The Oireachtas and Human Rights Treaties

As we head into 2010 it is worth taking stock of the status of international treaties in Ireland in general and the current status of numerous international human rights treaties in particular. Article 29.6 of the Irish Constitution marks Ireland clearly as a dualist jurisdiction when it comes to international law, providing:

No international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas.

As a result, for international treaties to become binding in domestic law they must be expressly incorporated by means of legislation, giving the Oireachtas an important role in relation to human rights treaties. Of course, once Ireland has ratified those treaties they are binding in international law; simply not in domestic law. This, of course, is the basic (and admittedly very simplified) principle of dualism: that there are two sphere of legal operation—the domestic and international—and that what a state becomes bound by in the international sphere overlaps with the domestic sphere only inasmuch as it is either expressly incorporated or forms part of the general principles of international law (a.k.a. customary international law).

In the context of human rights law, the fact that Ireland has signed a treaty but not incorporated it into domestic law does not necessarily mean that it is of no recourse to the individual who wishes to avail of the rights and protections within it. There are a number of ways in which unincorporated treaties can be useful in domestic litigation, including as interpretive aids or persuasive precedents. In addition, many human rights treaties have individual complaints mechanism that operate in international adjudicatory bodies like the European Court of Human Rights, the UN Human Rights Committee etc… Once someone has exhausted all domestic remedies (or established that there is no reasonable prospect of success in domestic law) they might avail of those adjudicatory mechanisms as a method of dispute resolution. Importantly, however, and as the case of Kavanagh v Governors of Mountjoy Prison demonstrated with some force, the decisions of those international bodies are not binding on the domestic courts. Thus, one might get a favourable decision in an international treaty body but if one returns to a domestic court the finding of that international body is merely persuasive authority in the absence of an incorporating act for the treaty in question.

HRinI Blog Symposium on Carmody v Minister for Justice, Equality and Law Reform (2009)

Today on Human Rights in Ireland we are delighted to host our first Blog Symposium. Today’s symposium focuses on the Supreme Court’s recent decision in Carmody v Minister for Justice, Equality and Law Reform [2009] IESC 71.

In this case Carmody argued that the lack of a statutory or other right to free legal aid for representation by a barrister in the District Court was both unconstitutional and incompatible with the European Convention on Human Rights, pursuant to the ECHR Act 2003. The relevant statutory provision is s. 2, Criminal Justice (Legal Aid) Act 1962, which provides:

(1) “If it appears to the District Court –

(a) that the means of a person charged before it with an offence are insufficient to enable him to obtain legal aid, and

(b) that by reason of the gravity of the charge or of exceptional circumstances it is essential in the interests of justice that he should have legal aid in the preparation and conduct of his defence before it, the Court shall, on application being made to it in that behalf, grant in respect of him a certificate for free legal aid (in this Act referred to as a legal aid (District Court) certificate) and thereupon he shall be entitled to such aid and to have a solicitor and (where he is charged with murder and the Court thinks fit) counsel assigned to him for that purpose in such manner as may be prescribed by regulations under section 10 of this Act.

(2) A decision of the District Court in relation to an application under this section shall be final and shall not be appealable.

As is clear from the terms of this section the only situation in which the statute permitted appointment of counsel by means of legal aid in the District Court was where the charge was one of murder and the Court thought it fit to appoint a barrister, and exception that was essentially redundant.

Although it did not find that s. 2 was unconstitutional. the Court held that “the denial of an opportunity to apply for and be granted, where appropriate” legal aid for the appointment of counsel in the District Court “is a denial of a constitutional right” and that “the appellant in this case cannot be tried unless and until he is afforded an opportunity to apply for legal aid to include solicitor and counsel and have that application determined on its merits having regard to the considerations referred to in this judgment”.

In today’s symposium we present four different perspectives on this judgment, all focusing on different issues:

1. Noeline Blackwell, Director General of FLAC, writes here about the problems and puzzles presented by Carmody from a practical perspective
2. Liam Thornton of the University of Ulster and (of course) HRinI, writes here about the right to free legal aid as founded in the European Convention on Human Rights
3. Fiona de Londras of University College Dublin and (of course) HRinI writes here about the treatment of ECHR arguments in Carmody and, particularly, about the question of sequencing as between constitutional and Convention arguments
4. Paul Daly of the University of Cambridge (and currently visiting at Harvard) writes here about the potential for the Supreme Court to have used s. 2 of the ECHR Act 2003 [the interpretive section] in this case and hypothesises as to how the UK Supreme Court might have approached an analogous question.

de Londras on Carmody

My interest in the Supreme Court’s decision in Carmody is primarily on the sequencing decision as between the Constitutional and ECHR claims forwarded by Carmody himself. He claimed that the apparent lack of capacity under s 2 of the Criminal Justice (Legal Aid) Act 1962 for the District Court to certify appointment of a barrister was a breach of both Article 6 of the Convention (right to a fair trial) and the due process/fair trial rights under the Irish Constitution. In the end, as we know, the Court focused on the Constitutional arguments but this was done following a consideration by the Chief Justice of the appropriate order in which these arguments ought to be considered.

