Principles of Irish Constitutional Equality Law: Recent Developments

Article 40.1 has been recognised as a “vital and essential component of the constitutional order” and there has been a slight increase in recent years of the number of cases invoking the equality guarantee , although this seems to have slowed in 2014. Recent jurisprudence before the superior courts suggests it is becoming easier to invoke the equality guarantee protected by Article 40.1 and that the courts have found more practical ways of remedying breaches. However, traditional doctrine such as the need for a comparator and the justificatory possibilities, in addition to the more recent strict interpretation of the burden of proof in equality cases, ensures that the equality guarantee still remains one of the more elusive constitutional guarantees. The interpretation of Article 40.1 continues to shift and alter in such a way as to make the already burdensome task of an applicant even more difficult, although there is evidence that the current shifts are slowing and, for the most part, moving in favour of applicants. This article seeks to identify some of these shifts and to clarify the existing interpretation of Article 40.1. The four cases, which invoked Article 40.1 substantially in 2014, covered a wide range of factual scenarios, from surrogacy (in MR and DR) to re-activation of suspended sentences (in McCabe) . All involved a successful engagement of Article 40.1 on a particular ground and there is evidence from this case law that the application of the equality guarantee has been widened significantly in order to increase its purview. All the cases involved a claim of some difference in treatment or an interference with the equality guarantee, although the comparator doctrine had the effect in one case of preventing the applicant from taking their equality case any further (in Murphy). All of the cases involved claims of direct discrimination, a feature prevalent in most Irish constitutional equality cases, and the applicants had an uphill struggle in this regard, given that the previous jurisprudence which allowed some shifting of the burden of proof in particular equality cases, has been reversed and it would appear from the case law that the burden remains with the applicant until the claim for discrimination has been adequately made out. Only one of the cases involved the invocation of justifications by the respondents, which ranged from the protection of constitutional rights, to legislative certainty and integrity and legitimate differences in physical capacity and social function. In half of the cases (McCabe and McInerney) , the applicants were successful in achieving a finding of unconstitutionality. Remedies come into sharp focus in both these cases. While the usual remedy of constitutional invalidation of legislation was utilised in one case (McInerney), the idea of levelling up legislation which excluded the applicant from a benefit in another case was considered unpalatable, considering the potential for accusations of judicial law-making (McCabe). In this case, the court was creative in ordering declaratory relief which protected the rights of the applicant but at the same time did not alter the legislative regime as currently exists. This latter development provides for improved constitutional remedies for litigants in cases where levelling up or levelling down existing legal norms does not provide an adequate or effective remedy for the litigant.