JOINT COMMITTEE ON JUSTICE, EQUALITY, DEFENCE AND WOMEN’S RIGHTS debate -
Tuesday, 21 Jan 2003

Vol. 1 No. 7

European Convention on Human Rights Bill 2001: Presentation.

Chairman

In the absence of the Chairman, Deputy Ardagh, who has had to attend a family funeral, I have responsibility for chairing this meeting. I extend a warm welcome to all, particularly our guests who have come in to join us this afternoon.

The select committee will be processing Committee Stage of the European Convention on Human Rights Bill 2001 shortly. The joint committee held a series of meetings in 2001 and 2002 with interest groups with a view to ensuring a full consultation process prior to the passing of amendments. A large number of interest groups and individuals attended the meetings and lodged submissions. Because we not only have a new committee but a new Minister, members decided it would be appropriate to repeat the consultation process to obtain updated views from a cross-section of parties with an interest in the contents of the Bill. It held the first session of the new consultation process last Thursday. This was attended by nine groups and individuals. A list of the persons who attended Thursday's meetings and copies of their submissions are available on request.

I am delighted to welcome 12 further groups today. They include: the Centre for Independent Living, represented by Mr. Martin Naughton, Mr. Don Bailey and Ms Rosaleen McDonagh; the Irish Refugee Council, represented by Ms Cabrini Gibbons; the Irish Traveller Movement, represented by Ms Catherine Joyce and Mr. David Joyce; CARE - Christian Action Research Education - Northern Ireland, represented by Ms Allison Laird and Ms Heather Morrow; Mental Health Ireland, represented by Mr. Brian Howard; Dr. Austen Morgan; the National Association for the Mentally Handicapped of Ireland, represented by Ms Deirdre Carroll and Ms Jean Spain; the National Union of Journalists, represented by Mr. Séamus Dooley, Mr. Michael Foley, Mr. Ronan Brady and Mr. Peter Barnacle; Pavee Point, represented by Ms Brid O'Brien and Mr. Patrick Nevin; Rehab Group, represented by Ms Cliodhna O'Neill and Ms Sonya Felton; and St. Joseph's Association for Mentally Handicapped, Portrane, represented by Ms Annie Ryan. Dr. Gerard Hogan may join us later as the twelfth witness to appear here today.

The submissions lodged by the various groups have been circulated to members. I am sure they have a number of questions on various aspects of their concerns. I suggest that we hear each group and I propose to call them in alphabetical order as the easiest way, from my point of view, of not showing any preference. We hope presentations will last no more than about ten minutes, but we will be flexible. Given that there are 12 groups, it will take some time to deal with everyone. Is it agreed that we should proceed in that manner? Agreed. I propose that we take a short break at 4.00 p.m.

Deputy O’Connor

Perhaps you would introduce the members, as some of us are not all that well known.

Chairman

On my immediate right is Deputy Bernard Durkan, who is a whip of the Fine Gael Party. He is not a member of the committee but has joined us this afternoon. Next is Deputy Dinny McGinley from Donegal who is a member of this committee and has special responsibility for defence. Deputy Charlie O'Connor is from Tallaght. He is a new Member of the Dáil, a new member of this committee and represents Fianna Fáil. Senator Tim Dooley is from Clare, and next to him is Senator Jim Walsh of Fianna Fáil.

I remind guests and members that while members of the committee have absolute privilege in discussions at this committee, the same privilege does not extent to witnesses. Members are 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 House or an official by name or in such a way as to make him or her identifiable.

With all of the formalities out of the way, we will proceed with the real business of the day, which is to hear submissions. The first submission is from the Centre for Independent Living, represented by Mr. Martin Naughton, Mr. Don Bailey and Ms Rosaleen McDonagh.

Ms Rosaleen McDonagh

Good afternoon. My job as chairperson is primarily to introduce Don, our treasurer, and Martin, one of our co-founders. Each will present the arguments. I will hand over to Don Bailey.

Chairman

I thank Ms McDonagh and call Mr. Don Bailey.

Mr. Don Bailey

Good afternoon. The Centre for Independent Living welcomes the opportunity to share with the committee its view on human rights and disability. The process of change from discrimination to equality is long and slow and the struggle to achieve full rights has just begun. On a positive note, however, we feel for the most part that the State now accepts that people with disabilities have, in theory, the same rights as any member of this committee and as all our fellow citizens. Each citizen should realise and enforce the exact same rights. A two-tiered society is not and will never be acceptable. The current deficit on human rights in terms of people with disability and the rest of society must be brought into balance. The document entitled A Strategy for Equality, published in 1996, states:

Public attitudes towards disability are still based on charity rather than on rights and the odds are stacked against people with disabilities at almost every turn. Whether their status is looked at in terms of economics, information, education, mobility, or housing they are seen to be treated as second-class citizens.

If equality for all is, indeed, the State's current position and a place is being prepared for us just a few kilometres from Utopia, how do we get there, and what do we do and how when we get there? All this must be costed and we in the vanguard must be properly be resourced so that we can take our rightful place in society. We should be included and should participate in and determine, with the support of our peers, our own environment. We must in turn be responsible citizens and be prepared to give whatever we can back to society. We also must undertake to use whatever resources are given to us by society productively, and without which we cannot manage.

Ireland will be an even better place when all sections of society are included and take responsibility for its well-being. The disability agenda is huge. If we were to ask this committee's assistance to prioritise any one item, it would be to ring-fence the health segment of the community employment and social economy schemes. They are the life-blood of this organisation through which our human rights are often expressed. For example, the personal assistant and peer advocacy service run by the Centre for Independent Living and Vantastic, a dedicated door-to-door transport service for people with disabilities supported by the Department of Justice, Equality and Law Reform and FÁS, also requires continuous support. Martin Naughon will put this in a more historical perspective and give the committee our views on the future.

Mr. Martin Naugton

Tá mé thar a bheith sásta bheith anseo inniú. My task is to show where we are and where we want to go. In the latter part of my contribution, I will outline the route along the way which we need to take.

Historically disability has been seen as a medical problem within the individual, and this is still the case. Therefore, the steps of addressing disability are very simple. The doctor knows all. It is known as the medical charitable model. I do not mean this in an unkind way, but it is the members of the medical profession who make the decisions. Often they make very good ones, but by and large there is much more to it than that.

Often the medical process involves a strategy of rehabilitation. Let us put right what is wrong - that is the broad thrust of it - and if we succeed in doing that, we will have integration where you can fit in. Historically all of this would be paid for through charity. What that means, from my point of view, is that I really have very little say in how I want to live. I am always trying to focus on trying to repair myself. Integration always seems to get a little further away and therefore it spells failure much of the time. Often I am dependent on spare change from the Department, from people on the street or wherever. I am a little bit less so now, but I wonder what is around the corner.

We are saying that is what we need to move away from. We need to move into a more social model, the independent living approach. This model challenges us, as people with disabilities, to be in charge of our lives. That is not easy because we have come from a passive history where often we were painted out of the picture. We want to move on and build and add value to our lives, not to change it, not to focus on changing or learning to climb stairs, climb into buildings, crawl onto buses - that is all history and it is wrong. We are not talking about integration; we are looking for inclusion.

What that simply means in a nutshell is that if I cannot get on a bus, in the medical model it is somehow my fault - it did not work for me, I did not try hard enough or I must have missed out on something. Under inclusion if I cannot get on a bus, it is seen as a flaw in society or in whoever designed the bus who did not take account of me wanting to get on that bus. That is how we see inclusion. We also say goodbye to the charity side. We focus on our right to full and proper services. In a sense, we want to switch over to where we are in the driving seat.

The process of the Commission on the Status of People with Disabilities, 1993 to 1996, resulted in the report, "Strategy for Equality". All people with disabilities were represented and it was a fairly large consultation process. When that was completed, people with disabilities came back and said, "We want better education, housing and jobs - the same as everybody else." That is what people with disabilities want.

How we get there is the next issue. Our journey, as Don Bailey has already said, needs to be properly resourced. We are extremely concerned at present that we might end up taking steps backwards. We have worked extremely hard to make sure that transport is accessible. After much pressure and much education, we achieved a little progress from Dublin Bus and Bus Éireann and CIE as a whole. As we switch into privatisation, we are worried we will revert back to the way it was because we have no success in convincing other groups in the private sector that access for people with disabilities was important. Those are our little fears.

One final issue which has not been addressed from our point of view is where we are being challenged to take responsibility for our lives. There is no support whatsoever for us to do that. There is no proper advocacy, no proper advocacy training and no proper support. We were promised - it was recommended in the Strategy for Equality report - that there would be specific support services for people with disabilities. It does not seem to be happening and we have conceded quite a lot in the sense of moving into the mainstream. There were many buildings and resources provided and we want to see if they will pay the dividends we all expected. That is the big challenge and we do need some support.

Ms McDonagh

Our chosen remarks would focus on the following. When we talk about human rights, primarily we are talking about people who have access to goods and services and have access to challenge service provision when it is not delivered adequately. CIL is looking for a rights base. While we are all doing very well, the people here today represent a whole conglomerate of people and we would be fearful that people in rural Ireland, people in residential centres, would be somehow forgotten or made an appendix in any legislation. It would be absolutely vital that people with disabilities from all areas and from all sectors of the community would have access to human rights legislation.

Chairman

I thank the representatives from the Centre for Independent Living for their presentation. They have also submitted a written presentation which will be circulated. The second group is the Irish Refugee Council which is represented by Ms Cabrini Gibbons, who will now make a presentation.

Ms Cabrini Gibbons

The Irish Refugee Council thanks the joint committee for the opportunity to make this submission regarding the European Convention on Human Rights Bill 2001. The Irish Refugee Council welcomes the Government's commitment to give further effect to the European Convention on Human Rights in Irish law. However, we regret the that Bill does not directly make the convention part of Irish domestic law. The Irish Refugee Council reiterates the call of the ICCL, the Law Society, the Bar Council and the human rights commission on the Government to reconsider the European Convention on Human Rights Bill 2001, in favour of full direct constitutional or legislative incorporation of the convention. The State is obliged to guarantee the rights enshrined in the convention to "everyone" within its jurisdiction. This obligation applies equally to nationals and non-nationals. Therefore, with its incorporation into domestic law, the rights enumerated in the convention must be taken fully into account before an individual is removed or deported from the State. For asylum seekers, this is essential as an element of complementary protection, supplementing the UN convention relating to the status of refugees, by placing refugee protection within the broader human rights context.

