From the Report of the Constitution Review Group, Articles 40 - 44, starting at page 214:

- the experience of almost sixty years has demonstrated that Articles 40-44 contain flaws and are in need of revision.

In the first place, the list of rights expressly protected by the Constitution is, by contemporary standards, incomplete. In some respects, this should come as no surprise, because the major international human rights documents - such as the Universal Declaration of Human Rights, the European Convention on Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic and Social Rights - were drafted well after the Constitution came into force. Thus, even a right which is virtually universally recognised as fundamental in a civilised society - such as the right to travel (whether within the State or abroad) - was not expressly protected by the Constitution as originally enacted. The right to travel is now protected in the context of Article 40.3.3°, but it is scarcely satisfactory that such an important right does not receive general constitutional protection.

Secondly, some of the difficulties presented by an incomplete list of rights have been ameliorated by the doctrine of unenumerated personal rights in Article 40.3.1°. A comparison of the language of Article 40.3.1° with that of Article 40.3.2° suggests that the drafters never intended that the list of rights expressly enumerated by the Constitution would be exhaustive. Since the decision of Kenny J in Ryan v Attorney General [1965] IR 241, the courts have recognised as many as twenty 'unenumerated' personal rights which fail to be protected by Article 40.3.1°. These rights include the right to earn a livelihood, the right to privacy and the right to found a family. Some of the rights protected under this rubric might well be considered to be but extensions of rights necessarily by other provisions of the Constitution (for example freedom to communicate might well be thought to be an aspect of the right of free speech in Article 40.6.1°.i), but it is difficult to find obvious textual justification in the case of some of the other unenumerated personal rights (for example the right to privacy). While the development of the unenumerated rights doctrine has in many respects proved to be beneficial, unease has been expressed in many quarters that the language of Article 40.3.1° - which simply enjoins the State to respect and, as far as practicable, by its laws to defend and vindicate the 'personal rights; of the citizen - offers no real guidance to the judiciary as to what these personal rights are. The experience of thirty years or so since Ryan has demonstrated that there does not appear to be any objective method of ascertaining what these personal rights are.

Thirdly, the Constitution's qualifying clauses require an overhaul. With the exception of rights such as freedom from torture and slavery (which Articles 3 and 4 of the European Convention on Human Rights declare to be absolute), there are few rights - however fundamental - which can be regarded as absolute or not subject to qualification. Experience has shown that the fundamental rights provisions of Articles 40-44 do not adequately deal with this issue. Some rights are described in absolutist language (for example the reference in Article 41.1.1° to the 'inalienable and imprescriptible rights' of the family), whereas other rights are expressed in highly qualified form (for example the rights of free speech, association and assembly in Article 40.6.1°). This drafting has undoubtedly caused the courts difficulties, a point well illustrated by Murray v Ireland [1985] IR 532. In this case the plaintiffs were husband and wife who were serving life sentences for murder. They claimed that the absence of facilities for conjugal relations meant that they were denied the right to start a family, a right which they maintained was, by virtue of Article 41.1.1° an 'inalienable and imprescriptible' right of the family. Their claim was rejected by the High Court (and subsequently, on appeal, by the Supreme Court) but only on the basis of an interpretation of Article 41 which deviated from the strict language of the text. In the words of Costello J:

The power of the State to delimit the exercise of constitutionally protected rights is expressly given in some Articles and not referred to at all in others, but this cannot mean that where absent the power does not exist. For example, no reference is made in Article 41 to any restrictive power, but it is clear that the exercise by the Family of its imprescriptible and inalienable right to integrity as a unit group can be severely and validly restricted by the State when, for example, its laws permit the father to be banned from the family home or allow for the imprisonment of both parents of young children.

