We resume on amendment No. 11 which was being discussed with amendments Nos. 12 and 13. Deputies Jim O'Keeffe, Costello and Aengus Ó Snodaigh and the Minister have spoken on the amendment. Deputy Jim O'Keeffe was making a second contribution.
European Convention on Human Rights Bill 2001: Report Stage (Resumed).
Debate resumed on 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 theSchedule 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.”.
– (Deputy J. O'Keeffe).
Amendment No. 11 and the associated amendments Nos. 12 and 13 are the centre point of the Bill as far as we are concerned. My amendment seeks to amend the Bill to ensure the convention provisions shall have the force of law in the State and that everyone within the jurisdiction of the State shall enjoy the rights and freedoms specified therein. It is as simple as that and the amendment sums up our position.
We argued this point over many days in committee and previously on Report Stage in the House. As it stands, I will ask the House to vote on this amendment because it is the point at which the Minister has gone wrong in the way he formulated the Bill. The Minister has adopted the singular, minimalist and indirect approach to incorporation; the sense of which is not clear to anybody but himself. It is an approach which has been condemned by all Opposition parties. The Minister may say that is understandable, but he does the occasional thing which I am prepared to compliment. However, this has been condemned by all Opposition parties in addition to independent groups, including the Law Society of Ireland, his colleagues in the Bar Council, the National Union of Journalists, the Human Rights Commission and virtually any NGO with an interest in this area.
The Minister has taken the wrong approach for reasons which are not clear to me. I have listened to him and it is obvious he is ideologically committed. However, he is dressing up that ideological commitment in phoney constitutional arguments. The Opposition wants the convention to be part of our domestic law subject to the Constitution. It is quite clear from any investigation I have undertaken, from anybody to whom I have spoken and from the experts who have advised that it is not only feasible but that it is the right thing to do. However, the Minister refuses to follow this approach. Not only is it wrong from a domestic point of view but it is wrong from the point of view of the European convention.
An Leas-Cheann Comhairle
The Deputy is making his second contribution and he is limited to two minutes.
I thought I was winding up.
An Leas-Cheann Comhairle
You still have winding up time, which is unlimited.
I will not labour the point at this stage. I will pick up any loose ends during the winding up. The Minister is ignoring the provisions of Article 13 of the convention which clearly provides that anyone whose rights or freedoms set forth in the convention are violated shall have an effective remedy before a national authority. The way in which he has structured this Bill does not provide that effective remedy and from that point of view, he fails the test of the convention. I wish to press the amendment that the convention provisions shall have the force of law in the State and that everyone within the jurisdiction shall enjoy the rights and freedoms specified therein.
An Leas-Cheann Comhairle
I will put the amendment.
Three amendments are being taken at the same time.
An Leas-Cheann Comhairle
We will take the amendments individually. Amendments Nos. 12 and 13 will be formally put.
I thought I could speak.
An Leas-Cheann Comhairle
I understood Deputy Jim O'Keeffe had finally wound up. If Deputies Costello and Aengus Ó Snodaigh want two minutes each, they may have them.
It is only fair to give Deputy Costello the opportunity to speak.
We all agree we have discussed this issue ad nauseum. This is where we fundamentally differ from the Minister. We quoted a number of emanate sources which the Minister said were wrong and he is entitled to that opinion. The weight of legal opinion is against the Minister in regard to this important legislation. It has taken us 50 years to get to this stage.
It will take us 51 years if we keep going.
We should introduce this Bill in the best possible way and to the maximum rather than to the minimum degree. I see no reason it cannot be incorporated into domestic law subject to the provisions of the Constitution. That is the usual way we incorporate international law into our domestic law, including international conventions to which we sign up. I see no reason to depart from that procedure in this case. We have incorporated international covenants and agreements into domestic law under the auspices of the Constitution and subject to its provisions and none is as important as this one, that is, the famous European Convention on Human Rights. It is part and parcel of the direction in which this country is going in terms of the family of European countries. This is a fundamental part of this project.
We are crossing the Rubicon on this issue. There is a fundamental difference in the approach in terms of the manner in which we engage with Europe on human and civil rights. The question is whether we do so wholeheartedly, robustly, fully and vigorously or do so on an interpretative basis hemmed with caveats and with a considerable degree of bureaucracy and issues which will arise that will cause difficulty in giving redress to Irish citizens in the implementation of their rights and in ensuring their rights are underpinned.
We make a last plea to the Minister to see the error of his ways and that he may just be out of line. We could improve the legislation. None of these amendments would have been tabled and the Bill could have been passed quickly if the Minister had accepted my amendment or Deputy O'Keeffe's or Deputy Ó Snodaigh's amendments on Committee Stage. Will the Minister accept the spirit and the substance of these three amendments?
