I welcome the Minister for Justice, Equality and Law Reform and his officials. The purpose of the meeting is to start consideration of Committee Stage of the European Convention on Human Rights Bill 2001.
European Convention on Human Rights Bill, 2001: Committee Stage.
Before proceeding to section 1, I wish to give an outline of the approach I will adopt to the amendments. Given that the Bill was debated on Second Stage a couple of years ago, I would have preferred if it had been reinitiated. I have tabled 35 amendments. Those suggested by the human rights groups, including the human rights commission, take an approach that is opposed to the Minister's intentions. Those proposed by what may be termed lawyers' interests suggest that they want the Bill to be radically recast along the lines proposed by the Human Rights Commission. If we are unable to convince the Minister of the sense of direct incorporation of the convention, they suggest improvements to what they consider to be a bad Bill. That is the background to my amendments and the reason I wish to make an opening statement.
This is a very important Bill and I would be pleased to hear the Deputy's short opening statement.
I agree on the importance of the legislation which is not theoretical in any sense and has many practical implications. The Catherine Zeta Jones privacy case in the United Kingdom which has caught much media attention is primarily based on the convention. While I do not suggest we should be unduly influenced by the case, I mention it to illustrate that we are concerned with real and practical issues.
My approach and that of my colleague, Deputy Costello, coincides with the view expressed by a wide range of organisations to the effect that there should be direct incorporation of the convention into domestic law. The Minister's approach differs from that of Fine Gael, the Labour Party, the human rights convention and all other interests. I am not aware of anybody who supports the Minister's approach. This is very much his Bill. It is his creation, emanating as it does from his period in office as Attorney General.
I favour direct incorporation of the convention into domestic law for a number of reasons. We are obliged to do so by virtue of the Good Friday Agreement. The Minister's approach does not discharge the obligations which the Government, on behalf of the country, undertook to honour five years ago when it was agreed that it would take steps to further strengthen the protection of human rights in this jurisdiction. The Minister will argue in favour of the human rights set out in the Constitution but they were in force five years ago. At that stage it was agreed that that further strengthening would be based on proposals drawn on the European Convention on Human Rights and, indeed, other international legal instruments. Therefore we agreed at the time that measures would be brought forward, not relying on existing fundamental rights protected by the Constitution, that would ensure at least an equivalent level of protection of human rights as will pertain in Northern Ireland.
The first basic point I make here is that the procedure of indirect incorporation, favoured by the Minister, does not allow us to comply with the commitments which we undertook in the Good Friday Agreement. I will come back to that.
The second major point is that the approach outlined by the Minister does not comply with the convention. It may seem a strange way of presenting an argument, but it is quite important that we understand that the convention provides that everyone whose rights and freedoms, as set forth in the convention, are violated, shall have an effective remedy before a national authority. No remedy, certainly no effective remedy, is provided in this Bill for somebody whose rights are violated under the convention. I am making the point that the procedure outlined in this Bill is itself contrary to the European Convention on Human Rights.
The third main point I want to present relates to the charter of rights for Ireland on an all-island basis. Here, again, we have entered into an agreement that our own human rights commission, together with its sister commission in Northern Ireland, is to draft a charter of rights for the whole island to encourage an identical system of human rights throughout the island of Ireland. That is, again, a further agreement that we have made.
If I understand the Minister's arguments correctly, we are relying on the Constitution as virtually the sole basis for protection of fundamental rights in this country. If that is the Minister's approach, how does he expect to convince people in Northern Ireland to accept that we can have an identical system of human rights throughout the island of Ireland solely based, or almost solely based, on the Constitution relating to the Republic of Ireland? I doubt that particular argument went down very well in Glengall Street or in other parts. That is my third main argument for stating the Minister's approach is fundamentally wrong and the main reason I have tabled a series of amendments to redirect the thrust of this Bill.
Having looked at the UK Act, it seems that what we have before us is essentially a pale imitation. It clearly draws its creativity, if one could call it that, from the thinking of those who drafted the UK Act. There was a particular reason for the UK taking the approach which is centred on this idea of declarations of incompatibility. That was because of its constitutional doctrine of the sovereignty of parliament. That does not apply here. I could understand why the UK adopted that approach and I can understand why the Minister would be tempted to look at it. I do not go along with the view that we should burn everything British except their coal. Of course it is wise to look at what happened in the UK. What I cannot understand is that even if the Minister is following the British, what we end up with is a Bill which is a far weaker one than that introduced for special reasons in the UK.
The UK's Human Rights Act 1998, which is a much more considerable Bill of 22 sections, not that we should go by quantity, allows the convention to be pleaded in all their courts, including in the magistrates' courts - that is not allowed here. It provides a much wider definition of what we refer to as organs of state and what the British refer to as public authorities. They include courts as organs of state.
We are not really here to revisit the Second Stage of the Bill. The Dáil has referred the Bill to this Committee for Committee Stage. I accept the Deputy's opening statement but I would appreciate it if he could be brief.
I will be as brief as possible but I feel it is important to put this approach on the record because it underlies most of the 35 amendments I have tabled. I will be coming back to each of these as I go along during the course of Committee Stage, but I wanted to give——
An overview.
——the Minister an opportunity to defend himself. He is quite capable of doing so; he will try anyway. I am genuinely interested in why the Minister has taken this course. I have not seen any rational reason for so doing in what he has said or written about this.
I mentioned that the provisions in the UK Act are much stronger than the proposals in this Bill. The courts are not included as organs of state. In the UK, the courts must consider the convention in its decisions and help to enforce its provisions. The consequences, by the way, of not including courts as organs of state is that individuals here have lost a right to complain about undue delay in the courts or the fact that they might not get reasons for court decisions.
Apart from the courts, the UK Act covers essentially any body or institution carrying out public functions. Our definition is much narrower. The UK Act allows remedies for those who plead the convention in their courts. There is no automatic remedy here.
There are also more onerous requirements on the Government. In particular, it must provide for a declaration of compatibility in new legislation. If there is a declaration of incompatibility, the Minister must announce what will done about that.
I mention these points in the context that the Bill, which seems initially to rather slavishly follow the British Act, does not even incorporate many of the main provisions therein. The British Act, incidentally, goes so far as to include a power for a Minister to amend legislation by order where there is a declaration of incompatibility and where there is compelling reason for it. I am not sure that I would really want to go that far but it is an indication of how far the British have gone in their legislation.
Essentially what I want to say on the approach adopted by the Minister is that it is slow, expensive, cumbersome and uncertain. It provides no remedy for the courts, and providing somebody with the possibility of an ex gratia payment based on an ultimate finding after about six years that his or her rights have not been vindicated under the convention is no way to approach the development of human rights in this country.
