Vol. 173 No. 12
Before we commence I remind Senators that a Senator may speak only once on Report Stage, except the proposer of an amendment, who may reply to the discussion on the amendment. In addition, on Report Stage each amendment must be seconded.
Amendment No. 14 is related to amendment No. 1 and amendment No. 2 is consequential on amendment No. 14. Amendments Nos. 1, 2 and 14 may be taken together, by agreement. Is that agreed? Agreed.
I move amendment No. 1:
In page 3, after line 37, to insert the following:
"(e) Protocol No. 13 to the Convention concerning the abolition of the death penalty in all circumstances, done at Vilnius on the 3rd day of May, 2002;”
This amendment was also discussed on Committee Stage. I have tabled it again because, as Protocol No. 13 will come into force in less than two weeks – on 1 July – it should be incorporated in the legislation. I have read the report of the Committee Stage debate and I cannot understand the Government's reasoning in not including Protocol No. 13 at this stage because it will come into effect and is similar to what is contained in the Constitution. Protocol No. 6 will be superseded by Protocol No. 13, which is stronger and absolutely prohibits the death penalty.
I would like to hear the Minister of State's comments. I hope he has reconsidered the position since Committee Stage.
I second the amendment.
It is difficult to explain in any greater detail the reason the Government cannot accede to this amendment. The matter was explored in some detail in the Lower House and on Committee Stage in this House. The primary issue is that it is not the practice to include a reference in legislation of this type – that is, a Bill which proposes to give effect to rights – to an international instrument which will come into force at a future date. The protocol in question will not come into force until 1 July next but in all probability the Bill will be signed by the President before that date. We would have to incorporate in the legislation a reference to a contingency – a highly probable contingency, I agree – were we to follow the route proposed by the Senator.
The death penalty has long since been abandoned by the State. It was finally abolished in statute law in the Criminal Justice Act 1990 and had not been used since 1954. The passing of the 1990 Act fulfilled our obligations under Protocol No. 6 which extended the protection of life provided for in Article 32 of the convention in that it expressly abolished the death penalty in peacetime and created an enforceable right not to be condemned to death or executed.
Protocol No. 6, the predecessor of the protocol referred to in the Senator's amendment, allows for derogation in time of war or imminent threat of war. We ratified the protocol on 24 June 1994. Under the 1990 Act, the State was in a position to ratify the second optional protocol to the UN International Covenant on Civil and Political Rights which also abolished the death penalty but allowed for a reservation in time of war. At the time of ratification of that particular international treaty the Government declined to avail of this qualification.
The statutory changes effected by the 1990 Act were not reflected in the Constitution. Without a constitutional prohibition, the Oireachtas could have reintroduced the death penalty by statute in circumstances allowed for in Protocol No. 6, for example, in time of war. The Government could also have invoked the procedure under Article 28.3.3º of the Constitution to proclaim a public emergency and use the emergency provision to provide cover for the utilisation of the death penalty. The last Government submitted the Twenty-first Amendment of the Constitution Bill to the people in 2001. It was approved by the people in a referendum as a result of which there is now full constitutional protection for the right to life and protection against the death penalty written into the Constitution. The death penalty cannot be reintroduced at any stage because the public emergency clause in our constitutional arrangement was also amended.
State practice now conforms entirely with UN practice and best international practice in this respect. It goes beyond UN practice and conforms to Protocol No. 13. Therefore, it is not strictly necessary to add this protocol to the Bill. The people have entrenched its substance in the Constitution. In practical terms, it is difficult to see what the amendment would add to the substantive provisions of the Bill. Having said that, I appreciate the Senator's motivation in tabling it. It is regrettable that because of the legal drafting tradition we do not anticipate future contingencies and the Government does not think possible to incorporate proposals in legislation.
Ireland is now a totally abolitionist State in relation to the death penalty and our constitutional provision which can only be amended by the people goes beyond UN practice and is fully in line with best up-to-date European practice. I doubt if many other European states have such a record in their parliaments.
The Minister of State is wrong in this regard. The introduction of the legislation and the coming into force of the protocol are simultaneous events. However, I will withdraw my amendment.
I move amendment No. 3:
In page 4, line 19, after "exercised" to insert "and shall include 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".
This amendment was tabled by Senator Henry on Committee Stage. There are a number of similar amendments. The purpose of the amendment is to encompass in the legislation bodies such as schools and hospitals. I know there is an argument that some of these are private. In reply to this amendment on the previous Stage the Minister of State said:
If one examines the issue of hospitals, one sees that a health board is a body established by law under the definition provided by the Act. In the case of a private hospital, other considerations would apply.
However, these other considerations are not spelled out by the Minister of State who makes a kind of logical jump to say it is not possible or very difficult in legislation to construct a list. We have had this argument before. However, that was not my intention or that of Senator Henry. We want to extend the definition in these very clear circumstances and deliberately avoided any suggestion of a list in the amendment. There is a suggestion of making the test more inclusive in terms of human rights.
What exactly is a private hospital and what is so special about it? What are the rights of patients in a private hospital? Are they not at least the same as those of patients in a State hospital? Is the Minister of State contemplating turning a blind eye to violations of the European convention if they occur in private hospitals or schools as opposed to State hospitals and schools? It is worth asking this question. If I recall correctly, the Minister of State also said we were perhaps blurring the focus by including two standards. If it is necessary, let us have two. They are not necessarily two standards but if that is the case, so what? If it protects the rights of the citizen, I do not care if we have six standards. I am not interested in the technical problems that may be created for courts but the protection of the rights of the individual.
