I welcome the President of the Human Rights Commission, Dr. Maurice Manning, and his colleagues. Perhaps he can introduce his colleagues.
European Convention on Human Rights Bill: Presentations.
Dr. Maurice Manning
Thank you. I am accompanied by Dr. Alpha Connelly, chief executive of the Human Rights Commission and the only other member of staff at present; Professor William Binchy and Mr. Michael Farrell, who need no introduction, Suzanne Egan, who lectures in human rights law in University College Dublin, and Ms Brid Jordan, who is an intern.
All of your colleagues are known to us as we have met them before with regard to the Human Rights Bill. I am delighted to meet Dr. Manning in his present capacity. We are here to discuss the relevance of the European Convention on Human Rights Bill.
Dr. Manning
I thank the chair on a personal level for his remarks, as it is slightly strange to be on this side rather than the other. I also thank the chair for the invitation.
One of our functions under the founding legislation is that we keep all law and practice, including proposed legislation, under review with particular reference to strengthening and protecting the human rights elements of that legislation. I hope in that context we can develop a good working relationship with this committee over the next few years.
There may be a sense of déjà vu for some people regarding today’s issue. Although its personnel were very different, last year the Human Rights Commission also made a submission to this committee on the European Convention on Human Rights Bill. In that submission the Human Rights Commission urged a much more robust approach to the incorporation of the Bill and argued that Ireland had nothing to fear and much to gain from taking such an approach. We said then that a more robust approach would strengthen human rights here and would facilitate ordinary citizens. We argued that the interaction between constitutional rights and convention rights would enrich our law and practice and would help develop a culture of human rights at all levels in our public life.
Today, a year later and after much reflection, we are even more convinced that the Government's approach to incorporation, as outlined in this Bill, is misguided. I hope my colleagues will persuade the committee to persuade the Minister, in turn, that this issue is one where the radical approach is the right one. I will ask Ms Egan to sketch out the background and then Professor Binchy will talk about the options open to incorporation of rights. Then Mr. Farrell will address some specific issues.
I want to draw the delegation's attention to the fact that while members of the committee have absolute privilege, the same privilege does not apply to the delegation. I am sure that will not have a bearing in this case.
Ms Suzanne Egan
I thank the chair for that warning.
I will address the convention itself and the importance of incorporation for Ireland. The European Convention on Human Rights, as many members will know, is probably the most effective instrument of human rights protection elaborated by the international community. Specifically, the instrument was established in 1950 by the Council of Europe and the reason it is so renowned is that it sets forth a detailed catalogue of human rights, in the main of a civil and political character, which are owed by states which are a party to the convention to all individuals within their jurisdiction. A key aspect of the convention is that it is a very well developed mechanism for implementation of these rights. The convention establishes the European Court of Human Rights, which sits in Strasbourg; it consists of one judge from each of the 44 contracting states. Many members will know this court is quite a distinct body from the European Court of Justice, which is the judicial organ of the EU and perhaps better known than the Court of Human Rights. I refer specifically to the Court of Human Rights sitting in Strasbourg.
This court has jurisdiction to hear complaints from individuals in any contracting state to the convention about a breach of their convention rights by the state in question. If the court finds there has been a breach of the convention, the state is then legally obliged, as a matter of international law, to implement the judgment of the court. This can involve the state in either reforming the law or administrative action which led to the breach in question and/or, if the court decides, to pay the individual concerned some compensation.
An important requirement of the convention system is that before an individual can take a case to the European Court of Human Rights he or she must first have exhausted all remedies at the domestic legal level that may have had a chance of remedying the grievance in question. A very important means of doing this would be for the individual to go to a domestic court to argue that the terms of the convention have been breached and to ask the domestic court to give a remedy. That can only be done if the convention has been incorporated into the domestic law of the state. In other words, where the convention has been incorporated a person can then rely on the terms of the convention in the domestic courts of the state in question. If the court finds that there has been a breach, this domestic court can then usually give the individual a remedy, which can often include compensation.
The ability, then, to rely on the text of the convention in a domestic court is of huge importance for all parties concerned. For the individual it can mean much more speedy and less expensive redress for the complaint, and for the state it ensures a quick resolution of the matter. There is also the added advantage that judges in the state, who are usually more familiar with domestic law and local circumstances than the court sitting in Strasbourg, get the chance to apply the convention in the domestic context. For the European Court of Human Rights it is of immense value because of the enormous number of complaints - more than 22,000 per year - which that court is receiving on a daily basis in Strasbourg.
What is the importance of all of this for Ireland? Ireland was one of the first countries to ratify the European Convention on Human Rights in 1953 and we were the first state to recognise the compulsory jurisdiction of the court. However, the State has never incorporated the convention into domestic law and we now stand as the only one of the 44 contracting states which has not done so. This has meant that the convention does not form part of Irish domestic law and the knock-on effect of this has been that individuals have not been able to rely on the convention to challenge domestic legislation or administrative action as being inconsistent with the convention in an Irish court. This has placed litigants in Ireland at a disadvantage. It usually means the litigant has to argue his or her case based on other elements of Irish law, either by reference to the fundamental rights guarantees in the Constitution or to statute law. If litigants fail they must take what is now called the long road to Strasbourg to plead the text of the convention before the European Court of Human Rights in order to persuade that court that their rights have been violated.
It is estimated that it can take between three and five years for the court to hear a case on the substantive merits in Strasbourg. When one considers that an applicant must first have exhausted all his or her domestic remedies one can see that litigation can go on for years. No doubt this factor has contributed to the reluctance of Irish citizens to use the convention to vindicate their rights. That is why the issue of incorporation is of such great importance.
