With the exception of Article 42 of the Constitution, under the heading “Education”, there are no express provisions therein cognisable by the courts which impose an express obligation on the State to provide accommodation, medical treatment, welfare or any other form of socio economic benefit for any of its citizens however needy or deserving. It is true that the exploration of unenumerated constitutional rights in Ryan .v. Attorney General [1965] I.R. 294 has established the existence of a constitutional right of “bodily integrity”. The examination of that right in the State (C ) .v. Frawley [1976] I.R. 365 and the State (Richardson) .v. The Governor of Mountjoy Prison [1980] I.L.R.M. 82 certainly establishes that the State has an obligation in respect of the health of persons detained in prisons. However these authorities do not suggest the existence of any general right in the citizen to receive, or an obligation on the State to provide medical and social services as a constitutional obligation.

In G. v. An Bord Uchtála [1980] I.R. 32 (below) Henchy J. identified the right to bodily integrity (at p. 90-91) in the essentially negative terms following:-

“As to a constitutional right to bodily integrity, such a right arises for judicial recognition or enforcement only in circumstances which require that, in order to assure the dignity and freedom of the individual within the constitutional framework, he or she should be held immune from a particular actual or threatened bodily injury or intrusion.”

The absence of any express reference to accommodation, medical treatment or social welfare of any description as a constitutional right in the Constitution as enacted is a matter of significance. The failure to correct that omission in any of the twenty-four referenda which have taken place since then would suggest a conscious decision to withhold from rights which are now widely conferred by appropriate legislation the status of constitutionality in the sense of being rights conferred or recognised by the Constitution.

The reluctance to elevate social welfare legislation to a higher plane may reflect a moral or political opposition to such change or it may be a recognition of the difficulty of regulating rights of such complexity by fundamental legislation which cannot be altered readily to meet changing social needs. Alternatively it may have been anticipated that the existence of a constitutional right enforceable by the courts would involve - as the present case so clearly demonstrates - a radical departure from the principle requiring the separation of the powers of the courts from those of the legislature and the executive. The inclusion in the Constitution of Article 45 setting out directive principles of social policy for the general guidance of the Oireachtas - and then subject to the express provision that they should not be cognisable by any Court - might be regarded as an ingenious method of ensuring that social justice should be achieved while excluding the judiciary from any role in the attainment of that objective. Indeed a similar approach was adopted in the Constitution of India 1949, which having provided in Part IV thereof for certain “Directive Principles of State Policy”, went on to provide in Article 37 that:-

“The provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.”

The status of socio economic rights in our Constitution and the detailed provisions in relation to education were explained by Professor Gerard Quinn in his essay “Rethinking the Nature of Economic, Social and Cultural Rights in the Irish Legal Order” in Fundamental Social Rights (2001) (edited by Costello C) at p. 49 in the following colourful terms:-

“De Valera cleverly genuflected before socio economic rights but made sure to insert them into a part of the Constitution that is unenforceable by the courts (Article 45 on Directive Principles of Social Policy). One socio economic right escaped into the hard text: Article 42 on the right to education. Its presence in the text has more to do with history than with logic. The intention of the British in the 1830s was to set up and find a network of free primary schools on a purely non denominational basis. This was fiercely resisted by all Churches. In the compromise that ensued, the State agreed to pay for the education and the religious bodies agreed to provide it. The main intention of Article 42 seems to have been to copperfasten this historic arrangement between Church and State.....”

The immediate authority for the making of the order by Kelly J. was the decision of Mr Justice Geoghegan - then a judge of the High Court - in FN .v. Minister for Education [1995] 1 I.R. 409. In the circumstances of that case Geoghegan J. held that where there was a child with very special needs in respect of accommodation, maintenance and sustenance which could not be provided by his parents or guardians there was a constitutional obligation on the State under Article 42.5 of the Constitution to cater for those needs. That judgment was in turn based upon the decision of this Court in G .v. An Bord Uchtála [1980] I.R. 32. There are far-reaching observations contained in some of the judgments delivered in that case which do support the conclusions reached by Geoghegan J. What is a matter of concern is that some of these observations do not appear to have been essential to the decision of the Court and furthermore may not have represented the views of the majority. My concern is reflected in the comments of Henchy J. (at p. 83) when he said:-

“The single issue arising from those facts is whether, in pursuance of s. 3, sub-s. 2, of the Adoption Act, 1974, the Adoption Board should be authorised to dispense with the consent of the plaintiff mother in the making of an adoption order in favour of the couple (the notice parties) to whom the child was given for adoption.... Insofar as opinions or observations on wider and unargued topics emanate from this case, I do not wish my silence on those obiter dicta to be taken as concurrence.”

“The child also has natural rights. Normally, these will be safe under the care and protection of its mother. Having been born, the child has the right to be fed and to live, to be reared and educated, to have the opportunity of working and of realising his or her full personality and dignity as a human being. These rights of the child (and others which I have not enumerated) must equally be protected and vindicated by the State. In exceptional cases the State, under the provisions of Article 42, s.5, of the Constitution, is given the duty, as guardian of the common good, to provide for a child born into a family where the parents fail in their duty towards that child for physical or moral reasons. In the same way, in special circumstances, the State may have an equal obligation in relation to a child born outside the family to protect that child, even against its mother, if her natural rights are used in such a way as to endanger the health or life of the child or to deprive him of his rights. In my view this obligation stems from the provisions of Article 40, s.3 of the Constitution.”