I have some other points on the Minister's views, as already expressed, but perhaps I will reserve comment until the Minister expresses them here. I believe the approach adopted by the Minister is wrong. If we are to take an honest approach in regard to the development of human rights, the Bill should be entirely redrafted. The 35 amendments I have tabled and Deputy Costello's amendments seek to improve what is clearly a very bad Bill.
Now that a precedent is set, would Deputy Costello like to contribute?
It is appropriate to set such a precedent because it is a very long time since the Second Stage debate, to which none of us contributed. I was in a different House at the time and the Bill did not come before the Seanad. As there has been no prior debate on the issue, it would be valuable to refresh ourselves on the context in which the legislation is being debated and to consider it in that broader arena, rather than simply diving into the amendments before us.
It is likely that the legislation will be passed on the anniversary of its ratification. The convention was ratified by Ireland on 25 February 1953 but it was not incorporated into legislation. It is terrible to think it is half a century since we first approved the convention but did not include it in our corpus of legislation. We are the last country in the Council of Europe to begin the process of incorporating it in the current inadequate fashion. That is a sobering thought with which to begin. I expect we would not be dealing with it now either if it was not for the Good Friday Agreement, to which Deputy O'Keeffe referred. The British Government introduced human rights legislation a couple of years ago and set up a human rights commission. We did so just a few short months ago and we also appointed a commissioner. The chairman of the commission has already been fairly critical of the resources available to him.
One of the first critiques issued is a critique of this legislation, of which the Minister should take note. The Bill was prepared before the human rights commission was set up. The commission should have been set up before the Bill was drawn up and the Minister or his predecessor should have had the benefit of its critique prior to drawing up the legislation, because this country made a commitment to introduce the legislation in the context of the Good Friday Agreement. We have international commitments in regard to the substantive body of legislation, including domestic commitments. There is an extra onus on the Minister to listen to what is being said. Representatives of the human rights commission and of the Law Society appeared before the committee. Other bodies also expressed their views, and each one was contrary to the process being adopted by the Minister in relation to the legislation. He should restate why he is dealing with the legislation in this indirect interpretative fashion rather than taking a stronger and more robust approach, which would directly incorporate the European Convention on Human Rights into our legislation. Surely the direct and legal approach is the one taken when dealing with all international conventions, that is, that we incorporate them as part of our domestic legislation.
There could be a breach of our responsibilities under the Convention on Human Rights if we do not comprehensively introduce the legislation into our domestic law. The Minister should bear this in mind. There are so many caveats that it is difficult to see an adequate remedy. There is no easy remedy here for violations of the convention in the manner in which the Minister has presented the legislation. If there is no adequate remedy, we are not getting justice, nor is it being done in line with the spirit and substance of the convention, which is the thrust of what we are trying to do.
It is a minimalist approach which will send out all the wrong signals to our colleagues in Northern Ireland. If we introduce the European Convention on Human Rights in this fashion, it is difficult to understand how we can ever come up with a proper charter of human rights to cover the entire island. It will be very difficult if we are to deal with the issue in terms of our constitutional superiority reflected here, which is that our Constitution is the number one on this island. We will be saying that the Convention on Human Rights is effectively subservient and we will provide some type of indefinite inadequate remedy if there is a breach by any of the organs of the State in relation to the convention's provisions. That is as far as we are going, rather than incorporating it directly into our domestic law, which is in breach of the spirit of the Good Friday Agreement. The Good Friday Agreement did not envisage incorporating the legislation in this fashion.
Arising out of what has happened since, including the establishment of the Human Rights Commission, and the criticism of the option used, most people would have looked for direct incorporation. Some might have sought a constitutional amendment. Perhaps that was the road to take, whereby we would present directly this body of human rights to the people of Ireland, and ask them if they wanted it to be incorporated into the Constitution. As there is an overlap between the Constitution and the Convention on Human Rights, perhaps people would prefer if we adopted that approach. I would like to hear the Minister reply again to that question.
Considering our international and domestic responsibilities in this matter, and the way we want to go forward, both politically and statutorily, if the Minister intends to force through the legislation, which I presume he does, he will do a bad day's work for the substantive provisions of the convention and for good relations on this island in terms of how we should proceed with the enhancement of human rights.
I thought we were going to deal with the individual amendments from the beginning. However, since a precedent has been set of addressing some of the fundamentals of the Bill, I would like to make a few comments on that issue.
Like Senator Costello, I was not a Member of the House when the Bill was initiated, therefore, I welcome preliminary observations on it. I disagree with my colleagues on my left. It would be a grave mistake if we incorporated the entire convention into our corpus of law, as has been suggested. That would be a wholly incorrect course of action. Contrary to what the Deputies have said, there is not a unanimous view as to how we should incorporate the convention into our corpus of law.
The constitution review group was strongly of the opinion that there were inherent problems in introducing a whole set of human rights such as these into the Contitution, almost in competition with existing fundamental rights set out in it. There is very good reason for this. When one looks back over the development not just of human rights but also of fundamental rights in the Constitution and this country, one sees that we have developed a highly sophisticated level of human and fundamental rights. This is recognised internationally. The Constitution incorporates some of the human rights concepts accepted in some of the great democracies and which have been developed through the Supreme Court of the United States. I am thinking of the development of rights which occurred from about the mid-1960s until the late 1970s when the Supreme Court, quite rightly in the view of many - almost all eminent jurists - developed a highly sophisticated set of rights to suit this country.
While the rights set out in the European convention are very worthy, it would be wrong to introduce them in competition with the set developed in Ireland which have worked well for it. It would introduce a degree of uncertainty into the question of what rights govern the citizens and organs of State. Our simple and core fundamental rights have been highly developed to a fine degree and we know precisely what they mean, subject to a citizen's right to litigate at any time. The introduction of another corpus of law would give rise to confusion. One of the worst situations one can have in any country is when citizens are not completely certain of what the law of the land is in any given case.
It could be argued that our constitutional rights afford greater protection to our citizens than some of the rights in the convention. I am thinking specifically of the right to a jury trial but it could be argued in many other instances that our rights are superior in affording protection to citizens. Both Deputy O'Keeffe and Deputy Costello referred to the Good Friday Agreement. Deputy O'Keeffe remarked that on many occasions we ought to follow the British example. My view on this is very simple. When I compare the approaches taken by the British and Irish authorities, I am quite happy to argue the superiority of the Constitution in protecting human rights over the lack of protection of human rights for many decades in the United Kingdom. I am thinking specifically of the treatment of Irish citizens in British prisons.
We should be proud of and confident in the human rights developed in this country rather than having to look to other jurisdictions. The Constitution has suited this country for a long time. While I welcome the manner in which this corpus of rights has been imported, our laws and the Constitution should not be made subservient to it.
