The ECHR Act 2003: Ireland and The Post War Human Rights Project

• Author: Donal O'Donnell
• Position: Chief Justice of Ireland
• Pages: 1-13

IRISH JUDICIAL STUDIES JOURNAL

1

[2022] Irish Judicial Studies Journal Vol 6(2)

1

THE ECHR ACT 2003: IRELAND AND THE POST

WAR HUMAN RIGHTS PROJECT

1

Author: Donal O’Donnell

,

Chief Justice of Ireland

Abstract: This article analyses the various phases of development of the European Convention on Human

Rights Act 2003 and considers both what has been achieved as well as a potential new direction in Irish

human rights jurisprudence.

It is now 18 years since the European Convention on Human Rights Act 2003 (‘the 2003

Act’) came into force and, since 18 is the age of majority, it is perhaps appropriate to look at

how the young adult is faring. But the story does not start in 2003. Like all good series, there

is a prequel. It is necessary to go back, at least to 1998 and eastwards, to the enactment in

our neighbouring jurisdiction of the Human Rights Act (‘HRA’) of that year, which came

into force in the jurisdictions making up the United Kingdom (with some fanfare) in the year

2000. We are generally not immune from legal developments in the UK, and the general

enthusiasm in legal circles among practitioners and academic lawyers in the UK for the HRA

1998 was inevitably felt here and had, I suggest, a distorting effect on our understanding of

the place and potential impact of the 2003 Act.

It is, perhaps, important to put that development in its broader political and social context.

When Lord Scarman called for a bill of rights in his Hamlyn lectures in 1974, the proposal

did not get traction at that time.

2

From one side of the political divide, there was a

longstanding and deep-seated scepticism of any form of judicially enforceable rights. There

was, I think, a view that there was a fundamental principle that a person was free to do

anything that was not positively prohibited and that freedom, therefore, lay in the absence

of laws. This scepticism about judicial enforcement of rights stretched back at least as far as

A.V. Dicey. Dicey’s name was, and is, rightly controversial in Ireland. However, I think we

tend to underestimate the significant intellectual achievement that his pioneering work on

the Constitution of the UK entailed.

3

He said something, then in the context of Home Rule

and in the light of his experience in the US system, that is of wider application. Federalism,

he said, involves law, and law requires adjudication and enforcement, which means judicial

involvement and, to that extent, a transfer of power from Parliament.

4

It is not always appreciated or acknowledged that what we argue constitute rights is

contestable, unless we adhere to the view that they are divinely ordained and their limits

prescribed. Even if there is broad agreement about the existence of certain rights, the nature

1

This is an edited and updated version of a paper delivered to the Annual Conference of the Immigratio n

Asylum and Citizenship Bar Association on 26th November 2021.

2

Leslie Scarman L, ‘English Law - The New Dimension’ Hamlyn Lecture Series (Twenty Sixth Series,

Stevens and Stevens Ltd., 1974).

3

Albert Dicey, Introduction to the Study of the Law of the Constitution (MacMillan and Co 188 5).

4

ibid 166: ‘Federalism .. means legalism -the predominance of the judiciary in the constitution -the prevalence

of a spirit of legality among the people’. See also Lord Bingham, ‘Dicey Revisited’ in Tom Bingham, Lives of

the Law: Selected Essays and Speeches 2000-2010 (Oxford, 2011), where Lord Bingham expresses the

opinion at 49 that, on balance, Dicey would have opposed the Human Rights Act of 1998: ‘he would have

needed much persuasion that the rights of British citizens required any protection beyond tha t offered by the

ordinary law of the land’.