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16 - Ireland

The Separation of Powers Doctrine vs. Socio-economic Rights?

Published online by Cambridge University Press:  05 June 2012

By
Aoife Nolan
Edited by
Malcolm Langford
Malcolm Langford
Affiliation:
Norwegian Centre for Human Rights, University of Oslo
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Summary

INTRODUCTION

The Irish Constitution is the oldest in Europe and predates the international human rights discourses, including those regarding socio-economic rights. Its framers expressly included only one socio-economic right (the right to education) in the document, preferring instead to set out ‘the principles for the State to apply towards the promotion of the people as a whole in the socio-economic field’ in the form of non-justiciable ‘principles of social policy’. In the words of one commentator, while Eamon de Valera, the leading figure in the drafting of the constitution, cleverly genuflected before socio-economic rights, he made sure to insert them in a part of the constitution that is prima facie unenforceable.

Despite the lack of provision for a comprehensive range of socio-economic rights under the Irish Constitution, a number of judges have handed down decisions resulting in the direct or indirect protection of socio-economic rights. However, concerns about the implications of adjudication of socio-economic rights for the separation of powers and the involvement of the courts in what have been deemed issues of ‘distributive justice’ has, in more recent times, resulted in a general reluctance on the part of courts to recognise and give proper effect to such rights.

PROTECTION OF SOCIAL RIGHTS UNDER THE IRISH CONSTITUTION

Overview of Relevant Provisions

The Constitution contains a wide range of socio-economic, rights-related provisions of both a justiciable and non-justiciable nature. Article 42 provides that:

4. The State shall provide for free primary education and shall endeavour to supplement and give reasonable aid to private and corporate educational initiative, and, when the public good requires it, provide other educational facilities or institutions with due regard, however, for the rights of parents, especially in the matter of religious and moral formation. […]

Type
Chapter
Information
Social Rights Jurisprudence
Emerging Trends in International and Comparative Law
 , pp. 295 - 320
Publisher: Cambridge University Press
Print publication year: 2009

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References

,Constitution Review Group, Report of the Constitution Review Group (Dublin: Stationery Office, 1996), p. 391 (‘CRG’)
Quinn, G., ‘Rethinking the Nature of Economic, Social and Cultural Rights in the Irish Legal Order’, in Costello, C. (ed.), Fundamental Social Rights: Current European Legal Protection and the Challenge of the EU Charter on Fundamental Rights (Dublin: Trinity College, 2001), pp. 35–54, at 49
Whyte, G., Social Inclusion and the Legal System – Public Interest Law in Ireland (Dublin: Institute of Public Administration, 2002), p. 19
Whyte, G. and Hogan, G. (eds.), J.M. Kelly: the Irish Constitution, 4th edition (Dublin: Butterworths, 2003), pp. 2077–86
Hogan, G., ‘Directive Principles, Socio-Economic Rights and the Constitution’, Irish Jurist, Vol. 36 (2001), pp. 174–98, at 179–81Google Scholar
O'Cinneide, C., ‘Grasping the Nettle: Irish Constitutional Law and Direct Effect’ in Fedtke, J. and Oliver, D. (eds.), Human Rights in the Private Sphere (London: Cavendish, 2007), 213, p. 220Google Scholar
Symmons, C. R., ‘The Incorporation of Customary International Law into Irish Law’ in Biehler, G. (ed.), International Law in Practice: An Irish Perspective (Dublin: Thompson Roundhall, 2005), pp. 111–183Google Scholar
Biehler, G., ‘International Law Procedures’, in Biehler, G., (ed.), International Law in Practice: An Irish Perspective (Dublin: Thompson Roundhall, 2005), pp. 184–240, at 197–8Google Scholar
Ryan, F., Constitutional Law (Dublin: Round Hall, 2001), p. 55Google Scholar
,Free Legal Advice Centres, Access to Justice: A Right or a Privilege? (Dublin: FLAC, 2005), p. 7Google Scholar
O'Mahony, C., ‘Education, Remedies and the Separation of Powers’, Dublin University Law Journal, Vol. 24 (2002), pp. 57–95, at 76Google Scholar
Ely, J., Democracy & Distrust: A Theory of Judicial Review (Cambridge, MA: Harvard University Press, 1980)Google Scholar
,Irish Human Rights Commission, Making Economic, Social and Cultural Rights Effective: An IHRC Discussion Document (Dublin: IHRC, 2005), p. 112Google Scholar
Casey, J., Constitutional Law in Ireland (Dublin: Roundhall, 2000), pp. 404–410Google Scholar
O'Mahony, C., ‘The Right to Education and “Constitutionally Appropriate” Provision’, Dublin University Law Journal, Vol. 28 (2006), p. 422Google Scholar
Dooley, R. & Corbett, M., ‘Child Care, Juvenile Justice and the Children Act 2001’, Irish Youthwork Scene: A Journal for Youth Workers, No. 36 (2002)Google Scholar
Doyle, O. & Whyte, G., ‘The Separation of Powers and Constitutional Egalitarianism after the Health (Amendment) No. 2 Bill Reference’, in O'Dell, E. (ed.), Older People in Modern Ireland: Essays in Law and Policy (Dublin: Firstlaw, 2006), pp. 393–426, at 425.Google Scholar
Blacam, M., ‘Children, Constitutional Rights and the Separation of Powers’, Irish Jurist, Vol. 36 (2002), pp. 113–142, at 131Google Scholar
Minow, M., Making All the Difference – Inclusion, Exclusion and American Law (London: Cornell University Press, 1990), p. 369Google Scholar
O'Mahony, C., ‘A New Slant on Educational Rights and Mandatory Injunctions?’ Dublin University Law Journal, Vol. 27 (2005), pp. 363–367, at 365)Google Scholar
Carolan, M., ‘Judge Finds Housing Codes Breaches Rights’ Irish Times, 9 May 2008Google Scholar

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  • Ireland
  • Edited by Malcolm Langford
  • Book: Social Rights Jurisprudence
  • Online publication: 05 June 2012
  • Chapter DOI: https://doi.org/10.1017/CBO9780511815485.018
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  • Ireland
  • Edited by Malcolm Langford
  • Book: Social Rights Jurisprudence
  • Online publication: 05 June 2012
  • Chapter DOI: https://doi.org/10.1017/CBO9780511815485.018
Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

  • Ireland
  • Edited by Malcolm Langford
  • Book: Social Rights Jurisprudence
  • Online publication: 05 June 2012
  • Chapter DOI: https://doi.org/10.1017/CBO9780511815485.018
Available formats
×