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Interpreting natural rights: Gorry and ‘the family’ under Article 41

The words do not specify particular rights that ‘the Family’ enjoys but do indicate that, whatever those rights might be, they enjoy an extraordinarily high degree of protection. Taken in isolation, the phrase ‘inalienable and imprescriptible . . .’ suggests the family’s rights cannot be taken or given away, nor lost by the passage of time. The phrase ‘antecedent and superior to all positive law’ suggests recognition of a range of rights that pre-existed the political state, which are now beyond the reach of the State’s authority. Over the past decade, Irish judges have begun to articulate what had been an unarticulated interpretive approach to these radical natural law phrases. In a 2013 judgement, Hogan J – a noted constitutional historian – suggested that the drafters of the Constitution had not intended these terms to be read ‘absolutely literally’, but rather, to convey that the rights of the family would enjoy ‘the highest possible level of legal protection which might realistically be afforded in a modern society’ (FH v Staunton [2013] IEHC 533). In Gorry v Minister for Justice [2020] IESC 55, this ‘seriously but not literally’ approach was at the heart of a fervent disagreement between two senior judges as to the meaning and implications of Ireland’s constitutional clause on the family. In O’Donnell J’s view, Gorry stood ‘at a junction in the development of the caselaw on Article 41’ and the ‘route chosen’ – whether his own or that preferred by McKechnie J – would be of ‘longer-term significance’ (para. 9). The latter’s route would mean a potentially very broad range of rights falling under Art 41, identified over time by individual judges. The former’s route would keep the provision on a tighter rein: any new right identified would have to be firmly rooted in the constitutional text. Ifeyinwa Gorry arrived in Ireland from Nigeria in 2005 and was unsuccessful in her application for asylum. She was later the subject of a deportation order, which she evaded