Ireland Project - More information on Lawless case

More info on Lawless v Ireland (1961)

With the conclusion of the European Convention of Human Rights, the Council of Europe member States created the first international legal protection of human rights for all individuals within the signatory states jurisdictions. The entry into force of the Convention in September 1953 led to the establishment of the European Commission of Human Rights, the quasi-judicial mechanism to which complaints were first investigated under the original enforcement format. The final hurdle was surpassed with the establishment of the European Court of Human Rights in 1959, which became one of the foremost international institutions for enforcing legal protection of human rights and equally, its jurisprudence has been an important source of authority for national courts and international institutions alike.   
  
Relevant to any discussion on the Lawless application is a brief summary of historical events preceding the application.  Between 1956 and 1962, the IRA conducted a bombing campaign in Britain and Northern Ireland, referred to, in colloquial terms, as the IRA border campaign.  In response, the Irish government, under De Valera and his political party, Fianna Fáil, brought back into force special powers of indefinite detention without trial under the Offences against the State (Amendment) Act 1940.  While Ireland had declared neutrality in the face of the invasion of Poland and the igniting of World War II, the Fianna Fáil government under De Valera enacted a host of emergency legislation, of which the 1940 Amendment Act formed a part.

By a proclamation under Part II, Section 4 of the 1940 Act on the 8th July 1957, Minister for Justice was authorized to detain without trial persons, who, according to the Minister, were ’engaged in activities which, in his opinion, were prejudicial to the preservation of public peace and order or to the security of the State’. This led to the arrest and ultimately the detention without trial of around 200 suspected members of the IRA in the Curragh, Co. Kildare, subsequently released only in February 1959 by government order.  

One of these suspected IRA members was Gerard Richard Lawless, who was arrested on the 11th July 1957 when he was about to embark on a boat to Britain.  He was initially detained under Section 30 of the Offences against the State Act 1939 but, on the 13th July 1957, a warrant was issued under 1940 Act, authorising his internment in the Curragh.  He was then transferred to the Curragh Military Prison and finally to the internment camp, where he remained until 11th December 1957, the day on which he agreed to make an undertaking to the government that he would not ’engage in any unlawful activity within the meaning of the Acts of 1939 and 1940’ and was released. 

His application to the European Commission of Human Rights was transmitted on the 18th November 1957 seeking an order for his release and damages, but on his release in December 1957, was amended to solely seek compensation for his allegation of unlawful detention.  The case before the Commission, and ultimately the European Court of Human Rights, centred on Lawless’ claim that Ireland, by detention without trial, had breached Articles 5, 6 and 7 of the European Convention of Human Rights, providing rights to liberty and security, fair trial and the principle of ’no punishment without law’ respectively. 

The main legal issues in the case were (i) whether detention without trial was a violation of Article 5 or, in contrast, constituted a lawful exception to the rights of liberty and security of the person protected under the Convention; (ii) whether the government had lawfully derogated under Article 15(3), which enabled a State party to derogate from certain provisions of the Convention, including Articles 5 and 6, in the situation of war or emergency threatening the life of the nation, (iii) whether such emergency did exist and (iv) if the latter were affirmed, whether the measure of detention without trial was ’strictly within the exigencies of the situation’ and hence, no breach of the Convention had occurred.  Therefore, ultimately, the case hinged the issue of a state of emergency, the legality of the letter of derogation under Article 15(3) and the legality of the means utilised by the Irish government. 

The Irish government’s adversary in the petition was its former European Convention on Human Rights negotiator Sean MacBride, who acted as legal counsel for P.C. Moore and Ciaran McAnally of P.C. Moore Solicitors, South Great Georges St., Dublin. The government’s case was pleaded by Thomas Woods, Permanent Representative to the Council of Europe, acting as agent, and Andrias O’Caoimh, Attorney General.

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