Supreme Court dismisses constitutional challenge to age limit in statutory tenancy succession under Residential Tenancies Act 2004.

AN CHÚIRT UACHTARACH

THE SUPREME COURT

S:AP:IE:2024:000109

[2025] IESC 49

O’Donnell C.J. Charleton J. Woulfe J. Hogan J. Donnelly J.

Between/

ZG AND EW (A MINOR SUING BY HIS

AUNT AND NEXT FRIEND ZG)

Applicants/Appellants

-and-

IRELAND AND THE ATTORNEY GENERAL

Respondents

-and-

CLÚID HOUSING ASSOCIATION

Notice Party

IRISH HUMAN RIGHTS & EQUALITY COMMISSION

Amicus Curiae

Judgment of Mr. Justice O’Donnell, Chief Justice delivered on the 26th day of November, 2025.

1. The background circumstances of this case demand sympathy at a human level for the young boy whose life has been so cruelly altered by the loss of his mother in tragic circumstances. If this case involved simply a discretionary decision as to what provision might be made for a single case it might be easier. But a constitutional challenge such as that involved in this case involves a consideration of law of general application, in this case the law of landlord and tenant, and by reference to principles that may have application outside even that broad and important field.

2. The particular issue of law arising in this case is that the death of this young boy’s mother terminated her statutory tenancy pursuant to the provisions of section 39 (1) of the Residential Tenancies Act 2004 (as amended) and while section 39 does permit an adult child (or parent or spouse/partner) then living in the rental property to succeed to the statutory tenancy, that statutory entitlement is limited to children who are over 18. The central question in these proceedings is not, therefore, specific to this young boy or his circumstances. It is instead whether the law, by permitting children over 18 and who lived in the premises to succeed to the statutory tenancy without extending the same or similar entitlement to children under 18 is in breach of the Constitution (and principally Article 40.1). In brief, I conclude that it is not, because (1) the test for unconstitutional inequality on the basis of age, and in particular, in respect of a distinction between adults and children, is whether the law bears a rational relation to the objective of the legislation; (2) a distinction between adults and minors is a rational one which is commonplace in the law, in the field of tenancies, and in the Constitution itself.

3. “All citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.” These are the words of Article 40.1 of Bunreacht na hÉireann and they recognise the important balance in any constitutional guarantee of equality before the law: “But laws may classify. And ‘the very idea of classification is that of inequality’”1. The guarantee must not interfere with those classifications which are permissible, and yet must outlaw those which offend against the guarantee of equality as human persons.

4. The words of Article 40.1 are the first words in the section of the Constitution headed “Fundamental Rights”. However, unlike many of the other rights and freedoms contained in that section, Article 40.1 had no precursor in the Irish Free State Constitution of 1922. An equality guarantee is important and significant in its own right, but it was also consistent with the republican and egalitarian tone of the 1937 Constitution. It can be seen as a bridge linking the individual rights protected by the Fundamental Rights section of the Constitution with the democratic structures established by the preceding articles and underpinning the liberal democracy established in Ireland in 1922 and consolidated in 1937.

5. Despite its location in the Constitution and potential significance, Article 40.1 has had a chequered history in constitutional jurisprudence. Arguments by Tussman and tenBroek, “The Equal Protection of the Laws” (1949) California Law Review 341, quoting in part Atchison Topeka and S.F.R.Co. v Matthews 174 US 96 (1899), 106 (Brewer J.).

reference to Article 40.1 have been regularly invoked, and for a significant period, just as regularly rejected. Even in a period of active constitutional litigation of the 1960s and 70s, where a plaintiff’s claim succeeded and a provision in legislation was struck down, it was often on grounds that it offended an unenumerated right protected by Article 40.3 of the Constitution, and a companion claim under Article 40.1 tended to fail. In other cases, the interpretation given to the phrase “as human persons” in cases such as Quinn’s Supermarket v AG [1972] IR 1 and Murtagh Properties v Cleary [1972] IR 330 as excluding lawful trading or other activities had the effect of limiting significantly the scope of the clause. However, in recent years the jurisprudence has developed through a number of cases such as Murphy v Ireland [2014] IESC 19, [2014] 1 IR 198, NHV v Minister for Justice and Equality [2017] IESC 35, [2018] 1 IR 246, and most comprehensively in the judgment of O’Malley J. for this Court in Donnelly v The Minister for Social Protection & Ors. [2022] IESC 31, [2023] 2 IR 415 (“Donnelly”).

6. That judgment discussed the jurisprudence in some detail and at paragraph 191 set out a number of principles as follows:- “(i) Article 40.1º provides protection against discrimination that is based on arbitrary, capricious or irrational considerations.

(ii) The burden of proof rests upon the party challenging the

constitutionality of a law by reference to Article 40.1º.

(iii) In assessing whether or not a plaintiff has discharged that burden, the court will have regard to the presumption of constitutionality.

(iv) The court will also have regard to the constitutional separation of powers, and will in particular accord deference to the Oireachtas in relation to legislation dealing with matters of social, fiscal and moral policy.

(v) Where the discrimination is based upon matters that can be said to be intrinsic to the human sense of self, or where it particularly affects members of a group that is vulnerable to prejudice and stereotyping, the court will assess the legislation with particularly close scrutiny. Conversely, where there is no such impact, a lesser level of examination is required.

(vi) The objectives of a legislative measure, and its rationality (or irrationality) and justification (or lack of justification) may in some cases be apparent on its face. Conversely, in other cases it may be necessary to adduce evidence in support of a party’s case.”

7. In addition, O’Malley J. rejected the contention that a proportionality test should apply. This, she considered, was inconsistent with the nature of the right being guaranteed. Furthermore, O’Malley J. emphasised the legislature is entitled to make policy choices and must be entitled to distinguish between classes of persons. A challenge could only succeed if the legislative exclusion was grounded upon some constitutionally illegitimate consideration and drew an irrational distinction resulting in some people being treated as inferior for no justifiable reason. Importantly, she observed at paragraph 195- “The Constitution does not permit the court to determine that the plaintiff should be included simply because a more inclusive policy, assimilating more people sharing some relevant characteristic into the class, would be ‘fairer’.” This observation is particularly pertinent in this case. It might be said that at some level it would be ‘fairer’ to the family of the deceased tenant to find some way to let them retain the benefit of a tenancy on very favourable terms and allowing the minor applicant continue to live there, but it is difficult to say that outcome is demanded by the Constitution.

8. In referring to what may be termed “suspect” grounds of differentiation, O’Malley J. emphasised that she did not intend to import the jurisprudence concerning that classification used in other jurisdictions, which could have the potential to result in overly rigid differentiations between the applicable standards of review. Some grounds of discrimination, even within the core category of suspect characteristics are more likely to be offensive than others and require more intense scrutiny. The reason legislative differentiation on grounds concerning intrinsic aspects of human personality were considered “suspect” is that differentiation based on such characteristics may be the result of either irrational prejudices or groundless assumptions. The approach outlined in Donnelly is a recent, careful and measured analysis which provides a helpful template for the analysis of claims made by reference to Article 40.1 which should be followed.

9. In this case it is argued that s. 39 of the Residential Tenancies Act 2004 is repugnant to Article 40.1 on the basis that it is alleged to make an impermissible differentiation on the grounds of parental marital status, or of age. It is agreed that this is the principal ground of challenge, although reliance is also placed on Article 42A on the rights of children, and Article 40.5 protecting the inviolability of the dwelling home.

10. Section 39 is contained in Part 4 of the Residential Tenancies Act of 2004, which creates a statutory protection for tenants of domestic premises who have been in occupation as tenant for at least six months. The Act creates a Part 4 tenancy which significantly limits the landlord’s capacity to terminate the tenancy. Initially a Part 4 tenancy had a duration of 4 years. That was extended to 6 years in 2016 and s. 5 of the Residential Tenancies (Amendment) Act 2021 now provides that a Part 4 tenancy will continue for a period of unlimited duration.

11. Statutory security of tenure for domestic tenants has been a feature of Irish law, whether by reference to the Landlord and Tenant Acts 1931 and 1980, or the rent control regime contained in the Rent Restrictions Acts of 1946 and 1960. But the 2004 Act was significant in the shortness of the qualifying period (6 months occupation), the duration of the tenancy created (initially 4 years, then

6 years and now indefinite), and the breadth of the class of those entitled to succeed to a statutory tenancy (all private tenants and now such tenants and tenants of approved housing bodies). The Act also established a scheme for the supervision of rental properties and a cheap and accessible system for the adjudication of disputes. While the 2004 Act was limited to private rented dwellings, the Residential Tenancies (Amendment) Act 2015 extended the statutory scheme to dwellings let by not-for-profit approved housing bodies to tenants assessed as being qualified for social housing support (with some qualifications which are not relevant here). Accordingly, the 2004 Act, as amended, applied to the premises in these proceedings.

