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

AuthorDonal O'Donnell
PositionB.C.L., LL.M. (U.Va.), S.C.
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
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.

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