Dáil Éireann debate -
Wednesday, 21 May 2003

Vol. 567 No. 2

European Convention on Human Rights Bill 2001: Report Stage (Resumed).

Debate resumed on amendment No. 1:

In page 3, between lines 15 and 16, to insert the following:

1.–In this Act unless the context otherwise requires–

‘the Convention' means the Convention for the Protection of Human Rights and Fundamental Freedoms done at Rome on the 4th day of November, 1950, as amended by Protocol No. 11 to the Convention done at Strasbourg on the 11th day of May, 1994;

‘Convention provisions' means the provisions set forth in theSchedule to this Act;

‘declaration of incompatibility' means a declaration undersection 2 of this Act;

‘rule of law' includes common law;

‘statutory provision' means any provision of an Act of the Oireachtas or of any order, regulation, rule, licence, bye-law or other like document made, issued or otherwise created thereunder or any statute, order, regulation, rule, licence, bye-law or other like document made, issued or otherwise created under a statute which continues in force in accordance with Article 50.1 of the Constitution.".

–(Deputy J. O'Keeffe.)

Mr. Costello

This side of the House is anxious to ensure that we have the maximum incorporation of the European Convention on Human Rights in our domestic law. That is why we want a direct incorporation rather than an indirect incorporation and a full-blooded incorporation rather than the minimalist approach the Minister is taking here. This is the fundamental piece of human rights legislation in the European context and we are now part of the family of European nations. We are the last country in the Council of Europe to incorporate this body of rights into legislation. We should do it to a maximum rather than a minimum degree. We can put in whatever caveats are required but the entire corpus should be in the legislation rather than the interpretative fashion presented here.

I referred earlier to some of the legislation's flaws. The manner in which we are passing the legislation creates the unusual term, incompatibility, which means that we will find on some occasions that the European Convention on Human Rights will be incompatible with our own legislation or vice versa. The cumbersome mechanism which is put in place to resolve that incompatibility is ridiculous in the manner in which it is presented. It is not the kind of legal provision we should make for something as important as the incorporation of the European Convention on Human Rights. This is a very weak section for dealing with remedies that arise from incompatibilities. It is ironic that Article 13 of the Convention is entitled “The right to an effective remedy”, as it seems the first step we are to take will breach that Article and provide an ineffective remedy.

How will the Minister respond to that? We have an ineffective remedy in that it only provides for one form of remedy. It does not provide options for any other form of remedy, irrespective of the nature of the incompatibility. Even if the incompatibility exists it is allowed to continue, so even if one gets a remedy the legal defect is allowed to remain, as a defect, on our statutes. There is a total contradiction between what we are seeking to do here and the terminology the Minister is using in the provisions of the legislation.

It is not good enough that this is as far as we have got. At this late stage we call again on the Minister's good sense to see if he will accept a nice amendment in my name, which states that the Convention provisions shall be part of the law of the State. A nice line like that would ensure our full commitment to the incorporation of the Convention on Human Rights.

The Minister is to introduce a new Immigration Bill and yesterday at the Joint Committee on Justice, Equality, Defence and Women's Rights we discussed with the Human Rights Commission whether there were any laws, European or international, which might be incompatible with that Bill's provisions regarding carrier liability. We listed the Geneva Convention, international human rights legislation and the European Convention on Human Rights. Depending on the circumstances of a genuine asylum seeker being refused access to the shores of Ireland because of the provisions of the Immigration Bill, it was acknowledged that the Bill could be in breach of several international conventions, including the European Convention on Human Rights.

We will have to look at this area also to ensure that the domestic legislation we introduce does not breach our international conventions, even though we are implementing the European Convention on Human Rights in a less than full-blooded fashion. This matter is at the core of the Bill. The debate and decision on this amendment will provide the substance and tenor of the Bill.

Aengus Ó Snodaigh

An issue was raised earlier in relation to the Good Friday Agreement. The rest of the debate regarding direct incorporation will continue as my amendments and others' come up. Previous contributors on direct incorporation have spoken quite well of the need for it and I will expand on the issue later.

The effect of incorporation of the European Convention on Human Rights is an act of completion specifically mandated by section 9, strand 3 of the Good Friday Agreement, which deals with rights, safeguards and equality of opportunity. It states that the Government will "bring forward measures to strengthen and underpin the constitutional protection of human rights." That includes the incorporation of the European Convention on Human Rights.

It also commits the Government to "ensure at least an equivalent level of protection of human rights as will pertain" in the Six Counties.

Mr. McDowell

It says "Northern Ireland".

Aengus Ó Snodaigh

I ended the quotation –"Northern Ireland" if the Minister wishes but at least he knows what it says. The method of incorporation proposed by the Minister does not equal the equivalent level in the Six Counties, Northern Ireland or whatever title he wishes to give that statelet.

The Minister obviously believes his approach is in compliance with the Good Friday Agreement equivalence obligation. The British approach obviously reflects the doctrine of parliamentary supremacy and the fact that they have no Constitution. Nevertheless, the devolved Assemblies are explicitly bound by the Convention and are prohibited from passing any legislation contrary to the Act or Convention themselves. The Human Rights Act 1998 is treated as a constitutional document for the Northern statelet and contains a number of provisions specifically designed to compensate for the limitations of parliamentary supremacy, including wide, positive obligations on public authorities to act in accordance with the Act and Article 6, a wide definition of public authority and an obligation on the Government to declare compatibility or otherwise. There is also a mechanism to vet compatibility and, most importantly, an obligation to take remedial action if the declaration of incompatibility is issued by a court. The Minister's proposals contain none of those elements, hence the concerns raised not only by the Opposition but by all the groups which made submissions to the committee and Deputies to try to ensure best practice. Instead of having less than exists in the Northern state, we should have at least an equivalent level or higher if possible.

The Minister's approach is minimalist and our approach to the European Convention on Human Rights is minimalist in the extreme in that of all the EU states we have the worst method of incorporation proposed. Ours is the last approach and the most minimalist in the EU. We should have learned from other countries and adopted best practice; we should have set an example to other countries.

At this late stage I ask the Minister to take on board the concerns we have and to accept some of the amendments we have tabled to try to ensure direct incorporation of the European Convention.

Mr. McDowell

I have listened carefully to the arguments made in favour of the principle of Deputy O'Keeffe's amendment. This is not the first time I have heard these arguments; I have considered and reconsidered them because they have been made repeatedly both in public debate and on Second and Committee Stages.

There is a kind of popular cant that the Government is engaging in some way in a minimalist, less than full or inadequate incorporation of the European Convention on Human Rights into Irish law. That is demonstrably false. What the Government is doing is full-blooded and consistent and we have gone to the fullest extent permissible under the Constitution. There are many good arguments as to why the way we have gone is dramatically superior to the way others are suggesting we should go. I am proud of the way we are doing it because it is full-blooded, comprehensive, thoroughgoing and fully workable in terms of our court procedures.

We have to remember that we live in a state with a written Constitution unlike the United Kingdom whose people do not. That written Constitution is unique in the European Union for a whole series of reasons, reasons which sometimes, in the modern babble of human rights speak, are fashionable to ignore. The first and probably the most substantial quality of our Constitution is that it is unamendable save by the will of the people. That means the people – I particularly ask Deputy Ó Snodaigh to bear this in mind – are sovereign in the matter of what is in and outside the Constitution. No Government can amend that Constitution without the people's direct authority expressed through a referendum.

If we were to say some international convention and its court were to become binding upon the people by way of a constitutional amendment of the Constitution, it would, for the first time, transfer sovereignty in relation to the fundamental determination of our human rights outside this jurisdiction and into the hands of a court not appointed by the people and in circumstances in which the people would not, in effect, be in direct control of the content of our fundamental human rights law. Those who argue for what they call the direct incorporation of the European Convention on Human Rights into Irish law – I believe it is a complete misnomer and misconception – are arguing for the right of a tribunal, over which we have no control whatever, to interpret a convention in a way which we cannot predict and in a manner which has constitutional effect in this country.

I will give Members an example. If the European Court of Human Rights in Strasbourg was to say – I do not believe it will happen, but it could – that in the case of a complex crime, the reasons for a verdict must always be given before somebody can be convicted, it could be argued that the common law system, for instance, of a jury trial in which the issue is reduced to one proposition of guilty or not guilty, would be inconsistent with that jurisprudence. I am not suggesting that this will happen because I think there are plenty of reasons it would not.

In the last analysis, the choice as to whether we have what we call "jury trial" or require juries to set out long chapters and written judgments in cases is a matter for the people to decide and not for some foreign court. If we were to put into our Constitution a clause in those circumstances which gave equality or even supremacy over our Supreme Court and the existing practice in Ireland, as decided by the people, to the European Court of Human Rights in Strasbourg, we would be surrendering our sovereignty in this important matter to a court whose decision would be, effectively, unappealable and irreversible in Irish law.

Mr. Costello

We are not arguing that.

Mr. McDowell

If the European Convention on Human Rights had direct effect in Irish law and if that means that decisions of the court in Strasbourg have direct effect in Ireland – I presume that is what is being proposed – a foreign court, effectively, decides matters, which are of fundamental importance in Ireland, on a right at least equal to and perhaps in a superior way to the way in which the Supreme Court does at the moment. That is a road down which I do not propose to travel and down which the people would say, if they reflected on it for any considerable period of time, that under no circumstances would they go.

The European Convention on Human Rights is not a shadow constitution, was not drafted to be a constitution for any member state of the Council of Europe and was not intended to be incorporated as the constitution of any member state. Each member state of the Council of Europe, which subscribes to the European Convention on Human Rights, is expected to have its own constitution, remedies and system which are expected to be compatible with that convention but not identical to it.

Our Constitution is, in many ways, vastly superior – this point must be emphasised again and again – to the level of protection of fundamental human rights accorded to citizens of member states of the European convention. I make no apology for that proposition. Irish citizens, uniquely among the states of Europe, have the right of access to the courts of the land to test any legislation or administrative act by reference to a written Constitution which they alone can amend and change. This is the only republic which accords a direct right of action to every citizen, in circumstances of this kind, to annul legislation on the basis that it is incompatible with the Constitution which the people alone are in a position to change. There are many other systems for constitutional protection in Europe and there are many constitutional courts in Europe but we alone in Europe have a system along the lines of the High Court and its full and original jurisdiction which permits Irish citizens to challenge any law by reference to the terms of the Constitution.

Giving the convention the force of law in the State would, in effect, turn the convention into some form of quasi-constitution or shadow constitution because what the convention means can only be decided on a day to day basis by reference to judicial decisions and dicta of a court in Strasbourg which is constantly developing the jurisprudence of that convention. It is not possible simply to say the convention shall have the effect of law if at any given stage we, as a sovereign Legislature, wake up one morning to find that the convention means something new or something which we did not understand, has some new implication for civil liberty or that the court in Strasbourg has reversed its decision and stated that some former decision made by it is no longer applicable or is to be substantially changed in the light of changing circumstances. It is not simply possible to say it is an amendment of the law in the same sense that an amendment of the landlord and tenant Act can be passed by this House. It is not of that nature because the jurisprudence and the force of the convention are something which move and develop with time and in ways which no legislature can fully comprehend.

I will give Members an example. The people of the United Kingdom might have thought that people who lived in the flight path of Heathrow Airport may or may not have a claim against excessive night flights but they would have been very surprised if, in 1950 or 1960, they were told that in the closing years of the 20th century and the first years of the 21st century, the court in Strasbourg would interpret the domestic rights of the citizen of the United Kingdom as being infringed by the operation of the excessive night flights through Heathrow Airport. I do not want to argue the merits of that case save to say that in an issue of that kind, which involves balancing individuals' rights and against a state's right, it is fundamentally a decision to be made by the United Kingdom and its people and not something which most people would have anticipated would fall to be determined by a decision in the court in Strasbourg.

