Equality Before the Law

 

Article 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 differences of capacity, physical and moral, and of social function.

Introduction

Democracy is premised on equality. The American and French revolutions of the late eighteenth century were fought in the name of liberty and equality and, since then, these values have been central to western democracy. Since the two values do not always pull in the same direction, it has often been necessary to find an accommodation between them; but, whether in harmony or in competition, they have underpinned the relationship between the individual and the state and have determined the choice and formulation of many human rights norms.

Nowadays the constitutions of most European states contain guarantees of equality before the law, and the guarantee is included in international human rights texts, notably the International Covenant on Civil and Political Rights to which Ireland is party. It is not surprising that equality before the law should have been included by the drafters among the fundamental rights provisions of the 1937 Constitution.

In the words of the Universal Declaration of Human Rights, equality as a human right means that all human beings are equal in dignity and rights. This simple statement, however, belies the elusive nature of the concept and its often difficult application to particular circumstances.

 

The concept of equality

Equality is a measure of how society treats difference. It does not mean that differences should be ironed out in pursuit of uniformity or homogeneity. Rather it seeks to ensure that differences between people are not unjustly used to favour or to disadvantage some in relation to others and that disadvantage unjustly suffered by some persons as compared with others is rectified. A complex notion, it is nevertheless generally understood to comprise several dimensions.

First, equality requires that if a difference between persons is not relevant for a particular purpose, it should be ignored. Furthermore, if the difference is relevant but only partially so, in so far as it is not relevant, it should be ignored. The dimension of equality ensures that to the extent there is no material difference between persons, they are treated the same.

Secondly, equality endorses the recognition of pertinent differences and requires that persons be treated differently to the extent that there is a relevant difference between them. To treat persons the same when they are in fact already unequal is to perpetuate rather than to eliminate inequality. As the US Supreme Court has recognised, 'sometimes the greatest discrimination can lie in treating things that are different as though they were exactly alike' (Jenness Fortsom 403 US 431 (1971; or as our own Supreme Court has put it, 'Article 40 does not require identical treatment of all persons without recognition of differences in relevant circumstances' (O'Brien v Keogh [1972] IR 144 and de Búrca v Attorney General [1976] IR 38 per Walsh J).

Equality, therefore, prohibits both direct and indirect discrimination. The European Court of Justice (ECJ) explained these concepts of direct and indirect discrimination in Case C-279/93 Finanzamt Köln-Altstadt v Schumacker [1995] ECR 1 - 225 in the following terms:

It is also settled law that discrimination can arise only through the application of different rules to comparable situations or the application of the same rule to different situations.

Direct discrimination thus involves treating people differently when they are in a comparable situation and should be treated the same. It occurs when someone is disadvantaged or favoured in comparison to someone else by reference to some characteristic such as colour or religion and there is no good reason for distinguishing between them on this basis or the distinguishing characteristic does not justify the extent of the disadvantage or favour. Indirect discrimination involves treating people the same when they are in different situations and should be treated differently. It is determined by the differential impact of the same treatment on the members of one group of persons in comparison to the members of another. If such differential impact operates to the advantage or disadvantage of the members of one group rather than the other, then, unless such differential is capable of objective justification, the apparent equal treatment amounts to indirect discrimination. Both these dimensions of discrimination have been acknowledged by courts and other bodies in their interpretation of constitutional and international guarantees of equality before the law.

Equality is, however, more than the absence of discrimination, whether direct or indirect. The statement of equality is not solely a matter of individual effort. It involves the development of strategies which would actively promote a civil society based on principles of social, economic and political inclusion. This embraces the taking of positive measures to enable persons to overcome disadvantage and to afford them real equality of opportunity; and it is important to recognise that such measures do not constitute discrimination but rather promote equality.

Since the sources of disadvantage are multifarious, different measures may be needed to overcome different types of disadvantage. While it would probably not be possible in the Constitution to address the various different measures which are needed, some types of disadvantage may be of such importance as to warrant specific provision at the constitutional level for their elimination.

 

Limits of the existing guarantee of equality

The narrow wording of the guarantee and its interpretation by the courts have been widely observed and criticised by both academic and political commentators and in many of the submissions received by the Review Group. Consequently one of the main concerns of the Review Group has been to identify what, if any, extension of the guarantee may be desirable or necessary. Another has been to eliminate bias which, though it may be historically explicable, it today is socially and morally unacceptable. The Review Group has also considered whether other provisions, in addition to the guarantee of equality before the law, should be inserted in the Constitution in order to further the objective of equality.

 

Other constitutional provisions relating to equality

Article 40.1 is a general equality guarantee, but it does not stand alone as a safeguard against discrimination. Discrimination in specific areas and on specific grounds is dealt with in a number of other provisions. These are Article 9.1.3° (discrimination on the ground of sex in relation to nationality and citizenship), Article 16.1.1°, 2° and 3° (discrimination on the ground of sex as to eligibility for membership of Dáil Éireann), Article 40.6.2° (discrimination on the grounds of political opinion, religion or class in relation to freedom of assembly and of association), Article 44.2.3° (discrimination by the State on the grounds of religious profession, belief or status) and Article 44.2.4° (discrimination on the ground of religion in relation to the public funding of schools).

 

Issues

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

It has been submitted to the Review Group that equality should be denominated in the Constitution as a 'core norm' in order to emphasise its fundamental importance. Otherwise, it is suggested, it is in danger of losing out in the inevitable boundary adjustment between it and other rights. The proposal appears to envisage establishing the right to equality as having precedence over all or most other rights.

Arguments for

1 because democracy is premised on the principle of equality, it is desirable that it should be defined in the Constitution as a core norm which could inform, temper and qualify other constitutional provisions.

2 true liberty depends on equality in a broader than legal sense - on having the resources for effective participation in the democratic system. Exclusion from full and equal participation for whatever reason, economic, social, cultural or any other, weakens the sense of community and common purpose and thus makes more difficult the achievement of desirable reforms, such as the removal of unfair discrimination.

3 greater economic equality would lead to greater political stability on which the effective functioning of democracy depends.

4 there is a danger that the equality provisions of the Constitution might be interpreted as subordinate to other provisions unless the judiciary is expressly required by the Constitution to treat equality as a core norm.

