A comparison of article 6 of the european convention on human rights and the due process requirements of the constitution of ireland

• Author: Donal O'Donnell
• Position: B.C.L., LL.M. (U.Va.), S.C.
• Pages: 37-67

ACOMPARISON OF ARTICLE 6 OF THE

EUROPEAN CONVENTION ON HUMAN RIGHTS

AND THE DUE PROCESS REQUIREMENTS OF THE

CONSTITUTION OF IRELAND

DONAL O’DONNELL*

It is a daunting task to attempt to describe the jurisprudence of

the provisions of Article 6 - about as difficult as describing the due

process requirements of the Irish Constitution. To attempt to

compare the two bodies of law is now so impossible as to leave me

with the more agreeable task of picking and choosing those aspects

of the area which appear of interest. It is clear that there is a

substantial degree of overlap between the two areas and I thought it

useful, if uninspiring, to attempt first, to map the area covered by

both the Convention and the Constitution, and then to look briefly

at those areas which are either governed by the Constitution alone,

with no comparable convention jurisprudence, or where the

Convention covers the area and the Constitution does not. The

usefulness of this, as any comparative exercise lies, I think, in

considering even briefly, what, if any, fresh insights it throws on

aspects of our law which might otherwise appear fixed and beyond

question.

In approaching this task, certain arbitraryeditorial decisions

have to be taken and I have adopted the maxim of the tabloid editor

that good news is not news and no-one rushes to buy a newspaper

with the headlines “Everything is Fine”. I am conscious, however,

that in concentrating on areas of difference and some controversy,

that the basic truth might be missed. The Convention and the

Constitution are in the area of due process, broadly similar, and they

have been interpreted over the past 50 years in a generally

satisfactory and sometimes impressive way to provide a high degree

of protection to the citizen.

While my task is to look at the area with what the late Professor

2004] 37

A Comparison of Article 6 of European Convention

on Human Rights and the Due Process Requirements

of The Constitution of Ireland

*B.C.L., LL.M. (U.Va.), S.C.

Kelly described as an admiring but not uncritical eye, it would be

wrong and misleading if the concentration on contentious issues at

the margin, distracted from an understanding and appreciation of

the broad area of satisfactory agreement at the centre. The other

initial observation I might make, is that there is an inevitable

tendency when considering human rights to consider that, like Mae

West, you can’t get too much of a good thing. It is easy to assume

that the greater the reach of fundamental right provisions and the

more exacting their interpretation, the better it is for everyone.

However, the creation or expansion of rights creates correlative

duties, in the first place, on society and the State as a whole, and if

constitutional rights aregiven horizontal enforcement (as they are in

Ireland) on other citizens which necessarily restricts the liberty of

others. The development of Human Rights law, is therefore, not

always progression in a single expansionary direction and so in some

cases, at least, it is right to ask the question whether it is necessary

to have this area dealt with by constitutional or convention law.

The Constitution of Ireland was adopted in 1937 just before the

cataclysm of the Second World War, and the Convention on

Fundamental Rights and Freedoms was adopted in 1950 in its

immediate aftermath. Ireland acceded to the Convention in 1953.

Article 6 of the Convention, however, contains provisions which, to

the eyes of a common lawyer,areimmediately recognisable, and in

that sense, the Convention at least in this regard, is much less civilian

in its tone than the Treaty of Rome adopted some seven years later

in 1957. This is probably because of the significant involvement of

British statesmen and lawyers, such as Winston Churchill and Lord

Kilmuir in the devising and drafting of the Convention. Somewhat

ironically, the radical Labour Government of 1945 to 1950 was

much less enthusiastic. The LordChancellor, Lord Jowitt, confided

that his Cabinet colleagues were “not prepared to encourage our

European friends to jeopardise our whole system of law which we

have laboriously built up over centuries in favour of some half-baked

scheme to be administered by some unknown court”.1

The first shred of insight I would offer,therefore, is the thought

38 [4:2Judicial Studies Institute Journal

1Quoted in Bingham, T.H., The Business of Judging: Selected Essays and Speeches (Oxford

University Press, Oxford, 2000), p. 134. See also Wicks, W., “The United Kingdom

Governments Perception of the European Convention on Human Rights at the Time of Entry”

[2000] P.L. 438.