Under our Constitution, this House, the Seanad and the President form the Oireachtas, and the sole and exclusive right to make laws for this State is vested in the Oireachtas. This is not some simple monopoly which exists on paper, but the outward expression of that on which Irish republicanism is fundamentally based, i.e. the sovereignty of the Irish people to determine their institutions and laws and how these should work. We are concerned with the right of the people, through their Legislature, to determine their laws.

We have a system in which our courts interpret our law and they do so subject to one overriding rule, namely, that every organ of the State, including the Oireachtas, is bound to uphold the Constitution and that while the people are free to amend it, the bodies with the ultimate right to determine what it means are the High Court and the Supreme Court on appeal. Nobody else is competent to determine what our Supreme Court and High Court can determine in respect of the Constitution and nobody else's interpretation of that document is valid or coercive as a matter of law.

The courts cannot be instructed by this House to disregard the clear intention of the Oireachtas. It is not competent for either House or both Houses of the Oireachtas to direct the courts to interpret their laws by reference to the decisions of some third party in a way which is inconsistent with the sovereignty of the people. It is not possible or competent for this House to say to the courts, "You must disregard what we are saying if it is inconsistent with what some other person thinks should be the law in either Europe or in Ireland." The Oireachtas, by virtue of its monopoly to legislate, and the Supreme Court, by virtue of its function to interpret the laws of the Oireachtas and to apply them, are collectively bound to work out fully the will of the people in any given case.

We are dealing with past law, which is already on the Statute Book. Given the incorporation approach to the European convention, the force of the law in the State, in the sense that that phrase is used here, would amount to a continual, rolling and uncertain amendment of every law of the State depending on the interpretation of the convention by the courts of our country at any given point. If one was to say, "All law in Ireland is hereby amended so that it is fully compatible with the European Convention on Human Rights," one would be inviting the court to say, in respect of any statute anywhere which is the subject of any dispute in any court, "When the Oireachtas passed Deputy Jim O'Keeffe's version of the European Convention on Human Rights Bill 2001, it gave us the right to reinterpret the legislation in accordance with our view of what the court in Strasbourg would do if it were looking at it." It would be inviting the courts to say, "Notwithstanding all the previous decisions made about the legislation in question, that legislation now means something different, and if its clear language is incompatible with the European Convention on Human Rights, it does not mean anything at all and will have no force."

Our Constitution confers on our courts the sole and complete jurisdiction to decide whether our laws comply with the Constitution. However, no court is competent to amend or annul or find devoid of meaning any statute by reference to some other legal instrument or treaty, save the Treaty of Rome or the European treaties which the people have expressly incorporated into our law and given a constitutional status. Unless we go down that road with the European Convention on Human Rights, for which Deputy Ó Snodaigh seemed to argue, the notion of direct incorporation is effectively creating massive uncertainty over the meaning of all Irish law enacted to this point. More seriously, it is not possible, nor will it be possible, for this House to invite the courts, three years before the enactment of legislation inconsistent with the European Convention on Human Rights, to disregard that legislation and say that it is of no effect. We are not competent to do so under our Constitution as a Parliament. We cannot invite a court in the future to disregard a future statement by an Irish Parliament of what it believes the law should be by reference to a prior instruction to disregard anything which happens to be inconsistent with Strasbourg jurisprudence. We cannot do so for a very good reason.

I only say these things because there is a significant misinformation campaign to the effect that there is some constitutional direct incorporation method which I am choosing blithely to ignore and that it is a matter of wilfulness on my part to choose some lesser species of incorporation because I somehow feel more attracted to it.

Mr. Costello

Precisely.

Mr. McDowell

Nothing could be further from the truth. I am glad to say that while Deputy Jim O'Keeffe says that I seem to be isolated on this point from some people who are vocal on this matter, I am satisfied, on the basis of the continuing advice of my successor in the Office of the Attorney General, expert opinion and the jurisprudence of the State, that my view of this is to be preferred to that of some of the people who have commented on the issue.

Mr. Costello

What about the Human Rights Commission?

Mr. McDowell

Therefore, I am confident that the measure I am advocating and the way in which it is being put forward is not the least we could do to comply with the European Convention on Human Rights within our constitutional framework. It is the most we can do and has strained, to the utmost sinew and limit, our legal system in order to achieve the most we can achieve in respect of the Bill.

It has been said three times, if not four, that we are doing less than the United Kingdom is doing. Nothing could be further from the truth. If one looks at section 3 of the Bill, one will see that we have instituted a general obligation on the part of every organ of the State, as defined in this statute, to exercise all its functions in accordance with the European Convention on Human Rights. Moreover, we have provided a head of tort, a form of claim for compensation, for anybody damaged by the failure of an organ of the State to do so. Based on all the wisdom poured into our ears by all the experts, is there any Deputy who thinks that a similar form of compensation is available in the United Kingdom?

Mr. Costello

Ex gratia.

Mr. McDowell

No, section 3 is not ex gratia. It confers a right of action on every Irish citizen to sue any organ of the State, as defined in the statute, which breaches its general obligation to exercise its functions in accordance with the European Convention on Human Rights and inflicts damage upon him or her by virtue of breaching its general obligation to exercise its functions in accordance with the European Convention on Human Rights. That is not available to any United Kingdom subject of Her Majesty. It is available here and it imposes a substantial liability on organs of the State with a direct method by which anybody who claims that his or her rights under the convention have been infringed by such an organ of State may sue for compensation.

Mr. Costello

What if the person is locked up at the time?

Mr. McDowell

I reiterate to this House—

Mr. Costello

Will he or she get damages?

Mr. McDowell

Including somebody who is – we will come to that in a second. The Irish statute goes further than its equivalent in the United Kingdom because it gives the Irish citizen the right to sue his or her county council, or health board or a vast range of other institutions, if those institutions infringe his or her rights under the European Convention on Human Rights. People argue that we are doing nothing that the United Kingdom has not done and we are not doing everything it has done. That is not so. Section 3 is a radical and far-reaching provision which has no parallel in United Kingdom legislation. I wish someone, at some stage, among all the experts who have been whispering sweet nothings into the Deputies' ears on this subject, might have acknowledged that this is far in advance of what the United Kingdom has done.

I wish to draw Deputies' attention to section 2, which some describe as being an interpretative mode of incorporation and somewhat less than full incorporation. Section 2 states:

(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 of law relating to such interpretation and application, do so in a manner compatible with the State's obligations under the Convention provisions.

(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.

What does this mean? This seems to be derided as a pettifogging instruction, a small section of some Interpretation Act, which is of no significance. It means that every court, in considering every section of every Bill that comes before it, and every statutory instrument that comes before it, and any rule of common law, such as, for instance, the definition of murder, which is half statutory and half common law, or rules, for example, about self-incrimination or spousal compellability in criminal matters, or the rule against hearsay in civil and criminal proceedings, or any court interpreting a statute, a statutory instrument or any aspect of our common law, must interpret that section in a way which is compatible with the convention, unless it is impossible so to do, unless the provision in question would be doing violence to the section and it would effectively be amending it retrospectively to interpret it in that way. That is a far-reaching provision because it applies, in case people forget this, even to the Courts Acts. It also applies to the rules of court which are statutory instruments. It applies in a fundamental and radical way such that our courts from the day that this Bill becomes law will be obliged by section 2 to interpret every aspect of law prior to today, and forward from today, in a manner compatible with the European Convention on Human Rights unless it would do violence to the judge's oath under the Constitution not to do so.

Those two sections are a radical import. A point that seems to have escaped many commentators is that already all such laws, common law, statute law and statutory instrument, must be interpreted by reference to our Constitution and it is the solemn duty of every judge to interpret, in so far as he or she can, any such rule of law, common law, statute law or statutory instrument in a manner that is consistent with the Constitution. That is a pre-existing and superior duty and canon of construction and interpretation.

So what does this Bill do? It says that, in addition to the constitutional mode of construction, canon and rule, if there is some other provision of our law which is open to two interpretations, even having regard to the Constitution, it should be interpreted in a way compatible with the convention, rather than in a way that is incompatible with the convention. I mention that point solely because the great majority of convention rights, if not all of them, are fully protected by the Constitution. Whereas people may argue that the freedom of speech provision of the convention seems to be a more ample protection than the Constitution permits or seems to authorise, lawyers are hard pressed to see any proposition which is consistent with the Constitution and inconsistent with the European Convention on Human Rights.

There have been occasions – since 1953 less than ten occasions – when the Irish courts have failed to vindicate a person's rights to the extent required by the European Convention on Human Rights while applying the Irish Constitution. There have been ten occasions or thereabouts in 50 years in which Ireland has been found to fall short of the guarantees of the convention. This compares dramatically with other jurisdictions in Europe where the figure runs, in some cases, to hundreds of occasions and in countries which would regard themselves as bastions of human rights protection it runs to many tens of occasions. Ireland's system of protection of human rights has been better than any comparable system under the convention because of our constitutional arrangements. Therefore, when we are looking at some species of case that falls outside the protection of the Irish Constitution but does fall to be protected by the European Convention on Human Rights it must be, in my experience as a lawyer at any rate, a narrow area of human rights protection because all of the major aspects of human rights recognised and protected by the European Convention on Human Rights are either explicitly acknowledged in the Constitution or have been the subject of unenumerated rights jurisprudence by our High Court and Supreme Court in the past.

Regarding the aspect of the argument that is being made for a different system of incorporation, I stress that we are not here dealing with a swathe of human rights law that is being left unincorporated into Irish law. Those who criticise what we are doing should have regard to the following proposition: they must identify first some area of human rights law where the Constitution is inadequate or silent and where there is no possibility of development of the Constitution to protect that area. They must then say that that should be protected henceforth by the European Convention on Human Rights directly because the Constitution is silent in the area. I am not willing to take that approach.

Reference has been made to a declaration of incompatibility. I said in the committee, and I do so again in the House, that such a declaration will only arise where a citizen has challenged a rule of law, either of common law or, as generally understood, the contents of a statute or statutory instrument, first by reference to principles of ordinary construction, second by reference to the principle of constitutional construction and third by reference to its being repugnant to the Constitution, failing at every level, including the High Court and the Supreme Court, to establish its repugnance to the Constitution, those courts having declared it fully consistent with it.

The courts are now being bested with the jurisdiction to say of such a claim that, notwithstanding the rule being fully consistent with the Constitution, it is incompatible with the European Convention on Human Rights. Irish courts are being given jurisdiction to inform the public, and particularly this House, that the law as it stands, while clearly constitutional, is nonetheless incompatible with the European Convention on Human Rights. The following set of sequences then comes into play. First, the Attorney General will be notified. Second, he will notify this House of the situation and it will then be for it to examine the provision and decide, exercising its sovereign power under the Constitution, if it wishes to retain the law, notwithstanding the judgment of the court because it is constitutional and the people's representatives here wish it to remain, or, alternatively, to amend it and make it compatible with the convention in whatever way the Legislature chooses.

At that point, the House is put on notice that the law that it has put in place, despite having told the courts that they must interpret it in a manner compatible with the convention, cannot be so interpreted, and remains consistent with the Constitution without being consistent with the European Convention on Human Rights. Under those circumstances, the courts, under this scheme, would send the legislation straight back to this House and ask it what it proposed to do about it. The obvious answer is, if this House is of a mind to amend the law, to do so.

