Note on Proportionality
O’Doherty v Minister for Health & Ors [2022] IESC 32
Consideration of proportionality by O’Donnell CJ:
“49. The term proportionality is now so widely used that it is important to remind
ourselves that it is not a term used in the Constitution itself. While it might be said that
the Constitution does not treat any right as absolute, the statement of rights protected by
the Constitution is qualified by terms such as “subject to public order and morality” and
“so far as is practicable”. Proportionality in this context is best understood,
therefore, as a tool for providing some greater level of precision and transparency
for the process by which invalid legislative impairments of constitutional rights
are differentiated from constitutionally permissible interferences”.
At para 57, the Chief Justice went on to note that:
“While proportionality does provide some analytical structure for determining
issues, it would be a mistake to treat it as an almost mathematical formula
providing a scientifically measurable and repeatable result wherever and however
applied. It is too easily forgotten that different articles of the Constitution contain
different limiting provisions, and thus the application of a proportionality test in the case
of any given right must take account of the particular constitutional text. There remain
wide areas which require judgment, such as the nature of the objectives sought to be
pursued, whether it is justifiable, the nature of the restriction, and whether any lesser
such restriction would achieve the objective, and most obviously the fundamental test of
the proportionality of the measure, which is normally the subject of most contention in
the decided cases. That involves judgements on the value to be attributed to the
right involved, the assessment of the degree of interference and the value of the
objective. None of these matters are capable of objective measurement on a single
scale. There remain areas on which decision-makers may reasonably disagree as
indeed exemplified by the fact that the provisions upheld by the Irish courts in Heaney
were considered to fall foul of the Convention: Heaney and McGuinness v. Ireland(2001)
33 E.H.R.R. 12”.
The Supreme Court held that there is no principle in Irish law that the onus of justifying any
legislative measure lies upon a State respondent or shifts to that respondent on proof of
interference with or impact upon rights. Acts of the Oireachtas are presumed to be constitutional
until the contrary is shown, and the onus of doing so lies upon a party asserting such invalidity.
Whilst it may be possible to advance a claim that while accepting the objective identified in the
legislation and the assessment of the circumstances giving rise to the legislation, nevertheless
the measures adopted are excessive and lack proportionality.
Equality Cases – Proportionality; Donnelly v Minister for Social Protection [2022] IESC 31
“188. The authorities do demonstrate support for the following propositions:
, (i) Article 40.1° provides protection against discrimination that is based on arbitrary,
capricious or irrational considerations.
(ii) The burden of proof rests upon the party challenging the constitutionality of a law by
reference to Article 40.1°.
(iii) In assessing whether or not a plaintiff has discharged that burden, the court will have
regard to the presumption of constitutionality.
(iv) The court will also have regard to the constitutional separation of powers, and will in
particular accord deference to the Oireachtas in relation to legislation dealing with
matters of social, fiscal and moral policy.
(v) Where the discrimination is based upon matters that can be said to be intrinsic to the
human sense of self, or where it particularly affects members of a group that is
vulnerable to prejudice and stereotyping, the court will assess the legislation with
particularly close scrutiny. Conversely, where there is no such impact, a lesser level of
examination is required.
(vi) The objectives of a legislative measure, and its rationality (or irrationality) and
justification (or lack of justification) may in some cases be apparent on its face.
Conversely, in other cases it may be necessary to adduce evidence in support of a
party's case”.
192. What might be termed a “pure” equality claim may arise where the legislature has decided
to confer a benefit on a class of persons, and the plaintiff is aggrieved at being excluded
because he or she has at least some relevant similarity with those who are included. But the
legislature is entitled to make policy choices, and therefore must be entitled to distinguish
between classes of persons. To refer again to the text of Article 40.1°, the equality guarantee is
not to be interpreted as meaning that the State shall not, in its enactments, have “due regard” to
differences of physical and moral capacity, and of social function. I consider, therefore, that the
challenge can only succeed if the legislative exclusion is grounded upon some constitutionally
illegitimate consideration, and thus draws an irrational distinction resulting in some people being
treated as inferior for no justifiable reason. The Constitution does not permit the court to
determine that the plaintiff should be included simply because a more inclusive policy,
assimilating more people sharing some relevant characteristic into the class, would be
“fairer”.
193. In considering whether the legislation offends against the Constitution, the Court will
engage in a greater degree of scrutiny where the differentiation involves what may be termed
one or more “suspect” grounds. In using the word “suspect”, I do not intend to import the
jurisprudence concerning that classification in other jurisdictions, which may have the potential
to result in overly rigid differentiations between the applicable standards of review. It should be
borne in mind that context is relevant here, and also that some grounds of discrimination, even
within the core category of characteristics of human personality, are more likely to be offensive
than others and thus require more intense scrutiny.
