Taking Indirect Horizontality Seriously in Ireland: A Time to Magnify the Nuance
Banda, Sibo (2009) Taking Indirect Horizontality Seriously in Ireland: A Time to Magnify the Nuance. Dublin University Law Journal, 31 . pp. 263-297.
The article examines the horizontal operation of constitutional rights in Irish Constitutional law and argues that Irish jurisprudence recognizes the application of constitutional rights to private relationships either directly or indirectly. The article focuses on dissatisfaction raised on the basis of a pronouncement on horizontality made by the Irish judiciary in Hanrahan v Merck Sharp & Dohme (Ireland) Limited. An assessment of the dissatisfaction coupled with a re-examination of past judicial pronouncements on the horizontal application of constitutional rights reveals two problems. First, scholars have implied that Irish courts, having failed to come up with a coherent framework for direct horizontality, have sought to abandon or suspend direct horizontality and simultaneously or alternatively have asked litigants to establish a high threshold of qualification before they will intervene. An alternative reading of the status quo is argued for. Secondly, there appears to be a conflation of direct and indirect horizontality. It is contended that both court pronouncements and academic commentary have contributed to such conflation, and moreover, have made the distinction between them unnecessarily subtle. Ultimately, it is shown that the judiciary in Ireland does acknowledge both direct and indirect horizontality as distinct strands and that this understanding conforms to international practice.
Repository Staff Only: item control page