“Not only has the child born out of lawful wedlock the natural right to have his welfare and health guarded no less well than that of a child born in lawful wedlock, but a fortiori it has the right to life itself and the right to be guarded against all threats directed to its existence whether before or after birth. The child’s natural rights spring primarily from the natural right of every individual to life, to be reared and educated, to liberty, to work, to rest and recreation, to the practice of religion and to follow his or her conscience. The right of life necessarily implies the right to be born, the right to preserve and defend (and to have preserved and defended) that life, and the right to maintain that life at a proper human standard in matters of food, clothing and habitation.”

“It seems to me that in that passage there is an equation of “natural rights” and “constitutional rights”. I do not accept that there is such a connection, particularly as the word “natural” is so ambiguous. When used in connection with the relationship of a mother and child, it may mean the link between them formed by the facts that she has conceived the child, that it issues from her body and is fostered and nurtured by her; or it may mean that the theory of natural law, on which so much of that part of the Constitution dealing with fundamental rights is based, recognises such a right.”

Whatever ambiguities may arise from an analysis of the judgments in G. v. An Bord Uchtála no such problems arise in relation to the decision of this Court delivered by Finlay C.J. in the Adoption (No. 2) Bill 1987 [1989] I.R. 656. The then Chief Justice made it clear that Article 42 s. 5 of the Constitution should be given a wide construction when he said (at p. 663):-

"Article 42, s. 5 of the Constitution should not, in the view of the Court, be construed as being confined, in its reference to the duty of parents towards their children, to the duty of providing education for them. In the exceptional cases envisaged by that section where a failure in duty has occurred, the State by appropriate means shall endeavour to supply the place of the parents. This must necessarily involve supplying not only the parental duty to educate but also the parental duty to cater for the other personal rights of the child."

The extent to which positive socio economic rights can and should be separated from the complex constitutional rights and duties in respect of education and upheld or rejected independently of that particular right has never been explored adequately by this Court. No doubt lawyers have been reluctant to assert and rely upon an undefined unenumerated welfare-type right when there is room to argue that rights of accommodation, medicine and nurture are available under the heading of "Education" to children as against their parents and, where the parents default for moral or physical reasons, against the State. I suspect that this attractive argument is based on a very broad interpretation of the distinction made by Ó Dálaigh C.J. between medication and education in Attorney General v. Ryan [1965] I.R. 294 when he said at p. 350:-

"(Counsel for the Plaintiff) contends that the provision of suitable food and drink for children is physical education. In the Court's view, this is nurture, not education. Education essentially is the teaching and training of a child to make the best possible use of his inherent and potential capacities, physical, mental and moral. To teach a child to minimise the dangers of dental caries by adequate brushing of his teeth is physical education for it induces him to use his own resources. To give him water of a nature calculated to minimise the danger of dental caries is in no way to educate him, physically or otherwise, for it does not develop his resources."

Apart from the reluctance of litigants to forsake their express rights under Article 42, practical difficulties may be observed in the reluctance of the Executive to contest - or even in the judiciary to permit the Executive to contest - the existence of a particular socio economic benefit as a constitutional right when it is conceded as is so often the case, that those benefits are available in accordance with legislative provisions or Ministerial schemes. In O'Donoghue v. The Minister for Health [1996] 2 I.R. 20 the High Court had concluded that although the applicant was profoundly mentally handicapped the State was obliged to provide him with education which could properly be described as "primary". The appeal by the respondents was compromised on the basis of an order which is quoted at the conclusion of the report (at p. 72) and on terms which recognise the existence of different views as the fundamental rights of the parties:-

"Whereupon and upon opening and debate of the matter, this Court being informed by counsel for the applicant and by counsel for the respondents that the State is now providing for the infant applicant education appropriate to his current condition, this Court substitutes for the declaration in the High Court a declaration that the infant applicant is entitled to free primary education in accordance with Article 42.4 of the Constitution and the State is under an obligation to provide for such education. And this Court notes the statement of counsel for the respondents that the said respondents are not to be taken as accepting the manner in which the learned trial judge interpreted the said obligation ....”

It is, of course, entirely understandable, and desirable politically and morally, that a society should, through its laws, devise appropriate schemes and by means of taxation raise the necessary finance to fund such schemes as will enable the sick, the poor and the underprivileged in our society to make the best use of the limited resources nature may have bestowed on them. It is my belief that this entirely desirable goal must be achieved and can only be achieved by legislation and not by any unrealistic extension of the provisions originally incorporated in Bunreacht na hÉireann. I believe that Costello J. was entirely correct when in O'Reilly v. Limerick Corporation [1989] I.L.R.M. 181 he concluded that the courts were singularly unsuited to the task of assessing the validity of competing claims on national resources and that this was essentially the role of the Oireachtas. It is only fair to add, as I have already pointed out, that those who framed the Constitution seem to have anticipated this problem and provided a solution for it.