ECHR Problem Question Flashcards
(10 cards)
What is the core legal issue in Michael’s case?
Whether the High Court can rely solely on Article 8 ECHR to compel Michael to disclose Paul’s whereabouts and grant Anne access, without reference to Irish constitutional law.
What does Article 29.6 of the Irish Constitution state about international agreements?
No international agreement is part of Irish domestic law unless determined by the Oireachtas.
How was the ECHR incorporated into Irish law?
Through the European Convention on Human Rights Act 2003, at a sub-constitutional level.
What is Section 2 of the ECHR Act 2003?
It obliges courts to interpret Irish law in a manner compatible with the ECHR ‘insofar as possible.’
Can the ECHR be given direct effect in Irish law?
No. Irish courts cannot apply ECHR rights autonomously without linking them to domestic law or constitutional provisions (McD v L [2009]).
Why was the High Court’s reliance on Article 8 ECHR problematic in Michael’s case?
Because it gave Article 8 direct effect without grounding it in Irish statutory or constitutional law, contrary to McD v L and O’Donnell v South Dublin CC.
What is the significance of McCauley v Judge Fergus [2018]?
It reinforces that judicial review cannot rely on ECHR rights alone unless grounded in Irish law.
Can Article 8 of the ECHR override the Irish Constitution?
No. The Constitution remains supreme; ECHR rights operate only ‘insofar as permitted by the Constitution.’
What is a declaration of incompatibility under the 2003 Act?
A formal finding that a statute conflicts with the ECHR, without invalidating the statute.
What would be a valid ground for Michael to appeal the High Court’s decision?
That the court erred in giving direct effect to Article 8 ECHR without considering domestic law or the Constitution.
