Article 40 S.1, Equality Before The Law - Irish Constitutional Law

Article 40.1 - Equality Before the Law

Equality – Introduction

Article 40.1

All citizens shall, as human beings, be held equal before the law.

This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.

Article 40.2

1. Titles of nobility shall not be conferred by the State.

2. No title of nobility or of honour may be accepted by any citizen without the approval of the Government.

Article 41.2

1. In particular, the State recognises that by her life in the home the mother gives to the State a support, without which the common good could not be achieved.

2. The State shall, therefore, endeavour to ensure that mothers are not forced through economic necessity to engage in labour to the neglect of their duties within the home.

Article 44.2.3

The State shall not impose any disabilities or make any discrimination on grounds of religious profession, belief or status.

People (DPP) v Quilligan (SC 1992)

Facts

1. The accused was arrested under s.30 of the the Offences Against the State Act, 1939 and convicted on charges of murder and burglary as a result of evidence obtained by means of that section.

2. The section provided inter alia that a person arrested under the Act would be subject to different periods of detention than someone arrested of the same crime under the normal Acts.

Issue

• Equality before the law – Different types of crime

Judgment (Finlay CJ)

• Everybody charged with an offence under the 1939 Act have the same rights and obligations and are subject to detention for the same periods – they enjoy most of the protections as people arrested on suspicion of other offences.

• In the case of the distinction between offences under the Act and other offences, the Act exists to facilitate investigation into those offences, not merely the arrest of people for the purpose of questioning.

• All differentiations between different groups of people are not necessarily invidious.

McMahon v Leahy (SC 1984)

Facts

1. The plaintiff and others had been convicted in Northern Ireland and escaped from jail, and when later tried on these offences, they escaped from court and fled to the Republic.

2. While on trial for extradition they pleaded that their offences had been a political ones and thus they was exempt from extradition.

3. The State chose to oppose the plaintiff's plea and not the others.

Issue

• Equality before the law – Official actions of the State

Judgment

1. O'Higgins CJ

   • This approach of the State led to there being different outcomes before the court on the same sets of facts.

   • This did not amount to the plaintiff being held equal before the law – thus his application must succeed.

2. Henchy J

3. Griffin J

4. Hederman J

5. McCarthy

Report of the Constitution Review Group

Introduction

• Equality along with liberty, is one of the principles that underpin liberal democracy.

The concept of equality

• The concept of equality consists of several dimensions: a) that if a difference between persons is not relevant for a particular purpose it is ignored (a breach of which is called direct discrimination), b) that pertinent differences be recognised and people subject to different treatment to the extent that there is a relevant difference between them (a breach of which is called indirect discrimination)

whether the equality guarantee should be denominated as a core norm in the Constitution

• equality before the law is a fundamental right, however a majority of the committee would prefer that, in the case of conflict, a reconciliation of rights remain a matter for the courts – though a minority of the committee fear the subordination of the guarantee unless it is treated as a core norm.

whether the words 'as human persons' should be deleted

• the restrictive approach taken by the courts in interpreting this phrase makes it desirable that it should be deleted

whether the obligation to respect equality should be directly enforceable against persons or bodies other than the State

• In light of a) the fact that the constitution regulates relations between the individual and state, b) the regulation of relations between individuals is a legislative matter, c) its effect on individual autonomy and d) the difficulties in ascertaining to whom else it would apply, the guarantee should apply to the State only

whether the second sentence should be changed

• In light of the courts approach in using the second sentence to uphold dubious stereotypes and its confinement to enactments, the second sentence should be changed to recognised that the State may have due regard to relevant differences.

Whyte, A Comment on the Constitution Review Group Proposal's on Equality

• This article attempts to identify the understanding of equality underpinning the above proposals.

Equality: Significance of Context

• The concept of equality only makes sense in the context of prior values or rights.

Competing Conceptions of Equality

• Equality can be understood as either a) the right to be treated equally by others, b) to be placed in an equal position, regardless of unequal treatment, c) to be equally free to exploit whatever abilities or property they may have without interference or d) to be assisted (unequally) so they have an equal opportunity to explore their talents.

• a) seeks the removal from the decision making process of illegitimate considerations based on impugned grounds that adversely affect individuals, b) is a redistributivist approach which seeks improve the relative position of the disadvantaged group, c) is a restatement of classic liberalism and d) is a guarantee of equality of opportunity.

Ascertaining the Review Group's Conception of Equality

Comment on Specific Recommendations of Review Group

• The removal of the human personality doctrine would be welcome, but there are indications that the courts are already doing this.

• Quinn's Supermarket v Attorney General – Walsh stated that classifications based on inherent human attributes e.g. gender are prohibited irrespective of the context in which they operate.

• This was misinterpreted by Kenny J in Murtagh Properties when he came to the conclusion that an obvious discrimination on the basis of gender was not prohibited as the context in which it operated (employment) wasn't based on an inherent human characteristic.

• The Supreme Court would seem to have abandoned this interpretation in The Employment Equality Bill – in that case, a) the court followed Walsh J's remarks but not those of Kenny J and b) the section impugned was upheld on the basis that it was related to a permissible objective and neither irrational nor unfair, as opposed to upheld on the Murtagh Properties principle, which was open to the court.

Quinn's Supermarket v Attorney General

Facts

1. The Shops (Hours of Trading) Act 1938 allowed the minister for industry and commerce to set trading hours for shops in a certain area.

2. Under the minister's order meat shops were allowed to open from 8am to 6pm unless they sold only kosher meat, in which case the provisions did not apply.

3. The plaintiffs claimed that this was a breach of Article 40 s.1

Issue

• Whether the order placed a disability on the plaintiffs by virtue of their religion

Judgment

1. Ó'Dálaigh CJ (concurs with Walsh J)

2. Walsh J

• 40.1 is not a guarantee of equal treatment but rather a protection of a person's human dignity by shielding them from discrimination based on assumption that they are inferior/superior by virtue of their human attributes or ethnic, racial or social background etc

• Legal persons do not enjoy protection under this clause.

• Thus in this case, where the inequality exists between businesses, the clause is not applicable.

3. Budd J (concurs)

4. Fitzgerald J (concurs)

5. Kenny J

• The equality clause is a guarantee of equality based on human characteristics.

• It does not relate to trading activities.

• It is not a guarantee of equal treatment in all matters.

De Burca v Attorney General (1976 1 IR 38)

Facts

1. The plaintiffs were two women charged under the Offences Against the Person Act 1861.

2. While awaiting trial they challenged the manner in which their jury was to be selected under the Juries Act 1927.

3. Inter alia they alleged it was in breach of Article 40 s.1 of the Constitution.

Issue

• Whether the Juries Act 1927 was in breach of Art. 40.1 “All citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the State shall not in its enactments have due regard to capacity, physical and moral, and to social function.”

Judgment

1. O' Higgins CJ

   • In having regard to capacity, physical or moral, and differences in social function, it is not unusual that the State shall soften the obligations placed on women, particularly in light of its recognition of her place within the home.

   • The provision in the Juries Act which allows the women to apply for inclusion balances her right to serve on a jury with the recognition of the severe burden and handicap that serving on a jury may constitute.

   • The other qualification, the necessity of paying a certain amount of rates, means that a large number of men cannot get on a jury.

   • This is not related to differences of capacity or social function.

   • As a result the law is incompatible with the Constitution and ceased to have effect upon its coming into force.

2. Walsh J

   • The property qualification is not related to the person's physical or moral capacity, nor his social function.

   • Being a woman is no bar to serving successfully on a jury. In that regard the law has had regard not to capacity or function, but to sex.

   • If the...