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- What is the status of the European Convention on Human Rights in Irish law?
- Does it differ from the status given to other international human rights treaties to which the State is a party? Cite relevant case law and academic commentary in support of your answer.
Note: in your essay you should explain how the Convention operates in Irish law at a domestic and international level and examine to what extent, if any, Convention rights have been successfully invoked by claimants before the Irish courts.
In 2003, the Irish parliament, the Oireachtas, passed the European Convention of Human Rights Act (ECHR). This act is in line with the Irish Constitution and domestic laws, as it prohibits particular government bodies from behaving in an unlawful manner that can interfere with any of the ECHR rights. The act demands that “every organ of the State” should “perform its functions in a manner compatible with the State’s obligations under the Convention provisions.” It also grants the Irish courts permission to hear any arguments about the ECHR in cases ahead them. The effect this act has is that it requires the Irish judiciary system to construe Irish legislation in a fashion that is in accordance with the European Convention of Human Rights (ECHR). The purpose of the act is to guarantee that Irish law develops in a manner that will honour the personal rights and freedoms set down by the ECHR.
The European Convention of Human Rights Act 2003, does not incorporate the ECHR rights into domestic Irish law, per say. The reason being that majority of the rights set out in the ECHR, have been available to the citizens of Ireland since the establishment of the 1937 Constitution. The ECHR sets out the minimum standard for the rights and allows each member state leeway to decide whether or not they want to raise that standard to a more stricter one in their individual countries.
When making any decision regarding rights from the ECHR, the 2003 act requires the Irish judiciary to take “judicial notice” of provisions and decisions from the Convention. When dealing with proceedings related to the Convention, it is essential for the Irish courts to “take due account of the principles laid down by those declarations, decisions, advisory opinions, opinions and judgments” made by other jurisdictions that also operate with the ECHR. This means that ECHR judgements do not have any precedence on Irish courts when dealing with ECHR issues. In Foy v An, tÁrdCláraitheoir, McKechnie J. Clearly set out the status the Convention has in Ireland. He stated that:
“It is a misleading metaphor to say that the Convention was incorporated into domestic law. It was not. The rights contained in the Convention are now part of Irish law. They are so by reason of the Act of 2003. That is their source. Not the Convention. So it is only correct to say, as understood in this way, that the Convention forms part of our law.”
In the Supreme Court case, McD v L, the same view point was echoed by Murray CJ, in which he stated:
“Even though the contracting parties undertake to protect convention rights by national measures, the Convention does not purport to be directly applicable in the national legal systems of the high contracting parties. Nor does the Convention require those parties to incorporate the provisions of the Convention as part of its domestic law. So far as the Convention is concerned it is a matter for each contracting party to fulfil its obligations within the framework of its own constitution and laws. The Convention does not seek to harmonise the laws of the contracting states but seeks to achieve a minimum level of protection of the rights specified in the Convention leaving the states concerned to adopt a higher level of protection should they choose to do so”.
Once an interference with Convention rights is shown, it is for the State to bring itself within the limitations proscribed. Central to the ECtHR determination of rights claims will be the proportionality of the measures introduced by the Contracting State. Limitations to Convention rights are construed narrowly. 18 The Convention provides an important basis for protecting the rights of all persons in a State. While the rights protected in the Charter 19 are only addressed to the institutions, bodies and offices of the European Union, and to EU Member States when implementing EU law20 , there is no such limitation in the Convention. Everybody within the jurisdiction of a Contracting State enjoys the rights set forth in the Convention.
- http://humanrights.ie/constitution-of-ireland/irelands-relationship-with-the-echr-reflections-for-the-uk/ -acessed 6/3/17 at 21:47
- http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2014)036-e acessed 6/3/17 at 22:13
- https://www.oireachtas.ie/parliament/media/housesoftheoireachtas/libraryresearch/spotlights/20160609_intlHR_spotlight_095201.pdf -acessed 6/3/17 at 22:30
- file:///C:/Users/Owner/Downloads/ICCL_KYR_EURO_BW.pdf- acessed 6/3/17 at 22:54
  IEHC 470, 93
 McD v L  2 IR 199
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