People have argued that it should somehow be possible for such a declaration to invalidate the law. That is not possible because by the time such a declaration has been made, the court will have found, first, that it is a law that must be interpreted in the way that it has decided and, second, that it is fully compatible with the Constitution. The notion that, at that stage, the Irish courts can somehow be told that something fully compatible with the Constitution can nonetheless be annulled by the courts, set aside or suspended because it is at variance with a decision in Strasbourg is unconstitutional as things stand and surrenders to Strasbourg the decision on what we do with any provision in our law.

Under those circumstances two questions arise, does this Legislature choose to act and what about someone who has suffered damage by being the victim of the application of a law found perfectly constitutional by the Supreme Court? If we said that such persons could claim damages as of right, it would mean that it was open to the courts to punish the State for enacting laws perfectly compatible with its Constitution and award compensation to people whose rights had not been infringed under the Constitution or as a result of the enactment of a law. I repeat that that is unconstitutional. It is not possible for this House to say that the State can be punished for doing things which it is entitled to do under the Constitution by being ordered to compensate people who as a matter of Irish constitutional law have been dealt with perfectly legally.

That is the reason the sum of money which the Attorney General would assess under the scheme is expressed as an ex gratia payment. He is required to advise the Government that if the person goes to Strasbourg, he or she will be entitled to a certain sum as compensation. When this Bill becomes law, it will state that people do not have to go to Strasbourg because the State will give them the same amount as they would get if they went there. However, we can never cut out the right to go to Strasbourg, and someone might want to get a judgment from the European Court of Human Rights in preference, for instance, to the Irish Supreme Court's interpretation of what the convention requires. We can never cut out the right of application to the European Court of Human Rights in Strasbourg to seek a declaration in those circumstances.

What we can do, however, is say that even where the Supreme Court has examined a matter in the most solemn fashion and declared it compatible with the Constitution, there is a mechanism whereby someone who has lost a case as a consequence can be the subject of an ex gratia payment in lieu of entitlement to compensation so that he or she need not go to Strasbourg unless wishing to do so to secure a declaration from the court there. People are entitled to go to Strasbourg. I can never cut off their line of application to the court there – my doing so would be wrong and in violation of the Strasbourg Convention.

However, they now have available to them domestically the following rights. If any Irish body established under law treats them in a manner inconsistent with the convention, they can sue it for damages under Irish law since there is a statutory duty on State organs to behave in a manner compatible with the convention. If any law still infringes their rights, they have the right to have an Irish court give it a meaning compatible with the convention, unless that is impossible, having regard to our rules of construction, including the clear meaning of the statute. If they go to court and establish that the legal provision, rule of law, statute or whatever it may be is compatible with the Constitution but for some reason not with the convention, they can have a solemn declaration from the highest court in the land laid before their own Parliament and a system of ex gratia compensation from the State without in any way interfering with their right to go to Strasbourg.

It is important to say that this goes further than that which the United Kingdom offers its citizens, to the utmost limits of what the Constitution allows me without proposing in this House an amendment to it so as to allow compensation as of right or an annulment by the Supreme Court of an Irish law by reference to Strasbourg decisions. I go the whole way, to the very limit. I have not stood back from the system to the tiniest extent. I have taken every step available to me, but still I am confronted by people who say that it is not enough, asking me to state that the European convention should have the force of law in the State. I have told the House before – I will not repeat it now – why that is impossible. It is as if one attempted to say that every past Irish law was hereby amended to make it compatible with the European Convention on Human Rights. If we were to say that, nobody would know the state of play in regard to any court's decision on Irish law. If it did have the force of law, it would be for the District Court, Circuit Court or High Court to state that the law may appear to say that but, in fact, it was subsequently amended by the version of this legislation introduced by Deputy Jim O'Keeffe.

That would mean that one would wake up one morning to read in one's The Irish Times or Irish Independent that Strasbourg had handed down a decision of one kind or another. It would be found that a case already before the Circuit Court was stopped in its tracks because the judge would say that he or she read in that day's newspapers that the Strasbourg convention had been interpreted authoritatively to mean X, and the plaintiff's or defendant's case would collapse because the law had changed.

A very important point, which nobody seems to remember, relates to the margin of appreciation. The Strasbourg convention was not designed to be a constitution for the member states or to have the exact same result in every member state. It is part of the jurisprudence of Strasbourg that two different states can in certain areas – not on fundamental matters such as torture and the right to self-incrimination and the like but in areas such as privacy and media rights – strike a balance which is, in the judgment of the legislature of those countries, correct for them.

For example, the same outcome need not emerge for both Greece and Ireland. I gave the example on Committee Stage that it is entirely possible for the Irish Government to strike a privacy law which would prevent paparazzi taking telephoto pictures of Irish people on beaches in certain circumstances while the Italian Parliament might decide that the rights of the media in Italy made that perfectly legitimate.

No uniform rule comes down from Strasbourg. A discretion in that type of area, known as the margin of appreciation, is conferred on member states and their peoples to decide the law as they so wish and to strike a balance, within broad parameters.

If we were to say that all Irish law is hereby amended to be consistent with the convention, we would effectively give to the Irish courts the margin of appreciation. If the courts say that the law relating to privacy and media rights is hereby amended in a way which is compatible with the European Convention on Human Rights, we would still be left in an area where it would be possible in some cases for the balance to be struck one way or another. However, we would have collectively handed that discretion in regard to the margin of appreciation to the Judiciary, telling it to make up its mind where the balance lies and not to ask us, as legislators, to take responsibility for it. That is neither right nor proper in the circumstances.

Whereas this may have been a somewhat lengthy contribution on my part—

Mr. Costello

A tour de force.

Mr. McDowell

—it is important that I put on the record my reasoning as to why we are proceeding this way. It is the most we can do under the Constitution and it is full-blooded.

Deputy Ó Snodaigh referred to the Belfast Agreement. The Irish Government undertook to have at least an equal protection of human rights south of the Border to that in the North, and we have that. The Deputy should remember that whatever Westminster says, the law north of Border is the law there notwithstanding the European Convention on Human Rights Act. Our Legislature operates on a different basis in that it must uphold the Constitution. Therefore, every Irish citizen, by definition, has a higher degree of protection south of the Border than that which obtains in the North. Our Parliament is not sovereign, the people are – through the Constitution as interpreted by the Supreme Court.

We have a system which is compatible with the United Kingdom approach to European Convention on Human Rights matters and with the laws it has put in place, but we go further than the UK in section 3 of this Bill. In those circumstances, the Irish State is not simply complying to the minimum with the Good Friday Agreement but to the maximum. We are delivering in full measure, almost to the point of overflowing, on our obligations under the Agreement.

Lawyers operating north or south of the Border, from the day when this is made law, will understand that the two systems are very similar in some respects but that the Irish system, not only because of the constitutional guarantees but also because of section 3 of this Bill and the right of action vested in every person in Ireland to sue public organs for failure to deal with them in accordance with the terms of the convention, contains much stronger rights.

I make no apology for saying to those Members who with good nature and well-reasoned, although incorrect, arguments criticise this Bill for not being what they call a direct incorporation of the European Convention on Human Rights that I do not accept the validity of such arguments. As many of the other amendments which flow from this are, as Deputy Jim O'Keeffe pointed out, out-workings of this fundamental difference of principle and approach, it was worthwhile having this debate at the outset of the discussion, although I am not denying Deputy O'Keeffe the right of reply. Otherwise, we might find that we had lost our audience, in so far as we have one – one never knows in this place, in bickering about minutiae and coming to the point of principle well into the debate on the amendments to this Bill.

I hope I have made my position clear. I thank the Deputy for the amendment but regret I cannot accept it.

An Ceann Comhairle

Deputy Jim O'Keeffe has two minutes.

Mr. J. O'Keeffe

I will reserve my detailed response to the Minister's exposition – I will not call it a tirade – for the closing remarks on the amendment.

Mr. McDowell

The Deputy would not get it out in two minutes.

Mr. J. O'Keeffe

I wish to deal with one issue before we close on this amendment. The Minister is dressing up in spurious constitutional clothes an ideological, political argument.

Mr. Costello

Hear, hear.

Mr. J. O'Keeffe

It is exemplified by the reference to the "foreign court in Strasbourg". We signed this convention some 50 years ago and support its provisions. Dismissing the court in Strasbourg as if it was something from Mars with which we would have nothing to do outlines exactly the Minister's approach. I will come back to that in my closing remarks. The Minister covered a lot of ground but there was one area he did not cover very effectively. Perhaps, in the two-minute intervention which he is allowed under the rules, he might deal with it.

I said in my opening remarks that, having looked at all the angles, my real objection to his approach is the lack of effective remedy. One of the basic principles of our constitutional law is that where there is a right, there should be a remedy. That does not exist in the context of the Minister's Bill. However the Minister may argue in regard to damages, which we will come to later, what is the position regarding remedies other than damages? The Minister, with respect, has not dealt with that. We talked in committee about injunctions etc. – the Minister may have a response on that issue – which I thought would be covered by way of amendment.

However, what is the position of somebody convicted of an offence who is in gaol? Can that person get a release under the Minister's approach? What is the position in respect of somebody with a conviction who goes to Strasbourg and gets a declaration of incompatibility? Does that conviction stand? These are the issues that have not been covered by the Minister and are not covered in the Bill. That is the core weakness in the ministerial approach. I ask him to deal with that aspect before I conclude on the amendment when I will deal with the other issues as well.

Mr. Costello

The Minister has given a strong defence of his position and the Ceann Comhairle was very tolerant because the Minister made a Second Stage speech two or three times. I ask the Minister to depart for a moment from his love affair with the Constitution and his hate affair with the European Union. If we were to directly incorporate the legislation into domestic law – we constantly incorporate international conventions, European Union directives, etc. into domestic law – and an incompatibility were to arise or the norms of the canons of the Constitution were to conflict with some provision in the Convention on Human Rights, what is the problem in dealing with that? We can still go through the procedures of dealing with it and providing a suitable remedy.

Why must we take this interpretative, conditional approach rather than accepting the fullness of the convention and incorporating it into domestic law? I do not understand that. We could have done it in a straightforward fashion and in accordance with best practice. The way we are doing it here is a sort of sleight of hand, with the Minister arguing for it under the pretence of the superiority of the Constitution, which nobody denies. The Constitution is the body of rights that only the people can change. It will always have superiority but that does not stop us from incorporating the Convention on Human Rights into domestic law and dealing with any problems that arise such as a conflict between the various norms of the Constitution and the convention.

Aengus Ó Snodaigh

The remedy to the constitutional position of the Six Counties or the northern statelet would be direct incorporation into this State. That might solve many problems. The point I made about the Assembly is that it is explicitly prohibited from passing any legislation which is contrary to the convention. That is the position we must take. We also need to take the position of direct incorporation so that when Acts or directives from this Parliament are found by the courts to be incompatible, they can be struck down and discretion will not be left with the Government to decide what to do in such an event. The legislation could continue in operation after a court finding that it was incompatible. Certain rights are more comprehensively protected under the Constitution, which is to be welcomed because a society which has the maximum amount of rights protection is a healthy one. That is what we should strive to achieve.

Direct incorporation is not contrary to our Constitution. If we went ahead with the method of incorporation suggested by the Opposition, the Constitution would remain the highest law in the land because individuals would be empowered to have their rights under the European Convention on Human Rights vindicated at a national level and a full range of remedies at the courts' disposal presented to them. The current method is minimalist and I will give examples of that when I deal later with some of the other amendments.

