Unenumerated rights Doctrine- Irish Constitution

Lou33

Hi guys, im researching the issue of the unenumerated rights doctrine and whether the doctrine has now fullfilled its purpose? i would welcome any views on the issue

Thanks

r14

This might help you, it's pretty comprehensive.
http://www.nuigalway.ie/law/GSLR/2006/Symposium.pdf

As far as I recall unenumerated rights are pretty much dead after TD v Minister for Education [2000] 3 I.R. 66. Can't remember which judge but he basically said it's not up to judges to discover new rights and they should tread very carefully in future. I don't think any new unenumerated rights have been found since then.

imo they were good for a while in the 70s when the SC was really into discovering new rights, mcgee etc, but the argument against judges having all that power with no democratic legitimacy is just too strong.

Tom Young

Paul A McDermott has a chapter in Kelly on it. Worth reading.

I don't see how on God's great earth the doctrine could have fulfilled it's purpose. Just have a think about it a little bit ....rights to: Associate/Dis-sociate, Equlity, Privacy, Expression etc. Come on!

The ECHR Act of 2003, merely provides that judicial notice be given to the Convention, so in effect we are in a position where we do require the doctrine.

Tom

Lou33

Thanks for your replies guys, has been really useful, i totally agree that the doctrine has far from fulfilled its purpose!

r14

I think it's agreed that it is a useful doctrine but I don't think you can really justify giving judges the power to recognise unenumerated rights when the constitution is supposed to represent the will of the people. Too close to kritocracy for my liking.

Just my opinion but good luck with your research and feel free if you have any more questions.

Tom Young

r14 wrote: »

I think it's agreed that it is a useful doctrine but I don't think you can really justify giving judges the power to recognise unenumerated rights when the constitution is supposed to represent the will of the people. Too close to kritocracy for my liking.

Just my opinion but good luck with your research and feel free if you have any more questions.

So, tell us about the doctrine of separation of powers?

r14

Tom Young wrote: »

So, tell us about the doctrine of separation of powers?

I would say that the Oireachtas have the sole discretion as to whether to amend the Constitution by referendum. When they decided to incorporate the ECHR they did it at a sub-constitutional level (a mistake in my opinion). What gives judges the right too take the protections in the ECHR and elevate them to Constitutional status?

The decision to add further rights to the Constitution should be left for the people. Courts were starting to go overboard with the unenumerated rights. I think it was in Lennon that the Supreme Court recognised an unenumerated constitutional right to travel for the purposes of representing your country at a sporting event. Should the Constitution really become so involved in such small issues?

What if you got a very liberal Supreme Court (I know it would probably never happen) who decided there was an unenumerated right to abortion or euthanasia. Remember the abortion referendum all came out of the worry that McGee's recognition of the right to privacy (similar to the US case of Griswold v Conneticut) would lead to an Irish version of Roe v Wade where abortion was recognised as a subset of the right to privacy.

I think the doctrine is useful practically but I don't think you can defend the idea that unelected judges can invent new rights which may not accord with the will of the people. That is the job of the Oireachtas and the people through referenda.

enry

Its obvious that the separation of powers is essential to sustain a democratic society but that does not necessarily mean that the concept of unenumerated rights is at variance with the SOP.

The idea that legislators are or would be capable of drafting legislation to identify all rights or to cover all eventualities which could restrict as opposed to "enlarge freedom" would seem to be an impossible task especially considering the rapidly changing world we live in.

Perhaps then when they sat down to wright the 1937 constitution the drafters were aware of this and so as to prevent the wish of the people being undermined by allowing certain rights to go unidentified made allowances for the judiciary to identify these rights which although not written down are tacitly represented by the very nature of the state (in that i mean the wishes of the people as identified by the judiciary in these cases).

Its been a long time since I studied constitutional law but i definitely believe that the concept of unenumerated rights is not one which is done and dusted and left to the pages of history but one which will surely be revisited by the supreme court.

In the future if the SC is identifying these rights I am sure they will do so as they have always done that being with great caution and the separation of powers in mind.

r14

enry wrote: »

Its been a long time since I studied constitutional law but i definitely believe that the concept of unenumerated rights is not one which is done and dusted and left to the pages of history but one which will surely be revisited by the supreme court.

In the future if the SC is identifying these rights I am sure they will do so as they have always done that being with great caution and the separation of powers in mind.

Taken from Keane CJ's decision in the TD case

64. The implications of that doctrine have not at this stage been fully explored by the courts. Two questions, in particular, merit further consideration. The first is as to the criteria by which the unenumerated rights are to be identified. In the High Court in that case [Ryan v AG], Kenny J said that there were many personal rights of the citizen which flow from “the Christian and democratic nature of the State” which are not mentioned in Article 40. There was no explicit endorsement of that view in this court, perhaps because the right under discussion in that case was conceded on behalf of the Attorney General to be such an unenumerated right. Whether the formulation adopted by Kenny J is an altogether satisfactory guide to the identification of such rights is at least debatable. Secondly, there was no discussion in the judgment of this court as to whether the duty of declaring the unenumerated rights, assuming them to exist, should be the function of the courts rather than the Oireachtas.




