European Convention on Human Rights Act 2003:
Five Years On
Annual Human Rights Conference 2008
Irish Human Rights Commission / Law Society of Ireland
Session: / Family LawTitle: / “The ECHR Act, 2003 and Family Law in practice”
Author: / Ms. Rosemary Horgan
LAW SOCIETY/ IHRC CONFERENCE
Saturday 8th November 2008- Dublin
European Convention on Human Rights – Five Years On
The ECHR Act, 2003 and Family Law in practice
Chairman, ladies and gentlemen,
Thank you for the invitation to share with you the views of a practising family law solicitor on how the passing of the European Convention on Human Rights, Act 2003 has impacted directly and directly on the practice of family law in the past five years. Events such as this provide a rare opportunity for dialogue between legal practitioners and academic human rights theorists.
Practising solicitors tend to think about human rights through a very narrow lens – practically tunnel vision. How is it relevant to my client? How can I use it?
The ECHR Act, 2003 Act makes the ECHR part and parcel of our domestic law so it is very much on our ‘legal radar’. It affords us new avenues of redress or exposure for our clients depending on whether our clients are individuals or ‘organs of state’. In management jargon it presents both ‘threats’ and ‘opportunities’. To avail of these opportunities and to avoid the threats presented we must achieve a ‘paradigm shift’ in our thinking as well as developing a familiarity around the technicalities of the Act and ECHR jurisprudence. Family lawyers have to become familiar with concepts such as “the purposive approach”[1], and “horizontality”[2], the principal of “proportionality”[3] and the doctrine of the margin of “appreciation”[4].
1. The Paradigm Shift
If we are to avail of the depth and breath of the Act, we must refashion our foundational concepts of rights and obligations to incorporate a broader ‘human rights’ vision. First up is the old chestnut of the ‘family’ in Irish Law. The ‘family’ is guaranteed special protection under Article 41 of the Irish Constitution, but the concept of ‘family’ is restricted to the family based on marriage upon which the institution is founded. [5] The European Convention, on the other hand, under Article 8 guarantees - as a basic right - respect for private and family life, home and correspondence. Any interference is limited to lawful State intervention in the interests of national security, public safety, the economic well being of the country, crime or disorder control, public health or morality control or necessary measures taken to ensure the rights and freedoms of others.
The release clasp springing the opening of “Pandora’s box” in terms of family life definition however is that both in practice and in its jurisprudence the ECHR tends to accord legal protections to self-defined family units. If it operates like a ‘family’ it is entitled to be treated as such and is protected by the ECHR from arbitrary actions by the State.The focus of Article 8 is on the protection of an individual’s right to family life as distinct from protection of the rights of a family unit. In Keegan V Ireland [6]the court stated:
“The Court recalls that the notion of the ‘family’ in this provision is not confined solely to marriage based relationships and may encompass other de facto ‘family’ ties where the parties are living together outside of marriage. A child born from such a relationship is ipso jure part of that ‘family’ unit from the moment of his birth and by the very fact of it. There thus exists between the child and his parents a bond amounting to family life, even if at the time of his birth the parents are no longer cohabiting or if their relationship has then ended”.
From the practitioners’ perspective, what all this boils down to is that one can no longer limit the obligations of “Organs of State” to a rigid definition of the ‘family’ as being the family based on marriage. You must now extend advice to encapsulate the broader canvass of the ECHR. Family life can exist between children and their parents, regardless of their marital status and if married, regardless of the fact that they no longer live together.[7]
‘Organ of the State’ is defined by Section 1 of the Act as including”.. a tribunal or any other body (other than the President or the Oireachtas or either House of the Oireachtas or a committee of either such House or a Joint committee of both such Houses or a court) which is established by law or through which any of the legislative, executive or judicial powers of the State are exercised”.
Public bodies, other than those excluded by the above definition, are mandated to carry out their activities in a manner compatible with the provisions of the ECHR. Section 3(1) of the ECHR Act 2003 provides that, “every organ of the State shall perform its functions in a manner compatible with the State’s obligations under the Convention provisions”.
Section 2(1) places an interpretative obligation on the Courts to interpret statutory provisions or rules of law in a manner which is compatible with the State’s obligations under the convention– where possible and subject to any countervailing rule of interpretation.
Public bodies not excluded by the Act include, the HSE, The Adoption Board, sundry Ombudsman offices, Local Authorities and Town Councils, the Revenue Commissioners, The Legal Aid Board, etc;
Section 3 imposes on organs of state an obligation to perform its functions in a Convention compatible manner and section 3(2) provides that if an organ of state i.e.; a public body is found wanting under Section 3 they are essentially committing the tort of breach of statutory duty with all of the consequences, in terms of remedies available to a complainant, that this entails. The specific tort created by the Act is only available however “if no other remedy in damages is available”. For the entitlement to damages under s. 3(2) to come into play, it must be established that the organ of state has contravened s. 3(1) by not performing its functions in a manner compatible with the State’s obligations under the Convention. If the aggrieved party can establish that they have suffered injury, loss or damage and that no other remedy in damages is available to them, they can recover under Section 3(2) of the 2003 Act.