These difficulties are also present in the provisions dealing with property rights. On the one hand, Article 40.3.2° provides that the State, inter alia, guarantees by its laws to protect the individual's property rights 'as best it may from unjust attack' and 'in the case of injustice done' to vindicate these rights. On the other hand, Article 43.2.2° provides that the exercise of property rights may be 'delimited by law' with a view to 'reconciling their exercise with the exigencies of the common good.' These two different tests have caused the courts considerable difficulties in deciding whether particular legislation restricting such rights is or is not valid. Of course, the drafting of any qualifying clause is something which requires careful attention. It may, for example, prove to be impossible to draft a general qualifying clause which applies to all constitutional rights. However, the Review Group has been impressed by the qualifying language used by the European Convention on Human Rights and some of its suggestions in respect of the fundamental rights area have been influenced by the European Convention on Human Rights and some of its suggestions in respect of the fundamental rights area have been influenced by the text of the Convention and the case law which it has generated.

Conclusion

While the Review Group is struck by the general sophistication of Articles 40-44 and recognises that, by the standards of the day, they represented a far-sighted attempt to improve the method of protecting fundamental rights against legislative and executive attack, nevertheless there are three key features of these provisions which require attention, namely the incomplete nature of the rights protected, the development of the unenumerated rights doctrine and the varying language of the clauses which qualify both the enumerated and unenumerated rights protected by the Constitution. It is on these issues that the Review Group focuses its attention.

whether the Constitution's fundamental rights provisions should be replaced by the European Convention on Human Rights and Fundamental Freedoms

The entry into force of the European Convention on Human Rights and Fundamental Freedoms (ECHR) in 1953 has been undoubtedly the greatest achievement of the Council of Europe. The convention was promulgated, of course, as a direct response to the Holocaust and the atrocities of World War II and is a European development of the UN Declaration of Human Rights in 1948. At the time, most Western countries considered that, with relatively few exceptions, their legal systems matched up in every respect with the guarantees of the ECHR. One key innovation of the ECHR was that it permitted the right of access of individual citizens to an international court, namely, the European Court of Human Rights, which could hear such complaints against contracting states. This right of petition was, however, conditional on the contracting states permitting their citizens to take such cases. At first, states were slow to do so and, but the entry into force of the ECHR in September 1953, Ireland and Sweden were the only states permitting such petitions. In time, nearly all other contracting states came to permit such petitions (for example, Germany 1957, the United Kingdom 1965 and France 1975.) By May 1996 thirty-three states had ratified the ECHR with all of them permitting the right of individual petition. A further six states have signed the ECHR subject to ratification.

The potential of the ECHR has gradually developed over time. By the end of the 1960's the European Court of Human Rights was delivering only two or three judgments a year, but by the 1990s the volume of cases referred each year to the court was being measured in hundreds. With the increasing prestige and authority of the ECHR and the European Court of Human Rights, there came an increasing pressure in many countries to transpose the convention into domestic law. It may be noted that this pressure was most marked in countries with an essentially dualist tradition (such as Sweden and the United Kingdom) whose legal system did not otherwise provide for judicial review of legislation. Thus, in the last few years both Iceland (1994) and Sweden (1995) have taken the step of formally incorporating the ECHR as part of domestic law.

This problem did not, by and large, arise in monist countries because of the primacy afforded to international treaties (such as the ECHR) over domestic law by the legal systems of those countries. In the Netherlands, for example, the courts enjoy no power to declare a law to be inconsistent with the Constitution, but they may declare the law to be inconsistent with the ECHR on the basis that treaty law takes precedence in the case of conflict over domestic law.

methods of incorporating the ECHR into domestic law

Before considering the arguments for and against incorporation, something should be said about the possible means by which any such incorporation might take effect. If the ECHR were to be incorporated into domestic law so that it would have superior effect to any legislation or, indeed, to the Constitution itself, the only feasible method would be by way of specific constitutional amendment. Ordinary legislation would not suffice for this purpose. If the Constitution were to be amended, any such amendment might take two forms. The first method would be to replace the existing fundamental rights provisions with the text of the ECHR. The other method might follow the lines of the amendment to the Swedish Constitution which took effect in January 1995. Chapter 2, section 23 of that constitution now provides:

No law or other regulation may be enacted contrary to Sweden's obligations as follow from the European Convention on Human Rights.

