Paris on Reception of the ECHR in Ireland and France
My colleague at the UCD School of Law, Marie-Luce Paris (left), has just returned from the International Association of Law Schools meeting on constitutional law in Washington. While there, Marie-Luce presented her work on reception conditions for the ECHR in Ireland and in France and a detailed abstract of her paper has now been made available online. Particularly interesting from an Irish perspective are Marie-Luce’s observations on the role that ECtHR jurisprudence tends to place within judicial discourse in both jurisdictions.
Her view is well summarised in these extracted paragraphs from the abstract:
[One] point of tension…has been the reconciliation of constitutional review (compatibility with the Constitution) and ‘conventional’ review (conformity with the ECHR) in the supreme courts. Concerning the Constitutional Council, it seems not to be influenced by the ECHR and its case law…since it refuses any control of the compatibility of French law with the ECHR. However, the account has to be more subtle than that. If the Conseil constitutionnel does not include the ECHR as an operative tool when exercising its constitutional review (including it in the norms of reference), it does not mean that it has totally neglected and ignored it. The French constitutional judge has been more inclined over the years to use the ECHR, as interpreted by the ECtHR, as an aid to the interpretation of rights and liberties protected at domestic level. In recent years, it has come to refer to the ECHR itself and, recently, to its case law within the legal bases (visas) of its decision. This is typical of a growing awareness of the constitutional judge towards European norms. These constitutional arrangements and judicial developments produce a particularity that the reception of the ECHR has put to the fore. A law can be judged to be in conformity with the Constitution by the Constitutional Council but later be found in its application before the ordinary civil or administrative judge to be in violation of the ECHR. The review of ‘conventionality’ by the high courts is arguably said to operate as ‘a functional substitute for rights protection under the Constitution’.
In Ireland, Irish judges tend to subsume Convention rights and arguments under domestic constitutional remedies themselves, even when constitutional and conventional guarantees are not entirely congruent – in other words they stretch interpretation of incorporated Convention rights to make them correspond to constitutional rights…However, the assimilation of ‘conventionality’ review into domestic traditional constitutional review must remedy some of the structural deficiencies of the ECHR Act moving from a declaration of incompatibility to a declaration of invalidity – thus extending the benefit of constitutional remedies to Convention rights as in other Contracting States. (references removed-FdL)
I find Marie-Luce’s reflections on the role that what she called ‘conventionality review’ can play within traditional constitutional review in Ireland to be particularly interesting and an important area of reflection. While we have now had the ECHR Act since 2003, its impact judicially is sometimes read as being quite low with relatively few cases being decided on Convention bases and courts (and, it seems, advocates) generally leaning towards constitutional argumentation and resolution of disputes where applicable. Marie-Luce’s reflections in the second extracted paragraph above suggest that a more nuanced reading of these trends may be appropriate and in that I am very much of a tendency to agree with her.