The questioning of sequencing as between Constitutional and Convention arguments is not new to Carmody. Prior to the Supreme Court’s decision in this case there were conflicting authorities on the appropriate sequencing to be adopted. These questions arise where, as in Carmody, a Declaration of Inconsistency is sought under s 5 of the ECHR Act 2003. Section 5(1) provides:

In any proceedings, the High Court, or the Supreme Court when exercising its appellate jurisdiction, may, having regard to the provisions of section 2, on application to it in that behalf by a party, or of its own motion, and where no other legal remedy is adequate and available, make a declaration (referred to in this Act as ‘‘a declaration of incompatibility’’) that a statutory provision or rule of law is incompatible with the State’s obligations under the Convention provisions.

Sequencing decisions are important, in my mind, because of the importance of the doctrine of constitutional avoidance (sometimes termed ‘constitutional self-restraint). It is well established that, in general, Courts will not consider the constitutionality of an impugned measure unless such a consideration is necessary simply because where an enactment is deemed unconstitutional a gap in the law is created which can cause significant difficulties in practical terms (The State (P Woods) v AG [1969] IR 385). In short, the rule of constitutional avoidance holds that constitutional matters that are raised before the Court should be considered only if the non-constitutional arguments had first been taken account of and the dispute could not be resolved on the basis of such arguments (Murphy v. Roche [1987] IR 106). This docrtine of constitutional avoidance is not, however, an absolute principle in Irish law. As early as M v An Bord Uchtála [1977] IR 287 the Court accepted that “there may be circumstances of an exceptional nature where the requirements of justice and the protection of constitutional rights make the larger enquiry necessary”. Section 5 applications call for such a determination.

Thornton on Carmody

The Supreme Court decision in Carmody, did not examine the merits of the case vis-à-vis the European Convention on Human Rights Act 2003 (ECHR Act 2003). The only European Court of Human Rights (ECtHR) case mentioned by the Supreme Court was that of Steel & Morris v. United Kingdom [2005] 41 EHRR 22. Murray C.J. noted that the obligation under Article 6(3) of the Convention was not parity of representation or equality of arms for those facing trial on criminal charges. The obligation is to ensure that parties to a case can “…adduce their evidence and test their opponent’s evidence in circumstances of reasonable equality” [arguments of the applicants in Steel & Morris, para. 50]. However, the Supreme Court  focused on the constitutional right to a fair trial and why this was violated in the particular case at hand. It would have been welcome, if the Supreme Court had commented on whether, in this particular case, the constitutional obligations of Ireland were the same as, or differed from, the obligations of the state under the ECHR Act 2003.

Article 6(3)(c) ECHR guarantees the right of a person charged with a criminal offence to “…defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to  be given it free when the interests of justice so require.”  When ratifying the ECHR, Ireland made a reservation (which is still in force) to Article 6(3)(c), limiting obligations to provide “free legal assistance to any wider extent than is now provided in Ireland.” At that time (1953), free legal assistance in criminal law was available solely in capital and murder cases.

More substantive examination of Convention rights was provided in the High Court judgment. Ms. Justice Laffoy examined in some detail, whether the Irish scheme of criminal legal aid (Section 2, Criminal Justice (Legal Aid) Act 1962) was compatible with ECHR obligations, under Article 6 alone or in conjunction with Article 14 of the Convention. Ms. Justice Laffoy also examined the incompatibility of the criminal legal aid provisions with the ECHR and the Irish Constitution in tandem. Interestingly, neither party in the case made reference to Ireland’s 1953 reservation to the Article 6(3) ECHR.

Blackwell on Carmody

We are delighted to welcome this guest post as part of our Symposium on Carmody from Noeline Blackwell, Director of FLAC. You can learn some more about Noeline on our Guest Contributors page. (photo credit)

The examination in Carmody related to the extent of legal aid in criminal law proceedings and to that end, did not at all help answer the vexing question of what is needed to give a person the court representation they require to vindicate their rights in matters other than criminal law. However, it did turn a spotlight on certain elements of a fair hearing which are helpful in guiding those charged before our courts on the right to representation and public funding in modern day cases.