Like Deputies Costello and Jim O'Keeffe, I believe this aspect of the Bill has been thrashed out sufficiently and I will not rehash the arguments they have made. The Minister has heard them and, unless he has had a change of heart since we last dealt with this matter, I do not believe he will accept direct incorporation, despite its being the method favoured by the human rights sector, including the Human Rights Commission, the Bar Council and the Law Society of Ireland. This is a pity because we have an opportunity to grant extra protections to our citizens without detracting from the constitutional rights they already enjoy. In many ways, their constitutional rights would be enhanced by the direct incorporation of the European Convention on Human Rights into Irish law. A society with maximum protection of rights is a healthy one and can thrive in the future.
The Minister made some eloquent arguments but I disagree with him, just as some of the aforementioned organisations have disagreed profoundly with his minimalist approach to the convention. I appeal to him to think again and accept these amendments or their spirit so as to provide for direct incorporation.
The Minister is a lost cause and totally closed to logic and the arguments of every responsible organisation that has examined this issue. He is convinced that everybody is out of step except himself. This may be fortunate from his point of view, but it is unfortunate for the country. He is in a position to hold his station. He is making a retrograde step in terms of human rights. His decision is sending out all the wrong signals and people will suffer as a consequence.
Amendment put.
Tá
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Allen, Bernard.Boyle, Dan.Broughan, Thomas P.Bruton, Richard.Burton, Joan.Connaughton, Paul.Connolly, Paudge.Costello, Joe.Coveney, Simon.Cowley, Jerry.Crawford, Seymour.Crowe, Seán.Cuffe, Ciarán.Deasy, John.Deenihan, Jimmy.Durkan, Bernard J.English, Damien.Enright, Olwyn.Gilmore, Eamon.Gogarty, Paul.Gregory, Tony.Harkin, Marian.Higgins, Joe.Higgins, Michael D.Howlin, Brendan.Kenny, Enda.McCormack, Padraic. |
McGinley, Dinny.McGrath, Finian.McGrath, Paul.Mitchell, Gay.Mitchell, Olivia.Naughten, Denis.Neville, Dan.Noonan, Michael.Ó Caoláin, Caoimhghín.Ó Snodaigh, Aengus.O'Keeffe, Jim.O'Shea, Brian.O'Sullivan, Jan.Pattison, Seamus.Perry, John.Quinn, Ruairi.Rabbitte, Pat.Ryan, Eamon.Ryan, Seán.Sargent, Trevor.Sherlock, Joe.Shortall, Róisín.Stagg, Emmet.Timmins, Billy.Twomey, Liam.Upton, Mary.Wall, Jack. |
Níl
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Ahern, Bertie.Ahern, Michael.Ardagh, Seán.Aylward, Liam.Blaney, Niall.Brady, Johnny.Brady, Martin.Brennan, Seamus.Browne, John.Callanan, Joe.Callely, Ivor.Carey, Pat.Carty, John.Collins, Michael.Cooper-Flynn, Beverley.Coughlan, Mary.Cowen, Brian.Cregan, John.Curran, John. de Valera, Síle. |
Níl–continued
|
Dempsey, Noel.Dempsey, Tony.Dennehy, John.Devins, Jimmy.Ellis, John.Finneran, Michael.Fitzpatrick, Dermot.Fleming, Seán.Gallagher, Pat The Cope.Glennon, Jim.Grealish, Noel.Hanafin, Mary.Haughey, Seán.Healy-Rae, Jackie.Hoctor, Máire.Jacob, Joe.Keaveney, Cecilia.Kelleher, Billy.Kelly, Peter.Killeen, Tony.Kirk, Seamus.Kitt, Tom.Lenihan, Brian.Lenihan, Conor.McDaid, James.McDowell, Michael. |
McGuinness, John.Martin, Micheál.Moloney, John.Moynihan, Donal.Nolan, M. J.Ó Cuív, Éamon.Ó Fearghaíl, Seán.O'Connor, Charlie.O'Dea, Willie.O'Donnell, Liz.O'Flynn, Noel.O'Keeffe, Batt.O'Keeffe, Ned.O'Malley, Fiona.O'Malley, Tim.Parlon, Tom.Power, Peter.Power, Seán.Sexton, Mae.Smith, Brendan.Smith, Michael.Treacy, Noel.Wallace, Dan.Wilkinson, Ollie.Woods, Michael. |
Tellers: Tá: Deputies Durkan and Stagg; Níl: Deputies Hanafin and Kelleher.
Amendment declared lost.
I move amendment No. 12:
In page 4, between lines 39 and 40, to insert the following:
"2. The Convention provisions shall be part of the law of the State.".
Amendment put and declared lost.
I move amendment No. 13:
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.".
Question put and declared lost.
I move amendment No. 14:
In page 4, line 43, to delete "the State's obligations under".
While this might be considered a technical amendment, I will make a fair offer to the Minister that he may be able to convince me that his formulation in the section is better than that without the words "the State's obligation under". The Bill with the amendment would require a court, in so far as possible subject to the rules of law relating to such an interpretation or application, to apply any statutory provision in a manner compatible with the convention's provisions.
