The Application and Use of the European Convention of Human Rights in the District Court

    The following article was the basis of a paper presented by Gareth Noble to the Law Society of Ireland's Human Rights Certificate Course.

    The European Convention on Human Rights was drafted as a charter of first generation, or civil and political rights, as opposed to being an instrument for enhancing economic and social rights.  The European Court of Human Rights has struggled with the distinction between these different categories of rights and has delivered a number of judgments that have broadened the interpretation of the convention to include protection for a wide range of often marginalised individuals and groups within society.

    The use and impact of the ECHR may have been less noticeable in Ireland because of the effect of our own domestic law and in particular our constitutional rights and protections.  It is also been argued that there seems to have been more resistance to its application in our courts than in the United Kingdom.  Indeed the European Convention was only “incorporated’’ into Irish law formally by the European Convention of Human Rights Act 2003.  Prior to this although the State had international obligations under the ECHR and had to answer before the courts in Strasbourg for any breaches of ECHR rights it didn’t have to do so in any real, meaningful or effective way before our domestic courts.  The stark consequences of this were that an individual who felt their rights had been breached by any state action on ECHR grounds could not seek or receive a remedy before the Irish courts but was instead required to go all the way to Strasbourg to seek relief.


    The European Convention on Human Rights Act 2003 (The ECHR Act)

    Section 2 of the Act is often referred to as the interpretative obligation; any legal statute or other form of law has to be interpreted ‘insofar as is possible’ in a manner which ensures that it is Convention compliant. This section has exposed the conflict inherent in the separation of powers doctrine. At the heart of this conflict is the question as to what is appropriate for our courts to do in such exercises of interpretation. Its resolution is often dependant in the court’s own view of its own limitations vis-a-vis the separation of powers between the judiciary and the legislature/executive.

    Section 3 of the Act requires all organs of the State to perform their functions compatibly with the Convention and Section 4 of the Act requires all courts here to take account of the judgments of the Strasbourg court when interpreting and applying Convention provisions.  Traditionally in Ireland the main method of challenging administrative decisions in this jurisdiction is by way of judicial review to the High Court.  The courts here have taken a very restrictive view of their role in Judicial Review applications.  The classic position is that Judicial Reviews concern the procedure and manner in which decisions are taken rather than the merits of the decisions themselves.  Therefore decisions based on the merits or irrationality of decisions or breaches of rights are few and far between.  The Strasbourg Court on the other hand took a very different view when reviewing claims that Convention rights have been violated.  The Strasbourg Court has utilised the Convention and its articles to widen and deepen human rights and protections for all European citizens.

    The current position is that the High Court only can make a declaration of incompatibility under Section 5 of the ECHR Act.  As in the UK the High Court can make declarations of incompatibility in relation to legislation and can award damages against organs of the State who act in a manner contrary to the State’s obligations under the ECHR.  As is also the position in the UK, the 2003 Act provides that any declaration of incompatibility does not affect the validity, continuing operation or enforcement of the relevant provision or rule of law.  Therefore a declaration of incompatibility does not change the law.  However, it seems likely that in instances where a declaration of incompatibility is found the law will ultimately be amended to avoid clashes with the Strasbourg courts.  In the Lydia Foy case, for example, the High Court made a declaration that sections of the Civil Registration Act 2004 were incompatible with the convention because they did not allow for recognition of Ms. Foy’s acquired or realigned gender.  Despite the European Court’s finding in Ms. Foy’s favour, and despite Convention arguments being raised in Ms. Foy’s favour, Ms. Foy is completely dependent on the Government agreeing to amend the law.  The Solicitor in the Foy case has commented in the following terms:

    “At its best the ECHR Act will be a valuable tool to help us assert the rights of vulnerable and disadvantaged people but it will be only one tool and a fairly specialised one at that.  It can help to achieve change through the law but even then progress will be slow – and very hard work – until the judiciary here internalises and embraces the European Convention as, to their credit, the UK judiciary has largely done.”

