Seanad Éireann debate -
Wednesday, 18 Jun 2003

Vol. 173 No. 10

European Convention on Human Rights Bill 2001: Second Stage.

Question proposed: "That the Bill be now read a Second Time."

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

I am very pleased to be in the Seanad this morning to discuss on Second Stage the provisions of the European Convention on Human Rights Bill 2001. As Senators may be aware, the proposals in the Bill arise from the Government's commitment in the 1998 Good Friday Agreement to bring forward measures to strengthen and underpin the constitutional protection of human rights in the State. The question of incorporating the convention into domestic law has had to be further examined in that context. Before I elaborate on the Bill's detail, I would like to deal generally with its wider background and outline some of the complex legal and policy issues which had to be considered and resolved in drafting it.

The Convention on Human Rights and Fundamental Freedoms was adopted by the Council of Europe in Rome and signed by the then Minister for External Affairs on 4 November 1950. Its provisions were formally ratified by Ireland on 25 February 1953 and the convention entered into force on 3 September that year. At that time Ireland also accepted the articles in the convention which permitted the right of individual petition to the Court of Human Rights in Strasbourg by citizens and states against states involving alleged breaches of the convention. States generally were very slow to take up this option. At the time the convention came into force, Ireland and Sweden were the only contracting states permitting such petitions.

The only basis on which the State could ratify the European Convention on Human Rights was that it was compatible with the Constitution. There was no sense in which the State could ratify the convention if it was at variance or inconsistent with the Constitution. On occasion some who should know better seem to think that the convention is somehow superior to the Constitution in Irish law. Nothing could be further from the truth.

It should be acknowledged – something not often done, especially by some who specialise in human rights – that the Constitution is the only republican constitution in the European Union with a set of human rights provisions at its heart which are unalterable except at the insistence of the people through a referendum on foot of parliamentary legislation. It is also the only such constitution with human rights provisions justiciable by the people against the State in independent courts, even to the point of over-riding the legislation of the Oireachtas and any Act of any Government or any aspect of the Executive power of the State. The Irish people are the only people in Europe who have a republican constitution with that mechanism at its core. Sometimes people believe we have an inferior or inadequate system for the protection of human rights.

De Valera's achievement in 1937 was effectively the blending of parliamentary democracy with the American system of court supervision of a written constitution.

That was a huge achievement which should not be devalued. Unfortunately, one reads newspaper articles these days by people who believe the convention contains a different source of human rights for the country superior to the Constitution in both content and legal status. Nothing could be further from the truth.

It is also wrong to imply there is an entire corpus of convention rights wholly distinguishable from the personal rights accorded to Irish citizens under the Constitution. This is also trotted out regularly as the basis for criticism of this Bill, among others – that in some sense we are short-changing the people because we are not incorporating into Irish law a corpus of rights floating around and which only require political will and ambition to anchor and hold for the people of this jurisdiction.

There is only one right to freedom in our law, the right guaranteed by the Constitution. The same applies to the right to free speech and other rights, numerated and unenumerated, in the Constitution. They exist as a matter of constitutional right and entitlement for citizens and do not derive from or depend on the convention. People speak about the convention right to family and marriage. I emphasise that the Constitution deals with that issue also and that the only reason we subscribed to and ratified the convention was that it was consistent with the Constitution, not vice versa.

In general terms, the convention protects what are universally accepted as the basic civil and political rights in any democratic state. These are the right to life; the right to freedom from torture and inhuman or degrading treatment or punishment; the right to freedom from slavery, servitude or forced compulsory labour; the right to liberty and security of the person; the right to fair and public trial within a reasonable time; the right to freedom from retrospective criminal law and no punishment without law; the right to respect for private and family life as well as home and correspondence; the right to freedom of thought, conscience and religion; the right to freedom of expression; the right to marry and found a family; the right to an effective remedy for violation of rights as set out in the convention and prohibition of discrimination in the enjoyment of those rights.

Senators will note that most of the up-to-date texts of the convention and its four main operational protocols, also being given effect in our law, are appended to the Bill for ease of reference. The 1952 protocol deals with property, educational and electoral rights. The fourth protocol contains, among other things, the right to freedom of movement and also prohibits individual or collective expulsion of nationals. The sixth protocol deals with the abolition of the death penalty while the seventh contains procedural safeguards concerning the expulsion of lawfully resident aliens, the right of appeal in criminal matters, compensation for wrongful conviction and the right not to be punished twice for the same offence, and equality between spouses.

When the State decided to sign up to these international agreements, an important factor to be taken into account was that we were in a position to meet our obligations under them by virtue of having a Bill of Rights under the 1937 Constitution. I make no apology for stating again and again that we are alone among the member states of the European Union and other states on the Council of Europe in having a written Constitution which embodies a system of fundamental rights chosen by the people which are unalterable save by the wish of the people and made superior and justiciable at the instance of the individual over all other law both in theory and in practice.

Our excellent human rights record before the Court of Human Rights, unrivalled in the Council of Europe, is testament to the efficacy of the protection we provided for ourselves before the convention was ever open for ratification. Its hallmark has been its development by the superior courts through the doctrine of unenumerated personal rights and largely by means of judicial review of legislation. It goes without saying an important consideration for any government contemplating taking on board the convention's provisions is the relationship in that government's legal system between international law, as represented by the convention, and its own internal domestic law.

Members would be advised to bear in mind that in the civil law systems in Europe, there is a hierarchy of legal rights and obligations in the majority of cases. Under the civil law system, the constitution comes first, then international treaty and then domestic law. That is not the case under our system because this is a common law state and our system is different. At the top comes the Constitution, then the Oireachtas and its legislation and finally international agreements in so far as they are made part of our law by the Oireachtas. We have a different fundamental philosophy of where international treaty obligations come on the pyramid of the legal hierarchy. It is expressly provided in our Constitution that no international agreement is part of our domestic law save to the extent determined by the Oireachtas, which must act in accordance with the Constitution.

In some states, for example, it is accepted that there is no real separation between international and domestic law and both are regarded as part of a unified system. Under this monist theory, the international rules may well take precedence over national provisions. Other systems, however, including that in Ireland, adhere to the dualist theory and they regard international law and domestic law as totally separate. Under these systems, international law does not become part of the internal law unless it is explicitly made so. What this means is that rules embodied in an international instrument, such as the convention, cannot be enforced in our courts unless and until they are incorporated into our law by an Act of the Oireachtas.

While the convention is law for the State on the international plain since 1953 – citizens were given right of recourse to the court in Strasbourg since then because Ireland was confident it would be fully compatible with its Constitution – its provisions do not apply with the force of law within this State. That does not mean, however, that the convention is merely an academic source of rights protection. By virtue of the State's acceptance of the right of individual petition, cases can and have been on occasion brought to Strasbourg alleging that the State is in breach of the convention in particular respects. The decision of the court in these matters is binding on the State, but, under our constitutional system, it is the prerogative of the Government to decide precisely how incompatible provisions of national law or administrative practice are to be reconciled with the court's ruling.

When I refer to Government in this sense, I mean the Government and the Oireachtas. Examples of how this works in practice may be found in areas of Access to Justice: An Introduction of the Scheme of Civil Legal Aid, advice following the Josie Airey case in the late 1970s and the changes in the criminal law on homosexual offences as a result of the Norris case in 1988.

There are some disadvantages with this method of vindication of convention rights. The process requires that all domestic remedies be first tried and exhausted before the matter is pleaded in Strasbourg. That can be quite a costly, time consuming and lengthy procedure. In all cases, it involves taking a constitutional action all the way to the Supreme Court. Furthermore, with the number of states acceding to the convention increasing all the time, the caseload of the Strasbourg court is growing exponentially and there are longer delays in prospect as a result.

In that context, and against the background of changes already effected in Northern Ireland due the enactment of the 1998 Human Rights Act in the United Kingdom and the obligation on the Government under the Good Friday Agreement, there is now a need to provide that cases involving alleged breaches of the convention should be capable of being pleaded before national courts. That is the purpose of the Bill.

It made sense, therefore, in any examination of the choices open to the Government in the matter of providing how the provisions of the convention could be made applicable in the State, rather than for the State as a consequence of our obligations under international law, to look closely at the sub-constitutional interpretative model in the 1998 Human Rights Act adopted for England and Wales, Scotland and Northern Ireland. Other possible options explored included direct incorporation of the relevant articles of the convention in the Constitution. This would have to be effected by changes in the relevant articles of the Constitution as agreed by the people in a referendum.

In that regard, the Constitution Review Group in its 1996 report came out strongly against such a course on the grounds that there is already a high degree of overlap between the Constitution's guarantees in the area of fundamental rights and the provisions of the convention. The group was of the opinion that this form of incorporation could very well lead to a diminution in some individual rights in the Constitution. They also believed that this method of incorporation would not have the effect of filling any gaps in human rights protection, since every substantive right afforded by the convention is either expressly protected by the Constitution, or has been recognised by the courts as an unenumerated right under Article 40.3.1 of the Constitution.

Significantly, the group also thought that incorporation of the convention in the Constitution might give rise to new gaps in protection in fundamentally important areas, such as the right to trial by jury. There is one further serious question associated with this option which the Constitution Review Group did not address, whether changes of this order of magnitude in the area of fundamental rights and freedoms would be carried by a sufficient majority of the people in a referendum.

In effect, if the European Convention rights were to be incorporated into the Irish Constitution, in terms, the question would then arise as to who was the authoritative and final determinant of what they meant. Would it be the Irish people, would it be the Irish Supreme Court or would it be the Court of Human Rights in Strasbourg? People who have suggested direct incorporation into our Constitution never stress the obvious implication of that argument, that a section of the Irish Constitution would cease to mean what the Irish people necessarily thought it meant, or what the Supreme Court interpreted it to mean. It would mean whatever a court not responsible or accountable to the Irish people interpreted it to mean. That would mean a cession of sovereignty in respect of fundamental rights to a court over which we have no direct influence, in the sense that we have over our domestic courts, independent though they are.

Another solution which at first seemed attractive was for the convention to have the force of law in the State or to make the convention part of the law of the State. This view is held by a number of interested organisations, including the Human Rights Commission, and it deserves serious scrutiny. Most of the debate in the other House – and in the committee of the other House – centred on that particular issue and many amendments were tabled to the Bill accordingly.

However, it was my view when Attorney General, as it is the view of the present Attorney General, accepted by the Government, that the fatal flaw with such an approach is that it would have the capacity to undermine one of the central pillars of the Constitution, namely the doctrine of separation of powers. It would mean the Oireachtas was investing the Judiciary with a new right to invalidate the laws of the Oireachtas by reference to what was decided by the Court of Human Rights in Strasbourg. In effect, the Judiciary would become law makers, implementing decisions of that court contrary to the exclusive role of the Oireachtas under Article 15.2.1 of the Constitution.

