Dr. Conor Casey:

The latter question is very interesting. I would say there are no definitive judgments that Article 40.3 places an obligation on the State to take steps to prevent, for example, homelessness or lack of shelter, but there is a very strong stream of Irish scholarship, such as the work of people like Professor Gerard Whyte, which argues that Article 40.3 puts a positive obligation on the State to develop policies that prevent things like homelessness, a lack of basic shelter and so on. Certainly, there is a strand of thinking like that.

On the former matter, what we do see sometimes is the Supreme Court addressing a sensitive policy question. I have cited two in the briefing document - the first in the context of the Oireachtas’s ability to regulate property rights for the common good and the second in the context of regulating a very sensitive area of policy concerning statutory rape. In both cases, the Supreme Court, in addition to settling the immediate dispute before it, said quite emphatically that the Oireachtas has very broad latitude to regulate in this area. It was very explicit in sending a principled signal to the Oireachtas that in likely future cases of policy, it should feel confident in legislating, and it was given a lot of deference.

The gravamen of the disagreement between myself and my colleagues is whether paragraph 108 of the Fleming judgment is best read in this vein or as a sort of clarification and is not deciding in the abstract. There are many examples of the courts saying to the Oireachtas: “This is your bailiwick and if you want to legislate, this is your area and policy domain.”