THE HIGH COURT
Record No. 5813P/2003
Between:
Ann Lawrence, Patrick Lawrence, Mary Lawrence (A Minor) suing by her father and next friend Patrick Lawrence, Bernard Lawrence (A Minor) suing by his father and next friend, Gerard Lawrence (A Minor) suing by his father and next friend Patrick Lawrence, Ellen Marie Lawrence (A Minor) suing by her father and next friend Patrick Lawrence, Margaret Lawrence (A Minor) suing by her father and next friend Patrick Lawrence, Cathleen Lawrence (A Minor) suing by her father and next friend Patrick Lawrence, Patrick Lawrence (A Minor) suing by his father and next friend Patrick Lawrence, Anne (Brigid) Lawrence (A Minor) suing by her father and next friend Patrick Lawrence
Plaintiffs
V
Ballina Town Council, The County Council of the County of Mayo, the Commissioner of an Garda Síochána, Director of Public Prosecution (at the suit of Sergeant Anthony Lavelle) , The District Judge sitting at Ballina District Court, Ireland and the Attorney General
Defendants
And
The Human Rights Commission
Amicus Curiae
And
The Equality Authority
Amicus Curiae
SUBMISSIONS ON BEHALF OF
THE HUMAN RIGHTS COMMISSION
1. INTRODUCTION
1.1 The Human Rights Commission (hereinafter “the Commission”) makes the following submissions in relation to a number of issues arising in the proceedings before this Honourable Court.
1.2 The Commission’s functions are set out in the Human Rights Commission Act 2000 as amended. Section 8(h) empowers the Commission to apply to the High Court and to the Supreme Court to be joined as amicus curiae in proceedings before the Court that pertain to the human rights of any person and to appear as such on foot of an order of the Court. The term “human rights” is defined in the Act of 2000 as meaning:
“(a) the rights, liberties and freedoms conferred on, or guaranteed to, persons by the Constitution, and
(b) the rights, liberties or freedoms conferred on or guaranteed to, persons by any agreement, treaty or convention to which the State is a party.”
1.3 The Commission is of the view that the proceedings herein raise certain fundamental issues pertaining to the protection of human rights. In that regard, it will address whether or not Sections 19C(1) and Section 19(F) of the Criminal Justice (Public Order) Act 1994 as inserted by Section 22 of the Housing (Miscellaneous Provisions) Act 2002 (hereinafter referred to together as “the Act of 2002”) meet the requirements of the relevant rights provisions in the Constitution and in pertinent international instruments. The Commission notes that the Equality Authority was joined as amicus curiae for the purpose of addressing the Court on Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (the Race Directive) and thus the Commission does not propose to address same in the course of its submissions nor at the hearing of this action.
1.4 On the 20th June 2005, the Commission applied to be joined as amicus curiae in the proceedings and that application was acceded to by O’Neill J. On the 18th day of July 2005, the matter was re-entered before O’Neill J by the Third and Fourth Named Defendants for clarification in relation to certain matters, and on that date, O’Neill J directed the amendment of the Order of the 20th June joining the Commission, to record an undertaking by Counsel for the Commission “not to duplicate submissions made by any other party herein at the hearing of the matter [and] to be as brief as possible in the making of submissions”. Thus, although the Commission herein addresses the issues with which it is concerned in the proceedings, it is to be anticipated that it will not address same before this Honourable Court to the extent that those issues are aired by the parties themselves.
2. THE RELEVANCE OF INTERNATIONAL LAW PROVISIONS
2.1 The Commission submits that, when considering the constitutionality of the impugned provisions, the interpretation and understanding of the relevant constitutional provisions ought to be informed by the provisions of international Conventions ratified by the State. In the event of any conflict between the provisions of an international convention and any provision within the domestic legal framework, effect must, of course, be given to the domestic provisions. To do otherwise would be to ignore the rule embodied in Article 29(6) of the Constitution that no international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas and would also amount to disregard of Article 15.2.1º which confers the sole and exclusive law making power in the State upon the Oireachtas.[1]
2.2 Thus, any attempt to use the provisions of unincorporated international law, whether on the assertion that the provisions ought to be regarded as “generally recognized principles of international law” referred to in Article 29.3 of the Constitution or otherwise, as a basis for challenging the validity of any rule of domestic law is doomed to failure.[2] Nonetheless the Courts have on a number of occasions shown a willingness, in the absence of conflict between domestic and international provisions, to consider the terms of such international instruments with a view to informing their understanding of the applicable constitutional standards.
