JOINT COMMITTEE ON JUSTICE, EQUALITY, DEFENCE AND WOMEN’S RIGHTS debate -
Thursday, 16 Jan 2003

Vol. 1 No. 6

European Convention on Human Rights Bill 2001: Presentations.

Chairman

I welcome all the various groups in attendance. The Select Committee on Justice, Equality, Defence and Women's Rights will soon be processing Committee Stage of the European Convention on Human Rights Bill, 2001. The Joint Committee on Justice, Equality, Defence and Women's Rights held a series of meetings with various interest groups in 2001 and 2002 with a view to ensuring the full consultation process was entered into prior to Committee Stage. Many groups attended the meetings and made submissions.

To inform itself better the new joint committee has decided to repeat the consultation process to obtain updated views from a cross-section of parties with an interest in the contents of the Bill. There are nine groups in attendance today, the submissions of which we will hear in alphabetical order. Members of the committee will then ask questions. Each member has received copies of the submissions and any member not in attendance will also receive them. Because of time constraints, I ask each group to hold to a limit of less than ten minutes in total in covering the main points of its submission. I hope to take a break at 4 p.m. and continue thereafter.

I remind members of the joint committee that while they are covered by absolute privilege, this does not extend to those making submissions. They are also reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official by name or in such a way as to make him or her identifiable. As I have not mentioned this to date, I have been asked to bring it to the attention of all present.

I welcome Ms Ursula Fraser of Amnesty International and invite her to make her submission.

Ms Ursula Fraser

On behalf of Amnesty International, I thank the joint committee for giving us the opportunity to make a submission. I apologise for the absence of our director who cannot be here because of family circumstances.

Amnesty International welcomes the Government's initiative to give further effect to the European Convention on Human Rights in domestic law. A number of options were open to the Government, with which I am sure most, if not all, of the members of the joint committee will be familiar. The Government could have adopted the convention as part of the Constitution. There could have been direct adoption of the convention as part of our domestic law. The third option is the interpretative incorporation method which the Government seems to have chosen.

It seems, based on the various debates that have taken place, that the first option, the adoption of the convention as part of the Constitution, is politically and legally unfeasible. Amnesty International wishes to emphasise, however, the sentiments of the Irish Human Rights Commission that this option should not be ruled out altogether and that if it cannot be considered at this point, the Government should bear it in mind for the future.

Another suggestion, made by the Constitutional Review Group in 1994, was termed an à la carte option whereby convention provisions which represent higher human rights protections to those in the Constitution could be incorporated into Irish law. Again, without going into detail, we believe this is worthy of further consideration.

Amnesty International believes the option of direct incorporation would be a preferable model to the current one. At least with direct incorporation of the convention the human rights norms contained therein would be given a much more obvious place in domestic law. It should simplify the legal position.

The current method chosen by the Government by way of the Bill - the interpretative method - is disappointing. To reflect the ECHR in national law as merely a tool for the interpretation of other laws displays a fundamental disregard for the Council of Europe and our obligations in that respect. An ever increasing volume of cases is passing through the ECHR. It is essential that states which are party to the convention assume their responsibilities and their primary role of human rights protection by ensuring individuals within their jurisdiction are able to use the convention in domestic law. The last thing we want is the machinery of the convention to come to a halt because of overload. This is a possibility if the Bill is passed into law as it currently stands. The Bill has a number of other problems but I will leave the detail of this to some of the other contributors who are well placed to discuss specific legal provisions.

Article 1 of the convention makes clear its human rights protections apply to all people within a jurisdiction and not just citizens. Our courts have been inconsistent regarding the application of human rights law, constitutional justice and natural justice to non-citizens. This is a worrying trend and has led to a two-tier system of justice for citizens and non-citizens.

The European convention arguably offers an extra layer of protection from persecution for asylum seekers within the State. For example, Article 3 prohibits torture or inhuman or degrading treatment or punishment. The European court has held that the expulsion of non-nationals may give rise to some Article 3 issues. The ECHR is superior to international refugee law in that one does not have to prove a risk of persecution for convention reasons. This convention refers to the 1951 UN refugee convention which has been widely criticised for containing a narrow definition of a refugee that is out of time with contemporary events and forms of oppression that may force individuals to flee their countries or third countries.

There is no exclusion clause under Article 3; therefore European convention protection applies irrespective of the character or conduct of the individual who is a potential deportee. Under Article 3, the feared ill treatment may emanate from state agents or non-state agents. Under Irish refugee law non-state agents persecution is technically covered; one can gain refugee status on the basis of persecution by non-state agents although some cases that emanated from the determining authorities have not followed this.

The ECHR is not a panacea for all the deficiencies in refugee law; there are weaknesses in it for refugee protection. For example, the test under Article 3 is that there must exist substantial grounds to believe there is a real risk of harm. This is arguably a higher test than that applied by the refugee convention and orthodox refugee law. The European Convention on Human Rights is not a status granting mechanism, unlike the refugee convention.

Many articles in the European Convention on Human Rights would strengthen refugee protection in Ireland if they were effectively incorporated into domestic law. Article 2 refers to the right to life, Article 5 refers to the right to liberty, Article 8 refers to the right to respect private and family life and Article 13 refers to the right to an effective remedy.

Chairman

I now welcome the representatives of the Bar Council.

Mr. Paddy Dillon Malone

The Bar Council is here to reiterate the submission it made before. Our general position is the Bill, as initiated, provided for a minimalist approach to the incorporation of the convention into Irish law. The criticism is well made by the Irish Human Rights Commission in its submission to the committee in June 2001 that the Bill does not incorporate the convention into domestic law. We have also made this point. The Bar Council has a strong preference for legislative incorporation. We want the European Convention on Human Rights to be immediately incorporated into Irish law at a level which makes its provisions superior to ordinary laws but subject to the Constitution. This will also involve the amendment of a number of provisions, the detail of which is provided in our written submission. This would ensure courts have the power and jurisdiction, as they ordinarily do, to provide a real remedy for each right under the convention.

The council believes the entire approach of the present Bill should be revisited. The opportunity is here for the Oireachtas to ensure the convention is incorporated and given the force of law. We wish to emphasise our belief that the systems are complementary. The convention and the Constitution do not conflict with one another to the extent that there is a theoretical potential for conflict between the way a case is decided under the convention by the European courts and under the Constitution by Irish courts. Generally, where possible the judicial attitudes of Irish courts avoid those conflicts. The convention and Strasbourg case law represents a valuable source of precedent. The experience of other countries is very positive. The countries that have incorporated the convention and given it superiority over ordinary legislation have found it to be a positive experience that has not undermined their legal systems.

The experience of the United Kingdom in the five years since the introduction of its human rights act in 1998 is worth looking at to see the practical importance the legislative incorporation of the convention has brought to its legal system. There is nothing to be afraid of. It is a source of ideas and precedent. There will always be a circular debate in this jurisdiction as to whether the convention will damage our constitutional values. We will not know that until it is tested and tried. The primacy of the Constitution will be guaranteed under legislative incorporation. It is not suggested by this committee or the Oireachtas that we are required to amend the Constitution and we do not advocate it necessarily. We believe legislative incorporation will guarantee the primacy and superiority of the Constitution in the rare event of conflicts. The question of incompatibility with the convention would take place at the level of international law.

We believe the committee should take the lead in advocating a revisiting of the approach adopted in this Bill and should be encouraged and fortified by the experience of other countries, the primacy of the Constitution which will be guaranteed under the proposed Bill and the considerable positive experience of the judicial system in interpreting our Constitution. The courts have a long and esteemed history of constitutional adjudication, including adjudication on constitutional challenges to legislation. The Oireachtas knows that direct conflict between it and the Constitution are a matter of last resort for the courts and our judicial experience is that interpretation enables laws to be interpreted in a manner consistent with the Constitution wherever possible. Similarly, that must and will be the experience with the convention.

