‘Declarations of Incompatibility under the ECHR Act 2003: A Workable Transplant?’

1. ‘Declarations of Incompatibility under the ECHR Act 2003: A Workable Transplant?’ Professor Fiona de Londras UCD, 29 June 2013 fiona.de-londras@durham.ac.uk

2. Outline • The Irish DOI as a transplant from the HRA 1998 • The HRA-model of ECHR implementation as heavily contextualised • The Irish constitutional context • The DOI structure and incongruence with the Irish culture of rights-protection • Is the ECHR Act’s remedy of DOI doomed to failure?

3. Core Question • Can DOIs be effective rights-enforcing remedies in Ireland given their apparent construction to meet the demands of a political (albeit juridified) constitutional system?

4. The DOI • Section 5(1), ECHR Act 2003: “In any proceedings, the High Court, or the Supreme Court when exercising its appellate jurisdiction, may, having regard to the provisions of section 2…and where no other legal remedy is adequate and available, make a declaration…that a statutory provision or rule of law is incompatible with the State's obligations under the Convention provisions.” • Section 4(2) HRA 1998 (re primary legislation): “If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.” (Section 2: “So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.”)

5. Key Features of a DOI • Declaratory remedy • Primary legislation is not invalidated • Other similar disputes are thus not resolved • Rights infringements are not remedied in a systematic way • The ‘final say’ rests with the political branches of government • Ireland: DOI is laid before the Dáil within 21 days • UK: A fast track amendment process can be used (s. 10, HRA) although it need not be • The desirability of compliance is a contestable, political question • Ireland: apparent culture of apathy • UK: apparent culture of compliance

6. The DOI within the HRA Model • The constitutional context • The ‘political constitution’ (Griffith, (1979) MLR 1) • Parliamentary sovereignty & subordinate courts • The HRA model outlined • Interpretive obligation (courts—s. 3) • Performative obligation (public authorities including courts and hybrid public authorities—s.6) • Declaration of Incompatibility (s. 4) • Complex interaction between provisions (s.s. 19, 3, 4, 10) • DOI = part of the HRA’s adherence to New Commonwealth Constitutionalism (Gardbaum)

7. Bunreacht na hÉireann: A Legal Constitution • Entrenched rights • Strong form judicial constitutional review • Constitutional culture of rights as legally determined • Contestability is limited where rights are constitutionally enshrined and have strike down capacity • Domestic rights act as hard limits on parliamentary capacity and rights that are not capable of bounding activity in that way are different or weaker • Constitutionalism = compliance with the text of the Constitution? • Proviso: referenda (the instrument of contestability in Ireland) • IHRL relevant to the extent determined by Constitution

8. The Structure of the ECHR Act • NCC model on the face of it • Statutory Bill of Rights • ‘Weak form’ judicial review (interpretation—declaration approach) • ‘Final word’ rests with the Oireachtas • ECHR Act as contextually determined • Organs of the state as opposed to public authorities • No fast-track • No certification • No broader politico-constitutional structural adjustments

9. Can DOIs work in Ireland? • Possibly…but only if they are truly treated as remedies of last resort and politico-legal adjustments take place to create structures of contestability • Interpretive obligation as contextually core to the working of the ECHR Act 2003 (in contrast with controversial nature of s3 interpretation in the HRA 1998) • DOIs only where interpretation really cannot achieve Convention compatibility • Structures of contestation around DOIs • Dedicated parliamentary committee? • Political education and engagement with the ECHR Act 2003 • Culture of contestation (rather than compliance, perhaps) • Domestication of the ECHR through the ECHR Act 2003