Convention versus domestic law.

political analyst

https://www.peaceandjusticeinitiative.org/implementation-resources/dualist-and-monist

When our government has signed treaties (e.g. in relation to EU membership) and conventions (e.g. the European Convention on Human Rights), why didn't it seek approval by referendum or Oireachtas legislation before it signed those agreements?

After all, it stands to reason that anyone who is going to sign an agreement that affects other people should 'run it by' those people before he or she signs it, doesn't it?

hullaballoo

Peregrinus is particularly knowledgeable about this stuff but there was a referendum on membership of the EU (then EC) in 1972:

https://en.wikipedia.org/wiki/Third_Amendment_of_the_Constitution_of_Ireland

That was referred because it required an amendment to Bunreacht na hÉireann. Any change to the Bunreacht requires a referendum, however, it is open to the government to refer another matter to refereundum. Just that in practice it doesn't make sense to refer everything to the people.

Clearly there is a balance between formally seeking the views of the people via a referendum and then the efficiencies needed for proper government. It is possible to glean from other sources whether the people approve and at least in theory, when the people disapprove of policy decisions, it is reflected in elections.

political analyst

hullaballoo wrote: »

Peregrinus is particularly knowledgeable about this stuff but there was a referendum on membership of the EU (then EC) in 1972:

https://en.wikipedia.org/wiki/Third_Amendment_of_the_Constitution_of_Ireland

That was referred because it required an amendment to Bunreacht na hÉireann. Any change to the Bunreacht requires a referendum, however, it is open to the government to refer another matter to refereundum. Just that in practice it doesn't make sense to refer everything to the people.

Clearly there is a balance between formally seeking the views of the people via a referendum and then the efficiencies needed for proper government. It is possible to glean from other sources whether the people approve and at least in theory, when the people disapprove of policy decisions, it is reflected in elections.

Indeed. After all, we would be fed up if we had referenda as often as the Italians have had a change of government since the end of World War 2!

coylemj

political analyst wrote: »

When our government has signed treaties (e.g. in relation to EU membership) and conventions (e.g. the European Convention on Human Rights), why didn't it seek approval by referendum or Oireachtas legislation before it signed those agreements?

Were you away on holidays during the two Nice and two Lisbon referendums?

We had a referendum in 2001 when we signed up to the Internation Criminal Court and another referendum in 2012 to ratify the Treaty on Stability, Coordination and Governance in the Economic and Monetary Union.

drunkmonkey

Are these rights worthless when our constitution can over rule them all indefinitely?

coylemj

CROTTY - V - AN Taoiseach and Others, more commonly referred to as the Crotty case, is a seminal constitutional judgment. As a consequence of the Crotty judgment (25 years old this year), all major EU treaties have to be put to the Irish people by way of referendum.

https://www.irishtimes.com/news/crime-and-law/a-quarter-of-a-century-of-voter-power-1.522779

Claw Hammer

drunkmonkey wrote: »

Are these rights worthless when our constitution can over rule them all indefinitely?

What rights?

political analyst

coylemj wrote: »

Were you away on holidays during the two Nice and two Lisbon referendums?

We had a referendum in 2001 when we signed up to the Internation Criminal Court and another referendum in 2012 to ratify the Treaty on Stability, Coordination and Governance in the Economic and Monetary Union.

I was referring to the signing of treaties, not the ratification of them. The latter treaty was signed before the referendum took place.

drunkmonkey

Claw Hammer wrote: »

What rights?

For example our Human Rights and Fundamental Freedoms under the ECHR convention we signed up to. Our constitution over ruled a lot of them.

Claw Hammer

drunkmonkey wrote: »

For example our Human Rights and Fundamental Freedoms under the ECHR convention we signed up to. Our constitution over ruled a lot of them.

The rights under the ECHR convention did not become part of domestic law until the ECHR Act was adopted. Any rights granted were subjected to the constitution.
From Article 29 of the Constitution.

5 1° Every international agreement to which the State becomes a party shall be laid before Dáil Éireann.

2° The State shall not be bound by any international agreement involving a charge upon public funds unless the terms of the agreement shall have been approved by Dáil Éireann.

3° This section shall not apply to agreements or conventions of a technical and administrative character.

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

Claw Hammer

political analyst wrote: »

I was referring to the signing of treaties, not the ratification of them. The latter treaty was signed before the referendum took place.

