Freedom of Association in Ireland

Seán Ó Conaill

University College Cork

This blog post examines the nature, scope, and rationale that underpin the right to freedom of association in Ireland. It is a Constitutional right, found in Article 40.6.1(iii) of the Irish Constitution, which provides that:

‘The State guarantees liberty for the exercise of the following rights, subject to public order and morality: … the right of the citizens to form associations and unions. Laws, however, may be enacted for the regulation and control in the public interest of the exercise of the foregoing right.’

Prior to the full independence of the modern Irish State – which came about gradually  from 1922 to 1937 – Ireland was administered as a distinct region of the United Kingdom, with the common law and British constitutional conventions shaping the law in Ireland. That system has no written constitution or constitutionally defined rights-based discourse. Accordingly, there is little to no lasting impact of this period prior to independence on the modern Irish legal position regarding the right to freedom of association, although the trade union movement in Ireland does trace its existence to the period prior to independence.

The genesis of the story of freedom of association in Ireland can be found in  the 1922 Constitution of the Irish Free State. The wording of the right in Article 40.6.1(iii) of Ireland’s current Constitution repeats almost precisely the wording of Article 9 in the first post-independence Constitution in 1922, although it is presented slightly differently. As a result, Court rulings and legislative enactments from 1922 onwards are most relevant when assessing the right.

Although there is a clearly worded express constitutional right in Ireland, it would be fair to say that it is not an extremely well-developed right when compared to most of the other personal rights which are found in the Irish Constitution. The right as found in Ireland is not particularly unique nor is it hugely noteworthy in the international context. However, certain aspects of the right do merit some further investigation.

Traditionally, the Irish Courts have tended to see the right as the right of the individual to form and join associations rather than as a group right which vests in the association itself. However, some of the more recent case law does appear more open to the suggestion that the right might be one which can be enjoyed by collectives as well.

There are few legislative enactments relating to the formation of various types of associations. The enactments that have been passed are normally technical in nature, focusing on more mundane matters like the operation of trade unions, corporate entities, political parties, and clubs who wish to sell alcohol. There is no general requirement under Irish law to engage in any formal process to establish an association, although corporate entities must incorporate in order to obtain the benefits of incorporation such as separate corporate personality and limited liability.

Most of the legal focus on the practical implications of the right of freedom to association in Ireland centres around the ability of individuals to join, or indeed not to join, trade unions with the limits of the right being explored by the Courts largely in that context. Examples include: the Courts striking down a provision mandating that workers join certain trade unions; the Courts upholding a prohibition on police officers forming a union due to the public order qualification in the right; and the Courts holding that there is no automatic right to join a particular trade union, but rather that unions can decide themselves who they wish to admit into their membership.

Although the rationale behind the right has received little attention it can be attributed to a number of key historical factors which influenced the developing State and the framing of its constitutional discourse including the prominence of trade unions in Ireland’s independence movement and the importance of Catholic social teaching (see generally here).

Ireland can be said to be a stable legal jurisdiction with a firmly established rule of law. In this context, the operation of the right of freedom of association is worthy of consideration due to it being a somewhat vanilla example of how a constitutional right can function in a common law jurisdiction with EU membership.

The right has frankly been little remarked upon by the judiciary, seldom legislated upon and not subject to any great attention by scholars. In spite of this, or perhaps precisely because of it, the right to freedom of association remains an established and recognised constitutional right which can be vindicated by citizens, albeit one in respect of which the limits have never been fully tested.

Seán Ó Conaill is Senior Lecturer in Constitutional Law / Dlí Bunreachtúil at University College Cork.

Suggested citation: Seán Ó Conaill, ‘Freedom of Association in Ireland’ IACL-AIDC Blog (1 October 2024) Freedom of Association in Ireland — IACL-IADC Blog (blog-iacl-aidc.org)