If done correctly incorporation could mean that people would get an answer directly from an Irish court as to whether a convention right has been breached. Irish courts are very used to speaking the language of human rights. They have a long history of interpreting the fundamental human rights guarantees in the Constitution. Many of these guarantees already overlap with some of those in the convention so that in many cases recourse to the convention may not make a huge difference. However, for those cases where the Constitution leaves gaps - for example in Senator Norris's case - the litigant will no longer have to take his or her case to Strasbourg to establish a violation.
It is important to bear in mind that the State is at all times bound by this convention as a matter of international law. If we fail to implement the convention, in the view of the court of human rights, the State has to obey the court's ruling. When the convention is incorporated into domestic law individuals will no longer have to go to Strasbourg to establish whether the State is in breach of the convention. We have a real chance to short-circuit all this time and expense. The issue is one of making the convention practically accessible to litigants in Ireland.
Incorporation will also give the opportunity to Irish judges to interpret the convention and to make public bodies and administrative agencies in Ireland conscious of the convention in fulfilling their obligations. As Dr. Manning has said, we have an opportunity to develop a culture of rights at all levels of public life.
From a political point of view incorporation of the convention is a vital imperative. As part of the Good Friday Agreement the State has committed itself to ensuring, at least, an equivalent level of protection of human rights as pertains in Northern Ireland. The United Kingdom has already incorporated the convention into its domestic law by dint of the Human Rights Act, 1998, which came into effect in 2000. It is now our turn to fulfil our end of the bargain.
The Human Rights Commission therefore welcomes the Government's decision to incorporate the convention into Irish law. However, as Professor Binchy and Mr. Farrell will elaborate, we are very concerned about the method of incorporation chosen by the Government in the Bill we are discussing.
Professor William Binchy
Ms Egan has clearly spelled out the need for action. We are party to the convention and have been an enthusiastic party to it from the beginning. We were one of the first states to allow an individual to petition against his state; the Lawless case was the first case in Europe, which came from Ireland. We have a good record at an international level but our weakness is at the domestic level, where a person seeks to enforce his or her rights under the convention in the Irish courts. An individual cannot do so and must go on the long trek to Europe which takes three, six or even eight years. It also takes money. Very few people are able to take that road and only a small number of Irish people have done so. When one looks at the international record Ireland has emerged well enough from Strasbourg jurisprudence. One reason for this is the difficulty in taking these cases. Another - an important aspect of what I will say in a moment - is that we have a Constitution and fundamental rights. The Irish courts have been used to interpreting the Constitution in the light of those fundamental rights and legislators are used to the courts telling them every now and then that they may not do this or that. We do not have a system of parliamentary sovereignty and Parliament must respect the constitutional rights of the citizens.
We are quite familiar with the culture but the gap is in the domestic enforcement of rights under the convention in Irish law. The question legislators must decide is what is the best way of incorporating the convention into domestic law.
It seems to us in the commission that there are three possible strategies which could be adopted. There are two good ones and one not so good. The measure before us today has taken the not-so-good option.
Of the three, option No. 1 is not, politically speaking, a runner at this stage. It is the constitutional option, which would incorporate the convention at a constitutional level. The European Convention on Human Rights would become part of our Constitution. This has a number of attractions. It would be true domestic incorporation and a citizen would immediately get a remedy in the Irish courts. The downside is that it is an extremely complicated measure to contemplate.
However enthusiastic one might be about that option, one would have to ask how we would do it. Would we knock out the existing constitutional provisions that are similar to the convention and simply insert the European convention provisions or would we gloss what exists in the Irish Constitution by supplementary provisions to bring the Constitution overtly in line with the convention? That would be a difficult task. About six years ago the constitutional review committee, in the context of a very broad constitutional assessment of reform, recommended supplementing the Irish Constitution by the convention provisions. However, that was in the context of widespread constitutional change.
The political reality is that at this stage a constitutional option is a complicated measure. It would have political implications in the sense that one would have to put it to a referendum and it would involve a complex debate. Realistically, that is not on the table. However, the commission does state - it has stated this in its submission to the committee - that this is not an option that should be rejected; on the contrary, it should be kept firmly in mind and when legislation is enacted in due course incorporating the convention, is a theme that should be returned to in, say, five years' time. When people have got used to the convention overtly in Irish law and the judges have got used to sizing it, what looks now like a rather radical step might in five years' time look much more modest. That is option one, which is not on the table.
Option two, which Ms Egan has indicated, is the one we strongly propose. It is what we call the legislative option. What we mean by that is that the legislation, the Bill before the committee, should be radically amended in order not to have this form of indirect incorporation it adopts but rather an absolutely up-front incorporation of the convention into Irish statutory law, subject to the Constitution. It would not conflict with the Constitution. It would provide, in essence, that all statutory law, all law developed by the judges up to now, all statutory law in the future and all common law rules developed by the judges would have to be in compliance with the European convention, subject to the Constitution.
In pointing to the bad things about the present Bill, the good things will emerge from this second option. One would not have to go to Europe but could get a remedy in Irish law. More particularly, the change in Irish law would be entirely positive. The courts would in these circumstances have to consider the convention very much in their judicial thinking, both in terms of assessment of legislation and assessment of the rules the judges themselves have developed. The courts would be subject to this legislation. The legislators would also embrace the culture of the convention in terms of having to address the convention when bringing forward legislation. They already have to address the constitutional implications, fearful of Article 26 and the possibility of the Supreme Court striking it down even before it becomes law. However, the idea here would be to consider the convention also.