The question of the complexity of the case was central to the application by Mr. Carmody’s solicitor Mr. Mannix to ask for representation by solicitor and barrister and was an important element in the judgment. In ruling in his favour,  the Supreme Court had to take account of the fact that the legal environment has changed substantially since the 1962 Act was enacted, he said. Maximum consecutive jail terms for District Court offences had, for example, doubled to two years and a wide range of potentially complex new offences had been introduced in areas such as consumer and environmental law. In addition of course the nature and volume of crime has changed dramatically over the decades. For example dealing in and supplying illicit drugs was virtually unknown in the 1960s. Successive statutes, apart from amending legislation governing long standing criminal offences, have created new ones. The offence of possession of child pornography, which may in certain circumstances be tried summarily, is an example. As a result of all these developments the District Court’s criminal jurisdiction has grown enormously.

The case reminds us of the serious consequences for people who have to appear in the District Court. Because of the numbers of people who go through that lowest level of the court system every year (550,694 cases disposed of in 2008), we can forget that the consequences for people can be very serious indeed. People can be jailed for an offence, or even for not paying a debt. People can lose their means of livelihood if it depends on a court licence. The District Court can assist in ending discrimination against a person. A person’s reputation can (as the court noted) be seriously damaged. The penalties can be serious – 11,747 sentenced to imprisonment – but also the charges can be serious and complex.

Lord Kerr on the Relationship between ECtHR and Domestic Courts

As we noted here, Friday evening saw UCD School of Law host the 13th Memorial John M Kelly Lecture, this year delivered by Lord Kerr; justice of the UK Supreme Court. The lecture, entitled “The Conversation between the European Court of Human Rights and National Courts: Dialogue or Dictation” was a wide ranging and extremely interesting one and the audience ranged from sitting and retired justices of the Supreme and High Court to undergraduate students in the School.

Lord Kerr was primarily concerned with the implications for courts in Ireland and the UK (although, primarily the UK), of Europen Court of Human Rights decisions that appeared to lay down a universal rule for the member states of the Council of Europe but where implementation of that rule caused substantial practical difficulties in the domestic state. The focus on Ireland and the UK had two bases: firstly these two jurisdictions are the only common law jurisdictions in the Council of Europe; secondly, s. 2 of the Human Rights Act 1998 and s. 4 of the ECHR Act 2003 require the courts, respectively, to take ECtHR jurisprudence “into account” (HRA 1998) or to take “judicial notice” and “due account” thereof (ECHR Act 2003).

Lord Kerr identified a number of reasons why any conception of Convention caselaw as ‘binding’ (if that was how these statutory provisions were interpreted) might be problematic. 1: Where there is a written constitution there may be tensions between constitutional supremacy and Convention caselaw. 2: Because of the ECtHR’s commitment to dynamic/evolutive interpretation of the Convention there is strict concept of precedent in the Strasbourg court, which may make things like the contemporaneousness of a judgment important in considering whether it ought to be binding or not; 3: Where a domestic court considers itself bound to follow a Strasbourg decision serious practical difficulties may flow from the implementation of that decision.

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.

New Programme for Government Promises the Introduction of Gender Recognition Legislation

Next Monday it will be two years since Mr Justice Liam McKechnie handed down his groundbreaking decision in Foy v An tArd Chlaraitheoir (No 2). In that case His Lordship issued the first ever Declaration of Incompatibility between Irish law and Ireland’s obligations under the European Convention on Human Rights. The cause of the incompatibility was the inability of Irish law to recognise the preferred gender identity of transgender people.

The Declaration should have put in motion a series of events which would have resulted in the Taoiseach reading the order into the records of each House of the Oireachtas within 21 working days (s5 of the ECHR Act, 2003). However, as this was the first time such an order had been handed down, His Lordship put a stay of two months on the implementation of the order to give the State the opportunity to decide whether to appeal the decision to the Supreme Court. On Friday, March 28^th 2008 notice of such an appeal was lodged with the Supreme Court. The case has yet to be listed for hearing.

Pullen v Dublin City Council

Yesterday’s Irish Times reported that the High Court awarded €20,000 each to Carol and Laurence Pullen in respect of their removal from local authority housing under s 62 of the Housing Act 1966, a very controversial provision that permits of ejectment on ‘good estate management’ grounds sanctioned by the District Court. In Pullen v DCC the High Court found that ejectment of the Pullens on the basis of this provision was not compliant with the local authorities’ obligations under the European Convention on Human Rights Act 2003, although Irvine J. did not provide injunctive relief.

The remedies decision in Pullen is an important one and we look forward to reading the judgment when it is made available on courts.ie. Human Rights in Ireland will be hosting a mini-symposium on the decision with contributions from me, Pádraic Kenna and Aoife Nolan in due course.

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.