The arguments for incorporating the ECHR into Irish law

The major argument for incorporation is that it would enable litigants to rely on the provisions of the ECHR before the Irish courts. The arguments for incorporation have been fully considered in other jurisdictions, most recently in 1993 by the report of an expert committee which had been required by the Icelandic Minister for Justice to consider this question: see Stefánsson and Adalsteinsson 'Iceland' in Scheinin (ed), Incorporation and Implementation of Human Rights Norms in the Nordic and Baltic Countries (Martinus Nijhoff, 1996). In their report (Frumvarp til laga um mannréttindasáttmala Evrópu, 1993), a majority of the committee noted that when Iceland first ratified the ECHR it had been assumed that the provisions of Icelandic law were in conformity with it. With the evolution of the jurisprudence of the European Court of Human Rights, the incompatibility between the ECHR as judicially interpreted and Icelandic domestic law became more and more evident, thus strengthening the case for incorporation. The committee also advanced other reasons:

• the rights of the individual would be additionally protected
• some provisions of the ECHR were more detailed than those in domestic Icelandic law and in some cases they filled in gaps in Icelandic legislation
• parties to litigation concerning human rights would be able to invoke the Convention and cite decisions of the European Court of Human Rights as direct precedents in the Icelandic courts
• individual litigants would be able to secure judicial rulings in Iceland on various matters which otherwise would have to be referred to the European Commission on Human Rights and the European Court of Human Rights
• incorporation would involve an increased awareness of, and respect for, human rights among the general public, the judiciary, lawyers and those involved in the preparation of legislation
• incorporation would be in line with the general trend in Europe and would bring Icelandic legislation into line with that of countries with which Iceland has most contact. This in turn would lead to increased international trust in the respect for human rights shown by the Icelandic government.
• an indirect consequence of incorporation would be that it would tend to promote a broader interpretation of the Icelandic constitution to ensure (where appropriate) that there was consistency with the decisions of the European Court of Human Rights.

The majority Report was accepted by the Icelandic Parliament and legislation incorporating the ECHR came into force in Iceland in May 1994. In the context of Ireland, not all of these arguments would be regarded as compelling. In the first place, the replacement of the existing fundamental rights provisions by the ECHR would lead to diminution in some individual rights, as some rights (for example personal liberty in Article 40.4) are more extensively protected by the provisions of the Constitution than under the equivalent provisions of the ECHR. Secondly, incorporation would not, as such, fill any gaps at constitutional level, since every substantive right afforded by the ECHR is either expressly protected by the Constitution or has been recognised by the courts as an unenumerated right under Article 40.3.1°. At the same time, incorporation by replacement would lead to new gaps in such areas as the right to jury trial and the guarantee that the State shall not endow any religion. Moreover, if the Review Group's recommendations in relation to the fundamental rights provisions of the Constitution were to be accepted, the gaps in some areas between the higher level of protection afforded by the Constitution in comparison with the ECHR will become even greater. This will be especially true in such areas as equality before the law and the rights of children. Finally, the replacement of the fundamental rights provisions of the Constitution by the text of the ECHR would represent too great a change in our legal system and one which would not be warranted by any existing flaws in those provisions. It would mean jettisoning almost sixty years of well established and sophisticated case law. As we have noted, incorporation may represent a very desirable option in those advanced countries which - unlike Ireland - did not previously have an advanced system of judicial review of legislation. The Review Group considers that in the present Irish context it is much better to build on and improve the existing fundamental rights provisions of the Constitution (including, where necessary, liberally drawing on some of the ECHR text for this purpose) rather than opting for direct incorporation of the ECHR. Ireland's already good record before the European Court of Human Rights would be likely to be even further improved if the Review Group's recommendations with regard to amendment of the fundamental rights provisions were to be accepted.

Conclusions

Having regard to the provisions of Article 40, the Review Group does not favour the direct incorporation of the ECHR in the Constitution. It has instead decided that it would be preferable to draw on the ECHR (and other international human rights conventions) where:

i) the right is not expressly protected by the Constitution

ii) the standard of protection of such rights is superior to those guaranteed by the Constitution; or

iii) the wording of a clause of the Constitution protecting such right might be improved.

This requires a section by section analysis of the fundamental rights provisions of the Constitution and it is to this task that the Review Group now turns.