It was signed subject to ratification. It was not ratified until after the referendum.

drunkmonkey

Claw Hammer wrote: »

The rights under the ECHR convention did not become part of domestic law until the ECHR Act was adopted. Any rights granted were subjected to the constitution.
From Article 29 of the Constitution.

5 1° Every international agreement to which the State becomes a party shall be laid before Dáil Éireann.

2° The State shall not be bound by any international agreement involving a charge upon public funds unless the terms of the agreement shall have been approved by Dáil Éireann.

3° This section shall not apply to agreements or conventions of a technical and administrative character.

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

I'm not sure what your trying to say there, Term 6 allows for the Oireachtas to disregard the convention as it stands today?
Hence my original question as to why our rights under it don't really mean anything as we can't exercise them.

Claw Hammer

drunkmonkey wrote: »

I'm not sure what your trying to say there, Term 6 allows for the Oireachtas to disregard the convention as it stands today?
Hence my original question as to why our rights under it don't really mean anything as we can't exercise them.

Until you have rights you can't complain about them not meaning anything.

political analyst

Claw Hammer wrote: »

It was signed subject to ratification. It was not ratified until after the referendum.

The funny thing is that the referendum might not have been necessary. If the government had instead brought legislation to the Oireachtas for ratification and there had been a legal challenge the Supreme Court might have ruled in favour of the legislation. Obviously, we'll never know.

political analyst

Claw Hammer wrote: »

The rights under the ECHR convention did not become part of domestic law until the ECHR Act was adopted. Any rights granted were subjected to the constitution.
From Article 29 of the Constitution.

5 1° Every international agreement to which the State becomes a party shall be laid before Dáil Éireann.

2° The State shall not be bound by any international agreement involving a charge upon public funds unless the terms of the agreement shall have been approved by Dáil Éireann.

3° This section shall not apply to agreements or conventions of a technical and administrative character.

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

All the more reason for the government to get permission from the Oireachtas before signing a treaty!

drunkmonkey

Claw Hammer wrote: »

Until you have rights you can't complain about them not meaning anything.

I'm not complaining, just trying to understand how any government can take away rights so easily.
Under the charter it allows for emergencies but they should be reasonable, short lived and evidence based.

Peregrinus

OK. First thing to understand is that signing a treaty is not like you or me signing a contract, or the President signing an Act of the Oireachtas . Signature doesn’t bring a treaty into force, or make it a binding law; it’s just a step along the road.

For historical reasons, treaty-making is a two-stage process. Each state appoints a team of negotiators, who travel to meet the other negotiators, and they all try to hammer out a deal. Each team of negotiators has its instructions from its government — what you should try to achieve; which objective are more important and which are less important; what you can agree to if you have to; what you mustn’t agree to in any circumstances; etc. The negotiators do their stuff and either they reach agreement on the text of a treaty or they don’t. If they don’t, it’s back to square one. If they do, they all sign the agreed text.

Signing it doesn’t mean that we now have a treaty, though. It just means “we think our government would be willing to make a treaty on these terms, if your government is also willing”.

Each team of negotiators then takes the agreed text back to their respective governments, saying “that’s the best we could do”. And each state then decides whether it wants to make a treaty on those terms. If it does, it ratifies the treaty. When each state ratifies the treaty, it sends a notification to the other states that it has done so. If all the states, or enough states, ratify the treaty then it enters into force.

How you ratify it depends on your domestic law. In the US, for example, treaties are ratified by a vot in the Senate - the US Constitution says so. In the UK, up to recently they were ratified by the monarch on the advice of Ministers - Parliament didn’t get a look in. This was changed a few years back by a law which requires a vote in Parliament to ratify certain kinds of treaty.

You don’t ratify a treaty until you’re ready to implement it. This may require you to change your domestic law. For example, suppose a treaty calls for the abolition of the death penalty; you might have to pass a law abolishing the death penalty before you’re ready to ratify the treaty.

I say “might” because this depends on your own domestic law. In Ireland, Art 29.6 of the Constitution, already quoted, says that no treat is part of the law of the state unless the Oireachtas so decides. So simply entering into a treaty that says “the death penalty is abolished” wouldn’t abolish the death penalty; you’d have to get the Oireachtas to pass a law abolishing the death penalty, and then you’d be ready to ratify. Whereas in the US, the Constitution says that treaties are part of the supreme law of the land. So if the Senate ratifies a treaty saying “the death penalty is abolished” (NB the US Senate is very unlikely to do this) then, bang, it’s abolished.

