International Protection Bill 2026: Report and Final Stages
Seanad Éireann — 2026-03-25
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Patricia Stephenson (SD), Labour Panel

I move amendment No. 18:
In page 26, between lines 23 and 24, to insert the following:
"(2) Any order or regulation made under this Act shall comply with the European Convention on Human Rights.".
I touched on a few of the points earlier during Senator Boyhan's amendment, but I will reiterate some of the elements. In his response to the contribution I made earlier, the Minister said that to suggest that the signature in December 2025 of the Irish State and the Minister on the political declaration by 27 members of the Council of Europe was somehow partisan or niche, and that it was a mistake to characterise it that way. I did not characterise it that way. I called it "populist and insidious". Some colleagues in the Council of Europe did sign it, but it is important to note who did not sign it. France, Spain, Türkiye and Germany did not sign it. Those four countries alone host approximately 50% of all the refugees, asylum seekers and people under temporary protection among the Council of Europe member states. Those states with the objectively biggest migration challenge are not jumping on the populist bandwagon by signing the joint statement. Indeed, the French ambassador to the Council of Europe described the move by Ireland, among the 27 member states, as insidious.
Last week, the Minister said there were just a handful of cases from other countries that made this signature so important. I emphasise that just a handful of cases from other countries is the reason we are seeking to amend and alter the international human rights system. That beggars belief. That is why I want to see this amendment accepted.
The Minister said earlier, in response to Senator Boyhan, that compliance with the European Convention on Human Rights, ECHR, is already standard practice as part of the Government's policy basis. It has signed up to it. Therefore, I do not understand why we would not include an amendment such as this. Why would we not legislate our commitment to it in this legislation?
Of the 54,000 cases pending before the ECHR, approximately 1.5% relate to immigration. Most of them will be found inadmissible. In the past ten years, the court processed 430,000 applications, of which approximately 2% concerned immigration issues. Of the 54,000 pending cases, only four concern Ireland. We are talking about minuscule issues here.
The Minister implied earlier that the threshold around the issue of inhumane and degrading treatment and torture is too high. He mentioned that the hooded men case did not rest on torture and that the decision made related to inhumane and degrading treatment. I would like all of us in this Chamber to agree that what happened to the hooded men was, in fact, torture. It points to the conservativeness of the court, rather than its liberalness, to be awarding these decisions on low thresholds. It is actually a very high threshold that you are required to meet.
States are central to the ECHR. It is states that are responsible for implementing the convention. It is states that are responsible for executing the judgments of the European Court of Human Rights. It is states that are responsible in the meetings in Strasbourg for supervising the execution of judgments against other states. It is states that are responsible for resourcing the system such that it is capable of managing its workload and delivering positive and efficient outcomes. It is a misdiagnosis to look at the list of unexecuted judgments and say that is a problem for the court. This is because states have not implemented the judgment. It is completely disingenuous to say, for example, that the courts prevent deportations of foreign criminals. The Minister earlier listed a few cases and recommended that I go and look back at them. I shall do that. However, the court is enormously deferential to national systems. That is the truth of it. In a few of the high-profile cases and decisions, the courts were being over-compliant. If a superior court in Ireland, or indeed in Denmark, where we have seen some of these cases, issued a ruling whereby it found a criminal could not be deported because of the ECHR, it is not because of the court in Strasbourg. It is not because of the European Court of Human Rights. In such cases, it is a matter for the Danish or, in our case, the Irish courts. In such cases, the state should develop a proper litigation strategy, challenging such judgments and ensuring ongoing dialogue with Strasbourg in order to ensure harmony between what Strasbourg says and what, for example, the Danish court says. That is it being implemented properly. That is why I am requesting this amendment be accepted.
The Irish signature among the 27-country declaration in December is disturbing. It brings into question our meaningful practise of international law and human rights. I am speaking about this and submitted these amendments because of my fear of the trickle-down effect.
