Dáil Éireann debate -
Wednesday, 21 May 2003

Vol. 567 No. 2

European Convention on Human Rights Bill 2001: Report Stage.

Mr. J. O'Keeffe

I move 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 the Schedule to this Act;

‘declaration of incompatibility' means a declaration under section 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.".

Amendment No. 1 deals with certain technical aspects that would have to be considered if the Bill were to be recast along the lines which Deputy Costello and I proposed on Committee Stage. I know certain groupings of amendments have been suggested, but amendment No. 1 changes the definition section. This would be changed if the alternative approach proposed by the Opposition were accepted by the Minister. This leads us to question whether we should consider the core of the Bill at this stage or merely mention it. Can I deal with the core point?

Acting Chairman

The Deputy must speak to the amendment.

Mr. J. O'Keeffe

We will have a substantial elaboration on a different approach to the Bill, which we have been suggesting. The changes I am proposing in the amendment are part of that approach. If the Chairman wishes we will cut to the chase and clarify that point and, if necessary, vote on it. This would affect the entire Bill. We want the Bill to be recast. There are 61 amendments tabled, many of which are related to the desire of the Opposition to have direct incorporation of the convention into domestic law, as opposed to the indirect approach adopted by the Minister. I suggest that we debate the main point and, as a consequence, many of the other amendments will fall into place.

Acting Chairman

We have agreed that Report Stage be taken now and the Deputy has moved amendment No. 1, to which he should speak.

Mr. J. O'Keeffe

I am speaking about amendment No. 1 in the context of our desire for a direct incorporation approach. If it is acceptable to my colleagues, we should argue this central issue. We might as well deal with it on this amendment as on any other.

Acting Chairman

The Deputy should address amendment No. 1.

Mr. J. O'Keeffe

I am dealing with it according to the broader framework of which I am speaking. The technical changes in amendment No. 1 would be made to the interpretation section if the approach I and other members of the Opposition advocated were adopted, namely, the incorporation of the convention into domestic law. That is the background to my proposals.

Acting Chairman

There are many amendments so I am sure the Deputy will be able to refer to them when the opportunity arises. We are now talking about amendment No. 1 and I ask the Deputy to address himself to it.

Mr. J. O'Keeffe

I am asking if we should deal with the substantive issue in the context of amendment No. 1 or another amendment. I do not mind which. It would be as well to get it out of the way and be finished with it. If we clarify the issue now, many of the other amendments will fall into place. The core difference—

Mr. McDowell

Let me assist the Deputy. His amendment clearly anticipates a fundamentally different approach to the legislation. If he wants to speak in support of that approach, now is the time to do so, whatever the Chair rules.

Mr. J. O'Keeffe

Let us deal with it and have the point clarified once and for all, after which everything else will fall into place.

Acting Chairman

Proceed, Deputy.

Mr. J. O'Keeffe

Amendment No. 1 indicates that the interpretation section would need to be changed if the fundamentally different approach I advocate is adopted, which is dealt with in more of the 61 amendments before the House. I do not intend to trouble the House unduly once we clarify the central issue.

It is ironic that it has taken us 50 years to deal with the question of incorporation. Most of those interested in the human rights area are very happy that it is being dealt with at this stage. There is not a universal welcome for the approach we advocate but there is an almost universal criticism of the manner in which the convention is being incorporated. Effectively, we are not incorporating the convention directly into domestic law, as many of us would wish. If it were to happen, we would have to make the necessary amendments, including amendment No. 1. The perfectionists would prefer the convention to have been adopted as part of our Constitution. This is dealt with at length in the report of the constitutional review group, which outlines an approach with which I agree. However, it is not the approach that has been adopted.

If we are not to amend the Constitution, most people will want to see the convention adopted directly as part of our legislation. That is the view of almost all involved in this area, except for Deputy McDowell, both in his former role as Attorney General and now as Minister for Justice, Equality and Law Reform. His approach is essentially that outlined in the Bill, given that the amendments are not accepted. It is regarded as a minimalist approach.

The amendments I and others have tabled, including amendment No. 1, provide an alternative menu for the Minister. I have no real expectation that he will dine off that menu but it is my role and function to provide it. It is also important to point out that the approach I propose is largely that of the Law Reform Commission, the Human Rights Commission, the Law Society, the Bar Council, the National Union of Journalists and many NGOs which have made submissions in this area.