Political analyst asks why the government doesn’t seek the approval of the Oireachtas before signing a treaty. The answer is that it would be pointless. Until the treaty is signed, there isn’t a definite text. There’s no point in asking the Oireachtas to approve a text that might still be changed, or that other states might yet seek to change. All the states negotiating the treaty will sign the text simultaneously; then they all go off to attend to their domestic requirements for ratification, and it’s at this stage that the Oireachtas (and the people) get involved. If the treaty takes any legislative power away from the Oireachtas (like the EU treaties) or otherwise contains provisions that are inconsistent with the Constitution then it will require a referendum for a constitutional amendment before it can be ratified. If it requires any change in domestic law (like abolishing the death penalty) then it will require an Act of the Oireachtas. If it requires the spending of additional public money then the Dail will have to vote that money.

Victor

Peregrinus wrote: »

When each state ratifies the treaty, it sends a notification to the other states that it has done so. If all the states, or enough states, ratify the treaty then it enters into force.

With multilateral treaties, wouldn't most of them be registered / deposited with a single authority / state, rather than dozens / hundreds of countries sending each other notifications?

Peregrinus

Victor wrote: »

With multilateral treaties, wouldn't most of them be registered / deposited with a single authority / state, rather than dozens / hundreds of countries sending each other notifications?

Yes. Often a treaty which is expected to have several or many parties will include a clause designating a "depository" to whom notifications of ratification (and withdrawal, where relevant) are to be sent. The depository then notifies all the other parties.

This isn't to reduce the number of notifications; the same number of notifications get sent out, just by the depository rather than by the ratifying/withdrawing state. Rather, it's to provide certainty about the effective date on which a country joins or leaves the treaty; it's the date the depository gets the notification.

The depository could be either a state or an international organisation. For example:

— Italy is the depository for the Treaty of Rome, which established the European Communities.

— The United States is the depository for the UN Charter and the Nuclear Non-Proliferation Treaty

— The Secretary General of the UN is the depository for the Chemical Weapons Convention and the Test Ban Treaty

— The Secretary General of the Council of Europe is the depository for the European Convention on Human Rights and its Protocols.

Peregrinus

drunkmonkey wrote: »

Are these rights worthless when our constitution can over rule them all indefinitely?

Well, it's a bit simplistic to think that something is either (a) enshrined in the Constitution, or (b) worthless. If that were so then all the legislation enacted by the Oireachtas, all the regulations made by ministers and all the judgments made by the courts would be "worthless" which, obviously, is not the case.

drunkmonkey wrote: »

For example our Human Rights and Fundamental Freedoms under the ECHR convention we signed up to. Our constitution over ruled a lot of them.

Which ECHR rights are overruled by the Constitution?

The Constitution contains its own bill of rights, which is generally recognised internationally as being pretty robust. This is supplemented by the ECHR rights, which have been enacted into Irish law by the Oireachtas. In general the ECHR rights add to the constitutional rights; they can't detract from them.

In any system of human rights, conflicts of rights will arise, and there needs to be some basis for reconciling those conflicts. Is my right to free speech to prevail your right to your good name and reputation, or your right to the confidentialy of your banking records or medical history? Is my right to liberty to prevail over your right to bodily integrity, if I have assaulted you? Etc, etc. It's true that part of the Irish process for deciding questions like this is that, in the event of a direct conflict between a right afforded by the Constitition and a right afforded by the Convention, the consititutional right would prevail. But such direct direct conflicts are rare; off-hand, I can't think of any.

Claw Hammer

drunkmonkey wrote: »

I'm not complaining, just trying to understand how any government can take away rights so easily.
Under the charter it allows for emergencies but they should be reasonable, short lived and evidence based.

The government can't take away what isn't there to be taken away.

drunkmonkey

Claw Hammer wrote: »

The government can't take away what isn't there to be taken away.

Take Ganely V Donnelly, he believes rights have been taken away from him. To me it looks like he has those rights under the constitution and even more so under the convention.

Claw Hammer

drunkmonkey wrote: »

Take Ganely V Donnelly, he believes rights have been taken away from him. To me it looks like he has those rights under the constitution and even more so under the convention.

Have you a link to the judgment?