Mr. McDowell

First, when I use the term "foreign" I am using it in contradistinction to "domestic". I welcome all the decisions Strasbourg has made about Ireland. I welcome the Norris decision and the decision in Heaney and McGuinness. I am not in any way resentful of any decision ever made by Strasbourg about Ireland. Had Deputy O'Keeffe or I been a member of the Supreme Court, I hope we would have done Senator Norris proud in his action at the time without the necessity of his having to go to Strasbourg but we were not and other people were, and that is the way our system works.

Second, in relation to criminal matters – doubtless we will have another opportunity later in the Bill to consider that – somebody who is convicted and in an Irish prison will have had the opportunity to challenge the validity of that law by reference to the Irish Constitution. They will have had the entitlement to have the law by which they were jailed interpreted in a manner consistent with the convention. It is only in the circumstance where somebody says that this criminal law is inconsistent with the convention but the Irish courts say it is fully consistent with the Irish Constitution, which I believe is extremely theoretical and unlikely to occur in practice – Heaney and McGuinness is a rare example of that, that any difficulty would arise. In those circumstances, in a sovereign State we have to decide what to do in these circumstances. Do we amend our law and keep these people in prison or change our law and release them? If they are to be released, they can be released with a pardon. We can expunge their guilt by a President's pardon, which was a matter of discussion at an earlier stage.

Deputy Ó Snodaigh spoke about full incorporation in Northern Ireland because the statute establishing the Assembly requires it to operate in accordance with the convention. I appreciate that but the very word he used –"statelet"– is the answer to his problem. The Assembly is required to do that because the Act of Westminster says it must. We are in a different position. We are free to do whatever we want to do under the Constitution and we can never surrender that popular sovereignty. Under the Constitution, the sole and exclusive right for making laws in this State is vested in the Oireachtas, and nowhere else, and the only courts that can strike down Irish laws are the High Court and the Supreme Court and only by reference to the terms of the Irish Constitution.

Mr. J. O'Keeffe

By agreement, we have decided to try to get to the core issue under this amendment because that issue affects so many of the amendments. We hope then to be able to deal with the other amendments in a much more timely fashion.

The core issue here is the incorporation of the convention into our domestic law. That is where the fundamental difference arises between the Minister's approach and that of the Opposition. We argued this at length in committee and for me it boils down to the question of the right to an effective remedy. I am not satisfied with the Minister's response on this because I do not understand how we can regard as an effective remedy a situation where, in regard to damages, we have ex gratia payments at the discretion of a Govern ment and, in regard to those who may have been convicted of criminal offences, the possibility that they might be released, again at the discretion of Government.

Article 13 of the convention is clear on the question of a right to an effective remedy. It states that everyone whose rights and freedoms as set forth in this convention are violated shall have an effective remedy before a national authority—

Mr. McDowell

That is part of our law.

Mr. J. O'Keeffe

—notwithstanding that the violation has been committed by persons acting in an official capacity.

Mr. McDowell

That is not incorporated in the UK Act.

Mr. J. O'Keeffe

There are other aspects of UK legislation which I do not regard as perfect either. I have a contribution to make on Irish legislation, which is what we are dealing with here. We are not in any way providing for effective remedies as laid down in the convention. From that point of view, there is a basic, inherent flaw in the Minister's approach.

I turn to some of the points raised by the Minister. How important is it to have an effective remedy at national level? The Minister is correct that the number of Irish cases brought before the European Court of Human Rights has not been significant. However, our faith in the convention has been vindicated by those cases which were upheld in the court. With the accession of the central and eastern European countries to the Council of Europe, the volume of cases is enormous. I understand 35,000 cases were brought before the court last year, which is all the more reason to strengthen our focus on having convention rights upheld and remedies given at domestic level. This was highlighted time and again in a review of the courts system chaired by the Irish ambassador to the Council of Europe, Mr. Harman. The review also stressed that we need to deal with matters at national level, one of the reasons the Minister's approach to addressing this issue is entirely unsatisfactory.

While I do not pretend to be an expert in this area, I have listened and spoken to people, all of whom have taken a contrary position to the Minister, whose own colleagues on the Bar Council have stressed in writing their "strong preference for the legislative incorporation of the Convention into domestic law in substitution for the minimalist approach adopted in the present Bill." The Opposition parties which have been using the expression "minimalist approach" did not dream it up, it was used by the Minister's colleagues.

Mr. McDowell

Of the 12,000 barristers in this country, how many wrote the statement the Deputy cites?

Mr. J. O'Keeffe

The statement emanated from the Bar Council. Every barrister appears to be out of step with the exception of the Minister, whose colleagues state: "This requires not simply that the detailed provisions of the Bill as initiated be amended in a piecemeal fashion, but that as a matter of Irish law the Convention be placed in a superior position to ordinary laws subject only to the Constitution, and that it be capable of direct enforcement by means of all appropriate judicial remedies before the Irish Courts." Essentially, the range of amendments which I and my colleagues have tabled are designed to achieve this purpose.

The Minister highlighted what he considers to be the awful impact of direct incorporation of the convention. It has not caused problems in other countries. As I understand international law, there are two approaches to incorporation, the direct one known as the monist approach and the dualist approach. We are in the latter category as we have decided on the manner in which we want to incorporate the convention. The kind of approach we oppose has been adopted in many other countries, including Germany and Italy which appear to offer appropriate comparisons from our perspective.

Mr. McDowell

Do they argue that the outcome there is superior to ours?

Mr. J. O'Keeffe

They also have constitutions, yet were able to arrive at a position in which they directly adopted the convention, albeit subordinate to their constitutions.

Mr. McDowell

Has the outcome been better than ours?

Mr. J. O'Keeffe

They addressed the question of how incorporation would affect prior and subsequent legislation. With all due respect to the Minister, this matter can also be addressed here. Even the basic rules of jurisprudence would cover it in that later law has precedence in the case of conflict. This rule applies to all laws passed here. The basic law of jurisprudence would also cover the direct incorporation of the convention.

In relation to future legislation, conflicts are likely to be rare and Members of the Oireachtas and the Attorney General would be aware that we had adopted the convention. In addition, a statement of compatibility is to be included in legislation. Even if something slipped through, I believe the courts would bend over backwards to reconcile it and lower courts would refer the matter to a higher court. I do not foresee problems arising in relation to future legislation either, which brings us back to the question of the kind of approach we want. Do we want a rights based approach, as some people have been urging, or one based on obligation, that is, by which we must take certain minimal steps to be in com pliance with the notion of incorporation, which is what the Minister has done?

I stated that I felt the Minister was dressing up in spurious constitutional clothes a political ideological argument. If this is the case, he is entitled to take such an approach. However, it is important to stress that it is not shared by anybody I know with few exceptions. I do not pretend to be an expert in this complex area. However, virtually everything I have heard or read on the subject has been critical of the Minister's approach. In fairness, he argues his case, as one would expect, which can be boiled down to the superiority of the Constitution, a concept which I fully accept. I see no problem in maintaining the superiority of the Constitution in the event of direct incorporation. Direct incorporation is not a problem and has not been found to be such by the Bar Council, the Law Society or the Human Rights Commission, all of which have investigated the issue in great depth, or senior judicial figures and learned colleagues of mine and of the Minister.

Mr. McDowell

I know of no judge who has argued in favour of incorporation.

Mr. J. O'Keeffe

Has the Minister read Mr. Justice Barrington's views on incorporation?

Mr. McDowell

I was referring to current judges.

Mr. J. O'Keeffe

Mr. Justice Barrington had no problem with direct incorporation, stating: "All the other countries which have ratified the Convention . . . . have now incorporated the Convention into their domestic law so that people who want to vindicate their Convention rights can do so in their own country." He advocated a similar approach here when he stated: "The big difference would be that when the Convention is made part of domestic law, it will be accessible to the man or woman in the street and they will not have to spend a small fortune and wait for six to eight years to get a decision from Strasbourg." I thank the Minister for raising the question of support among judges for incorporation. Mr. Justice Barrington, the judge nearest to hand, is completely in favour of and advocates the direct incorporation approach.

I could quote many other people, but the Minister has already heard the relevant submissions and rejected them. We are not talking about adopting and incorporating the convention on the basis of a quasi-constitution. Our approach is clear, the adoption and direct incorporation of the convention would be subject to the Constitution. I have not the slightest doubt that this approach would stand up constitutionally. It has been advocated by so many people that I had assumed the Minister would have accepted it without question. It is not helpful to argue that the Bill is superior to the United Kingdom Bill. I am not sure that is relevant. Irish legislation is superior in some respects and UK legislation is superior in other respects. We can discuss that when we discuss the detail of the Bill. The relevant point is that we should look for best practice. All the advice is that best practice will arise from direct incorporation.

We are pushing our case against a locked door. The arguments have been made and the logical views have been presented. There are none so deaf as those who will not hear, although I do not wish the Minister any harm. The Minister has presented a closed ear to everyone who has a view on this issue. He is adopting the wrong approach, although perhaps that is the wrong way to put it. I accept it is an improvement on the present situation and I want to see incorporation. However, this is not incorporation. The Long Title of the Bill highlights that in that it gives further effect, as the Minister said. He accepts it is not an incorporation of the convention. If the Minister persists in that approach, as he suggests he will, we will not directly incorporate the convention. That will have to wait for another day. The Minister referred to the "O'Keeffe" Bill. Perhaps 2006 will be the time to do it.

I do not think the Minister will accept my amendment, but my colleagues and I felt it was important to put the arguments on the record. On that basis, I will press the amendment to a vote.

Amendment put.

Tá

Allen, Bernard.Boyle, Dan.Breen, Pat.Broughan, Thomas P.Bruton, Richard.Burton, Joan.Connaughton, Paul.Connolly, Paudge.Costello, Joe.Coveney, Simon.Cowley, Jerry.Crowe, Seán.Cuffe, Ciarán.Deasy, John.Durkan, Bernard J.English, Damien.Ferris, Martin.Gilmore, Eamon.Gormley, John.Gregory, Tony.Hayes, Tom.Healy, Seamus.Higgins, Michael D.Hogan, Phil.Howlin, Brendan.Kenny, Enda.Lynch, Kathleen.McCormack, Padraic.McGinley, Dinny.

McManus, Liz.Mitchell, Gay.Mitchell, Olivia.Morgan, Arthur.Murphy, Gerard.Naughten, Denis.Neville, Dan.Noonan, Michael.Ó Caoláin, Caoimhghín.Ó Snodaigh, Aengus.O'Dowd, Fergus.O'Keeffe, Jim.O'Shea, Brian.O'Sullivan, Jan.Pattison, Seamus.Penrose, Willie.Quinn, Ruairi.Rabbitte, Pat.Ring, Michael.Ryan, Eamon.Ryan, Seán.Sargent, Trevor.Sherlock, Joe.Shortall, Róisín.Stagg, Emmet.Stanton, David.Upton, Mary.Wall, Jack.

Níl

Ahern, Dermot.Ahern, Michael.Ahern, Noel.Andrews, Barry.Ardagh, Seán.Aylward, Liam.Brady, Johnny.Brady, Martin.Brennan, Seamus.Browne, John.Callanan, Joe.Carty, John.Cassidy, Donie.Collins, Michael.Cooper-Flynn, Beverley.Cregan, John.Curran, John.Davern, Noel.Dempsey, Tony.Dennehy, John.Devins, Jimmy.Ellis, John.Fahey, Frank.