Would the Minister like to respond to some of the remarks made?
I would like to respond very briefly. We are discussing the Bill on Committee Stage and I do not wish to have a re-run of Second Stage.
I heard what Deputies O'Keeffe and Costello had to say and remain profoundly unimpressed by their arguments. The more I think about it the more wrong it is as will be demonstrated to be the case in the course of this hearing. First, Ireland has a Constitution and constitutional jurisprudence which, as Deputy Power said, are in most respects far more affirmative of the rights of the individual than the European Convention on Human Rights. Second, the European Convention on Human Rights was not designed to be a constitution of any country but an international agreement to which countries would subscribe. It was not to be a constitutional document. Third, in our proceedings in this House and Irish society generally, we proceed from the basis that this country is a sovereign, constitutional, independent republic and that our rights are those determined by the people through the Constitution, not otherwise. It would be as impermissible for the Irish Legislature without recourse to the people to delegate the exposition of human rights in Ireland to the court in Strasbourg without a constitutional amendment as it would have been, for instance, for a pious Government in the 1930s to defer, say, to the Vatican, to Papal encyclicals or the decisions of the Roman curia on similar matters.
I did not suggest that.
I know the Deputy did not. I am merely saying it would be as impermissible for the Irish Legislature to bring forward in Ireland an authoritative source of human rights which had the effect of invalidating Irish legislation or overriding the function of the courts under the Constitution to interpret or apply it among the citizens as that scenario would have been impermissible in retrospect.
The State only has the capacity to subscribe to the Strasbourg convention because it is compatible with the Constitution. If there was one word or one comma in it which was inconsistent with the Constitution, as we thought or knew it to be at any given stage, it would be improper and ultra vires for the Irish Legislature or the Government to subscribe to it. This point appears to be lost, especially among a self-appointed group who call themselves the human rights community. They seem to feel that somehow the Strasbourg convention is superior to Irish law and the Constitution. The reverse is the case. The State only has the capacity to adopt the Strasbourg convention because every word and line of it was and is, in the opinion of the Government at the time and the Irish Parliament now, compatible with the Constitution. Anyone who has a difficulty in understanding this basic point should take an hour or two off to contemplate it. The State and the organs of Government have no right to accede to an international agreement at variance with the Constitution. Once one starts from this, much becomes obvious. Once one starts from the error that seems to infuse most of the criticism of the Bill, that the Strasbourg convention is up there, that down the pecking order comes the Constitution and further down is legislation, one falls into the error into which the two Deputies have fallen, namely, that in some sense this is an inadequate incorporation of the European Convention on Human Rights into Irish law. It is not.
This commitee, our Parliament composed of two Houses and the Judiciary are all subject to the Constitution. We cannot incorporate a convention into Irish law other than by changing the Constitution in a manner consistent with it, nor can we subscribe to any convention, the terms of which are at variance with the Constitution in any way whatsoever.
Deputy O'Keeffe suggested that this Bill is weak because it adopts the interpretative approach. He echoes what I regard as a rather facile and superficial comment that the interpretative approach was adopted in Ireland because it had been adopted in the United Kingdom. The analysis goes - I have heard this trotted out time after time at many meetings I attended - that the United Kingdom chose the interpretative approach by virtue of its infatuation with the principle of parliamentary sovereignty. We have an absolute imperative of constitutional sovereignty. The British were free to choose how they incorporated the convention as they wished. They could have given it the direct effect of law. They could have done whatever they wished because Parliament in the United Kingdom is sovereign even to the point of derogating from its own sovereignty and amending its own forms through changes in the House of Lords, etc. The Irish system starts from constitutional sovereignty. How we incorporate the European Convention is a major and significant factor to be taken into account.
It has been suggested that what we have done is a pale imitation of British legislation.
It is a pale imitation of British legislation.
It is not. I challenge Deputy O'Keeffe to say where in British legislation there is a right of action for damages in respect of a declaration of incompatibility of an administrative act with the convention. None exists. Ours provides a remedy of a kind which is not available in the United Kingdom. I find it difficult to understand the points made by the Deputy about the areas where he thinks our legislation is weak. As a lawyer, the Deputy should contemplate his remarks carefully. The power of a Minister to amend legislation by order to comply with the convention is wholly at variance with our Constitution and is quite impossible to put into place. The British Parliament may, intra vires, provide this but it is not for the Irish Parliament to do so, intra vires. The power to say what people do during Second Stage of Bills is excluded by our Constitution because each House of the Oireachtas decides what happens on Second Stage in any Bill. The Dáil and Seanad decide what declarations of compatibility or incompatibility happen in each House. Neither House can force the other to have a particular regime. The Irish Constitution is being observed by this legislation and is being fully upheld.
The Bill has been criticised because it is not a constitutional incorporation. It is not so because I do not believe the Irish people would vote to incorporate the European Convention in terms which allowed the court in Strasbourg to determine Irish human rights. The proposition that we amend our law to abdicate that final appellate function in respect of our constitutional affairs to an external tribunal would be heavily defeated at the polls if it were suggested to the Irish people. Once we have decided it will not be a constitutional amendment it falls to be decided whether there is a direct incorporation approach, as was argued for by the Law Reform Commission or, alternatively, an interpretative approach. We have opted for the interpretative approach because the direct approach is impossible to achieve in a satisfactory manner. Lest anybody thinks I have not listened to the arguments, I, as Attorney General, went to the Law Reform Commission and discussed this matter with it for a couple of hours. I have attended many seminars before and since publication of the Bill. I have argued the toss, listened to all the arguments and have taken on board some of the measures. The suggestion that this is simply a minority view of my own is way wide of the mark.
I understand the committee received some supportive submissions from Dr. Gerard Hogan and the Human Rights Commission. While I respect it is their function to express their independent views, it is not my function to defer to them where I do not agree with them. The majority of practising lawyers would see the force of the arguments I have made heretofore in public and which I am sketching out now. There is a danger that a minority of activists who are agitated by the notion that somehow the Constitution is old hat and the European Convention opens up broad new uplands of human rights law which have been closed off to us heretofore, might appear to others as representing a consensus when, in my view, they do not. I could speak about this at length but I will not do so.
We will deal with the Convention on Europe referendum another time.
It is clearly the case under the British-Irish Agreement that some degree of convergence between the regimes north and south of the Border is deemed desirable. The legislation before the committee is the closest that we can go to the situation which will apply north of the Border. People who are asking for radically different legislation, wholly different approaches - direct incorporation into Irish law - are ignoring the very point made by the two Deputies; we are supposed to go towards some degree of compatibility between the regimes north and south. There is no direct incorporation north and south, there is no direct incorporation north of the Border, nor is there a written constitution.
