"Public order and morality" in the constitution

DaSilva

I have no legal training and reading a discussion about the pandemic related restrictions I noticed that some of the rights described in the constitution have exceptions to them where they can be restricted for example

ARTICLE 44

1 The State acknowledges that the homage of public worship is due to Almighty God. It shall hold His Name in reverence, and shall respect and honour religion.

2 1° Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen.

But what exactly does public order and morality mean? I tried to look it up online but I found I was getting hits from all over the world and wonder if the interpretation is different country to country.

Is this http://www.irishstatutebook.ie/eli/1994/act/2/enacted/en/html what is being referred to in the constitution as public order or is it something else?

I am not religious, I just wonder if that priest who is ignoring the restrictions and continuing to practise mass actually has a legal argument or not

Victor

The below are extreme cases, but you get the idea.


Public order.

Let us say you set up your own religion. Part of your religion is that you and your followers must disrupt all other religions and religious services, as they are unworthy unbelievers.

Later, I set up my own religion. Part of my religion is that I and my followers must disrupt all other religions and religious services, as they are unworthy unbelievers.

You can imagine how this could descend into discord, violence and worse.

I think "public order" would be interpreted more widely than offences under the Public Order Acts. I would interpret is along the lines of "social order" or "how to run a country". Mass(!) gatherings are unacceptable in the context of a pandemic - not least because it also affects people who didn't attend.


Morality

My religion also requires those over 65 to be killed ceremonially*. This would obviously be unacceptable.

* Unceremonial killings will be accepted, but clean up after yourself.

GM228

Public order has already been defined (in an Article 40 case), and so would apply equally to Article 44, basically "subject to public order...." would mean that public order is not to be disturbed, when you breach a law or occasion a breach of peace you can't rely on the Constitutional rights.

With regards to morality, it has never been legally defined and is open to endless debate by legal scholars, obviously it deals with the distinction between right and wrong, but the Constitutional Review Group Report 1996 stated "the use of the qualifying phrase 'public order and morality' is too general and all-embracing to be regarded as satisfactory", this was in relation to free speech but equally applicable to all instances of the phrase in the Constitution.

The term has been often criticized since day one and earlier, for example at the committee stages in the Dáil in 1937, there's an interesting Dáil debate from June 3rd 1937 here discussing your very question.

P.S - I would be interested in a weigh in from Peregrinus on this question.

Peregrinus

I'm afraid I don't have anything terribly intelligent to say about this.

Couple of thoughts, in no particular order.

The phrase is pretty broad, and I think that's deliberate. It would be impossible to foresee and list in advance all the circumstances that might justify a limitation of any of the personal rights, so you need some fairly open-ended acknowledgement that limitation might be required. This is it.

The Supreme Court has indicated in State (Lynch) v Cooney that the word "public" qualifies both "order" and "morality". The constitutional guarantee of personal rights is not subject to public order, and also subject to morality; it's subject to public order, and also subject to public morality.

There are plenty of parallels in other Constitutional instruments. In the Free State Constitition, rights were guaranteed "for purposes not opposed to public morality". Also that constitution gave the Free State Parliament the power "to make laws for the peace, order and good government of Ireland". This is a pretty standard formulation in British constitutional law; it describes the functions of governments and legislatures that the UK has established in various colonies and possessions throughout the world. But it has been held - I can't remember where - that the question of whether a particular law is conducive to peace, order and good government is not justiciable; the legislature should ask itself that question when considering the law in question but, if the legislature enacts the law, the courts won't second-guess that and strike the law down on the basis that it goes beyond the power of the legislature because it's not a law for peace, order or good government.

In the European Convention on Human Rights, the Art. 9 right to freedom of thought, conscience and religion is qualified by saying that limitations are allowed if they are "necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others". And several other rights enumerated in the ECHR are similarly qualified.

Coincidentally, just yesterday a Scottish court reportedly handed down a judgment strking down the Scottish regulation banning public religious services as a pandemic control measure, and did so because it found that it was contrary to Article 9. SFAIK the judgment hasn't been published yet; I have only seen newspaper reports. But these suggest that the court found the restriction to be "disproportionate", which I think means the court thought that the ban was too sweeping, and went beyond what was necessary for public health. Art 9 only allows limitations that are necessary.

This opens up the possiblity of a similar line of argument with respect to the Irish constitutional provision: the State's guarantee of rights is "subject to public order and morality", but perhaps the courts would strike down legislation infringing rights if they weren't satisfied that the infringement was justified in order to protect public order or morality.