Finneran, Michael.Fitzpatrick, Dermot.Fleming, Seán.Gallagher, Pat The Cope.Glennon, Jim.Grealish, Noel.Hanafin, Mary.Haughey, Seán.Healy-Rae, Jackie.Hoctor, Máire.Keaveney, Cecilia.Kelleher, Billy.Kelly, Peter.Killeen, Tony.Kirk, Seamus.Kitt, Tom.Lenihan, Conor.McDowell, Michael.McEllistrim, Thomas.McGuinness, John.Moloney, John.Moynihan, Donal. Moynihan, Michael.

Níl–continued

Mulcahy, Michael.Nolan, M. J.Ó Cuív, Éamon.Ó Fearghaíl, Seán.O'Connor, Charlie.O'Dea, Willie.O'Donnell, Liz.O'Donoghue, John.O'Donovan, Denis.O'Flynn, Noel.O'Keeffe, Batt.O'Malley, Tim.Parlon, Tom.

Power, Peter.Power, Seán.Ryan, Eoin.Sexton, Mae.Smith, Brendan.Smith, Michael.Treacy, Noel.Wallace, Dan.Wallace, Mary.Walsh, Joe.Wilkinson, Ollie.Woods, Michael.

Tellers: Tá, Deputies Durkan and Stagg; Níl, Deputies Hanafin and Kelleher.

Amendment declared lost.

An Ceann Comhairle

Amendments Nos. 3 to 10, inclusive, are alternatives to amendment No. 2. Amendment No. 41 is consequential on amendment No. 10 and amendment No. 47 is related to amendment No. 10. Amendments Nos. 2 to 10, inclusive, 41 and 47 may be taken together by agreement.

Mr. J. O'Keeffe

I move amendment No. 2:

In page 3, to delete lines 16 to 37 and in page 4, to delete lines 1 to 39.

I hoped, had we won the vote, that these amendments would be consequential on the change to direct incorporation but I will not reopen that argument. I wish to focus on the exclusion of the courts from the present definition of "organ of State". This is an important issue that needs to be clarified. Under the definitions section, an "organ of State" includes a tribunal or any other body, other than the President or the Oireachtas or either House of the Oireachtas, a committee or a court.

During the discussion on amendment No. 1, a comparison was made between Irish legislation and the UK equivalent but the Minister did not focus on that issue. The UK legislation is stronger. The definition excludes the courts specifically on the basis that the courts have a duty to uphold the Constitution and the law and their specific inclusion would add nothing to that position. A number of experts strongly disagree, including representatives of the Law Society. They feel it is important that the courts should be specifically defined as an "organ of State" and convention responsibilities would follow from there. They point out that the experience of the UK Human Rights Act in including a court in the definition of "public authority" has much to commend it in this regard.

The inclusion of the courts does not interfere with the principle of separation of powers in the UK and I do not envisage that happening here. I am not talking about the judicial function of the judges but about convention rights such as the right to a speedy trial, a right to a decision or to clarification as to the basis of a decision. Such rights need to be looked at and would perhaps be given a focus in the context of the convention. If the Minister was satisfied that we were not interfering with the separation of powers and were including the courts in a context where the convention would only pertain to these kinds of issues, then I can very reasonably ask him to reconsider his attitude to that amendment and allow the courts to be included, as a number of eminent bodies have suggested.

A number of the other amendments are consequential on the core issue so I will not go into them. I will leave it to my colleagues to deal with the issues they are promoting, and we will have an opportunity to return to these later. I would be very happy if the Minister were to accept the amendment on the inclusion of the courts.

Mr. Costello

I have a number of amendments included in this package presented to us. The first is amendment No. 3, "In page 2, line 25, to delete "2" and substitute "1". That is because the legislation as presented includes only a limited number of the convention provisions, Articles 2 to 14, inclusive. Article No. 1 is missing but this is an appropriate article for inclusion. It is not good enough to leave Article No. 1 out because it states very specifically in the very first line that there is "an obligation to respect human rights." We then get a list of the rights and freedoms covered by the convention. This article, which is effectively a preamble to the following articles, is an important one and imposes an obligation to respect human rights. That obligation should be included in the Bill and I do not see why the Minister should not accept that article. So instead of starting with Article No. 2 we should start with Article No. 1. That is my first amendment.

My second amendment, No. 4, further extends the Articles that are included. I am seeking, after Article No. 14, to include Articles Nos. 34 and 46. These articles extend the area of essential rights. Article No. 34 provides that the court may receive applications from any person, non-governmental organisation or group of individuals. It is very important that we espouse the right of any person to have access to the court in Strasbourg, and under no circumstances should there be any interference with that individual right to access the courts. That is important enough to be included in the Bill. Why should it be excluded? Why should it not be explicitly included?

That is Article No. 34. I then go on to look at Article No. 46. I think there was a misprint in my amendment on Committee Stage. Again, this deals with an important right – to have a judgment of the European Court of Human Rights implemented so that the State would acknowledge and undertake to abide by the final judgment of the court. There is not much sense in going to the court and getting a judgment unless there is a commitment that the decision of the court will be accepted and implemented. These are eminently desirable amendments to section 1(1) and I ask the Minister to accept them.

I go on further then in amendment No. 5 to insert a reference to Protocol No. 12 to the convention signed in Rome on 4 November 2000 so that this would also be included. We have signed that protocol but it has not yet been ratified. There is no good reason it should not be included. It refers to equal treatment and it is desirable that a guarantee of equality at European level be included and undersigned. We should include the protocol as the corpus of fundamental rights that we would accept.

Amendment No. 6 is in the same vein and seeks to include Protocol No. 13 to the convention concerning the abolition of the death penalty. That has been signed and ratified, I understand, and the Minister has referred to the death penalty in the Bill. Section 1(1)(c) refers to Protocol No. 4 to the convention done at Strasbourg in 1983. The difference with Protocol No. 13 is that it refers to the death penalty in all circumstances, and we should go that step further and subscribe to that as well. If I remember correctly I think the Minister said on Committee Stage that he did not want to incorporate any references to anti-death penalty legislation in the Bill, but as he has already done so he might as well accept the up to date protocol and subscribe to the total abolition of the death penalty.

My final amendment in this package, No. 9, is undersigned by Deputy O'Keeffe and I and Deputy O'Keeffe has already spoken on it. This concerns the question of whether we include the courts as a body on which we impose a specific duty, as an organ of the State, to be cognisant of the provisions of the European Convention on Human Rights in all of its activities. It is important that we include the courts. In my original amendment I had included both Houses of the Oireachtas but I have omitted that from this Report Stage amendment.

There should be such a duty on the courts. It is not an issue of a separation of functions but of including a specific responsibility upon a public organ of the State which has a particular role in human rights and decision making. The courts should be listed in this specific fashion. I do not see why the courts should be omitted. The courts are liable to obiter dicta in their expressions as much as anybody else. We have seen situations in the not too distant past where District Court judges have apologised in public for statements they made that were construed by the Equality Authority and others as being discriminatory and racist in their effect. Why should we exempt the courts? Why should the courts not be a body that has a duty of care in the provisions of the European Convention on Human Rights? The courts should be included and they should not be listed as an exempted organ of State.

Aengus Ó Snodaigh

My amendments are in a similar vein to those proposed by the other two Deputies. Amendment No. 7 is a simple amendment which should be accepted so that Protocol No. 12 and Protocol No. 13 of the convention can be listed in section one. The amendment would also give effect to subsequent protocols, with the proviso that they could be expressly excluded by regulations made by the Minister for the purpose of this definition. We would be given an opt-out clause. We should give recognition to Protocol No. 12 and Protocol No. 13, as my colleague, Deputy Costello, has proposed.

Protocol No. 13 is the most recent on the death penalty and should be included in order to bring our legislation up to date. Protocol No. 12 is an anti-discrimination provision and it is strange that it is absent, considering that we are talking about human rights. This would be an appropriate place to give additional recognition to that protocol.

Amendment No. 8 is slightly different from that proposed by Deputies Jim O'Keeffe and Costello. Both the Deputies raised the question of the courts and I cannot see why the courts are excluded. I also find it strange that the Houses of the Oireachtas are excluded. The President, the Houses of the Oireachtas, a committee of either House or a joint committee of both Houses and a court are excluded from the listed organs of the State. We are obliged to perform our duties in the Houses and in society in a manner compatible with the State's obligations. We are signatories of the convention and it would show that we are serious about ensuring that this legislation will have the effect of law if all aspects of the State are covered by it.

Amendment No. 10 is related to amendment No. 41. These amendments will impose a duty to ensure compatability with respect to universal rights and will involve the Human Rights Commission in the process. My purpose is to ensure that, when passing all future Bills, the Houses of the Oireachtas would issue a statement to the effect that the Bill is compatible with the provisions of the convention and that the Human Rights Commission would also issue such a statement. This would ensure when we are planning and debating legislation that we have human rights foremost in our thoughts, consider the effects of legislation and ensure that it does not impinge on the rights guaranteed by the European Convention on Human Rights or any human rights. The statement in question would be laid before the Houses of the Oireachtas and would be there for all to see. If a statement could not be laid before the Houses the Government would be obliged to declare that such legislation would not be in the spirit of the convention and would have to explain itself.

Mr. McDowell

It has been suggested that the courts should be included in the term, "organ of State". If I were to accept that amendment one of the most obvious consequences would be that the provisions in relation to sections 3(1) and 3(2) would apply and people would be allowed to sue the courts in the courts in respect of court decisions. I am not interested in that and I will not go down that road. It is not a good idea. For the reasons I mentioned and to which Deputy O'Keeffe referred in his summation of what happened on Committee Stage, it is not necessary that such a step should be taken. I refer Members of the House to the provisions of section 2. Section 2 says that "in interpreting applying any statutory provision or rule of law a court shall, so far as it is possible subject to the rules of law relating to such interpretation application, do so in a manner compatible with the State's obligations under the convention's provisions". That includes all the statutes establishing the courts and all the rules of court themselves.

When we are talking about a speedy trial and the like and when people are applying for adjournments which would defeat the right to a speedy trial, the court, in looking at the Courts Acts and the rules of the superior courts, in the case of the superior courts, has to look to its own rules and apply them in a way compatible with the European Convention on Human Rights. It is not as if the courts are completely out of the loop in this but it would be a mistake to attempt to create a liability in damages on the part of the courts to ordinary citizens in respect of court decisions. That is a step I do not propose to take. I do not see that it is a good idea at all and it is not necessary that we should do that. It would open up a wholly unpredictable and chaotic situation. People would then start suing courts for decisions the courts had already made. The notion of res judicata would fly out the window since every action would give rise to a subsequent action that the decision in the first action was somehow in breach of somebody's convention rights and allow them to re-open the issue and sue the court for its own decision. I do not think that is a good idea.

I accept court delay can inflict injury on potential litigants and people affected by litigation. I am taking steps under other legislation which has been enacted and which I hope shortly to bring into operation to create a register of reserve judgments and to put in place a mechanism to ensure that judgments are not unduly delayed. The procedures of courts fall firmly within the provision of section 2 in so far as they are governed by statute or rules of court. Therefore what is being sought here is not necessary and if it became part of the law could have all sorts of implications about which I do not like to think. In case anybody might think so, I am not being protective of the courts. I am simply trying to contain chaos and the amendment to bring the courts within this rubric would introduce chaos.

If Deputy Ó Snodaigh's proposal were accepted, the President and the Houses of the Oireachtas could be sued for their behaviour also.

Mr. Costello

That might not be a bad thing.

