Judge queries Irish courts’ engagement with European human rights convention

The president of the European Court of Human Rights (ECtHR) has voiced concern about the nature of the Irish courts’ engagement with the European Convention on Human Rights and decisions of the Strasbourg-based court.

The Irish courts do interpret laws or rules for their conformity with the convention but “will not creatively extend or amend existing legislation”, Ms Justice Síofra O’Leary said.

In these “turbulent” times”, language used by national courts “counts”, she also said.

Signs of “perceived pushback against external judicial intervention” can be quickly harnessed by other courts or authorities, not to safeguard convention rights “but to bolster the language of national or parliamentary sovereignty, national or constitutional identity and the illegitimacy of bodies perceived as encroaching on either”.

“When such discourse takes hold, courts – but particularly international courts – are sitting ducks.”

Her comments come amid hostility within elements of the UK government toward the ECtHR and the convention following judgments on issues ranging from asylum rights to environmental obligations.

Ms Justice O’Leary, the outgoing president of the ECtHR, was addressing an audience including senior Irish and international judges at a special commemorative ceremony in the Four Courts marking the centenary of the establishment of Ireland’s independent courts system.

Ireland today vaunts a court system which provides, overall, effective access to justice and balanced protection of individual rights and the general interest, run by independent and impartial judges, she said.

The EU treaties and secondary legislation form part of Irish law but the convention was not considered part of domestic law for many decades and is still not directly applicable within the national legal order, she said.

[ Knee-jerk nationalist rejection of the ECHR by the UK would set a terrible example for autocracies ]

As part of the new constitutional settlement stemming from the Belfast Agreement, the convention was incorporated subject to very deliberate terms set out in a 2003 Act.

It is “deeply understood” the responsibility for ensuring rights are practical and effective is a shared one, with the primary responsibility lying in each jurisdiction with national authorities, including national courts, she said. Central to the effective functioning of the convention system here is “positive and engaged” interaction between Ireland’s Constitution and Europe’s convention.

In terms of domestic engagement with the convention laid down by the Irish courts, several points recur to this date, she said.

While the convention is an international treaty to which Ireland is a signatory, neither the convention nor the judgments of the ECtHR benefit, unlike EU law, from direct effect, said Ms Justice O’Leary.

The Irish courts, in response to convention arguments properly framed, will interpret a provision’s conformity with the convention but “will not creatively extend or amend existing legislation”.

The main measure of the embeddedness of the convention across the domestic systems of the 46 Council of Europe states is the number of applications pending against a given State per 10,000 inhabitants, she noted. There are just two applications against Ireland, out of 65,500, making Ireland’s ratio 0.04, 45th lowest, just 0.01 off the UK.

The “paucity” of applications against Ireland must reflect both the embeddedness of convention standards in this jurisdiction and a “high degree of confidence” in the independence and operation of the Irish court system, she said. The costs of access to justice in Ireland can influence whether the road to Strasbourg is taken, she added.