The Minister of State may well be able to come up with an answer. An answer is required as to the reason, if this is the case, as it seems to an ordinary person such as me, patients in a so-called private hospital or students attending a private school as opposed to a public school should have less rights and the European convention should not come into operation.
We now live in quite a sophisticated society. Perhaps we need this double focus because the degree to which institutions within the State are genuinely private is quite different from what it would have been in the Victorian era. There is a whole network of supports within the State in which private hospitals and schools participate. It is astonishing that a proportion of schools and hospitals should appear to be exempt from the operations of the Bill, even though we know these are two of the prime locations for abuse of the rights of the vulnerable. It seems to be more than ever necessary for these rights to be protected.
It may be irritating for these amendments to be tabled again but this is done in the light of further thought on the matter and the desire to get further information from the Minister of State. There are some amendments in my name, tabled just because I did not call a vote the last time and in the hope of a deathbed conversion by the Government, which upon reflection will eventually see sense. On a number of these issues, it has changed its mind, having more or less indicated during the Dáil debate that it would make a change. Although it then had a kind of hiccough, perhaps a reversion is possible. I have asked a number of questions and will not go on at any greater length. I would be grateful if the Minister of State replied to those specific questions.
I second the amendment and thank Senator Norris for tabling it again. I was more concerned after the reply from the Minister of State at the Department of Justice, Equality and Law Reform to my amendment which was worded the same as this one on Committee Stage. In this country we have a long tradition of private institutions carrying out functions for the State. As I pointed out when we had this debate on Committee Stage, I was not looking for the Minister of State to make some sort of list now because, unfortunately, we have ended up with one from the Laffoy commission where private institutions which were carrying out functions for the State had to be investigated. I strongly believe this amendment should be accepted.
I was particularly anxious about the reference to private hospitals and how they would be different. Even as we speak, under the national treatment purchase scheme, we are paying private hospitals to carry out work on public patients. They should not be treated under a different regime to public patients within public hospitals. I am more anxious now than I was after hearing the Minister of State's replies on Committee Stage because of our long tradition of private institutions carrying out work for the State.
On numerous occasions it has gone badly wrong and now the State is paying for public patients to be treated in private hospitals – it is not as though they have wished themselves into this situation. The State has purchased the treatment for them, yet apparently they will not be covered by the same legislation as public patients being treated in a public hospital. I require no deathbed conversion; I wish the Government good health and hope the amendment will be accepted.
I regret there are no signs of conversion, although I do not accept the Government is on a deathbed.
We are all perishable goods. Everything has its time.
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.
I did not mean that they were excluded. I just wanted to be sure that they are definitely included.
The Senator rightly traced the very varied history of many of these institutions. That history concluded in recent decades with an increasing assimilation to the State and to the public sphere, but it is difficult to say with legal certitude in the case of any of these entities. The health boards and all the hospitals within them are clearly established by law, but the voluntary hospitals were established by enactments over many decades and, on one view of the matter, are established by law.
The question then of a pure hospital established under the Companies Act, as would be the case with some modern private hospitals, would again raise issues of interpretation as to whether incorporation under the Companies Act would constitute being established by law for the purposes of the Act. Without anticipating what might be decided, that might well turn on the amount of public funding which was committed to these institutions. They are questions of degree on which a court would have to make a judgment in the case of the application of the convention proceedings in a concrete case and it would be difficult for us to legislate by anticipation for all the different kinds of cases which might emerge.
I want to comment on this matter.
A Senator may speak only once on Report Stage.
I understood that I could speak more than once if I was the proposer.
I apologise.
I think I am correct, that I can reply as a proposer.
Yes.
There may have been some confusion because Senator Henry put the amendment down originally. We all got the same list of amendments and then she teased the matter out with the Minister of State, who may have assumed that she was the proposer. It is somewhat confusing, a little like the difference between public and private functions, organs, etc.
The Minister of State seemed to suggest that even what we think of as private institutions, when carrying out a public function, may already be covered by this legislation and that any institution established by law is automatically covered. Is that correct?
The definition of organ of State includes any body which is established by law. I went through the various implications of that with the Senator.
That certainly makes it broader than we assumed because one of the problems we were thinking about is private hospitals – which have an excellent record – such as the Blackrock Clinic. What was concerning those of us on this side of the argument was that groups such as those to which I refer might be outside the operation of the law. However, it seems that the Minister of State's position is that they are very clearly within it or at least that there is a strong possibility that the courts might interpret this.
It is open to the courts to make those interpretations. I do not want to be giving an interpretation in advance of a concrete adjudication. I raised the issue about the hospitals and I gave the example that many of the older voluntary hospitals clearly had a foundation in statute. Where some of the newer private hospitals are established by companies under the Companies Act, I suspect an issue would arise as to whether incorporation under that Act was sufficient to amount to something being established by law within the meaning of the statute, whether that was an essentially private or public exercise. I suggested that that it might well turn on the issue of how much public funds were committed to the institution in question. That is speculation.
Our difficulty is that there is a very long list of bodies which carry out mixed private and public functions. We are trying to provide a standard based on established by law or performing executive, legislative or judicial functions of the State and, on that basis, the courts will have to make a call on whether the body falls within. The alternative for us was to formulate an exhaustive list, which would be difficult to do.
I do understand the Minister of State's difficulty in terms of lists. We have had this problem on a number of legislative proposals over the years. I understand that to do so is technically difficult and usually a waste of time. That is why we were trying to frame something which did not involve the list system.
