Law Society / Ihrc Conference on Echr Act

LAW SOCIETY / IHRC CONFERENCE ON ECHR ACT

Saturday 16th October, 2004 - Dublin

PROGRESS THUS FAR UNDER THE

ECHR ACT, 2003

Speaking notes of Donncha O’Connell, Faculty of Law, NUI, Galway and Irish member of the EU Network of Independent Experts on Fundamental Rights[1]

Chairman, ladies and gentlemen,

I am grateful to Alma Clissmann of the Law Society and to Mary Ruddy of the Irish Human Rights Commission for the invitation to speak at this event. Both organisations played a vital role in the process that led to the passing of the European Convention on Human Rights Act, 2003. Regrettably, their valid criticisms of aspects of the ECHR Bill were not taken onboard by government and they must, inevitably, settle for the delayed gratification of being proved right at a later stage.

As someone who joined in the criticism of the ECHR Bill, as both an activist and academic, I was a bit taken aback when asked to review ‘progress’ under the Act and was tempted to suggest that the paper be sub-titled: “A Watched Kettle Never Boils”! Having said that, it would be overly pessimistic to deny that the ECHR Act presents some opportunities for added-value in human rights litigation whatever about its demonstrable shortcomings.

The Irish courts - before incorporation - have shown an increasing willingness to consider arguments based on the ECHR and the European Court’s jurisprudence and there will now be a more structured way in which to cross-fertilise Irish and international law. In fact, it is through creative litigation strategies that the added-value (however minimal) of the ECHR can be realised. Of course, the need for improvements to the legislation can also be maintained in the public consciousness by unsuccessful litigation.

For practising lawyers the ECHR Act, 2003 creates essentially two new avenues of redress which, although complementary, have been compartmentalised (see further: Lowry, “Practice and Procedure under the European Convention on Human Rights Act 2003”, (November 2003) Bar Review, pp 183-185):

A new tortious action (where no other remedy exists) for breach of statutory duty by ‘organs of the state’ under Section 3 for which damages or equitable relief can be awarded. The statutory duty in question is the duty (subject to any other statutory provision or rule of law) to discharge its functions in a manner that is compatible with the requirements of the ECHR; and
A declaration of incompatibility under Section 5 by way of judicial review which may lead to an ex gratia award of damages (probably of a minimal nature as the assessment of such awards is to be based on the level of compensation awarded by the Strasbourg court).

It is the second of these forms of redress that gave rise to most criticism during the debate on the ECHR Bill but, in practise, it may well be the first apparently innocuous cause of action that will yield the most tangible but incremental progress for litigants using the Act. Much will depend on the manner in which the judiciary deal with the interpretative duty set down in Section 2(1) of the Act which states:

“In interpreting and applying any statutory provision or rule of law, a court shall, in so far as is possible, subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State’s obligations under the Convention provisions.” (Emphasis added)

In the context of a Section 3 case, ‘organs of the state’ that wish to defend their actions on the basis that some other rule of law or statutory obligation requires them to act in a manner that is not ECHR-compatible will, in effect, be pleading a kamikaze defence. Such a defence is effectively an admission of incompatibility exposing the state to a successful individual application (or, indeed, a series of applications) before the European Court of Human Rights. The reason I stress this point at the outset is to highlight the futility of declarations of incompatibility under Section 5. For the purpose of exhausting domestic remedies before making an application to the European Court of Human Rights it is likely that Strasbourg will not require the seeking of such a declaration of incompatibility for the purpose of this rule on the basis that it is not an effective remedy. [Examples to discuss: abortion information legislation – constitutionally sound but possibly incompatible with Article 10 ECHR – position of public health authorities?; potential for complementary use of ECHR Act by Office of Ombudsman in considering complaints of maladministration].

There are, as yet, no cases decided under the ECHR Act. The Irish Human Rights Commission has, to date, been notified (under Order 60A of the Rules of the Superior Courts) of between twenty and thirty actions in which a declaration of incompatibility under the ECHR Act is being sought and this number is likely to grow. Of course, the High Court and Supreme Court can, on their own initiative, decide to grant a declaration of incompatibility even if this has not been sought on appeal. [In this connection, the pending appeal in the Lydia Foy case concerning the rights of post-operative transsexuals is worth considering in light of the principles established in Goodwin v. UK].

Training

For lawyers, the ECHR Act is just another statute affording new avenues of redress or exposure to liability for clients, depending on one’s perspective. Those working for ‘organs of the state’ – and the precise meaning of that phrase is not yet clear – are likely to be concerned in their day-to-day work with issues of risk management. In that regard, all formulae for dealing with risk management ought to be revised to include considerations of exposure to risk arising from non-compliance with the requirements of the ECHR. That is not to call for a defensive practise of public administration or to suggest that the interpretative model of incorporation has a transformative impact on public law. It is simply to appeal to the prudent nature of public servants animated by the imperative of minimising risk.

It is surprising, therefore, that there has not been a structured programme of training for those working for ‘organs of the state’. It would be regrettable if this was not to occur until after the catalyst of a case in which, for example, a local authority or health board was found by a court to be acting in manner that was incompatible with the requirements of the Convention. Bodies that most faithfully reflect the standards required under the ECHR will be at least risk from litigation under the ECHR Act.

