Constitution Review Group

Rejected direct incorporation of ECHR

Alternative models of giving effect to Ireland's obligations under Article 1 and 13 ECHR

Swedish model - s.23 of Swedish Constitution prohibits enactment of laws contrary to Sweden's ECHR obligations

46 MS

Ireland ratified in 1953 and allowed individual petitions to ECtHR

Article 1 ECHR

'The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.'

Leaves implemntation of this obligation to MS

No direct incorporation of ECHR as yet but indirectly through Article 6 TEU (introduced by 2007 Treaty of Lisbon)

1.   EU Charter of Fundamental Rights has the same legal value as the Treaties and includes ECHR equivalent rights

2.   The Union shall accede to the ECHR - not yet effected

3.   Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union's law.

Art. 40-44 Enumerated rights

29. 6 No international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas.

Judicial notice of ECHR caselaw

Needs to be 'clear and consistent' caselaw

O'Donnell v S. Dublin CC [2015] SC MacMenamin J.

1.McD v L [2007] IESC 81

Article 8 ECHR de facto family claim

HC reversed by SC

2.J.McB v L.E. [2010] IESC 48

CJEU reference by SC C-400 -No violation of Art. 24 Charter

SC Art. 8 ECHR S.2 and S.4 interpretative obligation only - ECtHR case law - no inconsistency with Irish law

3. M.D. (Minor) v Ireland AG and DPP [2012] IESC 10

No breach of Art. 40.1 or 38.1 Constitution

ECHR claims (Art. 8, 6 and 14) rejected as no direct effect