Arguments against

1 it is not appropriate to introduce into the Constitution a form of ranking of fundamental rights, the consequences of which could not be predicted and might on occasion be undesired. Equality before the law is a fundamental right whose position will be strengthened by the constitutional amendments recommended later in this chapter.

2 the guarantee of equality before the law in Article 40.1 is an absolute guarantee which is already central and must inform the interpretation of other rights, many of which are expressly qualified.

3 the second and third arguments above in favour of the proposal are essentially political arguments for an optimum degree of socio-economic equality rather than strictly for equality before the law. The interrelationship between the two is acknowledged but the former is a policy issue appropriate to be addressed by Government and Oireachtas rather than by a constitutional assertion.

Recommendation

The Review Group considers that equality before the law is a fundamental right whose position will be strengthened by constitutional amendments recommended later in this chapter. However, a majority of the Review Group considers it unnecessary and inappropriate to designate a right to equality as taking precedence over others and prefers that reconciliation of rights, where they are in conflict, should remain a matter for the courts. A minority fears that the absence of such provision would mean that equality will be subordinated to other constitutional values.

2 whether the words 'as human persons' in Article 40.1 should be deleted or revised

The courts have cited the phrase 'as human persons' as a reason for affording a narrow interpretation to the material scope of the guarantee of equality before the law. Thus it has been said that the guarantee refers to human persons for what they are in themselves rather than to any lawful activities, trades or pursuits which they may engage in or follow (Quinn's Supermarket v Attorney General [1972] IR 1), and that it relates to the essential attributes of citizens as persons, those features which make them human beings, and has nothing to do with their trading activities or with the conditions on which they are employed (Murtagh Properties Ltd v Cleary [1972] IR 330).

This interpretation of human personality has been criticised and the Review Group is of the view that a textual amendment is desirable to secure a broader interpretation of the guarantee of equality. The phrase 'as human persons' is not found in constitutional guarantees of equality before the law in other jurisdictions or in international instruments to which Ireland is a party.

Recommendation

The words 'as human persons' should be deleted.

3 whether the guarantee of equality should be limited to citizens

The distinction between citizens and non-citizens may be a relevant distinction for some purposes, for example, entry into the State, but it is questionable whether the constitutional guarantee of equality should be limited a priori to citizens. Equality before the law is a fundamental human right, and fundamental human rights inhere in all human beings by virtue of their humanity not merely in citizens. Extension of the guarantee to everyone does not preclude the State from distinguishing between citizens and non-citizens where there is a legitimate reason for so doing, for example in relation to voting and immigration.

Recommendation

The guarantee of equality should not be confined to citizens but should extend to all individuals.

4 whether the guarantee of equality should be extended to other persons or bodies in addition to natural persons

The courts have held that the right-holders under Article 40.1, as worded, are human beings as individuals and not collective or legal persons such as companies, churches or trade unions (Quinn's Supermarket v Attorney General). This means that the guarantee does not extend to the collective or legal bodies through which individuals often pursue their common interests, and it has been suggested that collectivities or groups should also be entitled to this guarantee.

The Review Group considers, however, that equality is a fundamental human right inherent in individuals and is not so in legal bodies which vary greatly in their nature and purpose.

Recommendation

The Review Group recommends that the guarantee of equality should not be extended to legal persons or collective bodies.

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

The question whether Article 40.1 is enforceable against persons or bodies other than the State is a potentially troublesome one. There have been some (very slight) judicial hints that Article 40.1 may apply to the private law arena: see Murtagh Properties Ltd v Cleary. In addition, the courts have held in some cases that other constitutionally guaranteed rights were enforceable against a non-State entity: see Glover v BLN Ltd [1973] IR 388. At the same time, there are indications that the courts are unwilling to apply the Constitution to purely commercial relationships between private parties, as this might represent, in the words of McCracken J in Carna Foods Ltd v Eagle Star Insurance Co (Ireland) Ltd [1995] 1 IR 526 a 'serious interference in the contractual position of parties in a commercial contract'.

One immediate problem is the question of what constitutes the State for this purpose. Although there is no authoritative judicial ruling on this question, it would seem that the addressees of Article 40.1 include local authorities, but difficulties may arise in borderline cases such as State-sponsored bodies, universities and bodies established by statute. Similar difficulties have arisen in the United States where the US Supreme Court has ruled that the equality provisions of the 14th Amendment 'erect no shield against merely private conduct, however discriminatory or wrongful': Shelley v Kraemer 334 US 1 (1948). This case concerned the enforcement of restrictive covenants contained in conveyances precluding the purchase of property by persons of designated races and the court noted that for so long as 'those agreements are effectuated by voluntary adherence to their terms, it would appear clear that there has been no action by the State and the provisions of the Amendment have not been violated'. However, in this case there was more, as the covenants 'were secured only by judicial enforcement by state courts of the restrictive terms of the agreement' and accordingly, this was held to constitute 'State action' and hence, trigger the application of the equality guarantee. This decision has subsequently given rise to a series of complex judicial decisions on the question of State action: see, for example, Burton v Wilmington Parking Authority 365 US 715 (1961) where it was held that the fact that a restaurant was a lessee of a State authority was sufficient to ensure that the 14th Amendment applied. The extension of this doctrine in cases such as Burton has been criticised by a noted commentator on the ground that it fails to take account of the special cases where the individual's liberty, privacy and autonomy should outweigh 'even the equal protection of the laws': see Henkin, 'Shelley v Kraemer: Notes for a Revised Opinion' in 110 University of Pennsylvania Law Review 473 (1962). The US Supreme Court has, to some extent, drawn back from the Burton decision by holding in Moose Lodge v Irvis 407 US 163 (1972) that all State involvement, however indirect, is sufficient to attract the application of the equal protection doctrine. In that case it was held that the grant of a liquor licence was not sufficient State action, because discrimination:

by an otherwise private entity would be violative of the Equal Protection Clause [of the 14th Amendment] if the private entity receives any sort of benefit or service at all from the State, or if it is subject to State regulation in any degree whatsoever. Since State-furnished services include such necessities of life as electricity, water, police and fire protection, such a holding would utterly emasculate the distinction between private as distinguished from State conduct.

