The impact of recent ECHR changes on the constitution

AuthorJames MacGuill
PositionSolicitor, President of the Law Society of Ireland
Judicial Studies Institute Journal [2007:2
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
During the Dáil Committee Stage of the Incorporation of
contributors, including the Human Rights Commission and the
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
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
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
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.”

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