The Strasbourg system is designed to be complimentary. It is not like the European Court of Justice in Luxembourg which applies uniform laws to ensure a uniform standard of interpretation throughout Europe in the economic sector. Built into the convention is a respect for local and national laws and traditions and it is designed to be applied, interpreted and enforced in domestic courts. This Bill does not allow our courts to interpret, apply and enforce the convention in domestic law, as it is designed to be done. The European Court of Human Rights is not a fourth instance in that sense - it is not there to ram home the convention and its view of the convention's interpretation against the views of domestic courts. In other words the Supreme Court, in many cases, will remain the ultimate arbiter of the proper application of the convention in this jurisdiction - so we have little to be afraid of.

The Irish Human Rights Commission stated that the Bill, as presently framed, might even create the awkward and undesirable possibility that it might have to advise people that their remedies under this Bill would not be effective under the convention and that they have to go directly to Strasbourg. The commission has advised that the Bill - as presently constituted - might not even create an effective remedy and, in order to avoid futile activity in this jurisdiction, they will have to go to Strasbourg. That is a fair measure of the shortcomings of the minimalist approach adopted in this Bill.

Mr. Bill Shipsey

I encourage the committee to revisit the Bill in terms of where is the convention's entry level into Irish law. It would be a major error for the Bill to be enacted, whereby the convention is to be of merely interpretative assistance to the Irish courts. Mr. Dillon-Malone has said we have nothing to fear because the Constitution remains the primary source of legislation and, in any potential conflict between them, the primacy of the Constitution is respected.

The other area we wish the committee to revisit - and which is dear to the hearts and activities of practising lawyers - is the exclusion of the courts from the definition of "organ of the State". That is a serious omission in the Bill and seems to demonstrate a fearfulness that there will be challenges to decisions of the courts on the grounds that they are not behaving in a manner compatible with the convention. There is no reason to be fearful because we have a well-defined system of judicial review and many Acts regulate the ways courts function and to exclude the courts from the definition means they are not formally bound to exercise their functions in a manner compatible with the State's obligations under the convention. That is a serious and unnecessary limitation in the definition of "organ of the State" and it should be born in mind that as far as the jurisprudence of the Strasbourg court is concerned, two thirds of the cases brought before it involve appeals where there is dissatisfaction with a judicial or tribunal decision. To exclude the courts in our domestic legislation from the convention is to impose a serious and unnecessary restriction. Since we were last present at the committee, we endorse the views of the then president of the Human Rights Commission and former judge of the European Court and Supreme Court, Donal Barrington, and we wish to associate ourselves with the views of the Human Rights Commission which were communicated to the committee since then.

Mr. Ray Dooley

The Children's Rights Alliance is a coalition of more than 70 non-governmental organisations concerned with the rights and needs of children and young people in Ireland. Our primary purpose is to secure the full implementation of the UN Convention on the Rights of the Child which is the most widely ratified human rights treaty in history, adopted by the United Nations in 1990 and ratified without reservation by Ireland in 1992. Among the provisions of the UN Convention on the Rights of the Child is that all states' parties undertake all legislative, administrative and other measures necessary to allow the full recognition and implementation of all of the rights asserted in the Convention. In 1996, the Constitution review group identified in its report that "the expansion of the institutional guarantee for the rights of the child is one of the areas where constitutional change would be desirable".

In 1998, following its formal review of Ireland's performance in relation to the Convention, the UN Committee on the Rights of the Child urged in its concluding observations that the Irish Government implement the recommendations of the Constitution review group and also "take further steps to ensure that the convention is fully incorporated as part of domestic law".

The Children's Rights Alliance hopes that this committee will soon find itself reviewing proposed legislation to incorporate the convention into Irish law. Until then, it is important that other measures be taken. In that regard, we strongly welcome the European Convention on Human Rights Bill, 2001, giving further effect to the European Convention in Irish law. We would prefer, however, that the legislation be amended to provide for the incorporation of the European convention in a manner that gives it the full force of Irish law, particularly with respect to providing effective legal remedies and redress for those whose rights have been found to have been violated. We believe this approach would provide the following advantages. It would ensure the rights outlined in the convention would be accorded the status of fully fledged rights and would be understood by all to be, as they are described in the convention, nothing less than "fundamental freedoms." Any other approach suggests some level of possible ambivalence about these rights and risks tainting them as being in some way secondary. Most fundamentally, it would preclude the possibility - one clearly envisioned in the proposed legislation - of an existing Irish statute remaining in effect indefinitely after it had been found to be incompatible with the European Convention on Human Rights.

Under the proposed legislation, if a court finds that a statutory provision or rule of law is incompatible with the convention, it may make a declaration of incompatibility. Such a declaration, however, "shall not affect the validity, continued operation or enforcement of the statutory provision or rule of law in respect of which it is made." No provision is contained in the proposed legislation to prevent such statutes from remaining in full force years after they have been found to contravene the convention.

Full incorporation would also enable a court to provide for full and appropriate legal redress to the person or persons whose rights had been found to be violated, including the issuance of injunctions and orders for the release of a person from custody. It would ensure effective remedies would be available without enduring the time delays associated with having to go to Strasbourg or having to wait for the Oireachtas to act on a declaration of incompatibility.

The issue of time has particular importance for children's rights because of the temporary and brief nature of childhood. Providing for the full incorporation of the convention into Irish law would establish a good precedent for the future incorporation of other international human rights instruments such as the United Nations Convention on the Rights of the Child. One could imagine any number of judicial determinations of incompatibility following attempts, for example, to reconcile the UN convention recognised right of the child to non-discrimination and the "highest attainable standard of health" with the body of existing health care legislation, which often results in medical services being allocated on the basis of ability to pay rather than medical need. Similarly, one would assume the courts would have considerable difficulty finding all of Irish law to be compatible with the right of the child to an adequate standard of living as provided for in the UN convention. With no requirement to prevent such laws from remaining in force, any number of unwelcome scenarios could arise, all of which would simply serve to delay the full vindication of children's rights.

Full incorporation would strengthen the effort to translate the rights enshrined in the European convention into reality, the area on which we focus the most: trying to create a culture of human rights. The difficulties encountered by individuals or groups of people who seek to vindicate their rights - even those recognised under the Constitution - cannot be underestimated. One need only look at the ongoing fight to secure an appropriate education for those with special needs and severe disabilities to see the degree of resistance that often must be overcome to achieve even partial implementation of basic rights. Making rights real requires the creation of a public environment in which rights, particularly those that are controversial, costly, or inconsistent with prevailing orthodoxy or practice, are forcefully publicised, explained, promoted and defended. Creating such an environment, so essential to the full realisation of rights, requires consistent and unambiguous legislative and judicial action.

I thank the joint committee for the opportunity to present this testimony and for members' attention to and consideration of this important legislation.

Chairman

Thank you, Mr. Dooley. Before we proceed to Dr. Pauline Conroy I want to introduce the members of the joint committee. They are Deputy Máire Hoctor, Fianna Fáil; Deputy Finian McGrath, Independent; the vice-chairman, Deputy Paul McGrath, Fine Gael; Deputy Dinny McGinley, Fine Gael; Deputy Denis O'Donovan, Fianna Fáil; and Senator Tony Kett, Fianna Fáil.

Dr. Pauline Conroy

Speaking as a non-lawyer, I will focus on some of the results for less advantaged people that might occur if this Bill was to be passed unamended. I will focus on four points: the problem of providing a remedy for individuals when there is a breach of the law; the Human Rights Commission; the exclusion of certain protocols from the Bill; and the treatment of certain persons in the convention, which is an appendix to the Bill.