I can see only good things in this. Two arguments have been made by those who support the present approach. It is worth mentioning them. The first argument is that this is, in some sense, contrary to the legislative power, that legislators are not in a position to bind themselves in the future as to what kind of legislation they will produce and that if they were to adopt this option, they would be delimiting and restricting their power as legislators under the Constitution. We do not think that is a valid point because the truth of the matter is that to adopt this legislative option would be merely to produce legislation which legislators would be perfectly free in the future to amend or repeal. In other words, they are not tying their hands in terms of legislation. In adopting this approach legislators will in future legislate in accordance with the European convention. However, legislators preserve the entitlement to decide at some future stage not to do this. They are not, in some sense, shackling themselves and throwing away the key. They retain the entitlement at a future stage to amend or repeal this legislation if they believe it to be desirable.
Another argument that has been made is whether it is right to ask the courts to manage a double value system of human rights, given that we have rights under the Constitution and this is another set of human rights similar to but not necessarily always identical to constitutional rights. It is argued that this is putting the judges in some kind of divided situation where there are two value systems working at the same time. We do not believe that is a good point for a number of reasons. First, the entire common law as it has been developed prior to the enactment of the Constitution has to be seen through constitutional eyes. The courts are, therefore, used to this process of looking at two systems of law and reconciling them. Now we have the European Union and Community system of law. The courts, therefore, are used to this idea of reconciling systems of law.
More fundamentally, we see a richness deriving from this development in the sense that any single jurisdiction which develops a system of law, especially in the area of human rights, is, of necessity, a little inward looking in the sense that it is developing that system for its own culture, which is just one view of the world. If, however, there is a requirement to look more broadly and seriously at jurisprudence developed in other countries, specifically in the European Court of Human Rights, it is another perspective. In our view, far from confusing the judges, this would enrich their insight. It would broaden and enrich the perspective of the judges rather than confusing them or acting as some form of brake on the development of the law.
Before I pass over to Mr. Michael Farrell, we think the second option is very definitely the preferred one. We genuinely see no disadvantage to it whatsoever. It is subject to the Constitution. It would be a true enrichment of Irish law and would put in lights the European convention as something that the legislators must think about and that the courts must act upon. More fundamentally, the deficiencies which Mr. Farrell will identify in the legislation under the third model - the incorporation indirectly through an interpretative model, having to go to Europe, the delay involved, the fact that the courts are not subject to the measure itself and do not have to act in accordance with the convention, the absence of a remedy and a variety of others - would not exist under the second model. We, therefore, strongly recommend changing this legislation. There would be no great difficulty in doing so. It is really a change to incorporate, directly by legislation, the European convention and provide that statutory and common law be subject to it.
Mr. Michael Farrell
Eleanor Roosevelt said human rights were made effective in small local places for ordinary people. That is what we see as the function of this Bill, to make the human rights enshrined in the European convention accessible to people at local level where it means something to them. I am a practising solicitor and, as Ms Egan said, it takes a long time to get to Strasbourg. I have been involved in a Strasbourg case and was lucky to get a decision within three and a half years of initiating the complaint. We are still trying to pursue it in the Irish domestic system. There are enormous delays which makes it virtually meaningless to the ordinary individual. It is a legal axiom that justice delayed is justice denied. I would add to it my own axiom that justice distanced is justice devalued. Justice for which we have to go to Strasbourg rather than obtaining it in the local District or Circuit Court is not effective for the ordinary individual. What this Bill should be trying to do is bring justice down to local people in their own area.
There are a number of problems with the Bill. Probably the most fundamental lies in section 5. It springs from the nature of the incorporation. It states that where the courts find that some action by an authority is in breach of the European convention but is authorised by a statute here, the courts cannot strike down that action. They cannot give the individual a remedy. All they can do is issue a declaration of incompatibility to state that this action, whatever it is, is incompatible with the European convention. Once they issue the declaration of incompatibility, it gives the individual a right to apply to the Government which may or may not then give him or her an ex gratia payment of compensation. It may also obtain the advice of an adviser as to what amounts to accord the individual and may or may not follow that advice. This is profoundly unsatisfactory.
There is a similar provision in the British Human Rights Act, on which the Bill is closely modelled. Professor Binchy touched on the reason for that: the British tradition of unfettered sovereignty parliament, where one feels one cannot override parliamentary legislation. A number of commentators on the Act in Britain have described this declaration of incompatibility as the booby prize - the prize which does not give any remedy. That is the problem with this. Suppose one gets a declaration of incompatibility, one either applies to the Government for an ex gratia payment which one might or might not get or goes back to Strasbourg and tries to get a declaration from Strasbourg which then asks the Government to intervene and do something. In the meantime section 5(2)(a) states that “this declaration of incompatibility shall not affect the validity, continuing operation or enforcement of the statutory provision of rule of law in respect of which it is made.” In other words, the courts may say that as it is a breach of the convention, it is giving one a declaration of incompatibility, but the law is still the law. Then the same action can be taken again tomorrow in somebody else’s case and it will also be a breach of the convention. We then have a growing number of breaches.
The only remedy that can be given is compensation. If the case is that a person has been imprisoned as a result of something which would be a breach of the convention there is no remedy for that person to be released. If it is something where people want to stop an action going on that would be in breach of the convention they cannot get an injunction from the courts. This section is profoundly unsatisfactory. It springs from the weak form of incorporation. We would like to see the Oireachtas change the form of incorporation. If that is not done what else can be done to remedy the situation? It would be possible to give a person a right to compensation as a result of a declaration of a limit. It would require clever drafting but would be possible. We think it would also be possible to give a right to other remedies such as release from imprisonment or granting injunctions. Without that this measure is ineffective.