As the Minister has drafted the section, he wants the court in interpreting or applying any statutory provision or rule of law to do so in a manner compatible with "the State's obligations under" the convention provisions. It seems much clearer to require the courts to interpret the law in a manner compatible with the convention provisions. I do not see the necessity to include these extra words requiring the court to interpret the law in a manner compatible with the State's obligations under the convention. If the Minister can convince me that his formulation provides a better outcome, I am prepared to withdraw the amendment.
The convention binds states not individuals in states when dealing with each other. Therefore, the rule of interpretation, which is of huge significance in section 2, obliges a court in interpreting any statutory provision or rule of law to do so in a manner compatible with the State's obligations under the convention provisions. For instance, if two people sue each other in a dispute over land, the convention does not arise on a citizen to citizen, horizontal basis but only on a public law, state to citizen basis. It is not intended to make the convention into a horizontal measure which applies citizen to citizen but purely state to citizen. That is the reason the requirement is set out in the terms it is.
It has been commented on a number of occasions that the interpretative approach is not far-reaching. I ask the House to consider the term "statutory provision" as defined in the previous section where it is taken to mean any provision of an Act of the Oireachtas or of any order, regulation, rule, licence, by-law or any other like document issued or otherwise created under a statute which continues in force by virtue of Article 50 of the Constitution. That includes every statute establishing the courts and every statutory instrument providing for court procedure. Those who have argued it is an incomplete or inadequate provision should recall that.
It is important to note that this also applies to the rule of law, including common law. Any provision of law such as the law relating to, for instance, hearsay or that relating to the compellability of a spouse against another spouse, or any rule of law of that kind which is not to be found in statute, is also comprehended by this section. It also applies to laws both before and after the passing of this Bill, is prospective and retrospective and is a thorough interpretative provision.
The obligation on the courts to interpret our laws applies to the extent that not to so interpret them would be inconsistent with the State's obligations under the convention. Some have argued that there should be an attempt to introduce lateral application of the convention and that the convention should be made a set of rules for everybody dealing with everybody else. In other words, all provisions which are State orientated should also apply to individuals dealing with each other, should be enforceable and, if one wants to go that far, should be actionable horizontally as between citizens.
As the House will know, our Constitution is actionable horizontally. However, it is not proposed to affect the general law of tort by conferring new causes of action on citizens as against each other. The general law of tort, like any other law in so far as it is not statute based but common law based, will, nonetheless, be subject to interpretation in a manner compatible with the State's obligation under the convention but not in such a manner as to confer obligations or to cast duties upon people, citizen to citizen.
I will not unduly press the point. However, I will put down a marker for the future by asking how bad would it be if there was horizontal application. If there is horizontal application of our fundamental rights under the Constitution, the question arises why there should not be horizontal application of rights under the convention. While I accept that, as the Bill is framed, the Minister does not so intend, I raise the issue as to why he does not so intend. If there were to be horizontal application, the amendment I have proposed would need to be made.
I do not intend to press the issue further as it is probably one for another day and is probably a by-product of the broader issue we were discussing. To allow more detailed discussion of other aspects of the Bill, I will not press the amendment at this stage.
I will give a relevant example. Recently, in a somewhat unusual ruling of the European Court of Human Rights in Strasbourg – one which I did not anticipate – in regard to aircraft using Heathrow Airport, it was deter mined that some particular pattern of flights which interfered with people's sleep amounted to a breach of the convention. Whether that is right or wrong or whether all of us if sitting en banc in Strasbourg would have made a similar decision is a different matter. However, I do not want somebody to say that, extrapolating from that decision, Aer Rianta is somehow now to be liable in tort to somebody in Santry or Ranelagh. I do not want to have unintended consequences in this regard. For that reason, it is the State's obligations with which I am concerned. I do not want to create a new, wholly unpredictable and not thought out system of torts. Every tort, in so far as it confers a right on the alleged victim of the tort, imposes an obligation not merely to compensate but to abstain also from infringing the other person's right in regard to the tort.
I do not wish to create a new system of parallel law. If we want to change the law regarding flight paths and sleep at night, let us do it in this House and not look to the ECHR as a means of affecting rights in this area as between citizens. It is complex enough to deal with it as it affects the obligations of the State to its citizens.
The Minister is too timid in his approach to the European convention. Therein lies the difference between us. I would adopt the convention more wholeheartedly. We have nothing to fear from it. One can always think of an extreme example and envisage an outrageous consequence arising but that has not been the experience in other countries and I doubt that it would be our experience. We already have strong protection of fundamental rights under the Constitution. We are talking about issues on the margin and a court that will not be trying to direct us in that 5% or 10% area. However, the die is cast at this stage. I will not press the amendment.
Amendment, by leave, withdrawn.
An Leas-Cheann Comhairle
Amendment No. 15 is out of order.
Amendment No. 15 not moved.
