Passports, Industrial Action and Constitutional Rights

At a meeting of the Oireachtas Committee on Foreign Affairs today, Fine Gael’s Alan Shatter T.D. suggested that recent industrial action by public service workers in the passport office may be breaching constitutional rights.

The industrial action in question has caused a backlog of over 40,000 passport applications and citizens are currently experiencing long delays in acquiring their passports. As noted by Deputy Shatter, the right of Irish citizens to travel abroad and to obtain a passport (subject to meeting the relevant requirements) was established as constitutional in nature by the Irish courts in the 1970s. In State (M) v A.G. [1979] IR 73, it was held by the High Court that Irish citizens have an unenumerated constitutional right to a passport (with certain conditions applying and other restrictions of a legal nature operating).  That particular case dealt with s.40 of the Adoption Act, 1952 which forbade the removal of certain categories of children from the State and made no allowances for exceptions to that rule.  This was found to be a breach of the recognised constitutional rights.

In the current context, Deputy Shatter suggested at today’s meeting that

…the Government’s current failure to ensure ready access to passports and the public service unions’ industrial action is a gross and unacceptable violation of this right.

and that

This industrial action is not only causing grave and intolerable disruption and inconvenience but could result in any Irish citizen who suffers financial loss and/or stress as a consequence of this dispute properly seeking damages and compensation by court action from both the Government and the public service unions involved.

While Deputy Shatter raises an interesting point, it would seem to me that the Government and the unions have a defence to any such claims based on the constitutional location of the right in question. In State (M) it was held that the right to travel abroad and to acquire a passport was protected under Art. 40.3 of the Constitution. This provision requires that the State

guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen (emphasis added)

Arguably, at least, in the context of industrial action the State is still guaranteeing the right to acquire as passport “as far as practicable”.