International Protection Bill 2026: Report and Final Stages Seanad Éireann — 2026-03-25 ============================================================ Michael McDowell (IND), National University of Ireland I do not agree with Senator Stephenson to some extent and I agree with her in other respects. The joint statement the Minister signed with a number of other countries was designed to bring some degree of common sense and reality to a situation in which overreach by the European Court of Human Rights in Strasbourg had led to major difficulties for individual states in trying to balance national interests, including the right to deport somebody, with other entitlements of the proposed deportees. While Senator Stephenson referred to France, Germany and Spain not signing the statement, they reserved their position by adopting the position taken by the Council of Europe that further talks would take place in respect of the particular issues raised in the joint letter. It was not the Minister's solo run on this issue. The 26 signatories of the letter include the United Kingdom, Denmark, Italy, Albania, Austria, Bulgaria, Croatia, Czechia, Estonia, Finland, Hungary, Iceland, Latvia, Lithuania, Malta, Montenegro, the Netherlands, Norway, Poland, Romania, San Marino, Serbia, Slovakia, Sweden and Ukraine. It is not that the Minister's co-signing of that letter was some watering down of the ECHR. It was meeting the cumulative jurisprudence of the court of human rights in Strasbourg. The point I want to make in distinction to the attitude taken by Senator Stephenson is that there is nothing infallible about that court. It makes mistakes from time to time. It makes egregious mistakes on some rare occasions. I will give an example of an egregious mistake. It held against the Government of Switzerland, at the insistence of a group of old-age pensioners, that their health was damaged in a manner that contravened their personal rights under the convention due to the failure of the Swiss Government to take sufficient climate action policy decisions and implement them. The climate in Switzerland, as far as I am concerned, is not determined by the actions of the Swiss Government; the situation is slightly more complex than that. That kind of legal adventurism by the court shocked many people - that it would say a government of a sovereign state was infringing the convention by reason of its climate policies and that implementation of climate change controls was actionable in Strasbourg. It is activism of that kind that tends to discredit the European Court of Human Rights. Likewise, if governments have a serious difficulty with where advanced - I use that phrase - jurisprudence of the court lands them in relation to how they deal with people regarded by them as a threat to national security, they have every right within the terms of the convention to address that issue. They do not just have to simply stand mute and say that is the state of international human rights law and there is nothing they can do about it. That is not the nature of the convention. The ECHR was a post-Second World War convention. It was designed to create a framework whereby member states undertook to one another to respect what were regarded at that stage as minimum guarantees of human rights, not maximal views of where human rights law could take us at the hands of activist judges. I mentioned earlier, as did Senator Mullen the other day, that there can be occasions when jurisprudence brings us to outcomes that are almost inexplicable to the common sense of ordinary citizens. I am talking about the person to whom I and Senator Mullen made reference, a man who left India because of a dispute and threat to his life or whatever, because he had a relationship as a Christian with a Muslim woman. He convinced himself that the only way he could be safe was to migrate westward from India to avoid the threat to his life and limb from her relatives. He went to England and spent 17 months there. Something happened in his mind at the end of his 17 months in the United Kingdom and he decided to go to Dublin to claim asylum. He arrived in Dublin via Belfast on the open border, exploiting the common travel area, and applied for asylum here. There is no accommodation for him. He is given vouchers for subsistence and is obliged to camp out in a tent supplied to him by a charity. He voluntarily chose to come to Ireland in the circumstances where Ireland was not in a position to offer him a higher standard of accommodation. Yet, if you apply the law of the European Court of Justice in Luxembourg to his situation, as Mr. Justice Ferriter did, you end up in the situation where despite the fact that there was no emergency accommodation available when he opted voluntarily to come to Ireland, the Irish State ends up obliged to compensate him. That defies common sense. When Ireland, as part of the Good Friday Agreement, enacted legislation requiring interpretation of statutes and actions of official bodies to comply with the ECHR, it was done at a sub-constitutional level because the ECHR is not a sovereign convention binding on Ireland. It is a voluntary adherence to a convention. The Act made it clear, and judgments subsequently made it clear, that the Constitution is the fundamental law of this country and not the ECHR or the judgments of people in Strasbourg. I was Attorney General at the time the Act was formulated. It went as far as it possibly could to say that not merely should the ECHR have an interpretive function and compliance with it should be an obligation on the part of organs of the Irish State other than the courts themselves, the Act said that compliance with the ECHR also required compliance with the judgments of the court of Strasbourg rather than simply the Irish interpretation of what the ECHR actually meant. I just make the point that there is nothing sacrosanct about the European Convention on Human Rights. It is a consensual convention to which the member states voluntarily adhere to the point where they can. The human rights legal community sometimes gets confused about this. It is wrong to accord it some kind of Supreme Court status for Ireland. If the jurisprudence of that court becomes inoperable or creates a serious problem for the member states, then if 38 member states say they have a problem with this, they are entitled to say so. Even France, Germany and Spain noted the official position of the Council of Europe that the issues raised in the letter, to which the Minister was a co-signatory, should be considered. In the end, it is no dilution of anything to maintain the workability of the ECHR. It is no departure from human rights standards to say that particular judgments and outcomes such as that required by the European Court of Justice in respect of the man from India, do not amount to common sense. Sovereign member states have the right, especially under the European convention, to seek to make sure that its terms as interpreted by the court are compatible with their sovereignty and duty to their own citizens. We should not feel in any sense ashamed or claim it is a dilution of human rights if the vast majority of western liberal democracies that have considered the issue think the court has gone too far. There should be a process whereby they can express that opinion, and their expression of that opinion has some force and changes things rather than simply leading to member states of the convention ignoring its terms and the jurisprudence of the court. --- Source: Houses of the Oireachtas. Licensed under CC BY 4.0 (https://creativecommons.org/licenses/by/4.0/). The Official Report is revised after first publication; the fetch timestamp below identifies the version quoted. Record URI: https://data.oireachtas.ie/akn/ie/debateRecord/seanad/2026-03-25/debate/main Retrieved: 2026-08-14T04:54:46+00:00 Sitting date: 2026-03-25