An Leas-Cheann Comhairle
Amendment No. 38 is an alternative to amendment No. 16 so both amendments may be discussed together by agreement.
I move amendment No. 16:
In page 4, after line 47, to insert the following:
"(3) Where an issue in respect of the interpretation or application of the Convention arises in a case before the District Court or Circuit Court, the District Court or Circuit Court may refer the matter to the High Court and the High Court may give a direction to the District Court or Circuit Court as to the interpretation of the issue.
(4) In the event that the District Court or the Circuit Court is of the opinion that a statutory provision may be incompatible with the provisions of this Act, the Court shall refer the matter for determination by way of case stated to the High Court.
(5) The Rules Committees of the District and Circuit Courts may make rules in relation to the procedures to be followed in respect of the reference of issues arising out of or in relation to the Convention to the High Court.".
The intention of the amendment is to ensure there is a remedy available at all levels of the justice system, to bring justice closer to the people and to make the system more accessible in terms of time and resources spent on securing a judgment. Under the Government's proposal, claimants can only take a case to the High Court. If they want effective remedy or redress beyond an award of damages or a possible award of compensation at the Government's advisory discretion, they still must go to Strasbourg. They can only go to the High Court to claim under the ECHR if they have exhausted all available constitutional remedies.
Section 3(2) appears to require prior proceedings as a condition for the initiation of section 3 proceedings. Instead, it should be possible to rely on convention rights as an alternative within existing proceedings and it should not be necessary to demonstrate by prior proceedings that there is no other remedy available. The District Court should be permitted to have jurisdiction under section 3(2).
This is not a major issue for some people but for the majority of citizens, access to the justice system is through the lower courts. They should be entitled, through the District Court or the Circuit Court, to refer issues rather than be required to clog up the already full agenda of the High Court. The Minister should take on board the need for the District Court to have the power to deal with issues relating to the convention. Those courts should also have the power, if need be, to refer the matter to the High Court.
I will speak to amendment No. 38. The point that arises here is how to deal with an issue regarding the convention that arises in a lower court. The Minister said on Committee Stage that a court which might be dealing with a prosecution about a bicycle light would not devote too much time to dealing with convention provisions. However, serious issues can be dealt with in both the District and Circuit Courts.
Points regarding the Constitution are not decided in the lower courts. However, the courts are subject to the Constitution and accepted principles under the Constitution can be quoted there from time to time. The same situation could arise regarding the convention. What happens if there is a dispute over the interpretation or application of the convention in such a situation? There is no reason that the convention should not be applicable if a relevant point arose. However, a dispute on interpretation or application could arise. What should happen in that case? There should be a case stated to the High Court in the same way as any other point of law which is not agreed in the District or Circuit Court is sent to the High Court to have the point of law resolved. Why should the same not apply regarding the convention? Why should we not specifically provide for case stated to the High Court if a point must be decided? That is the issue. It is a simple and straightforward point.
There are differences between the two amendments. Deputy O'Keeffe's amendment proposes to insert a new provision in section 6 of the Bill while Deputy Ó Snodaigh proposes to insert his amendment in section 2 of the Bill.
Deputy Ó Snodaigh makes the point that the new subsections should be added to section 2. There is a misunderstanding here. Under section 2, the District Court or the Circuit Court, in considering any law or rule of law, is obliged to do what the High Court is obliged to do, which is to interpret the section in accordance with the convention. The rule of interpretation provided for in section 2 applies to all courts, at all times and in every circumstance. When any court is interpreting a provision of any law, it must do so in a manner compatible with the convention.
Deputy O'Keeffe's amendment seeks to insert a similar provision into section 5, which is the declaration of incompatibility. In that context, he wants to provide that somebody who wishes to argue in the District Court that a provision of law is incompatible with the convention should have the right to state a case to the High Court for a decision by that court. However, that does not happen in constitutional matters in terms of the validity of a law under the Constitution. If a lawyer in the District Court in Skibbereen or elsewhere comes to the conclusion that, for example, section 49 of the Road Traffic Act infringes his or her client's constitutional rights, the lawyer does not ask the court to refer it by way of case stated to the High Court for its views. The judge in the District Court will adjourn the case and advise the lawyer to issue proceedings in the High Court if he or she wishes to challenge it.
The judge takes the law as he or she finds it and does not have jurisdiction to consider a point of law as unconstitutional. This Bill provides for the same procedure. In the District Court one can argue that the law must be interpreted a certain way just as one can, at present, argue in the District Court that a constitutional interpretation of the law requires X or Y interpretation to be applied by the judge in coming to his or her conclusion. However, if both the lawyer and the District Court judge are of the view that the law is against the person but the lawyer wants to make the point that the law contravenes the Constitution, the lawyer must invoke the jurisdiction of the High Court by a separate proceeding. One cannot state a case to the High Court for its consideration on this issue. Likewise, that will not be the case with this Bill in respect of convention incompatibility declarations.