It may also be noted that the German and Italian courts lean against giving the equality principle a 'horizontal effect', that is, they confine its application to the State and do not apply it to third parties: see Kelly, 'Equality before the Law in Three European Jurisdictions', 1983, Irish Jurist 259. While the Irish jurisprudence in this area is surprisingly undeveloped, it would seem that persons deriving their authority from statute or otherwise exercising public law functions probably constitute the State for the purposes of Article 40.1.

The second question is whether Article 40.1 should apply to private organisations such as trade unions, banks and insurance companies. Because such bodies exercise enormous influence and control over the lives of people, it has been suggested that the obligation should be extended to them in addition to the State. While an extension of the obligation to all persons might be seen as too broad-ranging, if not altogether unworkable, the question of whether Article 40.1 should be extended to cover some such bodies deserves to be considered.

Argument for extension

1 discrimination is often practiced by persons and bodies other than the State. A more extensive obligation to respect would afford constitutional protection to the victims of such discrimination.

Arguments against

1 a constitution regulates the relations between an individual and the State. The regulation of relations between individuals is a legislative matter.

2 it would constitute an unjustified intrusion upon individual autonomy

3 on occasion it would conflict with other fundamental rights such as freedom of expression and of association

4 it is difficult to identify to whom other than the State the obligation should apply

5 it is preferable to leave it to the Oireachtas to determine particular areas of activity to which the guarantee of equality should be applied as it has done, for example, in the area of employment law.

Recommendation

The Review Group considers that the constitutional obligation to respect equality should not be directly enforceable against persons or bodies other than the State and public bodies.

6 whether the State's obligation should encompass a duty to ensure respect for equality by persons and bodies other than the State

It is clear that the State's obligation to respect equality applies to the exercise of State authority. It would seem that all arms of government are bound thereby: the administration, the executive, the legislature and the judiciary; certainly the equality guarantee has been so interpreted in other jurisdictions.

While the State may, for example by legislation, impose an obligation on other persons and bodies to respect equality, at present it is not clear whether and, if so, to what extend, the State is required by the Constitution to endure respect for equality by other persons and bodies.

Arguments for extension of the State's obligation

1 discrimination is often practised by persons and bodies other than the State, and a State obligation to ensure respect for equality by other persons and bodies would afford constitutional protection to victims of such discrimination.

2 equality is such a fundamental democratic value that the State should ensure it is generally respected.

Arguments against

1 it would constitute an unjustified intrusion upon individual autonomy

2 on occasion it would conflict with other fundamental rights such as freedom of expression and of association

3 the extent of the State's obligation to ensure that other persons and bodies respect equality would be unclear

4 it is undesirable and contrary to the separation of powers that the courts should have the power to require State action, for example legislation, to ensure equality in private relations. Such matters are more properly regarded as policy issues to be determined by the Government and/or the Oireachtas

5 an obligation on the State to ensure general respect for equality is more appropriately addressed in the Constitution as a non-justiciable directive of social policy.

Recommendation

There should be no enforceable constitutional obligation on the State to ensure respect for equality by persons or bodies other than the State and public bodies.

7 whether the second sentence of Article 40.1 should be deleted, extended or replaced

The second sentence of Article 40.1 specifies some legitimate bases for the differential treatment of persons, namely, physical and moral capacity and function. The qualification contained in the second sentence was intended to accommodate the differences of capacity and of social function which often compel different treatment by the law: see the comments of Mr de Valera at 67 Dáil Debates 1590. A good statement of how this second sentence should operate was provided by the judgment of Henchy J in Dillane v Ireland [1980] ILRM 167:

When the State... makes a discrimination in favour of, or against, a person or category of persons, on the express or implied grounds of a difference of social function the courts will not condemn such discrimination as being in breach of Article 40.1 if it is not arbitrary, capricious, or otherwise not reasonably capable, when objectively viewed in the light of the social function involved, of supporting the selection or classification complained of.

Unfortunately, the second sentence has too frequently been used by the courts as a means of upholding legislation by reference to questionable stereotypes, thereby justifying discrimination against, for example, an unmarried person as compared with a married person (The State (Nicolau) v An Bord Uchtála [1966] IR 567) and a man is compared with a woman: Norris v Attorney General [1984] IR 36; Dennehy v Minister for Social Welfare (1984) and Lowth c Minister for Social Welfare [1984] ELR 119. Moreover, the second sentence is not exhaustive since the courts have regarded discrimination on other bases as justified: see, for example, O'B v S [1984] IR 316.

A further difficulty is that the second sentence refers to 'enactments' of the State. The use of this word suggests that the second sentence can be invoked in the context of legislation only, for example that the State is required to abide by a type of formalistic equality by treating everyone the same - regardless of relevant differences - unless legislation allows for differing treatment. A further problem is that there appears to be authority for the view that the reference to 'enactments' confines the application of Article 40.1 to the operation of statutory law and common law, as the Supreme Court has ruled that Article 40.1 does not apply to international agreements such as treaties: McGimpsey v Ireland [1990] 1 IR 110. There also appears, however, to be some subsequent authority for the view that Article 40.1 is a more free-ranging concept which can apply to purely executive acts, divorced from the legislative context: see, for example, the comments of Denham J in Howard v Commissioners of Public Works [1994] 1 IR 101 and the judgments of Blayney and Denham JJ in McKenna v An Taoiseach (No 2) [1995] 2 IR 10.

In order to make it clear that legislative distinctions may legitimately be made on other grounds and to counteract any judicial tendency to reinforce inequality on the grounds of respecting differences of capacity or social function, it may be desirable to delete, extend or replace this sentence.

Arguments for deletion

1 there are many grounds in addition to physical or moral capacity and social function on which differential treatment is justified and it is not possible to list these grounds exhaustively

2 the named grounds have on occasion been interpreted by members of the judiciary in such a way which perpetuated stereotypes and thereby endorse inequality where these stereotypes are based on unequal social relationships

3 removal of the references to differences of capacity and of social function would facilitate a more egalitarian interpretation of the provision.

Argument for extension

1 explicit constitutional protection for legislative distinctions is desirable and the grounds need to be extended to cater for other acceptable bases of distinction.

