Dáil Éireann debate -
Wednesday, 11 Jun 2003

Vol. 568 No. 2

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

Debate resumed on amendment No. 17:

In page 5, to delete lines 1 to 22.

–(Deputy J. O'Keeffe).

Mr. Costello

We are coming to the final stage of the discussion on this legislation. To date the Minister has not accepted any amendment from the Opposition. In this section we are concerned about the lack of a more extensive list of remedies other than compensation, which is only paid ex gratia and then not even if there is a constitutional problem, where an element of incompatibility arises regarding the operation of the European Convention on Human Rights in domestic law.

Does the Minister not agree that a remedy of damages alone is not satisfactory or adequate where a loss has been endured by a citizen as a result of failure to meet proper standards in law regarding the convention? Where a conflict arises and an incompatibility is adjudicated to have taken place, there are instances where a remedy of damages is not appropriate. It should be possible to have a broader range of remedies such as, for example, the application of an injunction. There could be a remedy of releasing somebody who was in custody where a criminal offence was involved. Damages would be little use to them in those circumstances. Finally, where conflict and incompatibility arise, there should be the ability to exercise a pardon. That should be included in the section where the element of compensation is dealt with in terms of a Government ex gratia payment. The section limits the remedy exclusively to damages and there is a bureaucratic process for accessing those damages. We will do an injustice if we do not broaden the scope of remedies that are available to make good the damage caused.

There is little time left for this debate. This is probably the second serious issue in the Bill, the first one being the context in which the Bill is being introduced into Irish law, which we discussed extensively. What remedies are appropriate to Irish citizens who have suffered as a result of the convention's provisions conflicting with Irish jurisprudence? It would be most desirable if the Minister accepted or introduced an amendment which would allow greater scope of remedy, to include an injunction, a release from custody and provision to grant a pardon to somebody who has suffered.

Mr. J. O'Keeffe

I will reply to the debate. There is no time limit on a reply—?

Acting Chairman (Breeda Moynihan-Cronin)

There is no time limit.

Mr. J. O'Keeffe

That gives me the opportunity to cover a number of issues in this section. The section contains the nuts and bolts of the Bill. The Minister should give a commitment that there will be a review of the legislation within 18 months, with a report on the operation of the legislation and a debate on that report. My approach is radically different from the Minister's but it seems to be shared by everybody with any interest in human rights. The Minister has, to a degree, bulldozed his own view through, initially as Attorney General and now as Minister for Justice, Equality and Law Reform. He will be responsible for the product. We are making a radical change in Irish law, although to judge by the media interest it is hardly noticed, and I am concerned that we get the optimum product. I do not believe we are getting that and that is why there should be a review in 18 months to see how the Bill has operated.

The priority objective of the legislation should have been to ensure that citizens could enforce their convention rights with minimum expense and delay. That will not happen. We should have aimed to ensure that the convention rights would become part and parcel of jurisprudence in all courts but that will not happen under this legislation. I am particularly concerned that under section 3 there are no manageable remedies. There is a complete focus on damages without any reference to the other possible remedies that should be available in pursuance of convention rights.

There is no jurisdiction in what is known as the poor man's court, the District Court, and there is no reason that such jurisdiction should not have been made available. It is illogical to have different limitation periods applying regarding convention rights and I have made it clear to the Minister that the overall limitation rights should be reduced. There should be parity regarding convention rights and that is the reason I wanted similar limitation rights applying to the pursuit of claims under this Bill as apply to claims under any other law. Convention rights should be part and parcel of normal jurisprudence.

The other concern about the working of the Bill or the jurisprudence that will apply in pursuing convention rights is that there is silence on the issue of legal aid. It is excluded. My main complaint, however, is that I cannot accept the Minister's approach to redress. There is no redress as of right under section 5. I understand the Minister's rather convoluted thinking, which he had to express in a fashion that fitted in with his approach to the incorporation of convention rights. However, it runs contrary to everything I have ever learned or practised in law to find that where there is a court decision, there is no right for the court to give a remedy. It goes against nature to force through a system which effectively has the Executive deciding on an ex gratia basis what the redress will be where there is a finding by the court. I would not use the word “defective” to describe the Bill, but for all those reasons, many of which we have gone over on Committee Stage and elsewhere over the last six or seven sessions in which we have discussed this Bill, it is certainly not the optimum product we should be putting in place if we were wholeheartedly embracing the incorporation of the convention. While opposing this section, I will merely put the amendment to a voice vote in order to save time and enable us to move on. However, I press upon the Minister the need to give a commitment to review.

