How well we know it. Here we have no abiding city.
When considering this amendment, we must start with the European Convention on Human Rights. The fundamental principle, common to the legal tradition of all member states – more markedly to those of a civil than a common law tradition – is the distinction between public and private law. In this provision of the Bill the Minister is trying to grapple with that fundamental distinction between matters which pertain primarily to private disputes between parties, be they corporate or individual, and public law, which lies in the public domain. When the convention was adopted, it was always intended by the high contracting parties that it was an instrument of public law that regulated on the international plane the relationship between the contracting states and their individual citizens.
The heart of the Bill is section 3 which obliges the organs of the State to perform their functions in a manner compatible with the State's obligations under the convention provisions and creates a remedy in damages where there is a contravention and no other remedy for damages. While I do not want to anticipate further discussion, I am certain we will be arguing whether that was the appropriate mode of implementation. However, that is the appropriate mode for the purposes of this discussion.
Given that this is the case – this issue would arise on any mode of implementation – a distinction must be drawn between that which clearly lies in the public realm, that is, in the realm of the State and its relation with its citizens, and in the private realm, that is, a dispute between private individuals. It is not intended to incorporate the convention for the purposes of creating individual rights in private disputes between citizens. Therefore, some standard, rubric or definition must be provided to guide the courts. The decision of the Government is that the concept of the "organ of the State", which interestingly for the purposes of the Bill is different from the purposes of an organ of the State in the Constitution, should be the talisman used for the purpose of making that distinction.
The definition section states:
"organ of the State" includes a tribunal or any other body (other than the President or the Oireachtas or either House of the Oireachtas or a Committee of either such House or a Joint Committee of both such Houses or a court) which is established by law or through which any of the legislative, executive or judicial powers of the State are exercised.
Once there is, therefore, an establishment by law or an exercise of any of those powers of the State, other than by those designated bodies, then there is a public body which is subject to the conventional rules. That is the way it is laid out in the Bill.
The Senators are proposing in the amendment to introduce a super-added requirement or standard which, in my view, would only confuse the issue before the courts. Under the amendment, the courts would be obliged to consider "any person or body certain of whose functions are functions of a public nature, but in relation to a particular act, such a person or body shall not be an organ of state if the nature of the act is private." In this amendment, a similar attempt is assayed to provide a standard whereby we delimit what is the public sphere from the private sphere.
The courts will be left with the difficulty of interpretation to which I refer in particular contexts. In the context of our domestic law and judicial review proceedings, the issue has always arisen about whether university disciplinary tribunals and the Turf Club have a sufficient public character to be amenable to judicial review proceedings or whether they are, essentially, of a private character. A court looking at this question, under this particular Bill, will have to decide whether the body is established by law. The latter will capture a great range of bodies.
Reference was made to private hospitals. Many private hospitals in this State are established by law, be it in the form of public or private Acts passed by the current or previous Parliaments.
Reference was also made to schools, a great many of which are also established by law. With the Education Act, the legal recognition of schools is now considerable. The idea, therefore, that somehow, by this definition, schools and hospitals are entirely outside the scope of the Act is simply not correct. I do not want to anticipate anything the courts will decide, but, as I said on Committee Stage, it is difficult to provide an exhaustive list on a subject of this kind.
What has been provided in the Government proposal is a definite standard, based on the organ of State. I conceded in committee – perhaps in jurisprudential curiosity – that the idea of the organ of State in the Bill is not the same as an organ of State under the Constitution; it is a different definition because some of the higher constitutional organs have been expressly excluded for other reasons, about which, perhaps, I anticipate we might have another discussion.
On this definition, the substance of the amendment tabled by Senators Norris and O'Toole is incorporated in the proposal before the House and that to introduce the alternative standard of "such a person or body shall not be an organ of state if the nature of the act is private" would only to add to the confusion. That, essentially, is my case on this amendment, although I do accept that it is designed to elucidate this issue of where one draws the boundary line.
This is an issue which, ultimately, we must leave to the courts as an exercise of interpretation, given the large and variegated number of bodies concerned. However, to reply to Senator Henry, I do not accept the proposition that schools and hospitals, as such, are excluded from the scope of the Act simply because of the expression used.