I will not dwell on the topic of incorporation which has been dealt with adequately and comprehensively by the eminent legal persons to my right. I am very concerned, however, about the question of a remedy for persons who are less advantaged. I find it somewhat perverse that the case of Mrs. Josie Airey which was brought to Strasbourg in 1979 appears to have been forgotten. Mrs. Airey, as members will recall, was a separated woman from Cork who wanted to institute proceedings for separation in the High Court and could not because she was a pauper. As she had no means, she was deprived of access to the courts. She went to Strasbourg where the court stated it was unreasonable to expect persons such as this to represent themselves in the courts, that they must be represented professionally, independently and privately. While they must pay for their representation, she had no means. Why is there no reference in the Bill to a provision to avoid a person going in and out of the High Court repeatedly, instituting proceedings and a provision for aid for them to do so, either from an independent body, the Legal Aid Board or some other agency which would provide them with the means to access the courts where they have no means of their own?

What kind of people are we talking about? We are talking about the 65% of working age adults with a disability who are outside the labour force and have no independent earned income. That is a large number of persons who not only have no disability Act but are also outside the labour force. We are talking about plaintiffs with no capacity to appreciate, understand or mobilise themselves to obtain a remedy, such as non-English speaking migrants, to whom we have been addressing our attention over the last year in the form of interviews. Many of them speak no English but are in the workforce. There are also adults with intellectual disabilities, persons who are illiterate and minor children who will need third parties such as guardians or other representatives or advocates to mobilise on their behalf to instigate proceedings. From my reading of the Bill, as a lay person, they will also need to shop around for a remedy - here, abroad, at the High Court, with separate proceedings or through the Attorney General. It is very unclear where the person is to get satisfaction if his or her case is found to be worthy of consideration and it is judged that there is an incompatibility between the procedure or law of which he or she complained and the convention.

Members of the joint committee would expect the Human Rights Commission to be a great support to persons seeking to vindicate their rights under the convention. That is not my opinion. It was suggested by Mr. Justice Donal Barrington, when he commented on the Bill in 2001, and the principle advocated by the United Nations Human Rights Commission. The Human Rights Commission which might be expected to assist plaintiffs and which is supposed to be a cost-effective, accessible and non-adversarial mechanism of vindicating human rights appears not to be available to the poorest, the most vulnerable and the most disadvantaged. It seems to be a "virtual organisation" from the point of view of individuals seeking support. I am uncertain whether it has a permanent office. It does not appear to have a permanent team of staff or case workers and is not running an information campaign with awareness posters or brochures. I cannot find its website on any departmental website. I must assume that this is not the fault of the commissioners who appear to be persons of integrity, but that it has fallen victim to the Department of Finance restrictions on public expenditure - not incompetence - and is, therefore, unable to fulfil its duty of assisting petitioners or individuals who want access to the convention as it would be transposed in Irish law. I consider this a great disappointment.

There is also a danger in incorporating the convention without having a human rights commission that is fully functioning for individuals who can call up, knock on its door, write letters and get answers to them. In the absence of this, what is being produced by this convention is a sort of "Atlantic Home Care" arrangement whereby people must do it themselves. Individuals are being left outside the Judiciary, the executive and parliament, seeking civil society type solutions. Elsewhere civil society solutions are not the kind of solution that our democracy advocates. We have a division of powers and there are certain obligations and duties which fall to individuals and to those like myself who advise others or who advise organisations. Street level solutions are not to be encouraged or the individual, in this arrangement of remedies, will be left in the streets.

For some voluntary organisations, working for example in the field of disability or migration, this would be nothing new. They will seek charity, effectively, from the Attorney General, with these ex gratia payments. How will these payments be measured? Will there be tariffs or green books as there were in deafness cases? How will such payments be measured by the Attorney General’s office without the experience and wisdom of the courts being brought to bear on this? What individuals are being asked to do if this Bill is adopted without amendment is to “hitch lifts in other people’s cars” and see if they can get in the general direction of the courts and with some uncertainty seek legal address.

The Minister has chosen, for reasons I do not find in the explanatory memorandum, to include only four main operative protocols. It is unclear why he has included these four and not the rest. It is not because he has included only those that are ratified because he has included a protocol appendix to the Bill which has not been ratified. I wonder why he has not included protocol 12 which deals with the topic of non discrimination in the appendix to the convention. The grounds of non discrimination are precisely the grounds that concern people who feel at a disadvantage by their social, ethnic or other status. This protocol should be included because the Government is going to transpose two directives on non discrimination into Irish law in the next five to eleven months, one in July and one in November. It must open up the non discrimination box and review the impact on Irish law that these two European directives will have. Would it not have been useful to have protocol 12 appended at this stage of the Bill so that everyone can read a standard against which this transposition might occur?

Lest the committee thinks I number among those who believe that the convention is superior or inherently better than Irish law I make the following point regarding it. The convention, Article 5.1(e) deals with right to liberty and security. There are a small number of limitations on this right which interest me in my professional work. Among those limitations are the right to curtail or detain persons of unsound mind, persons who might spread infectious disease, alcoholics, drug addicts or vagrants.

The exemption of vagrants from the right to liberty is particularly interesting. I tried to find compelling reasons to exempt the average tramp or homeless person, nomad, gypsy or occupant of a hostel from the fundamental right to freedom. What crime might a person have committed by merely being what the convention calls a vagrant? The only explanation I could find was that the convention was written in the 1950s when legislation in countries like Germany still gave local authorities the power to register forcibly and to detain gypsies and persons designated as itinerant at that time.

The convention itself has not been purged of prejudice and of discriminatory intents. In that sense the convention should be open to the same class and comprehensive criticism as the Bill which is before us. Before adopting this Bill and the attached convention and protocols the Oireachtas should scrutinise it carefully. Members should imagine what impact it will have on their own constituents who would try to seek a remedy and seek access to the courts.

Chairman

Thank you. We will now hear Ms Eleanor Edmond for the free legal advice centres. I welcome Ms Edmond.

Ms Eleanor Edmond

Thank you for the opportunity to present to the committee today on behalf of FLAC the free legal advice centres. We made a submission previously which is available to the committee. I will not add much to that and apologise for any repetition. I hope the committee will take into account that any repetition is indicative of the fact that all these organisations here today are very much agreed on the proposed legislation. While apologising for any repetition I hope the committee will take the message that there is agreement among the human rights sector on the Bill we are discussing here. Many of the points I wished to raise have been dealt with already better than I could have dealt with them. They have been fleshed out in different ways by representatives of different interests and expertise.

FLAC is an NGO, founded in 1969, which campaigns for full and equal access to justice for all members of Irish society. Effectively we have looked at the Bill to see in what way the Bill as proposed increases the average individuals access to his or her convention rights. While we welcome the decision to incorporate the convention we are disappointed and feel that the incorporation, as proposed and for the reasons already outlined, does not bring convention rights much closer to the average Irish citizen than is the existing case.

When the European Convention on Human Rights was first adopted Ireland was one of the original signatories. Ireland and Sweden were the first two countries to allow the right of individual petition to the commission and the Court of Human Rights and the first ever judgment of the Strasbourg court was given in an Irish case. Ireland then seemed to be one of the countries most enthusiastic about the concept of a new legally binding human rights order. We hope that remains the case and we find this legislation disappointing in that it does not appear to have retained the same enthusiasm. We echo what was said already that there is nothing to fear.

The argument has been advanced by various people that since the initial Irish case major jurisprudence of Irish cases in Strasbourg has not emerged. There may be several reasons for this. One may be the fact that the Irish Constitution is an effective protector of rights. We also suggest that a culture of the convention has not been to the fore in Irish law. One of the big advantages of a proper incorporation would be to make the culture of convention rights part of the Irish legal culture. The big factor in cases not getting to Strasbourg, and Dr. Conroy went into this in detail, is that Strasbourg is a long, arduous and expensive route. By definition, those people most in need of access to convention rights cannot access this road. The purpose of the incorporation should be to shorten that road for those people who are least able to afford and access them. For several reasons we are of the opinion that has not been achieved by the Bill as proposed.