There is of course a separate argument that public health is not an aspect of public order or public morality, so even if a restriction is necessary for the protection of health that won't save it. But I think the courts would make short shrift of this argument. Precisely because the language is so spare, they will feel it has to be generously interpreted; otherwise any restriction of any of the personal rights to protect public health in the face of a raging pandemic would be unconstitutional, and they won't want that outcome.

GM228

Peregrinus wrote: »

ICoincidentally, just yesterday a Scottish court reportedly handed down a judgment strking down the Scottish regulation banning public religious services as a pandemic control measure, and did so because it found that it was contrary to Article 9. SFAIK the judgment hasn't been published yet; I have only seen newspaper reports. But these suggest that the court found the restriction to be "disproportionate", which I think means the court thought that the ban was too sweeping, and went beyond what was necessary for public health. Art 9 only allows limitations that are necessary.

Basically the COS held it was both unconstitutional and an unjustified infringement of Article 9 of the ECHR, but, (and this important bit may not have been reported) the judgement came with a caveat, no declarations for such (at least for now) due to a number of factors (including the fact new Regulationsare coming in a few days), and so has only held the regulations went further than they were lawfully able to do.

GM228

The Scottish judgement is now up on the SC&T site:-

https://www.scotcourts.gov.uk/search-judgments/judgment?id=9b9086a8-8980-69d2-b500-ff0000d74aa7

GM228

Peregrinus wrote: »

But it has been held - I can't remember where - that the question of whether a particular law is conducive to peace, order and good government is not justiciable; the legislature should ask itself that question when considering the law in question but, if the legislature enacts the law, the courts won't second-guess that and strike the law down on the basis that it goes beyond the power of the legislature because it's not a law for peace, order or good government.

This was playing on my mind and has me curious.

Off the top of my head I can only think of the Re Article 26 of the Constitution and the Offences Against the State (Amendment) Bill, 1940 [1940] IR 470 Supreme Court case which is broadly on par with what your saying here:-

The guarantee in the clause is not in respect of any particular citizen, or class of citizens, but extends to all the citizens of the State, and the duty of determining the extent to which the rights of any particular citizen, or class of citizens, can properly be harmonised with the rights of the citizens as a whole seems to us to be a matter which is peculiarly within the province of the Oireachtas, and any attempt by this Court to control the Oireachtas in the exercise of this function, would, in our opinion, be a usurpation of its authority...

...Any criticism by the Courts of the manner in which the Oireachtas exercises the discretion and powers vested in it would be as much open to objection as would any suggestion, in either House of the Oireachtas, that a decision of a Court, within the scope of its authority, was not in accordance with law

I can't think of the specific case you refer to, but, I'm guessing was based on the political question doctrine/separation of powers (was it also specifically in relation to a Bill, rather than an Act?), but how would the Boland vs An Taoiseach [1974] I.R. 338 clear disregard test fit in if it goes beyond the power of the Oireachtas because it's not a law for peace, order or good government?

Peregrinus

I was thinking of it more in the context of the Westminster constitutional tradition.

In that tradition, the powers of the Crown in Parliament are unconstrained; there are no limits on the laws that Parliament can enact. But this only applies to the Westminster Parliament; Westminster has established many other legislatures over the years, e.g. devolved legislatures within the UK; legislature in UK colonies, many of which have since transitioned to full independence. At least initially, these only have such legislative powers as Westminster grants them.

And this is where “peace, order and good government” comes in; that language is commonly used to describe the legislative function that Westminster confers on a legislature that it establishes.

So, for example, in 1900 the Westminster Parliament enacted the Commonwealth of Australian Constitution Act 1900, which federated the existing Australian colonies into the Commonwealth of Australia, with each of the colonies becoming a State of the Commonwealth. The Commonwealth was given its own Parliament. S. 51 provides that “the Parliament shall . . . have power to make laws for the peace, order, and good government of the Commonwealth with respect to . . . [a list of matters that were to be dealt with federally, rather than by the States — e.g. the currency]”. Although Australia is now fully independent, those words remain in the Australian Constitution, and they turn up in the constitutions of a lot of former UK possessions.

So, looking at those words, you could argue that a law purportedly enacted by the Australian Parliament is invalid if it’s not a law for “peace, order and good government”, because a law not for peace, order and good government is beyond the legislative power of the parliament, as set out in the Australian Constitution. And similar arguments are open in the many other countries with a similar constitutional provision.

