Non-State Parties

The Constitution binds the State and its various departments, bodies and agencies. Some cases have taken the view that the fundamental rights place obligations on private persons as well as the State. In Moyne v. Londonderry Port & Harbour Commissioners, it was stated:

to succeed in a claim that the exercise of a personal right referred to in Article 40.3.1 has been infringed, it is not necessary for a plaintiff to establish that the party responsible is the State or an organ or agent of the State.

Private Rights

Article 40.3.1 imposes obligations and duties on the State. It recognises that citizens enjoy personal rights.

Some judges have held that, if within the State, a person’s constitutionally protected rights are infringed, (whether the wrongdoer is an agent of the State), the courts may grant a remedy. Other judges have taken the view that the Constitution is limited in application to the State and its organs or emanations so that by itself, it does not afford a remedy against a non-State actor.

Nonetheless, constitutional rights may on occasion be given direct effect. Provisions in wills that undermine the rights of parents over their children in terms of the upbringing of the child, were held to be against the public policy as expressed in the Constitution.

Common law rights of action give effect to constitutional rights in the area of property, liberty and good name. In effect, the State meets its obligations by providing for laws in this area.

In Burke and O’Reilly v. Burke and Quail, a requirement that trustees could select the school which a child could attend was held to be contrary to the parent’s rights and authority over their children. Similarly, in Re Blake, a requirement that a child be brought up in the Catholic religion was held to be void against public policy as expressed in the principles in the Constitution.

Rights to Work & Trade

In some cases, the expression has been given to the constitutional right to work and carry on business. Unlawful interference with businesses has been restrained by injunction, which has been justified on the grounds that they were necessary to restrain interference with a constitutional right to work. In Lovett v. Gogan, an injunction was granted in support of constitutional rights where the statutory penalties were inadequate.

In Educational Company of Ireland v. Fitzpatrick, picketing which sought to prevent a person from exercising his Constitutional right not to be a member of a union was restrained.

In Educational Company of Ireland v. Fitzpatrick, it was stated: if an established Constitutional right exists, the citizen has a right to assert it and it is the duty of the courts to aid and assist him in the assertion of the right. The court will therefore assist and uphold the citizen’s constitutional rights.

Rights and Duties

Obedience of the law is required of every citizen and it follows that if one citizen has a right under the Constitution, there exist a correlative duty on the part of other citizens to respect that right and not to interfere with it. To say otherwise would be tantamount to saying that a citizen can set the Constitution at nought and that a right solemnly given by the fundamental law is valueless.

It follows that the courts will not act so as to permit any body of citizens to deprive another of his constitutional rights and will in any proceedings before them see that these rights are protected, whether they be as held under the guise of a statutory right or otherwise.

Specific Rights

In Crowley v. Ireland, the INTO had sought to prevent its members from teaching in a particular school, thereby depriving the child students of their right to primary education. The High Court made an order against the union, partly by reason of breach of the children’s right to primary education.

In A.G. (S.P.U.C.) v. Open Door Counselling, an injunction was granted to restrain the dissemination of counselling in respect of abortion based on the so-called right to life provision. Until 2013, no statutory effect had been given to defining the extent of the Eighth Amendment (protecting the right to life of the unborn.

It was said in the High Court decision,

“the judicial organ of government is obliged to lend its support to the enforcement of the right to life of the unborn, to defend and vindicate that right if there is a threat to that right from whatever source to protect that right from such right, if its support is sought.”

The grant of an injunction was upheld by the Supreme Court in SPUC (Ireland) Ltd. v Grogan. Further, such injunctions issued.

In the notorious X case, an injunction had issued in the High Court restraining a 14-year-old girl who had been raped from leaving the jurisdiction for the purpose of having an abortion in the United Kingdom

Ultimately, the interpretation was reversed by a 1992 Constitutional amendment, allowing expressly for a mother’s right to information and right to travel, notwithstanding the substantive provision.

Damages for Breach

It is clear that damages may be granted for breach of constitutional rights. Generally, the law of tort/civil wrongs is adequate for the purpose of upholding these rights. On occasions, where constitutional rights are not adequately protected by the existing common law torts, the courts have been prepared to grant an order of damages by way of direct enforcement of constitutional rights.

Meskell v. CIE, involved action by a person who had lost his job by reason of refusal in accordance with his constitutional right not to associate, to choose to leave a union. In this context, CIE was regarded as equivalent to a private body and not an emanation of the State.

The Supreme Court indicated that: if the Oireachtas cannot validly seek to compel a person to forego a constitutional right, can such a power cannot be effectively exercised by some lesser body or by an individual employer. To exercise what may be loosely called a common law right of dismissal, as a method of compelling a person to abandon a constitutional right, or as a penalty for his not doing so, must necessarily be regarded as an abuse of the common law right, because it is an infringement and an abuse of the Constitution which is superior to the common law and which must prevail if there is a conflict between the two.


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