Ireland

The provisions of the Irish Constitution do not make it directly applicable to private persons, but courts have interpreted the Constitution to have an indirect application to non-state actors. Horizontality in Ireland arose from judicial decision-making as opposed to an express provision of the Constitution as in the case of jurisdictions such as South Africa.130 In Ireland, the Constitution is applicable to the private sphere via interpretation of Article 40(3) of the Irish Constitution which expresses the state duty to protect.131 In interpreting the provision, the Irish courts have developed a “constitutional tort” which arises when individual rights are violated by a third party; the constitution in these cases will have a direct horizontal effect on the non-state actor third party.132 In the USA and Canada, remedy for human rights violations is available through private law actions, but in Ireland, the Constitution has a “full horizontal effect” and

126 _{Loveland op cit note 2, Chapter 11 on ‘The European Economic Community 1957 – 1986’ 383.} 127

Ibid at 384.

128 _{Section 6 of the Human Rights Act 1998.}

129 _{Paragraph 2.2 of the White Paper cited in Loveland op cit note 2 at 648.}

130 _{Chirwa op cit note 73 at 21, 37. See also Aoife Nolan ‘Holding non-state actors to account for constitutional}

economic and social rights violations: Experiences and lessons from South Africa and Ireland’ (2014) 12(1)

International Journal of Constitutional Law 61, 63, 64.

131 _{Article 40(3)(1) The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and}

vindicate the personal rights of the citizen; and (2) The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.

claims for human rights violation by private parties may be based directly on the constitution, without the need for recourse to private action.133

In the Irish case, Meskell v CIE,134 the court held that constitutional rights can be protected, regardless of the existence or otherwise of a formal cause of action.135 It is precisely because they can be claimed by everyone that constitutional rights are fundamental.136 The court based its decision on the fact that a constitutional right carries within it its own right to a remedy or to enforcement.137

Unlike other constitutional models that make a distinction between the public and private divide, the Irish Constitution fuses the public and private spheres.138 In the case of Educational

Company of Ireland Ltd v Fitzpatrick139 it was held that:

… if one citizen has a right under the Constitution there exists a correlative duty on the party of other citizens to respect that right and not to interfere with it. To say otherwise would be tantamount to saying that a citizen can set the Constitution at a naught and that a right solemnly given by our fundamental law is valueless.140

The Irish courts thus also see constitutional rights as entitlements to be protected against infringement and they undertake to ensure that they are respected by all and if violated, recourse is had against those who violate, whoever they may be.141 By taking this stand, Irish courts avoid the absurd conclusion that some breaches of constitutional rights can go unpunished just because they were not committed by the ‘state’ or state actors.

133 _{Chirwa op cit note 73 at 21, 37.} 134 _{[1973] IR 121.}

135

Meskell, supra at 133: ‘a right guaranteed by the Constitution or granted by the Constitution can be protected by action or enforced by action even though such action may not fit into any of the ordinary forms of action in either common law or equity and that the constitutional right carries within it its own right to a remedy or for the enforcement of it.’

136

Meskell supra 121, 132-3 The Court held: ‘...a right guaranteed by the Constitution or granted by the Constitution

can be protected by action or enforced by action even though such action may not fit into any ordinary forms of action in either common law or equity and... the constitutional right carries within it its own right to a remedy or for the enforcement of it. Therefore, if a person has suffered damage by virtue of a breach of a constitutional right or the infringement of a constitutional right, that person is entitled to seek redress against the person or persons who have infringed that right.’

137 _{Meskell supra note 134, 121.}

138 _{This has been said to be likely due to the natural law philosophy foundation of the Irish Constitution; under}

natural law, rights inhere in the person and are not granted by positive law. If seen as inherent, human rights will therefore be protected from violation by anyone and not only by the State which is given form by the written law. See Nolan op cit note 130 at 72.

139

(1961) IR 345.

140 _{Supra, 368.}

141 _{Article 40(3) of the Constitution provides: The State guarantees in its laws to respect, and, as far as practicable,}

It has been argued, however, that despite the existence of horizontality, Irish courts have not used the concept to impose constitutional rights obligations on non-state actors such as corporations. This aversion could be attributed to a “serious lack of conceptual clarity” regarding when, how and to what extent the horizontal effect should be given effect by Irish courts.142 After Meskell, existing alternative avenues, rather than the constitutional provisions, were used to channel constitutional remedies: the application of the Constitution tended to be limited by the courts by holding that the constitutional tort will not lie where recourse can be had to existing remedies in common law or legislation.143 A further limitation of the Irish horizontality was the refusal of Irish courts to interpret constitutional rights as imposing positive obligations on non- state actors, a fact that makes it hard to deal with claims against non-state actors for positive violation of socio-economic rights.144