Conor O'Mahony (University College Cork) has posted Unenumerated Rights: Possible Future Directions after NHV? (Forthcoming, Dublin University Law Journal, 2018) on SSRN. Here is the abstract:
Unenumerated rights were once the heartbeat of the Irish Constitution. To anyone who has studied for a law degree in Ireland, the decisions in famous unenumerated rights cases such as Ryan, McGee and Norris stand out among the countless judgments that they encountered in lectures, textbooks and articles. In recent years, however, the doctrine has played an increasingly peripheral role. While some well-established unenumerated rights are applied almost as if they were expressly contained in the constitutional text, no new rights have been recognised by the Supreme Court for over two decades (or, since its establishment, by the Court of Appeal). Aside from a few High Court judgments of limited significance, the general approach of the courts has been to avoid either recognising new rights or developing or extending the scope of rights previously recognised. More than one obituary has been written for the doctrine.
But have the reports of its demise been greatly (or, at least, somewhat) exaggerated? This paper will examine that question by reference to the recent Supreme Court decision in NHV v. Minister for Justice, in which the statutory prohibition on asylum applicants seeking or taking up employment pending the determination of their application was found to be an unconstitutional violation of the unenumerated right to work. The decision was notable for bucking the recent trend of judicial disengagement from unenumerated rights; it developed and asserted a comparatively under-developed right, and contained some interesting analysis of the sources which could be used to ground and interpret that right. This brief discussion will explore how the discussion of the ‘human personality’ and ‘human dignity’ fits in with classic case law from the 1960s and 1970s as well as with more contemporary jurisprudence, and consider the potential offered by this decision for future argumentation and adjudication based on unenumerated rights.