My new article, “Declarations of Incompatibility Under the ECHR Act 2003: A Workable Transplant?” will be published in the Statute Law Review in 2014, but is alead available on advance access. Here is the abstract:
Ireland’s European Convention on Human Rights (ECHR) Act 2003 has not had a very significant impact on domestic rights-related jurisprudence. This is, perhaps, not entirely surprising given that the Irish Constitution—Bunreacht na hÉireann—protects fundamental rights and that incompatibility with constitutional rights is fatal to legislation, with superior courts being constitutionally empowered to strike such law down. Thus, rather than a political constitution, Ireland has a ‘legal’ constitution in which courts play an important role in rights protection. In spite of that, the Declaration of Incompatibility—designed to maintain constitutional structures while protecting rights within a political constitution—was transplanted from the Human Rights Act 1998 into the ECHR Act in Ireland. This paper examines the workability of that transplantation. It concludes that the Irish Declaration of Incompatibility fits awkwardly into the Irish politico-legal culture of rights, so that it really must be a remedy of last resort given its patent inferiority compared with constitutional remedies for rights infringements and, further, that if it is going to be at all effective even in cases of last resort, a fundamental shift in political cultures and structures relative to rights is required.
My latest article has just been published in a special issue of the Irish Journal of Legal Studies. The piece, co-authored with my Durham colleague Laura Graham, can be accessed here and is entitled “Impossible Floodgates and Unworkable Analogies in the Irish Abortion Debate”. The abstract is as follows:
Twenty years after the Supreme Court’s decision in Attorney General v X.  1 I.R. 1 confirmed that there is a limited constitutional right to access abortion in Ireland under Article 40.3.3˚ of Bunreacht na hÉireann, the Irish government has passed the first piece of legislation that would regulate its availability. The debate about the introduction and form of this legislation is rife with floodgate arguments, suggesting (either implicitly or expressly) that the introduction of abortion legislation within current constitutional boundaries would only be a starting point, following which so-called “abortion on demand” would flow. In this article we address three of the core legally-grounded floodgates arguments that are made, outlining how these fears are unfounded, disingenuous, and, more particularly, how comparisons to the British abortion regime are unhelpful, by reference to the constitutional position in Ireland. These arguments relate to: the lack of a time limit on the availability of abortion; suicidal ideation; and the possibility of patient-doctor collusion. This article aims to show that these arguments have no current legal purchase within the Irish context. Rather, the fears and concerns represented by these floodgates arguments are already managed by the very limited constitutional availability of abortion in Ireland. As such, we argue, these arguments ought not to be given undue weight in the debates, which should instead focus on introducing a clear, workable and effective legislative framework for women in Ireland to exercise their right to access an abortion where they wish to do so in a manner that reflects the constitutional position.
The IJLS is an open access journal published fully online by my former colleagues in University College Cork Faculty of Law.