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

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.