The cornerstone of refugee protection is the principle of non-refoulement, whereby a person will not be returned to a place where his or her life or liberty may be threatened. Legal procedures must be accessible which are able to determine fairly and accurately the risk of harm individuals will be exposed to if returned to their country of origin. In this context, some of the most innovative and early jurisprudence of the European Court relating to refugee issues has been its interpretation of Article 3 of the convention. A number of leading decisions, outlined in annex 1 to this submission, have shown the value of Article 3 as a complementary mechanism to protect persons of concern to the Irish Refugee Council. Thus it can be concluded that the convention provides an essential form of complementary protection for asylum seekers which will not be guaranteed in the State and may require recourse to Strasbourg, unless the convention is incorporated directly into Irish law.

If the proposal for incorporation through direct legislation is not accepted, we wish to offer some comments on the provisions of the Bill. I refer to the declaration of incompatibility in section 5. The most obvious failure to provide effective remedies is found in this section which provides that, where an existing statute is found to be incompatible with the convention, all the courts can do is to issue a declaration of incompatibility which "shall not affect the validity, continuing operation or enforcement of the statutory provision or rule of law in respect of which it is made". This falls well short of an effective remedy and poses serious questions as to Ireland's real commitment to the promotion and protection of human rights. Certain provisions of the existing Refugee Act 1996 as amended, are arguably incompatible with Article 5 of the convention - the right to liberty and security. However, under the proposed legislation, it is difficult to identify what benefit an individual would receive if he or she invoked section 5 of the Bill as it is likely to be expensive and time consuming and there is no guarantee of any legislative change.

For an individual to be able to gain an effective remedy as per Article 3(2), he or she must be able to access the Irish courts, yet an individual facing removal or deportation from the State may have serious difficulties in accessing the remedies under the Bill. The Irish Refugee Council recommends that any individual who makes a claims under Article 3(2) must not be removed from the State before his or her claim is finalised. Furthermore, an individual who is removed from the State must be able to make a claim for damages even if he or she is outside the State. This would include an individual removed from the State following a rejection of his or her claim for asylum and who subsequently faces human rights violations in the country to which he or she is returned.

The Irish Refugee Council would like to stress that effective remedies must not be restricted solely to financial remedies. For individuals facing deportation or removal from the State, or an individual being held in detention, a financial remedy will not meet their immediate needs. This is the case where the deportation, removal or detention leads to a breach of the convention. Therefore, the Bill should be expanded to include other forms of remedy such as delay or revocation of deportation or removal or release from detention.

Section 3(1) states, "every organ of the State shall perform its functions in a manner compatible with the State's obligations under the Convention provisions". Dissemination of jurisprudence and a wider awareness and understanding of the convention among "organs of the State" is thus absolutely essential. "Organs of the State", as defined in the Bill, include the Office of the Refugee Applications Commissioner and the Refugee Appeals Tribunal. Members of both bodies, as well as immigration officers and the Garda National Immigration Bureau, will require comprehensive and ongoing training on the convention and how it may affect individuals seeking the protection of the State as they will be under obligation to interpret the Refugee Act 1996 as amended, the Immigration Act 1999 and the Illegal Immigrants (Trafficking) Act 2000 in a manner that conforms to the convention.

We welcome the fact that the Protocol No. 7 of the convention and, in particular, the procedural safeguards relating to the expulsion of "aliens", are included in the Bill. However, we stress that all asylum seekers ultimately refused the right to remain in Ireland must be able to avail of their rights, as set out in Article 1(1)(a-c) of Protocol No. 7 before they are removed from the State. The Irish Refugee Council urges the Government to ratify Protocol No. 7 before the enactment of the final Bill. We urge the Government to ratify and incorporate Protocol No. 12, the prohibition of discrimination, in the immediate future. Such ratification would endorse the national action plan against racism.

We are very disappointed by the current Bill which we believe is minimalist in its approach and fails to provide truly effective remedies for breaches of the convention. The Good Friday Agreement commits us to "ensure at least an equivalent level of protection of human rights as will pertain in Northern Ireland", where the convention has become part of the ordinary law through the Human Rights Act. However, the Bill means that the convention will remain subservient to the Constitution and force individuals to continue making applications to the European Court of Human Rights in Strasbourg when the Irish courts hold that the individual's rights have not been breached under the Constitution. The process of applying to the Strasbourg court is often lengthy and time consuming and it is unsatisfactory that individuals will have to continue to make such applications. For asylum seekers who are prohibited from working and who only receive €19.10 per week, it is highly unlikely they will have the means to be able to pursue such a case.

Chairman

Thank you very much for your presentation. We move to the Irish Traveller Movement who are represented by Ms Catherine Joyce and Mr. David Joyce.

Ms Catherine Joyce

I thank the joint committee for giving us the opportunity to make a presentation. While we are making an oral presentation, we will send a written submission tomorrow. The Irish Traveller Movement has been in existence since 1990 and the membership comprises more than 80 local Traveller organisations. We are a nationally representative, membership-based organisation and our total membership is almost 300. The Irish Traveller Movement's main aim is to attain Travellers' human rights through its work. We focus on anti-poverty and anti-racism work.

The movement is represented on the NCCRI, the no racism campaign and the equality campaign. We also represent Travellers on the task force on Travellers, the monitoring committee of the national accommodation consultative group and a number of other working groups and subgroups in various Departments, including the Departments of Education and Science and Health and Children and so on.

The Irish Traveller Movement believes Travellers face racism and discrimination on a number of different levels. On an individual level, Travellers are refused access to services or accommodation or people will not sit beside them or they are called names such as knackers or itinerants. All Travellers experience such discrimination and racism. However, there is also an element of institutional racism and discrimination, which we constantly challenge, whereby Travellers cannot gain access to education or accommodation and where the State negatively discriminates against Travellers. I will not go through the long list of issues, but there is individual and institutional racism against Travellers.

A number of positive steps have been taken to address some issues, including the employment equality legislation in 1998 and the equal status legislation in 2002. We actively fought to have Travellers included in the legislation because we believed if we were not specifically identified, we would lose out in terms of attaining equality rights.

I concur with the comments of our colleagues from the Centre for Independent Living about being treated as second class citizens. That is very much the case with Travellers. More than 1,100 Traveller families are forced to live on the side of the road with no access to water, toilets, electricity and bin collection. Travellers are in a dire situation.

Mr. David Joyce

Thank you, Chairman, for the opportunity to address the joint committee. Like many of the groups discriminated against on a daily basis in society, we have major concerns about how minimalist the Bill is in attempting to incorporate the human rights convention. The concerns we have are quite practical, have been raised by the previous speaker and relate to how people can avail of the provisions.

The most we get from a court is a declaration of incompatibility with the provisions of the convention in any legislation or acts of statutory bodies or organisations. In a sense that improves the lot of organisations that are forced to go to court to have their rights recognised or put in place. Unfortunately, the Bill does not make doing so any easier. In one sense it could be argued that it will make it more difficult because, even if a local authority is found in its policies to be in breach of the provisions of the convention with the effect that will have on Travellers, it does not change the action of that local authority or others throughout the country. It means that individual Travellers who find that their rights are being breached will be continually in opposition to local authorities, as is the case now.

While we accept that any attempt by the State to put the human rights convention in place is a positive development, the reality is that people are being and have been forced to go beyond the Irish courts to the European courts to have their rights vindicated. We will continue to have to do that. The Bill does not improve the position of people whose rights are affected by the State.

I know from Traveller and gypsy organisations that the incorporation and operation of the convention in Britain has seen improvements for those organisations there, particularly in dealings with local authorities. Traveller accommodation issues there, which are similar to accommodation issues for Irish Travellers, are improving slightly.

The reality is that it is still a continual struggle by individuals and what makes it worse in the Irish situation is that the convention is being compared with and held up against our Constitution. The struggle will continue for individuals. There are a number of minority groups within society that would benefit from recognition as minorities, but nothing in the legislation gives that any standing in the courts. I know that issue will be raised in many of the presentations because I have spoken to people from different organisations.

Our main concern is about how minimal the Bill is in its incorporation of the convention. We are concerned that it does not change the situation. While it is a welcome attempt on the part of the State to give fuller recognition to the provision of human rights, unless some structure is put in place to ensure those rights are usable and can be enforced in a practical way they will be of very little use. Rights, unless they are enforceable, are not of much use. We feel that the way in which Bill incorporates the convention will not benefit the minorities who continue to suffer abuses of their human rights.

Ms Catherine Joyce

Any new legislation should build on the equality legislation and structures in place and not be seen to replace or oppose it. Any gains made through legislation should benefit the wider community and, in this case, the Traveller community. I concur with our colleagues in the Irish Refugee Council that, if cases were to go to court, it would create an extra burden on people trying to challenge through legal mechanisms the violation of their human rights.

Chairman

I thank the witnesses. We move to the next group, the CARE group from Northern Ireland, comprising Ms Allison Laird and Ms Heather Morrow. They are welcome.

Ms Heather Morrow

I thank the committee for the invitation. As members will see from their briefing papers, I represent the Evangelical Alliance. My colleague, Allison Laird, represents CARE, and we have worked on human rights with another partner organisation, the Evangelical Contribution On Northern Ireland, ECONI. Together we represent a broad Christian constituency. We are faith-based charities working in Northern Ireland and the rest of the United Kingdom. We have all worked together on human rights as they have progressed within Northern Ireland.

We will perhaps bring a contribution less from an interest group and more from the perspective of making some general comments and considerations on the implications of bringing in a human rights culture and the effect that can have on different facets of society. I hope we leave the committee today with some food for thought as Members consider the implications of that in Ireland. I will now hand over to my colleague.