In the sequence of events, a declaration of incompatibility will be the last step open to the High Court, because it will have gone through an interpretative approach, in respect of any law, rule of law or provision of an Act, and will have asked itself if it is compatible with the Constitution and will decide that it either is or is not. It will only be in the minority of cases – where it believes a provision is both compatible with the Constitution and incompatible with the convention – it will go into the process of considering a declaration of incompatibility. This will be an extremely rare circumstance, since the court will have failed to deal with the issue on an interpretative basis, examined the Constitution and found the provision constitutional and found that, even so, it is still incompatible with the convention. It is only in this extremely narrow area, where the High Court – and possibly the Supreme Court on appeal – comes to a view that the legal provision is fully compatible with the Constitution and yet there is an issue to be determined as to whether it is compatible with the convention, that this jurisdiction under section 6, will be invoked.
I sincerely hope the Judiciary, in applying the interpretative power under section 2 and then, if necessary, being driven to the constitutional point, will make declarations of incompatibility extremely infrequently. As I understand it, there are few points of divergence between the jurisprudence of the Supreme Court in respect of fundamental rights and that of the European Convention court in Strasbourg.
Deputy Ó Snodaigh asked that a case stated procedure be inserted into section 2. That is misplaced because, under section 2, the District Court is obliged to carry out that interpretative function itself and to consider the terms of the convention if called upon to do so. Deputy O' Keeffe's amendment only comes into play in the case of the High Court dealing with an incompatibility issue. What the Deputy is arguing for is that the District or Circuit Courts could stop a case halfway through and put the point to the High Court for a declaration of incompatibility. The reason I am against that is that the scheme of the Bill is that the Supreme or High Courts will only make an incompatibility finding when they have ruled on the constitutionality of a particular section or legal provisions. That will be extremely rare. I do not want that to start in the District Court by way of a clever point made halfway through a bicycle lamp or section 49 prosecution or a trial on indictment in the Circuit Court. Rather, I want it to be operated more or less on the same basis as the High Court's and Supreme Court's constitutional jurisdiction is at the moment. It is something which must be invoked separately and the District Court, Circuit Court, Special Criminal Court and Court of Criminal Appeal take the law as they find it and do their best to interpret it in accordance with section 2. However, they do not go into questions of incompatibility, either with the Constitution or the convention.
In a funny way, the Minister wants to have it both ways here. I have been arguing that the convention is subject to the Constitution. The Minister makes the point that, if a point of a constitutional nature is argued in the lower courts, there must be separate proceedings to decide that point in the High Court. To a degree, that is because I was not regarding the convention as being of a constitutional nature. I was expressing the view that a point raised should be dealt with in the same way as any other point of ordinary law. When a legal point arises in the Circuit or District Courts, it is referred on by way of a case stated. It has been put to me by a number of advisers that perhaps there should be a similar provision for referring such a point from the District Court to the Circuit Court to the High Court by way of a case stated when dealing with a point on the convention.
To a degree, the Minister elevates a point under the convention to nearly constitutional status when he says he wants to see any such point argued on a constitutional basis first, only then allowing the decision to be made in relation to the convention. If that is the procedure the Minister has in mind, I would understand that the case stated procedure would not arise. I am concerned because I prefer a more direct application and consideration of the convention in all courts.
I am a bit rusty since I have not practised for some time. Does the Circuit Court still hear slander proceedings? If a point arose in the Circuit Court regarding article 10 of the convention, the Bill would seem to preclude the point being made in such proceedings. It would seem to require such a point being addressed in separate proceedings in the High Court. If that is what the Minister has in mind, it will involve more cost and delay.
I will clarify that point. On the contrary, section 2 would require the Circuit Court to interpret any law or rule of law which was in issue before it, in a manner compatible with the convention. It is clearly obliged to do so. In any ordinary day to day case, if an issue arises as to the compatibility of any law or rule of law with the convention, both the District and Circuit Courts are obliged, as a matter of legal interpretation, to do their best to see a convention compatible interpretation of any law or rule of law before them.
How is a dispute as to the correct interpretation resolved?
The District or Circuit Courts will decide that. They will state that their inter pretation is the appropriate interpretation of that section.
Is there is a decision by the relevant court without reference to anyone?
Yes. There will be no reference upwards or downwards. The courts will make their decisions, which may be set aside on appeal one way or the other in the ordinary course.
At the moment, if any issue arises in respect of any section or rule of law in the District or Circuit Courts, any day of the week, it is open to any party in those courts to submit to them that the constitutional interpretation of, say, section 49 of the Road Traffic Act or the Public Order Act, is one rather than the other interpretation. The District Court is fully seized of the right, and obliged to give any constitutional meaning it can, to interpret any section in a constitutional manner. That is the District Court's function. If it finds there are two meanings open – one constitutional and one unconstitutional – it must opt for the constitutional meaning. The District Court and Circuit Court are not precluded from considering the Constitution when interpreting a law, they are obliged to do so as things stand. We cannot say the law is to be interpreted in a different way in different courts or that the District Court and the Circuit Court will never have regard to the convention but the High Court will be expert in these matters. Otherwise the crazy situation would exist where a case would go on appeal from the Circuit Court to the High Court and the same legal provision would have two different interpretations because one court would be told to interpret it by pre-existing common law rules and the next told to interpret by reference to the convention. That is not what is in mind. Every court is covered by section 2 in its ordinary dealings with every statutory provision and rule of law.
