Section 5 of the 2003 Act Flashcards
Section 5
HC or SC can make Declarations of Incompatibility
S 5(2)(a) Does NOT affect the validity, continuing operation or enforcement of the statutory provision or rule of law
“minimalist and dilute in the extreme”
Also, how is this a way of incorporation when the ECHR itself doesn’t declare laws incompatible, it decides on individual violations
Circumstances in which a declaration will be granted:
- Only for a statutory provision or rule of law (common law rule)
- Court must be satisfied that the law is incompatible = in breach of one of the State’s negative or positive obligations
- Only available where NO OTHER REMEDY IS ADEQUATE AND AVAILABLE”
Case law: If a valid constitutional challenge to the law can be put forward, the court will not grant a s. 5 declaration
Carmody v. Minister for Justice *
Kerry farmer = s 2 of the Criminal Justice Act 1962: only entitled to legal aid
for a solicitor, argued that would not be effective representation
SC = constitutional issues must be considered first, before considering
Convention issues.
If constitutional remedy, cannot consider relief under s. 5.
- SC granted constitutional right to both, so no need to consider s 5
Law Society v. Competition Authority [2006]
- applicant brought judicial review proceedings: infringed the right to
choose one’s own lawyer and to basic fair procedures
- granted an order of certiorari
- No declaration of incompatibility as order of certiorari = adequate remedy
X. v. Minister for Justice [2010]
-“Convention only comes into play where the Constitution
does not provide an adequate remedy”.
- ie the ECHR is a failsafe mechanism in, what should be,
rare cases
Effects of a Declaration of Incompatibility:
s. 5(2) = shall not affect the validity, continuing operation or enforcement” of the legal provision.
THUS, declaration is completely distinct to declaration of unconstitutionality, which renders legislation void ab initio
Murphy v. Attorney General [1982] I.R. 241.
Likewise, it does not prevent a litigant going on to the ECtHR itself to further litigate the issue.
REAL CONSEQUENCE 1 = s. 5(3) TAOISEACH COPY TO OIREACHTAS
This provides that Taoiseach shall cause “a copy of any order containing a declaration” to be laid before both houses of Oireachtas within 21 days - so at the point the politicians COULD decide if they want to do something about it
No further obligation arises, e.g. to consider the law, to make changes, etc.
Doherty v. SDCC [2007] IEHC 4.
REAL CONSEQUENCE 2 = CAN MAKE APPLICATION FOR COMPENSATION
Where declaration made, party to proceedings may make “an application in writing to the Attorney General” for compensation for injury, loss or damage suffered as a result of incompatibility.
The Government has complete discretion to decide to
award ex gratia
payment of compensation: s. 5(4).
This is tied by s. 5(5) to the amount that would be
awarded by ECtHR in
just satisfaction, unlike damages under s. 3.
Are they a good thing?
S v. Minister for Justice [2011] = Hogan J: “species of booby prize”
A, B and C v. Ireland [2010] = ECHR: could not be considered an effective remedy
Weakness can be explained by the fact that the remedy was copied directly from s. 4 of the UK’s Human Rights Act 1998.
- Designed for the need in that jurisdiction to respect the
principle of parliamentary sovereignty.
- Out of place in Irish context.
BUT it has allowed for some redress and the eventual creation of new laws as seen in Foy and Donegan
Foy v. An t-Ard Cláratheoir [2007]
- first declaration of incompatibility
- post-operative male to female transgender person, sought to amend the sex on the Register of Births and Deaths
- the Civil Registration Act 2004 was not sufficient for the needs of the applicant, she argued this was unconstitutional
- McKechnie disagreed - BUT re compatibility
- considered Goodwin v. UK
- under Article 8, State was under positive obligation to provide legal recognition of applicant’s gender - Thus concluded that the State could be under such an obligation re the 2004 Act
- THUS GRANTED A DECLARATION OF INCOMPATIBILITY
- Gender Recognition Act 2015 passed by the Oireachtas
Donegan v. Dublin City Council [2008]
first declaration of incompatibility re s 62 of the Housing Act 1966
HC: absence of any forum capable of independently ruling on these matters (violation of his tenancy agreement and alleged anti social behaviour) violated applicant’s right to enjoy his home under Article 8
Ultimately led to enactment of Housing (Misc. Provisions) Act 2014.
Dublin City Council v. Gallagher [2008]
- local authority denied applicant’s right to succeed his mother’s tenancy
- incompatible with Article 8, again related to Section 62 of the Housing Act 1966
- declaration of incompatibility granted
Carmody v. Minister for Justice [2010]
Plaintiff was Kerry farmer who had been prosecuted in the District Court
Plaintiff applied for legal aid – solicitor and barrister
Said that was necessary given the complexity and volume of charges he faced
Issue he faced was a particular statutory provision = legal aid only provided in DC for solicitor (not also the barrister that he needed)
Plaintiff then brought this case claiming that this section of the 1962 act was unconstitutional and contrary to Article 6 of the Constitution
Supreme Court confirms that constitutional issues must be considered first, before considering Convention issues. If constitutional remedy, cannot consider relief under s. 5.
If the court goes on to find that the statutory provisions are unconstitutional then that is the end of the case – because that would end the issue between the parties, the issues at hand would be invalid
SO, IF A DECLARATION OF UNCONSTITUTIONALITY IS GRANTED THAT IS THE END OF THE CASE
BUT if the law is constitutional, it is open to the court to go on to see whether they are compatible with the ECHR and issue a declaration under S5