12. Section 39 (1) provides that a statutory tenancy created by the Act will terminate on death, thus mirroring the general provisions of the common law. Section 39

(2) disapplies that termination if certain conditions are met. Section 39 (3)(a) of the 2004 Act sets out those conditions and provides, in effect, for a form of statutory succession to a Part 4 tenancy in the event of the death of the tenant in favour of certain persons living in the premises. Thus, it is provided that a Part

4 tenancy continues in being if the conditions set out in s. 39 (3) are satisfied.

That subsection provides:-

“(3) Those conditions are—

(a) the dwelling, at the time of the death of the tenant concerned, was occupied by—

(i) a spouse or civil partner within the meaning of the Civil

Partnership and Certain Rights and Obligations of Cohabitants

Act 2010 of the tenant,

(ii) a person who was not a spouse of the tenant but who was the

tenant’s cohabitant within the meaning of section 172 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 and lived with the tenant in the dwelling for a period of at least 6 months ending on the date of the tenant's death,

(iii) a child, stepchild or foster child of the tenant, or a person adopted by the tenant under the Adoption Acts 1952 to 1998, being in each case aged 18 years or more, or

(iv) a parent of the tenant,

and

(b) one or more than one of the foregoing persons elects in writing to become a tenant or tenants of the dwelling.” (emphasis added). The section goes further than achieving the statutory objective of providing a measure of security of tenure for tenants and gives a limited right to succeed to the Part 4 tenancy to a class of occupants. This, it should be noted, is quite a limited group. It includes only close family members (spouse/partner, parent or child) and only then those in occupation at the time of death. It follows that it does not extend to such close family members not in occupation, siblings or other relatives who were, or indeed any other member of the household at the time of death.

13. The second named Applicant in this case, EW, suing by the first named Applicant - his aunt and next friend ZG (who, at the time of commencement of the proceedings was not the Applicant’s legal guardian although she had expressed the intention to apply to become so), seeks to challenge the provisions of s. 39(3)(a) in the unusual circumstances of this case. The second named Applicant is the son of the tenant, his mother, who died tragically in 2023 when he was 14 years old. Because he was under 18 at all times, and this is a critical factor in this case, this judgment will refer to him as the Minor Applicant/Appellant, the second named applicant, or simply EW.

14. The first Applicant, ZG is the sister of the deceased tenant and the aunt of EW. Importantly, the Applicants together do not seek to have section 39(3) declared invalid in its entirety, or to have the words in section 39(3)(a)(iii) underlined above severed from the section: instead, the Applicants’ case is that they merely seek a declaration the section is unconstitutionally underinclusive. The Applicants do not challenge therefore the entitlement of any of the persons listed in section 39(3)(a) to succeed to a tenancy under section 39(2). Instead, the Applicants argue that the section is underinclusive and seek a declaration that the frailty of section 39(3) lies in the failure of the statute to extend the benefit to them so that ZG would become the tenant and allow EW to continue to live in the flat.

Facts

15. EW lived with his late mother as a one-parent family in an apartment rented to her by Clúid. EW’s mother was the tenant of the premises. EW’s father is in his life, but EW does not live with him. The Notice Party, Clúid, is a non-profit making charity and an approved housing body under s. 6 of the Housing (Miscellaneous Provisions) Act 1992 (as amended). In that capacity it receives funding from local authorities to assist it in providing affordable rented housing for people who cannot afford to pay private sector rents or buy their own homes. In return for the funding, local authorities take security over the properties owned by Clúid and stipulate the basis upon which housing should be allocated to applicants for tenancies. Generally speaking, that is, applicants who have been determined by the relevant local authority to have a housing need, are placed on the housing list, and are subsequently nominated by that local authority to a tenancy in a specific dwelling or scheme.

16. Clúid has its own policy for limited succession to the tenancy on the death of a tenant. Thus the partner of a tenant who died, or an adult member (over 18 years of age) of the family and who had resided in the principal residence for a period of two years prior to the death of the tenant, could succeed to the tenancy if they were assessed as eligible for social housing support, were nominated by the local authority for the property and applied in writing. Clause 3.5 of the policy dealt with situations such as that in this case, and provided that:- “If the tenant(s) dies leaving dependant children or adults, then a relative may apply to become a Tenant if they have legal guardianship of the dependants and meet the criteria set out at 3.3(b) to (d) above.” The relevant criteria were that the relative be assessed as eligible for social housing support, be nominated by the local authority, and have applied in writing to Clúid.

17. In this case, the Minor Applicant’s mother had been seeking a home for more than 11 years. In June 2022 she entered into a tenancy agreement with Clúid in respect of the apartment, and the Minor Applicant was noted as a permitted occupant. Just over a year later, the Minor Applicant’s mother was killed in tragic and violent circumstances while on holiday abroad.

18. This was a traumatic event for the Minor Applicant, his aunt, and his grandmother. The Minor Applicant went to live with his grandparents. Initially it appears it was suggested EW’s grandparents might take over the tenancy. It is now, however, proposed that his aunt ZG, who lived close by and has, it is said, a good relationship with EW, would give up her own premises and move into the flat with the Minor Applicant. However, it appears to be accepted that this arrangement would not fall within Clúid’s policy because ZG has not herself been assessed as having a housing need and there had not been occupation of the premises for the qualifying period. Equally clearly, she does not come within s. 39(3)(a) which does not include siblings, and is in any event limited to those close family members actually living in the premises.

19. When it became apparent that the Notice Party proposed to recover possession of the premises, the Applicants commenced judicial review proceedings seeking a range of reliefs. These included an injunction, orders quashing the Notice Party’s decision to recover possession of the property, and Clúid’s determination that ZG did not have a housing need. The Applicants also sought a declaration that s. 39 of the 2004 Act was repugnant to the Constitution and incompatible with the European Convention on Human Rights. In the event, the Applicants have not pursued any claim against the Notice Party housing association and no longer rely on the Convention. By the time the case was heard in the High Court, the claim was only a claim against the State and amounted to a claim that s. 39(3)(a) is repugnant to the Constitution by reason of its asserted under-inclusivity by not providing for succession to the tenancy by ZG so as to permit EW to continue to live in the flat.

Form of Proceedings

20. A preliminary issue was raised in this appeal as to whether judicial review was an appropriate or correct method of challenging the compatibility of primary legislation with the Constitution. This has been an issue discussed in the case law but never definitively resolved. However, on this appeal it was recognised by the State Respondent that the core issue in the case had been adjudicated upon by the High Court, a determination made, and leave had been granted to appeal to this Court on the point. There were, therefore, strong considerations of pragmatism and practicality in not rejecting the appeal on grounds of the form of the proceedings but instead proceeding to determine the substantive issue. Nevertheless, it was maintained that judicial review was not an appropriate method of adjudicating upon the constitutionality of primary legislation. It is in my view desirable that that contention should be addressed, and clear guidance given for the future.

21. This matter was also addressed in Donnelly by O’Malley J. At paragraph 206 she said:- “I would observe here that proceedings of this nature will often be more appropriately dealt with in plenary form. I do not wish to be taken as criticising the choice of the judicial review option in this case – the applicants were entitled to take it, and judicial review is often understandably seen as the swifter and potentially less expensive route. However, there are undoubted advantages to plenary proceedings, which, with the availability of mechanisms such as discovery and interrogatories, the opportunity to recognise when further evidence will be necessary on a particular issue, and the ability to tease out oral evidence, are more likely to give the court a greater understanding of the factual context for a claim.”

22. I entirely agree and consider that in light of the Court’s subsequent experience, the Court should go further and indicate that where a case consists of a direct challenge to the validity of a piece of primary legislation enacted by the Oireachtas and entitled therefore to a presumption of constitutionality, such a claim should be brought by way of plenary proceedings. That does not mean that oral evidence must be given in all cases or that a prompt hearing cannot be provided. It may be possible to address any factual issues by way of admissions on the pleadings or short formal evidence. In other cases, and this is one of them, the issues may be highly fact-sensitive and it is unhelpful to have to address such claims through judicial review proceedings based on affidavit evidence. Where the argument is nuanced and involves an understanding and exploration of facts, it is unsatisfactory to address such cases on the basis of evidence presented in the form of professionally drafted affidavits, presenting a curated picture of the evidence shaped with a view to the legal argument, and without the depth and reality that oral evidence by an affected individual can provide. Where it is sought to challenge a piece of public general legislation enacted by the Oireachtas and where it is said that it offends the Constitution in a particular case, then it is to be expected that evidence should be given of that impact and be capable of being explored in plenary proceedings.

23. Where, however, proceedings are brought to challenge the validity of an administrative decision as a matter of public law, and one of the grounds advanced is that the primary legislation underpinning the decision is repugnant to the Constitution in some respect, then it is permissible to advance that claim by way of judicial review, although in the course of the management of such a claim it may be appropriate to direct that it proceed by way of plenary proceedings, particularly if it is apparent that the claim of constitutional invalidity is a significant component of the claim.