I wish people would give some degree of credit to the way in which this Bill was drafted. It was done to represent the fact that we are a constitutional democracy - that we are a republic; that we are, in the European Union, a republican state with the longest constitutional continuity. We are the only State in the European Union that accords to its citizens the right to amend its Constitution by referendum and to apply to the courts to invalidate any law inconsistent with its Constitution. We are also the only State that has jury trial, habeas corpus and a whole series of rights. Those who have an inferiority complex about the protection of human rights in Ireland should think long and hard about some of the outcomes in European Union member states which have been ruled to be entirely compatible with the Convention on Human Rights of which we would be ashamed if an Irish Government attempted to incorporate them into Irish law.
NEW SECTION.
I move amendment No. 1:
In page 3, before section 1, to insert the following new section:
1.-In this Act unless the context otherwise requires-
'the Convention' means the Convention for the Protection of Human Rights and Fundamental Freedoms done at Rome on the 4th day of November, 1950, as amended by Protocol No. 11 to the Convention done at Strasbourg on the 11th day of May, 1994;
'Convention provisions' means the provisions set forth in the Schedule* to this Act;
'declaration of incompatibility' means a declaration under section 2 of this Act;
'rule of law' includes common law;
'statutory provision' means any provision of an Act of the Oireachtas or of any order, regulation, rule, licence, bye-law or other like document made, issued or otherwise created thereunder or any statute, order, regulation, rule, licence, bye-law or other like document made, issued or otherwise created under a statute which continues in force in accordance with Article 50.1 of the Constitution.".
I accept the absolute imperative of our constitutional sovereignty. I find it ridiculous to listen to an argument which suggests that I or anybody else regard the Constitution as old hat. Each of the amendments I have proposed are in the context of the direct incorporation of the convention subject to the Constitution. The Constitution has had an enormous role in the context of the development of fundamental rights in this country. I agreed with the view of the Constitutional Review Group that one should not replace the fundamental rights contained in the Constitution by a European Convention on Human Rights. Of course we should not replace fundamental rights in the Constitution. We are talking about supplementing the rights in so far as they are not covered by the Constitution or the Supreme Court, the unlisted rights, as it were. I support the Constitution. I spent five years as chairman or vice-chairman of the first constitutional review group. The first thing I did was to get support from the Minister of the time for accepting that the Constitution had served us well, particularly in the context of fundamental rights. There is no question of having an inferiority complex about it. There is certainly no question of tabling amendments, including this particular amendment, that in any way restrict or affect the supremacy of our Constitution.
I am merely following an approach that has been advocated by the Human Rights Commission, the Bar Council, the Law Society and a host of other bodies. These are not looney left type arguments. They are from people who have given serious consideration to the fundamental issues involved. They propose a view contrary to that proposed by the Minister. As far as I can see, his view is unsupported by anybody or any institution. While I respect the Minister's view I totally reject it. His arguments are ridiculous and have not been recognised by any established body in the country.
Amendment No. 1, and the other 34 amendments I have tabled, and those tabled by my colleague Deputy Costello, accept the supremacy of the Constitution. What I am trying to do in this amendment is to ensure that the protection of human rights be brought to the highest possible international standard. I got that phrase from a certain gentleman who, speaking on 10 February 2001, announced that it was the intention of the British and Irish Governments to ensure that the protection of human rights on these islands should be to the highest possible international standard. That gentleman was the then Attorney General, Deputy McDowell.
We are trying to preserve the marvellous advances that have been made on foot of our Constitution but also to fulfil our international obligations and to add to those rights. There are certain areas covered by the convention, such as the right to free speech or the right to privacy, which are not as well developed under the Constitution. We are offering the people the opportunity to take advantage of those additional rights by having them directly incorporated here. We are not just giving people such as Catherine Zeta Jones the opportunity to do it. She can plead directly in the English courts. We want everybody to have the opportunity to do so. What the Minister has done is to establish a process whereby the poor will be excluded from pleading those rights. The kind of rights one might plead under the convention are ones that particularly affect people who may not be well off. They may concern the marital area, crimes or people in prison.
The Deputy should come back to the amendments as soon as possible.
I am dealing with the first amendment which refers to the convention which deals with the protection of human rights and fundamental freedoms going back to 1950. I am talking about the rights in that convention which are not covered by our Constitution. I do not know how much of our fundamental rights are better covered under the convention, it may be 5%, 10% or 15%, but I want our people to have the opportunity of availing of those rights and of being able to plead them in court. That is why I have included a reference to the convention in amendment No. 1.
There are cases that need the protection of the convention. We have proved that in the past. We proved it in the Airey case in regard to civil legal rights, in the Keegan case in regard to the rights of unmarried families and in the Norris case which affected one of our colleagues. He is not here but he may raise it in the Seanad. It was also proved in the Croke case which was ultimately settled by the Government. Even though it had been rejected in the Supreme Court it was bound to win under the convention. Settlement procedures under the convention came into play and it was withdrawn on the basis of a settlement. We may see it proved in regard to the Foy case. I will not make predictions but will be surprised if it is not. We may also see it proved in the De Rossa case. I do not expect the Minister to comment on that. It would not affect our colleague but might affect the State's relationship with Independent Newspapers which seems to have an arguable point.
The reason we must provide for the convention and why we should be able to plead the convention in our courts is that there are some rights, not the main corpus which is wonderfully protected in our Constitution which I support and whose supremacy I accept,——
On a point of information, people will still not be prevented from pleading the rights of the convention in any proceedings which they might bring before our courts. Do I stand corrected on that?
The Deputy should try the District Court.
The District Court is no place to argue these rights.
We must proceed. Deputy O'Keeffe may come back to this later.
There are serious restrictions on directly pleading the convention in our courts. Essentially, if we had direct incorporation they could be pleaded in any court and that is what I want. I see no reason it cannot be so.
It can still be pleaded.
Chairman, perhaps we can illuminate the issue for the Deputy. If he looks at section 2 of the Bill it states:
In interpreting and applying any statute or provision or rule of law, a court shall, in so far as is possible, subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State's obligations under the Convention provisions.
That is section 2 and it applies to every court. That means that every provision of every statute and every rule of common law shall be applied by any court in a manner which, in so far as it is possible to do so, is compatible with the Convention on Human Rights. I do not understand this point about poor people being excluded from operating this. If he is suggesting that the District Court should spend hours, between drunk-driving and bicycle lamp cases, dealing with declarations of incompatibility, I suggest he should come down to earth and live in the real world. One cannot possibly ask the District Court to engage in quasi-constitutional set piece debates for hours on end. Deputy O'Keeffe should be aware that this interpretative provision gives the District Court not simply the right but the duty to consider every statute, every rule of common law, every statutory instrument and to give them the interpretation which is compatible with the convention. What then is the point with which we are being asked to deal?