Argument for replacement

1 explicit provision should be made in the text of Article 40.1 to make it clear that the Oireachtas may differentiate between people when there is a valid reason for so doing and any such different treatment is proportionate. Such a provision might read:

This shall not be taken to mean that the State may not have due regard to relevant differences.

Argument for retention

1 physical or moral capacity and social function are widely accepted as legitimate grounds for differential legislative treatment.

Recommendation

A majority of the Review Group favours the replacement of the second sentence in Article 40.1 by:

This shall not be taken to mean that the State may not have due regard to relevant differences.

This recasting of the second sentence will entail the dropping of the reference to 'in its enactments'. This phrase is too restrictive and the Review Group is of the opinion that the State should not only be generally bound by the precept of equality, but should also be permitted to have regard, where appropriate, to relevant differences even if this has not been expressly sanctioned by legislation.

8 whether there should be an express prohibition of direct and indirect discrimination on specified grounds

A guarantee of equality before the law is capable of being interpreted in a way which does not prohibit all discrimination by the State. 'Law' may be construed to mean legislation only, though it has not been so narrowly construed by the courts which have been prepared to strike down common law distinctions as contrary to the guarantee of equality before the law:see, for example, W v W [1993] 2 IR 476. The courts have also regarded the guarantee as applying to the conduct of the courts themselves and to executive action which is legislatively based. However, the guarantee probably does not extend to State activities which have no legal basis; and the Review Group is of the opinion that it is desirable that there be included in Article 40.1 an express prohibition of discrimination which would apply to all State activities and would strengthen the guarantee of equality.

The Review Group is further of the opinion that both direct and indirect discrimination should be expressly prohibited. While a prohibition on discrimination or guarantee of equality before the law is capable of being interpreted to catch both direct and indirect discrimination, it seems that the courts do not always regard the latter as falling within the scope of Article 40.1: see for example Draper v Attorney General [1948] IR 277. Explicit provision has been made in the constitutions of a number of other countries and in international human rights texts for the prohibition of indirect discrimination, and the Review Group considers it desirable that Article 40.1 should contain such a provision. Indirect discrimination can be as prejudicial and hurtful as direct discrimination to those who are the object of it. It is often less apparent than direct discrimination and can easily be overlooked.

The Review Group received submissions from many sources urging the specification of prohibited grounds of discrimination, and believes that an express prohibition on specified grounds would be reassuring to those groups the members of which would be protected thereby.

Typical grounds of prohibited discrimination in the constitutions of other countries and in international human rights instruments (Including the International Covenant on Civil and Political Rights and the European Convention on Human Rights to both of which Ireland is a party) are: sex, race, colour, language, religion, political or other opinion, national, social or ethnic origin, property, birth or other status. The listed grounds are usually illustrative rather than exhaustive. A majority of the Review Group favours an illustrative list which would include all of the universally agreed grounds specified above as well as age, disability, sexual orientation and, particularly in the Irish context, membership of the travelling community.

The Review Group notes that the word 'discrimination' is used in two different senses. It is sometimes used, as it has been by the courts in their interpretation of Article 40.1, without any pejorative connotation. Used in this sense, it signifies the differential impact of the same treatment on persons belonging to different categories, for example, women as distinct from men. Since there may exist good reason for the differential treatment or impact, some epithet such as 'unfair' or 'invidious' is needed to indicate that not all such discrimination is prohibited. At other times the word 'discrimination' itself carries pejorative connotations. It is regarded as occurring only where no objective justification exists for the differential treatment or impact. Because of this ambiguity in the use of the word, and in view of the sense in which it has been used by the courts in their interpretation of Article 40.1, the Review Group thinks it desirable that the prohibition be phrased in terms of unfair discrimination.

Recommendation

A majority of the Review Group recommends that there should be added to Article 40.1 a section in the following terms:

No person shall be unfairly discriminated against, directly or indirectly, on any ground such as sex, race, age, disability, sexual orientation, colour, language, culture, religion, political or other opinion, national, social or ethnic origin, membership of the travelling community, property, birth or other status.

9 whether there should be a separate provision expressly guaranteeing equality between women and men

Although women comprise 50.3% of the Irish population, they do not occupy a commensurate position in the economic, social and political spheres. They comprise almost 99% of homeworkers, but just 36% of the total employed labour force (Employment Equality Agency (EEA), Women in the Labour Force, Stationery Office, Dublin 1995). When women do enter paid employment they are disproportionately represented in the lower paid and insecure areas of the labour market: 72% of all part-time workers are women (see Blackwell, J and Nolan, B, 'Low Pay - The Irish Experience' in B Harvey and M Daly, Low Pay: The Irish Experience, Dublin 1990, p 11; EEA, op cit, pp 13-14). At the other end of the employment spectrum, men occupy the senior posts in most private and public sector organisations, and in all 86% of employers are men (EEA, op cit, pp 43 - 50; McCarthy, E, Transitions to Equal Opportunity at Work in Ireland, EEA, Dublin 1988; Central Statistics Office, Labour Force Survey 1993, Stationery Office, Dublin 1995). Men own most of the land in Ireland with 90% of farm holders being men; and women's dependency is reflected in both the tax and social welfare codes (See Second Commission on the Status of Women: Report to the Government, 1993).

The nature and scale of inequality between women and men are not unique to Ireland. It is a universal experience and historically has been a feature of most known societies. This fact is increasingly gaining worldwide recognition, and explicit provision has been made in the constitutions of several countries for equality between men and women (see, for example, Article 3(2) of the Basic Law of Germany). Such provisions are generally understood not only to afford protection against discrimination on the basis of sex but also to open the way for de facto equality between the sexes and to legitimise positive measures to accelerate the process. The advancement of the equality of the sexes has been accepted as a major goal by European states, and active consideration is currently being given by the member states of the Council of Europe to the adoption of an additional protocol to the European Convention on Human Rights whereby this equality would become an independent, justiciable human right.

Arguments for a separate provision

1 the historical and cross-cultural evidence of pervasive inequalities based on sex suggest that such inequalities need to be addressed at the constitutional level if they are to be overcome

2 it would accelerate de facto equality between women and men.

3 inequalities based on sex are increasingly being addressed in international human rights instruments and in the constitutions of other countries

4 it would have an important symbolic value since it would send out a message that women's continued subordination to men in so many institutions and systems is unacceptable and should be redressed.

