European Convention on Human Rights Act 2003

European and Irish FlagsIn 2003, the Oireachtas passed the European Convention on Human Rights Act 2003 (ECHR Act). This was on foot of an explicit commitment made by the State under the Good Friday Agreement (or Belfast Agreement) in 1998.In doing so, Ireland became the last State in the Council of Europe to have incorporated the European Convention into domestic law, although it had been one of the first countries to sign and ratify the Convention in 1953.

The rationale behind the ECHR Act was that Ireland would legislate to give effect in domestic law to the provisions of the ECHR so that cases could be argued in the Irish Courts, rather than having to first exhaust domestic remedies and then go to the European Court of Human Rights. Ireland, as a common law 'dualist' state requires the transposition of international treaties into domestic law by Acts of the Oireachtas.

Direct incorporation?

The ECHR Act does not directly incorporate the Convention into domestic law. Rather, it chooses to partially incorporate the ECHR and several of its Protocols which the State has ratified since 1953. In doing so, it followed the lead of the United Kingdom which in 1998 introduced the Human Rights Act into the UK. However, although Ireland borrowed the UK's form of incorporation, it did not go as far as the UK, adding in additional restrictive clauses to the text. Unlike the situation in the UK, the ECHR Act is also subject to the provisions of a written Constitution, including the personal rights provisions enumerated under Article 40.3 of Bunreacht na h√Čireann. This adds another layer onto the difficult task of interpreting the Act's provisions.

When introduced in the Oireachtas, the ECHR Bill was roundly criticised, with the IHRC among a number of other commentators strongly criticising its scope. Some amendments introduced included the obligation that the IHRC be notified of certain cases in which the ECHR Act was pleaded in the Courts to allow it decide whether it wished to become involved as an amicus curiae.

In contrast to the ECHR's incorporation into Irish law in the form of the ECHR Act, the Government saw fit to amend the Constitution by successive referenda to incorporate successive EU treaties into the Constitution, most recently the Treaty of Lisbon.

The ECHR Act came into force on 31 December 2003.

European Convention on Human Rights Act 2003: Provisions

Obligations are on the basis of "the Convention provisions" which basically means the rights under the ECHR.

a. Obligations on the Courts

Sections 2 and 4 of the ECHR Act place obligations on the Courts. Section 2 requires that Courts when "interpreting and applying" law must, as far as is possible, do so in a manner compatible with the State's obligations under the Convention provisions.

Section 4 requires Courts to take "judicial notice" of the Convention provisions and of Judgments of the European Court of Human Rights or any decision of the Committee of Ministers established under the Statute of the Council of Europe on any question in respect of which it has jurisdiction. A Court must also when interpreting and applying the Convention provisions, take due account of the principles laid down in such Judgments or decisions.

b. Obligations on "Organs of the State"

Section 3(1) provides the main thrust of the ECHR Act. It places a new statutory duty on "organs of the State" (usually but not always public bodies), to "perform its functions in a manner compatible with the State's obligations under the Convention provisions" unless there is a law stating that this is not required. There is thus a presumption that public bodies respect the rights in the ECHR.

Under Section 3(2), if a Court finds that there has been a breach of statutory duty under Section 3(1), it can award damages to an individual who has suffered and where no other remedy in damages is available to them. The question of whether other remedies such as an injunction to prevent one's eviction can also be obtained under Section 3 is still the subject of ongoing litigation.

c. Declarations of Incompatibility

Section 5 of the ECHR Act allows the Courts to make a "declaration of incompatibility" where the court finds that legislation or a rule of law is incompatible with the State's obligations under the ECHR.

Where a court makes such a declaration, the Taoiseach must ensure a copy of the court order is laid before each House of the Oireachtas within 21 sitting days. However, the making of a declaration of incompatibility does not affect the continuing enforcement or operation of the law in question which continues to have effect until such time as it is either amended in legislation or struck down as being unconstitutional by the Superior Courts.

The clear intention of the legislation is that where the Courts identify the fact that law reform is required, it is then a matter which should come before the Houses of the Oireachtas with a view to introducing amending legislation or other measures which will remedy the defect. This mirrors the situation in the United Kingdom where most declarations of incompatibility under the Human Rights Act 1998 have resulted in a change to the law.

