The proportionality test: present problems

AuthorBrian Foley
PositionLL.B. (Dub.), Ph.D. (Dub.), Barrister-at-Law
2008] The Proportionality Test 67
Making decisions about what the Constitution means is
serious business. Indeed, it is such serious business that,
notwithstanding a relatively clear power of judicial review recited
on the face of the Constitution, our courts have, on occasion,
stressed their circumspect role in second guessing decisions made
by political institutions on particular kinds of constitutional
questions. The idea here is quite simple. Both political institutions
(i.e. the Oireachtas) and judicial institutions (i.e. the courts) make
decisions about constitutional meaning. The battle in
constitutional theory has long been fought over which of these
institutions should be afforded the most power in relation to such
decisions.1 Should the courts have an entirely free hand in second
guessing decisions made by the legislature where matters of
fundamental rights are concerned? Or, alternatively, should the
courts perhaps mark out particular areas where higher standards
are required before a legislative judgment on, perhaps, “the
exigencies of the common good” should be condemned?
In short, it is far too unsophisticated – both as a matter of
theory, and as a matter of Irish constitutional law – to equate the
Constitution immediately and inexorably with the “Constitution-
in-the-courts”. The court is not the only decision-maker when it
comes to the Constitution and, it is submitted, our courts have
rarely acted as if they are. Rather, Irish courts have routinely
recognised their heavily circumspect and cautious role when it
* LL.B. (Dub.), Ph.D. (Dub.), Barrister-at-Law. Any queries can be addressed
by email to or by post to Brian Foley, Law Library,
Four Courts, Dublin 7, DX 818 074.
1 For a more detailed account see Foley, “Diceyan Ghosts – Deference, Rights,
Policy and Spatial Distinctions”, (2006) 28 D.U.L.J. 77; Foley, “Presuming the
Legislature Acts Constitutionally: Legislative Process and Constitutional
Decision-Making”, (2007) 29 D.U.L.J. 141.
Judicial Studies Institute Journal [2008:1
comes to evaluating legislative decisions about what the
Constitution means.2
In the past, concerns about the judicial role in exercising
the power of judicial review tended to be vented via extreme
conclusions that certain constitutional guarantees or certain types
of constitutional questions were non-justiciable. Thus, the “fight”,
if you will, was over the relatively extreme question of whether
relatively large fields of the constitutional ground should be tilled
by the legislature alone. Obviously, the notion of large-scale
exclusions of the judicial power tended to give way over the years
as the idea of judicial supremacy became part and parcel of Irish
constitutionalism.3 The question, however, of the appropriate
relationship between political and judicial institutions in respect
of constitutional decision-making did not go away. The context of
the question simply shifted. No longer could fears of judicial
review find voice in the extreme language of decisions like Pigs
Marketing v. Donnelly,4 Attorney General v. Southern Industrial
Trust5 or Re Article 26 and the Offences Against the State
(Amendment) Bill, 1940.6 Rather, those fears had to be voiced
within the now accepted paradigm of a prima facie legitimate
power of judicial review. Thus, the question drifted towards the
issue of the appropriate intensity of judicial review or, in more
precise terms, the role of deference in judicial review.
A particular flash-point in this new context has proven to be the
proportionality test, adopted from Canadian law by Costello P. in
Heaney v. Ireland.7
2 See e.g. McDonald v. Bord na gCon (No.2) [1965] I.R. 217, at 235; Ryan v.
The Attorney General [1965] I.R. 294, at 312-313; Colgan v. The Independent
Radio and Television [2000] 2 I.R. 490, at 513; Re Article 26 and Section 5
and Section 10 of the Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2 I.R.
260, at 393.
3 See e.g. The People (Attorney General) v. O’Callaghan [1966] I.R. 501;
Buckley v. The Attorney General [1950] I.R. 67; O’Donovan v. The Attorney
General [1961] I.R. 114.
6 [1940] I.R. 470. The Canadian test from which Heaney was derived was set
out in R v. Oakes [1986] 1 S.C.R. 103.

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