The ECHR Act 2003: Declarations of Incompatibility

On Saturday June 29th I spoke at UCD Human Rights Network’s conference on Ireland the ECHR: 60 Years and Beyond. My paper related to the declaration of incompatibilty in Ireland under s. 5 of the ECHR Act 2003, which I characterised in the paper as a remedy that fits awkwardly within the Irish constitutional and public law structure. The abstract for my paper is below and you can view the powerpoint here: UCDECHR FdL.

‘Declarations of Incompatibility under the ECHR Act 2003: A Workable Transplant?’

The ECHR Act 2003 provides for declarations of incompatibility as ‘last resort’ remedies for incompatibility with the ECHR. Drawing heavily on declarations of incompatibility under the Human Rights Act 1998, this particular form of declaratory remedy is tailored towards a constitutional architecture and context that is quite different to that found in Ireland. Indicative of the move towards new commonwealth constitutionalism, these declaratory remedies are generally intended as dialogic ‘nudges’ to democratically elected branches of government, contemporaneously bounding judicial activity and revitalising constitutional conceptions of rights. In the Irish context, however, these remedies seem incongruent with the constitutional and political tradition of rights protection. This raises an important question about the value of DOIs under the ECHR Act 2003. In this paper I argue that DOIs are not necessarily inappropriate to the Irish context but that the surrounding context means that, in contrast with much scholarship and political opinion in the UK, they should be strictly confined to situations of last resort with an expansive approach to interpretation being preferred. This would, I argue, simultaneously improve effective rights protection in a meaningful way, be a constitutionally appropriate approach to DOIs, and increase their symbolic (and, possibly, political) weight when granted.