Fundamental rights under the Irish Constitution (2023)

The Irish Constitutionrecognises and declares that people living in Ireland have certain fundamentalpersonal rights.

Articles 40 to 44 set out these fundamental rights. Many of the rights applyto everyone living in Ireland, including non-Irish citizens.

The rights that are set out in these articles have been interpreted by thecourts, and some articles have been amended since the Constitution was writtenin 1937. The courts have found that some rights are protected by theConstitution, even though they are not explicitly mentioned in the text.

Fundamental rights are not absolute - they can be limited or restricted bythe Oireachtas for certain reasons (for the common good or to keep public orderfor example).

If there is a conflict between two or more constitutional rights in a case,the courts will look at all the circumstances and weigh all of the factors todecide how that particular conflict is to be dealt with. For instance, there isoften a clash between one person’s right to freedom of expression and anotherperson’s right to their good name.

Article40 sets out ‘personal rights’, including:

Equality before the law

All citizens shall be held equal before the law (Article 40.1 of theConstitution). This means that the State cannot unjustly, unreasonably orarbitrarily discriminate between citizens. You cannot be treated as inferior orsuperior to any other person in society simply because of your human attributesor your ethnic, racial, social or religious background.

However, when the State is making laws, it may consider differences ofcapacity and of social function between individuals in society.

Right to life

The Constitution specifically recognises and protects your right to life(Article 40.4).

Your right to life also means the right to have nature take its course andto die a natural death. That does not mean that you have the right to have yourlife terminated or death unnaturally accelerated.

In May 2018, the people voted in a referendum to allow the Oireachtas topass laws regulating the termination of pregnancy. The Health (Regulation ofTermination of Pregnancy) Act 2018 was signed into law on 20 December2018.

Personal liberty

The Constitution guarantees that you have a right to liberty and freedom,except in accordance with the law (Article 40.4).

This means that, in general, you are entitled to your own personal freedomexcept where regulated by law. In addition, the law may provide for yourdetention in certain circumstances and the State may only breach your right topersonal liberty in circumstances that come within that law.

If you believe that you are being detained orheld unlawfully, you can make an application to the High Court. If the personor institution detaining you cannot justify your detention or prove that it islawful, the High Court may order that you be released. This is called ahabeas corpus order.

You have a right to move freely within the State. You also have a broaderright to travel and to get a passport for the purpose of travelling.

Your right to a passport may be restricted or limited. For example, beforegranting you bail,a court may require you to hand over your passport. The State may also restrictyour right to travel abroad for the purposes of national security.

Freedom of expression

You have a right to freely express your convictions and opinions (Article40.6.1.i). However, that right can be limited in the interests of public orderand morality. You can also not use this right to defame someoneelse as this would interfere their constitutional right to a good name.

The Constitution also states that it is an offence to publish or utterseditious (material undermining the authority of the State or advocating forthe overthrow of the State) or indecent material.

Following a referendum in May 2018, the Thirty-seventhAmendment of the Constitution (Repeal of offence of publication or utterance ofblasphemous matter) Act 2018 was passed. Blasphemy is no longer aconstitutional offence.

The State is also obliged by the Constitution to make sure that media suchas the radio, the press and the cinema are not used to undermine public orderor morality or the authority of the State. For example, the Censorship ofPublications Acts and the Censorship of Films Acts allow censorship ofpublications like books, films and DVDs.

Freedom of assembly

You have a right to assemble or meet peacefully and without weapons (Article40.6.1.ii). This right is limited by legislation to protect public order andmorality. The law prevents or controls meetings that are calculated or designedto cause a riot or breach of the peace or which may be a danger to the generalpublic.

There are other limitations on your freedom of assembly. You cannot meet onprivate property without the consent of the owner - that is trespass. Paradesand processions are not illegal but it is a public nuisance to obstruct ahighway without authorisation.

You may not hold a procession or meeting within half a mile of the Houses ofthe Oireachtas when a chief superintendent or higher ranking garda informs theorganisers of such an event that it is prohibited or where any garda withinthat half-mile radius asks you to disperse.

Freedom of association

The Constitution guarantees your right to form associations and unions(Article 40.6.1.iii). You may form any type of association for whatever purposeyou choose, whether it is sporting, social, charitable, commercial orpolitical.

This right is limited by legislation to protect public order and morality.For example, associations formed for the purpose of treason or someanti-constitutional or illegal purpose cannot rely on this right to freedom ofassociation.

Similarly, you can’t force someone to join any particular association orunion or always force a union or association to accept you.

