Source of Human Rights
Human rights refer to basic principles recognised domestically and internationally with which states in the administration of their laws and lawmakers in making their laws must comply. There are a number of distinct sources of human rights law which apply to different extents in Ireland.
The most basic source of human right law is the Irish Constitution. Laws may not be enacted which are repugnant to the constitution.
The High Court and the Court of Appeal and Supreme Court, on appeal, may, in any legal proceedings, declare laws to be contrary to the Constitution and thereby void. The Irish Free State Constitution (1922) provided human rights provisions broadly similar to those reflected in the (1937) Constitution.
Articles 40 to 44 of the Irish Constitution set out basic human or constitutional rights. Initially, the articles were perceived to be little more than aspirational. However, the courts quickly came to apply them with real effect to strike down and invalidate the law.
This trend accelerated considerably in the 1960s when the courts postulated so-called unremunerated or implied rights in the Constitution to strike down laws. Such rights derive from the general philosophical background to the Constitution and the basic principles of a democratic society.
The Irish state in common with most “western” democratic states, has ratified a number of key Conventions in relation to human rights. The most important human rights Convention is the European Convention on Human Rights, under the auspices of the (largely defunct) Council of Europe.
The Council of Europe was established after World War II by Western European countries. It was a reaction to the former totalitarianism of Nazi Germany and the Soviet Union and the Soviet domination of Eastern Europe at that time. Members of the Council are committed to upholding principles of law and fundamental freedoms within their jurisdiction.
The Council of Europe adopted the European Convention on Human Rights and Fundamental Freedoms in 1953. Ireland has been party to the Convention since that time. The Convention is the most influential human rights charter in Europe and beyond. Member states of the European Union must ratify the Convention.
Ireland ratified the European Convention on Human Rights in 1953. From that time, the Convention was binding on the Irish state. Treaties do not automatically become a part of domestic law in Ireland.
For almost the first 50 years of its existence, the Convention was binding on the Irish State but did not form part of Irish law. Petitioners applied directly to the court set up under the Convention for a declaration of incompatibility of the State\’s law with the Convention.
The Convention has influenced the Irish courts in the interpretation of the Irish Constitution. The human rights set out in the Convention are reflected in other treaties and standards worldwide. The Irish courts have, on occasion in interpreting Irish constitutional principles, followed the broad principles of the European Convention on Human Rights.
Prior to 2003, it was possible for an Irish citizen to apply to the European Court of Human Rights for a declaration that a particular law or practice in the State was inconsistent with the Convention. When this occurred, Ireland generally changed its laws to reflect its commitment to the Convention as a matter of international obligation.
Some famous examples include the Airey case, on the basis of which a civil legal aid scheme was introduced, and the Norris case, on the basis on which certain homosexual acts were decriminalised.
ECHR as Domestic Law
The European Convention on Human Rights Act 2003 permits cases to be brought in the Irish courts on the basis of breach of the ECHR. Prior to the 2003 Act, the Convention did not have a direct automatic effect. It was given effect by the state,
later changing its laws to abide by the terms of the Convention. In 2004, the European Convention on Human Rights Act made the Convention part of domestic Irish law.
Under the 2003 act, the Irish courts are to interpret statute provisions and laws in accordance with the ECHR insofar as possible. If the statutory provision or common law rule applies, it is to prevail where there is no other remedy; the High Court, Court of Appeal or Supreme Court may make a declaration that it is incompatible with the state’s obligations under the ECHR.
The legislation is not struck down. Application may still be required to the European court to compel the state to comply with its obligations.
The European Convention of Human Rights is part of England and Wales and Northern Ireland law. This has given a particular role in Northern Ireland by which legislation and practice may not breach its guarantees.
ECHR & Constitution
The ECHR is subsidiary to the Constitution. The Constitution will prevail as a matter of internal law. However, as with the Norris case (where the legislation was found compatible with the Constitution by a three to two majority), it will still be the case that the state may be in breach of its obligations under the Convention.
The European Convention on Human Rights protects all persons within the jurisdiction of the ratifying state. In contrast, the Irish Constitution protects citizens only. Both individuals and states may complain that a state party to the Convention is failing to comply with its guarantees in its laws or practices.
There have been a number of instances in which the Irish court’s decisions under the Constitution have conflicted directly with the Convention. In particular, in the areas of family rights and abortion, the Irish Constitution, as interpreted, diverged significantly from the human rights standards of the Convention.
