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Seanad Éireann debate -
Friday, 6 Jul 2001

Vol. 167 No. 13

Human Rights Commission (Amendment) Bill, 2001: Committee and Remaining Stages.

Section 1 agreed to.
Question proposed: "That section 2 stand part of the Bill."

I welcome the appointment of more female members to the commission by the Minister. It is important that the commission reflects our society. I refer to the enactment of the Bill in a European context.

An Leas-Chathaoirleach

That would be more appropriate to Fifth Stage.

Question put and agreed to.
Title agreed to.
Bill reported without amendment and received for final consideration.
Question proposed: "That the Bill do now pass."

I welcome the legislation. The Minister has been courageous in steering it through both Houses. He has achieved a unique consensus on a complex issue which he hopes will hold. The legislation derives from the Good Friday Agreement and is unique in that Europe in recent years has attempted to come to grips with human rights. Human rights do not form part of the legislative framework of the Treaty of Rome. It is a relatively new concept. While the European Court of Justice is the benchmark for most of the appeals on the rights of citizens, the European Convention on Human Rights is used as a benchmark rather than a legal instrument.

I have had the privilege of representing the Oireachtas over the past 12 to 18 months in a substitute capacity in the drafting of the charter on fundamental rights. It will be put before the 2004 Intergovernmental Conference which will decide whether the articles of the convention will be incorporated into the Treaty of Rome. The Minister said he did not believe the Bill should be more expansive and some are hoping many sections of the European Convention on Human Rights will be incorporated into Irish law. He also said the Constitution is sacrosanct in this regard and we are somewhat hidebound.

However, important work was carried out on the convention in drafting the charter on fundamental rights in the European Union. Will the charter have any impact on Irish law? Is this legislation being introduced parallel to the charter or is it more progressive? This is a matter for Government which the Minister must address in a few years. However, it has arisen in the context of the Nice treaty and there will be further debate on its implications for Ireland and other member states. If the charter is incorporated into a European constitution, will the legislation stand up? If a decision is taken in this regard, will Ireland already have in place far reaching and progressive legislation?

I thank the Senator for his intervention. The objective of the Bill is to establish the commission in this jurisdiction. Originally, the legislation formed part of a larger Bill to deal with the question of incorporating the European Convention on Human Rights into Irish law. Ireland ratified the convention 51 years ago. It was one of the first countries in Europe, if not the first, to do so but it was never incorporated into domestic law. That meant any person who wished to pursue his or her rights under the convention was obliged to exhaust all the procedures involved in the Irish courts first under the Constitution and go all the way to the Supreme Court. There was then an obligation on him or her to go to the European Court on Human Rights in Strasbourg.

Senator Norris was one of seven such litigants and eventually successful. His case related to the question of the decriminalisation of homosexuality. The European Court of Human Rights held with Senator Norris.

The position following the incorporation of the European Convention on Human Rights into Irish law will be that any person who wishes to enforce his or her convention right will be in a position to take his or her case in an Irish court. In other words, he or she will not be obliged to exhaust all the court processes here. That will obviate the necessity for large expense and so on. I do not anticipate a large rush of cases in the Irish courts under the European Convention on Human Rights any more than there were before the European Convention on Human Rights when an individual was obliged to go to Strasbourg. The reason is that under our 1937 Constitution certain human rights are enumerated; approximately 19 are set out specifically. Since the enactment of the Constitution, the Supreme Court has been liberal in its interpretation of provisions in the Constitution with a view to building up human rights which are not specifically set out in the Constitution. Between case law and the rights specifically set out in the Constitution, there is a considerable body of human rights or a bill of rights built up. It is different in other jurisdictions where, to use Senator Taylor-Quinn's words, there is no written constitution.