There is a follow-on provision from this in section 5(3) that if a declaration of incompatibility is issued the Taoiseach shall cause a copy of any order containing this declaration to be laid before each House of the Oireachtas within the next 21 days. All that does is inform the Houses but it achieves nothing for either the individual or others in jeopardy of the same violation of their rights. We would say that the Taoiseach should not only lay that declaration before the Oireachtas but should indicate what the Government intends to do about it and do it quickly. The British system has a somewhat similar provision where the Prime Minister or other relevant Minister has to come in and indicate what measures they will take. They have a provision for taking those measures urgently. Under their system they can use orders in council so that they can change the law quickly. We feel that the minimum should be that the Government should have to indicate what it intends to do and there should be a timescale for doing that.
There are some other practical problems with the draft legislation such as the definition of an organ of State, which occurs in section 1 of the Act. It defines an organ of State as including the tribunal or any other body other than the President or the Oireachtas or a court. Therefore courts are excluded from the definition of an organ of State. The legislation imposes on organs of State a requirement under section 3(1) to perform its functions in a manner compatible with the State's obligations under the convention provisions. The definition is saying that the courts do not have that obligation. The reason for that, as we understand it, is partly for the separation of powers so that the Oireachtas should not legislate for the courts. That does not make much sense because section 2 tells the courts they must interpret legislation to be compatible with the convention. It is not that there is a problem with the Oireachtas telling the courts what to do as it does that frequently with legislation. We do not see any logic in the provision.
A second problem would be that in practice the courts would be under an obligation to act with reasonable expedition to give reasons for their decisions. These are the two most obvious and practical effects of making courts subject to the requirement to be compatible with the convention. There are cases in Strasbourg at the moment because of excessive delay in giving judgments. There has been one friendly settlement and another case is ongoing.
The argument for reason is something that one could go to Strasbourg about because there is a right to be given a reason for a decision. However, it would make it a lot simpler if the obligation was directly on the courts here to give a reason. The reasons do not have to be enormously elaborate and it is not necessary for written judgments to be given in every case in the district court. All it would require is for the judge to give a reason he finds someone guilty. Many judges do this anyway as a matter of good practice. It is only logical and sensible to do so. Incidentally, under the British Act, courts are required to be subject to the convention and often in low-level courts one hears reference to the convention and the judge says he is obliged to give a reason for a decision. We think courts should be included.
There is an ambiguity in the definition of an organ of State as "an organ of state which is established by law or through which any of the legislative executive or judicial powers of the state are exercised". That leaves it a little unclear as to whether it includes semi-public bodies such as schools run by religious institutions or hospitals. The British definition is that "any body which exercises a public function" is under a duty to act compatibly with the convention. We feel that definition should be used here. Clearly, bodies which are in receipt of large amounts of public funds but run by private boards should be subject to the requirement and comply with the convention.
In regard to restriction to the higher courts, section 3 excludes the District Court as a forum for seeking damages. Again, we feel that remedies should not be damages alone but should also include other remedies such as injunctions and release from custody, whether from prison, mental hospital or whatever. Section 5 excludes the District Court and the Circuit Court. I made a point earlier about justice being available at local level. The place where most people come into contact with the courts is through the District Court or possibly the Circuit Court on appeal. That is where it is most relevant for people to be able to access their convention rights. That is being done effectively in England.
In a lecture given recently by Lord Woulfe, the Lord Chief Justice of England, he reflected on the experience of the Human Rights Act which has been in operation there for three years now. He stated that - and this is what may be behind the exclusion here - another undesirable consequence that was feared was that the courts would be flooded with unmeritorious applications based upon the Human Rights Act. The fear was particularly acute because the Human Rights Act gives all courts, including magistrates, jurisdiction to determine Human Rights Act issues. In fact, the applications based on the Human Rights Act have been moderate in number and usually fully justified. That was Lord Woulfe's considered judgment.
We have heard something similar from Mr. Justice Kerr, the judicial review judge in the North, who has spoken at the Law Society on this issue and on his experience of implementing the Human Rights Act. He has said that there was a fear of unmeritorious litigation but that his experience was the opposite and he found that most cases where the Human Rights Act was cited were of value and that they extended the law and brought in considerations that were helpful and positive.
I will make a point about time limits. Section 3(5) of the Act is restrictive. A person cannot take an action based on the human rights convention outside of the one year time limit. A remedy can only be sought for something that has happened in the previous 12 months. The time limit for an ordinary action of tort is six years. We see no justification whatsoever for making a distinction between one's rights based on the European convention and one's rights based on ordinary law. A person can take an action for some wrong done to them within six years. Why restrict the convention right to one year? It probably flows from the fear of unmeritorious litigation, but the British experience has been that this is not a realistic fear.
A point arises in the British Human Rights Act that is not in our draft legislation. Under the British Act, when Ministers are introducing legislation to Parliament they are required to certify either that it has been checked by their departments and is believed to be compatible with the convention or that it is not compatible. The British retain the right to pass legislation which is not compatible with the convention. I hope we would not want to do that here.
We believe certification that legislation is compatible with the convention is important because it would focus the minds of those in the Departments with responsibility for drafting legislation on the requirements of the convention when they are drawing it up. This would bring home the ethos and principles of the convention to the people working in the Departments and develop a human rights culture, not just in the abstract or in the courts, but in the administration of the Departments of State. What is sought to be achieved is that human rights are brought home and made real for the people who are at the receiving end of public services in this country.