European Communities law is superior to Irish law in the areas in which the European Union has competence under the EU Treaty. The Lisbon Treaties have incorporated broad principles of human rights law into the law-making and practices of the European Union.
The (Lisbon) Treaty on European Union provides that the European Union shall respect the fundamental rights guaranteed by the European Convention on Human Rights and as they result from the constitutional traditions common to the member states as general principles of European Community law.
The European Convention on Human Rights operates under the auspices of the Council of Europe, which is a separate body from the European Union. All states of the European Union are signatories of the European Convention on Human Rights, and the human rights principles thereunder were incorporated into practice on the European Union law by the Court of Justice of the European Union (a distinct body to the European Court on Human Rights) for many years.
In interpreting and applying rules of law, Irish courts must insofar as possible, do so in a manner compatible with the state’s obligation under the European Convention on Human Rights. State entities are obliged to perform their functions in a manner compatible with the European Convention on Human Rights obligation.
The European Convention on Rights is supported by the Council of Europe Secretariat. This comprises a full-time body with representatives of the various states. It has certain roles in relation to the Convention, including in relation to the ratification of the Convention by potential state members, requests for reservations and derogations by states. It may also request reports from states in relation to how their laws are compatible with the Convention.
The Council of Europe has a Committee of Ministers and a Parliamentary Assembly. The Committee of Ministers comprises foreign ministers and their delegates. Their purpose is to ensure that the Convention is enforced in the state concerned.
The European Court of Human Rights is based in Strasbourg. The complaint is sent to the registrar, who furnishes an official form for application. The case is initially considered by a judge rapporteur, who decides whether the matter is dealt with by a committee or Chamber. In order to proceed, the case must meet the admissibility criteria. Only a small minority of complaints meet the admissibility criteria.
Until the late 1990s, the Convention was interpreted and applied by two bodies, the European Commission on Human Rights and the European Court of Human Rights. The initial application was made to the Commission. If the Commission considered the case should be admitted, it would offer an opinion on the merits and send the matter to the European Court of Human Rights. This latter body comprises judges from the national state.
Both the Commission and Court were part-time positions. In 1998, a new full-time court was established to deal with all applications. By that stage, there was a backlog of over 6,000 cases.
Initial applications are made to a committee of three judges. They determine if the case has a reasonable basis for reference to the full court. The full court comprises 17 judges hearing the most important cases. This is the grand Chamber. Most cases are heard by Chambers comprising seven judges.
Complaint to ECHR
In relation to complaints brought by individuals (as opposed to a state), a fundamental principle is that all local or domestic remedies must be exhausted. This means that whatever possibilities exist under local law to obtain the requisite redress must first be taken. Where there are no effective remedies available in relation to the breach, it is necessary to go through the domestic remedies in vain.
Many of the famous Irish cases that proceeded to the European Court of Human Rights had first gone as far as the Supreme Court and failed there, including, for example, the famous Norris case.
A complaint must be brought within six months of the final domestic decision. The applicant must be actually affected by the breach. A claim may not be brought in the abstract. The applicant must be affected directly by the alleged breach. It is not enough that the law is objected to, in principle.
The matter must not have been previously considered by the court. This prevents the same case from being brought repeatedly. The case must not be manifestly ill-founded or an abuse of the right to claim. This is to screen out complaints that have no basis or chance of success. Where an application is made for political or propaganda reasons, it may be held to be an abuse of the right of complaint.
If the case is admitted, it is referred to a Chamber for decision. The Chamber may refer the matter to the Grand Chamber, where it may break new ground or where it is of particular importance. Otherwise, the Chamber itself will decide the matter.
If the matter cannot be settled, an oral hearing will take place. Written submissions are made in advance. Briefs may be submitted by amicus curiae, certain so-called friends of the court, including non-governmental organisations and bodies with expertise in the areas.
The hearings are in public unless the parties and the court determine otherwise. The court will usually prescribe a timeframe to which arguments are to be presented.
The European Court may declare that a violation has taken place. They may award compensation, although the amounts are generally relatively modest. It may order interim measures to be taken to remediate the position where the applicant faces the risk of immediate irreparable harm. It may award costs.
The enforcement of decisions is policed by the committee of members. There is no legal mechanism to force a state to comply. It is a matter of political pressure.