If I may tease this out a little further, the kind of institutions about which people would be concerned would be, for example, institutions which already have a fair degree of exemption because they have been exempted by this Government and by the proposals of the previous coalition Government, which included the Labour Party, from the operation of legislation such as the Equality Act.
I refer to institutions of which, for example, the Roman Catholic Church would be the proprietor. Does the Minister of State imagine that Catholic schools and institutions will be taken in? Are they private or public? They are certainly treated as private in terms of much of the equality legislation and they are excluded. It has always seemed extraordinary to me that a Christian organisation full of brotherly love, tolerance, etc., should want to get out of provisions on equality and fairness in employment, etc. Are they excluded or will they be included here, in the Minister of State's opinion?
The Minister of State obviously cannot give a clearer reply. This is because they did not go down the proper way. They did not do the legislative incorporation, which every legal body told them they should. They chose the worst of the three options and everybody told them. I will not, therefore, apologise for the tangle we may be in this afternoon. It is all of the Government's own making. If we get tied up in knots here and if we are a little tiresome, all I can say is that this is the price.
In terms of public and private, I return to the Bible which states that by their fruits shall ye know them. One can tell what is a public or a private body by the behaviour in which it engages. Such bodies can be a mixture. They can on one occasion be exercising a public function and on others be exercising a private function.
I want to echo what I said on the previous occasion. I am absolutely delighted with the Minister of State's acknowledgement that an organ of the State is not an organ of the State for the purpose of this Bill. That is just wonderful. If he carries on like this, we could cure disease by saying that cancer is not a disease in the meaning of this Bill and we could cure thousands of people all over Ireland. It is a marvellous way to behave, saying that something that is fact is not fact for the purposes of this Bill. I love it; it is surreal.
It also raises the question, however, of whether this is constitutional. If a thing is defined in the Constitution in a certain way and then we give a different definition in a legislative proposal, does that impugn the constitutionality of the legislation? I do not know. It is a technical question and I am not sure if the Minister of State and his advisers will have an answer at hand. If they have, I would be very glad to hear it because it seems that where there is a conflict between the Constitution and the law, the Constitution wins. I would regard that as obvious. In particular, the Irish version of the Constitution wins. We have the supreme legislative document which is the Constitution of Ireland. I do not know if this causes a problem.
The Senator is correct. The Constitution has supremacy in relation to the particular Bill and, upon enactment, over this legislation and there is no question about that. A wider question could conceivably arise where the court in Strasbourg decided that a provision of the Constitution itself was in contravention of the European Convention and that would be a horrible vista for any Irish Parliament to contemplate. Happily, it has not happened yet. There is a substantial degree of convergence between the rights conferred by Articles 40 to 44 of the Constitution of Ireland and the rights recognised in the convention.
On the question of the schools, the Senator will be aware of the position of the universities which now rests on statute, but that one particular university, the University of Dublin, which the Senator represents here in the Oireachtas, took umbrage at the course adopted and decided that to preserve its essentially private character, it would promote a Private Bill through these Houses to regularise its position in relation to that legislation. That is a very practical illustration of the difficulty the courts will be confronted with in determining whether an act is essentially public or private in character.
Likewise regarding the first and second level schools, not all of them are established by law – far from it – but they have been recognised by law for many years. The recognition in the Education Act 1998 is more comprehensive than any previous recognition, although that Act still has written into it another biblical maxim which the Senator did not refer to: "Render unto Caesar that which is Caesar's and unto God that which is God's".
Is amendment No. 3 being pressed?
Yes. May I go a little bit further and then I will leave it?
Either the Senator is stretching Standing Orders or I am.
The Minister of State did not answer a question. There was wonderful footwork where he went off into the conflict between the European Convention and the Irish Constitution. That was not what I asked, but it was a nice little effort which would have been worthy of his father at his best.
That is a compliment.
Of course it is a compliment. I admire parliamentary skill. Will he assure me about a conflict between this legislation and the Irish Constitution because of the difference in definition of "organ of the State"? I am interested in that and then I will let it go.
I have received the advice of the Attorney General. The previous Attorney General, now Minister for Justice, Equality and Law Reform, has taken a huge interest in this measure. The legal advice the Government has received is that the legislation is in accordance with the Constitution.
That is called "Blame the PD".
Amendment No. 4 is in the name of Senator Norris. Amendments Nos. 5 and 6 are related and may be discussed together by agreement.
I move amendment No. 4:
In page 5, lines 27 and 28, to delete "on any question in respect of which that Court has jurisdiction".
I am giving the Government an opportunity to re-think this issue and come back to the House. It is a question of the proofs involved and legal procedure and so on. It is a technical amendment. I made all the arguments on Committee Stage and I do not have any new ones. Perhaps they will be provided when the Minister of State makes his contribution.
I second the amendment.
These are very technical amendments, as the Senator rightly acknowledges. They relate to the doctrine of judicial notice, which is that branch of the law of evidence that says to the court: "What can we know without having to have it proved before us?". For example, the Act of the Oireachtas has to be proved by simply handing in a Stationery Office copy. There are many wonderful branches of the law about whether judges should know the different types of animal that are in a zoo, for example, or whether Seanad Éireann has 60 Members or whether the boundary of County Louth begins at Carrickallan when one crosses the land frontier from Northern Ireland. In the present context, our legal advice is that the phrase used in the subsections concerned – I know there are some cognate amendments tabled by Senator Norris in respect of it – is the correct way of putting this matter.
The Minister was receptive in the other House to looking at this issue again, but having discussed the matter with the Attorney General, the legal advice was strongly that the words which the amendments seek to delete should remain in all three subsections and that they provide a greater accuracy in relation to the matters of which a court should take notice, namely that the court had jurisdiction.
