Convention as Persuasive Authority

Question 1

What is Persuasive Authority?

Answer 1

Indirect use of the Convention in the Irish courts

Argument = Irish law should be interpreted and applied in a manner based on what the ECHR has said is necessary for the proper protection of human rights
Powerful and effective

Litigant can rely on persuasive authority to argue that an Irish statute should be interpreted in a certain way because there would be an ECHR case to back that proposition up

2003 Act facilitates this in 2 ways

Question 2

Section 2: statutory obligation on the courts to interpret statutory provisions and rules of law in accordance with the Convention.

Answer 2

Mandatory obligation on an Irish court = has to take into account the ECHR

i.e. must aim to respect Convention rights and case law when interpreting/applying Irish statutes and common law

Question 3

Is the obligation absolute?

Answer 3

No

“subject to rules of law relating to… interpretation
i.e. the ordinary canons of statutory construction.

       obliged by the double construction rule 

       e.g. if Constitution requires different interpretation, that 
       must be favoured.  

       GT v. KAO and Attorney General [2007] 

Obligation ONLY to interpret “in so far as is possible”
if reaching Convention compliant interpretation would
make nonsense of statute, no obligation to do so

      O'Donnell v. South Dublin County Council [2015] 
            cannot be manifestly inconsistent with the legislative 
            intention behind the provision

Question 4

Limits:

Answer 4

1. Limited to statute and common law = no relevance to Constitutional interpretation
2. Cannot be used by the court to import, wholesale, Convention rights
   McD v. L
   - could not allow the lesbian couple to be considered a
   de facto family
   - the judge had used s 2 to autonomously apply Article 8
   of the Convention

Question 5

Section 4: requires courts to take “judicial notice” of the Convention and related case law.

Answer 5

Mahon Tribunal v. Keena [2010]

       Obligation to have regard to relevant Convention 
       jurisprudence, but courts not bound or limited as if by 
       precedent 

McB. v. L.E. [2010]

       Obligation only arises where there is “clear and constant 
       jurisprudence” from the courts

Foy v. An t-ard Claraitheoir [2007]
express invocation of s 4 is rare but is becoming more
common
Or is it just that there is a greater acceptance of basic
human rights guidance now?

Question 6

Case law:

Answer 6

Reality:

The use of ss 2 and 4 is now an everyday feature of Irish legal practice

Has led to some profound changes in terms of the protection of rights

Question 7

DPP v. Gormley and White [2014] *

Answer 7

Scope of constitutional right of access to solicitor defined by reference to Art. 6 case law.

Question = is there a right of access of to a solicitor being present during Garda interrogation

Salduz v. Turkey was taken into consideration
- decisive emphasis was placed on the case law of the ECHR

Question 8

McD v. L [2009]

Answer 8

HC: Hedigan J based his decision on:

1. report by expert witness
2. “contract” between the parties
3. de facto family i.e. that they formed one

SC: he erred in his application of the de facto family

• classic test = welfare of the child is central to decision making
  - underestimated the importance of the blood link and its
  impact on the welfare of the child

Although ECtHR in its Article 8 jurisprudence refers to the concept of a de facto family, it had yet to extend this definition to gay or lesbian relationships
- margin of appreciation for Contracting Parties

The task of interpreting the Convention is thus (ss 2 and 4) one for the ECtHR, not for the national courts

Question 9

Mahon v. Keena *

Answer 9

protection of journalistic privilege under the Constitution defined by reference to Art. 10 case law.

the applicant Planning Tribunal wished to investigate a leak of confidential information to the Irish Times. It obtained an order from the High Court pursuant to s. 4 of the Tribunal of Inquiries (Evidence)(Amendment) Act 1997 directing a journalist and editor of that newspaper to answer questions posed by the Tribunal intended to unveil the source of documents published in the Irish Times.

SC: relevant sections of the Tribunals of Inquiry legislation had to be interpreted in a manner compatible with Convention obligations

Went on to consider the Article 10 and relevant case law

Based on this case law, the Court held that an order under s. 4 compelling the respondents to answer questions for the purpose of identifying their source could only be justified if there was an overriding requirement in the public interest.

Could not be said to apply in this case