24. This case has evolved from the second category of case into the first. It is now a simple direct challenge to the validity of s. 39(3)(a) of the 2004 Act. It would certainly have benefitted from being a plenary hearing. However, it started its life as a judicial review challenge to the decision of the Notice Party, Clúid, originally a Respondent, and in circumstances of understandable urgency. In the event, the claim against Clúid did not proceed and it was never even determined if indeed judicial review would lie against the decision of that body, still less that any decision made was in any way flawed. However, I consider that the circumstances were sufficient to justify commencing judicial review proceedings and including in them what has now become the sole claim in relation to constitutional validity. I do not consider that the form of proceedings should become a trap to be sprung on one side, or avoided on the other, and accordingly I would not dismiss the appeal on the ground that they had not been commenced or pursued by way of plenary proceedings. For future cases however, I agree with Donnelly J. that this case ought not to have proceeded as a judicial review and either on the application of the State Respondent or on the Court’s own motion ought to have been converted into plenary proceedings.

25. It should be added, however, that this is not simply an issue of what the law requires. There are many prudential reasons for advancing a claim through oral evidence in plenary proceedings, particularly where it is contended that an Act of the Oireachtas bears unduly harsh on an individual. To adapt the words of Henchy J. in Cahill v Sutton [1980] IR 269, it gives force and life to a case that the words of an affidavit cannot provide. The fact is that the absence of oral evidence and the opportunity to explore and test it has been a significant hindrance in this case. The evidence adduced here was essentially directed towards the Applicants’ challenge to the way they had been dealt with by Clúid rather than towards establishing the basis for the constitutional challenge, and what evidence there is has not been elaborated on, explained, amplified or tested as might have been the case if there had been oral evidence. It is true that there was sufficient evidence to establish the basic fact that EW was under 18, had been living in the premises at the time of the tenant's death and was not entitled himself to obtain the tenancy or have his aunt do so. But that merely does enough to establish standing to make the case: it does not allow it to be explored in the sort of detail that should be required before it is determined a provision is or is not unconstitutional. Inevitably, as the section enjoys a presumption of constitutionality and the challengers bear the onus of proof, the problem of the lack of evidence bears more heavily on the case made by the Applicants and supported by the amicus.

The Case Made by the Applicants, That Made by the Amicus, and the State’s Response.

26. The Applicants in these proceedings have sought to argue that the section is underinclusive and that the unconstitutionality lies in the fact that it is asserted to be indirectly discriminatory against single-parent families. It is not suggested that the section makes any differentiation on the basis of parental marital status on its face. Instead, it is said that such a differentiation occurs in fact by reason of the effect of the operation of the section. The basis of this argument appears to be that a child of a married couple, or civil partners, or indeed a child who is living with one parent who is now married to or cohabiting with another person, will, or more accurately, may, benefit from s. 39(3)(a) if their parent/tenant dies (as the Minor Appellant’s mother has), if the surviving spouse/partner/cohabitant elects to take the benefit of s. 39(3)(a) and continues the tenancy (and allows the child to continue to live there, and that is permissible in law). The comparator in this argument is a single child of a married couple aged 14/15 (and in all other respects identical to the Minor Applicant) who on this hypothesis would be able to remain living in the apartment whereas he is not able to. On this basis and invoking this Court’s decision in O’Meara v Minister for Social Protection & Ors. [2024] IESC 1, [2024] 1 ILRM 437 (“O’Meara”), it is said that EW suffers a discrimination on the basis of the status of his parents and his consequent status as a member of a single parent family. This would be addressed and remedied if the first applicant were permitted to succeed to the tenancy.

27. The case made by IHREC is different, and in my view significantly so. It was argued by David Fennelly SC, that the section effected a direct discrimination based on age. It was argued that age was a suspect ground requiring close scrutiny. However, even if the Court did not accept that approach, it was argued that the distinction made would still fail a rationality test. Of all the persons in the household of the deceased tenant, the most vulnerable and in need of protection, was the minor child, yet they were excluded from the possibility of succession to the tenancy, when that was available even to partners and cohabitants who had been living in the premises for only six months prior to the death of the tenant. While acknowledging that the law could, and did, make differentiations based on age, and in particular between minority and adulthood, it was pointed out that the common law did not entirely exclude children from the possibility of becoming tenants of premises. Thus, the Law Reform Commission’s Report on Minors’ Contracts (LRC 15-1985) summarised the position (at p. 20) as follows:- “Where a contract made by a minor involves the acquisition of an interest in property of a permanent nature with continuing obligations attached to it, the minor may, at his option, avoid the contract either before or within a reasonable time after he attains majority. Until he avoids the contract, he is bound by the obligations under it.”

28. Similarly, Clarke in Contract Law in Ireland (9th edition, Round Hall 2022)

(Chapter 16, Section 5, paragraph 20) states:-

“A lease taken by an infant is voidable. If the infant repudiates within a reasonable time after coming of age he will not be liable to pay rent due in the future. The case of Blake v Concannon [(1870) IR 4 CL 323] is authority for the view that if the infant has used and enjoyed the property before repudiation he will be liable to pay for the use and enjoyment of the demised property;”

29. On this argument the discrimination is direct and apparent on the face of the section. The comparator is a child of a deceased tenant over the age of 18, or indeed the second named Applicant himself if he was four years older at the time of his mother’s death. The asserted invalidity would be addressed by permitting a minor child to benefit from the succession provisions directly.

30. The tension between this argument and that advanced by the Applicants is sought to be avoided by arguing that these different lines converge in the argument that the section is underinclusive, and there are a number of ways in which the Oireachtas might choose to address any constitutional frailty (if such was found to exist).

31. For the State Respondent it was argued that the section did not differentiate on the basis of parental marital status as the Applicants had argued. While it did effect a distinction based on age, this was an entirely common placed distinction in the law. Indeed, the distinction in principle between childhood and adulthood was one recognised by the Constitution itself. The threshold of 18 years is one of the most familiar distinctions of the law as indeed exemplified by the Age of Majority Act 1985. Furthermore, it is a distinction operative in the area the subject matter of these proceedings. It is a common piece of the law of contract that persons under the age of 18 were not as a matter of law in the same position as adults in making contracts or entering tenancy agreements. It was also an established feature of life, and not just of law, that children do not have autonomy of decision making in respect of where they live. A child, was, in general, obliged both as a matter of fact and of law to reside with their parents. If parents or guardians decided to move, a child was obliged to move with them and certainly had no legal right to insist on remaining in a particular location; if a child’s parent died, a child might have to go and live somewhere else and with an adult who would care for them. It was also argued on behalf of the State that the unwillingness, or perhaps inability, of either the Applicants or IHREC to identify a mechanism which would permit the Minor Applicant to benefit from a continuation of the tenancy consistent with the Constitution, was a telling indicator in this case, suggesting that there was no unconstitutional inequality.

The Applicants’ Case: Discrimination Based on Marital Status

32. I cannot agree that s. 39(3)(a) effects a discrimination based on marital status. It is true that as the section stands, the second Applicant cannot remain in the premises the subject matter of the tenancy, whereas if he was a child of a two parent family, and the surviving parent was living in the apartment at the time of death, and willing to succeed to the tenancy under s. 39(3)(a) he would, in all probability, be able to remain living in the apartment.

33. However, that difference of outcome would also occur if there was anyone else living in the premises at the time of the tenant’s death and entitled to succeed to the tenancy, notably a spouse, civil partner, cohabitant who was not the parent of the minor child, a parent of the deceased tenant or indeed another child of the tenant over the age of 18. However, that difference of outcome would also occur if there was anyone else living in the premises at the time of the tenant’s death and entitled to succeed to the tenancy, notably a spouse, civil partner, cohabitant who was not the parent of the minor child, a parent of the deceased tenant, or indeed another child of the tenant over the age of 18. In each case, such a person could succeed to the tenancy, and the minor child might be able to remain living there. Plainly therefore, the line between a minor child being permitted to remain in the premises and not, is not one drawn on the basis of marital status of the child’s parents.

34. It is not necessary therefore to go further and consider the claim to have the first Applicant succeed to the tenancy. It is apparent however that this would involve a significant departure from the consistent scheme of s. 39(3)(a) since it would mean permitting a person who had not been living in the premises prior to the death of the tenant (or conceivably at all) to succeed to the tenancy, which would create its own inequality or at least difference of treatment. In the context of the present case, that would also involve a new tenant being able to occupy the premises who might not satisfy the requirements for the grant of a tenancy in social housing.

35. The Applicants’ focus on the effect of the section does however highlight an important feature of this case. It is apparent that the section as a matter of equality law, does treat all children equally, in the sense that no child under 18 can succeed to a tenancy on the death of a tenant. The ability of any minor child to remain living in premises is contingent on and is dependent upon the decision of adults. In that sense all children are treated equally: the difference of outcome is as a result of factors other than childhood.