Mr. McDowell

That would open up a major can of worms and I am not anxious to go down that route. Under the Constitution, the behaviour of the President cannot be impeached. The Houses of the Oireachtas are free to legislate in accordance with the Constitution. I do not want somebody getting some kind of injunction against the Oireachtas preventing it from doing something on the basis that he or she alleges that to do so would infringe the European Convention on Human Rights. This is not a well thought through doctrine for us to adopt.

There is a proposal that various other protocols be included. The Constitution provides that no international agreement shall form part of a domestic law of the State except where so decided by the Oireachtas. Deputy Ó Snodaigh's proposal that any other subsequent protocols to the convention, unless expressly excluded by regulations made by the Minister, should fall within the definition of the convention would in effect purport to give the Government, in signing a convention, a legal force in the State that would be inconsistent with the Constitution.

Likewise the two conventions mentioned by Deputy Costello and Deputy Ó Snodaigh have not yet been ratified by the member states of the Council of Europe. They are not in operation. At some stage they may come into operation. If and when they do, we should decide whether we want to bring them into operation here. Every time we amend the law there is nothing lost by sitting down solemnly and deciding what should be the effect of the law rather than giving it to me or my successor to make a substantial change to Irish law by simply making a regulation for the purposes of the definition. That would not be good. I will not go into the constitutionality arguments, but it would probably be unconstitutional to give the Minister for Justice, Equality and Law Reform such a broad discretion to incorporate into Irish law by the absence of making a ministerial order agreements made by other people.

I do not propose to accept these amendments. It is not a good idea to make every court capable of being sued on the ground that it is alleged that it has infringed somebody's rights. It would be a retrograde step to do so.

Deputy Costello mentioned that carrier liability was an issue of some interest to him. I remind the Deputy that under European law we are obliged to introduce carrier liability. Although I read with interest the press reports of what was said at the Joint Committee on Justice, Equality, Defence and Women's Rights yesterday, I have to operate on the basis of the legal advice available to me. The Office of the Attorney General has carefully proofed the terms of that legislation and is of the view that it is compatible with the Constitution and our international legal obligations. I would not do something other than that.

Deputy Ó Snodaigh has suggested that we should put into law requirements in respect of certain legislation that would be the subject of prior proofing. Under article 15.12 of the Constitution, each House of the Oireachtas is free to make its own regulations. It is perfectly open to Dáil Éireann to say that no Member shall move a Bill, whether from the Government benches or from the Opposition benches, unless he or she has carried out certain tasks in relation to that Bill. Seanad Éireann would also be perfectly free to have such a rule if it wanted. It might make Private Members' business a rather slow procedure if Members had to wander around to the Human Rights Commission for all proposed legislation. It would also have to apply to important amendments.

Under the Constitution – and here we differ from the United Kingdom – it is incompetent for both Houses of the Oireachtas to pass a law, which forces either House of the Oireachtas to have any particular procedure within its walls. It is not competent for Dáil Éireann to pass a Bill into law, either with or without the consent of Seanad Éireann, which has the effect of tying either House as to what it does or does not do by way of procedure in relation to Bills presented before it. It is important that we have some autonomy under the Constitution to choose our own procedures. It would not be competent for the Government of the day to tell the Opposition through a law what Senators could or could not do by way of proposing Bills in the Seanad. That would be a very retrograde step. It is not open for me to do it and I cannot accept that type of amendment either. There is nothing to stop this House at any future stage bringing in a Standing Order saying that a Minister and/or Members of the House generally must go through certain proofing requirements before producing legislation. However, I wonder if that would be wise. Members might find it very troublesome and intrusive in the end.

The Government acts on the advice of the Attorney General. The Human Rights Commission is perfectly free to be of the view that any measure going through the Oireachtas is incompatible, with the Constitution, the European convention or any other measure and to express its view to that effect. The Human Rights Commission is not an authoritative decision-making body in respect of compatibility; only our courts are. In so far as Deputies are elected by the people it is up to us to propose what we want in the Dáil. There are proposals here in the form of amendments to the Bill which I say are unconstitutional but the Ceann Comhairle's office did not say: "Sorry, we have seen your counsel's opinion and your amendments are unconstitutional so you cannot move them." We would have a very repressive atmosphere in the House if every amendment proposed by the Opposition or every step in the legislative process was subject to a legal veto because it was in conflict with one person's view of what the law should be. Even the Attorney General gets it wrong from time to time and is told by the Supreme Court that legislation he has carefully vetted is repugnant to the Constitution. It is the courts which make that decision, not the Attorney General, though the Government is, by convention, bound by his advice in the matter.

Opposition Deputies are not bound by the Attorney General's advice and they are free to put forward what they see as being compatible with the Constitution without being told by some "Big Brother" on the Government side that their Bill is out of order because, on the Government's advice, it is incompatible with either the convention or the Constitution. We do not operate like that. The House is a democracy and even though people may find Standing Orders constraining sometimes, at least they are the rules we have made for ourselves. We cannot tell the Seanad what rules they should apply to matters like this.

Mr. J. O'Keeffe

This is very simple. The Minister has not dealt with two very important issues. Under the Good Friday Agreement the Government committed itself to take steps to further strengthen the protection of human rights in its jurisdiction: "The measures brought forward will ensure at least an equivalent level of protection of human rights as will pertain in Northern Ireland."

There are two issues involved here. Section 22(6) of the UK Human Rights Act 1998 provides that the Act extends to Northern Ireland. Two aspects of that Act are not part of the Bill we are dealing with and they will cause difficulties in relation to our commitments under the Good Friday Agreement. Section 6 of the UK legislation provides that public authority includes courts or tribunals but his Bill specifically excludes courts. I am not talking about separation of powers and judicial acts but if the Minister is concerned about that, section 9 of the UK Act provides for a restriction on the approach that can be taken in relation to the courts.

The other issue the Minister has not dealt with arises in relation to amendment No. 47, which states:

A Minister in charge of a Bill in either House of the Oireachtas must, before Second Reading of the Bill–

(a) make a statement to the effect that in her or his view the provisions of the Bill are compatible with the Convention provisions (referred to in this section as 'a statement of compatibility'),

I got that from the UK legislation.

Mr. McDowell

That is because they can legislate for what happens in Parliament.

Mr. J. O'Keeffe

There is a requirement in the UK legislation for a statement of compatibility. I foresee a situation where we will be accused because of the minimalist nature of the Minister's proposals and we will be in difficulty on both those grounds. It will be argued that in Northern Ireland the courts are included subject to the restrictions under section 9 of the UK Act and that there is also the provision regarding statements of compatibility under section 19 of the UK Act. What is the Minister's answer to those charges, as I do not doubt they will be made?

Mr. Costello

Regarding the extension of the provisions to cover Protocols 12 and 13, I understand we have signed Protocol 12 but have not ratified it and that we have both signed and ratified Protocol 13. This is not a question of incorporating legislation that has not been dealt with to a considerable degree in this jurisdiction. The thrust of my amendments Nos. 4, 5 and 6 was to provide some structure whereby we are not limited by the existing protocols but that we look to the future and a time when the convention will have further protocols added to it. We should provide a mechanism which enables us to deal with those protocols without going back to full scale legislation. A mechanism should be built into the legislation to enable us to do so but the Minister is saying that would be unconstitutional.

We have spent 50 years trying to get the convention on the Statute Book and we have spent two further years trying to get it through the House. It would be a shame if we had to wait for more legislation when further protocols emerge in future just because we do not have a suitable mechanism whereby we can incorporate them into the main body of legislation, as we are doing now. Does the Minister or his advisers have any suggestions as to how we could do this apart from simply saying it cannot be done? If so, then every time a new protocol is introduced we will have to introduce new legislation and go through the entire process again, irrespective of the protocols we may have signed into law already. I am looking for an enabling mechanism with those amendments to address Protocols Nos. 12 and 13 also.

Deputy O'Keeffe made a valid point regarding the Good Friday Agreement and the equivalence of implementation of human rights on all parts of the island. The UK Human Rights Act 1998, which the UK obviously introduced far earlier than we did, makes specific provisions for the courts as an organ of state. If that is the situation operating in Northern Ireland then we do not have equivalence. I am not saying the UK Act is superior to the position in our jurisdiction, as we have the Constitution, but this is a discordant note. We have the Constitution on one hand, emphasising its superiority, and on the other hand we are curtailing the way in which the European Convention on Human Rights is being written into our domestic law. Clearly there is a discordant note in relation to our dual implementation, North and South, which was not intended in the Good Friday Agreement.

Equivalence in the introduction of human rights was sought and the Good Friday Agreement and the Human Rights Commission all flowed from that. The Minister is putting too much emphasis on the possibility that the courts may be open to suing. We are talking about a duty to abide by the conditions of the convention imposed on all organs of State including the courts. I always thought a tribunal had a certain judicial function. As the Minister said, an organ of State is one established by law through which any of the legislative, executive or judicial powers of the State are exercised. Obviously the courts exercise the judicial powers of the State.

The Minister should consider this important issue again. It would be valuable if we could get the equivalence in rights that was envisaged in the Good Friday Agreement.

Mr. McDowell

I have already stated the reasons I do not want the courts to be regarded as an organ of State. We are not in the same position as the United Kingdom. How many times do I have to say that the United Kingdom's courts are not bound by a written constitution? Its judiciary is bound by an oath to the sovereign power which is obliged to do whatever parliament says it can do. It is wholly different in the Republic in that we have courts which must uphold the Constitution and the law. Justice must be administered in those courts in accordance with the law and the law, on this occasion, requires that every statute, including the statute establishing the courts and those governing their procedure, will, when this Bill is brought into effect, be required to be interpreted in a manner consistent with the convention, so we have a slightly different situation. There is not some non-equivalence. However, I do not want to create uncertainties or to expose the courts and the legal system to a different form of action and set of remedies. We have a system at the moment and I have to be careful about experimentation.

As regards the statement of compatibility, in the United Kingdom, Westminster can pass a Bill stating that half of the MPs are hereby excluded and that is the law. Westminster can say that House of Lords Members can stand on their hands when voting and that is the law. We have a different system here in that our procedure is determined by the Constitution which states that each House decides its own procedures. It is not intra vires for either House of the Oireachtas or for both of them to tell a House how it should conduct its business or the circumstances in which Bills may be brought forward. One is free to bring forward a Bill as long as the rules of this House allow it and the only authority under our Constitution which can tell one that one must comply with any precondition is this House. It is different in Westminster. It can abolish half the House of Lord by pushing through a vote under the parliament Act.

Mr. Costello

We are talking about a public duty.

Mr. McDowell

One can talk about duties all one likes but the point is that each Member of this House has a right to propose legislation in accordance with the Standing Orders of this House. If this House wants to put a liability on Ministers or on all Members, it is free to do so but it cannot make it part of the law of the land. It is open to us, at the click of a finger, to reverse that and to change our Standing Orders because in that respect, this House is autonomous, as is Seanad Éireann. That is my difficulty. I cannot agree to this.

This House might decide it would be a great idea for Seanad Éireann to meet four days a week—

Mr. Costello

Five days.

Mr. McDowell

—but we are incompetent to make that decision. That is a simple fact.

Mr. J. O'Keeffe

We have a genuine problem here. We have entered into obligations under the Good Friday Agreement, which I have quoted, and we have agreed that the measures brought forward will ensure at least an equivalent level of protection of human rights as will pertain in Northern Ireland. On these two issues I understand the Minister's difficulties but the blunt fact is that measures which apply in Northern Ireland under the Human Rights Act 1998 include the courts and provide for a statement of compatibility. We are specifically excluding the courts in our legislation and are not providing for a statement of compatibility for legislation. I can see that resulting in some difficulty, particularly in relation to the all-Ireland charter of rights on which there is also agreement under the Good Friday Agreement. There could be some difficulties on both fronts but, with all due respect to the Minister, difficulties are there to be confronted and overcome.