We want to optimise the benefits from this meeting. A number of members might have different views from the Human Rights Commission, but the purpose of the meeting is to elicit information on the views of the Human Rights Commission. As members, we will have other opportunities to express our views, positions and opinions on it. I ask Members to confine their contributions to questions of our guests to get their views and opinions.
I welcome the members of the commission. We appreciate such an eminent group of lawyers giving of their time to come before the committee. In the past, I have been lectured by Professor Binchy and his reputation as one of the most eminent lawyers in this country and internationally is well recognised. We are fortunate that he is present.
I agree with the Chairman's approach. The best way to proceed is to elicit information and the committee can then decide its stance. Bearing that in mind, it is important to recognise from where we are coming, as a country and as a body of law, as distinct from all the other countries that are signatories to the convention. Because of our Constitution, we had highly developed law and jurisprudence in relation to fundamental and human rights before the emergence of the convention and the Bill. The Supreme Court has gone farther than many courts in other European states in terms of the breadth and interpretation it has given to the fundamental rights which already exist in our Constitution. I refer in particular to a development that occurred from the mid-1960s onwards and with which everyone present will be familiar.
In that context, I originally subscribed to the view of the constitutional review committee that there were difficulties in incorporating the convention into our body of law for a number of reasons. Some of them overlapped and there was the possibility of conflicting provisions. I take Mr. Farrell's point in relation to the lack of a specific remedy in relation to the failure to vindicate the rights in the convention as distinct from our constitutional rights. To what extent does the commission believe our highly developed sense of fundamental and human rights, as interpreted by the Supreme Court, differs from the rights contained in the convention, as elaborated by the European Court of Human Rights? I fear that if we incorporate the rights contained in the convention into our body of law through one of the three options mentioned by Professor Binchy, it could create confusion and a conflict between our law and what is contained in the convention. Given that our rights are highly developed and sophisticated, what sort of weight would judges have to apply to competing sets of rights that may be in the legislation?
Mr. Farrell has practical experience in bringing cases. If we import the rights contained in the convention into Irish jurisprudence and if Irish judges interpret those rights at first instance, I submit that the Norris case would have been struck down by the High Court, because the particular views Irish judges would have held at the time would have meant that the arguments put forward would not have been accepted. It took the courage of Senator Norris to bring that case outside our jurisdiction into the European context and in that way he obtained his remedy.
Mr. Farrell may argue that remedy may not be altogether satisfactory, but I fear Irish judges would interpret the rights contained in the convention and this could take away the valuable right, as I see it, to go outside our country and have fundamental rights vindicated by an international body. How does the commission believe the legislation ties in with those views?
I apologise in advance for the fact that I have to attend another meeting. I may not be present to hear the reply or the discussion, but I will be able to hear it on the monitor later.
As a number of members wish to contribute and time is limited, it might be possible to give a one minute answer to that and a further more comprehensive reply in writing to the committee later. Would one person like to take that up?
Professor Binchy
They all seem to be looking at me. I take the points the Deputy is making. In many respects the Irish courts have been ahead of the convention and the issue of bail is a classic example of that. However, this does not in any sense pull them back. Under the legislative model of incorporation we would get the best of both worlds. As incorporation is subject to the Constitution, in these circumstances there is no question of the convention forcing the courts or the legislators to introduce legislation that is inconsistent with the Constitution. However, it gives a new perspective, which is mentally activating. I will provide some examples.
The courts' jurisprudence in the area of the mentally ill has been somewhat passive and paternalistic. In that regard, I believe the European convention would jolt them into action to realise that there are important issues of liberty in that area.
In the area of freedom of speech, the jurisprudence in the Irish Constitution has been somewhat passive and quiescent and a requirement to think through the freedom of speech implications of any legislative measure would be good. However, I suggest this does not create an internal conflict or a surrender, as it were, of Irish constitutional values to the European convention in these circumstances. The Constitution would prevail in these circumstances if there was confrontation. The important aspect of introducing the European convention domestically is that it would encourage the courts - the judges - to think through our constitutional values. Far from there being a very significant number of situations where conflict would be found, what one would find is that the Irish courts, in the light of the view offered to them by the convention, will find that these constitutional values are coincident with the convention.
Dr. Alpha Connelly
In the Norris case, the Supreme Court decision was on a 3:2 basis. One of the judges referred to the convention and acknowledged that Norris would probably win, eventually, under the convention. Under the Bill, as it currently stands, what would happen is that, interpreting "privacy" under the Constitution, the courts would look at the convention and case law under the convention - there was a previous case, Dudgeon, in Northern Ireland - and would give effect to that in interpreting the Constitution. Norris would, most likely, have succeeded in the Supreme Court and would not have had to go to the European Court of Human Rights. The difference between what is in the Bill and what the Commission is proposing is that it is a matter of legislation, whereby Norris would have been in a position to go directly to the court, refer to the particular convention right and rely on it. He would not necessarily have had to plead the Constitution but one could do that also.
Thank you very much. If we can continue on the basis of concise questions and answers we will make good progress. I will now hand over to the vice-chairman of the joint committee, Deputy Paul McGrath.
I join in welcoming Dr. Maurice Manning and his colleagues from the Human Rights Commission to this meeting. I particularly welcome Maurice back to his old stamping ground, albeit in a new guise, as it were. I have no doubt he will enjoy working in his new capacity and I congratulate him on his appointment.