Arguments against

1 it is invidious to include a special provision which addresses inequality on the basis of sex but not on other grounds

2 Article 40.1 in the recommended revised form, guarantees equality before the law for all individuals. This includes equality between men and women. If a separate express guarantee of equality between the sexes were included this might suggest that the general guarantee was not intended to be all-embracing and weaken its impact.

Conclusion

A majority of the Review Group does not regard it as necessary to have an express guarantee of equality between men and women having regard to the general guarantee of equality before the law and the prohibition on discrimination.

10 whether there should be explicit provision in relation to the burden of proof of discrimination

The burden of proof in a legal action lies on the plaintiff. It has often proved difficult in practice for persons who believe they have been the victims of discrimination to prove the existence in law of unfair treatment As a result, it has been suggested that the plaintiff can prove differential treatment on some basis to his or her detriment, then the burden of proving that there exists justification for the different treatment should shift to the defendant. Questions of proof are not generally regarded as constitutional matters, but there is constitutional precedent for regarding it as such in cases of alleged discrimination: see Annex following - section 8(4) of the constitution of South Africa. It may be desirable to include such a provision in the Constitution as an expression of the importance attached by the State to the elimination of discrimination.

Arguments for explicit provision

1 there is much evidence that it is particularly difficult for a plaintiff to satisfy the burden of proof in cases of alleged discrimination

2 the victims of discrimination are often vulnerable individuals who do not have the resources necessary to prove discrimination

3 while facilitating proof of discrimination by the plaintiff, it would not unfairly prejudice the defendant in that where justification exists for the differential treatment, the defendant would be able to plead such justification

4 the issue of the burden of proof is an important aspect of the achievement of equality.

Arguments against

1 a constitution should not concern itself with such matters of legal procedure

2 the issues relating to burden of proof are not susceptible to a single rule. The burden may shift several times within the one action. Justice can better be achieved by permitting such flexibility to continue.

Recommendation

A majority of the Review Group does not favour any change.

11 whether there should be a right to freedom from poverty and social exclusion

Economic inequalities need to be addressed if the social divisions in Ireland are to be contained and reduced. It has been suggested that one way of doing this at the constitutional level in the context of fundamental rights would be for the State to guarantee a general right to freedom from poverty and social exclusion. The Review Group has, therefore, considered whether such a right should be guaranteed by the Constitution.

The inclusion of such a right in the Constitution would render it justiciable.

The Government, through its endorsement of the National Anti-Poverty Strategy as outlined in Poverty, Social Exclusion and Inequality in Ireland (Inter-departmental Policy Committee on the National Anti-Poverty Strategy, Discussion Paper, 1995, p 3) has accepted the following definition of poverty:

People are living in poverty, if their income and resources (material, cultural and social) are so inadequate as to preclude them from having a standard of living which is regarded as acceptable by Irish society generally. As a result of inadequate income and resources people may be excluded and marginalised from participating in activities which are considered the norm for other people in society.

Poverty is defined herein not only as a state or condition of lack or want, but also as a relative condition in which a) one is deprived of a reasonable standard of living relative to others generally in society and b) as a result, one is excluded and marginalised from participating in activities which are considered the norm within society. Thus, poverty and social exclusion are linked; this is now the accepted way of defining poverty within the European Union poverty programmes.

Arguments for a right to freedom from poverty and social exclusion

1 because Ireland is a relatively wealthy society, it is appropriate that a constitutional provision be introduced giving all people a right to freedom from poverty.

Ireland occupies nineteenth place on the World Human Development Index for 1995, up from twenty-first place a few years previously. Yet economic inequalities are extensive, and pervasive over time. When poverty is measured in relative terms (which is now the accepted way of measuring it within Ireland), it has been shown that the number of people living in poverty increased between 1973 and 1987 (Poverty, Social Exclusion and Inequality in Ireland, op cit, p 6).

2 the tendency for relative poverty to rise suggests that some constitutional protection is necessary for the most vulnerable members of society.

3 because the Government endorsed a programme of action geared not only to eliminating absolute poverty in the developing world but a substantial reduction of overall poverty and inequalities at the national level (at the UN World Summit for Social Development, Copenhagen, March 1995), and because 1996 has been deemed the International Year for the Eradication of Poverty, it is both timely and appropriate that Ireland's commitment to the eradication of poverty 'as an ethical, social, political and economic imperative of humankind' (Copenhagen Declaration, Commitment 2) should find constitutional expression.

Argument against

The main arguments against inserting a personal right to freedom from poverty and social exclusion in the Constitution, and to providing specific personal economic rights, are summarised of the end of Issue 12 below, where the Review Group's majority recommendation also appears.

12 whether there should be provision for specific economic rights as a counterweight to economic inequality

Economic inequality in Irish society appears in the way in which wealth such as land and business capital is distributed, and in which income and welfare are structured. The 1987 Household Budget Survey undertaken by the ESRI shows that 75% of all households in Ireland own no farm land but the top 5% of all households own 66% of all net wealth in the form of farm land (see Nolan, B, The Wealth of Irish Households, Combat Poverty Agency, Dublin 1991, p 46). When it comes to private businesses, 1% of all households own 60% of all such wealth (ibid, p 52). In addition, inequality is maintained in pay agreements and welfare provisions. In 1987 terms, 28% of all employees within the State were earning a gross wage of £130 a week or less (Blackwell and Nolan, op cit, p 19). An estimated 30.4% live below the 'poverty line', defined as having an income 60% or less of the average industrial wage (see Callan, T and Nolan, B, Poverty and Policy in Ireland, Dublin 1994, p 32).

It has been estimated that, within Ireland, the richest 10% (measured in terms of disposable income) receive 25% of total income while the bottom 10% receive 2.5% The only countries within the twenty-five OECD countries with a more uneven distribution of income are the US and the UK (Atkinson et al, Income Distribution in OECD Countries: The Evidence from the Luxembourg Income Study, OECD, Paris 1995).

The constitutions of several countries and international human rights texts guarantee economic rights, and some of these rights are targeted at the alleviation of economic inequality.