Deputy Jim O'Keeffe says it is inconsistent to say that is the interpretative approach but it is only when the constitutional argument fails that the question of a declaration of incompatibility arises. That is not the case because if, in any court, a judge is bound by section 2 when making a decision on interpretation, if he is then driven to the view that is the law and it has particular meaning, it is open to any party at present to say that if that is its clear meaning, it is unconstitutional and to institute an action in the High Court for a declaration that it is unconstitutional. It is only if that fails, as happened in Senator Norris's case where he challenged the Sexual Offences Act and was turned down in the Supreme Court by a majority decision, that we would expect someone in his position to say that might be all very well constitutionally but there is the Dudgeon case in Strasbourg which was ignored in the judges' decision when they said the law cannot be interpreted according to the convention. If there is a claim that a breach of his constitutional rights has been ignored, the last thing he could ask the judge to do is to declare that even if it is constitutional, it is incompatible with the convention and to tell the Oireachtas so that he does not have to go to Strasbourg to get a finding in his or her favour. That is where the declaration of incompatibility will arise.
Going back to Deputy Jim O'Keeffe's amendment, he would say that in ordinary cases, where the issue of compatibility arises, it would somehow be referred upwards. That is not the scheme of this Bill. This Bill requires the District Court, the Circuit Court, the High Court and any other court to do its level best to interpret the law in a manner compatible with Ireland's obligations under the convention. If it cannot, it cannot. If the law is clearly incompatible, if the law says "black" and the convention says "white" and there is no room for argument on the subject, it is open to a person to go to the High Court and claim it is unconstitutional.
Does the Minister see no role for a case stated at all?
No, because at the moment it would unduly complicate matters. There is no similar case at the moment related to constitutional matters. If a person is confronted in the District Court by a statute that he must give a pint of blood to a garda who suspects him of drunk driving, and he says that is an invasion of his constitutional rights and two millilitres would do, he cannot argue in the District Court that that section of the Road Traffic Act is unconstitutional but he can ask the District Court for an adjournment while he makes the case in the High Court. He cannot ask to have the constitutionality of that section referred upwards.
I do not propose to create a "reference-up" mechanism on convention compatibility issues when I am not creating a "reference up" mechanism for constitutional issues. I am not being niggardly, I am trying to ensure the sequence is logical and that in any case, any court will do its best under section 2 to interpret any law we pass or have passed in a manner compatible with the convention. At the end of that, if it is still unsatisfactory from a party's point of view and he claims his rights are being challenged, he can go to the High Court and seek a declaration that his fundamental rights under the Constitution are being infringed.
If he fails in that, and the law is found to be compatible, he will be given one last relief, the right to inform this House that although the law cannot be interpreted in a convention friendly way, and although it cannot be attacked under the Constitution, it nonetheless is incompatible with the convention and in that extremely narrow band of territory, which I hope will be very rare, a declaration of incompatibility will be handed down by the courts, put before this House and we will be given the opportunity to amend the law without forcing the person to go to Strasbourg to get the remedy Senator Norris got there.
It is ironic that all organs of the State shall pay due consideration to the provisions of the convention except the courts.
Section 2 is binding on the courts.
The courts are specifically excluded in section 1 from having to pay due consideration to the convention.
They are bound in section 2.
As far as is possible.
Section 1 specifically states that the organs of State must pay due consideration to the provisions of the convention but the courts are excluded in the determination in that section.
Under section 2, a District Court or Circuit Court will effectively make the decision and interpret the matter itself. The problem could arise that a District Court judge does not feel he or she has sufficient authority to interpret a matter related to the compatibility or otherwise of the convention in the context of the Constitution. We could create a situation where there is an onus on the District Court to make a decision because it feels obliged to do it because there is no other mechanism unless the party involved makes an appeal to a higher court. The court itself cannot state that this is a serious matter involving the Constitution and an issue of incompatibility. I find this complex and it would be best if it was not dealt with in the District Court. Rather than it making the determination, there should be a mechanism for the judge to refer it to a higher court. There should be an in-built appellant function available to the judge in such a context.
Section 2 places a considerable onus on the District Court in giving it that right of constitutional interpretation while it is not being given the legal mechanism for the judge to state that this is a matter for the High Court or a court other than the very basic court dealing with it. There will be very few instances so those where it arises will be quite complex.
The Minister has spoken twice but I will allow him to reply to facilitate the debate.