My main question also relates to what shortcomings the Human Rights Commission may see in Irish legislation and the Constitution that may give rise to conflict with the European convention. Professor Binchy mentioned a few of them. Perhaps the delegation could tease out those matters more fully, in terms of areas where they see a likelihood of challenges coming forward and where there are major deficiencies in our Constitution which are liable to give rise to cases. I am particularly interested in the area of remedy, to which Mr. Farrell referred. It is interesting that we have not built in any possible remedies that might be necessary, particularly in a situation where there is a conflict with the European convention but, under our law, each person has to take an individual case. I find that very disturbing. Looking at our past history, the Nicky Kelly case comes to mind. Although Mr. Kelly was released from prison and received compensation, it is my understanding that, in law, he still stands guilty. We are not good at providing remedies for such deficiencies in our laws. That contrasts with the UK justice system, which makes provision for overturning the original finding and wiping the record clean for the person concerned. I would welcome Mr. Farrell's further comments in that regard.
Mr. Farrell
I also wish to refer to DeputyPower's point. He seemed to believe that, by incorporating the convention, it would take away the right to go back to Strasbourg. That is not the case. The right to take a case to Strasbourg will be protected in any event. By "domesticating" the convention, one does not take away the right to go to Strasbourg. Unfortunately, it is our view that, under this system, it will still be necessary for people to go to Strasbourg, although we would prefer a situation in which that was not so necessary. However, the possibility to go back to Strasbourg always remains, if one believes the domestic courts have not properly interpreted the convention.
While it is difficult to pick out individual issues, there has probably been a change in that there was a period of judicial activism in our courts in the 1960s, 1970s and early 1980s which, for various reasons, is not as prominent now. There has been a tendency, in recent years, to have more applications to the European Court from Ireland than was the position for quite a long time previously, when there were very few applications from Ireland. There are a number of reasons for that, including, probably, the increasing sophistication of the European Court and the huge body of jurisprudence it has built up. It is now possible for lawyers to look at that jurisprudence to see how the European Court has dealt with an issue and assess the prospects of a favourable finding in a client's case in that area. Consequently, more litigation is now coming forward from Ireland and that trend will continue.
In certain areas, due to the complexity of our modern society, issues are coming up. A recent example is the rights of transsexuals. That has been litigated in our courts, which found that a person who had changed gender could not have her birth certificate changed correspondingly. The Strasbourg courts have just held that that can be done and the British Government is now in the process of changing its legislation in that direction. In such areas of personal rights and so on, there will probably be more litigation from Ireland. Some of it involves teasing out detailed implications of issues on which our Constitution and the convention are quite close but there are matters of detail to be addressed.
With regard to the Chair's point on the Nicky Kelly case, I am involved in litigation involving a person whose conviction was held to have been obtained in breach of the convention and monetary remedy was awarded by the European Court but whose conviction still stands. We have just gone back to the Irish courts to raise that issue of the continuing conviction, which has certain implications for the person concerned - for example if a person with such a conviction wishes to go to America.
Is there any facility to overturn a conviction in such a situation? As I understand it, there is no provision whereby the slate can be wiped clean.
Mr. Farrell
There is not, on the basis of the Strasbourg litigation. The State has said that has no direct effect in our law at present because this Bill has not been enacted. However, even with the passage of this Bill, it still would not have direct effect. Accordingly, we have to argue on the basis of other Constitutional reasons and it is in the hands of the judge as to what will happen in an individual case. There will, undoubtedly, be more of these issues and, for that reason, it is most important to have a more effective form of incorporation.
Dr. Connelly
On the question with regard to deficiencies in the Constitution, I will give one possible example. There are cases on this very point against Ireland in Strasbourg at present. It relates to delay in the courts or behaviour attributable to judges in that context in civil proceedings. Neither the Supreme Court nor the High Court has, to date, given a remedy for delay in the courts, as such. I do not believe the door is completely shut in that regard but no such remedy has been given to date. Certainly, under the present form of the Bill, as the courts are excluded as an organ of the State, there will be no remedy for the individual here in Ireland as the law now stands. Under the form of incorporation preferred by the Commission, involving direct applicability of the rights, which people can plead in court, there is a large body of case law in Strasbourg stating that cases have to be heard, in civil proceedings, within a reasonable time. If there is a delay and if that is attributable to the courts, the State is liable. The effect would be that, if Irish legislation had incorporated the rights directly, a person could argue on that basis before a court and obtain a remedy.
What would be regarded as a reasonable time in this context?
Dr. Connelly
In the context of Strasbourg case law, it depends on quite a number of factors, such as how the parties have behaved in the proceedings and the degree of complexity of the proceedings. In a simple case, a six months period might be appropriate whereas in a complex case a period of three years might be applicable. Particular attention would be directed at the behaviour of the courts and the State authorities and whether there was any negligence or unjustifiable delay in that regard.
I join in welcoming the delegation. I am delighted that my former colleague, the former Senator Manning, has been appointed to his present office. I am well aware of his commitment in this area of rights. I was delighted to see that the first publication concerned an ombudsman for the Garda, which I have to agree with also. Unfortunately, the Human Rights Commission does not have the required staff, but I am sure this will be remedied in the near future and that there will be a huge output of activity from the commission.
In the context of the Good Friday Agreement, what are the commitments with regard to legislation as distinct from a human rights commission? Are we bound to introduce legislation in this area? I agree with what has been said in terms of having a human rights culture and that this should underpin our legislative corpus and society as a whole. While we have been fortunate in regard to the Constitution, nonetheless, many organs of State do not operate with the underpinning of a human rights culture.
We must take on board the amendments Mr. Farrell indicated with regard to the Bill such as indirect incorporation in relation to the absence of a remedy where there is a declaration of incompatibility in section 5, the redefinition of the organs of the State, provision at District Court level for a remedy or pleading a case, and the question of time limits. How will the Human Rights Commission assess the Bill if the proposed amendments are taken on board?