If the organ of state is fully compliant with its legislative obligations however, and yet is in breach of Convention obligations, then the legislation is defective. One must then ask if the defect can be remedied by reference to Section 2 (interpretation)[8]. If it cannot however, one can proceed to Section 5 and seek a Declaration of Incompatibility. It has been suggested that the need to seek a Declaration of Incompatibility under Section 5 in order to “exhaust all domestic remedies” is otiose because such a Declaration is not an effective remedy.[9] Donncha O’Connell believes that Strasbourg would not require a litigant to go through that lengthy expensive process before personally petitioning the ECHR.
The two reviews of Ireland’s human rights record by the United Nations Human Rights Committee conducted in 1993 and 2000 contained significant “to do” lists which did not appreciably alter between the first and second report. Fottrell noted that the Irish Government appeared to engage in “a series of smoke and mirrors tricks” designed to obscure our failure to correct problems highlighted in the First Report of the Committee which resulted in the same problems being highlighted in the Second Report.[10] The Third Report by the Human Rights Committee issued in July 2008 did not make for complacent reading either. While much has been achieved, a lot more remains to be done.
In the first two Reports, the Human Rights Committee echoed major concerns outlined by the NGO Shadow Reports produced by three domestic Non Governmental Organisations. The Shadow Reports produced a very interesting article by article review of Irish legislation highlighting those areas where there was a gap in Convention and legislative standards.[11] The latest shadow Report followed the same very useful Article by Article critique.
The third periodic Report of the Human Rights Committee welcomed the progress made such as the legislative and other measures taken by the Irish Government, including the establishment of the Human Rights Commission in 2000, The Mental Health Act, 2001, the ECHR Act 2003, and the establishment of the Garda Siochana Ombudsman Commission in 2007. They also noted the developments in the field of domestic violence (Cosc), the establishment of the Equality Authority and an Equality Tribunal. In terms of the downside however the Committee were unhappy with lack of action of many of the issues noted in the Shadow Report. The Committee requested a progress report within one year on three matters namely, their recommendations in relation to a definition of “terrorist acts” in domestic legislation so as to limit extraordinary measures in appropriate situations. They also gave a warning in relation to accepting assurances for third countries as to the innocuous nature of actions taken by them and there should be an official regime for the control of suspicious flights and any acts of rendition should be publicly investigated. Their second area of particular concern related to prison conditions and their third area related to the need to have a greater availability of non denominational primary education to match the influx of a diverse and multi-ethnic school population. The number of overall concerns listed included the proposals for Civil Partnership, issues of domestic violence in practice, abortion, fair trial issues, trafficking, and shortcomings in the Immigration Residence and Protection Bill. The Fourth periodic Report is due in 2012.
2.The Mechanics
Procedurally, practitioners must watch the Statutory Instruments, Rules of Court[12] and Practice Directions[13]. The Practice Direction has been partially overtaken by the Rules of Court which relate to the right of the Attorney General and Human Rights Commission to notice of proceedings involving a Declaration of Incompatibility. The originating Court document must plead Section 3(1) of the 2003 Act where injury loss or damage is alleged. The rules do not say that other remedies may also be sought such as injunctions or declarations. The Originating Pleading must bear the title “in the matter of the European Convention on Human Rights Act 2003, section 3(2)”. The party with carriage of the proceedings must serve a copy of same on both the Attorney General and the Human rights Commission and update both of those institutions on the progress of the proceedings as the case progresses. While section 3(2) provides that a claim for damages may be initiated in the High Court or in the Circuit Court, section 3(3) limits the Circuit Court’s power to award damages to that available under any other Circuit Court tort action. Barton has raised the question as to how practitioners should evaluate whether to proceed in the High Court or the Circuit Court. He goes on to query whether you should deal with the issue as with any other tort claim or whether it should have a special status due to its very nature? He also points to the low level of damages normally measured for such breaches by the European Court of Human Rights where the quantum of damages has never been generous[14]. The measure of compensation is supposed to afford just satisfaction to the injured party which effectively amounts to ‘restitution in integrum’ but it is generally accepted that the awards are generally lower than most Member States’ awards[15].
The Irish Human Rights Commission made “Amicus Curia “appearances on seven occasions in 2007 in the High Court and Supreme Court in cases involving Human Rights issues, and it received 42 Notifications of proceedings under the Rules[16].