Examples of Declarations of Incompatibility being made by the Courts

Transgender Rights

Foy v. An t-Ard Chlaraitheoir & Others [2007] IEHC 470
On 14 February 2008, the High Court made a declaration of incompatibility in the case of Foy v. An t-Ard Chlaraitheoir & Others Judgment 19 October 2007. The declaration of incompatibility concerned the lack of legal recognition for transgender people under Irish law. This was the first declaration of incompatibility made under the ECHR Act.

"Everyone as a member of society has the right to human dignity, and with individual personalities, has the right to develop his being as he sees fit; subject only to the most minimal of State interference being essential for the convergence of the common good. Together with human freedom, a person, subject to the acquired rights of others, should be free to shape his personality in the way best suited to his person and to his life."per McKechnie J.

Following the Judgment, the IHRC decided to review European and International standards on the subject in line with its statutory functions. Following this review, it made a Submission to Government on the protection of the rights of transgender people in September 2008 in which it called for law reform. It also noted that despite an appeal to the Supreme Court brought by the State, which placed a stay on the declaration of incompatibility, there is nothing preventing the Oireachtas from introducing legislation to remedy the defect in Irish law.

Housing Rights

Donegan v Dublin City Council, Ireland and the Attorney General
In May 2008, in the proceedings Donegan v Dublin City Council, Ireland and the Attorney General, the High Court found that Section 62 of the Housing Act 1966, (which allows for the summary eviction of local authority tenants in the District Court), was incompatible with Article 8 (right to respect for private and family life and the home) and Article 6 (right to a fair hearing) of the ECHR.

"Accordingly, in the light of the decisions of the ECtHR in Connors and Blecic the procedure provided for in s. 62, under which a warrant for possession is issued by the District Court against the tenant of a housing authority on the grounds of breach of the tenant's tenancy agreement, without affording the tenant an opportunity where there is a dispute as to the underlying facts on which the allegation is based to have the decision to terminate reviewed on the merits, by the District Court or some other independent tribunal, cannot be regarded as proportionate to the need of the housing authority to manage and regulate its housing stock in accordance with its statutory duties and the principles of good estate management." per Laffoy J.

Dublin City Council v Gallagher
In December 2008, in the proceedings Dublin City Council v Gallagher (a consultative case stated from the District Court to the High Court), the High Court again found that Section 62 of the Housing Act 1966 was incompatible with Articles 8 and 6 of the ECHR.

"In my opinion, the failure to have given the applicant the opportunity to address that conflict and offer an explanation of his position deprived the defendant of a hearing of his case in which the issue of whether he was entitled to succeed to his mother's tenancy was adequately heard and adjudicated. This is what the defendant was entitled to under Article 6 and also by virtue of his right to fair procedures as guaranteed to him in the Constitution." per O'Neill J.

Following these Judgments (which were again appealed to the Supreme Court by the State, thus placing stays on the declarations of incompatibility) and following the Judgment of the High Court in Pullen and others v Dublin City Council (Unreported, 13 December 2008) (in which the IHRC had participated as amicus curiae (or friend of the Court ), the IHRC decided to review European and International standards on the subject in line with its statutory functions and in March 2009, the IHRC made a Submission to Government on the protection of local authority tenants in such situations where a local authority seeks to recover possession of a dwelling and where the person may be left homeless.

Two additional provisions of ECHR Act

Section 6(1) of the ECHR Act

A late amendment to the Act saw an obligation on parties to proceedings in which "a declaration of incompatibility" under section 5 of the ECHR Act is sought, to notify both the IHRC and the Attorney General of the proceedings. Subsequent rules of court require the party taking the case to forward the pleadings to both the Attorney General and IHRC and these bodies are updated as the case progresses.

On the basis of its monitoring of these cases before the Courts, the IHRC can decide which cases it should seek the permission of the Court to appear in as amicus curiae.

Since 2004, the IHRC has received notifications of approximately 60 cases per year, although the number is rising year on year.

Section 7 of the ECHR Act

This section introduced an amendment to Section 11 of the Human Rights Commission Act 2000 (which allows the IHRC institute legal proceedings on behalf of a person or class of persons). The amendment extends the definition of "human rights" in Section 11 to include the rights under the ECHR Act.