The right to fair procedures

The courts and all public bodies or persons making decisions that affectyour constitutional rights must treat you fairly. Two of the essentialcomponents of fair procedures in this context are:

  • The person making the decision that affects you should not be biased or appear to be biased.
  • You must be given an adequate opportunity to present your case. You must be informed of the matter and you must be given a chance to comment on the material put forward by the other side.

Bodily integrity

You have a right not to have your body or person unjustifiably interferedwith. A person can only interfere with your body with a valid justification andin a proportionate manner. Similarly, you have a right not to be subjected totorture, inhumane or degrading treatment.

If you are in custody, you have a right not to have your health endangeredwhile inprison.

Trial by jury

Your constitutional right to trial by jury only exists in certain criminalcases.

If you have been charged with a "non-minor"offence, you will be tried by a judge sitting with a jury. There are someoffences for which you will be given a choice - whether you want to have yourcase decided by a District Court judge sitting alone or by a judge sitting witha jury.

The jury must consist ofthose who have been chosen at random from a diverse range of jurors from thecommunity.

The right to privacy

The Constitution does not specifically state a right to privacy but thecourts recognise that the personal rights in the Constitution imply the rightto privacy. It has sometimes been described as the right “to be let alone”in private settings.

For example, your private written communications and telephone conversationscannot be deliberately, consciously and unjustifiably interfered with. Yourrights to cast a secret ballot in elections and to the confidentiality ofmedical details are other examples of the right to privacy in action.

However, your right to privacy may be limited or restricted by legislationin the interests of the common good, public order and morality.

The right to earn a livelihood

As a citizen, you have a right to work and to earn a living, whether you aremale or female. However, that general right doesn’t mean that you can insiston being employed in a particular role or area or by a particular employer.

The State has a general duty to protect your right to work and earn alivelihood from unjust attack.

Inviolability of a citizen's dwelling

The Constitution declares that the dwelling of a citizen isinviolable and shall not be entered forcibly except in accordance withthe law (Article 40.5). This means that no one, including the Gardaí, mayenter the place where you live without a warrant or other legal authority toenter.

If you are arrested as a result of an unlawful entry into your home, yourarrest is illegal. Evidenceobtained as a result of an unlawful entry onto your dwelling may beinadmissible in court.

The family founded on marriage possesses a collection of constitutionalrights (Article 41 and 42). These include:

  • The right to marital privacy.
  • The right of coupes to make their own decisions about family planning.
  • The right to consort together, to enjoy each other's company and to procreate. This right may be limited or restricted where a family member is in prison or where one spouse is not an Irish citizen. The right of parents to be the main and natural educators of their children. The State must respect your right as parents to provide for the religious, moral, intellectual, physical and social education of your children. The State cannot oblige you to send your children to school or to any particular type of school but it may require that children receive a certain minimum education.
  • The right to free primary education - this means that the State must contribute towards for your children's primary education. State aid for schools must not discriminate between schools of different religions.
  • The right to decide the religion of your children. The State cannot interfere with this right.

Many of these rights equally apply to non-marital families.

There is a constitutional principle that married parents have equal rightsto and are joint guardians of their children. If the parents separate ordivorce, the courts may decide who will have custodyof the children. The paramount consideration is the welfare of thechildren.

The rights of children

Article 42A was added to the Constitution in 2015. It affirms children’snatural and imprescriptible rights and the State’s duty to uphold theserights. Children have the right for their best interests to be of paramountconsideration where the State seeks to intervene to protect their safety andwelfare.

This right applies in all court proceedings concerning adoption,guardianship, custody, and access. In these proceedings, children also have theright to have their views ascertained and considered by the courts. The courtsare to have regard to a child’s age and maturity when considering their viewsin accordance with this right.

The Constitution declares that the State will vindicate the property rightsof every citizen. This means that you have a right to own, transfer and inheritproperty. You also have the right to bequeathproperty upon your death. The State guarantees to pass no law to abolishthese rights.

Article 43 acknowledges that these rights ought to be regulated by theprinciples of social justice. This means that the State may pass laws limitingyour right to private property in the interests of the common good. The mostcommon form of limitation is taxation on ownership, transfer andinheritance.

Other examples of restrictions or limitations on your right to own propertyinclude town and regional planning, protection of national monuments,compulsory acquisition of land.

If the State passes a law that otherwise restricts your property rights, itmay be required to compensate you for this restriction.

Article44 of the Constitution deals with religion.

You are free to practise your religion and your freedom of conscience. TheState guarantees not to endow or favour any religion and not to discriminate onthe grounds of religion.

State aid for schools cannot discriminate between schools of differentreligious denominations. Every child has the right to attend a denominationalschool receiving State funding without having to participate in religiousinstruction in the school.

Your right to religious liberty may be limited to protect public order andmorality.

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