If we want to ensure an equivalence of rights, let us see how we might do so in relation to the courts. How do they do it in the UK? I accept they do not have a written constitution but they are bound by constitutional rules. When including the courts, the UK had to provide for restrictions on proceedings in respect of judicial acts under section 9 of their legislation. Is that a precedent we could follow here? I highlighted what I thought were convention issues and I was not talking about judicial decisions. I accept entirely the separation of powers in that regard. The Minister touched on one of them in relation to court delays. I am glad he is dealing with that in other ways. That is something which could be and, in a few instances, was a cause of scandal. Litigants who go to court are entitled to decisions in relation to reserved judgments within a reasonable time. The case was well made at the time that there was not sufficient administrative and other support for judges. That is a right under the convention and should be a constitutional right – it probably would be if it came to it. This issue needs to be dealt with.

There is another issue which is perhaps a little more difficult, that is, the question of a court giving reasons for a decision. That is a little unclear under the convention and perhaps will need to be looked at again. Under the UK legislation, which applies to Northern Ireland, they did not rush in willy-nilly and include the courts. They provided for difficulties which they foresaw in relation to judicial acts and they included a separate section on that.

The same difficulty may arise in relation to statements of compatibility. The Minister talked about Standing Orders, Private Members' Bills and so on. The UK legislation does not apply to Private Members' Bills but puts a specific requirement on a Minister of the Crown.

Mr. McDowell

I know that.

Mr. J. O'Keeffe

I accept that from the point of view of procedures, Standing Orders apply here. I understand the constitutional difficulties that, in general, parliamentary procedures are a matter for parliament to decide. Again, I suggest that it is a difficulty which could be overcome. I do not think requiring a Minister to make a statement of compatibility before the second reading of a Bill could be regarded as unconstitutional. It is perhaps an issue which may have to be addressed. I will go no further at this stage other than to say that when it comes to talk about the equivalence of rights in Northern Ireland as opposed to rights here, cases may be made on those two issues that the rights in Northern Ireland are more clearly expressed and that there is not that equivalence which was provided for under the Good Friday Agreement.

Mr. Costello

The Minister did not really reply to my first two amendments, amendments Nos. 3 and 4, as to why he will not extend the provisions back to No. 1, so instead of Nos. 2 to 14, it would be Nos. 1 to No. 14 because of the obligation to respect the rights included in the convention, which is the thrust of No. 1. Obviously, that application is important and should be incorporated into the list in section 1.

The right to have nobody interfere with one's application and the importance of ensuring that any decision is implemented should be included as part of the provisions as well. They would be a valuable extension. I do not expect the Minister to give way on the kernel of the issue, which he has defended strongly, but there is no reason he should not improve the list of provisions by including these important ones. Will he respond to my request to employ some mechanism that would obviate the need for us to go through the process outlined once our country had signed and ratified further protocols to the convention? The mechanism could be used to include them. If we do not provide such a mechanism, protocols we will adopt in the near future will not be added to the existing corpus. I am trying to be helpful by way of suggesting how to improve the existing legislation.

I understand the issue of the court has been dealt with sufficiently and that the Minister will not make any concessions in that respect but he could extend the variety of provisions.

Amendment put and declared lost.

Mr. Costello

I move amendment No. 3:

In page 3, line 25, to delete "2" and substitute "1".

Amendment put and declared lost.

Mr. Costello

I move amendment No. 4:

In page 3, line 25, after "14" to insert ", 34 and 46".

Amendment put and declared lost.

Mr. Costello

I move amendment No. 5:

In page 3, after line 37, to insert the following:

"(e) subject to ratification by the State, Protocol No. 12 to the Convention done at Rome on the 4th day of November, 2000;”.

Amendment put and declared lost.

Mr. Costello

I move amendment No. 6:

In page 3, after line 37, to insert the following:

"(e) Protocol No. 13 to the Convention concerning the abolition of the death penalty in all circumstances, done at Vilnius on the 3rd day of May, 2002;”.

Amendment put and declared lost.

Aengus Ó Snodaigh

I move amendment No. 7:

In page 4, between lines 3 and 4, to insert the following:

"(e) subject to ratification by the State, Protocol No. 12 to the Convention done at Rome on the 4th day of November, 2000;

(f) Protocol No. 13 to the Convention done at Vilnius on the 3rd day of May, 2002;

(g) all other subsequent Protocols to the Convention unless expressly excluded by regulations made by the Minister for the purpose of this definition;”.

Amendment, by leave, withdrawn.

Aengus Ó Snodaigh

I move amendment No. 8:

In page 4, lines 14 to 17, to delete all words from and including "(other" in line 14 down to and including "court)" in line 17.

Amendment put and declared lost.

Mr. J. O'Keeffe

I move amendment No. 9:

In page 4, line 17, to delete "or a court".

Amendment put and declared lost.

Aengus Ó Snodaigh

I move amendment No. 10:

In page 4, between lines 20 and 21, to insert the following:

"‘statement of compatibility' means a statement under section 6;”.

Amendment put and declared lost.

Acting Chairman

Amendments Nos. 12 and 13 are alternatives to amendment No. 11 and they may all be discussed together, by agreement.

Mr. J. O'Keeffe

I move amendment No. 11:

In page 4, between lines 39 and 40, to insert the following:

2.–(1) Subject to the Constitution, the Convention provisions shall have the force of law in the State and everyone within the jurisdiction of the State shall enjoy the rights and freedoms specified therein.

(2) Subject to Article 15.2.1º and 15.2.2º of the Constitution, the Minister for Foreign Affairs may, by order, amend the Schedule to this Act so as to include therein a provision or provisions of any Protocol to the Convention to which the State is a party.”.

We have largely addressed the core approach of those who want the convention provisions to have the force of law in the State and everyone in the State to enjoy the rights and freedoms specified therein. Apart from the advices I have received from many experts and probably some non-experts, which support this approach, it seems that if we are to have a fully developed human rights approach we should give legislative status to the rights and freedoms we want, subject to the Constitution. I accept that the provisions of the Constitution are overriding, and rightly so, but if we provide for rights and privileges subject to the Constitution it becomes our legislation. That is the approach I have adopted in respect of the amendments I have tabled. The rights become enshrined in our legislation subject to the Constitution, to be adjudicated upon by our courts.

If somebody is dissatisfied with the decision on a certain right, he or she can pursue the matter in the courts, right up to the Supreme Court. He or she could go to Strasbourg, as one can do now. On the basis of direct incorporation, it would be unlikely that the court in Strasbourg would take a different view to the Supreme Court. The Supreme Court decision would be taken very seriously into account by the judges in Strasbourg and would be considered to be almost compelling. This is because the Supreme Court would have taken into account the Constitution and the convention provisions in arriving at its decision.

What would the position be in the case of a person taking a case to Strasbourg? The advice I get is that it would not be a matter of the Strasbourg court's overruling the Supreme Court decision. Circumstances would be very much as they are now if there were direct incorporation, and liability under public international law would arise because of the decision of the Strasbourg court. So the fears we would have in such circumstances of our domestic system and Constitution being overridden by the court in Strasbourg are not sustainable. With regard to the impact of direct incorporation on prior and subsequent legislation, the earlier legislation may be found to be invalid but it is more likely that an implied repeal would arise. That applies to all legislation. The Act we pass tomorrow will or could affect prior legislation because that is the rule of law. The later law takes precedence in case of conflict. I would not envisage any such conflict because we have an Attorney General and everybody would be cognisant of the situation regarding the convention. They might say they would have wished in that situation that the focus had been on the statement of compatibility that we discussed. The focus would be on ensuring both that the legislation was not contrary to the Constitution, as applies now, but also that it was not contrary to the convention.

I accept that 90% at least, and maybe 95%, of our fundamental rights are already catered for under the Constitution and we are fortunate in that. We are talking about a very limited range of rights. One of these is freedom of expression: Article 10 of the convention is stronger than the provision for this in the Constitution. The constitutional review group looked at this in detail and recommended that we incorporate a new provision into our Constitution that would be based on and drawn from Article 10 of the European Convention on Human Rights. I support that recommendation which was very well argued by the constitutional review group. As opposed to incorporating the entire convention, I feel our own rights are superior in most other respects.

I am laying down an argument that may be reopened in the future because we will look at this issue again in the context of the charter of fundamental rights, in the European context, and in the context of the all-Ireland charter of rights. I want to lay a foundation for the argument that with direct incorporation judicial notice would be taken of decisions in Strasbourg. There is no reason to worry, as the Minister indicates, that judges will wake up every morning wondering what decision was made in Strasbourg yesterday on which they need to be up to speed. That situation would not arise. In relation to direct or indirect incorporation any decision in Strasbourg would not be determinative, it would be an issue of which judicial notice should be taken but even with direct incorporation it would not be an appeal decision and therefore would not be directly binding. These are some of the reasons the Minister could have gone for direct incorporation, as suggested by so many people, whereby we could have an approach which was rights based as opposed to almost grudgingly accepting our obligations under the convention.

This goes back to the earlier point which the Minister put in very flowery language, and which I noted at the time. He went "as far as he could possibly go within the constitutional limits" and, he "strained and stretched" himself. I accept that maybe the Minister strained and stretched himself because I do not think his constitutional heart can be strained or stretched too far. If he wakes up at 6 a.m. and reflects immediately not just on the Constitution but perhaps on the European convention he might see a way in which he could be more open to the convention. I am convinced it could and can be accommodated directly in our domestic law and on that basis without taking any further time I commend the amendment.

Mr. Costello

This is my last time over this course and the core of the issue. We have responsibilities in international law and we have not had problems in the past incorporating international law into our domestic law. We are having a problem now incorporating the European Convention on Human Rights into our domestic law. Direct incorporation is the way to do it. We would have the convention, a body of fundamental rights as part and parcel of the direct force of law but subject to the Constitution. It may fall foul of the Constitution from time to time but we accept that the Constitution is superior and if it did fall foul it would give way to the Constitution in terms of strength of jurisdiction and we would have to address that eventuality. This House has to address what happens but that is the straightforward mechanism and the responsible way of dealing with the Convention. We should be up front with it, incorporate it directly and deal with issues that arise, if they do arise, in terms of incompatibility.

The Minister mentioned that there is scope to look at the margin of appreciation, without going into the area of complete incompatibility and as we all have agreed there is a considerable overlap between the rights conferred by the Constitution and those conferred by the convention. As Deputy O'Keeffe said Article 10 of the conven tion which refers to freedom of expression, is probably one such area: "This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers." It is as broad as one could get and it is unlikely that it is expressed so widely in our Constitution. That is one area where the convention probably extends beyond the rights granted under the Constitution but in many areas the Constitution is superior in terms of rights as well as being superior in law.

That is my contention, that we should have gone about this with open, straightforward incorporation and deal with whatever problems might arise. That would be the model for future international conventions of the United Nations, or from any other source, that we regard as part and parcel of our body of international responsibilities in the area of human rights and so on. We could proceed with that model. For the last time we ask the Minister to have a final look at the matter and see what he can do.

Aengus Ó Snodaigh

Amendment No. 13 reads:

In page 4, between lines 39 and 40, to insert the following:

"2.–Subject to the Constitution, the Convention provisions shall have the force of law in the State and everyone within the jurisdiction of the State shall enjoy the rights and freedoms specified therein."