IHREC’s Equality Argument: Direct – and Impermissible –

Discrimination on the Basis of Age

36. It is apparent that the argument advanced by IHREC is markedly different to that advanced by the Applicant, and with a different end point in respect of the remedy which it seems to imply. It is normally the case that an amicus curiae is not permitted to advance a different case to that made by an applicant or plaintiff where the amicus is supporting that party. That is both logical and consistent with the theory of constitutional challenges. Litigation is not an abstract debate upon the merits of legislation open to all comers. A plaintiff or applicant must be entitled to remain dominus litis (in charge of their litigation): it is, after all, their challenge and any argument must be made on their own circumstances. While arguments as to the comparator and the precise equality analysis may appear academic, in this case the different approach of IHREC leads to quite a different end point which would involve the second named Applicant himself, if successful – and not his aunt – becoming a tenant for a period of indefinite duration. This brings the issue of the form of proceedings and the limitations of evidence into sharper focus. It is clear that the Applicants would wish the first named Applicant to become a tenant, but it is not clear that the second named Applicant would wish to become a tenant in his own right or even if he did that there is any reality to doing so. These differences which are not simply a matter of differences of emphasis or legal argument perhaps push to the boundaries of the limits of the amicus role.

37. I consider however, that the Court should proceed to consider this argument. I am influenced by the fact that it is in my view the only plausible equality challenge. It has been raised in this appeal, and it would only promote uncertainty not to resolve the issue now. Furthermore, the State parties did not object. The amicus curiae role must necessarily involve the amicus saying something different to the parties even where the amicus supports an argument and makes a broadly similar one. Here the argument is still within the terms of Article 40.1 and if the section was struck down on this basis, the Applicant could benefit. Accordingly, I consider the Court should address the argument albeit conscious that further issues might arise were the Court persuaded that there was an impermissible inequality based on age.

Is Age a “Suspect” Classification Requiring Close Scrutiny?

38. There is no doubt that the section effects a differentiation based on age: a child over 18 benefits from the section and one under 18 does not. The first question which arises, is whether either on the basis of age generally, or on the basis of age-based distinction between adulthood and minority, is a classification like gender, race, or ethnic origin for example, which requires careful scrutiny.

39. I have avoided the shorthand of suspect classification requiring stricter scrutiny. In Donnelly, O’Malley J. cautioned against the type of rigid taxonomy adopted in some other jurisdictions in which a limited number of classifications attracted scrutiny which were strict in theory and fatal in fact, while all other classifications were subject to a form of rationality test which almost never resulted in invalidation of the legislation.2 I agree. The problem with the approach which focuses on the question of whether a classification is “suspect” is that all the effort goes into that limb of the argument, with invalidity following almost as of course. That renders the reasoning somewhat mechanical, and unpersuasive. It also leads to treating different grounds as equally offensive and therefore suspect. But race and ethnic origin which historically have been, and may yet be, the subject of prejudice, are different from gender which was and may still be the subject of stereotyping, and all of these are different from disability. The recent Irish jurisprudence has been more flexible and focuses on the guarantee of the equality as human persons, and recognises that differentiations based on immutable human characteristics or which relate to groups vulnerable to prejudice and stereotyping will often be arbitrary, capricious, irrational and consequently invalid.

40. Age, or the minority/adulthood distinction, does not fall neatly into the categorisation of a suspect classification or one requiring close scrutiny and is certainly different from race or gender. Age is an immutable human characteristic in the sense that you cannot change your age, but equally age does change. It is certainly not subject to the type of prejudice or stereotyping that other characteristics like race, ethnicity, sex or gender are or may be. In Mallon v The Minister for Justice [2024] IESC 20 Collins J. observed that (at paragraph 29): “There is no indication in this Court’s subsequent Article 40.1 jurisprudence that age is to be regarded as a “suspect” ground […].” Furthermore, differentiations based on minority/ adulthood are commonplace.

See in this respect, Gunther, ‘The Supreme Court 1971 Term - Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection’ 86 (1972) Harvard Law Review 1, 8.

In Sinnott v Minister for Education [2001] IESC 63, [2001] 2 IR 545, the Supreme Court recognised that the State’s obligation under Article 42.4 of the Constitution to provide education was limited to those under the age of 18 years. The Constitution itself recognises that it is permissible to make differentiations based on age, and in particular between young people and adults. Thus, Articles 12.4.1, 16.1.1, and 16.1.2, differentiate between individuals on the basis of age for the purposes of conferring certain basic entitlements such as the right to vote and the right to run for political office.

41. However, in Fleming v Ireland [2013] IESC 19, [2013] 2 IR 417 (“Fleming”), age is referred to as a possible discriminatory ground in passing, albeit one which may be easily explained:- “More generally, a law will be closely scrutinised if it classifies people by reference to such classes as race, religion, gender or nationality. These are categories where, as a matter of history, it is possible to detect the operation of conscious or unconscious prejudice […] Classification by reference to age or disability may be suspect or may be easily explained. Benefits granted by reference to age or disability may be easy to justify” (paragraph 130).

42. In my judgment in O’Meara, I said (at paragraph 19): “[m]arital status is different from other possible discriminatory grounds which attract particular scrutiny. It is not an immutable characteristic linked to the essence of human personality, such as gender, race, ethnicity, or age. Nor is it necessarily the subject of prejudice, or and nowadays, stereotyping” (emphasis added).

Of course, neither Fleming nor O’Meara concerned a differentiation based on age so these statements are of only limited assistance.

43. Article 42A of the Constitution can itself be said to be an example of legitimate differentiation between children and adults. The provisions of that Article are, after all, solely applicable to children. The general law of discrimination is also of some assistance. In Re Article 26 and the Employment Equality Bill 1996 [1997] IESC 6, [1997] 2 IR 321, the Supreme Court held that legislative classifications based on age “could not plausibly be characterised… as irrational or arbitrary”, observing that any differentiation based on age fell “into a different constitutional category from distinction on grounds such as sex or race”. Age is recognised as a discriminatory ground by s. 3(2)(f) of the Equal Status Act 2000 (“ESA”) and s. 6(2)(f) of the Employment Equality Act 1998 (as amended) (“EEA”). But in each case and significantly, the statutory provision is differentiated from the other discriminatory grounds. Section 3(3)(a) of the ESA states that “treating a person who has not attained the age of 18 less favourably or more favourably than another, whatever that person’s age shall not be regarded as discrimination on the age ground” (emphasis added). Similarly, s. 6(3)(a) of the EEA provides that “[t]he age ground applies only in relation to persons above the maximum age at which a person is statutorily obliged to attend school”. Furthermore, s. 6(3)(b) provides that notwithstanding certain other provisions of the EEA “an employer may set a minimum age, not exceeding 18 years, for recruitment to a post”. If age, and in particular an age-based distinction between minority and adulthood is a suspect classification demanding strict scrutiny, these provisions contained in relatively modern anti-discrimination legislation, would appear to be presumptively invalid. Conversely, they can be seen as a recognition that while age in general can be seen as a ground of discrimination requiring analysis and perhaps justification, the differentiation on the basis of minority/adulthood does not attract suspicion or scrutiny.

44. In my view it is useful to return to Donnelly and O’Malley J.’s reluctance to import jurisprudence to classification which she noted “may have the potential to result in overly rigid differentiations between the applicable standards of review” (paragraph 196). As she noted “some grounds of discrimination, even within the core category of characteristics of human personality, are more likely to be offensive than others and thus require more intense scrutiny” (paragraph 193). As she put it at paragraph 189:- “[t]he statutory classification must be for a legitimate legislative purpose, and it will not be legitimate if it is arbitrary, capricious or irrational. Further, the classification must be relevant to the legislative purpose, and it will not be relevant if it is incapable of supporting that purpose.” That is the test the courts should apply and faithful application of it should capture those cases which Article 40.1 was designed to outlaw.

45. This matter was recently considered by the High Court in Brophy v DPP Ireland and the Attorney General [2024] IEHC 392 (Phelan J.). The decision of the Supreme Court in JD v Residential Institutions Redress Committee [2009] IESC 59, [2010] 2 ILRM 181, was explained there as:- “an acknowledgment that classifications contained in legislation on age grounds are not in themselves invidious, unfair or, in the legal sense, discriminatory but may be so found if shown to be arbitrary, irrational or unfair” (paragraph 104).

46. I agree that discrimination on age grounds can be discriminatory and offensive to Article 40.1, although it falls into a different category to other immutable characteristics because it is a classification regularly and legitimately used. However, if such a categorisation is arbitrary or irrational in the sense that it is not rationally connected to the purpose of the provision or indeed animated by prejudice or stereotyping, then it will be irrational as explained in Donnelly, and therefore invalid. In my view therefore, proper application of an irrationality standard will capture any age-based discrimination which is invidious, arbitrary, unfair or the product of prejudice.

