The European Convention on Human Rights, which was incorporated into Irish law on January 1st, is subordinate to the Constitution, writes Carol Coulter, Legal Affairs Correspondent.
Ireland was one of the first countries to ratify the European Convention on Human Rights, but one of the last to incorporate it into domestic law. In the meantime, Irish citizens who felt their rights under the convention had been violated had to take their cases to the European Court of Human Rights in Strasbourg, and only when all domestic avenues had been exhausted. It was a lengthy, and very expensive, road.
Among the few who did so, with the support of Irish lawyers, were Josie Airey and David Norris. Mrs Airey won the right to free civil legal aid in Strasbourg and Mr Norris established that the laws outlawing homosexual acts between adults contravened his human rights.
In the criminal law area, in the recent Quinn and Heaney cases, the court found that the accused's right to silence had been violated by Section 52 of the 1939 Offences Against the State Act, which allowed inferences to be drawn from a suspect's refusal to answer questions.
Since the commitment to incorporate the convention into Irish law was made in the Belfast Agreement, there was much discussion of the form that such incorporation should take. Many lawyers, especially those in the human rights area, and including the founding president of the Human Rights Commission, Mr Justice Donal Barrington, argued that it should be incorporated with the full force of law.
Others, most vocally the then attorney general and present Minister for Justice, Mr McDowell, argued that the Constitution provided ample protection for human rights, and that it would be legally dangerous to give the convention the status of a sort of parallel constitution. Incorporation, therefore, should be at sub-constitutional and administrative level. His view prevailed, and this was the form contained in the Act providing for incorporation that completed its journey through the Oireachtas last June.
The convention has not been made part of Irish law, therefore, and is subordinate to the Irish Constitution. A piece of legislation can be challenged in the Supreme Court as contravening the convention, but this will not lead to it being struck down.
Instead, the Supreme Court can make a declaration that the piece of legislation does not conform to the convention, and the citizen who took the case can be awarded monetary compensation, payable at the discretion of the Government. In this it mirrors the UK Act incorporating the European Convention on Human Rights.
The Minister for Justice has defended the form of incorporation chosen by the Irish Government, which came into effect on January 1st. "I believe that what we have achieved in the Act is full-blooded, thorough-going and workable in terms of court procedures and comprehensive to the fullest extent permissible under the Constitution," he told a conference on the incorporation of the convention last year.
However, the UK and Northern Irish courts have felt the effects of the new Act, despite its limitations. There has been a large increase in the number of judicial review cases in Northern Ireland where the convention is part of the pleadings. While it is difficult to find many cases which are decided solely on the grounds of the provisions of the convention, it has been included as part of many judgments.
It is also likely to be pleaded here, especially as one of the considerations in judicial review proceedings under the convention is that of "proportionality". Thus, according to solicitor Mr Michael Farrell, it will no longer be necessary to prove that the action taken by the body being reviewed was one that no reasonable body could have taken, but that it was "disproportionate" to the action that prompted the decision. This was the outcome of a case taken to the Strasbourg court by an elderly Danish lady who had been arrested and detained for 13 hours for refusing to give her name and address to a tram ticket collector.
Defamation actions are also likely to be conducted differently, according to Mr Farrell, as the right to privacy is enshrined in the convention, and this was successfully pleaded in the Douglas-Zeta Jones case against Hello! magazine in the English courts. However, this will be mitigated by the convention's strong commitment to freedom of speech. "It is likely that the private citizen will be more protected against tabloid intrusion, while public figures will have less protection against criticism," said Mr Farrell.
Family lawyers will be examining the convention article guaranteeing the right to family life when issues such as custody of and access to children arise, and it could be used to speed up family reports. The requirement that reasons be given for decisions will have an effect on the District Courts.
The incorporation of the convention will not lead to a deluge of fresh litigation, but it will affect the way many cases are conducted.