It is possible that the approach adopted by the Minister may turn out to be a good one. It is highly unlikely but I am prepared to have the matter assessed in 18 months on the basis of a review and a report. That is the suggestion I am making to the Minister. He has adopted a few minor amendments we have put forward but they are peripheral amendments. I am glad in particular that he has adopted the amendment giving notice to the Human Rights Commission. Overall, however, the right approach is a commitment to a review and a report and to let us look at the whole issue again perhaps in 2005 in light of the workings of the Bill.

Question, "That the words proposed to be deleted stand," put and declared carried.

Amendment declared lost.

Acting Chairman

Amendments Nos. 18 to 20, inclusive, are out of order. Amendments Nos. 21 to 24, inclusive, are related and may be taken together by agreement. Is that agreed? Agreed.

Amendments Nos. 18 to 20, inclusive, not moved.

Mr. J. O'Keeffe

I move amendment No. 21:

In page 5, line 23, to delete "of the Convention provisions and".

The advice I get is that the Bill would be improved by the deletion of the reference to "Convention provisions" and, in particular, if there was a deletion of the words, "on any question in respect of which that Court has jurisdiction." We are talking in section 4 about judicial notice being taken and what notice should be taken. The suggestion has been made to me that it is superfluous to have a reference to the "Convention provisions," but that is not important. More significant are the three references to judicial notices being taken of declarations and decisions or otherwise of the court established under the convention on any question in respect of which that court has jurisdiction.

That could lead to great difficulties in respect of proof. If somebody wants to ensure that judicial notice is taken, will he or she then have to show and prove in all cases that notice of decisions, opinions or otherwise is on a question in respect of which the court has jurisdiction? Why is it necessary to include those words? It seems to have a limiting effect. From that point of view I am advised that the Bill would be in better shape if those words were excluded.

Mr. Costello

These are technical drafting amendments, and I also feel that we would improve the legislation by deleting the clause "in any respect of which that Court has jurisdiction" and left it at judicial notice being taken in relation to the three items listed in relation to the European Court of Human Rights. These are not major issues but the amendments would tighten up and improve the legislation.

Minister for Justice, Equality and Law Reform (Mr. McDowell)

I will be accepting amendments Nos. 25 and 44. In relation to the proposal to remove the phrase "on any question in respect of which that Court has jurisdiction," we considered it very carefully. We decided that, on balance, it was better to leave it there. I shall just give an example of why. A decision of the committee of Ministers established under a statute of the Council of Europe could be on virtually anything. It is not relevant solely to convention matters. Therefore, judicial notice should be taken in respect of relevant matters by a court which has a relevant jurisdiction to exercise, rather than having judicial notice of everything that the committee of Ministers of the Council of Europe decides. On balance, we thought it was better to proceed with the Bill the way it is. I am grateful to the Deputies for raising the matter, and we spent some considerable time wondering whether we should accede to their suggestions. However, we decided that, on balance, it was better to stick to what is in the text.

Mr. J. O'Keeffe

Without wishing to delay further, I do contend that this could be argued either way. I strongly feel that we would be better off without the reference to "any question in respect of which that Court has jurisdiction" because of the proof issue. Maybe it is an issue we could return to in the context of the review I am talking about. I further suggest that if the phrase is considered to be essential to the legislation, it could be improved by an amendment to the effect that the bodies concerned would be deemed to have jurisdiction until the contrary was proved. My concern is that the onus of proof would be on someone seeking to have judicial notice taken of some decision or otherwise. The way the legislation is now being framed, they would have to prove in every case that the court or the body had jurisdiction. It is an issue we perhaps might return to if the Minister accepts my suggestion of a review of this legislation within the next couple of years.

Amendment, by leave, withdrawn.

Amendments Nos. 22 to 24, inclusive, not moved.

