Proxy for written constitution
Its ‘incorporation’ into the law of the United Kingdom, as a proxy of sorts for a written constitution, slightly predates the GFA as an early indicator of the seriousness of purpose of the New Labour government elected in May 1997, after a prolonged period of uninterrupted Conservative rule.
Ireland reciprocated in 2003 by passing the ECHR Act, which was a watered-down version of the UK Human Rights Act 1998 (HRA) but, arguably, satisfied the equivalence requirement of the GFA – at a political level, at least.
This is because of the well-established system here for protecting rights at a constitutional level since the late 1960s that included a power vested in the judiciary to strike down unconstitutional legislation with retroactive effect.
The impact of the ECHR Act, if measured by the number of declarations of incompatibility given by Irish courts, has been negligible, but this is no surprise.
Routine recourse to ECHR
However, recourse to the ECHR in judgments of Irish courts is now routine and uncontroversial.
Also, the approach taken to applying ECHR standards in Irish law is sometimes strongly influenced by the approach taken by the British judiciary, despite the differences in our respective acts and constitutional frameworks, when giving further effect to the ECHR in domestic law.
By contrast to the HRA, the ECHR act has had less of a measurable impact on the degree to which public bodies operate in accordance with the State’s ECHR obligations.
The Bill of Rights announced by the Justice Secretary and Deputy Prime Minister, Dominic Raab, as ‘a rights-enhancing instrument’ will repeal the Human Rights Act and replace it with something that sets the British judiciary on a collision course with the European Court of Human Rights.
The UK will remain party to the ECHR, and subject to the supervisory jurisdiction of the European Court of Human Rights.
Therefore, this can only mean an increase in adverse findings by the Strasbourg court, in what is likely to be an increasing number of cases taken against the UK.
It will also, because of some tortuously micro-managing provisions in the bill, weaken the degree to which the British judiciary can hold the Government to account, and will undermine much of what has been achieved by way of domestic judicial oversight since 1998.
In some other respects the bill overtly defies the understanding entered into by all states that ratify the ECHR, and is unapologetically contrary to international law.
The bill, when passed, will apply in the North.
So, if the equivalence principle means anything now, Ireland is still obliged to ensure at least an equivalent level of protection for human rights as will soon apply in the North that is a much lower level than applied in 1998.
It would be fanciful to suggest that this will lead to a diminution in rights protections in the Republic, by way of some opportunistic levelling-down enveloped in a cynical rationale of convenient equivalence.
In fact, it may be the case that in future Irish judges will have to draw more heavily on a Strasbourg-centred application of ECHR rights, because the British authorities with which they were so familiar will no longer remain authoritative or influential.
Alternatively, the Irish judiciary may choose to stay on a ‘Hiberno-centric’ path, applying rights grounded in an Irish constitutional orthodoxy that only occasionally departs from the standards established by the European Court of Human Rights.
The Irish courts will also be able to draw appropriately from the EU Charter of Fundamental Rights and decisions of the Court of Justice of the EU (CJEU) on the meaning of the Charter, something for which the courts in the North will have considerably less practical use.
But we should not be so naïve as to think that the race to the bottom encapsulated in the new UK Bill of Rights will be of no consequence in this part of the island of Ireland.
Our legislation to give greater effect to the ECHR in Irish law, the 2003 Act, already has a weaker interpretative obligation (S.2 of the ECHR Act) than the equivalent provision in the HRA.
The consequences of declarations of incompatibility under the Irish legislation (S.5 of the ECHR Act) are also undoubtedly weaker.
So who is to say that the Irish judiciary will not be minded in the near future to follow the reasoning of British judges applying the new Bill of Rights with all of the potentially negative consequences that this entails for rights protection here.
In fact, some of the changes being introduced in Britain to lessen the impact of the ECHR are uncomfortably similar to provisions of the 2003 act but, admittedly, without the supplementary protection of a written constitution.
And, more recently, proposals to restrict judicial review in this jurisdiction as part of civil-justice reforms are not a million miles from admissibility thresholds in the UK bill.
Common floor of rights
As well as drawing on the ECHR to ensure a common floor of rights on ‘these islands’ the GFA also made provision for a Bill of Rights for the North, an All-Island Charter of Rights, and the establishment of national human-rights institutions in both parts of the island of Ireland.
Thankfully, both jurisdictions have functioning human-rights commissions, but the North’s Bill of Rights and All-Island Charter seem now like distant pipe-dreams.
In the package of values underpinning the GFA, human rights were always, perhaps, too instrumental and casually incidental.
It is sad to see something such as the ECHR, which was only ever a minimalist rights instrument, being so wilfully undermined.
- Donncha O’Connell is an Established Professor of Law in NUI Galway where he teaches European Human Rights.