The areas we focused on are remedies, the inclusion of the courts as an "organ of the State" and the scheme of compensation. On the issue of remedies, section 3 provides for damages only. We wish to emphasise there are situations in which damages are not the appropriate remedy. Other legislation, such as the UK Human Rights Act, 1988, has taken that into account and allows for the grant of a "just and appropriate" remedy which would encompass remedies other than damages. A powerful example of that is a person in custody. If a person was held under criminal legislation or under mental health legislation which is found to be incompatible with the convention, the award of damages is not what would be sought. There is the possibility that a person may remain in detention even though something has been found to be incompatible with the European convention because there is not the provision for the courts to order their release under this legislation. While their detention is incompatible with the convention, Irish courts are not in a position to enforce this provision and the road to Strasbourg is a long way from the bars behind which they remain.

Section 3 also states that damages are available as a remedy where no other remedy is available. There is the impression that one needs to shop around for a remedy. There is a need to clarify that these remedies must be available and that the road to convention rights does not increase the obligation to exhaust other available remedies and that the courts have the power to enforce convention rights.

On the issue of the redress available, the scheme of compensation should be provided for on a legal rather than an ex gratia basis. As an organisation which takes test cases for litigants who could otherwise afford access to the legal system, under the scheme it is unclear whether costs could be awarded. This is another significant bar to people achieving legal representation as costs could generally be awarded under damages but it is unclear from the ex gratia nature of the scheme whether it would be open to people to have legal costs paid where they sought a declaration of incompatibility.

The other problem with the declaration of incompatibility which should be one of the more effective aspects of the Bill is that there is no obligation on the Government to do anything to remedy the situation. Under the proposed legislation, the Taoiseach is obliged to notify the Oireachtas that an order of incompatibility has been made. FLAC suggests the Government should also be obliged to indicate within 90 days what action it proposes to take to remedy the situation. Again, a person may be left with the long, arduous and expensive road to Strasbourg as the only way of enforcing a right which has been recognised but on which the Government fails to take action. This is a very real possibility. Despite the existence and recognition of these rights they are not brought any closer by the Bill as proposed.

As well as the problems identified in the Bill, the exclusion of the courts, under the definition of "public body", is a failure to give effect to the convention rights. Given that the UK legislation incorporates the courts it is arguable that the Bill, if enacted as it exists, is in breach of our obligations under the Good Friday Agreement to provide an equivalent remedy to those available in the North.

On the issue of access, it is disappointing given the Airey case on legal aid, which as Dr. Conroy said, was one of the leading Irish cases to go to Strasbourg, that there is no provision for any form of legal aid to be automatically available to cover the enforcement of convention rights. We echo the comments of the other organisations to date and the Human Rights Commission on the appropriate level of incorporation. We welcome the recognition that it must be incorporated but as it stands it does not bring the citizens in most need of these rights any closer to them and does not lessen the distance between an Irish citizen and their convention rights in Strasbourg.

Chairman

I thank Ms Edmond. I welcome from the Forum of People with Disabilities Mr. Donal Toolan and Mr. Damien Nolan.

Mr. Damien Nolan

I welcome the opportunity to address the committee following on from our submission to the committee in 2001. We are a rights-based organisation of 700 people with disabilities who form our membership. The community from which we draw our membership is largely hindered and hampered by the fact that we face significant barriers both institutional and structural which impede us on a daily basis from getting our rights. Access to the Constitution has not been good for us in terms of guaranteeing our rights.

I bring to the attention of the committee two observations on the Bill. The discussion has largely centred around the method of incorporation of the Bill and the scope of the entities which come under its remit. The Forum, among other organisations, including the National Disability Authority and other statutory bodies have sought changes to the Bill which would broaden its remit. Our director, Donal Toolan, will expand on these points.

Mr. Donal Toolan

The document which fundamentally informs this contribution is already with the committee as it is the 2001 document. If one looks back on that document of July 2001, one will see there is a reference to the fact that we were waiting on judgments from the Supreme Court which illustrate some of the arguments used to suggest the Constitution affords significant protection so that our method of incorporation is not necessary because everything is fine and dandy. However, we found out since that submission that everything was not fine and dandy. Disabled people found that they could not vindicate those rights in the highest courts in the land and that the interpreter of that document did not meet some great redress.

It is clear that since we last appeared before the committee a number of processes have articulated, including statutory bodies established to advise the Department of Justice, Equality and Law Reform, namely, the Human Rights Commission, the National Disability Authority, whose representatives came before the committee and categorically said that the Bill, as written, will not give the kind of redress or comfort that disabled people and others for whom it is intended in order for incorporation to be sufficient require. All we will have is a minimal incorporation that adds little to what currently exists, particularly for groups which have already definite minimal protection under our existing documents.

Historically, Ireland has created a host of separate and segregated systems to respond to the needs of disabled people. This policy of creating separate systems has been challenged in other jurisdictions through the enactment of legislation that would afford equality of participation. The need for Ireland to dismantle its culture of apartheid towards disabled people was called for explicitly by Mr. Justice Feargus Flood in 1996 in Strategy for Equality following the most extensive consultation on disability in the history of the State. The commission did not believe the Constitution was sufficiently strong to protect the rights of disabled people to participate as others would advocate. The failure to enact appropriate rights based legislation called for by that commission in 1996 generated considerable public outrage last year when a Bill which would prohibit people accessing the courts was published. Again, the effective interpreter of the Constitution, which apparently affords great protection, was being prohibited ignoring also what Mr. Justice Feargus Flood had called for in Strategy for Equality in 1996. We were making these judgment calls in a period of seven of the most unprecedented years of economic growth.

The striking down of the original employment equality legislation on disability grounds is also an indication of the way our Constitution does not afford sufficient protection. The judgment in the Supreme Court in relation to the Seanad again bears this out in terms of disabled people's capacity to access appropriate education.

The forum strongly suggests, therefore, that the Bill as worded will do nothing of significance to counter the discrimination that occurs when disabled people's rights are violated. We contend that arguments to provide a constitutional incorporation do not hold much water for disabled people. Those arguments are more realistically driven by ideological perspectives that are informed by more moral, political and economic considerations and they have been challenged by significant legal minds greater than mine. If that is the case, we should take time to consider the origins of this convention. As already stated in the original submission to this committee, the heinous genocide of the Second World War saw the annihilation of some 300,000 people with physical, learning and sensory disabilities to a mantra which advocated the costs of providing supports to those individuals.

If we are to make judgment calls on the way a Bill will incorporate a convention which will enable us to ensure we would never see such atrocities in the future, it is critical that the remedies contained in that Bill are effective, meaningful and robust for the reasons I have suggested and those other speakers have commented upon.

I would like to reflect also on some of our more contemporary realities in this jurisdiction in terms of the violation of people's rights. The necessity to establish the Laffoy Commission arose because individuals in care were physically, sexually and emotionally abused at the taxpayers' expense. In the aftermath of that we heard assertions from the Legislature and those in the political process that they did not know about such abuse, that it was the culture of the time or that politicians and leaders at that time did not have access to remedies for individuals in this situation.

I now want to reflect on the culture of this time. One of the backdrops to the incorporation of the convention into Irish law is the Good Friday Agreement which seeks, as voted by all of the people on this island, to ensure that all of the people on this island have equivocal standards of human rights. It is fundamentally clear from all of the knowledge and authority brought to this committee from 2001 until now that what is being proposed will not address that. We encourage the members, therefore, to ensure that we achieve equivocal standards in terms of human rights and not undermine that agreement because those on this part of the island have responsibilities to ensure standards before we start lecturing others.

Critical in presentations on the incorporation of the legislation in the United Kingdom has been the capacity of people to access and scrutinise the work of public bodies. The definition of public bodies, as has been suggested by many people, is not broad enough. Based on the definition being provided for in the Bill it may not be possible for people to challenge what happened in residential care facilities where rights were violated, which is the case in the UK.

We would encourage a review to ensure a robust incorporation and matters such as who should come under the scope of this legislation can be re-examined with a view to being more realistic. Otherwise, we will come back perhaps a decade from now and talk to legislators who will say we did not use the remedies that were being offered at the time.

Chairman

Thank you, Mr. Toolan. We will now hear from Dr. Ursula Kilkelly.

