Case Whelan and Lynch v. Minister for Justice

The doctrine of constitutional proportionality in Ireland has its origins in the decision of Costello J. in Heaney v. Ireland [1994] 3 I.R. 593 in which case the constitutionality of s. 52 of the Offences against the State Act, 1939 was considered. That section required persons arrested to give an account of their movements. The court was asked to consider whether such a provision amounted to a legitimate restriction on the constitutional right against self incrimination. Costello J. applied what is now referred to as the rationality test when he said:-

“The objective of the impugned provision must be of sufficient importance to warrant overriding a constitutionally protected right. It must relate to concerns pressing and substantial in a free and democratic society. The means chosen must pass a proprtionality test. They must:-

(a) be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations;

(b) impair the right as little as possible, and

(c) be such that their effects on rights are proportional to the objective.”

The Supreme Court in Re Article 26 and the Employment Equality Bill, [1997] 2 I.R. 321 described the proportionality test in the following terms at p. 383:-

“In effect a form of proportionality test must be applied to the proposed section.

(a) Is it rationally designed to meet the objective of the legislation?

(b) Does it intrude into constitutional rights as little as is reasonably possible?

(c) Is there a proportionality between the section and the right to trial in due course of law and the objective of the legislation?”