I do not intend to rehearse their arguments except to focus on a central point. Having been through four days on Committee Stage debate I object to the lack of effective remedy arising from the way in which the Minister has drafted the Bill, which will be the law of the land if the amendments we have tabled are not adopted. The Bill as framed does not provide an effective remedy for somebody whose rights under the convention are infringed. Article 13 of the convention pro vides that there has to be a right to an effective remedy: "Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity." There is no effective direct remedy from the courts, no provision for an order for release or an injunction and there is no provision for the courts to allow damages. I know how warmly the Minister feels towards the constitution, and it is a warmth I share.

I support the Constitution but it is a basic principle of Irish constitutional law that where there is a right there should be a remedy. This is the core issue: ubi jus ibi remedium. That was the old rule of law and we are not following it in this legislation. The Minister can, and will no doubt, point out that the Bill provides for an application to be made to the Attorney General for the Government to make an ex gratia payment. With respect, that is not a right. We are taking from the courts the right to provide a remedy and we are providing instead for a Government where “in their discretion, they consider that it may be appropriate, to make an ex gratia payment of compensation.” This is my core objection to the manner in which this Bill has been framed. It should be recast and the amendments we have put down should be accepted. Amendment No. 1 would involve a change in interpretation of provisions.

Why is the Bill before us now? The convention dates back to 1953. Fifty years later we are dealing with this Bill probably because of the Good Friday Agreement. I accept that we have fundamental rights, as enshrined in the Constitution and interpreted by the courts. Possibly because we have had such a strong constitutional position in relation to fundamental rights it has not been relevant to incorporate the convention into domestic law. However, we provided in the Good Friday Agreement that the Irish Government was to take steps to "further strengthen the protection of human rights in its jurisdiction", that it must take into account the work of the Oireachtas All-party Committee on the Constitution and the report of the constitutional review group and must bring forward measures to strengthen and underpin the constitutional protection of human rights.

Today we are carrying out an act of completion, to meet an obligation under the Good Friday Agreement, but in the context of the points that I have outlined we are not doing it as effectively as we should. This is also relevant in that under the Good Friday Agreement there is a proposal for an all-Ireland charter of rights and we will have to consider what that will include. From that point of view the European convention will play an important role as something that can be shared by both parts of the island. That is the relevance of our incorporating the convention in an effective way into this Bill.

We are saying that direct incorporation is the way to do it rather than producing an Act "to enable further effect to be given" which is what this Bill is doing. We are not directly incorporating the convention, we are merely providing that 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 or application do so in a manner compatible with the State's obligations under the convention provisions. The central amendment is that the convention provisions should have the force of law in the State so that everyone within this jurisdiction would enjoy the rights and freedoms specified therein. That is the core issue as between the Government and Opposition and it is on that basis that the interpretation provisions highlighted in amendment No. 1 need to be amended. That is why we need to deal with it at this stage. On that basis I make a final effort to urge the Minister on the road to Damascus to consider direct incorporation.

Mr. McDowell

Falling off his horse.

Mr. J. O'Keeffe

He, virtually alone, is in favour of the indirect approach outlined in the Bill. He went to great lengths to discuss it with many people and many groups but he has failed to convince anybody, including the Opposition, of the merits of his approach. He is the Minister and he clearly has his mind set on this approach but I would be neglecting my duty to all those others who have urged a different approach if I did not make one last effort to try to convince him that the direct incorporation of the European Convention on Human Rights into domestic law is the right and proper approach.

Mr. Cuffe

It is not often that I agree wholeheartedly with a colleague in Fine Gael but in this instance my party does so. The best way of dealing with the convention is to adopt it directly as part of our domestic law. What we see is a very watery approach to what is a very important convention. I know there is a concern about the supremacy of the European Convention on Human Rights, but to give effect to it, it is better to adopt it as part of domestic law. That would mean that a violation of a convention right would constitute a violation of domestic law. If there is a conflict with other laws, the Judiciary would be a suitable vehicle to resolve the issue at stake. There are significant problems with the Bill, first with the issue of definitions, which should be broadened to include all bodies with public functions, whether they be schools, the Civil Service, Departments or hospitals. The actions of those bodies are already subject to the Constitution, and since the content of the convention is similar, those bodies should be included in the Bill.

There is also a problem with the remedies included in the Bill. They are not effective enough, and whatever is said about the Minister having experienced a conversion on the road to Damascus, the reality is that many people in Ireland will have to head along the road to Strasbourg, not having an effective remedy in this State. The European Court has time and time again held that the possibility of getting a discretionary payment does not constitute an effective domestic remedy.

