Creating a Human Rights Culture in Legislative Design: Shortfallings of the ECHR Act 2003
I am currently finishing a book with Cliona Kelly on the ECHR Act 2003, which will be published by Thompson Round Hall next year. One of the chapters for which I have responsibility is on the legislative impact of the Act, and reading Aoife’s post here about Maurice Manning’s recent speech in which he recommended the establishment of a proper parliamentary committee on human rights put me in mind of some of the arguments that we make in that chapter. The passage of the ECHR Act was an opportunity for the creation or structures through which we could try to bring about a culture of taking human rights obligations seriously in the design and passage of legislation. In reality, however, I am not sure that this has in fact happened especially as a result of the failure to set up a standing Oireachtas committee to carry out rights-based scrutiny of legislation and to require ministerial statements in relation to whether proposed legislation complies with the Convention. Both of these mechanisms are in place in the UK where they are very effective.
First of all the scrutiny of legislation carried out by the Irish Human Rights Commission under the HRC Act 2001 is an extremely valuable function but is also prone to being undermined where legislation is expedited as frequently happens in the case of particularly controversial legislation introduced in response to a perceived ‘crisis’. In any case, although the use of an external independent body for rights-based scrutiny is generally effective and to be praised, it does not create the structures within which a culture and ethic of taking human rights seriously in the design of legislation can be cultivated within the politico-legal institution of the Dáil. In my view it would be far preferable to have established a standing committee similar to the Joint Committee on Human Rights in the UK, which has shown itself to be extremely effective in challenging government claims regarding rights-compliance and subjecting legislation to deep scrutiny and, it has been argued, in terms of creating a human rights culture in parliamentary work (see this excellent article by Michael Tolley).
Secondly, under s. 19 of the Human Rights Act 1998 the sponsoring Minister of any proposed legislation must make a statement that the legislation is compliant with the Convention or is not compliant with the Convention but the Government wishes to proceed with it in any case. At first glance this requirement appears, perhaps, relatively asinine. However it does imply a number of things into the drafting of legislation. First of all, it implies that legal advice will be taken on compatibility of the proposed measures with the European Convention on Human Rights and, to the extent possible, that the provisions of the proposed legislation will be designed and drafted in a manner that is more likely than not to be compatible with the Convention. Secondly, it implies that human rights analysis will form part of the parliamentary debates surrounding the passage of legislation.
When the time comes for the ECHR Act 2003 to be reviewed (or if that time comes), it strikes me that the establishment of such a committee and the inclusion of ministerial statements on compatibility in proposed legislation ought to be considered, especially if we are serious about human rights protection in legislative design.