Ms Allison Laird

To set matters in context, this is a briefing we have worked on with MLAs, MPs, peers and our Human Rights Commission. This is set in the context of our observations of a bill of rights process in Northern Ireland, rather than any specific indications from the committee. However, but I am sure something may come out of it.

Obviously the human rights texts, such as the Universal Declaration of Human Rights and the European conventions, have an important role to play in ensuring the citizen is protected from abuses by the State. We want to highlight some implications we have observed from the bill of rights process in Northern Ireland and the development of a human rights culture.

Regarding the political implications of creating a human rights culture, we have felt that there is a potential for human rights decisions to be made in the courts in Northern Ireland which would undermine the role of the Northern Ireland Assembly which was obviously set up specifically with cross-community balances and checks in place. We had a concern that the human rights decisions might cause a clash between the elected representatives and the judicial process. I am sure it is something of which Members are already aware.

On economic implications, obviously we would not want to reduce some worthy policy aspirations to money. However, with finite resources, elected representatives obviously must be cautious about how they spend money. We have a concern that the vast range of human rights causes may not help budgets to be prioritised. Expectations are created and we felt certainly in Northern Ireland that many expectations were set on human rights. Whether the Government would be able to resource all those expectations to the level people expect is a cause of concern.

For example, in a health document published by the Department of Health the first point said that we have the right to health. Obviously health is an aspiration we would all desire, but it is another question whether we have a right to health if that right to access to health care services is taken away. So, in the framing of human rights language, we need to be cautious about what expectations we are creating.

Then there are the financial implications of establishing and maintaining the institutions of a human rights culture. When the draft bill of rights was produced by the Northern Ireland Human Rights Commission, it had not included any sense of costing or how much the bill would cost. I note that as a word of caution.

There are some social implications we have identified from creating a human rights culture. Human relationships are varied and complex and they require equally varied and complex means to describe, define and sustain them. An example would be the contentious issue of parades in Northern Ireland. One side will say it has a right to march while the other will say it has the right not to have its peace disturbed in that way. In a human rights court they would have to waive their rights and decide one right had more priority than the other. That would not address the problem on the ground, as two communities are clashing on their human rights aspirations and there does not seem to be anything to draw them together. The side which has its human rights upheld will be no more gracious to the other side and the side which does not have its rights upheld will be unable to say: "You are absolutely right, your human rights have more priority." These cautionary words are specific to Northern Ireland but may have implications for this country.

The fact that there is little mention of responsibilities in our draft bill of rights is another issue. We filled that out but it is sometimes easy to have an expectation of rights without an appropriate understanding of responsibilities - our responsibilities to each other as human beings. Rights are obviously drawn from the State, which has a responsibility to see those rights through. However, there is very little in the human rights culture to create a relationship with each other, which is very important.

Those are some of our observations regarding the bill of rights process in Northern Ireland.

Ms Morrow

I will finish with an example of a human rights situation which did not have the outcome expected, that of the dictator Pinochet. A massive coalition of human rights groups came together to make sure he was brought to justice for human rights abuses against his people and finally he was on the point of being brought to trial, which was a human rights triumph. Many people in Ireland and elsewhere in the world would have applauded that but interestingly, human rights law stopped the trial from going ahead, as it was felt that Pinochet would not have the right to a fair trial. This shows that human rights do not always work out the way governments hope they will.

In Northern Ireland we have recently been examining a huge document of 200 clauses, more than the ECHR document, which gives us perhaps 200 more rights than anyone else in Europe. We highlight the fact that it would be unfortunate, in the midst of those 200 plus rights, to trivialise some core rights which are generally not up for political discussion but which are assumed to obtain in civilised societies. I am not sure they number 200 but we want to highlight them and then allow specific interests to be addressed by elected politicians under more general and aspirational law, rather than prescriptive law.

Chairman

Thank you. We now move to our fifth group, Mental Health Ireland and Mr. Brian Howard.

Mr. Brian Howard

Once again I thank the Chair and committee for inviting me. I intend to focus on the European Convention on Human Rights Bill in so far as the contents of the Bill refer to the delivery of mental health service and particularly the involuntary detention of patients in our inpatient facilities. Before I do so I will refer to the work of Mental Health Ireland, the largest voluntary body engaged in the mental health sector in Ireland. It was founded in 1966 and there are 100 local mental health associations throughout Ireland affiliated to it which share the same twin aims of Mental Health Ireland: to represent the interests of people who suffer from mental illness in Ireland and the promotion of good mental health.

The law governing the delivery of mental health services and, in particular, involuntary detention consists of the Mental Treatment Act 1945. This is still in operation as the Mental Health Act 2001 is not fully in operation yet. The European Convention on Human Rights contains several articles which are relevant to mental health and, particularly, involuntary detention. Those are Article 3 which states, "No one shall be subjected to torture or to inhuman or degrading treatment or punishment." Article 5.1 guarantees the "right to liberty and security of the person" but defines a certain number of exceptions "in accordance with a procedure defined by law" of which Article 5.1(e) includes the lawful detention of “persons of unsound mind”. Article 5.2 states, “Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and any charges against him”. This is also interpreted to cover detained psychiatric patients as well as accused persons.

Article 5.4 states:

Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

The Mental Treatment Act 1945 - the act currently in operation - is deficient in two primary areas in the context of the European Convention on Human Rights. The first is the absence of any automatic review mechanism for detention. Under the 1945 Act if a person wishes to challenge his or her detention he or she is forced to take action through the civil courts or habeas corpus proceedings; this is not compatible with the European Convention on Human Rights.

The other primary area of deficiency in the Act regarding the convention relates to the criteria governing detention. Under current law, a person may be detained under a temporary involuntary admission, where a person may be detained for up to six months, a term which can be renewed for three separate six month periods leading to a maximum period of detention of two years. More importantly, a person can be detained indefinitely under the "person of unsound mind" category. Detention under that category may be indefinite and this is the most serious deficiency in the legislation.

The new Mental Health Act 2001 rectified these deficiencies in many respects but the Act had a long gestation period before being enacted. The Green Paper on Mental Health Services was published in 1992 which was followed by the White Paper on Mental Health in 1995. This gave a very good opportunity to interested groups such as Mental Health Ireland and others to comment on glaring deficiencies in the current legislation. I am glad the new provisions in the Act have satisfied those glaring deficiencies by providing an automatic review of every decision to detain under the 2001 Act. Those reviews will be conducted by an independent tribunal, which is a vast improvement on current law. There will also be a serious tightening up on criteria and duration of detention. The initial period of detention will be reduced to 21 days, which can be renewed for three months, six months and a year thereafter. Every decision to detain will be subject to review by tribunal, which is welcome.

In general terms Mental Health Ireland welcomes the introduction of the 2001 Act. However, we saw the Child Care Act 1991 take ten years to be fully implemented and we do not want to see that with the Mental Health Act 2001. A very important body, the Mental Health Commission, was founded over 12 months ago but it does not have sufficient funds to operate fully in accordance with the provisions of the Mental Health Act. This is in contravention of the European Convention on Human Rights in practice and we urge that it be enacted in full as soon as possible.

Turning to the European Convention on Human Rights Bill 2001, and again limiting my comments to mental health services, the intention of the Bill is to facilitate the bringing of cases involving alleged breaches of rights under European conventions to the Irish courts and this is welcome. However, the Bill as it stands falls short in the following important areas. Article 13 of the European convention requires the availability of effective domestic remedies. If an Irish court declares that a law or public Act is incompatible with the European convention, there is no obligation to pay compensation or damages. Mental Health Ireland shares the view of the Human Rights Commission that the absence of such an obligation is not an effective remedy. Under section 3 of the ECHR Act, the awarding of damages is discretionary, and stated as such. Under European case law, discretionary remedy is no remedy.

The other point I would like to make relates to the organ of State provision as defined in the ECHR Act. It is not clear as far as mental health care delivery is concerned whether a private hospital, as distinct from a publicly funded in-patient facility, would be included in the definition of organ of the State. I urge the committee to look closely at that issue. In regard to a private hospital such as St. John of Gods in Dublin, there is a question mark over whether that would be regarded as an organ of the State in the context of the ECHR Act. I urge the committee to consider that issue.

I strongly urge the committee to support the inclusion of a section in the Act providing for a full review of the ECHR Act within five or seven years of its enactment. This provision is included in the Mental Health Act, 2001. Most of my colleagues would support such a provision because of the various areas encapsulated in the Human Rights Act. It would be a very wise measure to include a five or seven year review of its operation.

Dr. Austin Morgan

I thank the Chairman and members of the committee for their invitation to someone who is a double outsider. My interest in the legislation stems from Northern Ireland but I work as a lawyer in England and Wales. I was surprised to be invited for a second time because I attended a predecessor committee approximately 18 months ago for which I prepared a long paper of 21 pages. Today I have just prepared a short paper of over three pages, which includes the term "supplementary evidence".

When I came to the previous committee 18 months ago I drew three conclusions. One was that the Bill should have been the Irish Government's priority following Good Friday 1998. When one thinks about dates, we are almost facing the fifth anniversary of the Good Friday Agreement and the Irish Government has yet to implement this obligation, namely, an equivalent level of protection of human rights. The second thing with which I left the previous committee was 12 proposed amendments to the existing Bill, assuming that would be carried forward by the Oireachtas. The third was a statement of preference that I had been very impressed by the work of the Constitution review group, in particular with what was called the Swedish alternative for human rights protection. This would have involved a constitutional amendment but would have left the European Convention on Human Rights as essentially a multilateral international instrument. It would not have incorporated it into Irish law.

Today I want to be a lot more modest and make three points, which I hope will be useful to the committee at this stage in the legislative process. That is what the three page paper is about. My first point - this issue arose the last time - is that it took the UK took a long time after enactment to bring the Human Rights Act into force, from November 1998 to October 2000. During those two years, the British Government got the public sector ready for the legislation. The UK spent a lot of money on judicial training and a lot less on civil servants. However, it got its civil servants to audit the whole of Government to find out where it was at risk. I will refer to a publication by Jeremy Croft, a constitutional expert, the title of which is included in my paper. He published a report on how the UK prepared itself for the Human Rights Act.