65. In my judgment in I O’T-v- B [1998] 2 IR 321, I said that:


“...Save where such an unenumerated right has been unequivocally established by precedent, as for example in the case of the right to travel and the right of privacy, some degree of judicial restraint is called for in identifying new rights of this nature. (See, in this context, the remarks of McCarthy J writing extrajudicially in “Observations on the Protection of Fundamental Rights in the Irish Constitution”, Constitutional Adjudication in European Community and National Law, (Dublin, 1992) at pp. 179 - 182 and of G.W. Hogan in “ Unenumerated Personal Rights: Ryan’s Case Re-evaluated” (1990 - 1992) Irish Jurist NS 95).”

66. For the reasons there set out and in the light of the considerations so forcefully urged by Murphy J in his judgment in this case, I would have the gravest doubts as to whether the courts at any stage should assume the function of declaring what are today frequently described as “socio-economic rights” to be unenumerated rights guaranteed by Article 40. In my view, however, the resolution of that question must await a case in which it is fully argued.

So Keane notes that the very foundation of the unenumerated rights doctrine in Ryan was never actually discussed in the SC appeal of that case. Kinda strange that such an important separation of powers issue has never really been discussed and analysed by the SC.

I agree with him that a lot of thought needs to be given to whether you can justify the courts taking decisions that are generally the preserve of the oireachtas.

Regardless of whether the doctrine has some use left in it, I think it's fairly clear that the majority of the current SC are dubious so I wouldn't be suprised if the doctrine dies (as it has done in the US)

enry

"In my view, however, the resolution of that question must await a case"

r14

"...in which it is fully argued."

i.e. don't trust any of the cases so far because the SC has never had its say and the majority of the court in TD indicated they're not in favour.

There are def arguments on both sides but practically you'd want to be desperate to try to raise a new unenumerated right in the courts now. Much better to rely on the ECHR Act.

enry

Have you noticed in court all the desperate arguments given before one good one is made.

Unemumerated rights will be reviewed and identified again in the future when the sc using their Jurisprudence decide on a Natural law interpretation to ensure natural justice where the fact of the case warrant it.

On saying that R14, I stuck "unemumerated rights" into google and it would seem the wealth of academic opinion is with you on this.:mad::(:o:)

r14

Agree to disagree

Meesa1989

“By allowing themselves to appeal to such amorphous concepts as the Christian and democratic character of the State in order to recognise and potentially enforce rights as against the wishes of the Oireachtas, have the courts given to themselves a carte blanche to write their own moral preferences into the fundamental law of the State?” – Doyle, Constitutional Law: Text, Cases and Materials

I am completely baffled by this any thoughts???

Procrastastudy

Roderic strikes again!

Pick up your unenumerated rights notes, have a read of Chapter 4 in Doyle and speak to your lecturer to get some guidance.

The reference is simply in relation to Ryan v AG [1965] IR 294 which is the first case you should read.

Did he not give you a reading list as long as your arm?

EDIT: Oh I see he hasn't - you just need to look at the reading list on the notes. Some people love his (Rodders/Foley's?) notes - personally I don't. Thankfully Doyle's book is a very easy read with the most useful sections of judgments given to save you doing it the hard way.

Meesa1989

GCDLawstudent wrote: »

Roderic strikes again!

Pick up your unenumerated rights notes, have a read of Chapter 4 in Doyle and speak to your lecturer to get some guidance.

The reference is simply in relation to Ryan v AG [1965] IR 294 which is the first case you should read.

Did he not give you a reading list as long as your arm?

EDIT: Oh I see he hasn't - you just need to look at the reading list on the notes. Some people love his (Rodders/Foley's?) notes - personally I don't. Thankfully Doyle's book is a very easy read with the most useful sections of judgments given to save you doing it the hard way.

Thanks much appreciated! Just didn't know where to begin!

Procrastastudy

Its really a long winded way of saying talk to me about unenumerated rights - are they good or bad. Has a twist of mentioning religion which can be a turn on for some. Personally you lot have been done - the family one was MUCH easier!

Meesa1989

GCDLawstudent wrote: »

Its really a long winded way of saying talk to me about unenumerated rights - are they good or bad. Has a twist of mentioning religion which can be a turn on for some. Personally you lot have been done - the family one was MUCH easier!

Haha that's for sure. I've got tort to do as well. That seems to be easier though. Thanks ah again for the help