Independent TD Carol Nolan has said she is seeking further legal clarity on whether the European Convention on Human Rights and the 1951 Refugee Convention (and its 1967 Protocol) were legitimately approved and ratified by Dáil Éireann.
Deputy Nolan said she submitted parliamentary questions on the matter to the Tánaiste and Minister for Foreign Affairs Micheál Martin in January and February asking him to clarify if the European Convention on Human Rights signed in Rome on 4 November 1950, and being an international agreement involving a charge upon public funds, was approved by the Dáil prior to the State agreeing to be bound by it, as required under Article 29.5.2 of the Constitution.
Deputy Nolan also queried whether the 1951 Refugee Convention and its 1967 Protocol were approved by Dáil Éireann prior to the State agreeing to be bound by them.
An initial reply from the Department of Foreign Affairs (DFA) stated that a substantive reply on the PQ relating to the ECHR had to be deferred as DFA’s Legal Division needed additional time to refer to papers in the National Archive.
The DFA subsequently issued a reply, the text of which is as follows:
“Article 29 of the Constitution provides that every international agreement to which the State becomes a party must be laid before Dáil Éireann, and that the State will not be bound by any international agreement involving a charge upon public funds unless the terms of the agreement have been approved by Dáil Éireann. This requirement does not however apply to agreements or conventions of a technical and administrative character.
The Convention for the Protection of Human Rights and Fundamental Freedoms (more commonly known as the European Convention on Human Rights) was signed by Ireland on 4 November 1950, and ratified by Ireland on 25 February 1953. The Convention entered into force with respect to the State on 3 September 1953. The Convention was laid before Dáil Éireann on 14 April 1953, in accordance with Article 29.5.1° of the Constitution.
The terms of the Convention were not approved by Dáil Eireann prior to the State ratifying it as the Convention is not an agreement which involves a charge upon public fundswithin the meaning of Article 29.5.2° of the Constitution, and, therefore, such approval was not required by the Constitution. The Oireachtas subsequently enacted the European Convention on Human Rights Act 2003, which gives further effect, subject to the Constitution, to certain provisions of the Convention and the Protocols thereto, which are set out by way of schedule to the 2003 Act.”
With respect to the ratification of the ratification of the 1951 Refugee Convention and its 1967 Protocol, the DFA provided the following reply:
“I refer to your January 2024 PQ in which you queried whether the 1951 Refugee Convention and its 1967 Protocol were approved by Dáil Éireann prior to the State agreeing to be bound by them.
This Department has carried out a search of relevant files within this Department and the National Archives, in addition to Dáil votes and debates on the Oireachtas website.
From the information available, it is our understanding that, when decisions regarding accession were taken by the respective Governments at the time, neither the Refugee Convention, 1951 nor the Protocol Relating to the Status of Refugees, 1967 were considered to involve a charge on public funds within the meaning of Article 29.5.2 of the Constitution, such as would have necessitated prior Dáil approval being sought prior to the State becoming a party to those agreements. Accordingly, Dáil motions were not obtained in respect of them.
Should you have any further queries on this matter, we would be grateful if they could be directed to the Department of Justice as the Government Department with substantive policy responsibility in this area.”
Responding to the replies, Deputy Nolan stated that, “I am reluctant to accept the view, without further legal advice, in the first instance from the Office of the Parliamentary Legal Advisor (OPLA), that both the ECHR and the 1951 Refugee Convention can be considered merely ‘technical and administrative character’ given the likely costs involved in implementing them.”
“Clearly these are very serious matters with enormous implications, so I think it only reasonable that we have absolute clarity. “
“The Department says, ‘it is our understanding.’ I want to investigate if that understanding is correct,” concluded Deputy Nolan.