2.3 Thus, for example, in State (Healy) v Donoghue,[3] the Supreme Court had regard to the terms of Article 6 of the European Convention on Human Rights (hereinafter “the ECHR”) when considering the scope of the right to legal aid under Irish law. Although the ECHR at that time had been ratified by Ireland but not incorporated into the domestic legal system, O’Higgins CJ nevertheless stated that:
“it is sufficient to say that the existence of the Convention demonstrates clearly that it was … generally recognized throughout Europe that, as one of his minimum rights, a poor person charged with a criminal offence had the right to have legal assistance provided for him without charge”.
2.4 The Supreme Court was therefore willing to have regard to an unincorporated international instrument in the context of its interpretation of the constitutional guarantee of the right to a trial in due course of law as protected in Article 38 and of the guarantees set out in 40.3 of the Constitution. In this case, the Court saw the acknowledgement of the right to legal aid under the ECHR as significant in its confirmation of the generally recognised existence of such a right.
2.5 Similarly, in O’Leary v Attorney General,[4] when considering the constitutional status of the presumption of innocence (in the context of the guarantee of a trial in due course of law pursuant to Article 38 of the Constitution), Costello J reviewed the status afforded to the presumption in a number of international instruments, including Article 6(2) of the ECHR and Article 11 of the UN Universal Declaration on Human Rights 1948. Costello J then concluded (at p.107):
“by construing the Constitution in the light of contemporary concepts of fundamental rights, (as I am entitled to do: see State (Healy) v Donoghue) the plaintiff’s claim obtains powerful support.”
2.6 Further examples of such judicial willingness can be found in the judgments of the Supreme Court in Rock v Ireland[5] and Murphy v I.R.T.C.[6] in which the principle of proportionality (and the parameters of that principle), as expounded in the jurisprudence of the European Court of Human Rights, was adopted and employed in a domestic context prior to the incorporation of the ECHR.
2.7 Indeed, unincorporated international law provisions may have indirect effect through the operation of a presumption of compatibility of domestic law with international obligations. In State (DPP) v Walsh,[7] Henchy J expressed the view that our domestic laws are generally presumed to be in conformity with the then unincorporated European Convention on Human Rights. The notion of such a presumption was endorsed by O’Hanlon J, in support of his view that the provisions of the European Convention on Human Rights, then unincorporated, ought to be considered by Irish judges when determining what public policy was: Desmond v Glackin (No.1).[8] Reference is also made to the judgment of Finlay-Geoghegan J in Nwole v Minister for Justice,[9] when considering aspects of the asylum application process as it applied to minors. The learned judge stated that:
“The provisions of the Refugee Act of 1996 [regarding the processing of applications for asylum] must be construed, and its operation applied by the authorities, in accordance with the Convention on the Rights of the Child which has been ratified by Ireland.”[10]
2.8 It is thus clear that Finlay Geoghegan J was willing to have regard to the terms of an international agreement in her consideration of the rights of minors in the asylum process in this jurisdiction. Likewise, in Bourke v Attorney General,[11] the Supreme Court, when interpreting the meaning of the term “political offence” in Section 50 of the Extradition Act 1965 placed reliance upon the meaning attributed to same in the European Convention on Extradition, and also upon the travaux preparatoires thereof.[12]
2.9 It is also of interest to note that the approach advocated by the Commission corresponds with the practice often adopted by the European Court of Human Rights wherein the Court has considered the provisions of relevant international law provisions when considering the meaning and parameters of rights protected under the ECHR. One clear example is to found in the judgment of the Court in Chapman v United Kingdom[13] to which reference will be made in the body of these submissions. In the course of considering the relevance of Article 8 of the ECHR to the circumstances of a woman, a Gypsy, who argued that the actions of the relevant public authorities interfered with her pursuit of her right to pursue a nomadic lifestyle, the Court had considered the Council of Europe Framework Convention on the Protection of National Minorities and also to certain measures adopted by the institutions of the European Union before reaching its conclusions as to the applicability of Article 8 to claims based upon the right “to pursue a gypsy way of life”.