We can deal with that in section 2 now or we can deal with it later. My view is that——
Please allow Deputy Costello to speak for a moment.
——this is not a correct interpretation.
There is a problem with what the Minister is saying. The definition of "organs of the State" defines which organs are required to have regard to the convention. It specifically excludes the Houses of the Oireachtas or a court. The Minister had a good tilt at the windmills in his opening remarks but he did not reply to the simple and straightforward points made by Deputy O'Keeffe and me. There are two other options available for dealing with this matter. One is a constitutional amendment and the question of whether or not we allow the people the choice. I would have liked to hear the Minister's view in more detail. He said that he thought the people would have opted not to incorporate this proposal into the Constitution because they would prefer to see the Constitution stay as it is and that may well be the case. The other option is the option that everybody I have spoken to is in favour of, including I believe, the person that the Minister quoted as being on his side, Dr. Gerard Hogan, who was a member of the law reform group which examined the Constitution. He had second thoughts about the matter and was now inclined towards the Swedish model of constitutional amendment.
This is a piece of international law that arises from the United Nations Convention on Human Rights and the European Convention on Human Rights. It is a simple matter to incorporate it into our legislation and let it swim or sink like all other legislation. It would be subject to the Constitution but not inferior to it, as the Minister seems to think.
I ask the Deputy to speak to amendment No. 1, please.
The Minister and I disagree on this issue. I want to see the definition and scope of the convention applied in as wide a manner as possible. I wish to table some amendments which will further widen the scope of the legislation. Some other elements are not included in the scope of the definition as produced by the Minister. I ask that the statutory provisions be as broad as possible in definition. I support this amendment.
A number of issues arose in relation to section 2.
We are dealing with amendment No. 1. I ask the Minister to respond to the items relating to amendment No. 1.
It should be clear that amendment No. 1 is designed in effect to pave the way for section 2, which Deputy O'Keeffe has in mind. To some extent it is a bit artificial to discuss it in total isolation. It is clear that this is an anticipatory amendment and its constituent elements are founded principally on the grounds that a fundamental change will be made in the Government's policy underlying this Bill, specifically, in the mode of incorporation of the convention to be effected by it. The Bill has been drafted and presented in the House and passed. It was asked earlier what group of people agrees with the Government's Bill in its present form. No less a group than Dáil Éireann, on Second Stage, rejected the positions adopted by the Deputies opposite and went with this approach and upheld it on Second Stage. Frankly speaking when I——
This would be acceptable even in England.
We accept that the Minister has a majority.
I am making the point that this was discussed and the very arguments made here were put forward and rejected by a body which the Irish people have elected to decide the issue, not by a self-appointed group of people. We do not need a shadow constitution. We have a Constitution under which the Oireachtas has the power to legislate. It must be remembered that if this amendment were accepted it is paving the way for saying that decisions in Strasbourg will have direct effect of law in Ireland because that is what Deputy O'Keeffe has in mind. That is not possible under the Constitution. It is not possible to say that decisions in respect of matters covered by the Constitution have the direct effect of law in Ireland. I offer no apology for making that point. It has been canvassed at some length and some optimists - if I may put it that way - have thought that somehow it is possible to have direct effect in Irish law for a series of rights which will be determined by an external tribunal, by statute law in Ireland. Unless there was constitutional change to accommodate it, that is not possible and, in my view, it would be struck down by the courts if an attempt was made to do so. I therefore cannot accept the amendment.
I have listened to the views expressed and I do not intend to delay, but I wish to stress two points. Any approach, including this amendment, is based on accepting the supremacy of our Constitution. The operative section which will be amendment No. 9, provides that any changes will be subject to the Constitution. I accept that amendment No. 1 is part of that overall structure. I am reinforced by the opinion of every legal person to whom I have spoken that it is possible and preferable to do this, provided it is done under our Constitution. I have not urged the Minister to go the constitutional route because it would complicate the matter and would take too long. The proper way is direct incorporation, subject to the Constitution. It is absolutely permissible when presented in that fashion. I am utterly reinforced by every legal authority in this country of which I am aware.
I understand the second major point made by the Minister. He does not want a decision made by the court in Strasbourg to have direct effect here. We signed this convention 50 years ago and shortly afterwards we ratified it. We then allowed direct petition to Strasbourg. We have now agreed to incorporate it. On that basis, how can the Minister with a straight face ask a committee of the Dáil to accept a proposition that we should not accept a decision of a court in Strasbourg? Ireland was one of the first countries to subscribe to this convention. Under the Good Friday Agreement, we have agreed to strengthen the protection of human rights here. We are committed to an all-Ireland charter of rights and yet the Minister cannot accept a decision in Strasbourg having a direct effect here.
If there is a technical legal point in relation to the Constitution, that can be overcome. That is not a difficulty in the way that my colleague, Deputy Costello, and I have framed our approach. By accepting the constitutional supremacy, we can accept any decision from Strasbourg without any difficulty. If we do not accept decisions from Strasbourg, as suggested by the Minister, we are effectively rejecting the convention and that worries me. It is the wrong approach, legally, but above all it is the wrong approach politically. We should be developing a convention culture in this country and acceptance and understanding of the convention. The way to do this is to allow the convention provisions to be pleaded in our courts. I will address how that should be done shortly.
To enable us to do that, we need to have a different framework for the approach. This framework should allow the direct incorporation of the convention into Irish domestic law. If we want that we need to reframe the definitions along the lines proposed in amendment No. 1. On that basis, I ask the Minister to accept the amendment.
I do not want us to drag out this any further. I was alarmed at the Minister's statement that he did not want to see the convention having the direct effect of law in Ireland. He will give it some indirect effect of law by interpretation. I thought the purpose of international conventions, whether European or United Nations, was to give them the direct effect of law here. We are forever incorporating international conventions into our domestic law. In this case of the most important international convention in the past 50 years, why does the Minister propose to bypass it on the spurious ground that it would hand over power to Strasbourg?
None of us is speaking of the Constitution being overwritten by this convention. We are saying it should be incorporated into Irish law subject to the terms, provisions, powers and authority of the Constitution. We would then accept it in full in the same way that we accept other international conventions to which we have agreed. We ratify them, incorporate them and they then sink or swim depending on their compatibility with the Constitution. In this case the Minister has decided that the European Convention on Human Rights, up to which we are signing, will be inferior to the Constitution, not subject to it. That is the manner in which it is incorporated.
