The European Convention on Human Rights Act 2003: How the Convention Works in Irish Law

Dualism and Article 29.6

Article 29.6 of the Constitution provides that no international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas. In In re Ó Laighléis [1960] IR 93 IE · Supreme Court the Supreme Court held that, because the Oireachtas had not made the Convention part of domestic law, the courts could not give effect to it where it was contrary to domestic law or purported to grant rights beyond those of domestic law.

The 2003 Act did not change that. In J McD v P L [2009] IESC 81; [2010] 2 IR 199 IE · Supreme Court Murray CJ said the Convention is not directly applicable as part of the law of the State and may be relied on only in the circumstances the 2003 Act specifies. Fennelly J held that the High Court had in effect given direct effect to Article 8, which Article 29 does not permit.

Section 2: interpreting Irish law compatibly

Section 2(1) requires a court interpreting and applying any statutory provision or rule of law to do so, “in so far as is possible” and subject to the rules of law on interpretation, compatibly with the State’s Convention obligations.

In Donegan v Dublin City Council [2012] IESC 18; [2012] 3 IR 600 IE · Supreme Court McKechnie J said that if a Convention-compatible construction is reasonably open, it should prevail. But it must be reached by the ordinary rules of interpretation. A compatible reading of s 62(3) of the Housing Act 1966 would have required reading in a whole new procedure, which no permissible interpretation could achieve.

In J McD v P L Fennelly J added that national courts should not adopt interpretations at variance with current Strasbourg case law. The Act “does not provide an open-ended mechanism for our courts to outpace Strasbourg”.

Sections 3 and 3A: organs of the State

Section 3(1) requires every organ of the State to perform its functions compatibly with the Convention, subject to any statutory provision or rule of law. The definition in s 1(1) excludes the President, the Oireachtas and its committees, and the courts.

A person who suffers injury, loss or damage from a breach may sue for damages if no other remedy in damages is available, within one year, extendable by the court in the interests of justice. Because courts are excluded, s 3A (inserted in 2014) provides a separate Circuit Court claim for compensation where a person is unlawfully deprived of liberty as a result of a judicial act.

Section 4: Strasbourg case law

Section 4 requires judicial notice of the Convention and of the judgments of the European Court of Human Rights, and requires courts to take due account of the principles they lay down. Strasbourg judgments therefore bind Ireland in international law, but in an Irish court they are persuasive, not binding precedent.

Section 5: declarations of incompatibility

Where no other legal remedy is adequate and available, the High Court, Court of Appeal or Supreme Court may declare a statutory provision or rule of law incompatible with the Convention. A declaration does not affect the validity, continuing operation or enforcement of the provision. The Taoiseach must lay the order before each House, and the Government may make an ex gratia payment.

In Carmody v Minister for Justice, Equality and Law Reform [2009] IESC 71; [2010] 1 IR 635 IE · Supreme Court the Supreme Court held that where a party also claims the law is unconstitutional, the constitutional issue must be decided first. The s 5 remedy is “both limited and sui generis”. Declarations were made in Foy v An t-Ard Chláraitheoir [2007] IEHC 470 IE · High Court (birth registration) and in Donegan (possession proceedings under s 62(3) of the Housing Act 1966, a section since repealed from 13 April 2015).

Key authorities

The leading authorities relied on in the source module (the full case table is in the module):

• In re Ó Laighléis [1960] IR 93 IE · Supreme Court — The Convention is not part of domestic law without an Oireachtas determination under Article 29.6.
• J McD v P L [2009] IESC 81; [2010] 2 IR 199 IE · Supreme Court — The Convention may be relied on only as the 2003 Act provides; no outpacing Strasbourg.
• Carmody v Minister for Justice, Equality and Law Reform [2009] IESC 71; [2010] 1 IR 635 IE · Supreme Court — The constitutional issue must be decided before a s 5 declaration.
• Donegan v Dublin City Council [2012] IESC 18; [2012] 3 IR 600 IE · Supreme Court — Limits of s 2; declaration of incompatibility as to s 62(3) of the Housing Act 1966.
• Foy v An t-Ard Chláraitheoir [2007] IEHC 470 IE · High Court — Declaration of incompatibility as to the birth-registration regime under Article 8.

Key statutory references: Constitution of Ireland, Article 29.6; European Convention on Human Rights Act 2003, ss 1(1), 2, 3, 3A, 4, 5 and 6, as amended by the Irish Human Rights and Equality Commission Act 2014 and the Court of Appeal Act 2014.

Exam focus

1. Start with Article 29.6: no direct reliance on the Convention.
2. Decide any constitutional claim first (Carmody).
3. Section 2: identify the provision to interpret, and ask whether a compatible reading is reasonably open.
4. Section 3: is the respondent an organ of the State, and does a statute require the incompatible act?
5. Section 5 last: a declaration does not strike down the law.

LawShortcut uses a subject-by-subject legal-content review focused on substantive accuracy, authority, Irish-law relevance and exam application. Law can change; verify the current position before relying on these notes.

Related free notes: Admissibility at Strasbourg · Article 8 in Ireland · all free Human Rights Law notes.