There should be a guaranteed system for the payment of compensation as of right by a body which is independent of the Government. As Deputies well know, the Attorney General is not as independent of the Government as we might like. We feel that individuals should not be subject to the discretion of the Attorney General in this instance. The Attorney General only recommends to the Government that it provide for a possible ex gratia payment, and we do not feel that that goes far enough. We also feel that the whole concept of monetary relief is not necessarily the most appropriate form in many instances. For instance, a person in a psychiatric institution might well not be seeking money but release from the institution, and that appears not to have been covered.

There are also problems with the declaration of incompatibility. A declaration of incompatibility will not invalidate the rule of law to which it pertains and does not oblige the Government to amend the offending provision, so one might have a situation whereby the applicant will go to the Supreme Court, get a defective remedy there, and then have to go to the Strasbourg court citing the lack of an effective remedy at home in Ireland. Another issue is that of proofing. The Bill does not provide for any obligation to screen legislation to see if it is compatible with the convention. A certificate of compatibility should not prevent legislation being found incompatible with the convention at a later date. We feel that proofing should be carried out by the committee here in Ireland.

Free legal aid is important and we would like to see the Government extending it to convention cases. Hitherto it has, generally speaking, not been provided for constitutional actions, and we feel that a person should be able to exercise his or her rights regardless of means. Looking at the cases over the years, one sees that a lack of finance has prevented cases from coming forward. Free legal aid should be provided in this instance.

Many NGOs and other groups in civil society have set out specific problems with the Bill's provisions as formulated. There are defects in individual provisions, but the main point is that people will get minimal redress for violation of their rights under the European Convention at domestic level. For instance, the Irish statute might simply be declared incompatible with the Convention, and the person might get an ex gratia payment, so there is no definite right to compensation.

There is nothing to fear if we incorporate the convention into Irish domestic law. Instances where a court is likely to find a measure consti tutional but contrary to the convention will surely be rare. The convention is in some respects superior to the Constitution. Article 10 dealing with free speech is an example. We must ensure the most effective incorporation and bringing the convention into Irish law is the way to do it.

If this Bill is passed, people will still have to go to Strasbourg, and that is an unacceptable incorporation or adoption of the convention in Ireland. We could deal with the issue by holding a referendum. We had one to give the courts the power to invalidate legislation as being incompatible with the treaties of the European Union and perhaps we should consider another. The proposed incorporation of the European convention does not go far enough. It should be directly incorporated into Irish law. People will still have to tread the long road to Strasbourg, something that imposes a significant penalty on individuals. We are concerned that insufficient action is being taken to incorporate the convention and legislation directly incorporating the convention into Irish law is the way forward.

Mr. Costello

The issue that we are discussing is the kernel of human and fundamental rights contained in the convention. Our attitude to them says much about us as a country, what we want to achieve and our position on human, civil and fundamental rights. It has taken us over 50 years to introduce the convention into Irish law. We still have not done it, and the Bill has already spent over two years in the Houses of the Oireachtas without coming to fruition. That certainly says something about our international commitment to doing our best to ensure that our system of human rights is second to none and that we follow best practice. On that basis alone, surely we should make certain that we have at least the standards of other countries in the European Union or the Council of Europe, yet we are the very last to introduce this into legislation.

It is very important for us that we be seen to adopt best practice as it is something we are quick to talk about internationally. We pay lip service to Amnesty International and the wonderful work it does for human rights throughout the world. We quote the United Nations everywhere and stand under its mandate. We stand for human rights and see ourselves as a small country with a commitment to them. However, when it comes down to it, we do not incorporate the convention into domestic legislation. We are not doing it here. We are introducing a minimalist version of the European Convention on Human Rights, and that is not good enough. We should be introducing a maximal version.

There are a number of reasons for that. I have already said that we like to see ourselves projected as a country that stands up for human rights across the globe. We have a fine record from East Timor to various African countries. In the context of this country's peace process we are endeavouring to achieve the rule of law and order, ensuring that there is no further discrimi nation on this island, that the old days are gone and that we have as many cross-Border activities reflecting co-operation as possible in order that we can have a system in the country which elicits maximum identification and support. We should have examined this issue in the context of ensuring full incorporation of the Convention on Human Rights in both Northern and Southern jurisdictions. However, we are developing them in a very dissimilar fashion.

The issue is very symbolic of what we are trying to achieve regarding Northern Ireland: ensure that human rights operate right across the board, both south and north of the Border. For that reason, we should ensure full incorporation. The fact that the incorporation taking place provides very limited remedies, as has already been stated—

Debate adjourned.

Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.