Just because someone believes something does not mean it is a fact.

drunkmonkey

Claw Hammer wrote: »

Have you a link to the judgment?

Just because someone believes something does not mean it is a fact.

There's been no judgement yet, it's in the high court in the next few days. I assume if it fails in the high court he can take it to Europe.

Robbo

drunkmonkey wrote: »

There's been no judgement yet, it's in the high court in the next few days. I assume if it fails in the high court he can take it to Europe.

He'd have to fail in the Supreme Court as well. And pass the admissibility test in the ECtHR.

Claw Hammer

drunkmonkey wrote: »

There's been no judgement yet, it's in the high court in the next few days. I assume if it fails in the high court he can take it to Europe.

So how has he lost any rights? How can he go to europe to enforce rights under the Irish constitution?

drunkmonkey

Claw Hammer wrote: »

So how has he lost any rights? How can he go to europe to enforce rights under the Irish constitution?

Maybe i'm misunderstanding you, are you saying he had no rights to begin with, he would go to ECHR once all avenues are closed in Ireland that needs to happen first.

Claw Hammer

drunkmonkey wrote: »

Maybe i'm misunderstanding you, are you saying he had no rights to begin with, he would go to ECHR once all avenues are closed in Ireland that needs to happen first.

The ECHR cannot confer rights on him. The only thing the ECHR can do is make a declaration that his rights have been infringed. That is not binding on the Irish government.

drunkmonkey

Claw Hammer wrote: »

The ECHR cannot confer rights on him. The only thing the ECHR can do is make a declaration that his rights have been infringed. That is not binding on the Irish government.

Does he not have rights under the convention? Back my original question, what's the point in signing up to a convention which isn't legally binding.

Robbo

drunkmonkey wrote: »

Does he not have rights under the convention? Back my original question, what's the point in signing up to a convention which isn't legally binding.

Let's cut to the chase here; Ganley's religious rights (such as he may moan) haven't been substantially infringed. He can attend mass remotely. Other sacraments are still happening, just in limited numbers.

This case won't go anywhere but I suspect that it was never intended to succeed.

drunkmonkey

Yes I think it's a bit of a stretch myself, you don't need to be anywhere particular to call gods helpline. Article 44 doesn't appear to give him the rights he thinks it does.

Would he have stood a better chance taking a case for infringement of Personal liberty namely your right to move freely within the State.

The convention and constitution overlap, the government seems to be more at odds with the convention than the constitution.

Dublinensis

Robbo wrote: »

Let's cut to the chase here; Ganley's religious rights (such as he may moan) haven't been substantially infringed. He can attend mass remotely. Other sacraments are still happening, just in limited numbers.

This case won't go anywhere but I suspect that it was never intended to succeed.

You can't attend Mass remotely. You can watch a live stream of a Mass, but that is not attendance: it's not analogous to (say) a board meeting.

The Irish bishops have dispensed their flocks from the obligation to attend Mass on account of the pandemic, and one can argue over whether the State's restrictions on public worship are a proportionate interference with religious freedom. But I think they clearly are an interference.

Claw Hammer

drunkmonkey wrote: »

Does he not have rights under the convention? Back my original question, what's the point in signing up to a convention which isn't legally binding.

The convention operates as a form of moral pressure. David Norris, for example lost his case in Ireland, went to the ECHR and got a declaration the Irish law was impinging on rights he should have under the convention. The Irish government then changed the law because of the embarrassment caused.

drunkmonkey

Claw Hammer wrote: »

The convention operates as a form of moral pressure. David Norris, for example lost his case in Ireland, went to the ECHR and got a declaration the Irish law was impinging on rights he should have under the convention. The Irish government then changed the law because of the embarrassment caused.

Ah right I thought they did it because they were legally obliged to not just to save face.
Is there a point in the future where they will be forced to implement a convention ruling as law?

political analyst

Claw Hammer wrote: »

The convention operates as a form of moral pressure. David Norris, for example lost his case in Ireland, went to the ECHR and got a declaration the Irish law was impinging on rights he should have under the convention. The Irish government then changed the law because of the embarrassment caused.

Obviously, there would have been "Irexit" from the Council of Europe if our government had not changed the law. Look at what the Greek military junta did after the ECHR ruled against it.