Dr. Ursula Kilkelly

I am grateful for the opportunity to speak to the members today on the issue of the European Convention on Human Rights Bill, 2001. I am aware members have already received and heard the submissions of many individuals and groups on the proposed legislation. I gave a somewhat more legal submission to this committee more than 18 months ago in which I outlined my views on the European Convention on Human Rights Bill and made detailed recommendations for amendment. I do not intend to reiterate those views today except to say they have not changed and that I share the strong reservations that bodies like the Human Rights Commission have expressed to the members, and to the Minister, about the appropriateness, adequacy and compatibility of the Bill with the Constitution, the Good Friday Agreement and the convention itself.

In the time available to me I wish to highlight a number of issues relating to the broader implications of proceeding with the proposed legislation which raise matters of Ireland's legal as well as moral obligations in the area of human rights protection and are derived from my practical experiences of working with the convention on a number of levels across Europe as well as my academic experience in the area of international family law and children's rights.

It is a well publicised statistic that of all 44 states party to the European convention, Ireland is now the only state in which the convention has no binding legal authority. The new members of the Council of Europe, including the former USSR and the Balkan states, have given the convention some status in their national legal systems and, as a general rule, it can now be raised in the courts of cities such as Belgrade and T'bilisi. The success of these cases is not guaranteed. While the countries concerned will be the first to recognise that their human rights records are far from good, they are to be credited with their commitment to giving the convention the force of domestic law and allowing their citizens to access effective remedies for breach of convention rights in local courts.

I have experienced this commitment to implementing the convention's safeguards first hand through my work providing training on Article 8 of the convention on private and family life for judges, prosecutors and lawyers in Albania, Serbia and Montenegro, Georgia and the Russian Federation. The judicial training which I undertook in Serbia and Montenegro last year was funded by the Government. While the former Yugoslavia is clearly grateful for the Government's financial support, I wonder whether setting an example of incorporating the convention into Irish law in a meaningful way would be of greater benefit in the long-term.

I am not the only Irish person to be involved in this judicial training. Irish experts are in considerable demand. However, while Ireland boasts a number of experts in convention law, there is no escaping the fact that we lack the insight into how the convention operates at national level that our counterparts across the Council of Europe, including Northern Ireland and Great Britain, have gathered. As a consequence, instead of being able to share the experience of the positive change that incorporating the convention can bring to domestic law, policy and practice in important areas such as family law, I am asked, not infrequently at international level, to explain Ireland's failure to give legal effect to the convention. This is a question I have struggled to answer.

The answer is clearly not that Ireland's human rights record is poor or that Irish law and practice are entirely inconsistent with the convention's standards. Some may illustrate this fact by highlighting the small number of cases that have been taken against Ireland to the European Court of Human Rights. At the same time, it is not insignificant that we have lost the vast majority of the cases that the Government has been asked to defend in Strasbourg - Airey, Norris, Johnston, Keegan, Heaney and McGuinness and the most recent since the joint committee last heard submissions, DG v. Ireland. Other cases are pending.

It is a source of great shame that many of the cases where Ireland has been found to be in breach of the convention have related to the treatment of children and their families. Recent cases from the European Court in the area of child and family law highlight further inconsistencies of varying degree between Irish law and the European convention. They include cases on the child's right to protection from abuse, the right to disclosure of evidence of abuse in care proceedings, the right of the child to be heard in custody and access proceedings, the right to a public hearing in family law cases and the right of transsexuals to marry. It is not inconceivable that Ireland's poor record before the court will continue if the European Convention on Human Rights Bill, 2001 is passed unamended.

Legislative incorporation, the case for which is well made by the Human Rights Commission among others, would go some way towards ensuring family members can access at local level an effective remedy for alleged human rights violations. To this extent, the issue is not the persistent or widespread inconsistencies between Irish law and practice and the convention but the lack of an effective national remedy where those inconsistencies occur. It is imperative that any legislation on the convention must, as a minimum, include a requirement to human rights proof all new laws, if not also existing ones, and an educational and training programme like that undertaken in the United Kingdom and, to a lesser extent, currently ongoing throughout eastern Europe.

Our somewhat flattering record before the European Court in terms of numbers may be explained by the fact that few people are willing to take the long and sometimes expensive route to Strasbourg to see their rights vindicated. However, the delay caused by the lack of an effective domestic remedy which will arguably continue if the Bill is passed without amendment is particularly harmful in cases involving children. While the time that lapses while the Strasbourg proceedings run their course is inconvenient and unfortunate for some, for children the passing of time may reinforce the violation complained of or, at the very least, result in the court's judgment being obsolete or irrelevant when handed down. It is not unlikely, for example, that a child aged ten years when a complaint is initiated may reach adulthood before the merits or his or her complaint are adjudicated by the Grand Chamber of the Strasbourg court.

This situation will be exacerbated if the legislation is passed in its current form. An applicant will have to exhaust remedies under the legislation, notwithstanding their questionable effectiveness. The consequences of this are illustrated by the following scenario. If the legislation is passed unamended, parents or children seeking to challenge a decision separating them under Article 8 of the convention will first have to take proceedings in the Irish courts, regardless of whether they provide any opportunity for genuine redress. That issue has already been raised, as has the question of whether a constitutional challenge may also be necessary, notwithstanding the obstacles in the way of this remedy. They will then have to apply to the Strasbourg court and wait from four to six years for a judgment. Even if the court finds a violation in their case, by that time the harm may well have become irreparable or their situation irreversible. In contrast to family law proceedings where expediency is a basic and fundamental standard, the inability to access an effective remedy for breach of a convention right at domestic level can exacerbate and prolong the injustice which family members face, all this in a country whose Constitution seeks to support the family and the place of children in it.

The advantages of full incorporation of the convention into domestic law are clear. They have been well rehearsed and are familiar to the joint committee. They are particularly acute in the area of family law. Legislative incorporation or, as a minimum, the amendment of the existing Bill along the lines proposed by the Human Rights Commission would go further in providing an effective domestic remedy for those who believe their convention rights have been violated, without the expense and delay involved in applying to Strasbourg. The benefits which this would confer on applicants in family cases would be significant. As is now happening every day in the United Kingdom, for example, applicants would be permitted to argue convention points before the domestic courts in their existing family law proceedings and judges would be able to consider convention law in deciding the legitimacy of their complaint, awarding there and then whatever remedy was considered appropriate.

Placing a duty on a wide number of public authorities, including the courts, would necessarily increase awareness of convention rights and its fundamental principles, both among public bodies and the public in general. That would contribute greatly to the development of a human rights culture in government and society. Legislative incorporation would allow the Irish courts and other professionals in the area to contribute to the development of human rights jurisprudence and law at European level through applying the convention in domestic cases as every other jurisdiction is doing on a daily basis and ultimately allow us to share our national experience with others.

Incorporation would lead to the enhancement of our reputation at international level where we should never find ourselves having to apologise or explain our failure, however accurately perceived, to enshrine expressly in law and in practice the convention's standards.

Ireland has a moral duty to lead on human rights protection at a time when, some argue, standards are being eroded at international level. The difficulties experienced by the European Court in managing its ever increasing case load have resulted in recommendations that states should make greater efforts to make available more effective remedies for human rights violations at national level. In future it is not inconceivable that this recommendation may be translated into a binding duty to do so.

Some argue that Ireland can boast human rights standards which are higher than its European counterparts. If that is the case, it has nothing to fear from incorporating the convention, given that the convention does not permit the lowering of national standards where they offer more protection than the convention. Legislative incorporation or, as a minimum, the amendment of the current Bill in line with the recommendations of many groups would neither be a bold nor a dramatic move. It would merely bring Ireland into line with widely accepted practice elsewhere and represent a fulfilment of its moral, if not its legal, obligations at international level. It would provide a level of protection for Irish children and adults consistent with but not greater than that afforded to counterparts across the Council of Europe. The joint committee should take strength from the enormous consensus surrounding the ECHR Bill and use it to the maximum effect possible.