In the final analysis the Government decided on an interpretative approach which is similar to that adopted in the United Kingdom, but it is done for entirely different reasons and not out of slavish imitation. In the United Kingdom the argument offered for the interpretative approach was largely to do with parliamentary sovereignty. In this State, given that it is a constitutional Republic, we have adopted the approach we have because of our doctrine of constitutional sovereignty and the supremacy of the will of the people. I should say it is a happy coincidence that for two entirely different sets of reasons these two jurisdictions, which have a shared role in the human rights perspective as it affects both parts of this island, have arrived at broadly similar conclusions as to how the common law system, which is different from the civil law system, can be fully harmonised with the European Convention of Human Rights. That is why we have done this the way we have.

Believe it or not, it is just two years since my predecessor as Minister for Justice, Equality and Law Reform, Deputy John O'Donoghue, presented the Bill at Second Stage in the other House. That was on the 14 June 2001 and the Bill was referred to the Select Committee on Justice, Equality, Defence and Women's Rights on that day.

The committee engaged in a wide-ranging consultation process, but the Bill was not scheduled for discussion in committee up to the time of the dissolution of the previous Dáil. Following the formation of the present Dáil the committee as reconstituted in late 2002 gave all interested parties and organisations further opportunities to address it on the subject matter of the Bill. Following the conclusion of that process, the examination of the Bill in committee took place earlier this year on 18 and 19 February, 5 March and concluded on 12 March 2003. Report Stage commenced on 21 May and continued on 10 June, with the passing of the Bill in the other House on 11 June 2003.

Members may be surprised, in view of that lengthy history, to see that the Bill contains just nine sections. It is, nevertheless, quite a complex and controversial measure, and to some extent that explains why it has taken so long to get to this point in its passage through the Oireachtas. As a measure of that complexity, 52 Committee Stage amendments were tabled to the Bill. At Report Stage that number rose to 61. The complexity arises from the fact that, as I have explained, the purpose of the Bill is to provide for the harmonious co-existence of two separate streams of rights and fundamental freedoms. One such stream is the existing one founded on constitutional sovereignty contained in the fundamental rights articles in the 1937 Constitution, Bunreacht na hÉireann. This incorporates our system of judicial supervision and protection of those rights – something as I remarked earlier that is unique among our fellow contracting states of the Council of Europe, and which must remain paramount. The second stream is the European Convention for the Protection of Human Rights and Fundamental Freedoms, which of itself is not a constitutional document. It was never meant to be a constitution for the contracting states and does not actually require that its provisions be incorporated into national legal systems. It is, nevertheless, an international human rights instrument to which the State is bound in international law, and under which the State has agreed to allow individual citizens the right of access to an international court to determine whether it is in breach of its obligations under it. A further layer of complexity is caused by the fact that under the Constitution, the sole and exclusive maker of laws in this State is the Oireachtas.

How is it possible to preserve these constitutional and legislative prerogatives and yet still provide that the provisions of the convention can be pleaded in and acted upon by our courts? These are the turbulent waters into which we are now moving. I hope to show that the correct course open to us is the one set out in the route map laid down in the Bill which is now before the House for consideration.

Section 1 provides for the definition of certain words and phrases used in the Bill. These definitions, by listing the applicable convention provisions and by defining the term "organ of the State", to which the main obligations in section 3 regarding the performance of functions applies, are fundamentally important. The term "Convention provisions" set out in the Bill includes Articles 2 to 14 of the convention as well as the applicable provisions of the four main protocols to the convention. The full and up to date texts of all of these instruments are set out in Schedules 1 to 5, inclusive, to the Bill.

Two recent additional protocols to the convention, Protocol 12 dealing with the substantive issue of discrimination, which we have signed subject to ratification, and Protocol 13 dealing with the abolition of the death penalty in all circumstances – which, following the result of the recent constitutional referendum, we have signed and ratified as well – are not included in the Bill simply because their provisions are not yet in force. Article 1 of the convention is not included but there is no need to do so. This is due to the fact that the obligation to respect human rights as defined by the convention, and to secure them to everyone within the jurisdiction of the contracting states to the convention, has already been accepted by the State since the time it ratified the convention and its coming into effect in 1953. That obligation has been binding on us since that time and that is the reason the Long Title refers to the Bill giving further effect to the convention.

It is worth noting that Article 13 of the convention which provides for the right to an effective remedy for breaches of the convention is expressly included. In this respect we are going somewhat further than the 1988 Human Rights Act in the UK which omitted this Article from its scope. The term "organ of the State" excludes the courts as well as the President, either House of the Oireachtas, or a committee or joint committee of both Houses. There has been criticism over the exclusion of the courts based on the fact that they are expressly included in the UK Human Rights Act. However, the United Kingdom's courts are not bound by a written constitution. Its judiciary is bound by an oath to the sovereign power which is obliged to do whatever parliament says it can do. In that respect it is fundamentally different from the position of our Judiciary. Our judges, by their declaration, are bound to uphold our Constitution, regardless of what Parliament says or does to them – to the extent that Parliament's wishes are inconsistent with the true meaning and interpretation of the Constitution.

The courts are under a duty to administer justice in accordance with the law and the Constitution. Furthermore, as the convention is primarily a vertically effective instrument – by which I mean that it is designed as a means for redressing human rights violations between the individual and the State – the inclusion of the courts could result in their being drawn into its development as a horizontally effective means of resolving rights-based disputes between individuals. I do not want to create a new set of actionable torts consisting of breach of convention rights as between individuals, nor do I want to see a development whereby people, under sections 3(1) and 3(2), would be able to sue the courts in respect of court decisions. I have stated clearly that I am not interested in that kind of experimentation and that I will not go down that road.

It must be stressed that the term "statutory provision", defined in section 1 as meaning any Act of the Oireachtas or any order, regulation, rule, licence, by-law or any other like document made, issued or otherwise created under any statute or by law, also includes every statute establishing the courts and every statutory instrument in which court rules are provided. All the legislation on which the courts are based, subject to the Constitution, and every rule of court which is a statutory instrument is encompassed by this Act. Members will see, as we examine the provisions of the Bill, that the courts are obliged to regard their own establishing legislation and their own rules of procedure, as laid down in statutory instruments, in a manner consistent with the convention to the greatest extent possible.

Section 2 is the first of the three key provisions in the Bill. It gave rise to some confusion in the Lower House so I will provide this House with some further information on it. The section provides that any statutory provision, in the widest possible sense, as well as any provision of the rules of common law – such as the rule against hearsay, compellability of a spouse or any rule of law of that kind which is not found in statute – shall be interpreted as far as possible in a manner compatible with the State's obligations under the convention. This provision applies to laws made both before and after the passing of the Bill. It is both prospective and retrospective and is a thorough and potentially far-reaching interpretative obligation. I remarked in the Lower House that the obligation on the courts to interpret our laws applies to the extent that the failure to do so would be inconsistent with the State's obligations under the convention. This rule applies to all courts – the District Court, the Circuit Court, the High Court the Court of Criminal Appeal and the Supreme Court – at all times and it is subject to the Constitution.

Each court will make its own decision on the question of compatibility. In any ordinary case, if an issue arises as to the compatibility of any law or rule of law with the convention, both the District Court and the Circuit Court are obliged, as a matter of legal interpretation, to do their best and see a convention-compatible interpretation of any law or rule of law before them. Ordinarily, these decisions may be set aside on appeal one way or the other. There is no question of references upwards or downwards, except perhaps by means of the consultative case stated procedure.

Section 3 is another key provision and none of the Bill's critics has ever adverted to it in substance. It provides that every organ of the State, as defined in section 1, must perform its functions in a manner compatible with the State's obligations under the convention. One might ask why the courts, the President or Oireachtas are not included in this regard, but we have a sovereign state and it is up to Members of the Oireachtas to decide how to exercise the sovereign power of the people in given circumstances. One Oireachtas cannot bind another Oireachtas, nor can both Houses of the Oireachtas bind either House regarding how it should conduct its business. This is what is involved in Ireland being a sovereign, independent republic.

If an organ of the State fails to carry out its functions in a matter incompatible with the State's obligations under the convention, section 3 provides a remedy in damages in the Circuit Court or the High Court. There is a time limit of one year, within which such actions may be brought, although this can be extended if the court considers it is appropriate to do so in the interests of justice.

This is a very far-reaching provision and goes much further than the equivalent provision in the United Kingdom. It gives to the High Court and the Circuit Court jurisdiction, in accordance with the levels of damages that those two courts have at present for torts, to award compensation to anybody who claims that any organ of the State, as defined in the Act, has infringed his or her rights under the Constitution. It provides for what could be described as a new tort, and the level of compensation envisaged is not what I would term convention-related compensation which, in accordance with the provisions of Article 41 of the convention, is not regarded as being overly generous.

This remedy is not available in the District Court, but there are reasons for that. The District Court is charged with dispensing summary civil and criminal justice, which it does, and it has a considerable volume of work to do. Convention-based cases, by their nature, are complex and require considerable attention. As Senators will know, the District Court does not have jurisdiction in equity or defamation cases, injunctions or applications for judicial review, principally because these cases require a huge investment of time to process properly.

Section 3 does not refer to the other remedies which may be relevant in cases of this type, such as injunctions, declarations, what used to be called certiorari, quashing orders and orders like mandamus, all of which are now called judicial review. It is not necessary to refer to them. If a person wishes to injunct a State body from carrying out a function of one kind or another, one does so in the High Court by means of orders for judicial review. There is no need to replicate in large measure the law relating to judicial review and convention issues will be melded into judicial review law. Contrary to some of the criticisms that have been expressed about this particular provision, if one takes into account our existing law on judicial review and the far-reaching effect of the requirement in section 2 whereby the courts have to do their utmost to bring about compatibility of interpretation, one will find that this Bill represents a very robust system of enforcement of convention based rights.

Section 4 deals with the technical issue of judicial notice and interpretation of convention provisions and the jurisprudence of the convention court. I accepted an amendment in this respect on Report Stage in the other House.

Section 5 is the third key provision in the Bill. It deals with the making of declarations of incompatibility by the superior courts and the consequences of such a decision. Due to the fact that the particular statutory provision which may be found incompatible with the convention may also be entirely valid under the Constitution, difficult jurisprudential issues arise. Under our Constitution, this House, the Dáil and the President form the Oireachtas, in which the sole and exclusive right to make laws for the State is vested. It is not a paper-based monopoly, but the outward expression of sovereignty on which Irish republicanism is based, that is, the right of the people, through the Legislature and subject to the Constitution, to determine their laws.

We have a system in which our courts interpret the law and they do so subject to one overriding rule, namely, that every organ of the State, including the Oireachtas, is bound to uphold the Constitution. While the people are free to amend the Constitution through referendum, the bodies with the ultimate right to decide what it means are the High Court and the Supreme Court on appeal. Nobody else's interpretation of the Constitution is valid or coercive as a matter of law. Neither House of the Oireachtas can direct the courts to interpret laws by reference to the decisions of a third party, such as the European Court of Human Rights in Strasbourg.

