UK Bill of rights ‘aims to reduce courts impact on government decisions’

Irish Supreme Court tried to distance landmark 1973 McGee ‘right to contraception’ decision from Roe v Wade, Chief Justice says

Chief Justice Donal O’Donnell has said the objective of a new British Bill of rights is to reduce the extent to which the courts in the UK and abroad may have an impact on government or parliamentary decisions.

The thrust of the Bill, which will amend the 1998 Human Rights Act, is directed towards reversing the trend and application of the 1998 Act, the Chief Justice told a public law conference in Dublin.

Perhaps most notably, he said, the UK courts would be precluded from going beyond Strasbourg case law in their interpretation of the European Convention on Human Rights, but would be permitted to depart from it.

The Chief Justice said the changes “are not, perhaps, dramatic in themselves and it is not my function to discuss the proposals on their merits”.

“However, the detail of the change is perhaps less important than the direction of travel,” he said. “It seems that the objective of the Bill, while framed in terms of supporting and reinforcing the role of the UK supreme court and directed more obviously towards limiting the direct impact of decisions of the Strasbourg court, is nevertheless aimed at reducing the extent to which decisions of the courts, both in the UK and abroad may have an impact on governmental or parliamentary decisions. "

These developments, while significant, are not limited to the political arena, he added. Shortly after his retirement from the UK supreme court, Lord Sumption had delivered lectures arguing that the law was taking over the space once occupied by politics, he noted. Significantly, Lord Sumption had argued that judges, especially those of the ECHR, had a usurped power by expanding the interpretation of human rights law.

The developments in the UK are, the Chief Justice said, “of a different order to what is occurring in the US” but they are “interesting straws in the wind” and, taken together with developments in some member states of EU, “amount to something of which we should take note”.

It is possible and “not alarmist” to see that the postwar model of judicial protection of human rights is under more challenge today in more significant ways and in more locations than at any time since 1945, he said.

He made the comments to a public law conference in University College Dublin on Wednesday in an address entitled ‘A Court And the World’, which considered the impact of international trends on Irish law.

The Chief Justice said the Irish Supreme Court had in the past looked more to the US than to the UK courts but this was not the case in recent years due to a range of developments.

US court decisions regarded as leading to the Roe v Wade judgment were to the forefront of the 1973 Supreme Court decision in the McGee case, which held the ban on importation or sale of contraceptives was unconstitutional, he said. To the very forefront of the Irish court’s decision was Griswold v Connecticut 1965, where the American federal supreme court ruled certain state laws against contraception to be an unconstitutional invasion of the right to privacy of marriage, he outlined.

The McGee case is “perhaps more significant” for what was not referred to, the Chief Justice said. Roe v Wade, which relied on the precedent of Griswold and another case, was also decided in 1973 and made international headlines provoking immediate criticism from US Catholic bishops and the Vatican.

Then Supreme Court judge Brian Walsh’s assertion that his findings in McGee were not reliant on the US decision was an attempt both to protect the McGee decision from the accusation it relied on a line of jurisprudence which had led to Roe v Wade and also to prevent the reasoning in McGee being used to promote an argument in favour of a right to abortion, he said.

While McGee is, therefore, an extremely important case in Irish constitutional law in its own right, it is also “like a snapshot which gains significance because of the figures captured in the background, in this case developments in US constitutional law at what has transpired to be a critical juncture”.

Mary Carolan

Mary Carolan

Mary Carolan is the Legal Affairs Correspondent of the Irish Times