    In assessing the utilisation and applicability of the European Convention in the District Court one needs to look at the particular sections of the ECHR Act in some detail. Before doing so, however, it should be acknowledged that a common perception continues to exist that the District Court should, and in fact does, proceed on the evidence and facts of the particular case before it. Questions of law and legal submission are best left for the higher courts. Secondly, there is a perception, in so far as the European Convention of Human Rights is concerned, that it has little or no relevance in the day to day life of our District Courts. Such perceptions are unfortunate, as properly utilised, the Convention could be of huge benefit to cases which are litigated there.

    A statutory duty on “organs of the State” to perform functions in a convention compatible manner is contained in Section 3, and when applied imaginatively, can and sometimes is, cited in the District Court.  The District Court is a court of local and limited jurisdiction and is a creature of statute.  None the less as an organ of the State it is required by Section 3 to ensure that decisions taken are done so in a convention compatible manner.  The difficulty however is the exclusion of the courts themselves from the definition of organs of the State, and this is a source of some considerable controversy.  It should also be noted that it differs from the definition used in the UK legislation.  It is submitted, therefore, that whilst the courts themselves are not deemed as an organ of the State they are nevertheless charged with ensuring that other organs of the State such as the Gardai, local authorities and the Child and Family Agency perform their own functions in a convention compatible manner. The District Court has a civil, criminal, family, commercial, environmental, planning and licensing jurisdiction as well as jurisdiction to deal with children in the criminal justice system and children in the care system. Its reach into the lives of many of our citizens therefore has wide ranging implications and consequences.

    Section 4 of the European Convention of Human Rights Act creates a duty on courts to have due regard to the jurisprudence of the European Court of Human Rights.  This creates the legal basis therefore for a practitioner in the District Court to rely on case law emanating from the European Court of Human Rights in their submissions to the court.

    In the context of the District Court however Section 5 of the same Act acts as a huge limitation in the ability of the District Court to engage with convention issues.  Section 5 (1) provides that the High Court or the Supreme Court may, on application to it by a party or of its own motion, and where no other legal remedy is adequate and available, make a “declaration of incompatibility” that a statutory provision or rule of law is incompatible with the State’s obligations under the ECHR.  Significantly therefore the District Court or indeed the Circuit Court by its very nature may not rule that a statutory provision, decision or rule of law breaches the State’s obligations under the ECHR.  Section 5 (1) is not surprising given the fact that judicial reviews may only be taken to the High Court.

    It should also be noted at this juncture that much of the case law in which breaches of the Convention are cited, that decisions have been reached without consideration of the grounds of the Convention but have been instead decided on another legal basis, such as on constitutional grounds.  It is also been suggested that in the same way that Acts of the Oireachtas are presumed to be compliant with the Constitution that there also exists a presumption of compatibility with the Convention which any applicant must seek to dislodge.

    It follows from the foregoing that there are essentially two scenarios in which the ECHR arises in District Court proceedings:

    1. The utilisation of case law either from the European Courts, or the Superior courts decided on Convention grounds
    2. The other scenario in which the European Convention is utilised in the District Court arises out of applications or proceedings in the District Court where a recognised organ of the State acts in breach of the Convention.

    These Convention breaches can then form the basis for an application to the High Court for a declaration of incompatibility.  As has already been stated the District Court is a court of local and limited jurisdiction.  It only deals with certain types of cases and cases up to either a certain value or level of seriousness and only in certain areas.  It is a court whose powers arise solely out of statute.  Nonetheless in areas such as criminal law, housing law and child and family law proceedings the European Convention of Human Rights may, can, and does have a role to play.


    Rights Protected by the ECHR

    Domestic courts which are considering questions that have arisen in relation to asserted ECHR rights are required to take into account decisions of the Strasbourg Court and the Commission.  Article 6 is often referenced in hearings and proceedings that have the potential for adverse findings and particularly in relation to the determination of criminal charges.  This for obvious reasons has huge relevance and application in the District Court.  In the area of criminal law there have been a huge number of judgments from Strasbourg that can be relied upon in the District Court in relation to criminal proceedings.  Broadly speaking these include the important principles of equality of arms - the idea that each party to a proceeding should have an equal opportunity to present their side of the case and that neither should enjoy any substantial advantage over it’s opponent.  The right to legal representation flows from this requirement.  A number of Article 6 protections include evidence and fair trial procedures, prejudicial publicity, the requirement for reasons for the decision made, the right to a public hearing, the entitlement to a trial within a reasonable time by an independent tribunal, the protection against self incrimination and the right to silence and the presumption of innocence. 