I mentioned earlier that the Labour Government in the UK will not be able to out-Reform the Reform UK party. We cannot out-right the far right. The UK Labour Government, sensibly, wants to stay in the ECHR. It is leading on this and suggesting these amendments, these tweaks, shall we say, of the universality of human rights and tweaking the concept of the universality of human rights. It is a complete misnomer. You cannot do that. It is either an absolute right or it is not. The UK Labour Government's attempts to do that is it pandering to Reform UK. We have seen it in the past. David Cameron's Tory Government did not want Brexit. He wanted to stay in the EU and here we are, so many years later. Brexit was a travesty for this country in terms of the people in the North who wanted to remain in Europe. We and the Government risk engaging in a race to the bottom. It is a race to the bottom on standards of human rights. There was a time when Ireland was a champion of human rights. It was considered that across the world. We led on this, whether that was in the UN or the Council of Europe. When did that change? Was it because of this migration crisis and under the cover of this migration crisis? The idea that we would lower the threshold on what is considered torture and inhumane and degrading treatment is horrifying. I said previously that it is not just horrifying for people who are in the asylum seeker and international protection system. It could be horrifying for any one of us because once you change those human rights frameworks for one group, you change them for everyone.
The ECHR is increasingly deferential. I want to get that on the record. It is increasingly differential to national courts and national decision-making spaces. That is the truth and the simple reality. Any populist call to the contrary is a fallacy and is not rooted in any real data or facts. However, I believe it is a nice soundbite to say that the ECHR is somehow impacting judicial sovereignty or independence in Ireland. It sounds great.
What we are seeing is a politicisation of human rights. Judicial independence of the European Court of Human Rights is fundamental to the rule of law and democracy. Attempts to give political direction to the justice sector are concerning. When it comes to Article 8 and deporting criminals, Article 8 allows for proportionality, unlike Article 3, which does not allow for proportionality. The court has provided detailed criteria to govern expulsions. Adherence to the ECHR does not prevent the deportation of criminals, according to the case law of the court. I want to get that on the record. That is the argument through which we are saying that we should reduce the language and commitment on torture. That is the argument in which we are saying that we should withdraw from components of Article 8 of the ECHR. As I say, Article 8 allows for proportionality. It allows for the deportation of criminals. That exists within the existing case law. Why do we not look to that? The truth is that states have been able to deport criminals under the existing case law of the ECHR.
There is no evidence immigration cases are being escalated to the court in high numbers. We cannot say we are maintaining the absoluteness of the ECHR while also narrowing the scope of Article 3. I mentioned the Good Friday Agreement. Have the unintended consequences of changing the ECHR been considered? We could also talk about procedural norms around engaging civil society. Civil society participation is a key pillar of a healthy democracy, as is meaningful debate on legislation and giving time to talk about every single amendment, for that matter. We see a chipping away at the norms of democracy and of civil society engagement. That is an unintended consequence of what is happening with the ECHR. For example, I do not believe the Irish Human Rights and Equality Commission, IHREC, or the Irish Council for Civil Liberties, ICCL - two of our leading human rights bodies, one of which holds a mandate from this State - have been engaged in the attempts to change elements of the universality of our human rights through the ECHR.
The reason I want this amendment and to have the ECHR acknowledged in this legislation is that political engagement with the ECHR is really important. We should see states engage meaningfully with the courts. I do not have a problem with the concept of political declarations. However, the letter signed by nine states - not Ireland - last year had racist undertones. There are other ways the Government could engage to make the court and the ECHR more efficient, for example, the backlog of the courts could be looked at, as could clarity, because the court sometimes introduces concepts that are not very clear. For instance, in the SAS v. France 2014 case, the court introduced the "vivre ensemble " concept. which is still not clear to a lot of people. Consistency is another area. Sometimes, people perceive inconsistency in judgments by the court. At times, the court appears to find differently even in similar cases, for example, in Verein KlimaSeniorinnen Schweiz v. Switzerland where a violation was acknowledged or in Carême v. France where there was no violation. There was a good reason for a different decision but the court did not communicate the distinction or explain the decision clearly to the public. There is a sense of inconsistency and lack of trust due to that. These are ways the work of the court could be strengthened rather than undermining its judicial independence, which is super concerning.
There is a significant margin of appreciation when it comes to the court. Perhaps there have been instances of overinterpretation by national courts but that is the responsibility of national courts, not of the European Court of Human Rights. The court is clear that states have a huge margin of appreciation and are not limited by the convention. What the Minister risked by signing that letter was setting a precedent, in that states, without evidence, get to drive domestic agendas in our international human rights framework. That is worrying. It is also worrying when human rights are conflated with national security. I do not know what that means in practice. If the Government is already meeting the guidelines on the ECHR, why can both of my amendments not be included in this Bill to show our legislative commitment to upholding human rights?

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Retrieved: 2026-08-14T04:54:46+00:00
Sitting date: 2026-03-25