My second point is to ask what the Human Rights Act has amounted to. As a practising lawyer, my answer is not a lot. I refer to another report by the same author, Jeremy Croft, who basically tracked the first year of the Human Rights Act in force. The view taken in London was that in two years Government would be ready for the Human Rights Act and, therefore, if it cleaned up its act, it would not be liable to any serious challenge in the courts. By and large, there has been no serious challenge in the courts. There have been approximately four or five cases in the higher courts where human rights points have succeeded, which contrasts with the hundreds of cases where human rights points have not succeeded. To give a personal example, one of my areas of practice is immigration law, which probably makes me as unpopular in England as it might do in the Republic of Ireland. I will be arguing human rights tomorrow, as I did yesterday. I am not sure how much I have done for my clients by arguing human rights. Tomorrow I will argue Article 3 while the Government's representative will say it gives me nothing I did not get under the refugee convention. Tomorrow I will argue Article 8 and they will say that, effectively, immigrants do not have the protection of Article 8 because people have no right to choose in which country they want to have a family. Therefore, I am not sure how much I will achieve. Tomorrow I also intend to use European law, and I am much more confident I will find in European law, as opposed to human rights law, something that will help tomorrow's client.

My third point is much more broad-ranging and comes back to my earlier reference to the delay in enactment. I refer to the charter of fundamental rights of the European Union, which was signed at the end of 2000. It is just a solemn declaration. It has very little, if any, legal status within European law but the Convention on the Future of Europe is sitting and there is a proposal for a future intergovernmental conference. There will be some sort of new agreement between the 25 new members. It does not matter what it is called, but it seems to be more likely than not that human rights will now become part of European law in a practical way, not just in an aspirational, gestural way. Human rights are included in the current European treaties but, if the charter becomes part of a future European treaty, something very interesting will happen. Essentially, Luxembourg, the European Court of Justice will probably produce more remedies for human rights claimants than Strasbourg, the designated human rights Court. A very interesting thing will happen in Ireland, because of the relationship between domestic law and European law. Essentially, the charter will come in to domestic Irish law through European law.

As I understand the architecture of the Bill before both Houses, it was produced by an Attorney General who is now the Minister for Justice, Equality and Law Reform. His primary concern was to protect the Constitution from foreigners, which seems fairly reasonable since the Constitution was created by the people of the Republic of Ireland only. However, in 1972 the State shared sovereignty within the European Economic Community, therefore, it is liable for things that come from abroad. The same applies in the case of human rights. When one takes human rights into one's law, wherever one puts them in one's law, one is at risk of a whole corpus of rights, including the jurisprudence on those rights, coming in. I realise the Bill was forced on the people of the Republic of Ireland because of the Belfast Agreement and, in particular, by the pro-Agreement Unionists who insisted that whatever was going to happen in Northern Ireland had also to happen in the Republic of Ireland. Therefore, this is not a self-generating Bill within what some call the Twenty-six Counties. However, the architecture has been wrong. There has been a public panic about matters, particularly certain types of rights, that come from abroad.

The joint committee has to legislate and I suspect it is not going to change the fundamental architecture of the Bill, although Members on the floor of both Houses might look at some individual proposed amendments. However, almost five years after the Belfast Agreement the serious issue for the Government is the charter of fundamental rights because even if the Bill goes ahead into legislation, the key document is going to be the charter of fundamental rights and the effect it will have, through European law, on domestic Irish law.

Chairman

Thank you, Dr. Morgan. Group No. 7 is the National Association for the Mentally Handicapped of Ireland. I call Ms Deirdre Carroll and Ms Jean Spain.

Ms Deirdre Carroll

Good afternoon, Chairman, Deputies, Senators and colleagues. I am general secretary of the NAMHI, an organisation representing 160 groups working in the field of intellectual disability, their families, carers and service providers. My colleague, Ms Jean Spain, is our honorary president and the parent of a young woman with an intellectual disability.

This is the second time we have addressed the joint committee and we thank it for inviting us back. I did not realise it was in 2001 that I addressed it with my colleagues and Mrs. Annie Ryan who will address it separately at the end of today's session. It seems like only a few weeks ago. I am now reminded that is more than a year and a half ago. I support Dr. Morgan when he says it seems to be taking a very long time to implement this very minimalist Bill.

The National Association for the Mentally Handicapped of Ireland welcomes the Government's decision to incorporate the European Convention on Human Rights into domestic law. Ireland can now truly say it is firmly and proudly part of the international community. We have signed up to a web of international legal obligations, many of which have either direct or indirect effect on the lives of people with an intellectual disability. The one best known to us is the United Nations Convention on Economic, Social and Cultural Rights. Since we last attended the joint committee we have paid a visit, with Mrs. Ryan and her group from St. Joseph's, Portrane, to report on Ireland's second report to the UN committee. In its final report on Ireland's second report the committee in Europe stated it could not understand the reason we had not incorporated the United Nations Convention on Economic, Social and Cultural Rights, to which the Government had signed up, into domestic law. The committee saw no reason in our own law we should not do so. When a country signs up to one of these conventions, it is obliged to incorporate it into its own law. Therefore, we have been in breach of this for many years. I know Mrs. Ryan will speak further about this because her organisation was one of the very first groups, as a small voluntary organisation, to seek the protection of the convention. This is noteworthy.

Ireland was one of the original ten states to sign the European convention. There have been additional protocols to the convention which has extended into almost every area of life. Nonetheless, there is a gap between what we sign up to internationally and what we translate into our domestic law. This seriously disadvantages the weakest section of our society, that is, the people I work with and who represent people with an intellectual disability. They are not different from other socially excluded groups in this regard, except that the people whom the NAMHI represents are often voiceless and have difficulty in speaking on their own behalf. There are also issues of capacity, another area which has not been looked at in the domestic legal context. We are relying on Irish law to give us rights for which we have been waiting quite a long time.

Since I last spoke to the joint committee there has been an attempt to promote a disabilities Bill which had to be withdrawn due to public outcry because it refused to give people recourse to the courts if any of their rights under the Bill were denied. I refer to the article of the European Convention on Human Rights drawn to the committee's attention by Mr. Howard of Mental Health Ireland. It is our contention that people with an intellectual disability have been subjected to inhuman and degrading treatment as has been outlined in many of the reports of the inspector of mental hospitals. The number has gone down a little since we spoke to the committee, but there are currently 495 people with an intellectual disability in psychiatric hospitals and a further 200 in what are known as de-designated units, formerly psychiatric hospitals. None of the people concerned have been diagnosed as being psychiatrically ill. There are many other such instances of inhuman treatment which are not reported because there is no system of redress or social service inspectorate within the intellectual disability service apart from those covered by the current mental health legislation - the 1945 Act and the 2001 Act, which will come into effect shortly. Many are detained in residential settings who have no legal protection, right to redress, advocacy or social service inspectorate. We would like to know what their rights are. We deal on a daily basis with problems arising in this area, yet there is no protection for the people concerned under any of our laws.

The incorporation of the convention in the proposed Bill will allow Irish people to take a case within their own country, which is welcome. This should be done in a way which would give the fullest access to people with an intellectual disability, whenever possible acting on their own behalf, their families and advocates. It is essential, therefore, that every aspect of public administration takes on board the principles of the convention. I reiterate what Mr. Howard has said in relation to voluntary hospitals. In the area I work in 80% of services are provided by voluntary organisations. If they are excluded from this area, a large number of people will have no protection. This area is unique in that services are provided by voluntary organisations funded by the Exchequer. It should, therefore, have the protection of the law.

The awarding of discretionary damages does not address the real problem for a person with an intellectual disability or his or her family. What is required is a substantive reviewable and enforceable right to care, treatment and appropriate services.

I make a strong plea that the convention be incorporated. We agree with many of the groups present that it is a very minimalist incorporation. We do not see the reason the Constitution cannot incorporate the rights put forward in the convention nor do we see how their being incorporated into the Constitution presents a difficulty. We see no reason Ireland cannot also incorporate the United Nations Convention on Economic, Social and Cultural Rights into domestic law, as has been requested twice by this august body.

I now ask Jean Spain to describe a more personal experience of the issue.

Ms Jean Spain

As Deirdre has said, I am the parent of a 27 year old girl who has a mild disability. I thank the joint committee for inviting us here today. I speak from a parents' point of view about our concerns.

There are 495 people with intellectual disabilities resident in inappropriate psychiatric hospitals. This is unacceptable. The National Association for the Mentally Handicapped of Ireland, as advocates of these voiceless people, must speak for them as many have no family members to do so for them. Those who have family members in this situation do not know their rights. NAMHI speaks for them and for the family member in need. Self advocacy is underdeveloped in Ireland, but there are a small number of able self advocates. In the future we hope to be in a position to help them get more vocal. Due to an imbalance of power at present in the psychiatric system, people with intellectual disabilities often feel unable to challenge decisions made on their behalf. Some kind of independent advocacy should be put in place.

In Ireland there are 1,711 people with intellectual disabilities in need of a full time residential service. There are 861 in need of a day care service and 1,014 in need of respite care. There are also 495 residents in entirely inappropriate conditions. This is a human rights issue. In respect of family rights, many have to resort to courts to get their rights to a service for their children. Indeed, many have been sent outside the State to get the services they need. Families have been torn apart because of the situation.

There are also people with intellectual disabilities who have no access to services and are languishing at home with elderly parents. Many of these parents, who have been in contact with NAMHI, are over 70 or 80 years of age who are looking after a 40 or 50 year old "child". One does not have to be an elderly parent to be affected by the problem of having responsibility for a person with intellectual disability. It can be very difficult to watch them sitting at home. They lose confidence slowly and their behaviour can suffer.

