was held that the dismissal of a member of Garda Síochána did not require confirmation by a court. The Supreme Court sought to differentiate between professions and activities which had been historically supervised and disciplined by the courts.