There have been ten occasions over the past 50 years when the Irish courts have been found by the European Court of Human Rights to have failed to vindicate a person's rights to the extent required by the convention. This represents one case every five years. Sometimes we engage in self-flagellation over such matters, but, compared to many other states, some of which would regard themselves as the cradles of democracy, and others of which bestow similar epithets upon themselves, our record is remarkably clear of breaches of the convention.

Mr. Ryan

Hear, hear.

Mr. M. McDowell

I say that not complacently but to make the point that the reason this is so is that we have a written Constitution and that ordinary citizens bring the Oireachtas and the Government to court, and beat them, on a regular basis by reference to the same rights, however stated in the Constitution.

Four of the cases involved what might be broadly described as sexual and family themes. I can say fairly and without being guilty of caricaturing them they were cases where attitudes in Ireland on sexual and family matters – they were certainly attitudinal on the part of the Judiciary in interpretation – were at variance with what would be internationally thought to be fundamental rights and liberties in these areas.

This compares dramatically with other jurisdictions where the figure in some cases runs to hundreds of occasions and in countries which would regard themselves as bastions of human rights protection to many tens of cases. Four of the cases might be broadly described as involving sexual and family law themes, the fifth concerned access to the courts and the absence of civil legal aid, another dealt with a planning matter, three centred on one point arising from the provisions of section 52 of the Offences Against the State Act 1939, remarkably as one eminent commentator stated, because they represent the only pressure placed on our criminal legal system by the overspill of 30 years of civil conflict in Northern Ireland. The most recent case concerned a troubled adolescent and the lack of proper facilities. That is a pen picture of the occasions on which we have been brought to book in Strasbourg.

Section 52 was a provision of the Offences Against the State Act 1939 which required people to give an account of their movements. The House will be aware that those arrested under the Offences Against the State Act 1939 could be required under section 52 to give an account of their movements to the police and convicted if they remained silent in certain circumstances. This created a catch 22 for many arrested under the section because, on the one hand, they were told they were not obliged to make a statement and that, under the Judges' Rules and the Irish equivalent of Miranda jurisprudence, they were not obliged to say anything unless they wished to do so and that anything they did say would be taken down in writing and might be used in evidence against them. Later in the same interview the Offences Against the State Act would be plonked down on the table in front of the person concerned who would be informed that the rules had suddenly changed and he or she would be required to tell something and that for failure to give an account of his or her movements he or she would be sentenced to ten months imprisonment. This put the accused person in a cruel dilemma. On the one hand, he or she knew he or she had committed an offence if he or she failed to account for his or her movements or gave an untruthful account but if he or she gave a truthful account, the notebooks would be out and he or she would face a conviction on foot of his or her confession.

It is the case that the Heeney and McGuinness cases, the subject of those three cases, were decided against the persons convicted in the Supreme Court. It was by no means clear to many lawyers at the time that the Supreme Court was coercively driven in that direction. Subsequently, in the National Irish Banks company investigation case which came before the Supreme Court, the Supreme Court realised there was a constitutional right against being forced to incriminate oneself, even by statute, and that the State could not use compelled statements by an accused person to bring about criminal convictions.

I say all of this because sometimes we are lashed verbally in the media as a society which has been derelict in the area of human rights. I ask the House to fairly judge over more than 50 years of adherence to the convention, whether this amounts to a record of a society which is highly litigious and legally aware and in which there is an inadequate protection of human rights.

Referring to the Norris case, I am sure Senator Norris will not mind me saying it was by no means clear to lawyers that the Supreme Court would make the decision it did in respect of his personal and private life. If those cases had been decided in the opposite way, our record would be even more remarkable. In those cases there were minorities who thought the Supreme Court was, in effect, getting it wrong. No system is free from debate or division as to what is right or wrong. We should recognise that our High Court and Supreme Court have been a remarkable system of protection for civil and political liberties and rights within society. Nothing, therefore, that I say should be taken as critical of them, just to say that on the few occasions where Homer nodded in terms of constitutional rights of the individual, as some of us would like to see them interpreted, there has been the European Convention on Human Rights on which people could rely and, in the last analysis, get corrective action taken.

Section 5(2)(a) is designed to take account of the fact that it is not possible to create a law which entitles the Irish courts to compensate people for the consequences of legislative Acts which are intra vires the Constitution and where no legal wrong has been done to them. Put simply, this means that if it is constitutional for this and the other House to enact a law inconsistent with the European Convention on Human Rights, it is not possible for the courts to demand from the State compensation for upholding or implementing the law laid down by this House. This does not mean nothing can be done about such cases. If a party was successful in obtaining a declaration of incompatibility, it did not make much sense if it was then faced with a choice of either going to the Court of Human Rights solely on the issue of quantum of damages or abandoning its right to compensation. How would this square with our intention to give further effect to the convention at home? This is the very issue faced by people in the same situation in Northern Ireland and the United Kingdom, in particular. This is where section 5(4) comes in. It provides for a person in this situation to apply for ex gratia compensation from the State without the trouble and expense of having to go to Strasbourg to obtain it. However, the right which has existed since 1953 to take the Strasbourg route is still there, should the person wish to pursue it. If he or she decides to take the ex gratia option, the Government under section 5(5) can request an adviser to consider the amount of compensation, taking into account the principles and practice of the European Court in Strasbourg to afford just satisfaction in accordance with Article 41 of the convention.

When a law is found to be incompatible, section 3(3) provides that the Taoiseach shall cause a copy of the declaration of incompatibility to be laid before each House of the Oireachtas within a period of 21 days in order that this House and Dáil Éireann would be put on notice that a particular problem of incompatibility had to be rectified by the organs of Government and State. I say this because some have got this somewhat skewed. What is envisaged, for example, is that if Senator Norris was to be in the same position now as he was then, he would do now what he did then, challenge the legality of the law with which he did not agree up to the Supreme Court, and the Supreme Court if it was minded to make the same decision again – I do not think it would – would say the particular Act he was claiming was unconstitutional was incompatible with the Constitution. It would, nonetheless, be in a position to say it was compatible with the Constitution but incompatible with the jurisprudence of the Strasbourg convention. It would then hand him a declaratory order which he could lay before both Houses of the Oireachtas stating that, although it was consistent with the Constitution, it was inconsistent with the convention. This will never ever happen except in the most extreme of cases.

The Supreme Court will not find many cases where there is a significant margin of difference between the human rights guaranteed by the 1953 convention and the human rights guaranteed by the State. As time goes by the occasions, such as the Heaney, McGuinness and Senator Norris cases, which are a handful of cases where people have failed to get constitutional redress, will almost certainly disappear. They will become, in mathematical terms, asymptotic with a zero axis. They will cease.

Mr. Ryan

Very impressive. I understand the Minister.

Mr. M. McDowell

This Bill, when it becomes law, will create a European Convention on Human Rights consciousness in our jurisprudence. It will be a rare case where the right to free speech or freedom of expression will be interpreted differently by the Supreme Court from a fair interpretation of the convention provisions. Where such cases arise, the individual will not have to go to Strasbourg to have the difference between Irish and Strasbourg law identified and stated. The Irish courts will be in a position to state it on their own account and in such circumstances the State will then be confronted, before anyone has to go to Strasbourg or to leave the island in legal terms, with the opportunity to amend the law to get it into accordance with the Strasbourg convention. There is also a mechanism in those circumstances to give the person the same level of compensation that he or she would have got had he or she gone to Strasbourg. This is not just a matter of right, because the State has the right to have laws incompatible with Strasbourg, but a matter of ex gratia payment in order to remove from a person in those circumstances any need to go to Strasbourg to get remedial action.

It is theoretically possible that both Houses of the Oireachtas in their wisdom, with the declaratory order handed down by the court, will simply say, "We refuse to change the law as we are happy with the way it is." That is the act of a sovereign Legislature and no more can be said about it. The person in question would then have to go to Strasbourg and argue, before the court established under the Council of Europe convention, that Ireland was in breach of its obligations to him or her. That is possible. However, I believe the increasing effect of this Bill will be that such situations will not arise. I am confident the Bill deals with most of the problems ever likely to arise in a way which is consistent with, and recognises the supremecy of, our Constitution.

Section 6 provides that before a court decides to make a declaration of incompatibility the Attorney General, as legal adviser to the Government, will have to be given notice under rules of court and will be entitled to appear in the proceedings and become a party to them. I accepted an amendment in the Dáil to include the Human Rights Commission also because, as the House knows, it has the right to ask to be heard in court cases dealing with human rights decisions.

In accordance with the provisions of the Human Rights Commission Act 2000, the commission will have the right to apply to be heard as amicus curiae in those proceedings. This point was debated in the other House on the basis that the commission should have an automatic right to be heard in these types of cases. However, the provision giving the commission a right to apply to be heard was deliberately framed in that way in the relevant Act to allow a court to take account of all the factors in such a case, including the paramount consideration of being fair as between individual parties, before making a decision on the matter.

Section 7 in its original form was amended in committee in the other House to take account of the fact that the increase in the membership of the Human Rights Commission was effected in a separate Act namely, the Human Rights Commission (Amendment) Act 2001. Its purpose now is to ensure that the full role and remit of the commission, including the power to take legal action, will extend to cases involving our expanded human rights protection by virtue of the provisions of this Bill.

Section 8 is the usual expenses provision. Section 9, to which a technical amendment was made in the Dáil, contains the Short Title of the Bill and the commencement provision.

I thank the House for its generosity in the time it will give this important Bill. I will listen attentively to the contributions of Senators. I hope they will agree that it represents the strongest form of incorporation of the convention in our domestic law consistent with constitutional considerations. Although my critics have been blunt and direct in their criticism of this Bill, I believe that right is on the Government side of the argument and that what we have done is compatible with what will be the situation in Northern Ireland in particular. Other models of incorporation were suggested, such as constitutional incorporation, or a hopelessly ill-fated suggestion that it should be sub-constitutional but nonetheless systemic incorporation as law of the State. If they had been followed, the legal situation North and South of the Border would have been radically different in regard to the European Convention on Human Rights and the way in which the courts approach it. I strongly believe that, as a result of this, the day will come when, on most human rights issues, county courts in Northern Ireland and the High Court in Belfast – admittedly there are different constitutional arrangements in both parts of this island – will address most cases on the basis of the same principles, or at least on the basis of a mutually shared set of interpretative goals.

In this context, and in the presence of Senator Mansergh, I pay tribute to those who negotiated the Good Friday Agreement. I regret that this particular outworking and implementation of the Agreement, which is in one sense part of our acts of completion, has taken so long. The substantial arguments were real and the delay was not a question of indolence or indifference to the issue. Passionate, well articulated arguments were made on both sides, on paper, in public and in the other House. Whereas all delay is unfortunate, this delay has served as useful in one respect. It has enabled all the issues to be carefully investigated.