O’Doherty v Minister for Health & Ors [2022] IESC 32
Consideration of proportionality by O’Donnell CJ:
“49. The term proportionality is now so widely used that it is important to remind
ourselves that it is not a term used in the Constitution itself. While it might be said that
the Constitution does not treat any right as absolute, the statement of rights protected by
the Constitution is qualified by terms such as “subject to public order and morality” and
“so far as is practicable”. Proportionality in this context is best understood,
therefore, as a tool for providing some greater level of precision and transparency
for the process by which invalid legislative impairments of constitutional rights
are differentiated from constitutionally permissible interferences”.
At para 57, the Chief Justice went on to note that:
“While proportionality does provide some analytical structure for determining
issues, it would be a mistake to treat it as an almost mathematical formula
providing a scientifically measurable and repeatable result wherever and however
applied. It is too easily forgotten that different articles of the Constitution contain
different limiting provisions, and thus the application of a proportionality test in the case
of any given right must take account of the particular constitutional text. There remain
wide areas which require judgment, such as the nature of the objectives sought to be
pursued, whether it is justifiable, the nature of the restriction, and whether any lesser
such restriction would achieve the objective, and most obviously the fundamental test of
the proportionality of the measure, which is normally the subject of most contention in
the decided cases. That involves judgements on the value to be attributed to the
right involved, the assessment of the degree of interference and the value of the
objective. None of these matters are capable of objective measurement on a single
scale. There remain areas on which decision-makers may reasonably disagree as
indeed exemplified by the fact that the provisions upheld by the Irish courts in Heaney
were considered to fall foul of the Convention: Heaney and McGuinness v. Ireland(2001)
33 E.H.R.R. 12”.
The Supreme Court held that there is no principle in Irish law that the onus of justifying any
legislative measure lies upon a State respondent or shifts to that respondent on proof of
interference with or impact upon rights. Acts of the Oireachtas are presumed to be constitutional
until the contrary is shown, and the onus of doing so lies upon a party asserting such invalidity.
Whilst it may be possible to advance a claim that while accepting the objective identified in the
legislation and the assessment of the circumstances giving rise to the legislation, nevertheless
the measures adopted are excessive and lack proportionality.
Equality Cases – Proportionality; Donnelly v Minister for Social Protection [2022] IESC 31
“188. The authorities do demonstrate support for the following propositions:
, (i) Article 40.1° provides protection against discrimination that is based on arbitrary,
capricious or irrational considerations.
(ii) The burden of proof rests upon the party challenging the constitutionality of a law by
reference to Article 40.1°.
(iii) In assessing whether or not a plaintiff has discharged that burden, the court will have
regard to the presumption of constitutionality.
(iv) The court will also have regard to the constitutional separation of powers, and will in
particular accord deference to the Oireachtas in relation to legislation dealing with
matters of social, fiscal and moral policy.
(v) Where the discrimination is based upon matters that can be said to be intrinsic to the
human sense of self, or where it particularly affects members of a group that is
vulnerable to prejudice and stereotyping, the court will assess the legislation with
particularly close scrutiny. Conversely, where there is no such impact, a lesser level of
examination is required.
(vi) The objectives of a legislative measure, and its rationality (or irrationality) and
justification (or lack of justification) may in some cases be apparent on its face.
Conversely, in other cases it may be necessary to adduce evidence in support of a
party's case”.
192. What might be termed a “pure” equality claim may arise where the legislature has decided
to confer a benefit on a class of persons, and the plaintiff is aggrieved at being excluded
because he or she has at least some relevant similarity with those who are included. But the
legislature is entitled to make policy choices, and therefore must be entitled to distinguish
between classes of persons. To refer again to the text of Article 40.1°, the equality guarantee is
not to be interpreted as meaning that the State shall not, in its enactments, have “due regard” to
differences of physical and moral capacity, and of social function. I consider, therefore, that the
challenge can only succeed if the legislative exclusion is grounded upon some constitutionally
illegitimate consideration, and thus draws an irrational distinction resulting in some people being
treated as inferior for no justifiable reason. The Constitution does not permit the court to
determine that the plaintiff should be included simply because a more inclusive policy,
assimilating more people sharing some relevant characteristic into the class, would be
“fairer”.
193. In considering whether the legislation offends against the Constitution, the Court will
engage in a greater degree of scrutiny where the differentiation involves what may be termed
one or more “suspect” grounds. In using the word “suspect”, I do not intend to import the
jurisprudence concerning that classification in other jurisdictions, which may have the potential
to result in overly rigid differentiations between the applicable standards of review. It should be
borne in mind that context is relevant here, and also that some grounds of discrimination, even
within the core category of characteristics of human personality, are more likely to be offensive
than others and thus require more intense scrutiny.
