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ECHR Act 2003 - Declaration of Incompatibility

  • 26-03-2006 5:10pm
    #1
    Time Magazine
    Registered Users, Registered Users 2 Posts: 8,452 ✭✭✭


    Right, I'm doing a bit of study for an exam on Wednesday in which the ECHR is a topic.

    Section 5(2) makes provision for the HC (or SC) to declare a declaration of incompatibility between an Irish law and a provision of the ECHR. Furthermore, such a declaration would seem to have no negative effect on the validity or legal force of such an offending provision.

    I assume that once a declaration is made, the plaintiff could get a flight to Strasbourg and get the provision revoked.

    So why is this part of our legistlation? What possible use could it be? Is it, in effect, a provision for the courts to wash their hands of an issue? Or perhaps it is a technicality to fail to implement the ECHR in the case of someone not having the means/desire to travel to the ECtHR?

    Any views?


Comments

  • #2
    dermot_sheehan
    Closed Accounts Posts: 2,062 ✭✭✭dermot_sheehan


    Angry Banana wrote:
    Right, I'm doing a bit of study for an exam on Wednesday in which the ECHR is a topic.

    Section 5(2) makes provision for the HC (or SC) to declare a declaration of incompatibility between an Irish law and a provision of the ECHR. Furthermore, such a declaration would seem to have no negative effect on the validity or legal force of such an offending provision.

    I assume that once a declaration is made, the plaintiff could get a flight to Strasbourg and get the provision revoked.

    So why is this part of our legistlation? What possible use could it be? Is it, in effect, a provision for the courts to wash their hands of an issue? Or perhaps it is a technicality to fail to implement the ECHR in the case of someone not having the means/desire to travel to the ECtHR?

    Any views?

    The provision can't be revoked by the strasbourg court or even the irish high or supreme court merely for infringing the convention. Acts of the Oireachtas can only be struck down for violating the constitution or the laws of the European Union. The declaration allows the claimant to receive damages for breach of convention rights and also encourages the oireachtas to change the law to conform with the convention.


  • #3
    Nike_Dude
    Closed Accounts Posts: 269 ✭✭Nike_Dude


    The main benefit of a declaration of incompatibility is that it puts political pressure on the member state in question to change the law that is infringing the ECHR, but as gabhain7 said the Irish courts or the court of human rights can't strike out a law because it is incompatible. The David Norris case is the best example of this. He lost his challenge to the ban on homosexual sex between consenting males in the Irish Supreme court so he went to Strasbourg and won, but still had to wait years for the law to be changed.


  • #4
    Thirdfox
    Registered Users, Registered Users 2 Posts: 7,110 ✭✭✭Thirdfox


    Our lecturer told us the ECHR Act is most likely to be a waste of time as we have nearly copied the English provision word for word. It is useful in England where they have no written constitution to protect human rights but it is not the same in Ireland.

    Still it would be embarassing for the Gov. to tell the courts time after time that we know we're infringing human rights... that was our intention! Public pressure would be more successful I suspect in forcing the Gov. to change legislation etc.


  • #5
    mountainyman
    Closed Accounts Posts: 2,268 ✭✭✭mountainyman


    It allows a remedy in Irish law based on the non compatibility.
    Effectively this means damages, it will also act to create locus standi and frustrate claims of delay.

    The act also means that judgments of the ECHR can be admitted in Argument.

    Lets not kid ourselves about our rights either, what about Keane CJ and rights vesting when one is of age to exercise them.

    MM


  • #6
    Thirdfox
    Registered Users, Registered Users 2 Posts: 7,110 ✭✭✭Thirdfox


    A.O & D.L v. Minister for Justice right? What's the current makeup of the S.C? I know Denham J. recently retired... who replaced her?


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  • #7
    maidhc
    Registered Users, Registered Users 2 Posts: 7,722 ✭✭✭maidhc


    Thirdfox wrote:
    Our lecturer told us the ECHR Act is most likely to be a waste of time as we have nearly copied the English provision word for word. It is useful in England where they have no written constitution to protect human rights but it is not the same in Ireland.

    The declaration of incompatibility isn't really where it is at. Instead sections 2 and 3 are more likely to be of use.
    2.—(1) In interpreting and applying any statutory provision or rule of law, a court shall, in so far as is possible, subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State’s obligations under the Convention provisions.

    3.—(1) Subject to any statutory provision (other than this Act) or rule of law, every organ of the State shall perform its functions in a manner compatible with the State’s obligations under the Convention provisions.

    I would disagree strongly about it being a waste of time, especially in light of the Fennell decision: http://www.bailii.org/ie/cases/IESC/2005/33.html.


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