Chairman

Thank you, Dr. Kilkelly. It is my intention that the Irish Council for Civil Liberties will make its submission until 3.45 p.m. and that we will then have a break until 4 p.m. when the Law Society will make its submission. We will then have a question and answer session. Is that agreed? Agreed. The representatives of the Irish Council for Civil Liberties are Ms Aisling Reidy and Mr. Liam Herrick.

Ms Aisling Reidy

The next time we appear before an Oireachtas committee in alphabetical order I will change our organisation's title to An Irish Council for Civil Liberties because I fear that at this stage of the proceedings much of what we have to say about the Bill has already been said. Little has been said by any of the bodies represented here today or the Human Rights Commission which appeared before the joint committee in December with which we do not agree.

Chairman

If we started by using first names, you would come first.

Ms Reidy

That was my other suggestion. Since I have prepared for this meeting, I will speak for a few minutes, although I hope I will not repeat too much of what has already been said. I will try to focus on one or two issues which have become clear since our last submission. The joint committee should have received a written submission which sets out our position. It is, not surprisingly, similar to the submissions made to the Oireachtas committee in June 2001.

As Dr. Kilkelly and Ms Edmund, the representative from the free legal advice centre said, the fact that there is much repetition of the points made today should lead to a clear picture of how broad and deep the consensus is among a wide range of groups about the deficiencies and problems with the Bill as it stands. We urge the joint committee to take this opportunity to reconsider the Bill; to amend it, to strengthen it and make it more robust. The committee should support legislation which will incorporate the convention, not the type of Bill before us which does not incorporate the convention into Irish law. It seeks in the most minimalist way to give some further effect to its provisions. It is the weakest model available to adopt. There is no logical reason it was adopted.

We understand two main premises were behind the framing of the Bill in this manner. The first is the idea that to further strengthen the European Convention on Human Rights within Irish law would conflict with the sanctity of the Constitution. It is our opinion and that of everyone in attendance here today that such an argument does not stand up to scrutiny. The incorporation of the European Convention on Human Rights into Irish law could only serve to fill the gaps where the Constitution does not offer adequate provision, such as it did not offer to Mrs. Airey, Senator David Norris, the Keegans and the young juvenile detained in St. Patrick's Institution. It would complement the rights which the Constitution did not provide for them. Where the Constitution provides superior protection for Irish citizens and everyone in the jurisdiction, the convention is clear in Article 53 that the superior protection provided by the Constitution would always prevail. Incorporating the convention would not diminish or detract from the already admirable rights protection the Constitution provides. We find it hard to see how incorporating the convention on a legislative basis would damage the operation of the Constitution.

The second argument about the reason this model of incorporation has been adopted is that it mirrors the UK model, the Human Rights Act, 1998. We are of the opinion that this does not mirror that Act which is stronger than this Bill. It was only adopted in the way it was because of the unique constitutional structure of the United Kingdom which rests on parliamentary supremacy. Ireland does not have that type of constitutional structure. The Constitution is our highest document and the Oireachtas cannot legislate against it, which is not the position in the United Kingdom. The 1998 UK Act permits Westminster legislation to be upheld where there may be conflict with the European Convention. However, none of the other Legislatures, particularly the Northern Ireland Assembly, the Scottish Assembly or the Welsh Assembly can legislate against the European Convention on Human Rights. They are clearly bound by the Human Rights Act. It forms a constitutional document for the Assembly in Northern Ireland. This should be borne in mind when one considers that the undertaking in the Belfast Agreement is to provide at least equivalent rights protection on both parts of the island.

The UK Human Rights Act also goes further than the legislation before the joint committee because it provides a stronger interpretative obligation on the courts and public authorities with respect to the human rights convention. I worked in the United Kingdom from 1998, after the Act was adopted, until almost 2000, when it came into force. I worked with a number of Departments and NGOs on the Government's human rights task force to see how the Act would impact on Government, public administration and the legislation. Because the wording is stronger, it had a much stronger impact on bringing forward a human rights culture across public administration. It is also stronger because it includes the courts, as has been stated, as well as a broad definition of a public authority and who would be bound by the Act. It is stronger on many different levels than the European Convention on Human Rights Bill, 2001. We are concerned that the Bill fails to meet the requirements of the Belfast Agreement which obliges us to give at least equivalent protection.

There are a number of specific issues in the Bill, which cause particular concern, such as the fact that the courts are exempt from being bound by the convention and the failure to refer to Protocol 12 as one of the convention provisions. These are concerns which we, like the others, share. We have set out in writing our concerns about these specific problems with the sections as set out in the legislation.

We urge the joint committee to consider the fact that neither of the arguments we have heard since 2001, as to why this Bill has been drafted as it has, actually stands up to scrutiny. We, along with the Human Rights Commission and the other bodies represented here, urge the committee to reconsider this legislation and seek amendments to it, or new legislation, to give the European convention a proper footing in Irish law, thus making it relevant and effective.

Chairman

Thank you very much.

Sitting suspended at 3.50 p.m. and resumed at 4.10 p.m.

Chairman

I wish to introduce another member of the committee, Deputy O'Connor of Fianna Fáil.

I now call on the Law Society to make its presentation. I welcome Ms Alma Clissman, Mr. James MacGuill and Mr. Brian Gallagher and thank them for their comprehensive submissions which we received.

Mr. James MacGuill

I thank the committee for the invitation today. I will try to be brief.

We have slightly updated the paper we delivered to the previous committee in July 2001 by including in it some extracts from a useful paper by Anna Austin, an Irish lawyer who is a registrar in the Strasbourg court. She has had an opportunity to look at an overview of recent developments there, which is highly informative, and also to look at some of the more up to date developments from the UK where the primary lesson to learn is that the courts have not become full of cases based on weak points about the convention. There was no Doomsday scenario. The legislation is being used sensibly and intelligently to secure important rights for citizens.

We are practically in complete agreement with the other speakers here in relation to a number of matters on which I will not dwell. We believe the committee should pay particular attention to the views of the Human Rights Commission on the manner of incorporation. The view that the convention cannot be incorporated in a higher fashion than is proposed appears to be based on a grudging acceptance of the benefit of the convention. The more imaginative and embracing approach to issues of convention rights should commend itself to the committee. It appears to be the unanimous view of those involved in this area of law.

Irrespective of the form of incorporation, as practising lawyers, our obligation is to make the legislation work to the benefit of our clients. The points we wish to make are about some of the impractical aspects of the legislation and how we believe it will restrict our capacity to effectively represent citizens trying to assert their rights.

The most important amendment required to the legislation is to deem a court to be an organ of State and to bring convention rights to the beginning of every judicial hearing. It is an easy amendment to make and no logic has been tendered for excluding the courts. They are included in the public authority definition in the United Kingdom. We also believe that the organ of State definition should be broadened to include entities such as semi-private hospitals which are publicly funded and discharging a public function. They should be brought within the organ of State definition.

We have significant concerns about the method in which convention rights are to be asserted and we make a number of criticisms of section 3. The primary difficulty with section 3 is that it suggests that one cannot assert one's convention rights until one establishes there are no other rights available. That will inevitably lead to a waste of time and resources in bringing unnecessary proceedings at the beginning. The convention issues should be capable of being raised at every judicial proceeding from the beginning. There is reason to believe the Minister has understood that point and the practical difficulty it would create. We believe it is an area which could easily be amended.

The section is also defective in zoning in solely on damages as a remedy for convention breaches. There are obviously other important orders, such as orders directing the release of persons, which should be included as a convention remedy. The fact the convention, in some respects, only provides ex gratia relief means that the legislation may well not even qualify for the starting level of a Strasbourg domestic remedy. An authority decided against the UK last year and we quoted that in our submission. It stated that one does not have to avail of the English declaration of incompatibility provision because it does not guarantee redress, so it is not a domestic remedy. Until it is amended, this legislation will send Irish cases unnecessarily to Strasbourg. It is a waste of time and money and it delays the rights of our clients and increases the workload of the Strasbourg court unnecessarily. The Strasbourg court wants these issues dealt with here, as do we. We should strive to achieve that.

