Conscience is protected in a number of different contexts in Bunreacht na hÉireann. A provision of general application is article 44.2 which provides : “Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen.”

Initially, the concept of “conscience” was considered by the courts in the context of religion. In  McGee v. AG [1974] IR 284, at 316-7, the Supreme Court observed that :

“The meaning of Article 44.2.1 is that no person shall directly or indirectly be coerced or compelled to act contrary to his conscience in so far as the practice of religion is concerned and, subject to public order and morality, is free to profess and practice the religion of his choice in accordance with his conscience. Correlatively, he is free to have no religious beliefs or to abstain from the practice or profession of any religion.”

The constitutional architecture was outlined by O’Donnell J., of the Supreme Court, in N.V.H. v Minister for Justice and Equality v The Attorney General The Irish Human Rights and Equality Commission [2017] IESC 35 :

“Set on a foundation of the essential equality of the human person, the Constitution guarantees first life and then personal liberty, and freedoms radiating outwards from that: freedom of thought and conscience, freedom of expression, freedom to associate with others, family rights and the right to acquire, hold and transfer property among others.”

More recently, the courts have recognised that conscience may, in appropriate cases, be free-standing of religion. In AM & MM v. Refugee Appeals Tribunal [2014] IEHC 388, at paras 32-34 Mr. Justice McDermott spoke in these terms :

“Article 44.2.1 of the Constitution provides that freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen. Though the provision appears under the heading “Religion” and though the limited caselaw considering the provision has for the most part dealt with freedom of conscience in the religious context … it is difficult to contemplate a freedom of conscience … (which excludes) … conscientious objection, which is itself an obvious exercise of conscience rooted in religious or other moral or philosophical convictions.

Freedom of individual conscience underpins many of the democratic values and fundamental rights of the Constitution. The right to vote, to participate as a candidate in any form of election, the rights to freedom of expression, association and assembly and religious freedom are all dependent on the freely exercised will and conscience of the individual.

Though it is not recognised as a separate fundamental right under the Constitution, it is clearly part of the constitutional fabric and, as such, I am satisfied, an unenumerated right guaranteed by Article 40.3 of the Constitution. Its recognition … is entirely in accordance with

assuring the dignity and freedom of the individual as outlined in the Preamble and the democratic nature of the state as defined by Article 5.

The right to freedom of conscience is guaranteed by the state which must defend and vindicate it as far as practicable and protect it from unjust attack. It is not an absolute right.The exercise of a right to freedom of conscience is not absolute and may be regulated in accordance with law. Thus, environmentalists who block a road or commit other offences while trying to protect a habitat, peace or human rights protestor who commit criminal damage or seek to gain entry to prohibited areas may face persecution and/or imprisonment or a fine, as will a person who fails to pay taxes because in conscience they do not wish them to be applied towards a military budget.”

How the courts have weighed freedom of conscience of one person against the rights of others will be the subject of our next post.

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