Mr. J. O'Keeffe

I move amendment No. 25:

In page 5, line 35, to delete "applying and interpreting" and substitute "interpreting and applying".

I think this is the one issue on which we have agreement. The Minister has accepted that amendment.

Mr. McDowell

We are agreed on that.

Mr. Costello

I thank the Minister for accepting at least one amendment.

Mr. J. O'Keeffe

It is a rather minor amendment, however.

Amendment agreed to.

Amendment No. 26 not moved.

Acting Chairman

Amendments Nos. 27 to 34, inclusive, may be taken together by agreement. Is that agreed? Agreed.

Mr. J. O'Keeffe

I move amendment No. 27:

In page 5, to delete lines 38 to 45 and in page 6, to delete lines 1 to 30.

We are now into the question of the declaration of incompatibility. There are a range of amendments for consideration at this stage. I do not believe we are going to have the opportunity of giving full and due consideration to section 5, which is an important section. Thus, I can merely touch upon some of the issues that arise.

Section 5 contains a requirement to show that," no other legal remedy is adequate and available." I understand the Minister's thinking that the constitutional route should be followed as far as possible, but I am concerned with the element of proof required of a claimant, who will in many ways have to prove a negative to show that, "no other legal remedy is adequate and available", before he or she can proceed.

A second question arises on the matter of procedure. Will there be serial proceedings and will they be costly? No legal aid is envisaged. In view of this, I am concerned that from the point of view of practice, the section as drafted will not be effective and will not fulfil the requirements of Article 13 of the convention, which specifically provides that the rights and freedoms of everybody set forth in the convention must have an effective remedy before a national authority. Are we providing for an effective remedy in a situation where so many obstacles, including expense, appear to be put in the way of somebody who wishes to plead his or her convention rights? My main concern regarding this section is that an effective remedy will not be provided and that the availability of the convention rights to ordinary citizens will be reduced.

I have outlined previously the other difficulties with this section, which I will not rehearse, including my objection to the provisions regarding ex gratia payments. While I understand the Minister's thinking on this aspect, I do not accept his approach. I would have thought he would have the highest regard for the normal principles of jurisprudence and constitutional law, yet he is proposing to put in place a system that is not in accord with normal thinking in this area. The courts will be excluded from giving remedies.

The operation of this section should be reconsidered in the context of the detailed review I press on the Minister to accept. He should be at least prepared to reconsider it in light of the working of the Act. It is not an unreasonable request and is the proper approach. I urge him to accept my proposal for a review and a report on the workings of the Act, following which we can resume this debate.

Mr. Costello

Section 5 provides for a declaration of incompatibility, but there is no mechanism for transferring the declaration from the courts to the Taoiseach. Amendment No. 31 proposes that the registrar of the court concerned will transmit a certified copy of an order containing a declaration of incompatibility to the Office of the Chief State Solicitor. As it stands, section 5(3) provides that the Taoiseach "shall cause a copy of any order [.] to be laid before each House of the Oireachtas", yet there is no provision for a mechanism to transmit the order to the Taoiseach. The Minister did not address this on Committee Stage, despite a similar amendment in my name. Will he indicate the mechanism to be put in place to allow for this transmission?

Amendment No. 32 requires the Government to indicate its proposals to address a declaration of incompatibility and I ask the Minister to deal with this aspect. I also ask him to indicate if he will consider a remedy other than one of damages, including whether the Government would consider a pardon in cases where there is a conflict under the convention's provisions.

Aengus Ó Snodaigh

Amendment No. 28 in my name seeks to clarify the procedure in the event of a finding of incompatibility. Amendment No. 44, in the name of the Minister, provides that the Human Rights Commission shall also be given notice of proceedings in accordance with the rules of the court. Given that this addresses part of amendment No. 28, it is strange that the Minister has not accepted amendment No. 45, which is also dealt with in amendment No. 28, and which would entitle the Human Rights Commission to appear in proceedings. The Bill provides that only the Attorney General is entitled to appear. Amendment No. 28 is similar to the concerns raised by Deputies Jim O'Keeffe and Costello in their amendments and seeks to clarify procedures in this area.