I move amendment No. 5:
In page 5, to delete lines 29 to 31 and substitute the following:
(b) any decision or opinion of the European Commission of Human Rights so established on any legal question,".
While I wish to move this amendment, I do not intend to press it.
I second the amendment.
I move amendment No. 7:
In page 6, to delete lines 2 to 4.
We propose this amendment to delete subsection (2)(a) of section 5. If there is a declaration of incompatibility by the courts, this subsection would seem to reinstate the validity of the provision being ruled incompatible by the court. The section is not necessary and my colleague, Senator Ryan, made a very strong argument against it. It implies that even though the provision has been ruled invalid, the State could continue to use the provision or the law concerned. This subsection is an overstatement of the position and is not necessary in the legislation. I ask the Minister of State for his comments.
I second the amendment.
Senator Tuffy has raised a very interesting question about the operation of this legislation. The core provision is section 5(1) which gives the High Court or, on appeal, the Supreme Court, the power to make a declaration of incompatibility between a statutory provision or rule of law – I presume a rule of law would relate to a rule of common law – that it is incompatible with the State's obligations under the convention's obligations. It is an interesting issue as to what would happen regarding a rule of law, whether the court's decision, of itself, would be sufficient there or whether the Oireachtas would have an obligation to follow that through with legislation.
The second subsection to which the Senator has drawn attention provides some degree of protection for the validity, continuing operation or enforcement of the statutory provision or rule of law in respect of which it is made. The declaration of incompatibility is a declaration by the courts that a provision of our law, though perfectly valid and subsisting legally and constitutionally, is at variance with the convention. In other words, the litigant no longer has to travel to Strasbourg. He or she can establish, before the courts established under our Constitution, that a particular law passed under our Constitution is at variance with the convention.
If the constitutional position of the Oireachtas is to mean what the Constitution says it means, how is it possible to say or to maintain that an Act of the Oireachtas which has been complied with is now inoperable and repealed and that damages can be awarded because an organ of the State acted precisely in accordance with its provisions? How can one say to a health board, a local authority, the Garda Síochána or the Director of Public Prosecutions that it did nothing wrong and carried out its responsibilities in conformity with the wishes of the Oireachtas as expressed in legislation, but that it is now liable in damages? Can one say that the body in question is not protected and its acts have no continuing validity because a right under the convention, which does not have the force of law in the State, has been breached? This legislation provides for the declaration of incompatibility to be submitted and laid before the Houses of the Oireachtas so that the Oireachtas can take the necessary steps to cure the legislative breach that has been established.
The Government decided, for constitutional reasons, that the primacy of the national provision had to remain in force. The position is that the status quo ante– the legal state of affairs – will apply. When the declaration has been made, the Government has to consider, as a matter of priority, what has to be done in light of the commitments in the convention about the application of the right which has been infringed. The undertaking by the Government to secure the rights of citizens against the obligation provides an effective remedy within our constitutional framework. Clearly, a breach of international law is established once the court makes the declaration and the Government must cure the breach. It is going too far in relation to this measure, in my respectful view, to say that there is an immediate exposure in damages and liability to the State itself because of that breach of our international obligations established before our courts.
I move amendment No. 8:
In page 6, lines 11 and 12, to delete "after the making of the order" and substitute "after a copy thereof is transmitted to him or her in accordance with such rules of court as may be made in respect of proceedings under this Act".
A similar amendment to amendment No. 8 was discussed on Committee Stage. This amendment has been tabled because the Labour Party believes that the Bill, as it stands, is not workable. The Taoiseach might not come into physical possession of a copy of an order containing a declaration of incompatibility within 21 days of the making of the order by the judge, as it would have to be perfected, etc. It would not be possible for him to carry out the requirements of the legislation in such circumstances. This amendment will allow for the physical drawing up and perfection of the order to have taken place, subject to the rules provided for this process.
The amendment has not been proposed to cause a delay in informing the House. It has been proposed purely to ensure that the section we are proposing to amend is workable and that a copy of the order can be laid before the House. I would like to hear the Minister's comments in that regard.
When this matter was discussed on Committee Stage, I suggested that the Government's view is that it should be addressed by the making of an appropriate rule by the rules committee of the superior courts. I said I would bring the matter to the attention of the committee. I still believe that is the best way to deal with this issue. I do not believe we should clutter up legislation with procedural matters which should more properly and appropriately be dealt with in the rules of court, which provide for the implementation of the legislation before the courts.
I will withdraw the amendment. Section 5(3) states that "the Taoiseach shall cause a copy of any order containing a declaration of incompatibility to be laid before each House of the Oireachtas within the next 21 days on which that House has sat after the making of the order", but I do not believe that will be possible in certain cases. It can take six weeks for an order to be drawn up and perfected. The purpose of this amendment is not to include unnecessary procedures in this section, but to make it workable.
I second the amendment.
It is important for the Senator to know that under this legislation, the Attorney General, the legal adviser to the Government, and the Human Rights Commission must be given notice of proceedings in accordance with the rules of court that will have to be made following the enactment of this Bill. Upon enactment, the rules of court, which are statutory instruments adopted under the courts and justice legislation, will have to have specific provision to regulate the operation of this legislation. The Attorney General has the right to appear at and to become a party to proceedings.
As the Senator pointed out, certain obligations regarding the laying of copies of the declaration before both Houses of the Oireachtas within 21 days are placed on the Taoiseach under section 5(3) of the Bill, when a declaration is made. The inclusion in the Bill of a provision along the lines of this amendment would involve a level of detail not required in a Bill. I will undertake to bring the Senator's views on this matter to the attention of the rules committee so that an appropriate provision can be made in the rules of court, if it is deemed necessary to do so.