As the Minister stated, he does not want the convention to have the direct effect of law in Ireland. I find that a strange statement. I would have expected it to have the direct effect of law in Ireland subject to the Constitution. That is the thrust of the advice we have been given. It is almost as though the Minister has decided to be out of step with everything else and out of step with what he has already done with the Criminal Justice (Terrorist Offences) Bill, which came before the Dáil two weeks ago.
We should stick with this Bill.
I will not go into the detail of other legislation, but that Bill will require us to subscribe to about ten international covenants, which will be incorporated into domestic legislation. I hope the Minister will be prepared to accept many amendments on that.
The Minister should respond, because the Deputy has made his point very well.
We have a serious point of difference, because there is not much sense in us proceeding with these amendments if the Minister will not accept the validity of what we are proposing to do.
I reiterate to the two Deputies that their proposal is radically different to the one adopted in Northern Ireland and the rest of the United Kingdom. All the waffle at the beginning about how I was letting us down and having an inferior regime in Ireland is now being turned on its head, because I am being asked to do something, which the United Kingdom will not do. The Deputies want to have their cake and eat it. On the one hand, they are saying I am doing something inferior to what is being done in Northern Ireland and in the next breath they are asking me to do something radically and dramatically different from what is being done north of the Border.
I have said I do not want the convention to have direct effect as law in Ireland and I reiterate why. Taken in its totality, the convention is an international agreement. The European Court of Human Rights at Strasbourg interprets that agreement. To take a non-fanciful suggestion, if it were to say tomorrow that the Criminal Assets Bureau legislation was at variance with the European Convention on Human Rights or that some of our equality legislation or the derogations on equality within that were at variance with the European Convention on Human Rights, and if the decision had direct effect here, the consequence of that would be that an external tribunal would decide what was and was not the law in Ireland.
In the context of the European Union, we can accord to the European Court of Justice, because we have amended the Constitution to say that court's decisions are binding on us and the treaty revisions override our law. However, short of making such revision in the Constitution, there is absolutely no way that I can agree to the proposition that a group of people who are not appointed by the Irish State can determine the substance of law in Ireland. I cannot do it and it would be unconstitutional to attempt to do so. Naïve people may claim that it can somehow be done subject to the Constitution, but it must mean something. If it has the effect of law in Ireland it means that other legislation, which is incompatible with it, is either automatically overridden by it or stands until the Legislature changes it.
It is not possible to have direct effect in the sense that a decision in Strasbourg that a particular section of the Road Traffic Act is incompatible with the European Convention on Human Rights is binding on the Irish courts and on the Irish people. Lawyers in Irish courts would be able to claim that since the court in Strasbourg has ruled on something, it now becomes inoperable. We cannot allow that, because the Irish people enacted a Constitution in 1937 stating that they and they alone decide what is the law of this State and that their legislative organs, the Houses of the Oireachtas, decide the content of our law. A blanket amendment - defining it subject to the Constitution but stating that if an external tribunal finds parts of it incompatible with a convention which has been established as an instrument of international law, it will mean less than it did previously - is as invalid as giving the Minister the right to amend Irish law on the basis of a personal whim. Deputy O'Keeffe is missing the point that the phrase "subject to the Constitution" cannot be just tagged on to simplify matters. The Constitution requires that, for all Irish law, the law-making power vests exclusively in the Oireachtas. The capacity to invalidate any law vests exclusively in the courts. The law is as the Oireachtas alone lays it down, rather than the Minister for Justice, Equality and Law Reform or anybody else. There is no capacity under our Constitution to invest any international organ with the duty or function of making a binding decision as to whether any part of Irish law remains of full effect. We cannot do what the Deputy suggests - it is just not possible.
We can do it, subject to the Constitution.
With respect, that is waffle. It is just as nonsensical as saying one can stand on one's head and one's feet at the same time. The Deputy's proposition is simply not possible.
That is a fundamental point of difference between us. If we accept the sovereignty and supreme authority of the Constitution and legislate on that basis, does that differ in any way from the normal legislative process of the Oireachtas, which must also be subject to the Constitution?
Yes, there is a difference. At the moment, section 112 of the Road Traffic Act is law. If a decision is handed down in Strasbourg tomorrow to the effect that the Act is incompatible with the European Convention on Human Rights, will the Act remain law under the Deputy's system?
It can then be pleaded, subject to the Constitution——
Does it remain the law?
It can be pleaded and would have a persuasive effect on our courts, subject to the Constitution.
The Deputy has not answered my question. Would it still be part of our law?
It is our law, subject to the Constitution.
There is a difference of opinion between the Minister and the proposer of the amendment.
If we pass this Bill with my amendment, although the Minister considers it unconstitutional, it will be law but subject to the Constitution and can be set aside by reference to the Constitution, in the same way as section 112 of the Road Traffic Act to which the Minister referred, by a decision of the European Court of Justice.
There is a fundamental weakness in the Deputy's argument. There is one law-making body in this country, namely the two Houses of the Oireachtas. At any given stage, the Irish courts are charged, under the Constitution, with determining the meaning of the law as laid down by the Oireachtas under the Constitution and by reference to the Interpretation Act and this Bill. In the final analysis, if section 112 of the Road Traffic Act or any other provision of law is found to be incompatible, by whatever organ, with the European Convention on Human Rights, the issue as to whether, as a State, we agree to be bound by that proposition or to keep, say, the Criminal Assets Bureau and derogate from the ECHR, is a decision we might make.
The decision as to how and to what extent, if it were incompatible, it should be replaced by other laws if we were to accept a Strasbourg decision and decide to implement it as best we could, is a matter for the Houses of the Oireachtas and does not fall to a court to decide. The only basis on which a court can invalidate an Irish law is by reference to the Constitution. We cannot invest the Irish Judiciary with a new right to invalidate our laws by reference to what may be said by the Roman Curia, the European Court of Human Rights in Strasbourg or the International Court of Justice in The Hague.
We cannot do what the Deputy proposes. Simply repeating the mantra that what he is suggesting is subject to the Constitution does not mean that one can violate the Constitution or run a coach-and-four through it. The Constitution confers on the Irish legislative organs a monopoly on the right to make Irish law for the Irish State. One could, for instance, envisage a Bill stating that all previously enacted law that is incompatible with the European Convention on Human Rights is hereby amended accordingly and now stands amended as necessary to make it compatible with that convention. However, in relation to Bills currently before the Houses of the Oireachtas, the Irish Parliament cannot confer on the Judiciary the right to say "Over the next year, ten Bills will be enacted but if any portion of them is incompatible with the European Convention on Human Rights and is so found by the Strasbourg court, it will not have effect." It is not within our competence to give that power to the courts.
Does the Minister then reject the view of his colleagues in the Bar Council and my colleagues in the Incorporated Law Society, all of whom have said this approach is entirely possible, correct and in accordance with the Constitution?