What was the outcome of the talks with the Minister? The Bill was introduced in April 2001 under a different dispensation. Has the new Minister for Justice, Equality and Law Reform had any sympathy towards the approach the commission has taken? It seems, on the basis of what has been said, that direct incorporation would be a more desirable approach. Has there been a rethink at this stage?
I welcome the delegation. It is good to see our friend, Dr. Manning, back among us again. I compliment the commission on the coherent and interesting points made. Its members made the point that the convention, if incorporated, would be subject to constitutional provisions. Have specific areas been identified where significant conflict would arise between the convention and the Constitution?
The convention was ratified 50 years ago. It has, therefore, taken a long time to get to this point. The delegation is now seeking complete incorporation. Given our cautious nature in these matters, is it not more prudent to take a step-by-step approach, which is what the legislation probably achieves? I have heard concerns expressed in the Houses of the Oireachtas, of which Dr. Manning would have been well aware and may have shared. Much of what has happened economically with regard to the partnership process - which has been very positive for our economic development - has, to some extent, sidelined Parliament. By incorporating the convention, we are taking a similar route. The approach adopted in the Bill, particularly the declaration of incompatibility - a good provision - will create its own dynamic when laid before the Houses.
The interesting point was made that the Minister might go into the Dáil and highlight it to a greater degree. Within the Houses of the Oireachtas such declarations will give rise to a certain amount of canvassing for changes in legislation where there is incompatibility. The Oireachtas is a better forum for this than the courts, which are not as democratic or accountable to the public. This step-by-step approach will see achievements, though I am mindful of the point that we are subject to the convention in international law. It is not as if we have an opt-out, but the teasing out of issues as they arise is a first step. A cautious approach may be the best one.
Dr. Manning
I will answer one of the questions and Ms Egan will address the points made by Deputy Costello and Senator Walsh. We have not met the Minister, but there was a seminar on this topic at the Law Society, jointly sponsored by the Human Rights Commission and the society. Professor Binchy presented the case made here this morning and the Minister listened and gave his view, which is to back the legislation. He has not changed his mind. We hope one of the things the joint committee will do is to help, in the give and take of committee discussion, to persuade him to change his mind. He knows our views very well and will hear them again, but there is no indication that he has moved, though he will speak for himself before the committee.
Ms Egan
Mr. Farrell will address Deputy Costello and I will deal with some of the other questions.
Mr. Farrell
Dr. Manning has answered one of the main questions asked by Deputy Costello about the Minister's attitude. The Deputy also asked about the commitment under the Good Friday Agreement which is ambiguous. The British Government committed itself to bringing forward the Human Rights Act and bringing the European convention into UK law and thereby into law affecting Northern Ireland. The Irish Government committed itself to further examining the question of incorporation of the European convention, which is more vague. On the other hand, the next sentence of the agreement states that the measures brought forward by the Government will ensure at least an equivalent level of protection of human rights as pertains in Northern Ireland.
The commission takes the view that in Northern Ireland the convention is being pleaded daily in the courts. If there was a situation where the convention could not be pleaded in District and Circuit Courts here, where the courts were not subject to the convention, there would be a difference in the level of protection available. Protection or access to the convention would be available in Northern Ireland but not here. There has been a situation, in a professional context, where solicitors and barristers have come to talk at meetings in the South about their experience of using the convention in the Northern courts, while Southern lawyers are not in that position and would not be in some of the courts under this legislation. It would not bring an equivalent level of protection in keeping with the commitment in the Good Friday Agreement.
Ms Egan
Senator Walsh's first question was whether any conflict could be identified between the convention and the Constitution. I do not see the issue as one of potential conflict as much as the convention complimenting areas where the Constitution leaves a gap. The classic example might be the area of family life where the Constitution gives special protection to the family based on marriage whereas the European Convention on Human Rights recognises a very broad concept of family life which would allow couples and partners to rely on convention rights where such rights are not necessarily available under the Constitution.
The convention gives a specific guarantee to private life under which the European Court of Human Rights has given protection in all sorts of instances, for example, protection of physical and moral integrity. There is also the classic example of Senator Norris' case. I do not see it in terms of conflict but as scenarios where reliance on the convention can supplement a case which would not be as justiciable, say, in the Irish courts at present. The second question was whether the step by step approach was better. Our concern is that the incorporation Bill before us does not give much added value to the scenario which prevails at present. Some people would say we are taking two steps forward, because we are talking about incorporation, and one step back, if one wants to use the language of steps. It does not benefit the litigants to any great extent, as Mr. Farrell has said. This declaration of incompatibility can almost mean nothing if at the end of the day the litigant is not able to walk away with a remedy in his or her hands.
I hate to return to Senator Norris's case for the umpteenth time, but even if he had secured a declaration of incompatibility from an Irish court that would not necessarily have meant that the law would have to be changed. It is left somewhere up in the air. We are of the view that a stronger method of incorporation is the way to go because at present a step by step approach is not altering the status quo in a major way. He asked also about declarations of incompatibility and said it might give the Oireachtas the chance to debate measures in more detail. The Oireachtas will always have a role in that regard. We cannot speak about all the different types of scenarios which could come before an Irish court where the convention could have a bearing. For example, in the area of detention, Mr. Farrell asked whether a person's detention is lawful. The courts are the best place to debate whether in the area of mental health a person's detention is lawful within the meaning of the convention. In that case a declaration of incompatibility is not much use to the individual in question. That is where we see a direct incorporation as making a difference to the people on the ground.
