Irish Constitution offers 'superior protection' of rights

THE IRISH Constitution gives superior protection to human rights than that given by the European Convention on Human Rights, Ms Justice Mary Laffoy told a conference at the Law Society of Ireland at the weekend.

Presenting a paper on human rights protection and the role of the Irish Constitution, Ms Justice Laffoy said the Constitution remained “the primary and most effective source” for the protection of such rights.

“In circumstances in which the protection of human rights afforded by the Constitution can be invoked, the means of redress of violations of those rights and the remedies available, in reality, afford superior protection than is available under the [European Convention on Human Rights] Act of 2003 or under the Convention generally,” she said.

She highlighted case law in which declarations of incompatibility with the European Convention on Human Rights were given by the High Court in relation to certain legislation. All this did, she said, was “invite the Oireachtas to change the law”.

“There is nothing the Courts can do to compel or encourage the legislature or executive to deal with the outcome of a declaration of incompatibility,” the judge said.

She also queried whether, “if the State doesn’t put matters right”, action might be taken under section three of the 2003 Act, which allows a court to award damages to an individual who has suffered where no other damages are available to them.

The conference, ‘Promoting and Protecting Human Rights in Ireland’, was hosted by the Irish Human Rights Commission in conjunction with the Law Society of Ireland. Over 20 speakers contributed, including Dr Síofra O’Leary from the Court of Justice of the EU, Michael O’Boyle BL, deputy registrar at the European Court of Human Rights and Emily Logan, Ombudsman for Children.

Its opening session was chaired by Mr Justice William McKechnie, who spoke of the critical importance of human rights.

Echoing the strengths of the Constitution highlighted by Ms Justice Laffoy, Mr Justice Gerard Hogan described the remedies available under the Constitution as being “a bit like nuclear weapons”.

“In a way they can’t be used,” he said. If in every single case of a declaration of unconstitutionality everything done on foot of the law would have to be undone, there might be a situation whereby “judges would have a natural recoil from making that finding”, he said.

If it was possible to separate “vindicating the right on one hand and potentially catastrophic consequences on the other”, there might be a greater impetus “to take the steps which in other circumstances they wouldn’t”.

Responding to a question from the floor on the religiosity of the Constitution, Mr Justice Hogan said we had “beaten ourselves up a little too much” on the topic. “We have assumed our situation is unique, but we are nothing compared to the constitutions of other [EU] member states,” he said.

Presenting a paper on education and human rights, Dr Dympna Glendenning BL, said despite the buttressing of basic education in constitutional and human rights law, “the Irish State is failing to discharge this basic right” to many vulnerable children, including Traveller children, an estimated 45 per cent of whom do not finish primary education.

Many supports were severely cut back recently or dismantled including “swingeing cuts to Traveller education” and the “shelving of the Special Educational Needs Act 2004”, at a time of “generous State funding for private secondary schools” and when third level tuition fees are low.

She asked if such provision reflected the degree of priority set down in international conventions signed up to by Ireland or in the Constitution.