Arguments for the provision of specific economic rights

1 constitutional recognition of some such right as the right of everyone to an adequate standard of living, including adequate food, clothing and housing, or a right to an adequate income, would signal a commitment by the State to ensuring the basic material needs of all persons within the State and would enable the judiciary to provide redress to anyone denied these minimum entitlements

2 such a constitutional provision would recognise (i) the interdependence between the resources which people own and control and their access to justice and other aspects of equality and (ii) the need for an assurance of basic economic rights as a counterweight to economic inequality

3 greater economic equality would lead to greater political stability on which the effective functioning of democracy depends. A society strongly polarised in economic terms is fundamentally unstable. The sources of instability include political alienation from the democratic process and the development of alternative 'economies' based on crime or illegal trading. The latter is particularly likely to happen in societies which encourage high levels of consumption through advertising, media images, etc, and thereby create high levels of aspiration for a wide range of goods and services. The message of pervasive consumption is universal, and is not confined to any one sector of society. The frustration arising from the inability to match aspiration and realisation is a fountain of political instability.

4 economic inequality and poverty are socially and economically dysfunctional as they result in inefficient use of talents and resources and substantial costs to the State (and this means the members of society generally) both directly via welfare, housing, health and other costs, and indirectly through the alienation and detachment which develops among those economically excluded from equal participation in society. Because of this it is desirable that economic inequalities should be proscribed at the constitutional level.

Arguments against including in the Constitution a personal right to freedom from poverty or specific economic rights

1 it is not contested that differentials in the distribution of income and wealth may be wider than society should accept or that policy should not properly be directed towards eliminating poverty, homelessness, exclusion or marginalisation, and other social ills. The main reason, however, why the Constitution should not confer personal rights to freedom from poverty, or to other specific economic or social entitlements, is that these are essentially political matters which, in a democracy, it should be the responsibility of the elected representatives of the people to address and determine. It would be a distortion of democracy to transfer decisions on major issues of policy and practicality from the Government and the Oireachtas, elected to represent the people and do their will, to an unelected judiciary

2 this may be illustrated by reference to the implications of conferring a constitutional right on everybody to freedom from poverty, a condition not susceptible to objective determination. It would then become a matter for judges in particular cases to determine what constitutes poverty (absolute or relative) and what minimum income would be needed, according to circumstances, to overcome it. Government and Oireachtas would have no discretion as to what amount of revenue could, or should, be raised from the public to fund the remedial requirement

3 the solving of economic and social problems is an integral element of any political agenda but the degree to which a solution can be sought or found must depend on the resources which the community is prepared to make available at any given time. It would not accord with democratic principles to confer absolute personal rights in the Constitution in relation to economic or social objectives, however desirable in themselves, and leave the Oireachtas with no option but to discharge the cost, whatever it might be, as determined by the judiciary.

4 there could, however, be no objection to expressing the substance of these objectives as directive principles addressed to Government and Oireachtas but not justiciable in the courts.

5 as regards inequalities of wealth and income, it is open to the Government and the Oireachtas to reduce such inequalities, to any desired extend, by fiscal policy measures. Moreover, the Constitution (Article 43) expressly envisages curtailment by the State of property rights in accordance with the principles of social justice and the exigencies of the common good

6 it is obviously important that no one should be allowed to fall below a minimum level of subsistence so as to suffer from a lack of food, shelter or clothing. If this should ever happen, despite the social welfare system, the Constitution appears to offer ultimate protection through judicial vindication of fundamental personal rights such as the right to life and the right to bodily integrity.

Recommendation

A majority of the Review Group agrees with the arguments stated above against the inclusion in the Constitution of a personal right to freedom from poverty or of specific personal economic rights.

13 whether there should be a separate provision for a right of effective access to the courts

Even if provision is made for substantive equality of rights, rights may be meaningless for persons who are not able to assert them. Persons may be intimidated by the legal process; they may not know how to go about enforcing those rights; or they may not be able to afford lawyers' fees. The Report to the Minister for Justice of the Committee on Civil Legal Aid (1977), chaired by Mr Justice Pringle, pointed out, inter alia, that people from disadvantaged communities are often unable to secure equal access to justice owing to lack of finance, insufficient knowledge of legal rights and the social and cultural gaps which exist between lawyers and potential clients. Since that date there have been some improvements in some respects: there is now, at least, a system of legal aid in place in civil cases (however inadequate this is considered to be) and the scheme itself has recently been placed on a statutory footing by the Civil Legal Aid Act 1995. As sections 24-28 of that Act specify the criteria governing the grant of legal aid, it may be anticipated that this will be judicially interpreted as giving certain enforceable legal rights to legal aid.

The Irish courts have not hitherto, generally speaking, been disposed to recognise a constitutional right to legal aid, although in more recent times there have been mixed signals in this regard. In O'Shaughnessy v Attorney General (1971) O'Keefe P rejected a plaintiff's claim that the provisions of the Criminal Justice (Legal Aid) Act 1962 were unconstitutional inasmuch as they did not provide for civil legal aid. Gannon J adopted a similar view in MC v Legal Aid Board [1991] 2 IR 43 and in Corcoran v Minister for Social Welfare [1992] ILRM 133 Murphy J rejected a similar claim in respect of the non-availability of civil legal aid before administrative tribunals. However, in Stevenson v Landy (1993) Lardner J held that the constitutional obligation with regard to the administration of justice meant that the Legal Aid Board was required to grant legal aid in circumstances where a mother likely to be affected by wardship proceedings had a 'worthwhile contribution' to make to the hearing of the case. And in Kirwan v Minister for Justice [1994] 2 IR 417 the same judge ruled that an applicant who was being detained in the Central Mental Hospital was entitled to free legal aid in respect of his appearance before a committee established by the Minister for Justice whose task it was to advise on whether persons such as the applicant were fit to be released from detention.

At European level, of course, Ireland was found guilty of breaching Article 6 of the European Convention on Human Rights by not ensuring that the indulgent plaintiff could have effective access to the courts in respect of her family law proceedings against her husband: Airey v Ireland (1979-80) 2 EHRR 305. As the European Court of Human Rights said:

The Convention is intended to guarantee not rights which are theoretical or illusory but rights which are practical and effective. This is particularly so of the right of access to the courts in view of the prominent place held in a democratic society by the right to a fair trial.