The outcome of the process is that Irish law, the legal ambiance here and the jurisprudence of our courts at both constitutional and sub-constitutional levels will now be such as to give both the courts and the citizens who appear before them new guarantees that the corpus of law reflected in Strasbourg jurisprudence is not just something out there to be accessed as a court of final appeal but has been brought "holus-bolus" into the Irish legal system. Almost like genetic modification, it has been brought into the system so that every cell, every legal decision will now be informed by the principles of the convention as indeed they should.

Ms Terry

I welcome the Minister to the House. As he has been on his feet for over 50 minutes I hope he has not exhausted himself. He will have a long day and will, perhaps, be back with us this afternoon. It is a busy week for all of us.

The proposals in this Bill, and those which led to the setting up of the Human Rights Commission, can be traced back to the provisions in the 1998 Good Friday Agreement relating to rights, safeguards and equality of opportunity. The convention protects the basic civil and political rights in any democratic state. From the outset, Ireland was an enthusiastic supporter of the European Convention on Human Rights. It was one of the ten original parties to the convention and one of the first countries to allow citizens to take cases directly to the European Commission and Court of Human Rights. This resulted in a number of important decisions in Irish cases to which the Minister has already alluded.

Ireland has a system which regards international and domestic law as totally separate. In practice this means that rules embodied in an international instrument, such as the European Convention on Human Rights, cannot be enforced in our courts unless and until it is incorporated into our law by an Act of the Oireachtas. At the moment it is the prerogative of the Government to decide precisely how any incompatible provision of national law or administrative practice may be reconciled with a ruling by the court. This means that if a person wishes to vindicate his or her right under the convention, he or she must first exhaust all possible domestic remedies which may be availed of under national law, before going on to plead his or her case before the Court of Human Rights in Strasbourg. The latter has proved to be costly and inaccessible for most people, a point with which the Minister agrees.

Ireland has fallen behind other counties in dealing with the issues. However, I accept the Minister's reasons for this being the case. The UK dealt with this matter in October 2000. The Good Friday Agreement commits Ireland to "ensure at least an equivalent level of protection of human rights as will pertain in Northern Ireland." The convention is already part of ordinary law in Northern Ireland through the UK's Human Rights Act.

The Bill proposes to bring the convention more fully into Irish law by making rights under the convention enforceable in Irish courts. However, I have a problem with the method by which the Minister proposes to do this, the reasons for which have already been put to him in the Dáil. The Bill does not propose to incorporate the convention into Irish law, only to give it more effect in this jurisdiction. The Fine Gael Party believes that the European Convention on Human Rights should be adopted directly as part of our legislation. We agree with the views expressed by the Human Rights Commission, the Bar Council, the Law Society of Ireland and others, that the convention should be placed in a superior position to ordinary laws, subject only to the Constitution, and should be capable of direct enforcement by means of all appropriate judicial remedies before the Irish courts. The Minister has adopted a minimalist approach to this important matter and the bodies to which I have just referred disagree. Why does the Minister feel he is omnipotent in this matter? He makes a good case, but why do these bodies still disagree with him?

Under section 5, the High Court or Supreme Court, where no other legal remedy is adequate, may make a declaration that an item of legislation is incompatible with the European Convention on Human Rights, but the litigant can obtain no other legal redress and the legislation remains in force. The Taoiseach must then draw the making of the order to the attention of both Houses of the Oireachtas and the litigant may apply to the Attorney General for compensation. However, the Government is under no obligation to pay such compensation, although it may or may not make an ex gratia payment. The Government may appoint someone to advise it as to the amount of such compensation, if any, and may in its' discretion make a payment of the amount aforesaid, or of such other amount as it considers appropriate in the circumstances.

This is a weakness in the Bill, which I will seek to address by means of an amendment on Committee Stage. The Minister has accepted that the litigant may still have to go to the European Court to obtain an effective remedy. In which case, the object of domesticating the European Convention on Human Rights so as to give quick relief to citizens in our courts will have been defeated.

Where there is a right, there is a remedy. This is a basic principle of Irish constitutional law, enshrined in Article 40 of the Constitution. It is unacceptable to place the courts in a position where they can identify a breach of human rights and yet not be in a position to offer an effective remedy. The procedure set out in section 5 is, therefore, one of constitutional validity. Moreover, it is difficult to understand how one can purport to incorporate Article 13 of the European Convention on Human Rights, which requires the provision of an effective remedy at national level, into domestic law, while withholding a domestic judicial remedy for a breach of the convention. Strasbourg case law establishes the principle that a discretionary remedy is no remedy.

Litigants may find themselves with no other option but to go to Strasbourg and the Human Rights Commission should be in a position to help them to do so. The commission has recommended that the Minister for Justice, Equality and Law Reform should issue a policy directive, under section 7 of the Civil Legal Aid Act 1995, to the effect that applications for legal aid will be considered in suitable cases under the Bill. If a constitutional-type action is necessary under the Human Rights Commission Acts 2000 and 2001, or the Bill before us, it is essential to establish who has the primary responsibility for funding the action. I suggest that the one-year limitation period prescribed by section 3(5) be extended to six years, which is the general limitation period for tort claims and is another recommendation of the Human Rights Commission.

I realise that the Bill has been through the Dáil and that it took a long time to get here. Now that it is before the House, however, it is being rushed through. We are dealing with Second Stage today and we will take Committee Stage tomorrow. I look forward to further debate on Committee Stage, as well as the Minister's response to some of the issues I have raised.

Mr. J. Walsh

I welcome the Minister. We have already discussed this legislation at committee level. The Minister has given a good background to the ambit of our human rights record within our legislation and the effects of the European Convention for the Protection Human Rights and Fundamental Freedoms. It must be remembered that this is a binding international treaty from the Council of Europe. It is interesting that it was ratified by Ireland in 1953. Ireland and Sweden are recorded as the first countries to accept the right of petition to the European Court of Human Rights. Like Ireland, Sweden has a good track record in this area.

It is also worth noting that the convention laid the foundation for a new Europe. Inasmuch as necessity is the mother of invention, through adversity often come positive things. The European Convention on Human Rights came about as a consequence of the wars that ravaged Europe in the first half of the last century. Like the UN, it is an example of good coming from the difficulties which were experienced across the globe, but particularly in Europe, at that time. We have had occasion in this House to compliment Jean Monnet and Robert Schuman on the establishment of the European Coal and Steel Community, which became the European Community and which has progressed to the benefit of all the citizens of Europe. Again, this was probably a direct consequence of atrocities such as the Holocaust, which highlighted man's inhumanity to man in a most graphic way.

In the context of this debate, it is important to recognise and remember the genesis of the European Convention on Human Rights. It came from an acceptance that where there were totalitarian regimes and dictatorships in which democracy was displaced, there were severe infringements of human rights. We have been fortunate in Ireland in avoiding the worst effects of that. The Minister outlined our legal framework, which is founded on our Constitution and which has ensured that we have been at the forefront in this area.

The convention protects the right to life; the right to freedom from torture and slavery; the right to liberty and security of the person; the right to a fair and public trial, that there be no punishment without law; the right to respect for private and family life in one's home; the right to freedom of thought, conscience and religion, and the right to freedom of expression, assembly and association. This could be regarded as belt and braces legislation in that many of the convention's provisions are probably explicitly provided for in the Constitution and, where this is not the case, they are implicit.

When it is considered that the Constitution dates back to 1937, it must be acknowledged that its architects showed remarkable foresight and capacity for comprehensive thinking. The Minister rightly acknowledged that de Valera and his Government deserved great commendation for this. Unfortunately, partisan politics has to some extent been a motivation in deriding aspects of the Constitution which has stood the test of time. Almost 70 years later, citizens rely on its text to ensure and protect their rights in society and under the law.

It is interesting that we, as legislators, cannot supersede any of the Constitution's provisions. The right to change the Constitution rests with the people by way of referendum. Apart from Switzerland, it is probably more progressive in that regard than in any other civilised or democratic country.

On the question of security, it must be asked if there is a hierarchy of rights and occasions arise when there are competing priorities in terms of vindicating them. In this regard and in order to protect the security of the individual, the State has considered it prudent to enact prevention of terrorism legislation which may, in normal circumstances, be considered unnecessary. For example, the legislation providing that a Garda chief superintendent can give evidence that may be accepted by a court would normally not be considered desirable, when more substantial proof would be required.

The House has debated crime on previous occasions. I mentioned the case involving Brian Fitzgerald but others are relevant, including that of Veronica Guerin, who was murdered in the course of pursuing organised crime involving drugs importation. It took her murder to get society to accept that action we might otherwise have considered to be a little extreme could be taken. The Criminal Assets Bureau and similar legislation has been effective. In the murder of Brian Fitzgerald and other similar murders involving organised crime, the Garda can often identify not only the organised crime gang but also the professional hitman, yet the lack of sufficient evidence to prosecute a case means they remain at large. It means that the security and life – the most fundamental of all rights – of certain individuals are put at risk. In this context, I hope the courts and the Legislature will consider the convention in a manner that will balance the competing priorities in terms of rights. In this regard, a number of responsible law abiding citizens who have never been in trouble with the law have told me that they would willingly sacrifice some of their civil liberties to ensure greater security for themselves and their families.

Interestingly, the explanatory memorandum points out that the convention has been the law for Ireland for the past 50 years but was not law in Ireland. For a person to vindicate his or her rights under the convention he or she would have to exhaust all remedies in domestic law and then, if necessary, pursue the case in the European Court of Human Rights in Strasbourg. The Bill fundamentally alters this by providing that people can bring their case in an Irish court. This has arisen in part because of the Government's commitment under the Good Friday Agreement, although it may have happened in any event. The Minister has argued it will mean that an equivalence will pertain between this jurisdiction and the situation pertaining in Northern Ireland, which has arisen from the implementation of the 1998 Act passed in the United Kingdom.

Enactment of the law is not enough, however; the culture of respect for the law is also important. Northern Ireland is a prime example of a jurisdiction where, in many instances, human rights have been disregarded. It is especially regrettable that some organs of the British state should have been involved in this. Many in the House and elsewhere will be familiar with the cases involving Pat Finucane and Rosemary Nelson and those murdered in the Dublin and Monagahan bombings and Sackville Place. Atrocities were committed which at the time appeared to have had a political motive. In view of what has been exposed, it would be reasonable to assume that there was collusion and involvement. The only question to be determined is how far culpability went up the chain of command.

Ireland has only been independent for the last 80 years and can, therefore, be regarded as one of the relatively new states. We can be proud of our record in this area and should not be slow about saying so. Other more long established independent states would not have the same record.

The United States, a very close ally of Ireland, has been quick to distance itself from accepting its obligations under some international agreements. While it has rightly been to the forefront in prosecuting war crimes, it has attempted to ensure it will never be the defendant in such situations. That is not an acceptable or tenable position. Given that America is such an important influence in the world – economically, politically, socially and every other way – it is important that it should be to the forefront of moves for better accountability for all actions by states in times of peace and war.