At a recent executive meeting of our association we saw a copy of a report regarding the care of people with intellectual disabilities and staff shortages. This report was given to us by parents and, as a parent, I was appalled. I feel that if this legislation was in place these people would have had rights to redress the situation. What human rights have these people? We can give a copy of the report to the committee but it states, "Because of staff shortages residents have had to be physically restrained i.e. all-in-one suits, locked rooms, straitjackets". The report goes on to state that "once staffing is increased the overuse of mechanical restraints during the day and, particularly at night, should decrease". I am quite angry about this and find it difficult to read it. Reading the report appalled me. The human rights of these people with intellectual disabilities have been violated. If this was to happen in a prison situation it would be made public, but because it is happening to persons with intellectual disability nobody seems to care.

NAMHI welcomes the Government's decision to publish the Bill. I hope the committee will take our submission and personal contributions on board. Thank you.

Chairman

I thank Ms Spain. We will keep moving through our list. From the National Union of Journalists we have Séamus Dooley, Michael Foley, Ronan Brady and Peter Barnacle.

Mr. Séamus Dooley

I apologise for the absence of Peter Barnacle. He is in industrial relations and has been called away.

The National Union of Journalists represents 97% of journalists in the country. Membership of the trade union is open to those who earn 75% of their income from the practice of journalism. NUJ members generally work as full-time newspaper reporters, broadcasters, photographers and camera operators. We have included as appendix 1 the NUJ code of conduct which our members are required to obey. We are grateful to the committee for this opportunity to put forward our views on the European Convention on Human Rights and on this crucial Bill.

I would like to apologise for the absence of our cathaoirleach, Mary Maher, and to introduce Ronan Brady and Michael Foley. Michael is a journalist and lecturer well known through his association with the Dublin Institute of Technology school of journalism. Ronan Brady is a freelance journalist and lecturer. Both have worked as consultants with the international federation of journalists. Peter Barnacle who has advised us on our interpretation of the Bill is an international lawyer, with specialist interest in labour law. Specifically, he has worked with the NUJ in the landmark Wilson case at the European Court of Human Rights. I wish to draw that to the committee's attention because this is a new item of legislation which has particular relevance to international labour law.

We have enclosed as appendix B our discussion document on Time for Reform - The Case for Media Accountability. This was discussed in detail at the previous committee. It is not our intention to rehearse the arguments today but we are open to question if the committee has questions.

It would be useful to summarise our view on the incorporation of the European Convention on Human Rights before identifying areas of specific concern. We share the view of the Irish Refugee Council, the ICCL and many other bodies that this State has lost a great opportunity to enrich our Constitution through incorporating the European convention through a referendum. It is our belief that the Constitution would have been enriched rather than diminished by such a bold move. We believe that Irish citizens should be given the right to decide through a referendum on this issue. The mode of incorporation proposed in the European Convention on Human Rights Bill 2001 will mean that Irish citizens will find it harder to assert and vindicate their rights than most of their European colleagues. We have to ask if that is an appropriate way of dealing with the issue of human rights.

Incorporating by referendum would allow our courts immediate access to the Strasbourg body of law. By contrast, the method proposed in this Bill, proposed by the previous Minister and now advocated with characteristic fervour by the current Minister in section 5, means that all we can do is issue a declaration that an existing statute is incompatible with the convention. The long and costly winding road to Strasbourg still lies ahead for citizens who wish to vindicate their rights. We strongly urge the incorporation of the treaty by constitutional amendment through referendum. We urge that the law includes a section providing that the convention should have the force of law within this State and that it respects, in particular, the vulnerability of media freedom as the corresponding British legislation does.

We note that since we first addressed the committee there has been little progress in the area of libel reform. I propose that my colleague, Michael Foley, will deal with that issue in a moment. I, however, want to draw the committee's attention to the implications of the Wilson judgment. I can understand that members of the committee and other people present may well be bemused as to what we have taken to referring to as the "son of PPF" has got to do with either this committee or the Wilson judgment. The new national agreement delivered by the Taoiseach and the Tánaiste, not yet christened and still in the incubator, has direct relevance to this committee and to the European convention because of fundamental importance to the acceptance of that agreement will be the issues concerning the rights contained under Article 11, the issue of union recognition.

The NUJ believes there is a direct link between the right to freedom of expression and freedom of association. The right to be represented by a trade union in the workplace is a right denied to many journalists, notably in the independent broadcasting sector and, not exclusively but chiefly, in the British-owned Irish newspapers. It is thus worth noting that in the recent landmark Wilson case, involving a NUJ member D. Wilson, his right to freedom of association under Article 11 of the convention was vindicated by the ECHR. Article 11 of the convention provides that "Everyone has the right to freedom of peaceful assembly and to freedom of association with others including the right to form and join trade unions for the protection of his interests".

The court held that Article 11 does not go so far as requiring an employer to recognise or enter into collective bargaining with a trade union, but it is open to each State to determine how the freedom of association is practised. The State has a positive obligation under the ECHR to ensure that all individuals have the freedom to associate and that there are mechanisms in place to allow trade union representation. The opportunity must be there for a trade union to "persuade an employer to listen to what it has to say on behalf of its members". The NUJ believes that the Wilson case is an important step in providing practical means to freedom of association. It therefore has a direct relevance to this Bill. The incorporation of human rights legislation, including the protection of freedom of association enshrined in Article 11, is consistent with Ireland's commitment under international law. I refer members of the committee to appendix C which sets out the various international instruments ratified by Ireland and the text of the relevant freedom of association provisions from those instruments. Mr. Foley will now deal with Article 10.

Mr. Michael Foley

The European Convention on Human Rights is a valuable safeguard of the right of freedom of expression. Journalists are those who exercise that right professionally but the right exists for all citizens and not just for those of us who happen to work as journalists. Article 10 of the convention has long been a touchstone for journalists. If the convention was brought into Irish law it would bring with it rulings and decisions relating to free expression based on article 10 of the convention which states:

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

Many of the rulings have been most imaginative and to some extent when brought together provide a code of conduct. The rulings of the judges in these cases can be seen as supplying an ethical code which journalists can refer to and in that way it is very valuable.

By contrast, Article 40 of the Irish Constitution has so many exemptions and caveats that most media lawyers consider it almost useless as a guarantor of press freedom. I draw members' attention to Marie McGonagle's book Media Law in Ireland which states this quite clearly.

In implementing the European Convention of Human Rights, the European Court of Human Rights is involved in a delicate balance between the rights of the individual, the rights of the State, the rights of freedom of expression and the right to privacy which is protected by Article 8. The European convention introduces a new right to privacy in Article 8. We have always argued that reporters should respect privacy so long as it does not interfere with our overriding responsibilities to the general public, such as the discussion of controversial matters or the exposure of wrongdoing.

The Human Rights Act 1998 directs British courts to, "have particular regard to the importance of the right to freedom of expression," when the issues such as privacy are raised over journalistic, literary or artistic material. This is designed to prevent powerful wrongdoers from using the right to privacy to cloak their wrongdoing. This Bill contains no such protections.

As noted in our previous submission, the court has ruled favourably in terms of press freedom on a number of important issues by giving protection to journalists who have refused to divulge anonymous sources, giving journalists access to discovered documents in court cases and by ruling that a high libel award granted by a British court was an infringement of a person's right to freedom of expression.

We stress that the rulings of the European Court of Human Rights could be viewed as imposing not only rights but also responsibilities on media organisations and journalists. Many of the rulings are quite explicit on that fact. Those who consume what journalists write have rights also. One ruling says that they often have the right to receive that information.

Along with the Wilson case it is worth mentioning that the most significant ruling in regard to the protection of sources was the Goodwin case in 1995 when an NUJ member, Bill Goodwin, took a case to Europe and won the right of protection of his anonymous sources.

Mr. S. Dooley

I ask Ronan Brady to briefly sum up our position regarding this legislation.

Mr. Ronan Brady

We see this Bill as a lost opportunity and we are deeply disappointed by it. While we strongly favour the notion of incorporation of international law by referendum I would like to emphasise that, at the very least, we would expect it to be incorporated for use in the Irish courts by legal instrument of the Dáil. That is another possibility. It is not the method we favour but it is a very minimum because in our view this falls way below what is a minimum in terms of defending human rights. We see it as a rigid refusal to incorporate international law into the Irish courts and as based on an excessive chauvinism about our legal system, a defensiveness on the part of the judicial authorities and in European terms an extremely unusual burden of forcing a trek to Strasbourg in order to vindicate a controversial right. Most of our European counterparts will not have this burden thrust upon them and we feel quite exercised about that.

As an outside observer of the legal community here I want to stress that those proposed in this Bill are isolated within the legal community. In my experience it would not be true to say that the majority of the legal community backs this particular course of action. I am an outside observer who looks at the legal community for quite a lot of my time, and the committee will have had submissions from the ICCL, the Human Rights Commission and so on and will know that that is the general feeling of the legal community here.

I agree with some of the points made by Dr. Morgan but one thing he is wrong on is that this Bill does not purely come about as a result of Good Friday. This Bill partly comes about as a result of the activity over many years of people trying to inform and renew our Constitution.

If as this Bill states, the legislation shall not affect the validity, continuing operation or enforcement of the statutory provision or rule of law in respect of which it is made, we are at a slight loss to know why the Bill was introduced in the first place because it does not seem to change very much.

Chairman

Thank you for the presentation from the National Union of Journalists. We move on to Pavee Point which is represented by Brid O'Brien and Patrick Nevin.

Ms Brid O’Brien

Pavee Point welcomes this opportunity to discuss the European Convention on Human Rights Bill 2001 and to raise our concerns about the Bill as currently drafted. Pavee Point is a non-governmental organisation which is committed to human rights for Travellers. The group comprises Travellers and members of the majority population working together in partnership to address the needs of Travellers.

The work of Pavee Point is based on two key premises: a real improvement in Travellers' living circumstances and social situations requires the active involvement of Travellers themselves; non-Travellers have a responsibility to address the various processes which serve to exclude Travellers from participating as equals in Irish society.

