Fundamental rights under the Irish Constitution
The Irish Constitution recognises and declares that people living in Ireland have certain fundamental personal rights.
Articles 40 to 44 set out these fundamental rights. Many of the rights apply to everyone living in Ireland, including non-Irish citizens.
The rights that are set out in these articles have been interpreted by the courts, and some articles have been amended since the Constitution was written in 1937. The courts have found that some rights are protected by the Constitution, even though they are not explicitly mentioned in the text.
Fundamental rights are not absolute - they can be limited or restricted by the Oireachtas for certain reasons (for the common good or to keep public order for 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 to decide how that particular conflict is to be dealt with. For instance, there is often a clash between one person’s right to freedom of expression and another person’s right to their good name.
Article 40 sets out ‘personal rights’, including:
Equality before the law
All citizens shall be held equal before the law (Article 40.1 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 (Article 40.4).
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 unnaturally accelerated.
In May 2018, the people voted in a referendum to allow the Oireachtas to pass laws regulating the termination of pregnancy. The Health (Regulation of Termination of Pregnancy) Act 2018 was signed into law on 20 December 2018.
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 except where regulated by law. In addition, the law may provide for your detention in certain circumstances and the State may only breach your right to personal liberty in circumstances that come within that law.
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.
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 abroad for the purposes of national security.
Freedom of expression
You have a right to freely express your convictions and opinions (Article 40.6.1.i). However, that right can be limited in the interests of public order and morality. You can also not use this right to defame someone else as this would interfere their constitutional right to a good name.
The Constitution also states that it is an offence to publish or utter seditious (material undermining the authority of the State or advocating for the overthrow of the State) or indecent material.
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 was passed. Blasphemy is no longer a constitutional offence.
The State is also obliged by the Constitution to make sure that media such as the radio, the press and the cinema are not used to undermine public order or morality or the authority of the State. 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 or which may be a danger to the general public.
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 without authorisation.
You may not hold a procession or meeting within half a mile of the Houses of the Oireachtas when a chief superintendent or higher ranking garda informs the organisers of such an event that it is prohibited or where any garda within that 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 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.
Similarly, you can’t force someone to join any particular association or union 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 affect your constitutional rights must treat you fairly. Two of the essential components 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.
You have a right not to have your body or person unjustifiably interfered with. A person can only interfere with your body with a valid justification and in a proportionate manner. Similarly, you have a right not to be subjected to torture, inhumane or degrading treatment.
If you are in custody, you have a right not to have your health endangered while in prison.
Trial by jury
Your constitutional 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 those who have been chosen at random from a diverse range of jurors from the community.
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. It has sometimes been described as the right “to be let alone” in private settings.
For example, your private written communications and telephone conversations cannot be deliberately, consciously and unjustifiably interfered with. Your rights to cast a secret ballot in elections and to the confidentiality of medical details are other examples of the right to privacy in action.
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. However, that general right doesn’t mean that you can insist on 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 a livelihood from unjust attack.
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 (Article 40.5). 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 may be inadmissible in court.
The rights of the family
The family founded on marriage possesses a collection of constitutional rights (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 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.
Upcoming referendums on family and care
Two referendums will be held on 8 March 2024 to amend the Constitution.
The referendums propose to:
- Amend Article 41 of the Constitution to provide a wider concept of family, and
- Delete Article 41.2 of the Constitution, to remove the text on the role of women in the home, and to insert a new article (42B) to recognise family care
The General Scheme of the Amendment of the Constitution Bill 2023 has been published, which is draft legislation for these proposed amendments.
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 property in the interests of the common good. The most common form of limitation is taxation on ownership, transfer and inheritance.
Other examples of restrictions or limitations on your right to own property include town and regional planning, protection of national monuments, compulsory acquisition of land.
If the State passes a law that otherwise restricts your property rights, it may be required to compensate you for this restriction.
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.