The Minister's proposal that the Constitution will, as of right, take precedence over the convention has not found favour with all. There is no need for concern about this. I am ad idem with the Minister when he states the likelihood of a declaration of incompatibility is slight. In view of this, section 5 contains a good provision because should there be such a declaration, the Bill provides that the Oireachtas will be put on notice. The Members and responsible committees will debate the issue, which will lead to the Government being held accountable for the action, if any, to be taken to rectify any conflict that may arise.

The provision dealing with compensation is prudent. It allows the injured party to apply to the Government for compensation by way of an ex gratia payment. I presume that the transparency which now exists in Government will mean that, in those circumstances, it will be known if there is cause for grievance and it will be highlighted in the Houses of the Oireachtas. We should have sufficient confidence in ourselves, as legislators, to be able to deal with these issues in a way which satisfies the rights of the appellant and society.

The Bill raises certain questions. Section 6 provides that the Attorney General may appear in court and the Minister stated that there may be some provision to allow the Human Rights Commission to involve itself. I wonder if the provision cuts across prosecuting and defending counsel in some way. Given the cost, if I was to take a case to the High Court or Supreme Court, I am not sure I would welcome the imposition of a third party of whose line I was unsure. By virtue of this party's position, they would be an influential advocate whose arguments judges would not lightly disregard. This provision may represent an unnecessary interference in the process. I am sure that the Minister will comment on that matter later.

Senator Terry referred to accessibility to law which, if not directly related to this legislation, is germane. The cost involved deters people from exercising their rights. I was pleased by the Minister's recent comment on the costs of tribunals, which are outlandish. As a legislator who supported the establishment of certain tribunals, I am now examining my conscience and asking if I was right to do so. I know that a certain good flows from them and that the State has received considerable revenue, but there must be more cost-effective ways of finding the truth than through the aggrandisement of lawyers.

Ultimately, the law should be accessible by all the citizens of a republic, but exorbitant costs are a deterrent. In the context of the Bill, exorbitant costs might deter people who wish to exercise their rights under the European Convention on Human Rights. Separate to this matter, the Minister should examine ways in which to inject competition into a profession which is responsible for competition law.

Dr. Henry

I wish to share time with Senator Norris.

Acting Chairman (Ms Terry): Is that agreed? Agreed.

Dr. Henry

I welcome the Minister for Justice, Equality and Law Reform and I welcome the legislation, although I feel it is inadequate in some ways. There has been a sense of disappointment that this legislation was not brought forward earlier. That is why I am glad it is before the House today. The Minister is very lucky because he has had two bites at this cherry – first, as Attorney General, and, second, as Minister for Justice, Equality and Law Reform. It must be quite something to be both parents of a Bill.

I am glad that the Minister pointed out how rare it has been for cases to be judged in Europe as meriting the benefits of the Convention on Human Rights. The Minister is quite right to say that our Constitution provides great human rights protections. In view of the fact that we are such a litigious group, ten cases in 50 years is quite incredible. The phrase "we will have to go to Europe" is one I have often heard and I would love to know if the Minister's official can tell him how many cases were brought before the court in Strasbourg. The failure rate must be very high indeed.

The Minister pointed out that this legislation comes into effect in association with the promise we made in the Good Friday Agreement. It is important that we try to follow UK law as closely as possible, which is why I am slightly disappointed that the Minister has not made provision to apply the legislation to all courts. In the United Kingdom, the European Convention on Human Rights applies down to the magistrate courts. While the Minister has explained that most cases brought will be dealt with by higher courts, I do not understand why the provisions of the Bill will not apply all the way down to the District Court.

The Minister's explanation that this legislation is not being introduced directly as Irish law is interesting. The President of the Human Rights Commission, Donal Barrington, favoured the 1991 approach to the Hague Convention on the Civil Aspects of Child Abduction, which was brought into Irish law in toto. If that was acceptable then, I do not understand why it is not acceptable now.

The European Convention on Human Rights has been extraordinarily important to all of us as overarching legislation to which we can appeal despite our fine Constitution. We have been involved with the convention since its inception. The cases which have been particularly important are those the Minister discussed involving sexual and family affairs, but it is important to remember that it was our Constitution which permitted the legalisation of contraception through the McGee case. We were not totally coming from behind the wall in terms of these cases. The Airey case was one of the most important of its kind for Irish women because it introduced free legal aid in civil cases. The latter had constituted an area of great difficulty previously.

The aim of the European Convention on Human Rights is to vindicate the rights of the individual, but I do not see that reflected in this legislation on too many occasions. Reference is more often made to the State's obligations under the convention, which is not quite the same as vindicating an individual's rights.

I am also concerned about the use of the phrase "as far as possible". I realise that the convention has always recognised that there may be economic problems in some countries which make it impossible to create the conditions which exist elsewhere. For example, the convention might accept conditions in Greek prisons which would not be acceptable in French prisons. However, I wish we were not using the phrase "as far as possible" because it might really mean the convention will be applied as far as the Government is agreeable.

My main concern relates to the lack of remedies provided for in the Bill, particularly for the mentally ill, prisoners and children. One of the most important provisions of the convention is Article 13, which states that there must be a right to an effective remedy. Everyone whose rights and freedoms set forth in this convention are violated shall have an effective remedy before a national authority, notwithstanding that the violation has been committed by persons acting in an official capacity. I became even more concerned when I read a paper presented to the Law Society of Ireland in October 2002 by Anna Austin, a lawyer in the Registry of the Court of Human Rights, which states:

In addition, in so far as complaints made in Irish courts under Article 13 and other substantive Articles about a lack of an effective domestic remedy for a violation of a convention right are not already answered by the current domestic system, the remedies contained in the 2001 Bill would not appear to fill the gap.

That is an extremely important point. In other words, we are introducing legislation which we already know, and have been told by a very important member of the Court of Human Rights, will not fill the gap. It is not satisfactory. The only remedy offered in this Bill is financial compensation, which will be decided upon at the discretion of the Attorney General, the Government and their adviser. I presume the Government will appoint the adviser. That is not good enough. The adviser, the Government and the Attorney General will be on one side, with the unfortunate person seeking compensation on the other. Money is often an inadequate remedy in any event.

As Senator Terry pointed out, discretionary remedies are against Strasbourg law. Ms Austin's paper also states:

I would note here that, given the need under section 5 to establish that no other legal remedy is adequate and available, it is likely that that applicant will have also obtained a finding of constitutionality prior to the declaration of incompatibility. Accordingly, the non-obligatory nature of the declaration of incompatibility, the ex gratia nature of any damages received (whether or not substantial) and, importantly, the recognition that the impugned domestic provision was constitutional, are likely to be considered equivocal and ambiguous acknowledgements by the State of a breach of the Convention. As such a successful section 5 application would not prevent an individual from continuing to claim to be a victim of a violation of the Convention in Strasbourg.

I look forward to hearing the Minister's reply. Since there are no other remedies other than an ex gratia payment, people will believe they must go to Strasbourg where the case load is already enormous and likely to get larger.

Article 3 of the convention, which deals with the prohibition of torture, is extremely important. It provides that nobody shall be subjected to torture or inhuman or degrading treatment or punishment. Ireland is frequently in dire trouble when committees from the Council of Europe on the prevention of cruel and inhumane treatment and torture visit this country and, particularly, the Central Mental Hospital and our prisons. In October 2002 Ireland was heavily criticised for the state of the Central Mental Hospital but people in the hospital will have no remedy with this legislation. What good is financial compensation to them? They are incarcerated in this institution and our mental health laws will do nothing to help them get out. Furthermore, there is nothing in this legislation to insist that the conditions there are improved.

The second Maastricht convention specifies that there are conditions under which we can default from rectifying conditions but this relates to matters like earthquakes and we cannot claim to be in that position. This legislation will bring no remedy for the people concerned. Nothing in it will assist their human rights. As it is already recognised that there is a lack of resources for implementing the mental health Bill, it will not help them. The criminal insanity Bill appears to be stalled and there is nothing in it to assist them either. Furthermore, where is the rules of prison Bill? I read the Committee Stage debate on the Bill in which a Government Deputy stated Ireland had constantly taken an interest in the rights of Irish prisoners in British prisons. I wish people would take more interest in the rights of Irish prisoners in Irish prisons.

The interim human rights commission, when it was chaired by Judge Donal Barrington, in a submission to the joint Oireachtas committee in June 2002 stated: "We would have preferred a more robust and effective form of incorporation; indeed, strictly speaking the Bill does not propose actually to incorporate the convention into Irish law, only to give it more effect here". How useful will that be for Irish children? If an organ of the State injures children, how will the Bill help them when the only remedy is money? How will the legislation help the children Judge Peter Kelly constantly talks about in his court? It was interesting that the Minister mentioned the last case found against Ireland, which involved a disturbed adolescent and the inadequacy of the remedies for that child. Ireland was pretty badly judged in that case and I see nothing in this legislation to help in that regard.

Article 13 of the convention states there should be a right to an effective remedy. This is not provided for in the Bill. Article 34 states individual applications are possible but that is not being helped either. Article 41 of the convention states people should get "just satisfaction". In Schedule 2 there is provision for the right to education but I do not see where there will be a remedy for children in that regard under this legislation.

When I was a child, I read the book "Heidi", one of the moral tales children were given in those days. In the book the grandfather in the Swiss Alps sent the child out to gather wild strawberries for him. He was ill and wanted to eat the strawberries. The child gathered the strawberries but then got involved in commerce. She sold the strawberries. When she returned to the grandfather with the money, he bit into it and asked how he could be expected to eat it. Money is not always a remedy or what people want. I do not see remedies for those in vulnerable situations under this legislation.

The Bar Council and the Law Society have written about this and a submission made by the interim human rights commission, under the chairmanship of Judge Barrington, was most concerned about the lack of remedies. While I welcome this legislation, I have already tabled amendments to it because there are not enough remedies. One example is the right to education. The convention provides that no person "shall be denied the right to education". There have already been a number of cases in this regard before the courts which have found against the State. The article states: "In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions". These issues are extremely important.

The article dealing with individual applications states:

The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.

However, the remedy of money might not be much good in that case. The article on just satisfaction states: "If the Court finds that there has been a violation of the Convention or the protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party". This again recognises that a monetary remedy may not be what is needed. I regret that the Bill does not make provision for this.

Mr. Kett

I wish to share time with Senator Feeney.

Acting Chairman (Mr. U. Burke): Is that agreed? Agreed.

Mr. Kett

I welcome this important Bill, the purpose of which is to give effect in Irish law to the provisions of the Convention on the Protection of Human Rights and Fundamental Freedoms, more generally known as the Convention on Human Rights. The convention protects what are seen as basic civil and political rights in a democratic state. They are the rights to life, freedom of speech, freedom from torture or inhuman or degrading treatment or punishment and the right to freedom from slavery or forced and compulsory labour. There are many other basic rights which the people of this nation have enjoyed throughout our lives by virtue of the fact that we have been protected by the good Constitution our forefathers had the foresight to frame.

