The impact of recent ECHR changes on the constitution

• Author: James MacGuill
• Position: Solicitor, President of the Law Society of Ireland
• Pages: 50-75

Judicial Studies Institute Journal [2007:2

50

THE IMPACT OF RECENT ECHR CHANGES ON

THE CONSTITUTION

JAMES MACGUILL∗

INTRODUCTION

Some years ago I was involved in a case where I was trying

to assist a woman, an Irish citizen, who had travelled to live in the

Kingdom of Saudi Arabia with her Arab husband whom she had

met in Ireland. They had a child together and she had two

previous children. When in Dublin he was a most gregarious and

affable man and liked a good party. Upon his return to Riyadh

things changed dramatically and he displayed various forms of

violent cruelty towards my client. She had to flee and

subsequently we were endeavouring to reunite her with her

daughter. At the time, the Sunday World, the well known paper of

record, reported on the case: “Top lawyer to bring Saudi Arabia

to the European Court of Human Rights”. Clearly this was never

a possibility but the fact that the Sunday World reported it as fact

may very well have led people to believe that I would be deluded

enough to think that it could be true.

When I saw the title assigned to me by Professor Fennell

where I might be expected to propose that the Constitution of

Ireland could, contrary to all earlier jurisprudence1 be in any way

subject to the European Convention on Human Rights I wondered

whether I was being asked to argue the absurd.

However the more one thinks of the topic, particularly in

the context of a realist approach to jurisprudence, the more it has

substance.

During the Dáil Committee Stage of the Incorporation of

the European Convention on Human Rights Bill many

contributors, including the Human Rights Commission and the

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∗ Solicitor, President of the Law Society of Ireland. Edited version of a paper

delivered at the Annual Criminal Law Conference, Rebalancing Criminal

Justice in Ireland: a question of Rights, University College Cork, 29 June

2007.

1 In re Ó Laighléis [1960] I.R. 93.

2007] Recent Impact of ECHR on the Constitution 51

Law Society of Ireland, were harshly critical in their submissions

to the committee of the dilute fashion in which the State had

sought to incorporate the Convention, determined as clearly the

then Minister was to ensure that there would be no change in our

constitutional framework. Forceful arguments were advanced on

many occasions by government to the effect that the Convention

would not add to our constitutional rights and indeed no additions

were necessary. Such arguments were to simply ignore those

cases where the Supreme Court failed to protect fundamental

rights of citizens which only found resonance in Strasbourg.

Obvious examples are the cases of Airey,2 Norris,3 Croke,4

Heaney and McGuinness5 and Quinn.6 As recently as Barry v.

Ireland,7 which is dealt with later, deficits in the protection of

rights continue to be identified by the Strasbourg Court.

A particular criticism of the method of incorporation was

that, contrary to the position adopted by the United Kingdom

under the Human Rights Act 1998,8 our Government specifically

excluded courts from the definition of organs of State.9 The

rationale quite simply was that if the Court was an organ of State

(equivalent to the UK public authority) then there would be a

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2 Airey v. Ireland [1979] 2 E.H.R.R. 305.

3 Norris v. Attorney General [1984] I.R. 23; Norris v. Ireland [1989] 13

E.H.R.R. 185.

4 Croke v. Ireland, European Court of Human Rights, unreported, 21

December 2000.

5 Heaney and McGuinness v. Ireland, [1994] 3 I.R. 593 (H.C.); [1996] 1 I.R.

580 (S.C.); [2001] 33 E.H.R.R. 12.

6 Quinn v. Ireland [2001] 33 E.H.R.R. 12.

7 Barry v. Ireland, European Court of Human Rights, unreported, 15 December

2005.

8 Section 6(3) of the 1998 Act provides that “public authority” includes –

(a) a court or tribunal, and

(b) any person certain of whose functions are functions of a public nature,

but does not include either House of Parliament or a person exercising

functions in connection with proceedings in Parliament.

9 Section 1 of the 2003 Act provides as follows:

““organ of the State” includes a tribunal or any other body (other than the

President or the Oireachtas or either House of the Oireachtas or a Committee

of either such House or a Joint Committee of both such Houses or a court)

which is established by law or through which any of the legislative, executive

or judicial powers of the State are exercised.”