European Convention on Human Rights Act 2003: Five Years On Aspects of the impact of the ECHRA on the right to a fair trial and the right to an effective remedy Noeline Blackwell

European Convention on Human Rights Act 2003 ECHRA s.2. —(1) In interpreting and applying any statutory provision or rule of law, a court shall, in so far as is possible, subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State’s obligations under the Convention provisions. -(2) This section applies to any statutory provision or rule of law in force immediately before the passing of this Act or any such provision coming into force thereafter.

European Convention on Human Rights Act 2003 ECHRA s.3.(1) Subject to any statutory provision (other than this Act) or rule of law, every organ of the State shall perform its functions in a manner compatible with the State’s obligations under the Convention provisions

Access to the courts and representation Extract from Civil Legal Aid Act 1995 – S.27(1) “ In this Act "legal aid" means representation by a solicitor..... or barrister......in any civil proceedings to which this section applies....” S.27(2) “This section applies to all civil proceedings other than those relating to designated matters in respect of which there is not for the time being an order in force under subsection (10) of section 28— ( a ) conducted in the District Court, the Circuit Court, the High Court or the Supreme Court, or ( b ) conducted in any court or before any tribunal for the time being prescribed by the Minister, with the consent of the Minister for Finance, by order under this section,....”

Access to the Courts and representation Right established. – Golder v UK 1975 – Airey v Ireland 1979 – O’ Donoghue v Minister for Justice Equality & Law Reform Right to lawyer of choice. – Croissant v Germany 1999 ECtHR – Carmody v Minister for Justice Equality & Law Reform 2005 – Law Society v Competition Authority 2006

Access to the Courts and representation Excluded areas – Findlay v UK 1997 – Steel & Morris v UK 2005 – McVicar v UK 2002 – Magee v Farrell 2005 Irish High Court (under Appeal) – Main (R) v Minister for Legal Aid UK High Court 2007 Coronors Bill 2007.

Access to the court for particularly vulnerable groups – Greater safeguards required for those more vulnerable – Migrants – right to a fair hearing. Proposal to limit migrant rights in the forthcoming IRP Bill – Lack of access to services including legal aid except in proposals to deport; – Further restrictions on right to apply for judicial review; – Proposed sanctions on lawyers

Access to the court for particularly vulnerable groups Children – T v UK & V v UK 2000 – “full account of his age, level of maturity and intellectual and emotional capacities and that steps are taken to promote his ability to understand and participate in the proceedings” – Child’s right to participate/ guardian ad litem systems. – Public law proceedings including care proceedings – Private law proceedings

Effective Remedy Delay – Barry v Ireland – Doran v Ireland Enforcement of judgments. – Ignaccolo-Zenide v Romania 2001 – Wasserman No.2 v Russia 2004 – Bosphorus v Ireland 2006

Retrospectivity Application of ECHRA to events before 1 Jan 2004 Fennell v Dublin Corporation Clifford v Minister for Education and Others. Carmody v Minister for Justice Equality & Law Reform