We are not having a poll among lawyers. However, I believe if the hundreds of lawyers represented by both institutions were listening to this debate, they would agree with me and not with Deputy O'Keeffe.
None of them have agreed with the Minister's position.
Is the amendment being pressed?
Yes.
Amendment put and declared lost.
Amendments Nos. 2 to 6, inclusive, are related and may be discussed together. Is that agreed? Agreed.
I move amendment No. 2:
In page 3, subsection (1), line 25, to delete "2" and substitute "1".
My amendment is intended to strengthen the array of rights which are in the convention. The effect is that subsection (1) would include the basic obligation to respect the human rights set out in the convention. I see no reason to omit that basic obligation and it should be specifically incorporated as part of the interpretation. That would underpin our commitment to our obligations to respect all the human rights included in the convention.
With regard to amendment No. 3, it was my intention to include articles 34 to 46, rather than 34 to 36 as in the text before us.
Sorry, could the Deputy clarify that?
I intended to specify 34 to 46. No. 34 refers to the right not to have an application to the European Court interfered with.
Does the Deputy's proposal relate to articles 2 to 34 and, separately, article 36?
Yes. It ensures that no individual application could be interfered with. It highlights that particular aspect of the articles. Likewise, I wish to include Article 46, which is the binding force in execution of the judgments, rather than Article 36 which is specified here, the right to have a judgment of the European Court implemented, and that that would be binding and final. Amendment No. 4——
Let us go back to that amendment to see exactly what is intended. It refers to the phrase in line 25 "which the State may make pursuant to . . . . Articles 2 to 14". The Deputy wants to change that to read "2 to 14, 34 and 46".
Yes, 46 rather than 36.
It says "36" on the amendment list but the Deputy intended to state "46".
There is a misprint in the amendment. These are the essential rights of the convention. The rights I wish to underline are the right not to have an application to the European Court interfered with and the right to have a judgment of the European Court implemented and executed. These are fundamental rights and they should be incorporated in that section.
Amendment No. 4 seeks to insert a new subsection (e) which reads: “subject to ratification by the State, Protocol No. 12 to the Convention done at Rome on the 4th day of November, 2000;”. That protocol has not yet been ratified but it deals with equal treatment and anti-discrimination matters. It would be desirable to include this amendment as a guarantee of equality. We should express it in the legislation rather than at some time in the future, having to amend the legislation. The protocol exists and approximately 25 states have signed it. It is awaiting our ratification. We should be proactive on that and include it in the corpus of human rights we are incorporating in this legislation.
Amendment No. 5 seeks to insert "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". The same argument applies to this amendment. There are various sections in the Schedule relating to the death penalty. In fact, the first reference to the death penalty is weak in the original convention. It was upgraded in Protocol No. 6 and further strengthened in Protocol No. 13. The Minister has always taken a strong stance on the abolition of the death penalty. This is the time to underpin our opposition to the death penalty by incorporating the most up to date protocol, No. 13, which was produced in May 2002.
Amendment No. 6 seeks to include "such other protocols to the Convention as may be prescribed by regulations made by the Minister for the purposes of this definition". This looks to the future and enables us to include various protocols on human rights that may arise from time to time in the legislation. If we include this enabling provision, it will assist us in ensuring that future human rights protocols are added to the provisions of the legislation.
This list of protocols and other provisions would widen the scope of the legislation but will benefit it in terms of extending and deepening the provisions on human rights.
We need explanations from the Minister arising from Deputy Costello's amendments, particularly in relation to the definition of "convention provisions". This definition is relevant and it will arise in the context of the central debate on section 2. Under the Bill as drafted, the court shall in so far as possible and subject to the rule of the law in interpretation and application, do so in a manner compatible with the State's obligations. We will come to those provisions shortly but it will be in the context of the convention provisions. From that point of view the definition of "convention provisions" is relevant.
The thrust of the amendments is to extend the definition of convention provisions. The approach I adopted was to put all the rights under the convention and the protocols separately in a new Schedule to the Bill and to provide that the convention provisions mean all those provisions. The Minister's approach, in his definition of "convention provisions", limits the extent to which these rights will apply. The definition is subject to any derogation and is limited to Articles 2 to 14 and certain protocols.
It would be helpful if the Minister explained why all the rights would not be included as convention provisions. The approach of my colleague is to try to achieve the same effect I sought to achieve by including all the rights in the Schedule. Will the Minister explain his thinking in apparently confining the definition?
Article 1 is simply an agreement among the states that the high contracting parties shall secure to everyone within their jurisdictions the rights and freedoms defined in section 1 of the convention.
The Minister omitted the first line about the obligation to respect human rights.
That is the heading.
It is under Article 1.
It is the heading of it. The substance of it, apart from the heading, is that the states should secure to everyone within their jurisdictions the rights and freedoms defined in section 1 of the convention. That is part of an international agreement. The structure of the Strasbourg convention is that the substantive rights afforded by the agreement are set out in section 1 of the convention and that consists of Articles 2 to 14. Those are the substantive rights. There are other things which are not substantive rights but are derogations, restrictions, qualifications, limitations and prohibitions on the abuse of the rights. The substantive rights of the European Convention on Human Rights are set out in Articles 2 to 14. The United Kingdom agrees with Ireland that the substance of the convention is to be found in those articles, with the exception of Article 13. They will become the convention provisions by reference to which Irish law is to be interpreted under the Act.
Could the Minister take the amendments one by one?
I ask the Deputy to wait until I have finished.
Ireland signed and ratified the provisions of the convention on 4 November 1950 and 25 February 1953, respectively, and it entered into force on 3 September 1953. It should be noted in passing that the 1998 UK Act does not contain a reference to Article 1.
I will return to individual issues after I have dealt with amendment No. 3. The right of individual petition to the European Court of Human Rights, in accordance with the provisions of Article 34, was accepted by Ireland from the start. Ireland and Sweden were the first two member states to accept this important provision, with effect from the coming into force of the convention in 1953. The United Kingdom accepted the provision in 1996 and France accepted it in 1981. The State already has a binding obligation in relation to the matters covered in Article 44 of the convention and nothing further will be added in this Bill in that regard.
I will now deal with amendments Nos. 4, 5 and 6. The two additional protocols, Nos. 12 and 13, dealing with discrimination and the abolition of the death penalty, are not yet in force. Ireland has signed Protocol No. 12 and is considering its ratification, pending the coming into force of the protocol when the required number of state ratifications has been completed.