By the way, Norris probably would have stood a better chance of success in the Irish courts if he had based his case on the grounds of discrimination because lesbian sex was never criminalised. If he had, and then been successful, our government would have been too embarrassed to criminalise lesbian sex. What was Norris thinking?!

Peregrinus

drunkmonkey wrote: »

Does he not have rights under the convention? Back my original question, what's the point in signing up to a convention which isn't legally binding.

It is legally binding.

The way the Convention works is this; it sets out a charter of rights and imposes on states an obligation to respect those rights. States accept this obligation when they ratify the Convention. If an individual believes that a state has violated their Convention rights, they can (after exhausting their domestic remedies) take the matter to the European Court of Human Rights which, if it agrees that the rights have been violated, can order appropriate remedies, including compensation. These orders are binding on the state concerned - not just morally, but legally, as a matter of international law.

So long as Ireland remains a party to the Convention, there is nothing the Oireachtas can do to prevent people taking cases to the ECtHR, or to prevent the Court from awarding compensation and other remedies. So, no, the Oireachtas can't take away Convention rights.

But the Convention doesn't give you a right to obtain a remedy in your domestic courts. The Convention leaves it up to each state to establish and operate whatever mechanisms it wants for protecting and defending rights in its domestic law. One common way of doing this is for a state to pass a domestic law saying, in effect, "the rights set out in the European Convention of Human Rights are part of the law of this state and can be enforced in the courts of this state". But the Convention doesn't require states to do this; you don't have to incorporate the Convention rights in your domestic law.

Ireland ratified the European Convention on Human Rights in 1953 but chose not to incorporate it into domestic law, reasoning that domestic law already protected the human rights set out in the Constitution, which are very similar, and therefore the Covention rights were already effectively protected. And by and large this proved to be right; over the years there were very few cases taken to the European Court of Human Rights in which the Court held that Ireland had failed to respect Convention rights. (Ireland did subsequently incoporate the Convention rights into its domestic law, in 2003; it was a term of the Good Friday Agreement that Convention rights would form part of the domestic law of both Ireland and NI.)

The UK made a similar choice, but of course they don't have a constitutional bill of rights, or any system for asserting fundamental rights in their domestic courts. The result was that for a long time the UK was one of the countries that found itself most frequently before the European Court, and most often held to be in breach of the Convention. It wasn't necessarily that breaches of the Convention rights occurred more frequently in the UK than elsewhere; the problem was that when they did occur the UK had no effective domestic mechanism for getting a remedy, so there were a lot more cases taken to Europe. It became quite embarrassing. The UK did eventually incorporate the Convention into domestic law in 1998 and, as already noted, is bound by the Good Friday Agreement to maintain that position, at least in respect of Northern Ireland.

So, bottom line; the Convention is legally binding on those states that are parties to it, including Ireland. It's just that the Convention doesn't say that a state's domestic courts must provide remedies for breaches of the convention rights so, if they don't, that's not a breach of the convention.

L1011

Claw Hammer wrote: »

The convention operates as a form of moral pressure. David Norris, for example lost his case in Ireland, went to the ECHR and got a declaration the Irish law was impinging on rights he should have under the convention. The Irish government then changed the law because of the embarrassment caused.

And it took 6 six years, and multiple changes of Government/Ministers before they did.

ohnonotgmail

political analyst wrote: »

Obviously, there would have been "Irexit" from the Council of Europe if our government had not changed the law. Look at what the Greek military junta did after the ECHR ruled against it.

By the way, Norris probably would have stood a better chance of success in the Irish courts if he had based his case on the grounds of discrimination because lesbian sex was never criminalised. If he had, and then been successful, our government would have been too embarrassed to criminalise lesbian sex. What was Norris thinking?!

under what legislation? bearing in mind he took his case in the early 80s.

L1011

The ban was Victorian era and specific to men. Because women would never do that, of course, the horror of it *swoons in Victorian conservatism*

I believe the offense of incest only exists between men due to similarly antiquated laws - the few big prosecuted cases have been age related as far as I know.

ohnonotgmail

L1011 wrote: »

The ban was Victorian era and specific to men. Because women would never do that, of course, the horror of it *swoons in Victorian conservatism*

I believe the offense of incest only exists between men due to similarly antiquated laws - the few big prosecuted cases have been age related as far as I know.

I'm aware of the background. I'm just curious as to what discrimination legislation Political Analyst thinks would have covered this in the 1980s.