Cases involving Convention pleadings included such issues as legal aid[17], residency rights of ‘non-nationals’ parents of Irish born children and immigration issues and refugee issues most of which plead the ECHR Act, 2003[18], accommodation of travelling families[19], criminal trespass legislation[20], data protection issues[21] and housing issues[22].
Other Judgments concerned tax treatment[23], issues relating to detention under the Mental Health legislation[24]. An interesting Judgment in the year touched on Convention case law although it did not directly invoke the Convention; the subject at issue was the Constitutionality of Section 3(2) of the Deceased Wife’s Sister’s Marriage Act 1907, as amended by Section 1(2) (b) of the Deceased Brother’s Widow’s Marriage Act 1921. This legislation which prohibited the marriage of a man with a divorced wife of his brother or half brother was held to be unconstitutional[25].
Because of existing Constitutional jurisprudence broadly mirroring convention type rights it is fair to say that there has been no floodgate of cases pleading Convention issues since the ECHR Act 2003 brought the Convention into domestic law, however as can be seen there has been a “trickle effect”. A progress Report and impact assessment on the 2003 Act was prepared by O’Connell, Cummiskey & Meeneghan entitled “ECHR Act 2003: A Preliminary Assessment of Impact”. This was at the behest of the Law Society of Ireland and Dublin Solicitors’ Bar Association, and was published in 2006. This report suggests so far there has been little “added value” arising from the incorporation of the Convention at sub-constitutional level into our domestic law. However the Report concedes that it is probably too soon to be definitive on this assessment[26].
Emily O’Reilly, The Ombudsman, has indicated that she will assess whether Organs of State have fulfilled their obligations and discharged their duties having regard to Section 3 of the ECHR Act, as a matter of routine in investigations which her office conduct for the future. In this way she hopes to assess systemic problems routinely so that Organs of State themselves are prompted to undertake a Human Rights risk assessment in all administrative actions.
“I admit that this may not be as simple as it sounds – given the conflicting imperatives that drive all risk assessment procedures – but, at the very least, a public body cannot hope to defend itself against a claim, formulated in terms of a human rights violation, if that body has not even considered human rights implications in the course of risk assessment. Such enlightened self-interest should assist in breaking down any entrenched institutional reflex against human rights-proofing where it exists. It might even lead to the incremental emergence of a human rights culture, so-called, in the public service. While best human rights practice may not, ultimately, ‘save’ a public body faced with a claim before a court it may well prove vital in the context of more systemic or generalised inquiries conducted by my own office or other supervisory agencies”.[27]
3. ECHR Act 2003 impact on Adoption
Adoption in Ireland is largely a consensual matter. The Adoption Acts 1952-1998 encompass the adoption code and prescribe who may adopt, who may be adopted, limited non-consensual adoption and foreign adoption. Although Ireland is party to The Hague Convention on Intercountry Adoption there is still no legislation incorporating the Convention processes into our domestic law. Adoption is one area where Article 41 and the restrictive definition of ‘family’ as being limited to the family based on marriage comes into sharp focus. It is very hard to reconcile the obligations of the Adoption Board to act within their existing statutory remit, and their obligation as an ‘organ of state’ to perform its functions in a manner compatible with the State’s obligations under the Convention provisions. There is a very basic disconnect between both sets of obligations.
To take the issue of ‘eligibility’ to be considered as a suitable party to adopt for example it is all but impossible to reconcile Section 9(2) of the 1952 Act and Section 10(2) of the 1991 Act with recent ECHR jurisprudence. Although Ireland permits adoption by a single person and Wagner and J.M.W.L –v-Luxembourg[28]concerned a situation where the Luxembourg authorities would not recognise a full adoption made in favour of a single mother in Peru, one would have to note the comments of the Chamber Judgment that the national court had taken into account neither developing social reality nor the best interests of the child in that case. More pertinently the recent decision of EB v France[29]stated that national authorities in France could not discriminate against a lesbian prospective adopter by reason only of her sexuality. This line of logic has been extended by the House of Lords in their decision on a case coming from Northern Ireland which relates to an application for joint adoption of a child by an unmarried couple who cared for the child during the last ten years. This case was decided having regard to two earlier decisions and in the context of the revamp of adoption laws in the UK culminating in the Adoption and Children Act, 2002 which does not stretch as far as Northern Ireland. In the case of In re P and another (AP) (Appellants) (Northern Ireland)[30].
The Adoption (Northern Ireland) Order 1987 was challenged as being contrary to Article 8 and Article 14 of the Convention because it restricted joint adoption to married couples.
Gillen J, in the Family Division of the Northern Ireland High Court took the view that being unmarried was a chosen status and there was no incompatibility, in his view, with the Human Rights Act, 1998. This couple chose to be unmarried, and should live with the consequences. This view was rejected by the Northern Ireland Court of Appeal and it was determined that unmarried couples were a ‘formless’ group which could vary widely in their relevant characteristics[31].