But it’s well settled that the courts won’t entertain this argument - so well settled that I can’t remember the authority for it; it’s one of these things that nobody ever looks for an authority for. The “peace, order and good government” language tells parliament what it should be seeking to do when legislating, but the question of what legislative measures are conducive to peace, order and good government is a question for parliament, not the courts. By enacting a law, Parliament is deciding that that law does promote peace, order or good government, and the courts defer to Parliament on this point.

We don’t have this particular issue in Ireland, because the legislative power of the Oireachtas was not conferred by Westminster, using the “peace, order and good government” formulation. We used to have it at one time, because the Irish Free State Constitution did provide that “the sole and exclusive power of making laws for the peace, order and good government of the Irish Free State (Saorstát Eireann) is vested in the Oireachtas”. But that was swept away by the enactment by the people of the 1937 Constitution, which provides that “The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas”; no limitation about peace, order or good government. And that legislative power was conferred on the Oireachtas not by or under the 1922 Constitution, but directly by the People, whose capacity to confer legislative power is not in any way constrained by the 1922 Constitution.

So, long story short, the precedent that I was thinking of, holding that the “peace, order and good government” language is not justiciable, is not an Irish precedent, because it’s not a question that arises in the Irish constitutional order.

GM228

Ah I'm with you now, sorry I mistook you as saying it applied here, whilst there is the political question doctrine, the separation of powers and occasions where decisions of the Oireachtas are not justiceable it didn't sit with me, but all makes sense now.

Peregrinus wrote: »

But it has been held - I can't remember where

You've jogged my memory, justiciability became a hot topic of mine when I followed the UKs Supreme Court prorogation case, lets see if I can jog yours.

Peregrinus wrote: »

But it’s well settled that the courts won’t entertain this argument - so well settled that I can’t remember the authority for it; it’s one of these things that nobody ever looks for an authority for. The “peace, order and good government” language tells parliament what it should be seeking to do when legislating, but the question of what legislative measures are conducive to peace, order and good government is a question for parliament, not the courts. By enacting a law, Parliament is deciding that that law does promote peace, order or good government, and the courts defer to Parliament on this point.

The original authority for it - R vs Burah [1878] 3 App Cas 889

Though the more commonly recognized authority is the slightly later Riel vs The Queen [1885] 10 App Cas 675 case:-

It appears to be suggested that any provision differing from the provisions which in this country have been made for administration, peace, order, and good government cannot, as matters of law, be provisions for peace, order, and good government in the territories to which the statute relates, and further that, if a Court of law should come to the conclusion that a particular enactment was not calculated as matter of fact and policy to secure peace, order, and good government, that they would be entitled to regard any statute directed to those objects, but which a Court should think likely to fail of that effect, as ultrà vires and beyond the competency of the Dominion Parliament to enact.

Their Lordships are of opinion that there is not the least colour for such a contention. The words of the statute are apt to authorize the utmost discretion of enactment for the attainment of the objects pointed to. They are words under which the widest departure from criminal procedure as it is known and practiced in this country have been authorized in Her Majesty’s Indian empire.

And most recently reaffirmed by the UK House of Lords R (On The Application of Bancoult) vs Secretary of State For Foreign and Commonwealth Affairs [2008] UKHL 61 case:-

As the statements in Riel v The Queen, Chenard and Co v Arissol and Union Steamship Company of Australia Pty Ltd v King show, it is not open to the courts to hold that legislation enacted under a power described in those terms does not, in fact, conduce to the peace, order and good government of the Territory. Equally, it cannot be open to the courts to substitute their judgment for that of the Secretary of State advising Her Majesty as to what can properly be said to conduce to the peace, order and good government of BIOT. This is simply because such questions are not justiciable

Peregrinus

And all this stands in contrast to the ECHR limitations referring to public safety, the protection of public order, health or morals, etc. The courts will look at the question of whether limitations on rights which the legislature considers to be justified by the requirements of public safety, etc, are so justified.

SFAIK there is no direct authority on whether the Irish courts, asked to strike down some law restricting the Art 40.6.1 rights on the ground that it was not justified by the requirements of public order and morality, would take the Westminster line or the ECHR line. But:

1. My fairly strong instinct is that they would take the ECHR line.

2. Pretty well any proceedings that allege that some law is repugnant to Art 40.6.1 are also going to allege an EHCR breach, and it's possible that the proceedings may be resolved by answering the ECHR question, leaving the Art 4.06.1 question for another day.