As amendment No. 11 is an alternative to amendment No. 9. Amendments Nos. 9 and 11 may be taken together, by agreement.
I move amendment No. 9:
In page 6, between lines 30 and 31 to insert the following:
"(6) Where as a result of an incompatibility between a statutory provision or rule of law and a Convention provision, or a failure to act in a manner compatible with a Convention provision, a person has been convicted of a criminal offence in circumstances where but for the incompatibility or failure the person would not have been so convicted, or would have been sentenced to a lesser penalty, the person the subject of such conviction or sentence may apply to the Minister pursuant to this section for a recommendation to the Government that the Government should advise the President to pardon the person concerned, or alternatively for a recommendation that the conviction or penalty be commuted or remitted, and the Minister may following such inquiries if any as in his or her discretion he or she sees fit to make, make such a recommendation.".
This amendment was discussed at length on Committee Stage. The Labour Party feels it contains an important principle, that a person who is convicted wrongly should be able to have the conviction overturned in some way. The proposed new clause states that "the person the subject of such conviction or sentence may apply to the Minister pursuant to this section for a recommendation to the Government that the Government should advise the President to pardon the person concerned". We all know of cases of people who have been convicted wrongly. While compensation is an important aspect of such cases, we should also consider the way in which the fact of having been convicted attaches to one's reputation. I am interested in the principle. There should be a system of revisiting criminal convictions in such cases.
Other matters, such as whether there is a statutory precedent in other legislation, were discussed when this amendment was brought forward by my Labour colleagues. A precedent for such an amendment exists in the Criminal Procedure Act 1993. I will be interested to hear the Minister of State's comments on this proposal.
I second the amendment. It addresses one of the most serious issues in the Bill which has not been rectified, even though the Minister said he would re-examine it when Deputy Costello raised it in the Dáil. There are real problems of incompatibility between the convention and the legislation in the case of persons who have been convicted. Deputy Costello pointed out that convictions can stand in the way of persons who wish to travel.
We have all seen the mess that exists for many people who have tried to travel to the United States since the twin towers disaster of September 2001. I am sure the Minister of State will have read in the newspapers about a lady who was resident in the US for 30 years and whose husband and family live there at present. She has not been allowed to return to the US for the past seven months, since she came to Ireland for a wedding, apparently because her US residency papers are not in order. It is not as if this issue will not have practical significance for people. It seems wrong that people should be unable to get redress, through no fault of their own, because this Bill only allows for ex gratia monetary remedies.
It is reasonable to ask that these people should have redress and the right to a re-trial, if that is necessary. Presidential pardons are all very well, but they depend on the President. I am quite sure that our President would be a person of great compassion and charity who would want to rectify everything she possibly could. Do presidential pardons exist in the United States of America? What is the general view in regard to this area? The current regime certainly has some peculiar views on justice.
It certainly does. Hear, hear.
Would a presidential pardon suffice in this regard? This is a serious practical issue. People have been refused visas for various reasons and it would be dreadful if a person were wrongly convicted and that, due to incompatibility, there was no possibility for them to have a re-trial. Something must be done to allow such cases to be properly treated. The problem with the Bill is that there are no remedies for a vast array of circumstances.
The Senator's point is relevant and well made. What happens in the case of a person who has a valid conviction in terms of national law but where there is incompatibility with the system of the convention? That is the net point which these amendments seek to address. The question of payments, be they ex gratia or otherwise, does not arise under these amendments. What does arise, however, is what happens if one has a valid conviction in Irish law which is nevertheless found to be incompatible with the system of the convention. The person so convicted has stains on his or her character and a conviction which is at variance with the provisions of the convention.
The amendment seeks to address the issue through the introduction of a statutory provision in regard to the power of the President to pardon an individual on the advice of the Government. If one examines the text of the amendment, however, it is clear that all it proposes is that someone can write to a Minister. I do not have to remind Members of either House that one can always write to a Minister. There is not much point in providing for that by way of statute.
The amendment proposes nothing that is not already part of existing practice, despite the fact that quite a few words were spent in formulating it. I have to assume that Senator Tuffy and the draftsman are only too well aware that the power of pardon is vested exclusively in, and may only be exercised by, the President, strictly on the advice of the Government. That procedure is written into the Constitution. As a result of that constitutional provision, the House could not initiate legislation which would provide for the establishment of a board to advise the President or the Government in regard to this issue. The advice must be received by the President from the Government. There is very little we can do to hedge about that basic provision.
I have no doubt, however, that if it was established that a person was wrongfully convicted in breach of the European convention, the Government would make such a recommendation to the President. It is surplusage to provide in the legislation that a person can write a letter to a Minister in order to make a recommendation to the Government. While I understand the spirit in which the amendment is tabled, it is unnecessary in the circumstances.
Amendment No. 11, which is taken with amendment No. 9 and which seeks to refer the matter to the Court of Criminal Appeal, is far more in point. While it is one which is fairly tabled, a great deal more consideration would have to be given to its drafting to ensure that the character of the amendment corresponds exactly with the jurisdiction of the Court of Criminal Appeal and the jurisdiction established in that court under the Courts of Justice legislation.
