This is a copy of the outline submissions made by the Irish Human Rights Commission to the Supreme Court in the case of Dublin City Council v Fennell heard on 12 April 2005.
OUTLINE SUBMISSIONS MADE ON BEHALF OF THE HUMAN RIGHTS COMMISSION TO THE SUPREME COURT ON 18 MARCH 2005
IN THE MATTER OF SECTION 16 OF THE COURTS OF JUSTICE ACT, 1947
AND IN THE MATTER OF SECTION 62 OF THE HOUSING ACT, 1966 AS AMENDED BY SECTION 13 OF THE HOUSING ACT, 1970
INTRODUCTION
This submission is filed pursuant to the Order of the Court made on the 4th March, 2005 allowing liberty to the Human Rights Commission to appear in the above entitled proceedings. The application for liberty was made pursuant to s8(h) of the Human Rights Commission Act, 2000, which provides that the Commission may, at the discretion of the Court, appear as amicus curiae in proceedings that involve or are concerned with the human rights of any person.
In the course of making the application in this case, the Commission undertook to the Court that its submissions would be as brief as possible and that they would not duplicate the arguments put forward by other parties.
The Court granted liberty to the Commission to appear in respect of the first three questions in the Case Stated and reserved its position in respect of Question 4, directing that the Commission should make a separate submission in relation thereto which it would receive de bene esse.
The Commission does not wish to put forward arguments on behalf of either party but rather to draw the attention of the Court to certain interpretative principles which may assist the Court. In particular, it submits that interpretation of s.2 of the European Convention on Human Rights Act, 2003, should be informed by s.4 of the same Act and by Articles 6, 8 and 13 of the Convention (respectively, the "right to a court", the right to respect for private and family life and the home and the right to an effective remedy before a national authority).
PART 1 – QUESTIONS 1 – 3
These questions address the applicability of the provisions of the European Convention on Human Rights Act, 2003 to the proceedings issued by the Respondent against the Appellant. The questions posed by the Circuit Court in the case stated all involve a determination as to whether the Act applies in respect of events which occurred prior to December 31 2003. It is hoped that these submissions will provide assistance in determining that issue.
THE EUROPEAN CONVENTION ON HUMAN RIGHTS ACT, 2003
Section 2 of the Act provides as follows:
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 relating to such interpretation and application, do so in a manner compatible with the State’s obligations under the Convention provisions.
2(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.
Section 4 provides that:
Judicial notice shall be taken of the Convention provisions and of —
(a) any declaration, decision, advisory opinion or judgment of the European Court of Human Rights established under the Convention on any question in respect of which that Court has jurisdiction,
(b) any decision or opinion of the European Commission of Human Rights so established on any question in respect of which it had jurisdiction,
(c) any decision of the Committee of Ministers established under the Statute of the Council of Europe on any question in respect of which it has jurisdiction,
and a court shall, when interpreting and applying the Convention provisions, take due account of the principles laid down by those declarations, decisions, advisory opinions, opinions and judgments.
It is submitted that s.2 should be read as reflecting the wish of the Oireachtas that laws in the State should be Convention-compliant. The obligation on the Court is to interpret them as being so, having regard to the matters set out in s.4, save where this is not possible. This goes well beyond using the Convention as an aid to resolve ambiguity and will, in some cases, entail a re-examination of statutes previously subjected to consideration by the courts before the entry into force of the Act. The doctrine of stare decisis is itself a rule of law that has to be interpreted in accordance with s.2. Such interpretation requires a hitherto unprecedented focus on Convention principles and jurisprudence.
It is further submitted that the phrase " in so far as is possible " is to be contrasted with the commonly used statutory formula "in so far as is practicable". What is "possible" goes beyond what is "practicable" and requires the interpreting court to make every effort to find a Convention-compliant reading. The approach of the House of Lords in Ghaidan v. Godin-Mendoza [2004] 3 All E R 411, cited at length in the submissions of the Appellant, is urged upon the Court.
The Commission also accepts the general principle that an Act does not apply retrospectively unless there are special circumstances, for example, the change is purely procedural. The Commission notes the argument made by the Defendant/ Appellant, that the change is in fact procedural, in the sense that it does not confer any new right but merely the opportunity to enforce Convention rights in an Irish setting. The Commission respectfully agrees with this submission.
The Commission also submits that the unusual if not unique wording in the Act, "in so far as is possible" must be significant. It may well support a view that the Act ought to be applied retrospectively where it is possible to do so. In that regard, it is submitted that ‘possible’ means implementing the Housing Acts in a way which does not involve a manifest unfairness on any party. Here there is no unfairness. The right exists, the issue is where it is to be enforced – Dublin or Strasbourg. The State is answerable in either forum. The fact that the right is enforced locally is no more or less onerous on the State.
Furthermore, the class of persons who would be affected by retrospectivity is very limited and likely to be small. It is inherently illogical that a person has the entitlement to make the case in Strasbourg but not in Ireland, particularly as the Act is now law in the State.