Many groups and individuals experience inequality, discrimination and exclusion from a wide range of services and opportunities within our society. They experience this exclusion on an individual and group basis through direct acts of discrimination. However, more importantly they experience such marginalisation because of the prejudice and assumptions of the norm inherent in systems design and delivery across every sector of society.

Pro-active and integrated strategies are required to address this situation. It requires the recognition of formal rights which seek to facilitate access and create opportunities. The introduction of equality legislation and the emerging infrastructure are welcome developments in this regard. However, Pavee Point is keenly aware that legislation alone will not address these issues. Such integrated strategies must also focus on equality of outcome, as well as equality of participation, if they are to be working tools in realising social inclusion.

The incorporation of the Convention for the Protection of Human Rights and Fundamental Freedoms into Irish law would present an opportunity to further develop a formal response to these issues and seek to address the current infringement of human rights experienced by many in Irish society.

As has been noted by previous speakers we are concerned as to how it is proposed in the Bill to incorporate the convention into Irish law. The explanatory memorandum notes that the convention is law for Ireland, but not actually law in Ireland. It further states that the Bill will make rights under the convention enforceable in Irish courts, and that this means that cases of this type will be able to be processed much more expeditiously than under the present arrangements. We query whether this Bill will achieve that, given the minimalist nature of the Bill and the impact of the convention on Irish law. Access to it to support the vindication of rights will hardly be progressed to such an extent. Pavee Point is concerned that it could become even more complex and, therefore, less accessible.

In particular, if the courts find that a statute or provision is incompatible with the convention but compatible with the Constitution, then the case would have to be taken to European Court in Strasbourg. What would happen then? There is no clarity about how that would be addressed.

To address this issue requires a different form of incorporation than that currently envisaged. Such a move would require more work initially, but investment now would reap greater long-term benefits. Since incorporation through constitutional reform appears, unfortunately, to have so little political support - and we agree with the previous speakers who believe that is the most appropriate way to go - direct incorporation at the sub-constitutional level or legislative route should be examined and undertaken.

When considering impact and redress, we are very concerned at the lack of power given to the courts to remedy situations, which are found to be incompatible with the convention. We would query why we are trying to incorporate it. Too much is left to the discretion and good will of the Government. Surely an obligation to act should be placed on the Government and time limits set out by which they should have to address issues arising.

It is also disappointing that the only form of sanction mentioned is a payment to the person whose rights were not upheld or impinged upon. Obviously such an approach should be of benefit to the person who has taken the case. It would be very important that the payments made are such that they would compensate the person whose rights have been infringed and encourage improved compliance. So why is Pavee Point disappointed? From the perspective of the individual, if there is no change in the policy or practice, the financial compensation alone could be of little use. It will give a short-term gain but there will be no change in the long-term. Similarly, given that class actions cannot be taken under Irish law and that many cases taken by individuals are seen as representative cases, whether intentionally or not, a wider range of sanctions is important to address the exclusion experienced by many because of their collective identity.

We would like to see more proactive strategies developed. The development of a culture of rights in which the State as a matter of course vets its own business, including policy development and practice implementation, is essential if social and economic exclusion are to be taken seriously. Experience to date of working with the State on a range of issues suggests that progress will only be made when there is an obligation to act. Such a development would require a programme of education for public servants and others involved in service delivery funded through the public purse.

To this end, at the very least, there should be an obligation placed on Ministers when presenting legislation to the Dáil to explicitly state whether this new legislation is compatible with the convention. Such an obligation would ensure that Departments must inform themselves of the content and implications of the convention for policy development and practice.

Similarly, and in keeping with the spirit of the Good Friday Agreement and the commitments to equality and human rights contained therein, a duty to act in accordance with the principles of the convention should be placed on the public service and all those providing services funded through the public purse. This would be in keeping with policy developments in Northern Ireland, as a statutory duty to promote equality of opportunities was placed on public authorities as part of their targeting social need policy. In the UK a duty to act in conformity with the convention has been placed on public authorities.

We have questions in relation to definitions and exclusions. Why does the definition of "organ of the State" exclude the courts? It is important that the courts themselves would be subject to the convention and use it as a means of examining and evaluating their own practice and how it may impinge, either directly or in spirit, on the rights enshrined in the convention.

It would be important to clarify that there is an expectation and duty on all those who provide public services, through the State sector or through voluntary bodies, for example schools or hospitals, to undertake their work in accordance with the convention. To this end, a definition of public authority should be included in the Bill. In the UK Act, the definition of a public authority is wide-ranging and includes "any person certain of whose functions are of a public nature".

Chairman

We had intended to break around now and return later to finish the presentations and have questions and answers. We are making better progress than anticipated and there are three groups left. Should we continue in the hope of finishing in this session rather than breaking? Would that be acceptable to people? We could then conclude by about 4.30. Is that agreed?

Deputy Kelleher

Is that how you would like to do it Chairman?

Chairman

We can make our own decision on it. Does anybody have a difficulty with that? If not we will proceed in that fashion. We will take the last three presentations and go straight to questions. I call Ms Cliodhna O'Neill from the Rehab Group.

Ms Cliodhna O’Neill

I thank the joint committee for the opportunity to present to it some of our thoughts and concerns in relation to the Bill. The Rehab Group has been providing services to people with disabilities and others who are socially marginalized in Ireland for more than 50 years, which was shortly before Ireland became a signatory to the European Convention on Human Rights.

We have a number of concerns about the Bill, many of which have already been addressed by the earlier speakers and in the many submissions the committee has already received. We would like to add our voice and perspective to those. In addition, we have a number of concerns, which have not been adequately addressed yet and should be debated. We have made a written submission to the committee and due to the short time available, I will concentrate on three major points from that submission.

In our opinion and that of many groups, the proposed method of incorporation of the Convention on Human Rights into Irish law falls far short of the ideal. Many of the submissions to the committee deal comprehensively with this issue, which surround the shortcomings of the method of incorporation. From many of these it is clear that the full incorporation of the convention into domestic law is possible and preferable. The Rehab Group favours the full incorporation of the convention and reiterates the comments made on incorporation in the submission by the Commission on Human Rights and others.

Arguments have been made both in the Oireachtas and outside defending the method of incorporation, particularly in relation to the supremacy of the Constitution and the bill of rights therein. However, there are some particular issues relating to people with disabilities, which will not be solved by this method of incorporation. The Constitution, which provides a high degree of protection of the rights of the person, also contains some specific anomalies which have been recognised both nationally and internationally, in particular the inconsistency of Article 40.1 of the Constitution on equality before the law with the principles of non-discrimination, which were set out in Articles 2.2 and 3, have been noted in this regard. Recommendations to amend this article have been made by the review group on the Constitution, the Commission on the Status of People with Disabilities and the Committee on Economic Social and Cultural Rights of the United Nations in its concluding remarks this year to Ireland's second report and previously to Ireland's first report. If the European convention is incorporated by means of this Bill, it will further highlight the need for a constitutional amendment protecting equality of persons. This will still require urgent attention and will not be therefore addressed by this method of incorporation.

A second issue which is very important to the group and to many other organisations within our sector is the lack of clarity provided in the definition of "organ of the State", which for the purposes of section 3 obliges such organs to perform their functions in a manner compatible with the convention. The significance of this has not been given sufficient attention in the debate, although it has been discussed. The current definition allows for a lack of clarity as to what is covered by the convention. It does not allow for clear understanding of the extent of the scope of the legislation and the obligations of particular sectors under the Act. The observation of the Human Rights Commission in relation to the definition of the organ of the State is that the definition should be broader, encompassing semi-public authorities such as regulatory bodies, hospitals and schools. It specifically states that the crucial test should relate to whether the organ is engaging in whole or in part in public functions.

In 2002, the Committee on Economic, Social and Cultural Rights of the United Nations stated its concern about the persistence of discrimination against persons with physical and mental disabilities, especially in the fields of employment, social security benefits, education and health. These are areas covered by the convention, which would be delivered by public bodies and by private bodies under the auspices of the State. A specific definition as to what constitutes an organ of the State would both promote clarity and increase the scope of protection under the Act. A specific definition is needed and perhaps a model for this could be found in the definition of public body, which is used in the first schedule of the Freedom of Information Act 1997 and its subsequent amendments. This lists all the bodies covered under the legislation.

It is worth noting the recommendation of review group of the Constitution that the constitutional obligation to respect equality should not be directly enforceable against persons or bodies other than the State or public bodies. Moreover, there should be no enforceable constitutional obligation on the State to ensure respect for equality by persons or bodies other than the State and public bodies. It is clear that in the Constitution, the need to respect equality applies only to public bodies. Adopting a broader definition in the Bill, therefore, would ensure that all bodies, which are judged to be conducting public business, would come under the convention, thus greatly broadening the scope of the Bill and strengthening the adoption of the convention as these organs would be required to be made aware of their obligations under the convention. We believe this would lead to a higher rate of proofing under the Act and a much greater public awareness of the provisions and the protections afforded by it, thereby minimising breaches and ensuring greater use of the convention.

I also wish to mention the lack of provision in the Bill for convention-proofing of new legislation and for a monitoring obligation. This Bill does not create any obligation to screen new legislation which is brought before the Dáil for compatibility with the convention. In the UK Act, there is a provision for this and we feel it would be a very useful addition. It would ensure that these issues would be considered at drafting stage. Familiarity with the provisions of the convention would increase with an education programme similar to one embarked on in the UK for all public bodies which will be dealing with the Convention.

It is also evident from Ireland's experience with various international treaties that a structured monitoring system is a useful tool, both in ensuring compliance by authorities and raising general awareness of the rights which exist under the relevant convention. The lack of provision for such a monitoring and audit requirement in the Bill is a serious omission which we consider should be rectified. Its inclusion would have far-reaching consequences, rendering the entire convention far more relevant and ensuring that theoretical rights translate into practice by all agencies which are providing State services.

In conclusion, we consider that the method of incorporation chosen does not place the standards which Ireland agreed internationally 50 years ago at the centre of our human rights policy. Instead, it merely pays lip service to these ideals. We do not understand why Ireland should be afraid to strive to attain the ideal standards for the protection of human rights and to become a model of best practice. We do not believe this measure will achieve that. Thank you.