    Specific guarantees to ensure fairness in criminal trials are of the utmost importance and are contained in Article 6.3 and Protocol 7.  It should be noted however that most, if not all, of these are already contained in Irish constitutional provisions.  Nonetheless these include:

    1. the right to know the details of the charge
    2. the right to representation and to legal aid
    3. the right to confront prosecution witnesses
    4. the right to free interpretation
    5. the prosecution’s duty of disclosure
    6. the right to review a criminal conviction or sentence


    Housing Law:

    The District Court currently enjoys wide powers pursuant to statute in relation to local authority housing, exclusion and barring orders, and the ending of local authority tenancy.  Article 8 (1) of the European Convention of Human Rights guarantees as a basic right the right to respect for private and family life, home and correspondence.  In a case of Donegan and Gallagher v. Dublin City Council in 2012 the Supreme Court considered Article 8 of the European Convention in relation to the operation of the Housing Acts and in relation to the eviction of tenants.  This judgment is a powerful example of how the District Courts, in determining cases that come before it in relation to housing disputes, should ensure that decisions taken by Dublin City Council and other local authorities are compatible with convention requirements. 


    Family Law:

    In a paper delivered by Judge Gerard Haughton on effective remedies under the ECHR in February 2001, he considered the effect of the Convention on Family Law in the District Court.  He noted the positive obligation on the State to protect individuals and its jurisdiction from any breach of convention rights including those contained in Article 3 and Article 8 of the Convention.  Where certain childcare orders are made in care proceedings, Article 8 imports notions of fair procedures for determining issues relating to the care and custody of children.  There is also a clear obligation under Article 8 on the making of such an order to vindicate the rights of children and of the parties to the proceedings.  When looking at the length of the childcare proceedings the court also has to take into account Article 6.  Judge Haughton also noted the seriousness and far reaching effects of an interim barring order, and its relationship with Article 8 of the Convention, which protects privacy and family life.  District Court issues likely to be informed by European Court of Human Rights and the European Convention include placing children in care, access issues in respect of children placed in care, the representation of children in proceedings and expert reports in cases involving children.  By way of practical example this writer was successfully able to utilise a European Convention decision from the UK for the appointment in the District Court of an advocate for a vulnerable adult in the context of childcare proceedings.  This application was acceded to by the District Court, an advocate was appointed, and in doing so the courts cited the necessity under European Convention law to ensure the rights of parents in childcare proceedings are protected under Articles 6 and 8 of the European Convention.


    Conclusion:

    Sections 2 and 4 of the 2003 Act apply in the District Court.  Consequently decisions of the European Court of Human Rights are now relevant in public and private law cases dealt with in this court.  The District Court must also interpret legislation in a manner harmonious with the State’s obligations under the ECHR.  This it must do, however, “insofar as is possible” and “subject to the rules of law relating to interpretation and application”.  No remedy is available in the District Court for a breach of an ECHR right.  The effectiveness of the ECHR Act in the District Court has many limitations.  Perhaps its greatest impact has been symbolically.  Indeed, as Judge McKechnie in the second Foy judgment suggested, all courts have a right to expect that the Act of 2003 could be quite a powerful instrument for change and for bringing our law into line with the changing values and the more tolerant and inclusive ethos of the greater European community of which we are a part.  In the utilisation of case law from the European courts, and indeed from the Superior courts in which convention law been relied upon, the District Court can through education, awareness raising and legal engagement with the European Convention play a valuable role in ensuring that rights are protected on the front line and in areas of law which have a great impact on the daily lives of our citizens.

    Gareth Noble is the head of our Judicial Review Department.


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