We do not understand why the convention arguments are confined to either the Circuit Court or the High Court. The District Court is by far the busiest court and it exercises significant jurisdiction in criminal cases and also in family law cases. We do not understand why a convention point cannot be raised in the District Court in that the judges are professional and totally competent. It is in the interests of citizens and the State in terms of expense and speed that the District Court is able to deal with those issues. Where a declaration of incompatibility of legislation is required, that would go to the High Court but there are ways of doing it. We raised that point in the paper. We say that the Act seems to be drafted in a way to create obstacles to resolving convention points. It does not set out how we are to bring cases to the High Court. That is something that should be clarified by the Minister, if he is going to do it by way of regulation, before this committee is asked to finalise its deliberations in relation to the legislation. We feel an approach that is grudging rather than accepting has made the legislation unsatisfactory.

Other parties present have made the point that many of those whose rights are most grossly invaded are of little or no means. To have no provision for legal assistance to persons in legislation on human rights is astonishing and should be remedied immediately. Otherwise, it will be the first piece of legislation to be looked at in terms of its own incompatibility.

We do not understand why section 4 is so repetitious. That is only a legal drafting point. There is a lack of clarity in section 5 as to how proceedings are to be brought. That is something that should be cleared up so that everyone can have a workable rights system. An ex gratia payment is simply unacceptable. It does not meet convention standards and betrays a grudging approach to rights.

We believe in section 5(3) that it is not enough that the Taoiseach should inform the House that there has been a declaration of incompatibility. Clearly something must be done and we suggest a 90 day period, mentioned by other speakers today, for laying a specific proposal to address the rights invasions.

The committee will be aware that Strasbourg compensation tends to be lower than that awarded domestically. In assessing compensation, there is no reason regard should not be had to the experience of the Irish domestic courts and a fair balance struck.

Section 6 suggests that the Office of the Attorney General should be the notice party in proceedings attacking legislation. We believe the Human Rights Commission should also be a notice party. The Attorney General may be hopelessly compromised in defending legislation that his own office has drafted and stood over. The public interest requires that the commission be involved in these proceedings.

We make an observation on section 9 that we would welcome an opportunity of participating with other non-governmental organisations and professional groups involved in public training to bring the greatest number of people up to speed with the legislation so that it works in everyone's interest. That is something we are ready and willing to do and we made that offer to the previous committee.

Those are the points we would like to emphasise and they are covered in the paper. The primary matter is that the society is fully behind the views of the Human Rights Commission which is an independent Government-appointed body with unparalleled expertise in this area. Its views should be seriously considered on Committee Stage.

Chairman

I thank Mr. MacGuill. Many lawyers are present and it is always beneficial for committee members to have drafts of amendments which they can use as a basis for forming their own amendments. If there are items relating to the submissions made, it would help greatly if draft amendments were submitted in that regard. They should be sent to the clerk to the committee who will ensure that each member of the committee receives a copy of them, thereby ensuring that members can consider them.

Not all members of the committee are lawyers. There are a few, such as Deputy O'Donovan, who is a solicitor, and Deputy Power. Others may also attend the meeting who are not members of the committee but who may consider the Bill. It would help if draft amendments could be submitted for them.

I want to have an interactive session between the members and the groups and between the groups. If a member asks a question and someone believes a pertinent point should be made on it, they should make it. On account of time, people should stick to pertinent points rather than going off on a tangent. Members of the committee may wish to make overall remarks at this point. Those who have made submissions should try to be pertinent. That way as many people as possible can make relevant points.

Deputy F. McGrath

I welcome the groups to the committee. Their submissions were professional and clear and gave many of us ideas for future legislation.

I thank Amnesty International for the excellent work it does. Many politicians throughout the world appreciate its hard work and efforts. We should never take for granted the ability to hold a discussion on human rights, such as this one. I have just returned from an observation mission in Colombia concerning the trial of three Irish citizens. While I was there I met lawyers, the United Nations, the Red Cross and trade Unionists. Colombia is at the height of a civil war at present. There are wholesale breaches of civil rights. Some 2,000 people have disappeared and lawyers must have bodyguards for fear of assassination. We should never take for granted the ability to hold a debate such as this. It is important that we maintain a focus on the fact that there are parts of the world where human rights and life are cheap. I point this out because many lawyers are present.

On the issue of refugee protection in Ireland under this proposed legislation, we need to be very careful and adopt an approach which respects the rights, especially the human rights, of people entering the country. I am critical of this country's policies in this regard. This is an issue I feel strongly about. We must be focused and clear about the rights of people, especially those from conflicts in different countries. We must respect them.

I support the option of adopting the convention as part of the Constitution because, while it already offers a large number of rights, the addition of convention rights could influence and complement the current regime. This is important. A number of points raised the primacy of the Constitution. This is always essential. Even though many of us would be critical of sections of it, we must respect its primacy.

I support the Bar Council's position on revisiting the Bill. We must make major amendments to it. On the issue of children's rights raised by Raymond Dooley, the reality is that many people in Ireland, especially children, do not have rights. Whether they live in poverty or have disabilities, the bottom line is that thousands of children in society do not have rights. We must introduce legislation to support them. We all support the UN Convention on the Rights of the Child, but the problem in this country and others is its implementation. We must implement such conventions to ensure that children are protected.

I also support Dr. Pauline Conroy's position on access to the courts, especially given that 65% of people with disabilities are excluded and unemployed. In dealing with legislation, we cannot tolerate or allow a situation where the fingerprints of the Department of Finance are all over legislation going through the House.

Regarding Article 5.1, the unsound mind issue in the convention, this refers specifically to violent people. We must face the reality that there are hundreds of very violent people in our communities who have major psychiatric problems. We must protect society. It is a sad reality but one many of us encounter as Deputies and councillors. However, I agree with the view that the exemption of vagrants from the right to liberty is an extraordinary inclusion in the section. It is unacceptable because it is saying that homeless and poor people do not have rights.

The free legal advice centres have three major concerns, namely, remedies, courts and compensation. I am especially supportive of their position, especially in the context of the Good Friday Agreement.

Mr. Toolan and Mr. Nolan put forward an excellent position on behalf of the Forum of People with Disabilities. I was elected on a disability platform in the general election and have a strong mandate to represent the views of people in this area. Any legislation concerning them, such as the Disability Bill, must be based on rights. That is the bottom line. The last Bill was flawed and I hope the Government has learned its lesson after talking to the different groups in the disability sector. We must introduce a Bill in 2003 that guarantees the rights of those with disabilities. One cannot have a situation where the national unemployment rate is 4.4% after seven or eight years of the Celtic tiger but unemployment among those with disabilities is 65%. That is unacceptable.

It should also be pointed out that we do not necessarily have to have the legislation in place to get on with the job. I speak from my experience on Dublin City Council, where we have gone far beyond the 3% public service quota in the last few years, as 4.15% of those working for the council have disabilities: that is approximately 257 members of staff out of 6,000. There are organisations around the country which, despite the legislation, have come up with creative ideas of their own and brought in inclusive policies. They have come up with examples of good practice which we should examine as we bring in disability legislation.

I find it very offensive and disturbing that 485 people with disabilities are in psychiatric hospitals. That is unacceptable. It is not good enough and is a breach of their human rights, which should be protected.

I support many of the reservations and concerns expressed by the different groups. I will strongly support any progressive amendments which are presented to us and like the Chair, I urge people to submit amendments to assist us. I represent 13 Independent Deputies and we have strong connections with other groups. I will be pushing this issue. This is an all-party committee with an excellent Chairman and should be above politics when it comes to human rights issues. We should not be afraid to agree on very important contributions such as those we heard today and to push those when it comes to legislation.

Chairman

In relation to the major items discussed, the incorporation of the ECHR into Irish law and the question of remedies, does anyone wish to reinforce a point?