47. This matter can be approached in a different way. If strict scrutiny is applied, then at its most demanding it means that a legislative provision, even if it operates beneficially in every other case, will be struck down if it cannot be justified in even one case. This is indeed the same test that is applied to legislation which is alleged to breach the constitutional rights of the citizen. However, a rationality test looks at whether the provision is broadly justifiable, even if it may be argued that some people at the margins benefit when they need not, and some people do not benefit but perhaps should. Age-based distinctions are classic examples of the latter. There is no magic to an 18th birthday but most classifications which distinguish on that basis cannot be impugned simply by pointing to a 17 year old who could benefit from the provision and a 19 year old who should not. The statute inevitably operates on a generalisation, and the proper question in such a case is whether the broad distinction between children and adults (and whatever the age chosen) is a relevant and rational one in the light of the statutory purpose.

48. In the judgment she delivers Donnelly J. would find that age, at least the agedbased distinction between childhood and adulthood, is a classification of concern demanding close scrutiny, coming to the conclusion that the differentiation in this case offends Article 40.1. She does so in part by concluding that children are vulnerable and therefore they are more prone to prejudice or stereotyping. This slight linguistic shift would alter the test quite significantly. There is undoubtedly an overlap between vulnerability as a condition and the possibility of prejudice but when the case law speaks of a group “vulnerable to prejudice or stereotyping” it means simply prone to or liable to such prejudice or stereotyping. As explained in Donnelly, it means that these are categories where, as a matter of history, it is possible to detect the operation of conscious or unconscious prejudice or stereotyped roles. It is possible to conceive of classes who are vulnerable but not subject to either prejudice or legislative stereotyping – babies are one example – and other groups who may be subject to stereotyping but who are not otherwise considered to be vulnerable. Men for example may be the subject of generalisation based on a stereotype, but would not otherwise be considered to be vulnerable. If the form of strict scrutiny is applied to invalidate the age classification in this case, which is an entirely commonplace one, on the basis that children as a class are vulnerable, it must be apparent that many other provisions adopting that classification would be open to challenge. I consider that the correct approach in the light of Donnelly is to apply a rationality test, and that properly applied such a test is sufficiently searching as to isolate and outlaw those classifications which are prohibited by Article 40.1.

Is the Differentiation in this Case a Rational One?

49. While this case must be addressed on its own facts which related to a 14/15 year old boy seeking to remain in a tenancy from an approved housing body, it is important to appreciate that the section applies more broadly and excludes any child under the age of 18, from infancy to a person on the cusp of their 18th birthday, and applies to all private landlords, whether approved housing bodies with particular objectives pursuing an important State policy, individual private landlords, or large entities with multiple units to let. Section 39 applies to all such tenancies, and excludes, or does not extend to anyone under the age of 18 whatever their age. When considering the classification made by the section, and possible alternative formulations, it is necessary to keep in mind, at a minimum the different cases of a private landlord and a late teenager applicant, a private landlord and a young child applicant, an approved housing body with quasi-statutory duties and a young applicant, and a similar body and a relatively mature teenager, all of whom are excluded by the provisions of section 39. Of course, it might be said that there should not be a single rule for each of these cases, but at the moment there is, and the section is not challenged on the basis that it is permissible to exclude some children or some landlords, but not others.

50. While the argument against this section is said to be primarily based on Article 40.1, equality before the law, it is said that account must also be taken of the fact that the Applicant here is a child and entitled to the benefit of Article 42A, and that the apartment is a dwelling home and therefore protected by Article

40.5 (reliance is placed on Article 40.3, but it is difficult to see what this adds to the argument, and like Donnelly and Hogan JJ., I will leave it to one side). It is understandable that the argument is put in this cumulative way, but it is in my view helpful to analyse these issues separately before considering whether taken in combination with Article 40.1, it can be concluded that the section may infringe the Constitution.

51. The question then as in Donnelly, is whether the differentiation is “arbitrary, or capricious, or otherwise not reasonably capable, when objectively viewed in the light of the social function involved, of supporting the selection or classification complained of?” (paragraph 200). If that test is applied fairly, then in my view the conclusion must be that the distinction is rational on this basis. As the State Respondent observes, the object of the legislation is to provide a measure of security to tenants while striking a reasonable balance with the property rights of landlords. But in addition to security of tenure for the tenant, section 39 also confers a privilege on certain close relative occupants of the premises by way of exception to the general rule that a tenancy terminates on death, which was always the position at common law, and is now provided for specifically by s. 39(1): “[s]ubject to subsections (2), (4) and (6), a Part 4 tenancy shall terminate on the death of the tenant”. As such the provisions of s. 39(3) setting conditions of succession to the tenancy, is a further limitation on the property rights of the landlord, which have expanded significantly since 2004 and the original terms of the Act. Analysed in terms of property rights, the Act is the legislature’s

decision to balance those rights and its judgment in this regard, which has developed, adapted and changed over time in response to changes in society and the economy, is entitled to some deference.

52. In this case the simple judgment being made is that the persons who may be entitled to succeed to a tenancy (in 2004 or the remainder of a 4-year term, but since 2021 for an unlimited duration) must be an adult. That judgment is one made routinely in the law even in the field of accommodation where it appears local authority housing and housing supports in the rental market are similarly limited to adults. Children of deceased tenants are not singled out for different treatment in this regard: the ability of a child to be an occupant of premises is dependent on an adult being or becoming a tenant.

53. It is important to keep in mind that this legislation is not the conferral of a benefit by the State from its own resources. It is instead an intervention into the relationship between a landlord and the tenant, and by extension, others who live in or seek to live in the premises which are let, and where the cost of the social policy is borne by the property owner rather than the State. A judgment was made, for the first time in 2005, that for all premises in this category that a statutory tenancy should arise after six months’ occupation (which was initially to last only for a period of four years) and a privilege to succeed to a statutory tenancy should be conferred on close adult relatives of a deceased tenant (parent, child over 18, or partner/spouse), but that a landlord should not be required to accept a child under 18 as a tenant, or indeed siblings or others living in the premises at the time of the death of the tenant, or a parent, child over 18 or spouse/partner who did not live in the premises.

54. The Act effects a significant limitation on what would otherwise be the rights of the owner of property in the interests of a judgment as to the common good. The intervention in and regulation of the market for private rented dwellings, now including premises let by approved housing bodies, is, in my view, at least, an area of social and economic regulation where the judgment as to the extent of protection provided and its limits from time to time, is one in the first place for the Oireachtas, which should only be set aside if it makes a distinction which is irrational arbitrary or capricious, or otherwise reflects a prejudice or unjustified stereotyping.

55. In assessing the rationality of s. 39, it is relevant to consider what other provision might provide a benefit to the Applicants and yet be consistent with the demands of the Constitution as the Applicants and IHREC contend. However, neither the Applicants nor IHREC have identified precisely what type of provision would extend a benefit to the second Applicant and be acceptable and compatible with Article 40.1 and the Constitution more generally. The State Respondents are critical of the Applicants’ and IHREC’s failure to do so. It is suggested, that if there is a difficulty in pointing to an alternative provision that is practicable and would not offend the Constitution, that points to the conclusion that the line currently drawn by the legislation is at least rational. I am inclined to agree. In this case I do not think a court can merely shrug its shoulders under cover of respect for the separation of powers and suggest that a lacuna having being identified by the court, the remedy is a matter for the Oireachtas. Here for example, there is a real possibility of a chain reaction of unconstitutionality, or at least arguments as to unconstitutionality, if this provision is found to offend the Constitution. Clearly other age-based distinctions would be vulnerable to challenge on the one hand, and other limitations on succession to tenancies would be questionable on the other. It is relevant therefore to consider how else a line might be drawn if the arguments of the applicants and amicus are upheld.

56. As set out above, the case made on behalf of the Applicants would seem to lead to a situation where the first Applicant succeeds to the Part 4 tenancy and becomes the tenant and thus facilitates the continued occupation of the premises by the second Applicant. There are, however, obvious difficulties with this course. How is the second Applicant’s position protected? What would happen on the second Applicant’s 18th birthday? If, as appears to be the case, the first Applicant would become the Part 4 tenant, then that would also involve a departure from the scheme of the section, which limits that entitlement to someone living in the premises at the time of the death of the tenant, and in a close family like relationship with them. If that criterion is to be set aside to allow for this case the question would arise as to the justification for exclusion of non-resident close relatives and residents not closely related but perhaps long standing.

57. ZG becoming a tenant would be particularly problematic in the context of an approved housing body such as Clúid. It would mean both in theory and in practice, that any person can become a tenant, for an unlimited period who does not satisfy the approved housing body’s criteria for tenants, in this case the fundamental criterion of a demonstration of a housing need. It also follows, that if there is a new Part 4 tenant, other and subsequent occupants might become entitled to succeed to the tenancy even on the death of that tenant, or conceivably if that tenant decided to vacate the property, (if as suggested, s. 39(3) is a violation of the guarantee of the protection of the dwelling home) and without establishing any housing need. On this basis, the premises would be removed from the housing stock available for social housing, perhaps permanently.