As I pointed out on Committee Stage, a case is pending before the Supreme Court on this issue at present. As I understand it, the provision under Irish statute law was deemed to be constitutional, but a subsequent decision in Strasbourg deemed the Irish provision to be at variance with the convention. There is a conviction at issue in the precise circumstances canvassed by the Senators. That entire matter is before the Supreme Court where it will, no doubt, be decided upon in due course. The Minister would prefer to leave the matter until the Supreme Court clarifies the legal position because this will facilitate the drafting of legislation.
I move amendment No. 10:
In page 6, between lines 30 and 31, to insert the following:
"(6) In relation to any declaration of incompatibility, the Court may grant such other non-monetary relief or remedy, or make such order, within its powers as it considers just and appropriate.".
This brings us back to the issue of non-monetary relief or remedy, which is so important in this legislation. On Committee Stage, I thanked the Law Society and the Bar Council for the great deal of work they put into considering the Bill and briefing me on it. I also wish to thank the library staff, who managed to provide everything I sought from them.
While I did not go through every case lost by Ireland before the European Court of Human Rights, I was particularly struck by the most recent – DG v. Ireland. The case in question related to a young man who had been incarcerated in St. Patrick's Institution in Mountjoy even though the High Court judge had serious misgivings about doing so because the individual was a minor. On appeal to the European Court of Human Rights, it was found that the child's rights had been violated.
I presume that people who bring cases under this legislation will be granted free legal aid as they fall into that category in other contexts. It is fine to take a case before a lesser court of law where the proceedings will not be overly expensive, but once the action moves to the High Court it can be extremely expensive. If an individual is trying to argue a declaration of incompatibility in the High Court, regardless of whether there is an immediate prospect of personal benefit, I would certainly hope that he or she would have the benefit of free legal aid. It is extremely important that we would ensure it is available in regard to these important points of convention law. I am taking it that this is the position, but I would be grateful if the Minister of State would clarify the matter.
To return to the case DG v. Ireland, what is being proposed by the Minister does not provide any remedy for this person. As I argued on Committee Stage, the convention states that remedies are not discretionary, yet in the legislation before us the only monetary remedy is discretionary. That is most unsatisfactory. The young man to whom I refer eventually got his costs and €5,000 which, of course, did nothing for him. Due to the current state of affairs in respect of suitable accommodation for such people, the monetary remedy will not do any good for anyone who finds themselves in a similar position. It will not prove beneficial for judges, who – as the Minister of State knows better than I – are sometimes at their wits' end trying to find places of accommodation for difficult cases such as this.
We must remember that the individual in the case DG v. Ireland had been in the care of the State since he was two, so it was not as though the State had not had a great involvement in his upbringing, which was, obviously, entirely unsatisfactory. A person like that will not have any remedy at all, which is why the amendment contains a reference to non-monetary relief or remedies.
Is the amendment being seconded?
Yes, I second the amendment.
Senator Henry is under a misapprehension on one specific point – that there is an intention in the proposal before the House to reverse the DG case, either in substance or as to procedure. The proceedings in the DG case were taken to Strasbourg where the State was found to be in breach of the European convention and an award of damages and costs made, with which the State is in the course of complying. There is nothing in the legislation which takes away from this. What it actually addresses is the quite distinct question as to whether the establishment of a breach or a declaration of incompatibility in Irish law gives rise to a claim for damages in Irish law, in addition to the claim for damages under the Strasbourg system. The Government's proposal is to exclude the possibility of a right for damages in those circumstances following on a declaration of incompatibility.
The Government's view, on the basis of the legal advice available to it, is that the measure of damages in such a case is primarily a matter for the European convention system – it is the court in Strasbourg which decides the level of damages to which one is entitled in the event of a breach or a declaration of incompatibility between domestic legislation and the European convention system.
On the basis of what Senator Henry is advocating, the result of this amendment would be that, say, in the DG case, the Irish courts could also award damages, quite apart from the Strasbourg court. That would introduce a very novel and uncertain element into the European convention system, whereby a separate scale of damages would be available in the Irish courts, above and beyond what was available under the strict letter of the convention in Strasbourg.
That is not to say the Government has not, in its proposal, addressed the issue of concern raised by the Senator. This is where the whole issue of an ex gratia payment comes in, under section 5(4). I appreciate that, by uttering the words “ex gratia”, any Government spokesperson, acting on legal advice, exposes himself or herself to criticism. However, the purpose of the ex gratia system now being written into this legislation is to give the Attorney General and the Government, in their discretion, the power to make compensation prior to any decision in Strasbourg, in order that at least the person who has a declaration of incompatibility can obtain the appropriate monetary award from the Government, by way of settlement, prior to the determination of proceedings in Strasbourg. That operation now becomes possible under this legislation.
What does not become possible under this legislation – what is sought in the amendment tabled by Senators Norris and O'Toole and moved by Senator Henry – is the giving of power to a person who has obtained a declaration of incompatibility, either before the Irish or Strasbourg courts, the next right to go to our courts, apart from Strasbourg, and obtain damages in that regard. That right is not conferred by this legislation. The view of the Government is that the scale of damages in such cases should be laid down by uniform standards in Strasbourg.
I had thought this legislation was with a view to having European convention cases taken here in order that people would not have to go to Strasbourg to have their rights under the convention vindicated. That is quite clear. However, what I am seeking for a person concerned in this regard is not damages but a remedy. The DG case took about three years to get to Strasbourg. The person concerned was only about 16 years old on being put into St. Patrick's and starting this case. It took at least two, if not three, years to get as far as a ruling in Strasbourg. At that stage, the person concerned would have been old enough to go to St. Patrick's.