Mr. Dillon Malone

Two points which formed part of our written submission and our submission on the last occasion we were here were mentioned by the Law Society. It is appropriate we again voice our support for those. One relates to the inclusion of the District Court and we agree with and fully support the Law Society's strong submission on this point. The other issue relates to compensation. We do not believe that compensation should be assessed by anyone other than a judge. However, if a court or a third party is assessing damages for a violation of convention rights under the proposed legislation we feel it is important that one should have regard to the experience of the Irish courts as well - as a legitimate consideration, not just to be hamstrung by the far lower awards of damages which are typically awarded under the convention, which is an international system. We are talking about the creation of a domestic remedy and the levels of damages awarded at the international level are limited because it is an international remedy. If we are to talk about rights-based legislation and remedies then those must be linked in Ireland to the appropriate measure of compensation for violations of rights.

I also wish to correct a misunderstanding in relation to the inclusion of a power to detain vagrants under Article 5 of the convention. It is true that the origin of this was in the 1950s but without getting into the detail, the committee can be absolutely reassured that the European Court of Human Rights does not tolerate the detention of vagrants. In fact, in respect of all categories of vulnerable persons who may be detained under domestic laws, including persons of unsound mind, the Court of Human Rights imposes a very strict standard both in respect of the necessity of detaining such persons on very limited grounds and also imposes very strict procedural obligations for periodic review of any detention of categories of vulnerable person. I ask the committee not to be misled by what clearly is a surprising wording in the convention but which is something of a red herring.

Dr. Conroy

With due respect to the Bar Council and the strength of the wording, I am somewhat taken aback that the remarks of a lay person such as mine would be called a red herring or that members would be advised not to be alarmed. From my visits to camp sites of the Rom and Sinti peoples across Europe and my observations in prisons where minority ethnic peoples are detained in countries such as Italy as well as my visits to Spain, I have observed widespread abuse and the belief that it is right and proper to detain such persons to prevent criminality. This pervasive prejudice, which is in the convention, is present in the minds of law enforcement agencies in many jurisdictions in Europe today. It is for this reason I specifically chose "vagrant" because it includes all kinds of persons of a nomadic, wandering, itinerant or homeless lifestyle. These are people who rely on others, such as FLAC, to have their interests represented but they also depend on people of a middle class and educated background being vigilant regarding them. It therefore behoves us as the educated to draw attention to their plight.

Deputy O’Donovan

I welcome the various groups and found their submissions forthright and interesting.

It has been suggested that this particular convention will be adopted in toto by our Constitution. As Chairman of the all-party committee on the Constitution I have no particular problem with that but there are certain logistical difficulties with that, as outlined by the Commission in 1996. The practical difficulty relates to how one would put such a complex convention to the ordinary lay person. Today we have various groups setting out the various parameters of human rights and so on but on a practical level our recent history with referenda shows approximately 30% of the population turns out. Maybe that reflects badly on how we present our referenda but to introduce this to the Constitution in one fell swoop might pose difficulties. I support the legislative approach.

I do not want to set one group against another but listening to the submissions I got the impression that the legislation before us, the 2001 Bill, is either obsolete, if that is not too strong a word, or inadequate. I favour the view expressed by my own Law Society group that the Bill should be revisited to work within its parameters - amendments could be introduced and we could work through that framework rather than starting afresh. There is merit in the legislation before us although I concede it probably has many inadequacies. However, rather than treating it as totally inadequate we should work within the framework which is there. I also welcome the valid point that the various groups who may wish to do so would table their amendments at a future date.

The Bill was introduced 18 months ago, but for various reasons it has been in abeyance. Following the election campaign last year the Dáil did not sit for two or three months and the committee was not established until November. That has given the new Administration fresh momentum to consider the situation again and perhaps learn from mistakes that have been made. While people may say it takes too long for legislation to be passed, we may learn from the submissions and take a fresh approach to the legislation. I will convey to my parliamentary party the valid points made here today.

I concur with some of the points made, particularly that to exclude the involvement of the courts - the District Court, Circuit Court or whatever - is not acceptable. One can have fairly rapid access to the courts. The District Court is quite amenable to hearing cases within a matter of weeks while the Circuit Court may take a few months. It is a fundamental flaw that this Bill has excluded the courts as an organ. I will be pushing in so far as possible on that issue.

As a newly elected Deputy I wish to inquire why are we compelling people - whether those with disabilities or cases, such as the Norris case, which relate to fundamental rights - to take their cases to Europe, which takes years to eventually reach a decision? This costs the State substantial amounts of money and time. In some instances, it is a waste of time.

In regard to children, someone said it could take six or eight years for a final decision on a case to be made at Strasbourg. We should be more proactive in our approach to these issues and look at matters from the perspective of the 21st century rather than going back to the 19th century. Perhaps the way we approach these issues is a criticism of all Governments.

I am chairman of a committee that deals with constitutional issues and we were asked by the last Government to look at issues such as children's rights, people with disabilities and how this impacts on the Constitution. The committee has only been in existence for one month, but I hope we will look at this issue and others involving human rights. Another area which may have an impact is the convention on human rights and the current position whereby we are considering a European constitution. That framework cannot be too far removed from the issues raised here.

Many issues concern people, including those who are disadvantaged physically, mentally or due to age, who cannot access legal aid. The more vulnerable people in society often cannot access these services. The committee must take on board the submissions which reflect the inadequacies of the legislation. Rather than ignoring these suggestions, we should take account of the submissions and draw up the necessary amendments. I hope we can improve on the legislation.

Unfortunately, I had to leave during some of the submissions in order to attend another committee meeting. I was particularly impressed by some of the submissions and I feel I have learned a lot. This committee must take on board some of the issues.

Chairman

I wish to introduce two other members of the committee, Senator Tuffy of the Labour Party and Deputy Ó Fearghaíl of Fianna Fáil.

To follow on from what Deputy O'Donovan said, I would like to ask a question on the Convention on the Future of Europe and the constitutional treaty which is being drawn up. Will these have an effect on Ireland's rights based legislation and the constitutional elements thereof in the future? Are we getting ahead of ourselves and should we be looking at other issues when framing this legislation?

Mr. Toolan

May I quote a non-legal aspect in terms of the Minister for Foreign Affairs' statement yesterday that the convention process will make the institutions of Europe more acceptable to citizens? I suggest that the more acceptable the process in terms of legislation would complement that aspiration. To do otherwise would counter that objective.

Mr. Dillon Malone

They are entirely distinct. I do not think the wider constitutional position within the European Union, including any bill of rights that might be included in a future European constitutional document is any reason to delay this legislation. This legislation is distinct and the European Court of Human Rights will remain the pre-eminent body for the protection and guarantee of human rights. It is much wider than the European Union, which is a view shared by most people. It is distinct and apart. Of course, they are relevant to one another and the extent to which we are fully engaged in the Council of Europe - and our obligations thereunder - is relevant to the European Union, but only peripherally on a political level rather than in relation to this co-operation.

Ms Reidy

While these aspects are distinct, we would not want to see a delay in bringing forward the legislation. In trying to anticipate what might happen at EU level, it would be rather ironic if what happens with the convention or, perhaps, if some sort of successor document to the European Convention on Human Rights was introduced was to render completely useless an item of Irish legislation. The latter would, in any event, be weaker than that which would exist at EU level. If we go through the process of incorporating domestic legislation, which suits both our Constitution and our existing obligations, we should do so now in a way that will be effective and not rendered obsolete by developments at European level. It should not be a reason for a delay, but another reason not to under-incorporate, so to speak, because it will simply be surpassed in time.

Chairman

I thank everyone for attending. The submissions will be extremely useful to the members of the committee in considering the Bill further on Committee Stage. The submissions by the other groups are available from the Clerk and Members may contact the office if they wish to obtain copies. I thank our guests for their informative presentations, from which Members have learned a great deal.

The joint committee went into private session at 4.40 p.m. and adjourned at 4.55 p.m. until2 p.m. on Tuesday, 21 January 2003.