Chairman

Thank you, Ms O'Neill. The next speaker is Ms Annie Ryan, representing the Association of Mentally Handicapped, Portrane.

Ms Annie Ryan

I have supplied a document which gives the background to our submission. I will not dwell on the relevant Acts and articles or the detailed contents of the Bill. I am not unduly concerned about the means adopted to make our laws relevant to the kind of people with whom I am concerned. As one of the oldest people at this meeting, I have a distinct recollection of copies of the Constitution, to which we are so greatly attached, piled high in every room at home. As my late father was very active in promoting the Constitution, his particular political hue may be easy to guess. In the intervening years, I have often thought how disappointed he and those associated with him at that time would be now. I regard it as an extraordinary coincidence that, at one particular time, two grandsons, his own and the grandson of one of his associates were in the same place in Belfast where we had to go to get a service - the Rudolph Skaage centre in Glencraig. The two grandsons were in that place in Belfast because there was no service whatever in this State for them. They were not the only ones from this part of Ireland, but it struck me as an extraordinary coincidence. Later on, they shared the same unit in St. Ita's, Portrane. I saw one of them - not my son, but the other boy - sitting on the floor, with no furniture, for several years.

I have also stood in a seclusion room in St. Ita's, Portrane, and seen blood pouring down the walls. Thankfully, that patient was not a relative of mine nor was he the other grandson I referred to earlier. "Seclusion room" is a euphemism for a padded cell. There was a particular boy at St. Ita's who spent a lot of time in seclusion rooms. He damaged himself and there was blood on the walls. He died a year later in that same room.

In the meantime, I have stood for election to the Dáil in order to draw attention to the situation. I am here today to draw attention again to the same situation. What is wrong with our Constitution in that there is no protection in it for the marginalised? I know it is very important that the legislative powers should be strong. However, I submit that our method of ruling the country - that is, the party political system, the Constitution, the Executive and the Judiciary - cannot deliver the protection we demand. That is because, in a political party - and my father was in politics for a long time - one does not get the necessary backing for issues such as mental illness or mental handicap. One may get support for swimming pools and, probably, for sports centres.

One is much more likely to get support for things which are already catered for in the Constitution, such as property rights. If one raises the issue of water rates, it will result in a party discussion, but one will not get a party policy based on the marginalised. Therefore, it will never reach the Legislature as it will not be put forward by the Government of the day. Although independent, single-issue candidates may be elected, unless they are amazingly lucky, such as in Deputy Healy-Rae's situation in the last Dáil, they will not be in a position to exert sufficient pressure to secure action on their objectives.

Over the years, I have lobbied the Dáil and many fine men have helped as well as they could. However, they were totally powerless to really change the system. I will give an example of what I am referring to. We have been working under the mental health legislation of the 1940s until very recently. In fact, we are not yet finished with it because the new Act is not yet working properly and will not do so for another ten years, or so I am told. Therefore, from 1945 until the present day, we have had a system which allows what I witnessed to happen and we have no redress. A mental health Act was passed in 1981 but never enforced. That could not happen to any other category of people.

My point is that it is not possible for the Dáil, under its present system, to vindicate the rights of marginalised groups, of whom there is substantial representation at this meeting. What will be done about this matter? Will the views of international authorities be rejected? In Geneva last year, I heard the Irish State's representatives arguing that they could not incorporate economic, social and cultural rights because of our Constitution. In my submission, I have set out the reaction which that produced. The State's case really made me cringe with shame when it was stated that the people in Ireland wanted that situation, having thrown out a Bill put forward by the Labour Party on the incorporation of economic, social and cultural rights. That interpretation of the wishes of the Irish people was based on a party vote in the Dáil.

What I am referring to is the kind of hypocrisy which pretends we have a system when, in fact, we have no such system. When the responsible body in Geneva told us we had not a system, the concluding observations were not even published, as is required under our covenant of agreement. Did members of this committee receive copies of that statement? I doubt it. Was it placed in the Oireachtas Library? I am too old to have patience at this stage. There are people in mental hospitals and other institutions, both private and statutory, who have only one life to live. If this committee and the Legislature do not feel they have a duty to deliver that life to those people, then I give up.

Chairman

Thank you very much, Ms Ryan. The final presentation today is from Dr. Gerard Hogan.

Dr. Gerard Hogan

I thank the Chairman. I welcome this opportunity to speak to the committee on the incorporation of the convention. Like other speakers, I am in favour of its incorporation and believe this is long overdue. However, I cannot help thinking, while listening to some of the excellent presentations this afternoon and on other occasions, that, with great respect to those who spoke, people have perhaps an exaggerated view as to what the European Convention on Human Rights would actually deliver, however it is incorporated into our law. There is a substantial overlap between the guarantees contained in the Constitution and the convention. It is notable that in some areas - notably Article 10, which with press freedom - the Strasbourg court has forged significantly ahead of the Irish courts. However, there are other areas, some of which are mentioned briefly in the paper I have provided for the committee, where the Constitution is distinctly superior.

I want to discuss the mode of incorporation of the Bill. There is a major and separate debate as to whether socio-economic rights ought to be protected in any fundamental law. The European convention does not do that nor, with one exception, does the Irish Constitution. In fact, there are few documents in the world which confer justiciable, legally enforceable socio-economic rights that can actually be enforced. While I am in favour of the kind of protection to which Ms Ryan referred so eloquently, I believe that if we are to go down that road it must be by way of constitutional amendment, and the net effect of that will be a huge transfer of power from this body and from the Government to the judicial organs of State. I am happy to live with that, but it has to be acknowledged and recognised by those who say we should have enforceable socio-economic rights, whether at convention level or Constitution level.

The Bill follows in broad measure, with some exceptions, the model contained in the UK Human Rights Act in that it opts for a declaration of incompatibility. In other words, the Irish courts will be empowered to say that a particular law is incompatible with the convention. There is a big difference between the British system of incorporation, which involves incompatibility, and the system of invalidity which is the ultimate remedy provided by the Constitution. A declaration of invalidity is a judicial death certificate for the law - it affects the entire State and everybody in it - whereas a declaration of incompatibility is simply a judicial declaration to the effect that the law is contrary to the convention, and effectively requesting Parliament - whether in the UK or the Oireachtas - to change the law. In practical terms, that is a significant difference.

If one wants to go further - many speakers this afternoon want to do so - this can only be done by constitutional amendment. There cannot be a shadow constitution involving the European convention, with power to declare laws to be contrary to the convention. We cannot go further without a constitutional amendment. If we want to incorporate it at constitutional level, that is fine; I would vote in favour of it. However, the Bill should not suffer the criticism which it has been subjected to on the basis that it does not go far enough. It does not go any further because it cannot do so. To go any further would be de facto to amend the Constitution indirectly by legislative amendment. If that is wanted, there should be a constitutional amendment.

The other criticism of the Bill is that this method of incorporation renders the State, in terms of human rights protection, somehow inferior to the UK. I find that argument difficult to understand. There are some differences between the Bill and the UK Human Rights Act, but there is still the essential rule contained in both systems of a declaration of incompatibility. In addition, in this State the Constitution will be protected. Such a constitution, for good or ill, does not exist in the UK. I find it difficult to understand how it can be said that the level of human rights protection is to be diminished in some way by this method of incorporation.

I want to comment on the method of incorporation in other countries, particularly in the light of the comments of Mr. Brady or Mr. Foley of the NUJ suggesting that this method of incorporation reflected excessive chauvinism. With respect, the NUJ is wrong in that regard. One of the first countries to incorporate the convention into domestic law, Germany, did so in 1954 at sub-constitutional level. The German constitutional court has never invalidated a law by reference to the European convention. It behaves in many ways like the Irish Supreme Court in that it refers to the jurisprudence in Strasbourg and draws on that, but its remedies are always based on the German constitution. In most countries in Europe where the convention is superior - these are countries with monist systems - treaty law generally takes precedence over ordinary law. That is the basis on which, if at all, the convention is superior in France or the Netherlands. However, there is no common law country which operates a monist system. If Ireland was to adopt such a system, there would be a radical change in our law. The system of incorporation proposed by this Bill is the furthest we can go at present. If we want to go further - I am in favour of doing so - there must be a constitutional amendment. Arguments based on excessive chauvinism or comparisons to the UK do not hold water.

I was a member of the Constitution review group which reported in 1996. It considered these issues at great length and its recommendation - to which I respectfully adhere and urge the committee to accept - was to incorporate the convention at sub-constitutional level, but to make progress to improve and strengthen the fundamental rights provisions of the Constitution and draw, where necessary, on the wording of the convention or other international human rights instruments. That should be done on a case by case basis over the next few years.

I am happy to report that there has been one instance where that particular recommendation has been taken, namely the Twenty-first Amendment of the Constitution Act 2001, which went further than any international human rights instrument and abolished the death penalty in all circumstances. In that respect, it went further than the European Convention on Human Rights. That is the type of constitutional amendment I would like to see furthered.

If we want at the same time to incorporate the convention at constitutional level, that should be done. However, it must be recognised that Strasbourg, not the Supreme Court, would effectively be the ultimate arbiter of fundamental rights in the State. If people want that, it is fine by me. However, the implications should be recognised.

Chairman

I thank Dr. Hogan. I propose to take questions from Members. It might be appropriate to take all the questions together and then obtain responses.

I thank the groups for their presentations. With regard to last week's presentations, the committee met a lot of lawyers, both individuals and groups representing the Bar Council, the legal aid group and so on. Most of them, as Mr. Séamus Dooley said, were in favour of change and greater incorporation of the European Convention on Human Rights into our law, and possibly into the Constitution. They pointed in particular to the UK method and felt that this was the way business should be done. In that context, I would be interested in hearing a little more from Dr. Morgan. Perhaps Mr. Dooley will be able to draw on some UK experience also.