58. On the other hand, the solution which would appear to follow from IHREC’s argument would mean that the Minor Applicant should be entitled to a tenancy in their own right. IHREC argues that, since at common law a minor could be bound by a tenancy agreement on the basis that such a contract is a contract for necessaries and therefore valid unless repudiated, that it is therefore feasible to make provisions by law for a minor becoming a Part 4 tenant.

59. In the first place, this seems unrealistic in the case of most younger children, and perhaps most children, and that general reality is something the Oireachtas is entitled to consider, if rationality is the test. Second, the common law to which IHREC refer, is itself a demonstration of the fact that in this respect minors are different from adults and therefore cannot be said to be the same for the purposes of Article 40.1. Third, and perhaps most significantly, the common law to which IHREC refer is the law of contract and thus relates to agreements voluntarily entered into by both parties. Section 39, by contrast, is a legislative intervention into the relationship between landlord and tenant. There is a significant difference between a law which permits a landlord to enter a contract with a minor of their choice, accepting risk of repudiation (which is what the law currently provides) and a statute which requires all landlords to accept any minor child of a tenant as a Part 4 tenant in their own right.

60. The market for private rental dwellings and for social housing provided by approved housing bodies is an important and sensitive one. It has been subject of repeated regulation in different terms, particularly in recent years. The law in this regard is not an instance of the legislature conferring a benefit provided by the State, the cost of which is borne by the State. It is the intervention in the market which imposes burdens and obligations on landlords in the interests of tenants and as a matter of constitutional law balances their rights and interests, which is also an important piece of social and economic regulation. It is quintessentially a judgment to be made and remade in the light of experience by the Oireachtas and not by the courts using the relatively blunt and inflexible instrument of constitutional interpretation. In my view, the limitation of the statutory right of succession to children over 18 is not irrational.

Article 42A

61. It is said however, that the failure to provide for the possibility of succession to the tenancy by a child under 18 is either a breach of Article 42A or Article 40.1 read in the light of Article 42A. Article 42A is a recognition of the distinct legal and constitutional status of children. To that extent it might be said to justify rather than invalidate differential treatment of children. However, in the judgment which Donnelly J. delivers, it is argued that Article 42A places the State under a duty to protect children and that s. 39(3), in failing to make provision for the possibility of a child succeeding to a Part 4 tenancy, fails to protect the position of children. I recognise the force of this argument, but regret I cannot agree.

62. Article 42A of the Constitution was introduced in 2015 consequent on a referendum in 2012 which had the effect of removing the original Article 42.5 and replacing it with a separate Article dealing with the rights of children.

63. This Article operates at a general level. It seems clear that reliance is not and cannot be placed on the specific terms of Articles 42A.2 to 42A.4 which deal with particular situations in relation to safety, welfare, adoption, guardianship, custody and access to any child. They provide that, broadly speaking, in such cases the best interests of the child shall be the paramount consideration, and also that in any such proceedings where a child is capable of forming his or her own views, the views of the child shall be ascertained and given due weight having regard to the age of maturity of the child. Plainly these provisions are not applicable here. Accordingly, the argument relies on the terms of Article 42A.1:- “The State recognises and affirms the natural and imprescriptible rights of all children and shall, as far as practicable, by its laws protect and vindicate those rights.”

64. The reference to “natural and imprescriptible rights of all children” is a clear echo of the terms of Article 41.1 dealing with the family which is recognised as possessing “inalienable and imprescriptible rights”. The original Article 42.5, can be said to have recognised, albeit indirectly, the fact that children had such rights when it provided for the State’s power as guardian of the common good to supply the place of parents “but always with due regard for the natural and imprescriptible rights of the child”. It seems clear that Article 42A.1 is declaratory and intended as balancing the provisions of the Constitution in relation to the family (which in many cases have been held to mean in effect, the views of the parents) and to ensure that those parental rights would not trump the rights and interests of children.

65. The background and objective of Article 42A was explained in the judgment of Hogan J. for a unanimous court In the Matter of B (a minor) between Child and Family Agency and B v Adoption Authority of Ireland and C and Z [2023] IESC

12 (at paragraphs 30-33) quoting in turn my judgment in JB v KB [2018] IESC 30; [2019] 1 IR 270. At its simplest, Article 42A.1 takes effect most obviously in the family context and was intended to effect a subtle recalibration of a perceived constitutional balance between the rights of parents and children.

66. In AZ and Ors v Minister for Justice and Equality [2024] IESC 35 (“AZ and Ors”), this Court (Woulfe J.) held (Collins J. concurring), that the respondent Minister was obliged to have regard to Article 42A.1 in the context of a decision involving the deportation of the father of a child with special needs where it was claimed that the deportation would mean the removal of the child’s primary caregiver. The best interests of the child in that situation were a primary (but not the paramount) consideration. The challenge in that case was to a decision of the Minister to deport a father in circumstances where the other members of the family would remain in Ireland. That had a clear impact on both the family rights, and the rights of the child protected by Article 42A most obviously, to the care, companionship and custody of their father. That reasoning does not, in my view, support in any way the contention that s. 39(3) is repugnant to the Constitution.

67. In the judgment he delivers Hogan J. suggests that Article 42A.1 as interpreted in AZ and Ors means that the Oireachtas when enacting s. 39(3) was obliged to consider the best interests of this child (or perhaps all children) and legislate accordingly and did not do so. The best interests test is one that applies in the case of individual decision making in respect of a particular child whose interests and needs are to be assessed. It was the failure to do so in a deportation

decision that led to the decision in AZ and Ors. If however, it is said to be imported by Article 42A.1 into the legislative process, then that is much more than a subtle recalibration of the position as between parents and children when issues concerning children arise for determination. Furthermore, it would appear to involve an invitation to courts to make their own judgment as to what is best for children generally, and prefer it to the view of the Oireachtas.

68. I agree that the provisions of Article 42A.1 were introduced after a referendum and that accordingly the People have entrusted the interpretation of that provision to the courts, just as indeed all the provisions of the Constitution fall to be interpreted. But it is clear, in my view, that nothing in the text or history of Article 42A.1 provides any proper basis for treating it as an open-ended provision that requires courts to substitute their judgment on social issues concerning children for that of the Oireachtas.

69. It might be added that it has not been suggested until now, that there is any natural and imprescriptible right of a child (or an adult) to live in any particular place, and contrary to the wishes of the property owner. As already noted, the recognition that a child has natural and imprescriptible rights was not an innovation of the 2015 amendment. Furthermore, in this case there was no evidence that the operation of the Act would result in the minor Applicant not having somewhere to live or someone to care for him. Finally, in the context of Article 42A there has been no determination, judicial or otherwise, that the outcome contended for by either the Applicants or IHREC was in the best interests of the individual child. Indeed, the voice of the child has not been heard in these proceedings. Differences of capacity are expressly contemplated by Article 40.1 as justifying differential treatment. The law of capacity, which is the background to the s. 39(3) limitation of the rights of children to those over 18, is not necessarily to be seen as a restriction on the rights or interests of children. In its origins, it was protective of children by protecting them against the possibility of onerous and improvident agreements being enforced against them, but at the same time permitting them to make contracts for necessaries with the protection that they retained the capacity to repudiate even those contracts before they became adults, or within a reasonable time thereafter. It is difficult to understand how the provisions of Article 42A.1 of the Constitution should be said to require a landlord to accept all children as possible statutory tenants in succession to a deceased parent, particularly when the right to succeed to a statutory tenancy was itself created by statute as recently as 2004.

Article 40.5

70. Article 40.5 of the Constitution provides that “the dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law”. The scope of the Article has received significant recent judicial attention and debate. It has been suggested that a broader interpretation of the Article should be adopted focussed on the term “inviolable”, and is contained in dicta in a series of recent cases, most notably Sullivan v Boylan [2012] IEHC 389, Irish Life and Permanent Plc v Duff [2013] IEHC 43, [2013] 4 IR 96, Wicklow County Council v Fortune (No. 1) [2012] IEHC 406, Wicklow County Council v Fortune (No. 2) [2013] IEHC 255, and Clare County Council v McDonagh [2022] IESC 2, [2022] 2 IR 122.

71. However, this expansive view of the Article has not been adopted by this Court. The most authoritative statement of the approach of this Court is that contained in the judgment of McKechnie J. for a unanimous Supreme Court in Meath County Council v Murray [2017] IESC 25, [2018] 1 IR 189, where he observed (at paragraph 119) that it was “well established that this section of the Article is not confined to preventing forcible entry only; any entry other than such as is in accordance with law is prohibited.” However, he considered that the context of forcible entry (and by implication by the State) which was clearly and expressly addressed by the Article, was itself a helpful guide to any application of the Article outside that context. McKechnie J. was reluctant to:- “specifically endorse the generalised description of [Article 42.5] ...as being a ‘freestanding, self-executing guarantee which applies to both civil and criminal proceedings and to both State and non-State actors alike’”. McKechnie J. observed that “[s]uch a statement, in non-qualified and unconditional language, is of immense reach, with potential capacity to travel to destinations quite unknown”.