But contrary to what is sometimes supposed, the court did not require that legal aid be supplied in all cases of hardship on the part of a litigant. The question of the determination of the means used to secure the right of access to the courts was, in principle, a matter for the State:

The institution of a legal aid scheme ... constitutes one of those means but there are others, such as, for example, a simplification of procedure. In any event, it is not the Court's function to indicate, let alone dictate, which measures will be taken; all that the Convention requires is that an individual should enjoy his effective right of access to the courts in conditions not at variance with Article 6(1).

In the light of these considerations, the question arises whether there should be provision for a right of effective access to the courts.

Arguments for an effective right of access to the courts

1 the constitutional principles governing equality before the law, the right to a fair trial and access to the courts are well established. A natural extension of these principles is the inclusion of a constitutional right of access to justice. In the absence of such a right, the principles outlined above may be largely aspirational for those who lack the means to pay for legal services. Moreover, when access is available to those on low incomes through the Free Legal Aid service, it can be provided only in a limited range of cases (see The Legal Aid Board Annual Report, 1993; and the Annual Report of the Free Legal Advice Centres, Access to Justice, 1994)

2 if all people in society are to have equal access to justice, they must have the means, resources and support to ensure this. The Constitution has a role to play in ensuring that all people have effective, as well as formal, equality of access to justice. At present, there is no duty on the State to provide for civil legal aid, for example, and attempts to establish such a right before our courts have been generally unsuccessful. Given the lack of equality in access to justice, constitutional assurance of such access seems crucial, especially for those who are economically disadvantaged.

Arguments against

1 equality before the law can be understood to include equal access to justice and has been so interpreted in other jurisdictions

2 it is a matter for legislation to specify such free legal aid or other measures as the Oireachtas may judge to be necessary to support the constitutional provision for equality before the law and access to the courts.

Recommendation

The Review Group notes that the right of access to the courts is already protected as an implied personal right by virtue of Article 40.3.1°. Furthermore, the Review Group will be recommending at the conclusion of its discussion of Article 40.3.1° that this right should receive express enumeration in the Constitution. While the Review Group agrees that this right should not remain a purely theoretical one, a majority considers that there is no need to go further and specify in the Constitution how the Oireachtas might give practical effect to the right of access.

14 whether there should be provision for specific measures to secure equal access to justice

Over the last twenty years a variety of measures has been taken in many countries with the objective of promoting equal access to justice. Two such measures, class actions and public interest actions, relate to matters of standing in court. They make it possible for concerned individuals and organisations to approach the court in order to claim relief in the public interest or on behalf of others who would not be able to enforce their rights themselves. In Ireland, the locus standi rules are relatively generous. In effect, the courts have distinguished between two types of cases. In the majority of cases the plaintiff will be required to demonstrate that, in the words of Henchy J in Cahill v Sutton [1980] IR 269, 'the impact of the impugned law on his personal situation discloses an injury or prejudice which he or she has either suffered or is in imminent danger of suffering'. However, there is also a category of cases in which the plaintiff will either suffer no personal injury by the operation of the impugned law or executive action or, if he or she does, he or she will share it in an undifferentiated way with all other citizens. In those circumstances, the courts will afford standing to any bona fide interested citizen: see, for example, McGimpsey v Ireland [1990] 1 IR 110; McKenna v An Taoiseach [1995] 2 IR 10 and Riordan v Spring (1995).

In other jurisdictions, class (or representative) actions have proved to be an effective procedure in constitutional litigation. By this procedure an individual may bring or defend an action on behalf of persons with a common interest or common grievance. Order 15, rule 9 of the Rules of the Superior Courts 1986 provides for such representative actions and while this procedure (or something akin to it) has been invoked on occasion in the course of constitutional litigation (see, for example, Greene v Minister for Agriculture [1990] 2 IR 17), the Irish case law in this area is relatively underdeveloped.

A public interest action differs from a representative action in that the plaintiff who takes the action does not represent any particular individual or individuals, but acts on behalf of the public at large or a segment of the public. The various cases involving the special context of Article 40.3.3° (see, for example, Society for the Protection of Unborn Children (Ire) Ltd v Coogan [1989] IR 734) are the only instances where this form of public interest action was permitted by the courts.

While it is not unusual for such specific measures as standing and class actions to be constitutionally prescribed, section 7(4) of the constitution of South Africa makes express provision in this regard:

a) When an infringement of or threat to any right entrenched in this Chapter [on fundamental rights] is alleged, any person referred to in b) shall be entitled to apply to a competent court of law for relief, which may include a declaration of rights.

b) The relief referred to in paragraph a) may be sought by

i) a person acting in his or her own interest

ii) an association acting in the interest of its members

iii) a person acting on behalf of another person who is not in a position to seek such relief in his or her own name

iv) a person acting as a member of or in the interest of a group or class of persons, or

v) a person acting in the public interest.

In practice, Irish law already corresponds to section 7(4), save that, generally speaking, one person is not permitted to take an action on behalf of a group or class of persons (unless of course such persons are not themselves in a position to take such action: see Society for the Protection of Unborn Children (Ire) Ltd v Coogan). However, the question arises as to whether express constitutional provision should be made in Ireland for locus standi rules and class actions vindicating fundamental rights.

Arguments for the provision of specific measures

1 the constitutional prescription of specific measures would secure more effective access to justice for all, irrespective of income, education or social class.

2 without such provision, many people may not be in a position to assert their constitutional rights.

Argument against

1 specific measures are more appropriately provided for in legislation.

Recommendation

Having regard to the generally liberal and flexible nature of our locus standi rules, the Review Group is not persuaded that there is any need for an express provision along the lines of section 7(4) of the constitution of South Africa. However, if the Review Group's recommendations in respect of a Human Rights Commission were to be accepted, consideration should be given to permitting that body either to take constitutional actions on behalf of individual citizens or the public at large in appropriate circumstances. The commission might also be given the right to intervene as an amicus curiae in some constitutional actions involving fundamental rights.

15 whether there should be explicit protection for affirmative action to promote equality

In a society where there are disparities in income and wealth, some persons must occupy the lowest positions. There is much empirical evidence that those who do will be the most vulnerable and marginalised, including working class women and children, the unemployed and disabled people (Nolan and Farrell, 1989; Murray, 1990; Callan and Nolan, op cit). So, although working class women or disabled people may have a formal right to enter particular professions, schools or colleges, they often will not be able to avail themselves of this right because they lack the resources to compete on equal terms. Given their relatively low economic standing, they will not be able to compete equally for other valued goods and services either.