2.10 Thus, it is submitted that the Courts have shown a willingness to use non-binding instruments to inform the understanding of specific and consistent constitutional provision to which the non-binding international provision may be “pinned”. The international instrument may be seen both as a buttress and a guide to existing constitutional guarantees, as far as the interpretation of the statutory provision before the court is concerned. The Commission is of the opinion that it is entirely appropriate that the Constitution and the guarantees thereunder should be informed by international treaties ratified by the State, where such a state of affairs is possible, and thus endorses the above approach in the context of the proceedings herein.
2.11 The above argument regarding the role to be played by international law in informing our understanding of constitutional provisions applies equally in relation to the ECHR. In addition, however, to that role, direct reliance may be placed upon the ECHR in a domestic context since the implementation of the European Convention on Human Rights Act 2003. Sections 2, 3 and 5 of that Act are set out in the Plaintiff’s submissions. It is noted that the Plaintiff sought to amend the pleadings herein to take account of the implementation of this Act and also to take account of Council Directive 2000/43EC. That application was refused by Johnson J on the 28th day of February 2005 who expressed the view that it was not necessary to do so as no new facts were sought to be advanced: the points of law in issue were matters for argument at the hearing of the action and did not necessitate an amendment to the pleadings. In the draft amended Statement of Claim prepared by the Plaintiffs for the purpose of the application, two Declarations of Incompatibility pursuant to Section 5 of the Act of 2003 were sought. It is therefore to be expected that the Plaintiffs will raise arguments based upon the incompatibility of the impugned provisions with the ECHR in the course of the hearing herein. It is noted, however, that the Court may of its own motion declare a provision to be incompatible with the ECHR pursuant to Section 5 of the European Convention on Human Rights Act 2003.
2.12 In view of the fact that issues of compatibility of the impugned provisions with the ECHR may be raised and considered on a separate basis, it is proposed herein to first of all consider the constitutional dimensions of the issues which arise in the proceedings, as informed by relevant international law standards, and thereafter to consider the ECHR dimension separately, bearing in mind all the while that that dimension may also inform the constitutional understanding of the issue raised.
3. RECOGNITION OF TRAVELLERS’ RIGHTS
3.1 It is submitted that the question of respect for Traveller identity, culture and values is at the heart of issues arising in this case as to the compatibility or lack of compatibility of the impugned legislation with domestic and international human rights norms. Travellers regard themselves as a distinct group[14] within society and are so regarded by the settled community[15]. It is argued that the values at the core of the Constitution require respect for the right to pursue life as a Traveller and to adhere to Traveller values. The principles of dignity, autonomy and privacy are central to the constitutional order. In that regard, it is noted that in Re a Ward of Court (No. 2)[16] Denham J described the right to be treated with dignity as “an unspecified right under the Constitution”. Dignity is strongly associated with the right to privacy: McGee v Attorney General,[17] Norris v Attorney General,[18] and Kennedy v Ireland.[19] The courts in recent years have placed a strong emphasis on autonomy as a constitutionally protected value which is inherent on the rights to liberty and due process and indeed it was recognised as a distinct personal right in Re a Ward of Court (No. 2). The constitutional right to travel within the State must also be borne mind in this context. The right to personal liberty, guaranteed by Article 40.4, is now commonly understood to inform this right,[20] although the initial identification of the right located it within the guarantee of personal rights contained in Article 40.3. Thus, in Ryan v Attorney General,[21] Kenny J gave as an example of “the many personal rights of the citizen which flow from the Christian and democratic nature of the State which are not mentioned in Article 40 at all”, but which are latent within that Article, as the “right to free movement within the State”.