These are my speaking notes from the #ECHR60 conference held at the Law Society in London on 3 September and organised by the British Institute for Human Rights to celebrate the 60th anniversary of the ECHR coming into effect.
As the ECHR turns 60 it is an opportune time for us to reflect on the successes of the Convention and, of course, on the challenges that lie ahead. When the ECHR came into force in 1953 few could have imagined that it would end up providing rights protection and an international human rights court for hundreds of millions of people across more than forty states from the west coast of Ireland to the east coast of the Russian Federation. Nor could people have imagined the kind of cases—and the volume of cases—that the European Court of Human Rights would find itself dealing with: slavery, religious expression and dress, interception of communications, LGBT rights, protection of the home, privacy, and torture continue to be issues that the Court is required to deal with time and time again even today. Surely the signatories in 1953 could not have envisaged this, either because they did not think of these in terms of rights (for example identity-related rights of transgendered persons) or because they would have anticipated that sixty years on abominations such as torture and slavery would no longer trouble us on this continent. Sadly, however, they do. In spite of this, we know that the ECtHR has become a major pressure point in states’ engagement with the Convention, either because states consider that it is overly engaged in the constitutionalist development of the Convention, or because they fail to give effect to the Court’s decisions even when those decisions are legally binding under Article 46 of the Convention. These pressure points are reflected in proposed reforms at both the European level (reflected in the Izmir, Interlaken, Brighton process) and at domestic level (reflected in the post-HRA milieu in the UK and the discussions around a ‘UK Bill of Rights’ distinct from/lying beside/replacing the HRA (which option would be chosen is not entirely clear)). In this context, there may be something interesting to be gleaned from the experience of the UK’s near neighbour, Ireland, and its experience of the Convention. The Irish experience of the Convention and the Court can be characterised in general terms as collaborative and positive, but in order to discern any reflections for the UK from this experience some important contextual groundwork must first be laid.
Rights in Ireland: Beyond the ECHR
First, Ireland has a different relationship to human rights/fundamental rights/civil liberties to the UK. Influenced by continental European constitutional traditions as well as (to some extent) Judeo-Christian understandings of the content of core rights, the 1937 Irish Constitution—Bunreacht na hÉireann—includes expressly protected rights. Given their common intellectual heritages, it is not surprising that these rights and those protected in the ECHR map on to one another fairly well: they are largely civil and political (although there is a substantial property protection and a directive clause as to socio-economic rights) and they are often expressed in open textured language. As with all constitutional provisions in Ireland, these rights provisions are interpreted and applied by courts. Thus, the first difference is that Ireland has a tradition of engaging in legally entrenched, judicially interpreted and applied rights; in Irish legal culture rights are, then, legal instruments and not politically contestable in the same way as they are in the UK constitution. The second difference is that constitutional rights in Ireland have strike-down power; in other words, government action and legislation (including primary legislation) that is repugnant to the constitution is struck down by the courts. In Ireland, then, we apply a system of constitutional rather than parliamentary supremacy; difference number two. This is not to suggest that courts have the absolutely last word; rather, where courts interpret the constitution in a way that the government or political system considers unworkable or otherwise unacceptable a proposed constitutional amendment to change this can be (and often is) put before the people by means of a referendum and the decision of the People is determinative; prior to a judicial interpretation the political system operates on the basis of the Attorney General’s best possible interpretation of the constitutional text. Thus, constitutional interpretation including the interpretation of rights in Ireland has always been heavily legal, largely juridical, and ultimately non-political in the quotidian sense of the word. This is the third important contextual difference.
The purpose of this, admittedly whistle-stop, tour of Irish constitutional law 101 is to emphasise that right from the beginning of Ireland’s long engagement with the ECHR the Irish politico-legal system had an understanding of rights as legal and as matters in relation to which courts play a legitimate interpretive, adjudicatory and evolutive role.
The Impact of the ECHR in Ireland
This arguably positioned Ireland well for a collaborative and positive engagement with the ECHR and with the Court. Indeed, the first inter-state case and the first individual complaint determined by the Court both involved Ireland: Ireland v United Kingdom and Lawless v Ireland. Even though we may not have anticipated much engagement with the Court itself at the time of joining (and the records suggested we didn’t), when that engagement came we already were acculturated to a constitutional or constitutionalised approach to rights that may have reduced the culture shock of thus engaging with international adjudication.