McKechnie J continued:-

“It is not the fear of far reach that concerns me; rather it is, first, the creation of that potential from a base which I do not think justifies it, and, secondly, from the factual context of the instant appeal, where the provision cannot possibly prevail over the countervailing factors which are present. As a result, I think the preferable course would be that any widespread expansion from the Article’s traditional sphere of influence should be case driven and individually worked out.” (paragraph 119).

72. This Court’s decision in Clare County Council v McDonagh [2022] IESC 2, [2022] 2 IR 122, which was relied on by the Applicants and IHREC, accepted that this was the correct approach. In that it was considered that Article 40.5 was a factor to be considered in an interlocutory application for equitable relief where an application was being made by a local authority to recover publicly owned property, against members of a marginalised and socially vulnerable group, to which the plaintiff public authority owed housing obligations.

73. Whether Article 40.5 has application to prevent a local authority from recovering possession of a property even against members of a marginalised and socially vulnerable group to whom it owes housing obligations will have to await determination at a full trial. This decision does not however provide any basis for the application of Article 40.5 in this case. If it were to be relied on here to invalidate section 39, then the factors deemed central in that decision (the interlocutory nature of the proceedings, a marginalised and vulnerable group, a local authority defendant under a duty to provide housing) would all fall away to be replaced by a general non-specific prohibition (or perhaps inhibition) on the recovery of any dwelling by any owner.

74. Section 39 does not itself permit entry, forcible or otherwise. Any entry to the premises would be a re-entry by a person otherwise entitled to possession and is in accordance with law. That ‘law’ is the right of a landlord to recover possession of premises on termination of a tenancy, in this case specifically provided for by s. 39(1). In those circumstances the landlord is the only person with an entitlement, and indeed the legal and constitutional right, to occupation of the property.

75. Part 4 of the Act generally, and s. 39 in particular, effects a significant limitation on what would otherwise be the rights of the landlord. The 2004 Act creates a right to a Part 4 tenancy in circumstances which did not exist before then, and also creates a class of persons entitled to succeed to a tenancy on the death of a tenant which was not recognised until then. If it is to be said that the section is unconstitutional in not going far enough in creating a broader class of person entitled to succeed to a tenancy, then it would seem that the law has been seriously deficient since the coming into force of the Constitution. The Landlord and Tenant Act 1931 applied only to domestic dwellings which had been in the occupation of a tenant for a period of 30 years (s. 19(1)(b)), which period the 1980 Act reduced to 20 years (s. 13(1)(b)). The 1980 Act provided for only very limited survival of rights on the death of a person who had claimed a right under the Act (s. 77). That right was to continue a claim which had been initiated by a tenant, and was not a general right to succeed to a tenancy. Neither Act applied to the State, or to local authorities. The Rent Restrictions Acts of 1946 and 1960 applied to a limited number of dwellings only. The 1960 Act, by s. 31, did provide for succession to a statutory tenancy by a member of the tenant’s family. That does not appear to have applied to children under the age of majority: certainly no such suggestion was advanced in this case. Therefore the 2004 Act and the subsequent amendments were a significant expansion of the rights of tenants and other occupants.

76. Section 39(3) does not deal with entry on to the premises per se. Rather it provides a limited exception to the provision provided for by s. 39(1) that the statutory tenancy terminates on the death of the tenant. If it is to be said that the provision is repugnant to the Constitution because it is a precursor to the reoccupation of the premises by the landlord, and because it could in theory lead to the removal of a person who had been living there, that would inject considerable uncertainty into the law regulating the rental market in Ireland. It would also mean that the law of landlord and tenant would become entirely controlled by the general terms of the Constitution and its reference to the inviolability of the dwelling, and ultimately this Court would become the arbiter for what may or may not be permitted. Nothing in the text, background or interpretation of Article 40.5 can justify this conclusion in my view.

77. In the judgment which he delivers, Hogan J. traces the origins of Article 40.5 of the Constitution through Article 7 of the 1922 Constitution to the Weimar Constitution (and beyond that to Article 3 of the French Constitution of 1848) in order to conclude that s. 39(3) is repugnant to the Constitution because it permits the termination of the occupation of premises by persons who were living there. He argues for a very strong interpretation of the term “inviolable” in part because he speculates both the 1922 and 1937 Constitutions reflected a bitter race memory of evictions by unscrupulous absentee landlords in the 19th century.

78. While admiring this impressive historical excursus I cannot agree that it leads to the conclusion that s. 39(3) is deficient. My reasons in this regard can be set out briefly.

79. First, it must be plain that no part of this argument was advanced by the parties or debated in any way in this case. Second, the Weimar Constitution was only one of the sources consulted by the drafters in 1922 and 1937, as observed by Donal K. Coffey in his authoritative work Drafting the Irish Constitution 1935- 1937: Transnational Influences in Interwar Europe (Palgrave Macmillan 2018). There is absolutely no evidence of the interpretation of the relevant provision in the Weimar Constitution, and it does not appear to have been interpreted by any court in that or any other jurisdiction in the manner suggested, still less applied to invalidate any provisions such as that contained in section 39.

80. Much of the difficulty here comes from the strong interpretation Hogan J. would give to the term “inviolable” (almost to the exclusion of the subsequent phrases in respect of forcible entry, and entry permitted by law) and the elaborate argument he constructs upon it. This is not, at least in my view, a question of whether the subarticle is limited to the field of criminal law, or entry by officers of state authorities. It is clear that if the Oireachtas passed a law permitting forcible entry by citizens of other premises it would fall to be analysed by reference to Article 40.5. There is a question, somewhat overlooked in the recent case law, as to whether the Article has self-executing horizontal effect and can apply to disputes between citizens, but that need not detain us here since the question here is the validity of a statute by reference to the Constitution. The question is the interpretation of the phrase taken as it must be, as a whole. If such a strong interpretation is to be given to the word “inviolable” then it is difficult to understand why the subsequent phrase precluding forcible entry was included at all, since that must necessarily be comprehended by the guarantee of inviolability.

81. It seems clear from Coffey in Drafting the Irish Constitution 1935-1937: Transnational Influences in Interwar Europe at page 208 that the drafters were experimenting with a number of different formulations without any suggestion that the formula included in the final text (reverting in this case to the language of the 1922 Constitution) involved a significant difference of interpretation and application. It seems to me that protection against forcible entry was seen as important enough to be specifically set out and as informing what was meant by the subarticle. If anything, this does not suggest a particularly strong reading of the term “inviolable”.

82. Finally, and in any event, the whole argument about inviolability is somewhat beside the point. Even on this interpretation the inviolability of the dwelling is not absolute: premises may be entered (and presumably tenancies terminated) in accordance with law. There are myriad provisions permitting entry onto private property including dwelling homes. The central issue where any such provision is challenged is whether the ‘law’ permitting entry (and in this case presumably by extension, not providing for succession to a tenancy after death of the tenant) is one which “[stoops] to methods which ignore the fundamental norms of the legal order postulated by the Constitution [...]” (King v AG [1981] IR 233, 257). While it necessarily follows from Hogan J.’s judgment that the provisions of section 39(3), while law, must be considered in some way constitutionally deficient and therefore inconsistent with fundamental norms of the legal order postulated by the Constitution, it is not clear to me at least why this is so, and as importantly, how any such conclusion is to be derived from Article 40.5 or the Constitution more generally.

83. There is, in my view, nothing inconsistent with the fundamental norms of the legal order postulated by the Constitution in providing either that a tenancy terminates on the death of a tenant, or permitting a landlord, who is the owner and the only person then entitled to possession, to recover possession of it. That is all the clearer when the law enacted by the Oireachtas goes much further and grants an entitlement to a tenant after 6 months’ occupation to a statutory tenancy of unlimited duration and furthermore provides for succession to the tenancy by certain close relatives then living in the premises.

84. There remains the contention that Article 42A and 40.5 taken together with Article 40.1 should lead to the conclusion that s. 39(3) is repugnant to the Constitution.

85. Even if this synergistic approach were permissible, it must be acknowledged that it can only succeed if this Court were to ignore the warning of O’Malley J. in Donnelly to avoid the trap of reducing the equality test to a binary one in which scrutiny is strict in theory but fatal in fact or rational in theory and nonexistent in fact. The reality is that there is an entirely rational basis for the differentiation here and it cannot be said to be the product of prejudice or stereotype. It is a differentiation which is a common place feature of the law.