The issue of whether there will be an increase in litigation demands a wait and see approach. While one can obviously expect an increase, I do not believe it will be major. It is a Pandora's Box in that it is difficult to call. However, a considerable number of authorities will say that the rights enshrined in the Constitution and which have been built up by the Supreme Court over the years are more expansive than the rights already contained in the European Convention on Human Rights. That is not to say there are not rights which are contained in the European Convention on Human Rights which are not contained in the Irish Constitution of 1937.

It is felt that the incorporation of the European Convention on Human Rights into Irish law will have some far-reaching consequences at an administrative level, for example, the local authorities, health boards, etc. In that context, it may touch the citizen in a tangible way where an individual feels he or she was hard done by in an application for a medical card or a council house. These are real problems which face people every day of the week and which could cause this bubble, which many people might consider the incorporation of the European Convention on Human Rights into Irish law to be, before people's faces to burst. That is where it becomes important and relevant to people.

As regards the Charter of Human Rights agreed at Nice, that is not a convention as such but a policy statement. Senator Mooney asked where it stands. It is a statement of policy agreed at Nice and how it will progress is a matter for 2004. Only then will we know where that will go. Whether it will become part of international law and subsequently part of domestic law is a matter which has not been addressed to the best of my knowledge, but it must be considered in time.

We are setting up the Irish Human Rights Commission which will interact with the Northern Ireland Human Rights Commission in terms of the issue of human rights. The commission here, as in the North of Ireland, is not intended to be a limb of the Government but to interface between the public and the Government. That is why the selection process has been difficult and complicated. The Government was obliged to set up a commission which would interface with the public and, although the Government formed the commission, it was of crucial importance that the commission should not only be in a position to assert its independence but should be seen to be independent. In that context, we adopted a novel approach by setting up a selection committee which brought forward names. The Government considered the names and picked nine people. The selection committee sent 16 names to the Government and some were appointed, while others were not.

At a conference in Dublin Castle before Christmas it became clear to me that non-governmental organisations, for example, were cross about the fact they did not have adequate representation on the commission. I then decided immediately to change the legislation and the membership of the commission because if it was not going to be inclusive, it would be strangled at birth and it would not be much use to anyone. I think we have got the balance right.

Mr. Justice Donal Barrington has shown vividly that he feels independent and he has asserted his independence. The commission will also assert its independence. That is not to say the commission will go overboard. I am sure the members of the commission are eminent and sensible people. However, there is an opportunity, as I said in the other House yesterday, to shine a light into a part of Ireland and parts of our society where lights have not been shone before. That is welcome. We have a comprehensive bill of rights built up by the Constitution and the Supreme Court over the years.

The next stage of this debate will be the incorporation of the convention. That will be a more difficult debate. Views have been expressed that our approach as published is less expansive than the British approach. However, I take issue with that. The British approach is more minimalist. I am not being critical of the British approach in terms of its operation. All these matters are for another day.

In the meantime, I wish the Dáil committee well in its work in taking the submissions from the various groups. We separated this legislation from the incorporation legislation to give them the opportunity, because they requested it, to discuss this issue. Various groups have expressed an interest in putting forward their views. There is no point in anyone pretending that he or she is omnipotent in relation to this or any other issue. The groups which will have the opportunity to address the committee will appreciate the fact that the Houses of the Oireachtas have given them that opportunity.

I compliment the Minister on changing his mind. It takes courage and character for someone in a ministerial position to change a position he or she held. I compliment him on listening to the NGOs regarding the composition of the commission. I hope that will ensure it is effective and inclusive and that it works to the community's best advantage.

I also agree with his comments about the minimalist approach of the British. A minimalist approach to human rights issues was adopted at the meetings I attended with representatives of the British Government. We will have a long debate on that matter another day.

An Leas-Chathaoirleach

We are well past Second Stage.

I am aware of that. I know your tolerance, a Leas-Chathaoirligh, is not the best. I wish the Minister and the commission every success and look forward to an early debate on the Human Rights Commission.

Question put and agreed to.
Sitting suspended at 12.05 p.m. and resumed at 1 p.m.