At present the District Court has the right to refer any question of any interpretation of the law to the High Court by way of consultative case stated and a party to the District Court is entitled to appeal against a decision of the District Court by way of appeal by case stated. Those rights will not be affected by this. The only thing one cannot do in the District Court is say to the judge that this Bill is unconstitutional and that it should be referred to the High Court. Under the Constitution, the only court which has the right to hear those complaints is the High Court. The District Court cannot refer a question of constitutionality to the High Court but a District Court judge can, and frequently does, ask the High Court if it is correct to interpret the law this way or that way. That will include questions under section 2. Therefore, one will be able to get a consultative case stated under section 2.
That is all I am looking for in my amendment.
The Deputy has it already. With respect to Deputy O'Keeffe, he is not looking for it, it was Deputy Ó Snodaigh who was looking for it. Deputy O'Keeffe was looking for a case stated in the context of the declaration of incompatibility which is a different ball game
While the Minister is on the point, does that mean where an issue of incompatibility arises in the District Court that involves the provisions of the convention and the District Court examines it—
And makes a decision.
—and makes a decision but has a difficulty in doing so because it is complex—
The judge can refer the correctness of his or her decision.
However, he or she can only refer the correctness of the decision but cannot, a priori, say this is not a matter for the District Court and there is no mechanism for him or her to refer it.
He or she is obliged to interpret the law as best he or she can.
So there is room for a consultative case of interpretation.
Yes.
Acting Chairman
Is the amendment being pressed?
If that is clear, I am happy.
Amendment, by leave, withdrawn.
I move amendment No. 17:
In page 5, to delete lines 1 to 22.
We are dealing with section 3 and a variety of problems in that section and, perhaps, they can be taken together. We debated these in detail on Committee Stage. The case has been made to me that the section as drafted will give rise to sufficient difficulties of principle and practice. The basic approach I have been seeking at all times is that people will be able to enforce their convention rights with the minimum of delay and expense. It has been suggested to me that section 3 as framed will not allow for that. To show how reasonable I am on this issue, if the Minister can convince me of that I am open to being convinced but I have not been convinced so far.
There are a couple of problems in section 3(2), in particular the phrase, "if no other remedy in damages is available" the person can then institute proceedings. How does one prove that no other remedy in damages is available? It also gives rise to the issue as to other remedies, apart from damages. The point has also been made to me that if one were to proceed under section 3 it may be necessary to show that prior unsuccessful proceedings have been launched and brought to a conclusion before one is able to proceed under section 3. That is an issue that has caused concern to a number of people. Rather than waste time on a variety of amendments, I raise the various concerns expressed to me regarding section 3 and perhaps they can be dealt with together.
The amendment in the names of Deputies Ó Snodaigh and O'Keeffe seeks to remove section 3 in its entirety. I presume that is in the context of proposing alternatives to it rather than simply getting rid of it. This is a far-reaching section which is not available in the United Kingdom and which gives to the High Court and to the Circuit Court jurisdiction in accordance with the levels of damages that those two courts have at present for torts, to award compensation to anybody who claims against an organ of State that it has infringed his or her rights under the convention an entitlement to compensation in damages. This is far-reaching section. It is a new tort and the level of compensation envisaged is not what I would term "convention" compensation, it is compensatory damages along the Irish model of compensation which, generally speaking, has been seen as more generous.
This new provision which will be available to people in Ireland against organs of the Irish State is a very far-reaching remedy which should not be sniffed at. Some have asked why we do not make it available in the District Court. It may be that in the fullness of time we will consider making it available in the District Court. At present the District Court is under pressure because it has a good deal of work to do in other cases and, by definition, the cases under which these kinds of damages will be awarded are complex. As Deputy O'Keeffe is aware, the District Court does not have equity jurisdiction. It does not have defamation jurisdiction as things stand. There are some things which it is felt are so complex and require so much attention, that a court which is charged with summary, civil and criminal justice and given significant responsibilities especially for family law, should not have responsibility for this matter. These issues will not be capable of being disposed of in half an hour or an hour like simple car crashes because they will be immensely complex. The cases under this section will not be simple. It is not in any sense pyramid-type snobbery in relation to the courts that has us saying the District Court will not have jurisdiction under this head of quasi tort. It is simply that the cases will be of such complexity that for parties to have them properly dealt with – just like a libel case – it does not make sense to lumber the District Court with the additional obligation of having to set aside time to deal with cases of this kind.
It may be that in the future, once this beds down, somebody will suggest extending it to the District Court as it is working so simply and summarily in the Circuit Court that there is a case for giving that jurisdiction to the District Court. I am trying to operate a workable law which does not swamp the District Court with all types of claims that require many hours and many learned lawyers on both sides arguing high points of what happened last week. This is analogous to judicial review because it is damages in respect of actions by the State against its citizens. The District Court does not have a judicial review function at present. In terms of jurisdiction, it strikes a happy balance in giving this jurisdiction to the Circuit Court and High Court. If I was asked for my genuine judgment as to whether this will be a workable provision, I think it is workable in its present form.