I welcome Dr. Manning and his colleagues. We have had a most interesting debate and although it is early morning it has brought out the best in us. Many of the comments I wished to make have already been expressed by my colleagues. Ms Egan was attempting to answer the question I was about to ask which related to the fact that in 1953 we ratified the European rights convention. New rights have emerged since then, to which Ms Egan referred, such as the marriage of homosexuals, the adoption of children by homosexuals, the rights of transsexuals etc. When this is eventually incorporated into Irish law we will still be subject to the Constitution. Will the Constitution be able to embrace all these new rights or will we be reliant on the European convention to address them?
Professor Binchy
The Deputy is correct in saying the Constitution would be the ultimate test. There are many areas where convention rights can supplement constitutional rights, many of which are in the area of privacy, for example, autonomy, and family life. There are very few situations where the Constitution would require a rejection of convention principles. It might be helpful to mention the area of succession rights of children born outside marriage. There was a case in the 1980s where a child born outside marriage argued that the succession Act, as it then was, was discriminatory on the basis that it denied that person an entitlement to succession in her father's estate. The Supreme Court said that the Constitution did not require that legislation equalising rights be brought in. Equally, the Supreme Court made it clear that the Constitution did not require that there be inequality. That is a classic example where the convention will say one must have succession rights that are equal in these circumstances. That was brought about by legislation in 1987 which did equalise the succession rights of children, regardless of the marital status of their parents.
This is an example of where the Constitution does not say "no" to a particular course of action, where the convention might say "yes" to that particular course of action, where there would be harmony between the Constitution and the convention but a stimulus for action would have been created by the convention. It is highly theoretical, and only in very limited circumstances might one argue that there could be a potential conflict between the Constitution and the convention. There are many areas where this form of permission, but not a requirement, exists. In the Norris case, if one examines the Supreme Court judgments, even the three judgments in the majority stated that the Constitution supported the particular criminal provision that existed but they did not say that the Constitution required that there be such a criminal provision. In 1993 the legislation was changed following Senator Norris's resort to Europe. Nobody has suggested the 1993 Act is unconstitutional. That is an example of where the convention supplements rather than conflicts with the Constitution.
I wish to ask one other question in relation to the critique presented by Mr. Farrell of the existing legislation. If suitable amendments were proposed to the areas he has identified as being unsatisfactory, what would be the panel's perception of the legislation?
The Deputy is really asking if Mr. Farrell has available to him amendments that we might be able——
He has. I have no doubt there is a plan B. Perhaps we could have some indication.
Mr. Farrell
It is a difficult question. We would prefer a different model. We would prefer the model that incorporated the convention into law, not into the Constitution. There are serious difficulties about it. The declaration of incompatibility is the big problem. Senator Walsh made the point that if there was a declaration of incompatibility, it would be a political imperative to change the law. To refer again to Senator Norris's case, there was a six-year gap between the decision in Strasbourg in favour of David Norris and the change in the law here. In the case of a declaration of incompatibility we would not like to see a six-year gap. That is the biggest problem. We have suggested a number of changes, which would undoubtedly improve the Act, particularly making the courts subject to the Act, bringing in bodies that perform public functions as well as the quasi-public bodies - bodies that spend public money and perform public functions but are run by private boards - providing that there could be a right to a remedy on the basis of a declaration of incompatibility although there would still be an unsatisfactory situation if the courts had not struck down the provision.
There could be the same breach of rights the following day but if there was a right to aremedy, as opposed to this very nebulous possible ex gratia payment by the Government - if one had a right to the remedy and it was just compensation, it was release or injunction or whatever - that would certainly increase the imperative to change the law if there were a declaration of incompatibility. There are a number of measures that could be taken to strengthen it under the existing model. We would prefer a different model but if this model is maintained there are some measures that could be taken to change it. There is a certain unreality about this because we are talking about the European convention.
Under the European Union, rights can be laid down by European Union legislation which automatically become law in Ireland and have the force of the Constitution behind them. I am talking about certain rights in the social area - rights to equality in employment and equality in access to services, non-discrimination and so on. The European Union is making legislation now which automatically has the force of law here so I do not understand the need for such caution, fear and hesitancy about the convention on human rights when law is already being made in the European Union in a way that we do not have much input into it, and that may become a greater issue with the European charter of fundamental rights.
Dr. Manning
To answer Deputy Costello's question about amendments as bluntly as the Acting Chairman asked it, in the last submission we made to this committee, which we can make available again to members, there is a list of our specific objections to the Bill and these, in effect, are in the form of amendments. Our thinking on the detail of the Bill, which is short, is included in that. I thank you, Acting Chairman, Deputy Ardagh and the members of the committee for the fair, full and attentive hearing we got this morning. We hope the points we made will have an impact when the committee gets down to discussing both the principle and the detail of the Bill.
On behalf of Deputy Ardagh and the members of the committee, I sincerely thank Dr. Maurice Manning, Dr. Alpha Connelly, Professor William Binchy, Mr. Michael Farrell, Ms Suzanne Egan and Ms Brid Jordan for joining us this morning. It was an early start but it was very worthwhile from our point of view. The members and myself appreciate you taking the time to come here and inform us on what is involved in this complex issue. I am sure we will meet you again in due course as the Bill progresses in the new year. I hope our channels of communication will remain open and that we will be able to call upon your expertise at a later date. I thank you for coming in today and giving us of your time and expertise.
I wish all the members and those present a happy Christmas and a joyful and peaceful new year. This committee will sit again early in the new year.
The joint committee adjourned at 10.25 a.m. sine die.