Fundamental rights under the Irish Constitution
The Irish Constitution recognises and declares that people living in Ireland have certain fundamental personal rights. These rights are natural human rights and are confirmed and protected by the Constitution.
Not every fundamental right that you possess is set out in the Constitution - you have many personal rights that are not specifically stated in it. These rights may be derived or implied from the Constitution. For example, the Constitution does not specifically state a right to privacy but the courts recognise that the personal rights in the constitution imply the right to privacy.
Fundamental rights are not absolute - they can be limited or restricted by the Oireachtas for certain reasons, for example, for the common good or public order.
Every constitutional right has the same status and value. If there is a conflict between the constitutional rights of individuals, the courts will look at all the circumstances and weigh all of the factors to decide which constitutional right is more important in that particular case.
Main constitutional rights
Equality before the law
All citizens shall be held equal before the law (Article 40 of the Constitution). This means that the State cannot unjustly, unreasonably or arbitrarily discriminate between citizens. You cannot be treated as inferior or superior to any other person in society simply because of your human attributes or your ethnic, racial, social or religious background.
However, when the State is making laws, it may consider differences of capacity and of social function between individuals in society.
Right to life
The Constitution specifically recognises and protects your right to life.
Your right to life also means the right to have nature take its course and to die a natural death. That does not mean that you have the right to have your life terminated or death accelerated. Your right to die is simply the right to die a natural death and not to be kept alive by artificial means.
In 1983, a constitutional amendment inserted the following text into the Constitution (Article 40.3.3):
"The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right."
In May 2018, the people voted in a referendum to replace this text and related provisions with an amendment allowing the Oireachtas to pass laws regulating the termination of pregnancy. The Health (Regulation of Termination of Pregnancy) Bill 2018 is currently going through the Oireachtas.
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 freedom but legislation may provide for your arrest and detention in certain circumstances. The State may only breach your right to personal liberty in circumstances that come within a law that provides for your arrest and/or detention.
If you believe that you are being detained or held unlawfully, you can make an application to the High Court. If the person or institution detaining you cannot justify your detention or prove that it is lawful, the High Court may order that you be released. This is called a habeas corpus order.
Freedom of expression
You have a right to freely express your convictions and opinions (Article 40.6.1.i). However, the Constitution asserts that the State should try to make sure that the radio, the press and the cinema are not used to undermine public order or morality or the authority of the State. It also states that it is an offence to publish or utter blasphemous, seditious or indecent matter.
Following a referendum in May 2018, the Thirty-seventh Amendment of the Constitution (Repeal of offence of publication or utterance of blasphemous matter) Act 2018 has removed the word “blasphemous” from the Constitution.
There are some limitations on your freedom of expression. For example, the Censorship of Publications Acts and the Censorship of Films Acts allow censorship of publications like books, films and DVDs.
Freedom of assembly
You have a right to assemble or meet peacefully and without weapons (Article 40.6.1.ii). This right is limited by legislation to protect public order and morality. The law prevents or controls meetings that are calculated or designed to cause a riot or breach of the peace.
There are other limitations on your freedom of assembly. You cannot meet on private property without the consent of the owner - that is trespass. Parades and processions are not illegal but it is a public nuisance to obstruct a highway. You may not hold a procession or meeting within half a mile of the Houses of the Oireachtas when it has been prohibited by the Gardaí or you have been asked 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 purpose you choose, whether it is sporting, social, charitable, commercial or political.
This right is limited by legislation to protect public order and morality. For example, associations formed for the purpose of treason or some anti-constitutional or illegal purpose cannot rely on this right to freedom of association.
The right to fair procedures
The courts, and all other bodies or persons making decisions that affect you, must treat you fairly. There are two essential rules of fair procedure.
- 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.
You have a right not to have your body or person interfered with. This means that the State may not do anything to harm your life or health.
If you are in custody, you have a right not to have your health endangered while in prison.
Trial by jury
Your right to trial by jury only exists in certain criminal cases.
If you have been charged with a "non-minor" offence, you will be tried by a judge sitting with a jury. There are some offences for which you will be given a choice - whether you want to have your case decided by a District Court judge sitting alone or by a judge sitting with a jury.
The jury must consist of non-lawyers who have been chosen at random from a diverse range of jurors from the community.
Article 44 of the Constitution deals with religion.
You are free to practise your religion and your freedom of conscience. The State guarantees not to endow or favour any religion and not to discriminate on the grounds of religion.
State aid for schools cannot discriminate between schools of different religious denominations. Every child has the right to attend a denominational school receiving State funding without having to participate in religious instruction in the school.
Your right to religious liberty may be limited to protect public order and morality.
The right to privacy
The Constitution does not specifically state a right to privacy but the courts recognise that the personal rights in the Constitution imply the right to privacy.
For example, your private written communications and telephone conversations cannot be deliberately, consciously and unjustifiably interfered with. However, your right to privacy may be limited or restricted by legislation in 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 are male or female.
The State has a duty to protect your right to work and earn a livelihood from unjust attack.
Freedom to travel
You have a right to move freely within the State. You also have a broader right to travel and to get a passport for the purpose of travelling.
Your right to a passport may be restricted or limited. For example, before granting you bail, a court may require you to hand over your passport. The State may also restrict your right to travel for the purposes of national security.
Inviolability of a citizen's dwelling
The Constitution declares that the dwelling of a citizen is inviolable and shall not be entered forcibly except in accordance with the law. This means that no one, including the Gardaí, may enter the place where you live without a warrant or other legal authority to enter.
If you are arrested as a result of an unlawful entry into your home, your arrest is illegal. Evidence obtained as a result of an unlawful entry onto your dwelling is inadmissible in court.
The Constitution declares that the State will vindicate the property rights of every citizen. This means that you have a right to own, transfer and inherit property. You also have the right to bequeath property upon your death. The State guarantees to pass no law to abolish these rights.
Article 43 acknowledges that these rights ought to be regulated by the principles of social justice. This means that the State may pass laws limiting your right to private propety in the interests of the common good. If the State passes a law that restricts your property rights, it may be required to compensate you for this restriction.
Examples of restrictions or limitations on your right to own property include town and regional planning, protection of national monuments, compulsory acquisition of land and property taxes.
The rights of the family
The family founded on marriage possesses a collection of constitutional rights. These include:
- The right to marital privacy. This means that couples may 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. Read more about prisoners' rights.
- 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 pay 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.
There is a constitutional principle that married parents have equal rights to and are joint guardians of their children. If the parents separate or divorce, the courts may decide who will have custody of the children. The paramount consideration is the welfare of the children.
The rights of children
Article 42A was added to the Constitution in 2015. It affirms children’s natural and imprescriptible rights and the State’s duty to uphold these rights. Children have the right for their best interests to be of paramount consideration where the State seeks to intervene to protect their safety and welfare.
This right applies in all court proceedings concerning adoption, guardianship, custody, and access. In these proceedings, children also have the right to have their views ascertained and considered by the courts. The courts are to have regard to a child’s age and maturity when considering their views in accordance with this right.