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If we think politics and the legal system in the UK are far too closely enmeshed, look over the pond.

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Previous pieces about Judicial overreach by the President of the ECHR

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Judges and legislation

Sir, – I read, with some alarm, the comments by Justice Síofra O’Leary, president of the European Court of Human Rights, concerning the Irish courts’ “interpretation of legislation and rules” for conformity with the European Convention on Human Rights (“Judge queries Irish courts’ engagement with European human rights convention”, News, May 28th). She scolded our judiciary as they do not “creatively extend or amend existing legislation”. She then attacked this lack of judicial activism as bolstering “national parliamentary sovereignty”. If the judge wishes to amend legislation, then she should seek a democratic mandate. It is important that we maintain the separation of powers between the various areas of government: parliamentary, executive and judicial.

As somebody who was heavily involved in drafting the Belfast Agreement’s Human Rights Section and in that context, pushed hard for the incorporation of the European Convention on Human Rights into domestic legislation in both Ireland and the UK, I find the judge’s statement injurious to the long-term interests of defending the convention. The convention is a key element in the human rights underpinning of that historic agreement. Statements, like those attributed to Justice O’Leary, give ample ammunition to those who wish to undermine the basic human rights guarantees contained in the convention.

Such statements undermine public confidence in institutions such as the European Court of Human Rights and in the convention itself. They are too important to be endangered by judges seeking to encroach on the rightful remit of parliaments. – Yours, etc,

Dr RAY BASSETT,

(Former Irish diplomat),

Castleknock,

Dublin 15.

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Judge queries Irish courts’ engagement with European human rights convention

Language used by national courts ‘counts’, says senior European judge

MARY CAROLAN Legal Affairs Correspondent

The president of the European Court of Human Rights (ECtHR) has voiced concern about the nature of the Irish courts’ engagement with the European Convention on Human Rights and decisions of the Strasbourg-based court.The Irish courts do interpret laws or rules for their conformity with the convention but “will not creatively extend or amend existing legislation”, Ms Justice Síofra Ó Leary said.

In these “turbulent” times”, language used by national courts “counts”, she also said.

Signs of “perceived pushback against external judicial intervention” can be quickly harnessed by other courts or authorities, not to safeguard convention rights “but to bolster the language of national or parliamentary sovereignty, national or constitutional identity and the illegitimacy of bodies perceived as encroaching on either”.

“When such discourse takes hold, courts – but particularly international courts – are sitting ducks.”

Her comments come amid hostility within elements of the UK government toward the ECtHR and the convention following judgments on issues ranging from asylum rights to environmental obligations.

Ms Justice O’Leary, the outgoing president of the ECtHR, was addressing an audience including senior Irish and international judges at a special commemorative ceremony in the Four Courts marking the centenary of the establishment of Ireland’s independent courts system.

Ireland today vaunts a court system which provides, overall, effective access to justice and balanced protection of individual rights and the general interest, run by independent and impartial judges, she said.

The EU treaties and secondary legislation form part of Irish law but the convention was not considered part of domestic law for many decades and is still not directly applicable within the national legal order, she said.

As part of the new constitutional settlement stemming from the Belfast Agreement, the convention was incorporated subject to very deliberate terms set out in a 2003 Act.

It is “deeply understood” the responsibility for ensuring rights are practical and effective is a shared one, with the primary responsibility lying in each jurisdiction with national authorities, including national courts, she said. Central to the effective functioning of the convention system here is “positive and engaged” interaction between Ireland’s Constitution and Europe’s convention.

The main measure of the embeddedness of the convention across the domestic systems of the 46 Council of Europe states is the number of applications pending against a given State per 10,000 inhabitants, she noted. There are just two applications against Ireland, out of 65,500, making Ireland’s ratio 0.04, 45th lowest, just 0.01 off the UK.

The “paucity” of applications against Ireland must reflect both the embeddedness of convention standards in this jurisdiction and a “high degree of confidence” in the independence and operation of the Irish court system, she said.

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