THE EUROPEAN CONVENTION on Human Rights (ECHR) Act, 2003 will be ten years old on 31st December 2013. It was introduced as a result of a pledge in the Good Friday Agreement to provide “at least an equivalent level of protection of human rights” in the Republic of Ireland as that provided in post-Agreement Northern Ireland.
The UK had incorporated the ECHR into its domestic law through its Human Rights Act in 1998 and it has had a profound effect on the UK legal system, including in Northern Ireland. Unfortunately, the effect of the ECHR Act in the Republic has been deeply disappointing by comparison.
The sharpest contrast has been in the impact of the most novel innovation in both Acts; the introduction of declarations of incompatibility with the ECHR.
Where existing legislation was in conflict with provisions of the ECHR or led to decisions by public bodies that undermined ECHR rights, neither government wanted to give the courts power to strike down the offending legislation. Instead the new Human Rights Act and the ECHR Act gave the courts power to issue a declaration that the legislation at issue was incompatible with the ECHR.
That left it up to government and Parliament/the Oireachtas to change the law to bring it into line with the ECHR. In the UK, despite growing Europhobic grumblings, the government has acted to change the law in all but one of the 19 declarations of incompatibility granted by the courts so far. The one exception has been on the issue of prisoners voting.
Here, however, there have been only two confirmed declarations of incompatibility issued since 2003 – a couple of others are under appeal. The first finalised declaration was made in the Lydia Foy case, where Ms Foy, a transgender woman, has been seeking official recognition of her female gender since 1993. The second was in the Anthony Donegan case, where Mr Donegan was challenging the procedure whereby a court could order his eviction from a local authority house without giving him a chance to be heard.
The declaration in the Foy case was made by the High Court in October 2007. The declaration in the Donegan case was made in the High Court in 2008 and upheld by the Supreme Court in 2012. In both cases the government promised to amend the law to conform to the ECHR but no legislation has been introduced so far.
Lydia Foy began new proceedings in January 2013 to try to get the government to speed up its promised legislation but despite publishing Heads of a Gender Recognition Bill in July last, there is still no timetable for the introduction of full legislation in her case or that of Mr Donegan. It is hard to avoid the conclusion that the Irish authorities do not have the same sense of urgency or concern about complying with the ECHR that their UK counterparts have.
In a small number of other cases, particularly concerning accommodation for persons with disabilities and Travellers, the Irish courts have found breaches of ECHR rights but have held that they could not quash the decisions concerned but could only award damages which are not adequate to resolve the problem.
The UK Human Rights Act is more powerful than the Irish act and the judiciary there have generally embraced it and used it to re-interpret laws and quash decisions over a wide range of issues.
It is questionable whether the Irish government is currently providing “at least an equivalent level of protection of human rights” as is provided in Northern Ireland in this area and the effect of the ECHR Act has been underwhelming so far.
If the situation is to improve in the future, the Irish government will need to commit itself to speedy remedying of breaches of the ECHR. It will have to amend the ECHR Act to require prompt and effective action in response to declarations of incompatibility and to allow the courts to quash decisions by public bodies that are in breach of the European Convention.
In the meantime, EU law is beginning to change the picture on enforcement of ECHR rights. Since the Lisbon Treaty in 2010, a new EU Charter of Fundamental Rights, which incorporates the rights protected by the ECHR and goes further on some issues, has become legally binding in areas within the scope of EU law, including national legislation implementing EU directives. And the EU’s own court has interpreted the scope of EU law quite broadly and has become more robust in its enforcement of the Charter.
EU law, unlike the ECHR, overrides domestic legislation and is legally binding within EU states, so ECHR rights can be enforced directly where there is an EU dimension to a case. If we are not to develop a two-tier system where an ECHR right is enforceable by the Irish courts when it has an EU connection but unenforceable where only domestic law is involved, reform of the ECHR Act will be needed very shortly.
Michael Farrell is the senior solicitor with Free Legal Advice Centres (FLAC) which has represented Lydia Foy in her legal battle since 1997.
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