My argument is that the person had been in a position to go before the courts in Dublin at age 16, that there was still no remedy, even in the event of winning the case, because there was still no appropriate institution available. The required remedy was a place to go to, not money. Money was of no use to the person concerned in a situation of being put out on the street at age sixteen and a half or whatever. What was needed was an institution to which the person could go. If such an institution was not provided, the next person who appeared likely to be put in St. Patrick's because of the absence of an adequate place in the State, would be in the same position. No remedy was being provided to deal with a situation deemed wrong. One could not simply give money to the person in the DG case and put them out on the street. Some money – not a great deal, I believe – was given to the person at age 18 years and one can only hope it was, somehow, sensibly used for their benefit.
This person, as those who have read the case will know, had been treated abominably by the State – I refer to all of us, not just the Government – from when they were about two years of age. This was not the only instance – there was a constant breakdown in State services for the child. For that or any similar child, there was going to be no remedy as a result of taking the case. It was my hope, in the context of this legislation, that the approach would not be simply in terms of providing a few euro to get rid of the person concerned but that we would also try to remedy the circumstances in which Ireland was found to be in breach of the convention.
The Senator has raised a much wider issue. The court in Strasbourg makes declarations of incompatibility. Under this Bill, the Irish courts will be empowered to make similar declarations. The Senator has disavowed any interest in conferring a jurisdiction on our courts to award damages, stating further or other relief may be appropriate. However, under the Constitution, the Supreme Court has confirmed, after some considerable time in divergent High Court cases, that the courts do not have the function of specifically directing the Government to carry out certain activities such as, for example, opening residential centres for children and that, in fact, this is a trespass by the Judiciary on our duties, as a Government and Legislature, to provide for these matters.
I found the Senator's intervention very interesting. It confirms in my mind the grave suspicions and doubts I have in relation to the comments and advocacy, from the Opposition benches in both Houses, on the need for a rights based approach. Rights based approaches ultimately mean that the Government and Legislature abdicate their responsibility and power of choice in relation to public expenditure and allocate to the courts the function of determining priority in expenditure matters – a course about which I have very grave reservations. The very area the Senator has outlined has only confirmed my doubts in that regard. In the particular area to which she has referred – the care, protection and total support of young children in difficult circumstances coming before the courts – because of the difficulties outlined in the case which was taken to Strasbourg, the State has decided to invest an enormous sum of money in developing high support and special care units for children who are out of control and have not come before the criminal courts.
This investment has been made and huge difficulties have been encountered in training and retaining staff in the particular institutions. All this work has been done as a result of the court decision. Also, as a result of the court decision, other areas are not getting the expenditure they require. In effect, the decision has been entirely removed from the political process. That is the consequence if one goes down that road. I am glad the Senator opened the issue, thereby allowing me to express a view which I know is shared by other members of the Government in this regard.
On the specific issue of the amendment, to allow the courts, either in Ireland or Strasbourg, to say, "You are in breach of this particular provision of the convention – this is what you must now do," would be, in effect, to bring judicial powers, whether on the international or domestic level, straight into the business of the Executive and the Legislature. For example, when the judgment in the Airey case was handed down in relation to civil legal aid and the State was found to be in breach of its obligations in that regard, the obligation was then cast on the Government and the Legislature to draw up a scheme of legal aid. However, the court could not take it upon itself to draw up the scheme and issue a circular setting out the persons entitled to legal aid and calling on the Minister for Finance to supply €X to fund the scheme. In effect, that is the end result of giving such powers to the courts.
I move amendment No. 11:
In page 6, between lines 30 and 31, to insert the following:
"(7) Where as a result of an incompatibility between a statutory provision or rule of law and a Convention provision, a person has been convicted of a criminal offence in circumstances where but for the incompatibility or failure the person, would not have been so convicted, or would have been sentenced to a lesser penalty, the Court of Criminal Appeal may on application by that person (including a case where the person was convicted by a court of summary jurisdiction) set aside the conviction or sentence or both and may, if circumstances of the case so warrant, order a retrial.".
I second the amendment.
There is a typing error in amendment No. 12. The word "compatibility" is misspelt in paragraph (a).
I move amendment No. 12:
In page 6, between lines 37 and 38, to insert the following:
"7.–(1) A Minister in charge of a Bill in either House of the Oireachtas must before the Second Reading of the Bill:
(a) make a statement to the effect that in her or his view the provisions of the Bill are compatible with the Convention provisions (referred to in this section as a ‘statement of compatibility'), or
(b) make a statement to the effect that although she or he is unable to make a statement of compatibility, the Government nevertheless wishes the House to proceed with the Bill.
(2) The statement must be in writing and be published in such a manner as the Minister considers appropriate.".
I thought this was a good idea because if one looks at the text of the Good Friday Agreement, it states the measures brought forward will ensure at least an equivalent level of protection of human rights as will pertain in Northern Ireland. This pertains in the legislation in Northern Ireland. I am only trying to be consistent with the Good Friday Agreement.
I second the amendment.
The purpose behind this amendment is to provide for the Minister to make and publish a written statement on compatibility or incompatibility. It seems to be based on section 19 of the United Kingdom Human Rights Act where a Minister must either make a statement about the Bill and whether it is compatible or whether the Government wishes to proceed with the Bill in the absence of making a statement. The development of the position in this area in the United Kingdom since the Act came into force two and half years ago is interesting because the provision has not delivered on its promise. The formula adopted for a compatibility statement to date is brief and uninformative. No reasons are given as to why a statement of compatibility is made on the basis that legal advice should not be disclosed. We have often heard this touted also. In cases where no statement of compatibility is made, this is explained by the Government on the grounds that convention issues are frequently complex and that a debate in Parliament provides the best forum for Ministers to explain their thinking on the matter.
