Time to start taking European Convention on Human Rights more seriously

It has been 10 years since we gave further effect in Irish law to the European Convention on Human Rights (ECHR) and tomorrow is the 60th anniversary of the coming into force of that convention.

The ECHR was part of an elaborate peace settlement in Europe in the immediate aftermath of the second World War. The drafters of this international treaty – animated by the idea that individual human rights protections were an essential bulwark against totalitarianism and necessary indicators of democracy – set about codifying civil and political rights and establishing the European Commission and Court of Human Rights to consider complaints taken by individuals against states, and by states against other states.

Ulterior motive
Ireland engaged with this radical experiment in internationalism, but with a decidedly nationalistic purpose. Participation in such international initiatives was seen as a useful way of venting the 'problem' of partition of the island of Ireland and this particular initiative might one day allow issues arising from that 'problem' to be litigated internationally. The high-powered Irish delegation that took part in the drafting of the convention included the likes of Éamon de Valera and Seán MacBride. Ireland accepted the compulsory jurisdiction of the new court in Strasbourg and the right of individual petition. In fact, the first case decided by the European Court of Human Rights was one involving Ireland.

The Irish experience under the convention has been generally positive. Fewer complaints are made against Ireland than against other European states. This may be explained by reference to the extensive range of rights protections afforded by the Irish Constitution of 1937, but there are, perhaps, other factors at play.

Among the cases taken successfully against Ireland were the Airey case on access to courts; the Norris case on criminalisation of male homosexual conduct; the Keegan case on fathers’ rights in adoption situations; the Open Door case on abortion information and, more recently, the A, B & C case on access to abortion services.

In 2003 the Oireachtas passed the ECHR Act to give further effect to the ECHR in Irish law, subject to the Irish Constitution.

This was done on foot of a political undertaking in the Belfast Agreement requiring an equivalent level of rights protection in the Republic of Ireland to that in Northern Ireland. Equivalence, in the legal sense, may not have required incorporation of the ECHR into domestic law but the symbolism of incorporation or "giving further effect" could not be dismissed.

The Act followed the model that had been used in the UK and Northern Ireland in 1998 providing for what is called interpretative incorporation. In other words, courts were obliged (subject to the Irish Constitution) to interpret domestic law in a manner compatible with the ECHR. If this was not possible, a litigant would be entitled to a “declaration of incompatibility”.

Public bodies or “organs of the State” would also be obliged – subject to other statutory obligations – to carry out their duties in a manner compatible with the State’s obligations under the ECHR. All of this was heavily qualified, especially in the provision of effective legal remedies.

Since 2003, the ECHR Act has had minimal impact. Only a handful of declarations of incompatibility have been given, the most famous one in the case taken by Dr Lydia Foy, a post-operative transsexual. The others were in social housing cases and have not resulted in any legislative response. None of this is surprising given the model of "incorporation" used in the 2003 Act.

We are perhaps fortunate that the kind of visceral opposition the ECHR and, even more so, the European Court of Human Rights inspires in Britain is more or less absent in this country. This is ironic too, as the ECHR owes a huge amount to the influence of the British delegation to the conference that drafted it in the early 1950s and, in particular, to British Conservatives like Winston Churchill and David Maxwell-Fyfe. Loud demands by today's Tories for a "British Bill of Rights" ignore the fact that the ECHR is already, in so many ways, a very British Bill of Rights.

In this country we have demonstrated less public antipathy to European rights perhaps because we already had most of those rights under the Irish Constitution. That Constitution owes as much to the European constitutional tradition as it does to the British, as explained quite brilliantly by Mr Justice Gerard Hogan in his magisterial text on the origins of the 1937 Constitution published by the Royal Irish Academy in 2012.

Opportunity versus inertia
The absence of overtly Europhobic antipathy to rights is a real opportunity to do more to promote and protect such rights in the domestic legal and political spheres. While we remain an ultra-dualist State constitutionally, the challenges of giving further effect to international human rights law in domestic courts are significant. But that should not mean that international human rights norms remain without political potency. Inertia would appear to be a bigger problem in Ireland but there is also less visible, but significant, "official resistance" to international human rights norms.

The slowness in responding to the first-ever declaration of incompatibility under the ECHR Act in the case taken by Lydia Foy – with the publication of a Gender Recognition Bill five years after the case was decided – is hardly encouraging. The deficiencies of that Bill are also disappointing but at least it affords an opportunity for some robust parliamentary scrutiny of the degree to which we take compliance with the ECHR seriously. This could result in improvements to the Bill.

Hopefully, it will also provide an opportunity to amplify the glaring deficiencies of the ECHR Act 2003. Some of these deficiencies could possibly be addressed by amending the overdue legislation for the Human Rights & Equality Commission.

Five years after the decision in the Lydia Foy case, 10 years after the passing of the ECHR Act and 60 years after ratification is surely beyond time to start taking the European Convention on Human Rights more seriously.

Professor Donncha O’Connell is Head of the School of Law at NUI Galway