This legislation will lay the foundation for ensuring atrocities and dictatorships will become things of the past. One does not have to look far to see evidence of dreadful atrocities close to the European Union. They include the degrading and inhuman treatment of people in places such as Serbia and Iraq, which demonstrates the need for legislation such as this.

I have no doubt that when this Bill goes through the House and its provisions are enacted throughout the European Union, the laws will then be in place to deal with the perpetrators of such actions should they ever come to pass.

As a nation, it appears that we are quite well placed to meet our obligations under the convention by virtue of having a formal Bill of Rights enshrined in the Constitution. It is acknowledged that Ireland is unique among member states of the European Union and other signatory states to the convention in having a written constitution which embodies a system of fundamental rights chosen by the people and which can only be changed by the will of the people. Our excellent human rights record before the European Court of Human Rights in Strasbourg is due in no small way to these factors.

It could be said to be somewhat appropriate, given the prominence of the ongoing major challenges facing the peace process in Northern Ireland, that we are deliberating on the European Convention on Human Rights at this time. It was precisely on the basis of our commitments in the Good Friday Agreement that the Government decided to bring forward measures to strengthen and underpin the constitutional protection of human rights in the State by drawing on the provisions of the European Convention on Human Rights. In some ways it is a matching, reciprocal Bill that mirrors the 1998 Human Rights Act of the United Kingdom, which took full effect in October 2000 and has special significance for Northern Ireland.

The Government, having considered the matter at great length and, I imagine, great depth, wisely decided to adopt a similar approach and legislate to give further effect to the convention here. It was a very wise decision. The convention, however, goes further than the 1998 Human Rights Act of the United Kingdom and takes into account four additional operational protocols. The 1952 Protocol deals with property, education and electoral rights. Protocol No. 4 prohibits imprisonment for inability to pay a debt and individual or collective expulsion of nationals. Protocol No. 6, as we know, deals with the abolition of the death penalty while Protocol No. 7 contains procedural safeguards concerning the expulsion of lawfully resident aliens, the right of appeal in criminal matters, compensation for wrongful conviction, the right not to be punished twice for the same offence and equality between spouses.

All of these protocols deal with issues of great individual, public and national importance. There are reasonable grounds for believing Protocols Nos. 4 and 7 are extremely germane to the whole series of complex issues which still remain around citizenship in this country. These include issues such as whether the expulsion of a parental figure without Irish citizenship is a de facto expulsion of the child who has citizenship; and whether resident aliens entering or intending to enter into a meaningful relationship with an Irish citizen have protection from expulsion and wrongful conviction or otherwise.

We have noted on other occasions the inappropriateness of sending senior citizens to jail for the non-payment of debt. It is almost always wrong to do such a thing and I am delighted that the provision within Protocol No. 4 will deal with this. We also still have anomalies in our law relating to those who may serve a sentence for the non-payment of a debt. They may go to jail for the non-payment of that debt and still be prosecuted for non-payment after they come out. They may even be sent back to prison a second time. That is a serious anomaly.

The provisions in the Bill will alter the current position fundamentally because they will facilitate the bringing of cases concerning alleged breaches of rights under the convention before Irish courts. We fully accept that from here on we will have two complementary systems in place in Ireland for the protection of fundamental human rights. As the Minister said, the superior rules under the Constitution will take precedence. That is right and proper. The Bill of Rights under the convention will be enforceable in Irish courts, which will speed up the mechanism through which people are prosecuted in this way. This is to be welcomed.

I welcome the provisions of the Bill and congratulate the Government on bringing them forward. It marks a decisive shift in favour of the citizen.

Ms Feeney

I thank Senator Kett for sharing his time with me. We can be proud in this House of the role which Ireland has played on the international stage in the whole area of human rights. It is worth noting that the provisions of the European Convention on the Protection of Human Rights and Fundamental Freedoms were formally ratified by Ireland as far back as 1953, some 50 years ago. It is also worth pointing out that some of our European neighbours have only recently accepted the all-important right of individual petition to the European Court of Human Rights in Strasbourg. The brutality of the Second World War and horrors of the Holocaust profoundly impacted on those who framed the convention. Watching the RTE "Leargas" programme last night from Bosnia, part of the former Yugoslavia, refreshed my mind to the awfulness of the conflict that took place there. Today, more than ever, we should remember this. It should be first and foremost in all our minds.

We all know that the current situation in Ireland is such that arguments based on convention rights, if they can be raised at all before domestic courts, are not of persuasive effect under Irish law. The situation requires that a person wishing to vindicate a right under the convention must first exhaust all possible remedies under Irish law before going to plead his or her case before the European Court of Human Rights in Strasbourg. This is most unsatisfactory. It is for this reason that I welcome the provisions of the Bill which will provide for the bringing of cases involving alleged breaches of rights under the convention before the Irish courts. This is a welcome development for Irish citizens who previously had to exhaust very lengthy and expensive avenues to have their cases heard here first, before going to the European Court of Human Rights.

I know I have very little time but I wish, in the time I have left, to highlight the plight of men who find themselves precluded from visiting their children, or who even find themselves unsuccessful in gaining access to their children. Last weekend I heard on radio of an event held to coincide with Father's Day. It was a silent protest in Dublin held to draw attention to this very issue. This is one of the most important aspects of the European Convention on the Protection of Human Rights and Fundamental Freedoms. It will allow such men to go forward and have their cases heard. It is individuals such as the men who protested last weekend who will get great solace and achieve so much out of the Bill.

I previously omitted to welcome the Minister of State. I say, "Well done" to him and the Government for bringing the Bill before us.

Mr. Ryan

The European Convention on Human Rights is a most extraordinary achievement, not because it contains the wonderful, highfalutin language of, say, the United Nations Universal Declaration of Human Rights but because, within limited legal frameworks, it confers extra-territorial enforcement rights on a court independent of the judiciaries and executives of individual states. It was extraordinary 50 years ago – when concepts of sovereignty were even stronger than they are now – that a group of European states said that, within a limited brief, they would allow their citizens to appeal against the actions of a state to a court which was outside the state and independent of its law and constitution. Like many of the seminal ideas about the European Union, it was visionary and the irony, as others have said, is that had it not been for the horrors of the Second World War, governments would probably never have assembled the political will to set up the European Court of Human Rights. Similarly, but for the Second World War the process of Europe coming together perhaps would never have begun. The convention was an extraordinary and historic idea because it conferred rights on citizens vis-à-vis their own state, enabling them to appeal against its actions and binding the state, except under certain limited circumstances, to respect and implement the outcome.

I agree with the Minister – I have said this on many occasions – that the 1937 Constitution, contrary to much of the superficial liberal analysis of it, is a robust defence of human rights. In many instances, this probably is not worthy of the term "analysis" because people have picked up quaint phrases that characterise the time at which it was written. One has to remember that it was being drawn up when democracy was profoundly unfashionable all over Europe on both the left and the right and within the institution which dominated the ideology of this State, namely, the Roman Catholic Church, which was not keen on it and was quite impressed by many aspects of the so-called corporate state. The wording used in the constitution replicates many of the phrases used in the European Convention on Human Rights, particularly those relating to freedom of speech. The incorporation of the explicit right to criticise the Government sounds quaint, but in the Europe of 1937 it was anything but quaint. There were few countries then – and even fewer two years later – where one, without the risk of being shot – not to mention the risk of being prosecuted – could criticise government.

The 1937 Constitution is usually waved away by liberals as de Valera's constitution, but it is a remarkable document. I would not like the current system of public administration to be given the job of rewriting it because many of the rights that have been developed and interpreted from it could well be heavily qualified. I am certain that the constitutional right to primary education would be diluted because the fashion is to say that the incorporation of social rights into the Constitution is bad. The Supreme Court has taken a view on aspects of this matter which indicates that it is fashionable in the judicial as well as the political process to make such suggestions.

I have no great difficulty with the 1937 Constitution. It contains some quaint language, particularly in the area of women's rights. The most explicitly quaint statement in the Constitution appears in Article 41.2: "The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home." I would be the last person to require any woman to work inside the home, but it is a pity that the constitutional assertion that a woman should not be obliged to work outside the home was not tested. It would do a great deal for women's rights if the right to make a choice was vindicated under the Constitution. Nevertheless, I am an admirer of the Constitution.

The more time I spend in the House, the more I become convinced that specialists should never be let loose in Government Departments. Like the rest of us, the laity can, though perhaps only to a small degree, be overwhelmed.

I have a series of questions about the Bill. I understood that the Good Friday Agreement was an agreement by the State to incorporate the European Convention on Human Rights into Irish law. Manifestly, we have not done that. Nobody is going to argue about that. It is not an incorporation, it is a smoothing and simplifying of the process and many of its elements are a significant improvement on what existed heretofore. For example, it is a huge improvement not to have to undergo the tortuous and expensive procedures that Senator Norris was obliged to go through in that area. It is also a major improvement on what my late friend, Josie Airey, had to go through to vindicate her rights. One hopes that – in contrast to the position 30 or 40 years ago – these things would not be necessary in our somewhat more responsive democracy because the Oireachtas would respond. Nevertheless, while it is a welcome simplification, it is not an incorporation.

One issue the Minister did not address – the failure to incorporate it into law leaves matters hanging – is what will happen if a right identified under the European Convention on Human Rights is in conflict with a right enumerated in the Constitution? While I do not wish to re-open the issue of amendments to the Constitution to deal with the right to life of the unborn, many judicial interpretations have given women legal rights in the area of abortion, based on privacy, and the convention contains a section on the right to privacy. What will happen if there is a conflict between the right of the unborn in the Constitution and the right as interpreted under the European Convention on Human Rights? I would have thought that we would be obliged to clarify that matter.

The Minister said that the possibilities of conflict were few. He used a wonderful phrase about this being "asymptotic" towards zero. I did not think lawyers knew enough about mathematics to be able to put such a phrase together, but it just shows that, if they are obliged to, lawyers can manage most things. There is a possibility of fundamental conflict, in this instance, between the convention and our Constitution.

The Minister made a fascinating contribution, particularly the additional information he offered and his eulogy of de Valera's Constitution. Given the Minister's family origins, the latter was extremely interesting. However, his responses to questions about whether it could be incorporated into law or into the Constitution were among the weakest part of his contribution. He relied heavily on the 1996 review, which was profoundly conservative in nature and which, for example, took a very hard line on the incorporation of social rights into the Constitution.

The review group's hostility to the incorporation of social rights was so explicit that one is led to believe that, had it been given a choice, it would have eliminated the one undoubted social right, namely, the right to a primary education – from the Constitution because there is no reason that this particular right should be the only one. Why should the right to which I refer not include secondary education? Why should there not be a basic right to shelter or to an adequate income on which to live? Why are those different? Why is my right to own property protected in the Constitution, but not my right to shelter? Why is my right to property superior to my right to shelter? We know the answer to that and it revolves around who owns property and who needs shelter.