Unlike the position in England and Wales, which do not have yet have a human rights commission, it is important to note that our Human Rights Commission can be requested by a Minister under section 8(b) of the Human Rights Commission Act 2000 to examine any legislative proposal and report its views on the possible implications of such a proposal for human rights. The Minister has already used this provision on several Bills. The Attorney General, as guardian of the public interest, has a function in relation to the protection of the Constitution and the vindication of constitutional rights. The Attorney General is more habituated to this type of exercise than the Attorney General of England and Wales who does not have to tender similar advice to Her Majesty's Government and can rest assured on the enactment of a sovereign Parliament. There is a distinction between the two jurisdictions in that respect. The Government is satisfied the experience of the Attorney General in this area, combined with ministerial power to refer the matter to the Human Rights Commission, are more sufficient safeguards than a paper reference to a compatibility issue.
There is also a constitutional issue in the amendment in that it purports to legislate for a House of the Oireachtas. Under the Constitution, the Houses of the Oireachtas are established by the people and their internal regulation is a matter for Standing Orders of each House. There is a question mark over whether we can legislate along the lines proposed by the Senator.
I ask the Leader to adjourn the debate.
How long more does the House envisage the debate will last? We are eating into the time for the next debate. Would five minutes be sufficient?
We must deal with two more amendments.
We will extend the time by five minutes because we are tight on time for the rest of the evening. I amend the Order of Business to allow for this debate to finish at 4.40 p.m.
Is that agreed? Agreed.
I thank the Leader. I recognise I am beaten once again by the Constitution and the Attorney General.
I move amendment No. 13:
In page 6, lines 43 to 45, to delete "the Convention provision within the meaning of the European Convention on Human Rights Act 2003;” and substitute “the Convention within the meaning of the European Convention on Human Rights Act 2003 and the protocols thereto”.
The purpose of this amendment is to ensure a declaration of incompatibility could be made in relation to a breach of the convention generally, not just the parts incorporated into Irish law. I am interested to hear the Minister of State's views on the matter.
I second the amendment.
I confess to some confusion in relation to this amendment because it seems that the provision embodied in the Bill confers the entire substance of what is required, namely, the rights, liberties and freedoms conferred on or guaranteed to persons by the convention provisions within the meaning of the European Convention on Human Rights Act 2003. There is a clear definition of the convention, the same convention referred to in the amendment, namely, the convention within the meaning of the Act and the protocols thereto. It may have arisen from a discussion on Committee Stage where Senator Ryan wanted various specific articles of the convention incorporated in the reference. I explained how those provisions were already self-executing international law and did not require any domestic statutory vesture. We were concerned to ensure all the rights conferred on citizens which could be brought before the courts were conferred and that, for example, the right of individual petition or the compulsory jurisdiction of the court were not matters which could be brought before our courts because a citizen had the right to go to Strasbourg and invoke these provisions.
I welcome the passing of the Bill. I thank the Minister for Justice, Equality and Law Reform, Deputy Michael McDowell, and the Minister of State, Deputy Brian Lenihan, for their comprehensive responses to the points raised and amendments tabled. Many of the amendments were tabled because the Bill is predicated on the fact that the Constitution takes precedence. It was an extremely interesting debate and the Opposition applied itself well to the amendments. I commend Members on their efforts in that regard.
I thank the Minister of State for the clarity with which he explained all the mistakes in my amendments. It was extremely useful. He did not reply to my question about free legal aid. Given his good memory and great brain, I am sure he did not forget it. He just left me in the wilderness to thrash the issue out on the Adjournment. I thank him for his courtesy and kindness during the debate.
I thank the Minister of State for coming into the House today. I did not table any amendments on Report Stage because they were dealt with on Committee Stage. I welcome the Bill despite the fact I am not entirely happy with it. I would have preferred if it had been incorporated directly into our legislation. I hope it will be of benefit to those who will need it.
I thank the Minister of State for being present in the Chamber and his contribution to the debate. I also thank other Senators for their contributions. While I welcome the Bill, issues raised today and on Committee Stage need to be revisited. As Senator Terry said, we need to incorporate the convention more fully into our law.
As regards the issue raised by Senator Henry, the Human Rights Commission has the power to grant legal aid. As regards the European convention system, in the event of a petition to Strasbourg, the commission also has the power to grant legal aid. The Senator can rest assured on the issue.
I thank all the Senators who contributed to the debate. I did not think the amendments tabled by the Opposition were inelegant or legally defective. I have often listened to Senator Henry explain to me about medical matters. I regret if my explanation of legal matters trespassed on her knowledge which I know is extensive in these matters, as is that of all Senators.
The Opposition amendments threw into relief the difficult issues and contradictions involved in the implementation of this measure in domestic law. The Government made a difficult decision about how to implement it in accordance with the Good Friday Agreement, which required a great deal of analysis by the Attorney General and his predecessor and within the Department of Justice, Equality and Law Reform. A decision was taken to implement the convention in a particular way and we have had a full discussion on the merits and demerits of that and an opportunity of putting on the record of the House the precise meaning and nuances of this legislation.
It is important to note that this Bill, at its final Stage in the Houses, marks another milestone in Ireland's long history of strong compliance with the European convention system. We agreed to the right of individual petition and the compulsory jurisdiction of the court from the time the convention was ratified by the member states. Some may take the view that our implementation of this measure has been very cautious, but the only reason was respect for our Constitution and the substantial protection it has always extended to our citizens. I thank the Senators for their contributions.