Insofar as domestic law is concerned, if it were to be considered that retrospectivity could only be applied on a limited basis, it may be appropriate to confine it to cases under the Housing Act, 1966 (as amended) which have yet to be determined.
ARTICLE 6 OF THE CONVENTION
Article 6 of the Convention provides in relevant part:
In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
This Article has been described as embodying the "right to a court" – Golder v United Kingdom 1 EHRR 524 at para. 36. The concept of "civil rights and obligations" (which refers to rights and obligations of a civil character) is an autonomous one and does not depend on the characterisation of the issue in domestic law, although the national legislation is not irrelevant – Konig v. Germany 2 EHRR 170 at paras. 88 and 89. In Le Compte, Van Leuven & De Meyere v. Belgium 4 EHRR 1 the European Court held that the Article may be relied upon by "anyone who considers that an interference with the exercise of one of his (civil) rights is unlawful and complains that he has not had the possibility of submitting that claim to a tribunal meeting the requirements of Article 6(1)."
The protection of Article 6(1) is afforded where an adjudication is to be decisive for the relations in civil law between the parties – Ringeisen v. Austria 1 EHRR 454 at para. 94. This is of relevance in the instant case in that while there appears to be a factual dispute between the parties as to whether the Appellant is in breach of her tenancy agreement (para. 9 of the Appellant’s submissions) the Respondent has chosen a procedure which may determine the relations between the parties without any consideration of the underlying facts.
ARTICLE 8 OF THE CONVENTION
Article 8 provides:
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
It is submitted that the Respondent is correct in asserting that Article 8 does not create a proprietary right. However, the issue of a warrant for possession with the ancillary legal consequence that the Appellant loses any entitlement to be housed is significantly different to ordinary proceedings by a landlord to recover possession of a dwelling. It is further submitted that where a public authority concedes that there is an Article 8(1) interference but seeks to rely on the limitations set out Article 8(2) the basis for so doing must be set out. This in turn would require the court to consider whether
i) the interference was in accordance with law;
ii) if so, whether it was for a specified legitimate purpose
and, if so iii) whether the interference was necessary in a democratic society – the test of proportionality. (Silver v. United Kingdom 5 EHRR 347 at para. 97). This test has been consistently applied by the Strasbourg organs and the United Kingdom Courts. It is now apparent that the principle of proportionality requires that the ‘margin of appreciation’ permitted to national authorities narrows in accordance with the seriousness of the interference with a person’s rights under Article 8 (Connors v. United Kingdom, Judgment 27 May 2004, at para. 86).
ARTICLE 13 OF THE CONVENTION
The Commission further submits that Article 13 of the Convention (which requires that "everyone whose rights and freedoms as set forth in this Convention shall have an effective remedy before a national authority") is particularly relevant to the issue of interpretation. If one of the primary objectives of the Act is to permit reliance in the domestic courts on rights that could previously only be litigated in Strasbourg then it is of crucial importance that those courts are empowered to vindicate such rights as effectively as possible, in order to avoid the necessity of recourse to the European Court of Human Rights. The limitations of judicial review as a remedy where there is a simple, factual dispute are highlighted in the case of Connors v. UK, Judgment 27 May, 2004. Further, the Court may wish to have regard to the fact that the majority of cases raising such issues are likely to be dealt with in the lower courts.It may therefore be desirable that individuals affected should not be constrained to take judicial review as their only remedy.
If it is the case that a Convention-compliant procedure can be read into the provisions of the Housing Act, then it is submitted that a court considering a case such as the instant one should not differentiate between those where a Notice to Quit was served, or indeed a District Court warrant obtained, before the coming into force of the European Convention on Human Rights Act and those commenced at a later date. The obligation imposed by s.2 on the trial judge is not subject to any such express limitation and to imply one could in itself constitute a breach of Article 13.
SUMMARY
The Commission considers that s.2 of the European Convention on Human Rights Act, 2003 should be read in the light of s.4. Having regard to the substantive and procedural rights afforded by the Convention and to the jurisprudence of the Strasbourg organs it is submitted that s.2 should be given a broad interpretation in order to give effect to the will of the Oireachtas that, where possible, domestic laws are to be Convention-compliant.
PART TWO – QUESTION FOUR
The Commission does not consider it appropriate to propose any fixed form of procedure in response to this question. However, it considers that whatever procedure is to be adopted should apply the tests set out above (in relation to Article 8). Drawing on the formula prescribed by the House of Lords in case of R v. Secretary of State for the Home Department ex p. Razgar (17th June, 2004 ( at para. 17) it is suggested that the court should ask itself the following questions :
Will the proposed repossession be an interference by a public authority with the exercise of the Defendant’s right to respect for his or her private or family life or home?
If so, will such interference have consequences of such gravity as potentially to engage the operation of Article 8 ?
If so, is such interference in accordance with law?
If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others?
If so, is such interference proportionate to the legitimate public end sought to be achieved?