Peregrinus

ohnonotgmail wrote: »

I'm aware of the background. I'm just curious as to what discrimination legislation Political Analyst thinks would have covered this in the 1980s.

It was a constitutional action, so the plaintiff wouldn't have been appealing to any anti-discrimination legislation, even if it had been in force at the time; the appeal was to the constitution.

I guess you'd run the argument on the basis of the constitutional right to eqaulity before the law; Art. 40.1. The argument would that, as women were not criminalised for engaging in homosexual acts, a law criminalising men for doing so was repugnant to Art. 40.1.

(For what it's worth, I don't think an argument along those lines would have succeeded in 1983. Evidently Norris' counsel thought the same.)

political analyst

Peregrinus wrote: »

It was a constitutional action, so the plaintiff wouldn't have been appealing to any anti-discrimination legislation, even if it had been in force at the time; the appeal was to the constitution.

I guess you'd run the argument on the basis of the constitutional right to eqaulity before the law; Art. 40.1. The argument would that, as women were not criminalised for engaging in homosexual acts, a law criminalising men for doing so was repugnant to Art. 40.1.

(For what it's worth, I don't think an argument along those lines would have succeeded in 1983. Evidently Norris' counsel thought the same.)

Why would it not have been successful in 1983?

political analyst

L1011 wrote: »

And it took 6 six years, and multiple changes of Government/Ministers before they did.

Why did it take 6 years? The ECHR judgement would have given the government the political cover to have the law changed, wouldn't it? By 'political cover', I mean, "We've no choice folks. The ECHR said we have to do this or else we'll be thrown out of the Council of Europe".

Peregrinus

political analyst wrote: »

Why would it not have been successful in 1983?

The constitutional right of equality before the law is fairly heavily qualified — the state may, when legislating, "have due regard to difference of capacity, physical and moral, and of social function". It wouldn't have been difficult, given the attitudes and values predominant in the early 1980s (when Norris launched his action) to mount a colourable argument that male/male homosexual had a different social significance or impact than female/female homosexuality, or a different moral character. There was already a line of cases establishing that equality does not mean uniformity; that a legitimate differentiation is not an unconstitutional discrimination. Because of the fairly wide scope given to the state to identify moral or social distinctions, relatively few laws have been found to be repugnant to the Constitution on the grounds that they infringe the Art 40.1 guarantee of equality before the law, and in the early 1980s I think it was even fewer.

Also worth bearing in mind that Norris was consciously following in the footsteps of Dudgeon, who had argued that the UK breached both ECHR Art 8 (right to privacy) and Art 14 (Right not be disrciminated against on the grounds of sex, etc). Dudgeon won on the Art 8 argument, and the European Court then decided that it didn't need to examine the Art 14 argument. Which meant that, if Norris had rested his case on the gender equality argument, he didn't have an influential ECHR precedent to back him up.

Peregrinus

political analyst wrote: »

Why did it take 6 years? The ECHR judgement would have given the government the political cover to have the law changed, wouldn't it? By 'political cover', I mean, "We've no choice folks. The ECHR said we have to do this or else we'll be thrown out of the Council of Europe".

The governmetn can't change the law; only the Oireachtas can. And there can be a considerable political cost to a government in driving through a law change which may be unpopular with the public, or with a voluble section of the public, and with many of its own backbenchers. And the FF-led governments we had at the time were not politically stable, and could not affort to alienate their own backbenchers. "It's a treaty obligation" isn't always the clinching argument that you might hope.

And the "we'll be thrown of the Council of Europe" argument doesn't hold water. After all, we dithered on this for five years (not six) and we weren't thrown out of the Council of Europe.

political analyst

Peregrinus wrote: »

The governmetn can't change the law; only the Oireachtas can. And there can be a considerable political cost to a government in driving through a law change which may be unpopular with the public, or with a voluble section of the public, and with many of its own backbenchers. And the FF-led governments we had at the time were not politically stable, and could not affort to alienate their own backbenchers. "It's a treaty obligation" isn't always the clinching argument that you might hope.

And the "we'll be thrown of the Council of Europe" argument doesn't hold water. After all, we dithered on this for five years (not six) and we weren't thrown out of the Council of Europe.

I acknowledge my error about the period between the ECHR judgement and the decriminlisation.

Indeed, the forming of the FF-Labour coalition - four years after the judgement - brought decriminalisation much closer.