We are back to the issues with which we have been struggling for a while. I reiterate my belief that there should be full incorporation into domestic law of the European convention of Human Rights. This will state that all our statute and common law must comply with the convention. If one looks at these amendments one can see that they are not saying that the convention would be superior to the Constitution, it would be subject to the Constitution.

The Constitution would remain supreme as the will of the people, so that, in the unlikely event of a conflict, it would prevail. If one examines those cases which have gone to Strasbourg, one will see that they have merely extended the rights afforded under the Constitution rather than conferring new ones.

The method of incorporation which we on the opposition benches have suggested, about which the Law Society, the Bar Association and the Human Rights Commission agree, would mean that any statute or common law found to be in breach of the European Convention on Human Rights would be struck down by the courts, as is the case currently where statutes are found to be contrary to the Constitution. The Oireachtas is obliged to amend any laws found to be unconstitutional by the Supreme Court. If that obligation conflicted with the Constitution, the latter would still remain supreme.

Incorporating the convention at a legislative level would not interfere with the protection afforded by the Constitution and would only serve to supplement those rights where the Constitution did not meet the standards of the convention. We must remember that, in incidences where the rights accorded by the Constitution are more extensive, more extensive scheme shall take precedence under Article 53 of the European Convention on Human Rights. The court has held that countries may interpret the convention in different ways taking account of their cultural norms. That means, although two countries may interpret the convention differently, they both comply with it.

The current declaration of incompatibility merely obliges the Taoiseach to lay it before the House. Where any statutory provision or rule of law is incompatible, it is allowed to continue to exist. The European Court has held that that is not an effective remedy. If the Oireachtas wishes to ignore the declaration of incompatibility completely, it can do so. The only remedy then available to the individual is to go to Strasbourg. The intention of the legislation should be to prevent or circumvent the necessity of Irish citizens having to do so. We would be able to deal with rights in our courts if there were direct incorporation allowing the Irish courts to decide whether the law as passed was incompatible with the convention. That would then require the Houses of the Oireachtas to amend it or strike it out. At the moment the legislation does not oblige the courts to strike out the legislation, and that is a failing. The rights in the convention are basic, and there is an obligation on us as legislators to conform with it. That is the background to some of the amendments we were trying to push.

We still have the opportunity in these amendments, particularly my own, since I do not fully agree with Deputy O'Keeffe regarding the role of the Minister for Foreign Affairs in his proposal – perhaps it should be the Minister for Justice, Equality and Law Reform – to ensure best practice. This House and the courts have the opportunity to say, not only to the citizens of this State but to the European Union, our partners in Europe and the world, that we in Ireland have the best standards of human rights protection.

I find it strange that there is no obligation on this House or the courts – the High Court under present legislation – when making a declaration of incompatibility to amend the law or directive in question forthwith. At the very least, if the Minister, even at this late stage, is not willing to accept the method of incorporation, I hope he will accept the need, where a declaration of incompatibility is made, for the Houses of the Oireachtas to amend the legislation in question to bring it into compliance with the European Convention on Human Rights and allow the courts to proceed if necessary.

Mr. McDowell

I will deal with the Deputy's last point first. It is not open to this House to tell a future House how to respond to a situation. We might as well declare that all circles are square or start repealing the law of gravity. We have no right to tell a future House of the Oireachtas what it must do in any given circumstance. As an assembly elected by the will of the people under the Constitution, we cannot tell our successors how they must respond in any scenario. While I hope the situation never arises, it could happen that a decision was made at Strasbourg to which the State would respond by denouncing the convention. However, it is our sovereign right to do that. Nobody can tell us that we must act in a certain way depending on the outcome of a decision in Strasbourg.

Deputy O'Keeffe said there was nothing unusual about implied repeal. I agree with him. Tomorrow we could say that a rule of law, saying, for example, that only legitimate children shall be recognised, should go, as we did in the Status of Children Act 1987. Many consequential amendments flowed from the principles of law established in that Act, so implied repeal is no strange thing. The fundamental difference is where implied repeal is done on day one and on day five, under that, a tribunal not under the control of those who passed the enabling law makes a decision that effectively carries out the repeal at that stage.

If one allows a tribunal not part of the Irish constitutional framework to hand down a decision which automatically has the effect of implied repeal in Ireland, the situation is wholly different. For instance, as far as I recall, the European Patent Convention had to get special constitutional underpinning. A court in Spain was going to hand down decisions which would affect us. We were effectively granting to a foreign tribunal – not a term I use lightly – the prospective right to decide on the validity of Irish patents. That is the difference that we face here.

Much of the huffing and puffing that went on about direct or indirect incorporation can be explained by the fact that other states have the civil law constitutional theory. I do not claim to be an expert, but in most of those states, there are three layers of legislation: the constitution; immediately below that international law; and then domestic legislation. I believe, subject to correction, that in Spain and Portugal it is a matter of their constitutions that international legal obligations come second in the legal pecking order, with domestic legislation following. In Ireland it is different, for our Constitution explicitly says that one first goes to it, then domestic law and then only international obligations to the extent that they are incorporated into domestic law. We have a fundamentally different situation from most civil law countries. Therefore, some of the things done in other countries are perfectly compatible. If France, Spain or some other civil law country enters into an international agreement, it comes in at such a level in their legal hierarchy that it has an automatic trickle down effect so that other laws must be com patible with it. We do not have that. If I was asked which is a better system, I would say that our law is better.

Deputy Costello asked whether we would have the spectacle that every time a protocol is signed into effect in Strasbourg by the requisite number of member states, we would have a separate Bill in this House. The answer is yes, and long may it be so.

Mr. Costello

It will probably be another 50 years before we get this Bill into law.

Mr. McDowell

We are dealing with the fundamental rights of citizens. If they can be signed into effect in Ireland by a statutory instrument by whoever is based at my desk in St. Stephen's Green in future days, without adequate reflection in this House as to whether we want to go down that road, we cannot know the consequences. Why is this House so anxious to nobble itself in these matters, and so distrustful of its capacity to legislate promptly on them?

Mr. Costello

"Promptly" is the word.

Mr. McDowell

This Bill has taken an unconscionable length of time to get to the point it is at. It is my intention, with the co-operation of the House, to have this Bill passed into law and signed by the President before the vacation. It has gone on long enough. I hope to bring it through the Seanad as quickly as I can after it passes this House.

These are hugely important issues. We are not dealing with potato blight regulations but with how our society works. I do not begrudge legislative time to this, or the right to reflect. However, we spend a great deal of time in this House on wasteful antics. An hour is spent every day asking the same old questions about where this or that Bill is, instead of getting on with some of the Bills to be dealt with. Nonetheless, I accept that this is a view which only a Member sitting on this side of the House would take, and I accept that others enjoy the circus in the morning as we examine the legislative programme. However, it is a little rich that I was castigated recently by Deputy Costello in County Kerry for doing nothing. I am trying to get so much legislation through the House that I have difficulty finding parliamentary time to deal with it.

Mr. Costello

We can do nothing about parliamentary time. We are very co-operative on this side of the House.

Mr. McDowell

When there is an opportunity for co-operation, Members are very co-operative. However, this measure should not be a matter of some semi-automatic process whereby if the executive arm of the State signs or ratifies some convention, it would come into effect in Irish law. The Constitution has it right in that it is for the Oireachtas to decide whether an international agreement supplementing the European convention should or should not have effect.

We can get our act together if it is so blindingly obvious, as, for instance, it would be in the case of the death penalty. Since we have abjured the death penalty in every shape or form, and gone to the United Nations—

Mr. Costello

We signed and ratified it.

Mr. McDowell

Yes.

Mr. Costello

Under Protocol No. 30.

Mr. McDowell

Yes, we got rid of it.

Mr. Costello

The Minister did a very good job when he was in a position to do it, and I acknowledge that.

Mr. McDowell

It is gone now. I do not know why we are in a tizzy just to say that that law will have effect in Ireland. It has disappeared out of the system.

Mr. Costello

It is on page 1 of the Bill.

Mr. McDowell

That is because I do not want to dismember the existing acquis. However, I do not want to anticipate future developments. Protocol No. 12 has been signed but not yet ratified whereas Protocol No. 13 has been signed and ratified by the State. However, the mere fact that it has been ratified does not mean it is in effect. It is not yet in effect in Europe.

Mr. Costello

Though it has not been signed and ratified by all the states of Europe, we are introducing legislation at this time to incorporate the European Convention on Human Rights. There is nothing to stop us, in this legislation, including it as one of the provisions. When will we ever get back to dealing with protocols? What is to stop us making a decision now to include it?

Mr. McDowell

Until this legislation comes into effect, it is not part of the convention.

Mr. Costello

Nonetheless, it could be done within the legislation.

Mr. McDowell

It may never become part of the convention. If and when it becomes part of it, somebody will come to this House and say he or she proposes that it be included as part of the law, if it makes any sense to do so.

Mr. Costello

The Minister should be strong and bring it in.

Mr. McDowell

We have discussed the direct effect proposal and have probably kicked that issue to death in the House and on Committee Stage. Deputy Jim O'Keeffe wondered whether it was some sort of visceral conservatism on my part that I did not want to go the whole hog. The whole hog, as canvassed by others, creates so many difficulties that it is, in fact, undesirable. The Government with this Bill has gone as far as possible in a manner that is compatible with the Constitution.

When it suits Deputies opposite, they say I have not done here what was done in Northern Ireland. However, if I was to accept these amendments, there would be a totally different situation to the one which applies in Northern Ireland. Deputies cannot have it both ways. They cannot ask me with one breath to say that this is serious or that we are below the bar as far as Northern Ireland is concerned, while with the next breath ask me to take a radically different approach incorporated on a radically different basis, and to say that it has affected the rule of law, so that when the two human rights commissions get together, they will be dealing with chalk and cheese. I do not see any need to take that radically different approach, even if it were possible to do so.

It is not a matter of visceral conservatism on my part. I am trying to do my best to bring about an ambience North and South of the Border in compliance with the two different constitutional regimes that exist. If I am successful, the two regimes would be compatible and lawyers on both sides of the Border would know that they are dealing with roughly the same animal. Since both states have common law systems, the manner in which we approach the European convention should be broadly similar in both states. I think it is and that is what I am delivering in this Bill.

Mr. J. O'Keeffe

The obligation under the Good Friday Agreement is on Ireland to ensure at least an equivalent level of protection of human rights as will pertain in Northern Ireland. While I share to a large degree the view of the Minister on the strength of our Constitution on fundamental rights, I can envisage, if we are dealing with the charter of all-Ireland rights, that some people from Northern Ireland will not have the same consideration or liking for Bunreacht na hÉireann that the Minister and I have. From that point of view, there is a case for us to ensure that our standard of protection under the convention is at least as high, and higher if possible. The focus on an all-Ireland basis may be the convention.

Mr. McDowell

If I were a Unionist or dissenter, I would like a state with a written constitution, whether an Irish or British state.

Mr. J. O'Keeffe

While I would compete with the Minister in trying to convince the Unionists and dissenters of the merits of being subject to Bunreacht na hÉireann, that is not the issue here.

Mr. Costello

That is another day's work.

Mr. J. O'Keeffe

That is another day's work but from the point of view of our work, I recall the Minister during those halcyon days when he was in opposition having a go on the Order of Business. I am sure he has forgotten that.

In regard to dealing with the legislation, one further session, if we get enough hours for it, should be sufficient. This is important legislation which deserves the greatest care on our part in putting it through this House.

Debate adjourned.