In spite of this, however, Ireland did not incorporate the Convention until 2003. This does not mean that the Convention played no domestic role. There are three ways (at least) in which the ECHR played a pre-incorporation role, all of which continue post-incorporation:
(a) In some (limited) circumstances constitutional interpretation evolved by reference to jurisprudence from the ECtHR, taken as persuasive authority where there were clear parallels between the constitutional and the Convention right and dynamic interpretation was being engaged in
(b) In some cases a rights claim did not succeed under the Constitution, or political inertia as to the giving effect to constitutional rights set in, and as a result a case was taken to Strasbourg which succeeded under the ECHR. Following such cases domestic legislative change was introduced (albeit often following a delay) so that in this way the Convention supplemented the Constitution and helped us to overcome obstacles posed by conservatism or governmental inaction. The cases of Norris (leading to the decriminalisation of male homosexual sex in 1993) and A, B & C (leading to the introduction of a legislative framework to access abortion in limited circumstances as permitted by the Constitution) are important examples, but so too are cases of which Irish lawyers are rightfully proud for their pan-European impact like Airey (legal aid) and Johnston (the rights of unmarried fathers and of their children).
(c) This leads to the third way in which the ECHR has a domestic impact, and that is essentially political: it aids marginalised communities in gaining purchase where they struggle to do so in domestic politics (through the intervention of NGOs in particular) and it can give political actors an ‘out’ to introduce necessary but controversial or risk-laden changes (such as the abortion legislation this summer).
The Importance of Politico-Legal Context
These three impacts are important because they show that depending on the political and legal context, incorporation of the Convention is not determinative of its capacity to impact on domestic law and politics. Once a politico-legal system is acculturated to rights being judicially determined (to at least some extent), and to thinking about rights as legal instruments that mark the boundaries of political possibility, that context helps to determine the Convention’s impact almost as much as a strict legal positioning does. This raises an important question in the UK: if courts are now accustomed to rights determination and rights are now legal as well as political instruments, would repeal of the HRA and replacement with a ‘Bill of Rights’ really address what for some is seen as a problematic juridification of rights? A generation of lawyers, judges, politicians and public servants have adjusted to a new bargain as to rights; a new understanding. Even if one believes that it is desirable to row back on that (which I do not in the slightest), one must surely ask whether it is possible to do so. This question becomes all the more pertinent when one considers that the EU is soon to accede to the ECHR and that in all actions engaging EU law—which we know are many indeed—ECHR-compliance will be required and, of course, unlike the ECHR the Court of Justice of the European Union employs strong form review and EU law enjoys superiority. What then would be the sense in a withdrawal from the system laid down in the HRA or, in a more nuclear sense, from the Convention? Are public servants to determine whether they are applying EU law before doing something and then act in a Convention compliant manner but to ignore that or focus on a replacement-Bill of Rights when not dealing with EU law? It is difficult to see how this is either a workable or a desirable outcome.
The ECHR Act 2003: Incorporation at Last
Ireland did incorporate the Convention in 2003 largely as part of the new political and legal dawn that came with the Belfast/GFA. This Agreement included a commitment by both the UK and Ireland to incorporate the ECHR as part of a broader rights-related bargain that includes structured engagement by the two human rights commissions, a process around a NI Bill of Rights and so on. I don’t intend to say much more about that as it touches on important issues of devolution and constitutional structure that are beyond the remit of these remarks, but surely before any repeal or de-incorporation is seriously considered the possibility of a rupture in this bargain is something that must be taken into account.
Ireland did not incorporate the Convention simply to satisfy the Agreement; for many years incorporation had been under discussion in ireland, and standing alone with the UK as the only states not to have incorporated it created a tension between the human rights community and the government and indicated an isolationist position that were both problematic. In the end, the method of incorporation which mirrors the HRA (albeit it is not identical in every respect) has proved problematic and not entirely effective, largely because of the contextual differences I outlined above, but there has never been a suggestion that we should or would undo that step of incorporation.
Similarly, even when the Court has handed down adverse decisions against Ireland the prospect of non-compliance was simply never seriously canvassed…not even when the Court became involved in the most incendiary political matter in in Ireland: abortion. After A, B & C v Ireland any suggestion that we would not give effect to the judgment was dismissed immediately, vocally and unequivocally as unacceptable. Ireland, we were reminded, always complies with the ECtHR because we have committed to do so and because compliance with these judgments is part of being a member of the European community of states committed to a European rule of law. Certainly we might debate how to comply and what the Court requires of us, but non-compliance is simply not considered to be an option. This is, clearly, in contrast to the discourse in the UK.
It may well be that this approach to ECtHR decisions can be connected to our national human rights system and to the acceptance that—absent a reversal by the People—rights are legally determined by courts, and that this is how courts aid in maintaining the rights-related constitutionalist bargain with the state. Perhaps this is where the crux of the difference between the UK and Ireland and our relationships with the Convention lies, but if it is then the question I raised earlier—of whether the politico-legal culture in the UK has now shifted to be closer to (though not the same as) this—surely must be given serious consideration in ongoing processes to determine the future of the HRA and the UK’s future engagement with the Council of Europe and the European Union as it relates to rights.