In the 1930s, in particular, that would have been especially difficult, which is not to malign the Constitution, which, as I have often said, is a fine document and has been extremely robust. The way the Judiciary has used it, too, has been extremely robust. However, the Minister's arguments about the law and the Constitution are the weakest in his very erudite and interesting speech which many law students will read with great interest. When he speaks of the incorporation of the convention into the Constitution, he quotes the review group saying as it "might lead to new gaps in protection in fundamentally important areas, such as the rights to trial by jury."

The convention is a very important document but it is not the only statement of rights. The right to trial by jury could just as easily be incorporated into the Constitution in addition to the convention without any great problem. It would not be beyond the collective wisdom of the Department of Justice, Equality and Law Reform and the parliamentary counsel to incorporate the convention into the Constitution while simultaneously identifying and protecting any rights that the Constitution gives our citizens in addition to those in the convention.

We have already done this to a degree, regardless of my views, on the issue of the right to life of the unborn, which is manifestly not covered by the convention. If we can do it on one issue, I cannot see the reason we cannot do so on many others. The idea that there could potentially be conflict is weak and has to do more with a conservative view of where the convention should be in our legal structure than with logic or any compelling argument. Then there is the argument about making the convention part of the law of the State. The Minister said:

The fatal flaw with such an approach is that it would have the capacity to undermine one of the central pillars of the Constitution, namely, the doctrine of the separation of powers. It would mean that the Oireachtas was investing the Judiciary with a new right to invalidate the laws of the Oireachtas by reference to what was decided by the Court of Human Rights in Strasbourg. In effect, the judges would become law-makers implementing decisions of that court contrary to the exclusive role of the Oireachtas.

The Judiciary became law-makers a long time ago in that regard, mostly where the Oireachtas declined to do its duty, particularly in a number of cases, of which we know in the area of education, and especially in the right to privacy in the McGee contraception case and a number of other such areas where the courts have essentially made law. Their interpretation of the first so-called "right to life" amendment to the Constitution was a clear example of the Judiciary making law because the Oireachtas had failed to do its duty. If the convention was incorporated into law, it would be the job of the Oireachtas to ensure there were no conflicts between it and existing law or, where they became evident, to deal with them or provide a process for doing so, in which case the alleged fear would not arise. The second argument about not incorporating the convention into law is, first, flawed and, second, inconsistent with the history of previous Supreme Courts.

I am well aware that the current Supreme Court has essentially been campaigning to roll back that role of the Judiciary, notably in the Synott case, but in some others, too. However, the fact that the court takes the view and that it is fashionable – I know one eminent legal academic in Cork who is also a good friend who takes a similar view – cannot disguise that what we are doing here is not precisely what we said we would do. We are not incorporating the convention into Irish law.

It seems that we needed to be courageous but that we were not. We needed to take either the legal or the constitutional route, perhaps both, and declined to do so. We have improved the process but not the rights. As several speakers have said, we have left very limited remedies. I am also disappointed at the ungenerous limit of one year's retrospection provided for in the Bill. I would have thought that at least three years would have been a reasonably generous compromise. One year is about as short as one could get away with without being accused of trivialising matters. That is disappointing. The Bill is welcome as far as it goes but does not do what we should have done. For that reason, I must record my disappointment.

Dr. Mansergh

I welcome the Minister of State and greet what I consider major legislation. The European Convention on Human Rights is a radical document. We must remember this when charges of conservatism are made. Ireland has a very good record, as detailed by the Minister, regarding the convention, in particular, in allowing the right of individual appeal from the beginning. My colleague, Senator Feeney, in her very short contribution, put her finger on the Bill's essence. I paraphrase her words. It incorporates directly into Irish jurisprudence – though perhaps not the courts or the Constitution – the Convention on Human Rights in order that, when cases are considered, sections 2 and 3 of the Bill, in particular, will require the systematic interpretation of cases in the light of the State's obligations under the convention. The same goes for the organs of State. That is, in anyone's terms, a major advance.

It was a privilege to be here during the Minister's speech. All of us who know him or have listened to him will know that he has given a tremendous amount of thought and care to this subject and that he is tremendously exercised in a creative way by the tensions between and compatibility of European conventions and law and Irish law. What he is doing is in keeping with the wishes of the people. I had to address a forum on Europe a few nights ago in Sligo. One of the matters about which people are concerned right across the board is alleged loss of sovereignty. One can argue, as I did, that very often sharing sovereignty means enhancing rather than losing it. The care evident in this approach protects our sovereignty in order that when a breach is determined or identified, the Government and the Legislature will decide how it is to be repaired. I do not have the same fears as expressed by some speakers on the other side of the House to the extent that it means that the Government or Legislature might do nothing or something minimalist. This country has been a good international citizen, and if we inadvertently discover that we are in breach of our obligations under the European Convention on Human Rights – it has happened rarely – our record is that we try to repair that breach fully.

This legislation is obviously a consequence of the Good Friday Agreement. Obviously, there is asymmetry between the legal and constitutional situations north and south of the Border. What we signed up to in the Agreement was carefully expressed. It did not state directly that we would incorporate this but that the Government would take steps to further strengthen the protection of human rights in its jurisdiction and bring forward measures to strengthen and underpin the constitutional protection of human rights. The Agreement went on to state that those proposals would draw on the European Convention on Human Rights and other instruments and that the question of the incorporation of the convention would be further examined in that context, with the aim of ensuring at least an equivalent level of protection of human rights as that pertaining in Northern Ireland.

In general, protection of human rights in this jurisdiction has been far ahead of that in Northern Ireland. This is not merely a parliamentary democracy but a constitutional democracy. I have been following with some interest recent political manoeuvres across the water about the existence of the Lord Chancellor and the Law Lords interfering with the separation of powers.

It has been gratifying to hear the Constitution being vindicated on all sides of the House. De Valera was its prime mover but we should also remember the very able team of legal advisers he had, including John Hearne and others. Obviously, it was a collective effort by some of the finest legal minds among the pioneers of the State.

I know the Minister is worried at times by the relationship between common law and Roman law and so on. I do not necessarily always go along completely with him on the total superiority of the systems of law we have on these islands over those on the Continent but obviously the European Convention on Human Rights and the way it is implemented blend our law with European rights and traditions. There is much that is positive in European legal traditions and I have no particular queasiness about them. There are negatives involved but there have been negatives in our case also; the system of human rights protection we had, which we have praised all morning, unfortunately did not prevent serious cases of child abuse in previous decades. We need to keep our perspective and improving the position.

While there is a high level of compatibility between the Constitution and the convention, and with the European Charter which has come from the work on the draft convention, we should not take the view that these have nothing to add. In many ways they express things in different ways or more directly. I am happy we are to have both – the best in the combined tradition of the Continent, to which we belong, and the best of what we have developed. It is not one above the other but the parallels can be made compatible and consistent to the maximum extent.

In general, the Constitution covered economic and social rights but made them mostly non-justiciable – the directive principles of social policy. Beyond very general statements I would hesitate to transfer responsibility for what ought to be done by Government and Parliament to the courts. It is a job for the Government elected by the people to solve housing problems, health problems and so on. We should not remit all of this, faute de mieux in the eyes of the proponents of that idea, to the Supreme Court to settle.

I fully accept Senator Henry's comments on the need to further improve prison facilities and the Central Mental Hospital. We have put a lot of investment into new prison facilities, some of which I have visited. While they are very good, obviously it does not pervade through the system. We need more.

I am very happy with this important act of completion. The Minister has found a way to deal with this which will enter the legal and political history books, on which I congratulate him.

Mr. Norris

The background to the Bill is quite clear. Ireland is one of the ten founding signatories to the European Convention on Human Rights. As we had the first case, the Lawless case, to be heard in Strasbourg, we have had a long period of involvement. However, I can only give the most guarded welcome to the Bill, as it is quite clear it takes a minimalist approach. We are doing the least amount possible in the circumstances. This is not at all adventurous and flies in the face of the best legal opinion in the country, including that of the Human Rights Commission which advised strongly on a different option. We have worked ourselves into a complete nonsense in some sections of the Bill where we have provided for a situation where a citizen can go to a domestic court in Ireland for a declaration that the impugned section of the law or behaviour contradicts the European Convention on Human Rights but remains compatible with the Constitution; despite the damage done to that individual's rights, he or she has no remedy. That is extraordinary. We are placing the court in the invidious situation where it will find a violation of fundamental human rights but there is nothing it can do about it. It can rely on an ex gratia payment from the Attorney General and perhaps resort to the European Court in Strasbourg again.

I have a review by the Human Rights Commission of this matter which quotes the old Latin tag, ubi ius ibi remedium– where there is a right, there is a remedy. That is a basic principle not only of international law but also of the Constitution, Article 40.3 of which states:

1º The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

2º The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.

The State is not doing this. The legislation provides citizens with a certificate stating their rights are being violated and virtually nothing can be done about it. This flies in the face of the Constitution. The Human Rights Commission states it is unacceptable to place the courts in a position where they can identify a breach of human rights and not be in a position to give an effective remedy.

I speak with some feeling on this because I am in the unique position of being the only Member of the Oireachtas who has used all these mechanisms. I know we had to exhaust domestic remedies and then go to Europe but in the earliest cases heard in court in Dublin my legal team argued the question of the European Convention on Human Rights and its application here, suggesting it should at least be taken into account. During that case a decision was handed down in an identical case in Strasbourg. However, judges in this country found against me. Something, therefore, that had been identified as a breach of human rights under a major international instrument was found compatible with our Constitution. In addition, I, as a citizen, was debarred from introducing arguments under the European Convention on Human Rights because it was not incorporated into Irish law.

I regret that this legislation is only being introduced because of two factors, the first of which is embarrassment at our inglorious isolation in Europe as the only one of the 43 subscribing states which has not incorporated the European Convention on Human Rights since Norway incorporated it in 1999. There was a kind of disgraceful isolation in Europe. The second factor is the Good Friday Agreement which, more or less, put the real pressure on us politically.

We found ourselves under pressure to which we are reacting. We were told by Professor William Binchy in his submission to the Oireachtas Committee on Justice, Equality, Defence and Women's Rights on 18 December 2002 that there are three ways – two good and one that is not so good – to deal with this matter. We have gone for the way which is not so good. The first way is the full constitutional incorporation by referendum, which is complicated, difficult and could backfire. The second is full incorporation, for which most countries – but not Ireland – have opted.

I attended a lecture by an individual with distinguished legal mind, Donncha O'Connell, who is a lecturer in law in the National University of Ireland, Galway, on 26 November last year on this attempt at incorporation. He called it clever and elegant or too clever by half. One can guess on which side he comes down. He said that we take the worst of the options and we do what is done when we feel particularly intellectually lazy, namely, we look to see what the United Kingdom has done. He calls it the Delia Smith factor in that we reach down and say "Here is one I prepared earlier". That is what we have done, despite the fact, as Senator Mansergh pointed out in his interesting contribution, that this is not really primarily a parliamentary democracy. This is much more a constitutional democracy.