By taking affirmative action, the problem may be overcome, to some degree, depending on the nature of the action taken.

It is now not unusual for explicit provision to be included in constitutional and international human rights texts allowing for affirmative action to be taken to promote equality (see, for example, section 8(3)(a) of the constitution of South Africa and Article 1(4) of the International Convention on the Elimination of all Forms of Racial Discrimination). Explicit provision is seen as necessary to permit the taking of positive measures to rectify disadvantage and to ensure that such measures do not constitute prohibited discrimination. Such measures could be drafted so as to comply with certain criteria, such as proportionality, so that they do not in fact go beyond the rectification of disadvantage and operate to the unjust advantage of the target group, thereby introducing a new inequality. To be lawful, any such legislative measures would also have to respect any limits imposed by EU law (see, for example, Case C-450-93, Kalanke v Bremen, Judgement of the European Court of Justice, 17 October 1995).

Arguments for explicit protection

1 equality of formal rights and opportunities has, of itself, little impact on the promotion of equality in any substantive sense. Substantive equality depends not only on having the formal right to participate but on having the actual ability and resources to do so. To ensure that people will have the capacity to participate in democratic society on an equal basis with others, affirmative action is necessary, particularly for those who have experienced substantial prior disadvantages for whatever reason. It is, therefore, appropriate that the legislature and the Government should be free to take such action as they deem necessary for the promotion of substantive equality in society. Without constitutional protection for affirmative action, the legislature and the Government may not be in a position to introduce positive measures to overcome those systemic inequalities which perpetuate cycles of disadvantage

2 an explicit protection for affirmative action may clarify that the equality guarantee extends beyond the prohibition of discrimination to the taking of positive measures to overcome disadvantage

3 it is usual for explicit provision to be made in international human rights texts permitting such action and making it clear that it does not constitute prohibited discrimination

4 explicit provision permissive of affirmative action is to be found in the constitutions of some countries.

Arguments against

1 positive legislative measures to reduce disadvantage and promote greater equality of opportunity continue to be introduced here as elements of social and fiscal policy without encountering constitutional difficulty

2 the scope of 'affirmative action' might be unduly widened by a constitutional provision and thus create conflict with other constitutional requirements

3 such a provision could permit primacy to be afforded to group rights over individual rights

4 it could also permit measures to be taken today which would discriminate between two groups solely because of the historical disadvantage of one group.

If there is to be explicit provision for affirmative action, an ancillary issue arises as to whether the groups in respect of which positive measures are to be permitted should be identified in the Constitution or whether they should be covered by a general description such as 'persons disadvantaged by unfair discrimination'.

Another ancillary issue is whether affirmative action designed to correct historical inequality should be subject to some general time-limit. Some human rights texts which explicitly allow for affirmative action in order to rectify historical disadvantage provide that such action shall be discontinued after the objectives of equality of opportunity and treatment have been achieved. No specific time-limit is specified since the time needed to rectify disadvantage will depend upon a number of factors, including the type of measures taken and the particular disadvantage which it sought to redress.

On this subsidiary issue, it appears to the Review Group that no time-limit would be appropriate. The nature of the measures which it would be appropriate to take as well as the time needed to achieve their purpose would vary according to the specific case, and decisions thereon are more properly regarded as policy decisions to be taken by the legislature and the Government rather than specified in the Constitution.

Conclusion

The Review Group is divided on the basic issue whether it is necessary or desirable to include specific authorisation of 'affirmative action' in the Constitution. Because of the difficulty of defining 'affirmative action' and of appointing reasonable constitutional limits to the exercise of such an authority and because of the primary responsibility of Government and Oireachtas in determining the associated policies, some members prefer that pursuit of the objective of rectifying unfair disadvantage should continue to be legislatively authorised, at least until (if ever, given the amendments proposed) a constitutional barrier presents itself. Other members preferred that a specific provision should be included in the constitution, loosely based on Article 8(3) of the South African constitution (see Annex following), on the grounds that the realisation of any substantive degree of equality for marginalised social groups would be advanced by a constitutional provision and that it would give the Government and the Oireachtas constitutional protection for any affirmative action policies they might wish to introduce.

Summary of recommendations

A majority of the Review Group recommends that Article 40.1 is amended along the following lines:

40.1.1° All persons shall be held equal before the law. This shall not be taken to mean that the State may not have due regard to relevant differences.

40.1.2° No person shall be unfairly discriminated against, directly or indirectly, on any ground such as sex, race, age, disability, sexual orientation, colour, language, culture, religion, political or other opinion, national, social or ethnic origin, membership of the travelling community, property, birth or other status.

 

Annex

The South African Constitution†

Section 8

1) Every person shall have the right to equality before the law and to equal protection of the law.

2) No person shall be unfairly discriminated against, directly or indirectly, and without derogating from the generality of this provisions, on one or more of the following grounds, in particular: race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture or language.

3) a) This section shall not preclude measures designed to achieve the adequate protection and advancement of persons or groups or categories of person's, disadvantaged by unfair discrimination, in order to enable their full and equal enjoyment of all rights and freedoms.

b) Every person or community dispossessed of rights in land before the commencement of this Constitution under any law which would have been inconsistent with subsection 2) had that subsection been in operation at the time of the dispossession, shall be entitled to claim restitution of such rights subject to and in accordance with sections 121, 122 and 123.

4) Prima facie proof of discrimination on any grounds specified in subsection 2) shall be presumed to be sufficient proof of unfair discrimination as contemplated in that subsection until the contrary is established.

___________________________

Since the Review Group completed its work, the text of the constitution of the Republic of South Africa (as adopted by the Constitutional Assembly on 8 May 1996) became available. Its provisions on equality are as follows:

Section 9

1) Everyone is equal before the law and has the right to equal protection and benefit of the law.

2) Equality includes the full and equal of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.

3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, and birth.

4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection 3). National legislation must be enacted to prevent or prohibit unfair discrimination.

5) Discrimination on one or more of the grounds listed in subsection 3) is unfair unless it is established that the discrimination is fair.