Deputy McGinley

I would like to make a few comments rather than ask questions. As a new member of the joint committee, I thank the various delegations for their submissions and the opportunity to listen to such well researched views on this important matter. I understand some groups made presentations to the committee in the last Dáil and appreciate that it must be frustrating to have to do so again. There may be a benefit in reinforcing the effectiveness of the initial submission - that is the only thing I can say in favour of coming a second time.

The delegations which have spoken today represent the views of diverse groups, including some from the North. I detected a number of themes common to all groups such as the importance of incorporating the provisions of the European Convention on Human Rights into domestic law. It is unbelievable, given that Ireland was one of the first signatories of the convention over 50 years ago, that it has not yet been incorporated into Irish law. It is strange that Ireland is not one of the 47 European countries which have made legislative provisions in this regard. I do not know if there is an explanation for this omission, but politicians from all parties must carry some responsibility for it. Perhaps my party carries less responsibility than others, about which Deputy Hoctor will have something to say. The various interest groups represented here today and last week seem to agree that not only is this provision too late it is also little more than a half measure. They are greatly disappointed, especially after waiting so long and having such high expectations, and believe the Bill does not go far enough. They have great experience, having worked for the marginalised for many years, and have been articulate in expressing their opinions.

Dr. Hogan, the representatives of the NUJ and Dr. Morgan raised the possibility of a referendum on human rights protection, a matter on which I would like some clarification and elaboration. In what way do they believe a referendum would be more preferential than ordinary legislation passed by the Oireachtas? How would a constitutional amendment strengthen or make more effective our provisions in this area?

Deputy O’Connor

I wish to be associated with the warm welcome extended to the groups present today. I have been able to renew my friendships with some old acquaintances, including members of the NUJ. I am sorry that Mr. Martin Naughton has left because I was going to tell him that I worked with his sister 34 years ago, which proves to me that I am ageing. I bring to my role as a Deputy the various experiences that I have had. I remember that Ms Barbara Naughton taught me a great deal about disability and discrimination as the nature of our work brought us into contact with such problems. As my political career developed, I came into contact with the Irish Traveller Movement, Pavee Point and other organisations.

My colleagues on the joint committee will agree that it is important that those here to make representations should understand the business faced by the committee is quite complex. Some groups have been more critical of the legislation than others, which is fair enough in a democracy, but each of them has shown an understanding of the committee's task. As members of the committee, we have a responsibility to gather together the ideas and suggestions we have received, a task we cannot complete today. It is important that we listen to the various submissions made in order that we can piece together the various strands of the matter. I am pleased to receive communications from groups which have a view on the legislation. While I am not an expert, as I said to somebody earlier, I try to have a politician's appreciation of these matters. I wish to make a contribution that shows that I have reflected on what has been said to me, but it is not always easy to do so, especially when one listens to differing views. As I walk the streets of Tallaght in my constituency, I hear many views about many issues.

It is important that the joint committee uses this opportunity to reflect on the Bill and that the groups before us understand they are entitled to make their views known. I hope we can find a way to bring some of the ideas put forward to the Bill when we discuss it on Committee Stage. I look forward to making a contribution and invite those present to decide whether I have got it right. I congratulate the groups which have come here today on their excellent presentations and wish them well in their endeavours.

Deputy Hoctor

I apologise for being late for this meeting but it was unavoidable. I thank the groups which have attended today, including those which have already left. Like Deputy McGinley, this is the first time that I have been a member this committee as I was elected to the House for the first time last year. While many delegations do not receive a satisfactory response when they attend committee meetings, their contributions afford a valuable opportunity to take on board their ideas and suggestions. Many impressive points have been made. Ms Annie Ryan referred to the fact that many marginalised persons have made presentations to the joint committee. It is a learning experience for my newly elected colleagues and I as it provides us with an opportunity to examine the issues. Having worked with people with disabilities at Stewart's Hospital, Palmerstown, I appreciate the arguments made by organisations involved in the sector. I also welcome the excellent briefing prepared by the National Union of Journalists.

Members of the joint committee asked the Minister the reason the European Convention on Human Rights has not been incorporated in Irish legislation, but I am not sure that we received a clear answer. He mentioned the fact that, generally speaking, the provisions of the Constitution were seen to be sufficient. As a result of the submissions made to the committee in recent weeks, however, we have learned that the Constitution is not entirely sufficient. As new Members, we welcome as many briefings as possible in order that we can learn more about the matters for which we are responsible. Public representatives have a duty to take seriously the arguments made to us and ensure a greater quality of life is enjoyed by those represented by the groups which have attended meetings of the committee.

Chairman

I propose to allow representatives of the groups present to make a short response if they wish to do so. I ask that only one representative of each group should speak. I call Mr. Dooley of the NUJ.

Mr. Dooley

Specific questions were asked in relation to the experience in the United Kingdom and Ireland and, with the agreement of the Chair, I intend to allow my colleague, Mr. Barnacle, to answer them. He is a legal adviser who has worked in both jurisdictions and has an expert knowledge of this area.

Mr. Peter Barnacle

I apologise for my earlier departure and thank the joint committee for its tolerance of the disruption that occurred when I returned.

There has not been a great deal of court activity in relation to the Human Rights Act as it has been incorporated into UK law, but there are numerous reasons for this. It is too early to expect to see much activity, given that there has been a period of incorporation of about a year and a half. Cases must work their way through the courts system and it will take some time to reach the highest level. Given that in the legal culture litigation is advocacy driven, it will depend very much on what cases are brought forward and how creatively the Act is used. There has been some activity in regard to the privacy provisions incorporated and we will have to wait and see what the final outcome will be when cases get to the higher courts in the English system.

In regard to incorporation in Irish law, the issue seems to be what weight is given to the convention, as applicable in Ireland. In a quasi-constitutional sense, it obviously has a permanency which it would not have if it was simply seen like any other in legislation. The effect of this is that a political decision must be made, given the different ways in which it can be used by the court. Traditionally, we have a strong history of deference to the will of the Legislature and so on. In some ways, the incorporation of these types of statutes runs against that trend. Therefore, we should expect that there will be a significant period before the new ability to be able to do things percolates through the system, regardless of which alternative is used here or has been used in the United Kingdom.

Dr. Hogan

I am rather surprised by Mr. Barnacle's comment that there is a high degree of deference shown by the courts to statutes of this body. By my reckoning, upwards of 130 statutes have been found to be invalid since 1937. It depends on one's point of view - perhaps that is not sufficient for some. I, therefore, find the statement that there is a high degree of deference shown by the courts to decisions of the Executive and Oireachtas somewhat surprising.

No one is talking about the colossal volume of constitutional litigation daily in the courts which involves all the various issues about which we have spoken. Certainly, there are deficiencies in the Constitution and our constitutional litigation. Certainly, there are cases where the court in Strasbourg has done things better, but no one talks about the fact that we are significantly ahead of the posse and have been for a long time.

On Article 10 of the convention, I am involved in a case awaiting judgment from the European Court involving religious advertising, which we lost in the Supreme Court. The Supreme Court is applying exactly the same methodology in terms of proportionality, free speech and the weight to be given to competing values as the European Court. It will be interesting to see when the judgment is delivered next month whether the European Court, in the first real free speech case from Ireland, will second-guess the decision of the Supreme Court. It may do so. I hope it does because I am on that side. However, it may not.

My final comments relate to the referendum. If this is to happen, it must be done in one of two ways. First, there could be an amendment very much like the ones with which we are familiar to the European treaties where we effectively say Ireland is obliged to adhere to the European Convention on Human Rights and any law that contravenes it is invalid. That is one model. The other model is the one recommended by the Constitutional Review Group. It involves picking and choosing a version of the convention, with other international human rights conventions, where there is a kind of audit of fundamental rights provisions. It picks those provisions of the convention and international human rights treaties superior or better expressed than in the Constitution. That is the model we recommended to the Constitutional Review Group.

Dr. Morgan

I cited the Constitutional Review Group before Dr. Hogan came in. I prefer the first model, that is, the Swedish model because we are only talking about an amendment of the Constitution, whereas both he and the Constitutional Review Group were essentially talking about rewriting the Constitution, or at least its fundamental rights provisions. The Government should have begun talking about the constitutional amendment five years ago when it spoke about human rights.

Perhaps there is one little piece of wisdom with which I could leave the joint committee - try not to get hung up on the word "incorporation" because, legally, it is an incorrect term. The issue is not grabbing something in an international agreement and domesticating it. It is giving something which is an international agreement domestic effect. I would not like people to think that if incorporation is seen as being good, if one does not incorporate, it is seen as being bad. The question is whether there is a right to which a claimant or plaintiff can gain access. It does not matter who wrote it in the first place. The question is how does domestic law in this dualist system reach out to rights in a multilateral agreement in a treaty and use them?

There has not been incorporation of the European convention in the United Kingdom and this Bill does not incorporate it. However, that is not its weakness. The issue is simply whether claimants have access to rights, regardless of who writes them and where they originate. The answer is that they have access to new rights in the United Kingdom as the Human Rights Act fits into the UK Constitution. However, it was wrong of parliamentary draftsmen here to copy the British Act because the Irish constitutional framework is entirely different. Two big mistakes were made at the beginning - one was trying to avoid a constitutional amendment and the other too cleverly copying part of the Human Rights Act 1998.

Mr. Michael Foley

I want to refer to something Dr. Hogan said. I do not think the case in which he is involved is the first under Article 10. There was a case brought under section 31 ten years ago——

Dr. Hogan

It is the first to be considered by the European Court. The section 31 case was declared inadmissible.

Mr. Foley

Unfortunately, it was declared inadmissible at the time.

Chairman

I thank everyone for coming and their submissions. If any group or individual would like to forward draft amendments to the proposed Bill, we would certainly welcome them. If they are forwarded to the committee secretariat, they will be circulated to members. Transcripts of all the proceedings will be available in due course. Copies of today's and the previous day's transcript will be available. Copies of submissions are also available.

I thank the delegations and members. Second Stage of the Bill must be taken in the House first. Committee Stage will then be taken here. We do not yet know the timescale.

The joint committee went into private session and adjourned at 4.45 p.m. until 2.30 p.m on Thursday, 23 January 2003.