Monitoring the impact of the ECHR Act

Empirical research on the work of the courts is rare in Ireland. While such work might be viewed as unwelcome or threatening, the absence of reliable data-based research leaves a space which can easily be occupied by unsound and unsafe impressions with all of the consequential damage that does to the courts as an institution. As all cases in which a declaration of incompatibility under the ECHR Act is sought are being notified to the IHRC (and the office of the Attorney General) it will be possible to monitor the impact of that component of the Act in quite a scientific manner over time. It will be interesting to see if the claim made by those proposing the limited form of incorporation that the Act would reduce the number of applications against Ireland in Strasbourg – which, in any event, is small – holds true. It will be intriguing to see if there is, in fact, substantial congruity between Convention and constitutional standards on a case-by-case basis although this may prove harder to measure if the judges embark on a jurisprudential pattern of ‘harmonising’ (upwards or downwards) both standards.

The ECHR Act and the political domain

Unfortunately, the opportunity to create a more meaningful system of parliamentary scrutiny of legislation for compatibility with the ECHR was eschewed in the ECHR Act. This was both ironic and disappointing given the marked similarities between the incorporation model used in the UK Human Rights Act and the Irish legislation.

On the positive side, the Irish Human Rights Commission has been quick to assert a legitimate and constructive role in analysing draft legislation for compatibility with not just the ECHR but other international human rights instruments to which this state is a party. It is evident (from transcripts of the proceedings of certain parliamentary committees) that the views of the Commission enjoy significant credibility with parliamentarians although a more mature understanding has yet to be developed with the Executive. Inevitably, these relationships take time and no one could accuse either the current Minister for Justice, Equality & Law Reform or indeed the Irish Human Rights Commission of mutual love at first sight!

While not for one minute wishing to be a Dr. Ruth of Irish public administration and not wishing to stray into the subject-matter of this afternoon’s session I do think it is vital that those in the permanent and transient Government realise that they are in ‘a committed relationship’ with statutory entities like the Human Rights Commission (and the Equality Authority). Democracy is enriched by the existence of a diverse civil society in which the boundaries of the state and non-state sectors are transcended by authoritative agencies with statutory foundations. There is nothing undemocratic about robust debate being led by a statutory body, especially when one remembers that it was the choice of elected representatives to create such bodies in both parts of the island of Ireland.

Public discourse is not enriched by the kind of rhetoric that is intended to close and not open or broaden debate. Real debate is not advanced by engaging in a discourse of inauthenticity. Thus, to dismiss the reasonably expressed collective view of the IHRC on a difficult area of clear relevance to human rights – the citizenship referendum – as ‘weak, tendentious and fanciful’ may well be an impactful debating point but it does little to embed the necessary antagonisms of institutionalised protagonists stretching beyond partisan politics in a healthy and mature public discourse.

Equally, there is a need for more engagement between the non-governmental sector (commonly referred to by some as ‘the so-called human rights community’) and the statutory sector. The output of the IHRC on issues ranging from the Garda Siochana Bill to the proposed reforms of nationality and citizenship laws provides a rich policy basis upon which NGOs can campaign without making unpalatable compromises on their human rights values. While the Commission must never become a passive think-tank it is unfair to expect it to campaign as if it was an NGO, using the same strategies as NGOs. If we can learn one thing from the experience of the Northern Ireland Human Rights Commission it is that a healthy relationship between the Commission and non-governmental sector is essential to success.

The relationship between international human rights law and domestic law

I have written elsewhere (Kilkelly (ed), ECHR and Irish Law, (Jordans, 2004) pp 1 - 11) that the main reason for objecting to the mode of incorporation used in the ECHR Act was because it diminished the probability of real added-value to be achieved by incorporation of other international human rights instruments (especially those dealing with economic, social and cultural rights) in the future. In a sense we have internalised the legal principle of dualism as a political value thus ‘externalising’, as it were, our international human rights obligations. This counter-globalising tendency is curious and, very definitely, requires further consideration.

While the ECHR Act provides an incomplete framework within which proposals for domestic legislation and indeed public policy can be assessed it would be a mistake to view the standards contained in the ECHR as other than minimum standards. Proofing legislative proposals by reference to the Convention and its protocols will not create insurmountable human rights hurdles for any government seeking to avoid its obligations thereunder.

Read with the 1937 Constitution the ECHR provides a solid protection of most civil and political rights. Recognising the positive obligations arising from rights like those contained in Articles 3 and 8 could give rise to the judicial acknowledgement of minimum core obligations in the area of social and economic rights, although this might now seem like a fond hope under the current judicial dispensation.

The human rights picture will, however, remain incomplete until we facilitate more ‘dialogue’ between international human rights norms and domestic law. That process has, I hope, only just begun with the incorporation of the ECHR into Irish law.

[1] The views expressed in this paper are personal to the author and do not represent the collective opinion of the EU Network of Independent Experts on Fundamental Rights.