‘Assessing potential future avenues for the Unenumerated Rights Doctrine’

Reviewed by faculty from the School of Law

The doctrine of unenumerated rights can be found within Article 40.3.2 of Bunreacht na hÉireann.[1]. The doctrine was dormant until the 1960s. A very liberal Supreme Court was at the forefront of this movement, and it has been described as one of the most innovative and controversial measures adopted by the Irish Courts[2]. Kelly states that the “expansion and reach of Article 40.3 is one of the most conspicuous features of contemporary constitutional jurisprudence”. It has not always been a steadfast ascension, as the provision was initially treated with intense scepticism. In the case of State (Ryan v. Lennon) an extraordinarily strict approach was taken to the interpretation of the provision.[3]  

The existence of such rights was first acknowledged in 1963 in the High Court decision of Ryan v. Attorney General. This case concerned an argument of whether the fluoridation of water violated a person’s right to bodily integrity.  In the judgement which first recognised the existence of unenumerated rights Kenny J. stated that the general guarantee related not only to the rights specified in Article.40 but of those also unspecified. The counter argument was presented by the Attorney General which referred to an argument made in re Art. 26 of the Constitution and Offences Against The State (Amendment) bill,1940 which argues that the court does not have jurisdiction in the interpretation of these unenumerated rights. It was argued that the interference was a matter which was peculiarly within the province of the Oireachtas, and any attempt by this Court to control the Oireachtas in the exercise of that function, would be a usurpation of its authority.[4]

The question of accountability was set out in Ryan and stated that if the ascertaining and declaring of the personal rights of the citizen does fall within the jurisdiction of the High Court and Supreme Court, that they are presented with a grave responsibility. In acknowledging the dangers of the provision, it has been at the forefront of societal evolution in the past 60 years and has been the instigator of some of the most significant changes this country has seen. These changes have been entirely within the hands of judiciary which put a very select few at the forefront of this movement. Unenumerated rights have been described as once being the heartbeat of the Constitution,[5] As it is seen to have had an immensely positive effect on raising the standard and quality of life in Ireland.

There have been various attempts to acknowledge unenumerated rights in recent times. It was argued unsuccessfully in Duniyva v. Residential Tenancies Board that there is a right to housing. With that in mind Barrett J. held that “That is not to say that some qualified unenumerated (as yet unrecognised) constitutional right to accommodation/housing  might not at some future point be found by a court to exist as a matter of Irish Law, perhaps by reference to the insights to be gleaned from the burgeoning case law…”.[6]  In following through on his hypothetical proposal, Barrett J. provided the judgement in which the right to an environment was established. [7] Barrett J. held that is a “right to an environment that is consistent with the human dignity and wellbeing of citizens at large is an essential condition for the fulfilment of all human rights.” [8]  This judgement came about after the Irish Courts adopted a notably restrained and deferential posture in constitutional adjudication generally, it was understood that the doctrine was lifeless and null. 

It is of the essence that we question the possible future developments regarding the provision.  There is a theory that the doctrine could be ‘shut off’. What this would entail is that the rights founded to this date would be codified in a statutory manner, through legislation. It was suggested that future additions may be made by referendum of the people.  This would be a tedious approach, expensive and time consuming, but it would ascertain the will of the people at large in a democratic manner. It would be successful in upholding public confidence in the sense that it strips the judiciary of their powers to ‘create laws’ in this area and hands that power to the people.[9]

 A contravening approach is that we leave a dormant Article 40.3 and that we allow for the identification of new rights when the need arises.  This approach allows for a convenient and easeful descent from this stationary & barren period if it came to it. Leaving a provision like this laying bare is frightening as we are aware of how it can sculpt a society.[10] A mere strand of luck stood between us and the Lochner era. 

The Report of the Constitutional Review Group suggested that the Constitution be amended to give some guidance to the judiciary surrounding these rights with regards to specified principles and values. This guidance would restore public confidence as the confinement would put the public at ease.  However, it is clear, that the effectiveness of such an insertion may be limited, as we have seen in the Walsh J. judgement in McGee[11] as the human dignity argument ran counter to the Christian Democratic nature of the State. It’s clear that there’s no real way to guide these decisions if two perfectly well-founded interpretation methods can contradict each other entirely. 

In the absence of Article 40.3.2 there would be a significant restriction of identifying rights which have been so fundamental in the evolution of society in Ireland between the 1960s and the 1990s. There have been two decades of limited activity and there is a consensus amongst scholars that the doctrine has seen its day. A singular judgement does not suggest the opposite and the reluctance showcased by Keane CJ in I’OT v. B has become the defining measure for the courts. Reservations were expressed as to whether this was an appropriate function for the courts to exercise, whether it is in fact judicial law making and a violation of the separation of powers. 

To summarise, a return to the ‘heady days’[12] or the exponential phase of the 1960s and 1970s remains both unlikely and undesirable. Our society has reached a somewhat stationary phase in the area surrounding personal rights.  To those who believe that the occasional bout of judicial creativity can play a valuable role as a “last resort in the defence of rights where the political process has clearly failed, that is no bad thing”.[13] The occasional bout of judicial activism will continue to arise so long as we live in any functioning society which shall always require the recognition of new rights. To suggest that there is a clean-cut answer to this problem seriously undermines its gravity and velocity.  The provision continues to offer remedies which would otherwise cause great injustice and continues to mirror our societal values.  In acknowledging the dangers of judicial discretion, we must appraise the judiciary for the judgements which allowed for the country to take leaps forward into a more liberal Ireland. The use of Article 40.3.2 has declined rampantly over the years but the Article itself must remain unscathed in the interests of justice, the common good and in order to be representative of an ever-evolving society.

[1] Bunreacht na hÉireann

[2] JM Kelly, Fundamental Rights in the Irish Law and Constitution (2nd edn, Allen Figgis & Co Ltd 1967).

[3] State (Ryan) v Lennon [1935} IR 170

[4]  Re Article 26 of the Constitution and Offences Against the State Amendment Bill,1940, (1) [1940] I. R. 470.

[5] Conor O’ Mahony, ‘Unenumerated Rights: Possible Future Directions After NHV.

[6] Duniyva v Residential Tenancies Board [2017] IEHC 578

[7] Merriman v Fingal County Council [2017] IEHC 695 

[8] Merriman v Fingal County Council [2017] IEHC 695 

[9] ibid

[10] ibid

[11] McGee v Attorney General [1974] IR 284

[12] Conor O’ Mahony, ‘Unenumerated Rights: Possible Future Directions After NHV.

[13] Ibid