The United Kingdom Government chose this particular minimalist approach is because it was concerned about the primacy of Westminster and Parliament and about the separation of powers, all issues which have been dealt with in some technical detail by the Human Rights Commission and dismissed. Despite the fact this is, as Senator Mansergh correctly stated, a constitutional democracy, the Government has taken down a model which – by virtue of the definition the Senator provided – is less applicable to and appropriate for this jurisdiction. That is a cause for concern.

The Irish Council for Civil Liberties strongly promoted the full incorporation of the convention into domestic law by legislation and provided a list of reasons for so doing. It would allow Irish citizens and all those under Irish jurisdiction to have full access to their convention rights and to seek vindication of such rights before domestic authorities without having to undertake an often long and costly case all the way to the European Court of Human Rights in Strasbourg. One could go take a shortcut and go directly to Europe, instead of having to go through the High Court, the Supreme Court and then to Strasbourg. It would be a kind of one-stop-shop.

I remind the House that it is an extremely expensive undertaking to get a case as far as Strasbourg, where there is always the possibility one may lose and that costs may be awarded against one in the domestic courts. The latter happened to me in the High Court, although the decision was reversed by the Supreme Court as it was determined to be a matter of constitutional importance. There is always this aspect of expense.

Somebody used a lovely phrase about the crux of this Bill being the extent to which we wanted to determine issues of justice in our courts or export them to Strasbourg. If there was full incorporation, there would be far less traffic to Strasbourg and we would be able to handle our affairs here far more adequately and consistently. That is another argument in favour of full legislative incorporation.

Incorporation of the convention would also bring Ireland into line with standards of human rights in the United Kingdom and in the North of Ireland, so it would satisfy the requirements of the Good Friday Agreement. It would also support and underpin existing constitutional rights protection and help to bring about an equivalence of protection of human rights in Northern Ireland and in the Republic of Ireland. The common understanding of rights and a unified approach is an important aspect of the Good Friday Agreement. At a minimum, in terms of a legislative incorporation, the Irish Council for Civil Liberties believes that the Bill should provide that the convention should have the force of law within the State, notwithstanding any contrary provisions of any other statute. I understand that this is what has been done in Sweden and I see no reason that it should not be done here.

I return to the question of relief. It seems quite extraordinary that one cannot get proper relief. The question of compensation will be left to the discretion of the Attorney General. That is completely wrong.

I also received a brief from the Children's Rights Alliance. Again, it comes down very much against the method of incorporation the Government has chosen because it is minimalist. The alliance is looking for the legislation to be amended so that there is full incorporation of the European Convention on Human Rights. I understand that some amendments have been tabled. I received some amendments from the Law Society which I have put down. My colleagues, Senator Terry and Senator Henry, have probably received similar correspondence because I notice many of the amendments are virtually identical.

In political terms, the House is supposed to be act as a revising mechanism and as an instrument for refining legislation in order to make it more efficient and friendly to the citizen. The manner in which the Government takes these amendments on board will, therefore, be a test of the way it regards this House because serious and constructive amendments have been put down which will resolve the idiotic situations where there is a declaration that something is wrong, or that a wrong has been committed against a citizen, but where there is no proper recourse or remedy.

I wish to refer to another point which has been raised with me on that matter. If, for example, somebody is sentenced to a term of imprisonment under a law which has been found to be in breach of the European Convention on Human Rights, what recourse is there for the appellant? This is a practical and serious matter in that somebody could be jailed, which could have happened to me. Under the previous Acts, which I managed to impugn successfully in Strasbourg, I could have been sent to jail in this jurisdiction despite the fact that these laws had already been identified as a serious breach of human rights. Under this legislation, if this happens in the future to another citizen, he or she will have no remedy in that the only remedy of any use would be to obtain an order from the court for release of the prisoner. That is another classic example of the tantalising situation where a wrong has been determined against a citizen but no proper remedy has been found for the appellant by the State.

I regard this legislation as a rather grudging move in the right direction. Quite a number of anomalies and difficulties have already been identified in it. The apparent exclusion of teaching institutions, particularly those controlled by the Church, under the definition of "organ of the State" is regrettable. Senator Mansergh referred to the fact that it had proved impossible, even under our admittedly good Constitution, to protect the rights of people who were in these State institutions. Having acknowledged that, we are enacting a Bill which will make matters even more difficult and under which these people will not have any rights because the bodies which offended against them in the first instance will, apparently, be excluded from its provisions.

While I welcome anything that moves in the direction of human rights and their greater acknowledgement by the Legislature, I regret that the overwheming advice given to the Government from all bodies, including the Human Rights Commission that it established, has not been taken on board. We have gone for the minimalist approach that has landed us in a series of legislative contradictions. The former distinguished Member of this House, Dr. Maurice Manning, chairman of the Human Rights Commission, said: "We felt then that a more robust approach would strengthen human rights here and would facilitate ordinary citizens". In other words, it also saw this as the least useful of all the options. To reiterate, Professor Binchy said there were three options: one good; one less good; and one absolutely not so good. For which one have we gone? We have gone for the least good of all the options in a slavish imitation of the United Kingdom Government which is operating in a different legal context.

Minister of State at the Department of Justice, Equality and Law Reform (Mr. O'Dea)

It was very interesting to be here today to hear Senator Norris agreeing with Professor Binchy. This must be the first time ever this has happened.

Mr. Norris

Not really. It is only on moral issues that we disagree.

Mr. O'Dea

I sincerely thank all Senators for their erudite contributions. I am sorry for only being here for the last hour of what was no doubt a very interesting debate in which very many interesting points were raised. I am sure Committee Stage will be very interesting.

Senator Jim Walsh raised a point about the involvement of the Human Rights Commission. To clarify the position, the commission will have no automatic right to be heard in these or any other cases arising outside the Bill. A balance has to be struck between its role in advising the court and the court making a decision on whether the commission should be allowed to get involved on the facts of each case. What will happen is that the commission will be notified about the making of a possible declaration of incompatibility. It will then have the right to apply to the court on whether it should be heard. The court will have to weigh up a number of factors, the primary one being, as the Minister said, the paramount need to be fair to the parties concerned. That will be the extent of the commission's involvement.

Senator Henry's references to the criticisms of the Bill, particularly section 5, were based on a reading of the section which was not correct. The position has been explained at length by the Minister in the interim and we can deal with the details on Committee Stage.

To reply to Senator Ryan, the Good Friday Agreement obliges the Government to further examine the question of incorporation of the European Convention on Human Rights in the wider context of strengthening and protecting human rights. That is what was decided, as Senator Mansergh pointed out very clearly. That is what the Good Friday Agreement states. There was no reference to incorporation of the convention into the Constitution or domestic law per se. In any case incorporation has many meanings. I am advised that what is proposed in the Bill accords with the Oxford English Dictionary definition of the word “incorporation”. In a possible conflict between the Constitution and the convention the Constitution will prevail. As the Minister said, incorporation of the convention into the Constitution is neither necessary nor required. The outcome of any possible referendum on the issue, which we would have to have, cannot be predicted with any accuracy. I think Senator Mansergh also adverted to this—

Dr. Mansergh

Could be.

Mr. O'Dea

—regarding the genuine concerns some have about sovereignty. We have to take their points of view into account.

I always listen with great interest to Senator Norris but particularly on this occasion because he is, as he rightly pointed out, the only Member of the Oireachtas who has had the initiative and courage to take a case all the way to Strasbourg, on which I compliment him.

Ms O'Rourke

Hear, hear.

Mr. O'Dea

Unfortunately, the Senator's first reading or understanding of the Bill may have been slightly flawed. The position, as I understand it, is that, as matters stand, a litigant may go all the way to Strasbourg but all he or she will get there by way of compensation are damages. Looking back at the tradition of the awards given in Strasbourg, I understand the amounts are parsimonious.

Mr. Norris

I got nothing. Not one cent.

Mr. O'Dea

Indeed. As matters stand, when the Bill becomes law, if the State or any public body is found to be acting in a way which is in breach of the convention, the person concerned will be able to receive damages, not ex gratia but as of right, provided the action in respect of which he or she is getting damages also involves a breach of the Constitution. It is only where the Constitution has not been infringed that he or she will have to take the ex gratia route. Let me explain. The ex gratia route does not mean that a person will not be entitled to an award or will not get damages. Of course, he or she will but it has to be done this way because there is no provision in Irish law which enables a court to grant damages for something which is not in breach of the Constitution. As that is the reality, we are doing it this way. One will not have to go to court to receive this ex gratia award or to Strasbourg to determine quantum. It will simply be a matter of applying. The Attorney General and his staff will work out a formula to calculate damages. While I hope there will not be too many breaches, no doubt, unfortunately, there will be some. A set of precedents will be established and people will have a very good general idea of where they are going.

Mr. Norris

Can they appeal the amount?

Mr. O'Dea

One's right to go to Strasbourg will remain unaffected. If one wants to take that route, it will still be available.

On the question of appealing the amount, it is not appropriate to talk about appealing something declared to be ex gratia but I will check that point for the Senator.

Mr. Norris

That is the problem.

Mr. O'Dea

The Senator quoted from various documents. I understand where he is coming from but, unfortunately, the people who submitted these proposals do not have a monopoly of wisdom. We have received an equal, if not greater, amount of representations from the other side. There is the continuing question of sovereignty. The Senator decried our decision to take the United Kingdom model but we are not accepting it in its totality – our model is much better. Sometimes even the British get it right. The Senator is suggesting we use the Swedish model but the British model has just as good a chance of being right as the Swedish one.

Mr. Norris

Ours is weaker in some respects.

Mr. O'Dea

In reality, the Minister has found a very innovative solution to this thorny question. The debate so far has been very interesting and I am sure the debate on Committee Stage will be no less robust. We look forward to it.

Question put.

Tá

Brady, Cyprian.Brennan, Michael.Callanan, Peter.Cox, Margaret.Daly, Brendan.Dardis, John.Dooley, Timmy.Feeney, Geraldine.Fitzgerald, Liam.Glynn, Camillus.Hanafin, John.Kenneally, Brendan.Kett, Tony.Kitt, Michael P.Leyden, Terry.

Lydon, Donal J.MacSharry, Marc.Mansergh, Martin.Minihan, John.Mooney, Paschal C.Morrissey, Tom.Moylan, Pat.O'Rourke, Mary.Ormonde, Ann.Phelan, Kieran.Ross, Shane.Scanlon, Eamon.Walsh, Jim.Walsh, Kate.

Níl

Bannon, James.Bradford, Paul.Browne, Fergal.Burke, Ulick.Cummins, Maurice.Feighan, Frank.Hayes, Brian.Henry, Mary.

McCarthy, Michael.McHugh, Joe.Norris, David.O'Meara, Kathleen.Ryan, Brendan.Terry, Sheila.Tuffy, Joanna.

Tellers: Tá, Senators Minihan and Moylan; Níl, Senators U. Burke and Terry.

Question declared carried.

Committee Stage ordered for Thursday, 19 June 2003.

Sitting suspended at 2 p.m. and resumed at 3 p.m.