European court considering TDs’ case over swearing ‘to almighty God’

Róisín Shortall and others take action over declaration for President and Council of State

The case concerns articles of the Constitution which provide, that before taking office, the president and members of the Council of State must swear a declaration ‘in the presence of almighty God’. Photograph: Bryan O’Brien

The case concerns articles of the Constitution which provide, that before taking office, the president and members of the Council of State must swear a declaration ‘in the presence of almighty God’. Photograph: Bryan O’Brien

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The European Court of Human Rights (ECHR) is considering a case taken by two TDs and others against the State over the constitutional requirement that the president and Council of State members must make a religious declaration before taking office.

The Strasbourg-based court has asked the parties to make efforts to reach a “friendly settlement” prior to any hearing taking place.

The case concerns articles of the Constitution which provide, that before taking office, the president and members of the Council of State must swear a declaration “in the presence of almighty God”.

Social Democrats TD Róisín Shortall, Sinn Féin TD John Brady, Independent Senator David Norris, former Barnardos chief executive Fergus Finlay and Trinity College chancellor David McConnell in October 2018 asked the ECHR to admit their case alleging the declarations breach their rights.

The applicants claim article 12.8 and article 31.4 exclude conscientious non-Christians, non-believers and those who do not wish to violate their consciences from the Office of President and membership of the Council of State.

They claim that as prominent politicians and members of Irish civil society, they can legitimately aspire to being elected president or being appointed to the council.

The ECHR informed solicitor Colm MacGeehin, for the applicants, earlier this month that it has decided to write to the Government to give notice of the complaints about the declarations. It has also asked the parties to consider two questions.

Violation

Firstly, whether the applicants can claim to be “victims”, within the meaning of article 34 of the ECHR, of the alleged violation of article 9.1 of the convention as a result of the requirements.

Article 34 provides the ECHR may receive applications from any person claiming to be a victim of a violation of the rights set out in the convention. Article 9.1 provides everyone has the right to freedom of thought, conscience and religion.

Question two asks whether the requirements of article 12.8 and article 31.4 breach the applicants rights under article 9.1.

The parties have until November 25th next to discuss the terms of a “friendly settlement”, without prejudgment of the outcome of the case should the negotiations prove unsuccessful.

If no settlement is reached, the “contentious” part of the case will start and the parties will be asked to exchange their observations on the admissibility of the case and its merits. The Government will have 12 weeks from then to submit a statement of facts and its written observations on the admissibility and merit of the complaints concerning the declarations.