Mr. McDowell

I agree with Deputy Costello's point on the question of remedies. In the case of some convicted persons, a pardon would be an appropriate remedy. I do not know if they would have to be still alive. However, as I understand it, and I am subject to correction, under the Constitution, the power of pardon, which expunges guilt, is conferred exclusively on the President, acting on the advice of the Government, but the power to commute penalties can also be conferred by other people. In view of this, a problem arises if we attempt to regulate that power, which is an Executive advisory to the President function under the Constitution. If we start legislating on how it is to be operated we will have a constitutional problem.

Turning to Deputy Costello's broader question, which has been echoed by other Deputies, it is somehow suggested that there will be no injunctions, declaration and remedies other than damages provided for under the Bill. However, that flows from a view of the Bill, strongly reflected in the contributions made by Deputy Jim O'Keeffe to this debate, that there are convention rights, a series of things like pillars—

Acting Chairman

The time permitted for this Stage has expired.

Mr. McDowell

I have indicated the two amendments, apart from those in my own name, I am accepting.

Mr. J. O'Keeffe

Will the Minister accept a review?

Mr. McDowell

A non-statutory review.

Mr. Costello

We are deeply grateful to the Minister for that.

Acting Chairman

The time permitted for this debate having expired I am required to put the following question in accordance with the order of the Dáil on this day: "That the amendments set down by the Minister for Justice, Equality and Law Reform and not disposed of are hereby made to the Bill, that Report Stage is hereby completed and the Bill is hereby passed."

Question put.

Tá

Ahern, Dermot.Ahern, Michael.Ardagh, Seán.Aylward, Liam.Blaney, Niall.Brady, Johnny.Brady, Martin.Browne, John.Callanan, Joe.Carty, John.Cassidy, Donie.Collins, Michael.Cooper-Flynn, Beverley.Coughlan, Mary.Cowen, Brian.Curran, John.Davern, Noel.de Valera, Síle.Dempsey, Noel.Dempsey, Tony.Dennehy, John.Devins, Jimmy.Ellis, John.Finneran, Michael.Fitzpatrick, Dermot.Fleming, Seán.Gallagher, Pat The Cope.Grealish, Noel.Hanafin, Mary.Healy-Rae, Jackie.Hoctor, Máire.Jacob, Joe.Keaveney, Cecilia.Kelleher, Billy.

Kelly, Peter.Killeen, Tony.Kirk, Seamus.Lenihan, Brian.Lenihan, Conor.McDowell, Michael.McGuinness, John.Martin, Micheál.Moloney, John.Moynihan, Donal.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, Fiona.O'Malley, Tim.Power, Peter.Power, Seán.Sexton, Mae.Smith, Brendan.Smith, Michael.Treacy, Noel.Wallace, Dan.Wallace, Mary.Wilkinson, Ollie.Woods, Michael.Wright, G. V.

Níl

Allen, Bernard.Breen, James.Broughan, Thomas P.Burton, Joan.Connaughton, Paul.Connolly, Paudge.Costello, Joe.Coveney, Simon.Crawford, Seymour.Crowe, Seán.Cuffe, Ciarán.Deasy, John.Deenihan, Jimmy.Durkan, Bernard J.English, Damien.Enright, Olwyn.Gilmore, Eamon.Gogarty, Paul.Gregory, Tony.Higgins, Joe.

Higgins, Michael D.Hogan, Phil.Howlin, Brendan.Kehoe, Paul.Kenny, Enda.Lynch, Kathleen.McCormack, Padraic.McGinley, Dinny.McGrath, Finian.McManus, Liz.Mitchell, Olivia.Morgan, Arthur.Moynihan-Cronin, Breeda.Murphy, Gerard.Naughten, Denis.Neville, Dan.Noonan, Michael.Ó Caoláin, Caoimhghín.Ó Snodaigh, Aengus. O'Keeffe, Jim.

Níl–continued

O'Shea, Brian.O'Sullivan, Jan.Pattison, Seamus.Penrose, Willie.Quinn, Ruairi.Ryan, Eamon.Ryan, Seán.

Sargent, Trevor.Sherlock, Joe.Shortall, Róisín.Stagg, Emmet.Twomey, Liam.Upton, Mary.Wall, Jack.

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

Question declared carried.