The equality argument here becomes a contention because of the tragic background to this case which certainly demands sympathy, the fact that the legislation does not cover this individual case – and here the very limited evidential basis for this case comes to the fore once again – means that it must be unconstitutional. If that reasoning, however humanely motivated, were accepted, it would go well beyond the scope of the equality provision as carefully outlined in Donnelly. Article 40.1 would no longer be an important protection against prejudicial differentiation and irrationality, and become instead a more general power to second guess legislative choices in difficult areas where the courts have very limited insight. It is a noteworthy feature of this case that this is an area which has been the subject of repeated legislative attention in recent years.

86. As observed in Donnelly, the separation of powers must be respected and the Court is not permitted to determine that any individual should be included because a more inclusive policy would in the opinion of the Court be “fairer”. In Re SC [2021] UKSC 26, [2022] AC 223, Lord Reed cautioned against an expansive application of the equality guarantee contained in Article 14 ECHR observing that, in effect, since legislation was the art of differentiation, any legislation could be contested from the point of view of equality, and that a broad and expansive application of the guarantee risked undue interference with the sphere of political choice. I agree. Once it is established that a classification is not arbitrary or capricious or based on prejudice or stereotype, then this is an area where there is particular merit in the observations of Chief Justice Stone that “[c]ourts are not the only agency of government that must be assumed to have capacity to govern” (United States v Butler (1936) 297 US 1).

Underinclusive Classifications

87. The repeated contention in this case that s. 39(3) is underinclusive, seems to imply that this is a more modest form of constitutional challenge which might be more readily accepted, since it appears to be suggested that the section should be left intact and operational and require only some extension, the precise details of which might be left to the Oireachtas. This contention was never fully articulated or explored and deserves some scrutiny.

88. It is worth recalling the distinctive feature of any equality guarantee: it does not mandate any substantive entitlement, but only, that if something is given to (or imposed upon) one group it must not be withheld from others similarly situated, and least on the basis of a differentiation going to their essential nature as human persons. No fundamental right need be involved. The essential equality as human persons can be achieved by withholding the benefit from or imposing the burden on everyone, or at least those persons determined to be the same, as human persons. Equality is therefore indifferent as to substantive outcomes. It is satisfied if people are treated well or badly, so long as they are treated equally well or equally badly.

89. It goes therefore to the very heart of the concept of equality if a provision is claimed to be constitutionally frail by reason of the fact that it does not extend to people to whom as human persons it should extend if they are to be treated equally with others. As was said famously in Railway Express v New York

(1949) 336 US 106:-

“[T]here is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally.”

90. The same may be said of benefits being conferred by the State. The precise inequality and consequent constitutional invalidity, being aimed at by equality provisions such as Article 40.1 therefore lies in the very fact that it is underinclusive and does not include those which it should. The normal and necessary consequence of a finding that a provision is so underinclusive as to offend the Constitution is invalidity. As Henchy J. said in Murphy v The Attorney General [1982] IR 241:- “once it has been judicially established that a statutory provision enacted by the Oireachtas is repugnant to the Constitution, and that it therefore incurred invalidity from the date of its enactment, the condemned provision will normally provide no legal justification for any acts done or left undone, or for transactions entered into, in pursuance of it [...]”. Therefore, it should not be assumed that a challenger can of their own choice somehow lower the threshold for a finding of invalidity by describing the provision as underinclusive.

91. The characterisation of a provision for the purposes of equality analysis as underinclusive or overinclusive originated in an insightful article by Tussman and tenBroek in 1949.3 It provides a useful frame of analysis for equality claims. But the authors also suggest that as a general rule, underinclusive provisions, at least ones which confer some benefit, may be less offensive to the Constitution than ones which are overinclusive. An overinclusive provision, particularly one See Note 1.

which imposes a burden, may apply to a person or group who should never have been included, and for whom there is no justification imposing the statutory burden on them. By contrast, since the legislature is entitled to proceed incrementally, and may experiment, and develop the law through experience, it may be that the provision does not extend as far as logic might suggest, that it may be less offensive to any guarantee of equal protection. On this view, the finding that the classification is underinclusive could lead to a conclusion that it does not offend the Constitution, rather than as the Applicants appear to consider, a greater willingness to find it invalid. As it was put by Tussman and tenBroek:- “Since the classification does not include all who are similarly situated with respect to the purpose of the law, there is a prima facie violation of the equal protection requirement of reasonable classification. But the Court has recogni[s]ed the very real difficulties under which legislatures operate – difficulties arising out of both the nature of the legislative process and of the society which legislation attempts perennially to reshape – and it has refused to strike down indiscriminately all legislation embodying the classificatory inequality here under consideration. In justifying this refusal, the Court has defended under-inclusive classifications on such grounds as: the legislature may attack a general problem in a piecemeal fashion; ‘some play must be allowed for the joints of the machine’; [...] ‘the law does all that is needed when it does all that it can’.”

92. If, however, it is decided that a provision found underinclusive cannot be justified on this basis then the normal consequence will be invalidity of the provision as offending the guarantee of equality. The offending provision is not left in place since to continue to confer a benefit in this partial and discriminatory way offends the Constitution. For my part, I agree that the power of judicial review under the Constitution should be exercised with care and precision and to ensure that the remedy is carefully aligned with the mischief. However, refraining from declaring a provision to be invalid allows an unconstitutional statute to continue to function. If a court were to routinely allow provisions found invalid because they violated Article 40.1 to continue to have effect, then that would be difficult to reconcile with the very limited circumstances in which this Court has held that it is permissible to suspend a declaration of unconstitutionality.

93. It would furthermore lead, as it does in the judgment of Hogan J., to the courts threatening to make orders against the legislature compelling it to legislate. Hogan J. does not indicate what would follow if legislation was not produced, or produced as rapidly as he would consider appropriate, but it is clear that it would involve unprecedented conflict between branches of government. Heneghan v Minister for Housing (No2) [2023] IESC 18, [2023] 2 ILRM 97, to which my colleague refers, was in every sense an exceptional case: the

conclusion of the Court was that the Oireachtas, by failing to amend the Act providing for election to the Seanad, described as “part of the constitutional architecture of the State” had failed to comply with a mandate from the People themselves by referendum, and had done so over a period of more than 40 years. Furthermore, an immediate declaration of invalidity would have meant that the defect could not be remedied, and indeed no valid legislation could be passed. So, and unlike this case, some legislation was necessary, indeed essential, to allow the legislative system to function at all. The Court could not take the course of declaring the existing Act invalid as that would have removed the possibility of any legislation. That was a truly exceptional case, but it should not be permitted to become the norm and a justification for coercive orders against the Oireachtas. In such a situation it may be that the Court should consider more carefully the option of striking down the provision and leaving the Oireachtas to determine whether it is appropriate to enact legislation, and if so in what terms. It may be necessary to scrutinise, more carefully assertions of under inclusivity in future cases.

Practical Consequences

94. A central feature of these proceedings, in my view, is that the premises in question are part of the housing stock let by an approved housing body to persons in need of social housing who are included on the local authority register. The premises are let at a heavily subsidised rent. It is difficult to think that this has not been a significant factor in this case.

95. That consideration leads to one further troubling issue in this case. The proceedings were commenced, understandably, in circumstances of some urgency, and an injunction claimed at the outset to prevent interference with the occupation of the apartment. The proceedings, when initiated, were more widely framed than the claim advanced in this Court, and in the face of those proceedings Clúid agreed not to let the apartment to anyone else pending the resolution of the proceedings. As a result, the application for interlocutory injunction did not proceed and the relief sought was not the subject of any scrutiny. However, the proceedings have now been reduced to the constitutional claim against the State and no relief is sought against Clúid. But the continued existence of these proceedings has meant that the apartment has now been largely unoccupied for more than three years and has not been available to be let to any person with a housing need, something which is both the objective of Clúid and obviously in the public interest.

96. It may be said that this is simply an unfortunate byproduct of the time that it takes to resolve litigation. It is, however, particularly unfortunate in this case, given the nature of the only claim now being advanced by the Applicants, namely that the section is unconstitutionally underinclusive and therefore a breach of Article 40.1. Even if the Applicants were to succeed entirely in these proceedings, this could not result in any order giving the second named Applicant either an entitlement to become a tenant in his own right, or to reside in the premises with another tenant. In any case it would be necessary for the Oireachtas to legislate, and that legislation could be in a form that complied with the Constitution as found by this Court but might not benefit the Second Applicant at all. This would be the case if the Oireachtas decided to limit rather than expand the class of persons entitled to succeed to a tenancy, or remove the entitlement altogether, or limit the entitlement to private rented accommodation and exclude social housing, or impose longer qualifying residence periods, or set an age limit for children, or simply set up a scheme which did not suit the second Applicant. If so, the premises would have lain idle at a time of considerable housing need, for no benefit. And this would be so even if the claim succeeded, which it did not. This case is an illustration of the pitfalls of an expansive approach to constitutional litigation, and the necessity for clarity and focus in claims. I would dismiss this appeal.