Deputy O'Keeffe asked why there is not some other remedy. I presume he had in mind injunctions, things which are not declarations and non-damage based remedies. The simple fact is that it is not necessary to have it in that context.
Why not?
We are providing people with a remedy in damages. If one wants to injunct a State body from carrying out a function of one kind or another, one does that in the High Court by judicial review orders which used to be called mandamus and certiorari, and through injunctions. One does not usually get those in the Circuit Court. I do not want to swamp a system which is already under pressure. The courts system is not sitting there waiting for cases to flutter down like butterflies on a lazy afternoon. The entire system is under pressure and it must be organised. Some matters are of a degree of seriousness and complexity which suits them to some courts rather than others. In this context, if one were to introduce something like an injunction or a declaration, one would replicate in large measure the law relating to judicial review.
I ask Deputy Jim O'Keeffe to remember that uniting section 2 with judicial review law as we understand it – the law relating to mandamus, quo warranto, certiorari and the declarations and injunctions which go with those – will provide substantially what he asks for. Convention issues will be melded into judicial review law. In exercising its judicial review function over State bodies in public law matters, the High Court will, by virtue of section 2, incorporate the convention into all of its decision making processes. Some of the critics of this Bill have been very quick to dismiss it on the grounds that it does not provide for certain things. If one marries our existing law of judicial review to section 2 of this Bill, one will have a very complex system of enforcement of what some might call “convention-based rights”. If I felt I was doing an inadequate, mean or niggardly job on this, while knocking out provisions for the sake of it, I would confess to it.
The Minister does not have to feel it.
My thinking is that some of my critics are not being generous to me on these matters.
They do not have to be critics.
I do not expect generosity, but if they were to see this in the light I do, they would realise that sections 2 and 3, taken together, will have a significant effect on judicial review. They will be relevant to declarations, injunctions, judicial review remedies, certiorari and quashing orders. In effect, much of the criticism of this Bill will be found to be misplaced.
If one stands back, one sees that the Minister is explaining at length why the District Court cannot be involved. He then explains the reason the Circuit Court can be involved but will be limited in its remedy. The Circuit Court has the power to grant injunctions and declarations in the normal sense. Why should it not have power to grant injunctions in a case under section 3?
It does not normally have that power against State bodies.
I question that.
It does not have State-side jurisdiction.
I accept that it does not have State-side jurisdiction, but it should have power to grant an injunction against a health board in a matter where it considers that to be appropriate.
We have not really touched on the issue of confining the proceedings to a year, which is a very restrictive and limited approach. Since we are talking about section 3—
The provision is to prevent retrospective disasters. We do not wish to find that we have been doing something the wrong way for six years and that we owe people six years worth of damages.
The Minister raised the issue and there might be a case for reducing the general limitation in tort.
That will happen too.
I am open to suggestion on that point. There is a case for reducing the general limitation period.
I wish to avoid waking up one morning to find that we have been in breach of the convention for five years and that the State faces a mass claim by 30,000 people seeking €150 million in damages.
If the Minister were to wake up in the morning to find that he was in breach of the convention in 30,000 cases last year, there would be the same difficulty. We should have the same limitation period as for the normal tort. There should not be a specifically limited limitation period for a convention claim. The Minister has not made a very good argument for having a special limitation of one year. We are perhaps agreed about the need for reducing the general limit, but we will discuss the matter separately.
For personal damages.
There is an arguable case there. Why not have the same limitation period for claims brought under this section? It all seems to be part of a restrictive, tight, miserable and niggardly approach to the European Convention on Human Rights. It concerns me as it is not the correct approach. I am sad to see the Minister adopting it.
We are touching on the other important issue in the Bill; the question of the remedy in relation to a matter of incompatibility between the convention and existing legislation. We are unlikely to get to discussion of amendment No. 36, but I raise at this point the issue of a pardon which the Minister promised to examine as part of a remedy process. In the section we are discussing there is reference only to damages which is not adequate to suit all cases. The Minister will recognise that himself. He might say the remedy is generous, but he would be the only one to say so. He describes his critics as being ungenerous, but they would hardly be critics if they were too generous with regard to what the Minister proposes.
A serious problem arises in section 3 and flows on to section 5 in terms of an appropriate remedy where we find ourselves in a situation of incompatibility. I would like to spend some time exploring the reason the Minister has limited the remedy to damages and the reason he will not examine some other form of compensatory remedy. Obviously, a release mechanism would be one such remedy whereby a person would get a relief more appro priate to their circumstances. It is extremely limiting to provide a single form of remedy. The Minister provides in section 5 for an ex gratia compensation remedy, but he will not consider proposing a pardon in another instance where it would be appropriate to a particular offence. It would be a useful remedy in the circumstances which might arise. I ask the Minister to deal with that. It is unlikely we will get as far as section 5, but the substance of what we are trying to deal with is in section 3.
I will deal with it tomorrow.
Debate adjourned.