Ireland has signed and ratified Protocol No. 13, which deals with the death penalty. The Constitution has been amended to make it unlawful for the State to impose a penalty of death and to change the Constitution's emergency provisions to render impermissible any attempt by the State to introduce an emergency law which would represent a re-introduction of the death penalty. As it is already part of the law, it is doubtful whether an attempt to ratify or incorporate Protocol No. 13 into the Constitution would have any effect. I do not want to restart an old war, but the Constitution, which is superior to the convention, already makes clear and unequivocal provisions in relation to the death penalty. There is no point in adding new material for its own sake, unless someone can come up with a good reason why it would give additional value. Protocol No. 13 has not been brought into force, as it has not yet been ratified by the required number of states. I do not see the effect of my adding it to the list of convention provisions to which this Bill applies.
I am not sure if making ministerial regulations to cater for additional protocols to the convention is the best way to proceed. It is not really constitutionally permissible for a Minister to make such a provision by means of regulation. Deputy Jim O'Keeffe's amendment refers to Article 15 of the Constitution and I think the Deputy is conscious that the question of delegation of powers to Ministers may arise. It is simply not constitutionally possible for the Oireachtas to hand to a Minister the right to incorporate into Irish law protocols to European conventions without the Oireachtas deciding whether it wants them to be incorporated. A protocol can be a substantial thing, so it would not be a good idea to allow a Minister to sign a protocol into Irish law without reference to the Oireachtas. If further changes to the European Convention on Human Rights are needed, I suggest that the Oireachtas should consider whether, to what extent, and subject to what qualifications, they should be incorporated into Irish law.
The doctrine of the margin of appreciation, which has varying effects on various articles under the convention, has not been mentioned. A doctrine of the European Convention on Human Rights in Strasbourg states that member states of the convention have a margin of appreciation in relation to how they apply the terms of the convention. The direct effect argument is dubious because the margin of appreciation in the Irish context should be a matter for the Irish Legislature, not the Irish courts, to decide upon. The appropriate method for the further incorporation on an interpretative basis into Irish law of the probable additional protocols to the convention is to require that the Oireachtas should amend the legislation to give them effect, subject to whatever qualifications are open to it, in a way that is compatible with Irish law. This is preferable to giving to a Minister the right to change substantive Irish law, in effect and albeit in an interpretative mode, by making an order in the relevant Department.
I will withdraw amendment No. 6, as the last thing I wish to do is to give the Minister powers over and above those he seeks.
Even if the Council of Europe has to go along with it——
Far be it for me to allow the Minister to bypass the Oireachtas and to introduce legislation on his own bat. Amendment No. 6 relates to protocols that will arise from time to time and that we have signed and ratified. We have taken proactive steps to ensure that we agree with the human rights provisions in the protocols. I assume that a Minister would not pluck a protocol out of the air and decide to do a runner with it. We will have seriously considered our stance in relation to these matters. It is questionable whether my suggestion is unconstitutional in that respect. The thrust of what I am trying to do is to widen and improve the definition of "convention provisions".
Article 1 of the convention should be added to the list of convention provisions to which this Bill applies, so that it would cover Articles 1 to 14. The Minister mentioned that Articles 2 to 14 relate to rights, freedoms and prohibitions, but Article 1 contains an important obligation to respect all the human rights listed in it. Why will the Minister not include an obligation in the same way as he includes the other requirements? The fact that the UK Act omits Article 1 does not mean the Minister, who takes an independent stance on these matters, should do likewise. I thought the Minister would have decided that obligations, rights, freedoms and prohibitions should be included in the provisions of this Bill.
I mentioned Articles Nos. 31 and 36 of the convention in my amendment because of their importance, but the Minister has said that we have already signed up to them. I believe we should sign up to them because they are part of the convention, regardless of whether we have made constitutional provisions in relation to them. I do not accept the Minister's argument in relation to amendment No. 5, which relates to the death penalty. Enactment in legislation and a constitutional and legislative overlap do not mean we exclude the protocol which is an integral part of the Convention on Human Rights despite the fact that it has not been incorporated in law. Since we have signed and ratified the protocol, why should we exclude it? There are many areas of overlap.
The protocol may never come into effect. If other states fail to ratify it, it will die.
What is the problem then? We make legislation as an independent country.
We have already dealt with the matter comprehensively by amending the Constitution to prohibit this from ever being part of our law. We have exercised our sovereign independence. This is window dressing as far as Ireland is concerned.
While this may, thankfully, be window dressing, I remember the Minister discussing other legislation to incorporate EU framework directives saying that we were ahead of the posse, but would still incorporate the provisions. This is an EU framework convention to be adopted by all member states subscribing to the Convention on Human Rights. We cannot pick and choose. If protocol No. 13 decided at Vilnius in 2002 is not the most up to date provision, why did we sign and ratify it? Are we not to incorporate it in legislation?
It does not become an effective part of the European convention until a minimum number of states ratify it. That may not happen. If it does become an effective part of the convention, we will establish whether or not we wish to make it part of our law. We can already say to member states that the provisions are already an immutable part of Irish law and do not need to be restated. Ireland is incapable of breaching this provision by virtue of the Constitution. If it were ratified, we would have to ask ourselves whether incorporation would be a waste of time.
I am very precise when it comes to protocols. I am not going to pursue the future protocols on the convention in relation to regulations by the Minister.
Thank God.
We are talking here about two protocols, the death penalty protocol, which is No. 13 and Protocol No. 12 which relates to fair treatment and non-discrimination. These protocols are already at an advanced stage. The Minister says we have signed and ratified No. 12 and signed, but not ratified No. 13. You cannot make enough provision against discrimination. Many of the provisions of the convention are part of our legislative corpus and our Constitution. We should go ahead and incorporate the protocols now rather than in the future as the Minister says. From a European point of view this is something we should do, even if it is window dressing, since we signed the protocols. Perhaps the Minister signed them personally.
Deputy O'Keeffe, do you wish to contribute? We want to finalise this issue, as it seems the same questions are being asked.
The problem is they are not being answered.
What is the basis for the definition of provisions in section 1, which Deputy Costello seeks to amend or expand? As framed, it states convention provisions are to be subject to any derogation the State may make pursuant to Article 15. We are providing for Articles 2 to 14 and certain protocols as construed in accordance to Articles 16 to 18 in the convention. I am suspicious because of the restrictive nature of the Bill before us. Why do the convention provisions not mean what they say? The provisions surely entail the Convention on Human Rights and its protocols. The Bill is expressed restrictively, which is why my colleague has tabled a number of amendments.
Section 1 of the convention covers Articles 2 to 18, inclusive. Articles 15 to 18, inclusive, are restrictive and qualifying articles on Articles 2 to 18, inclusive. We, along with the UK, have said that the substantive interpretative material is to be found in Articles 2 to 14. The UK has excluded Article 13, but we have not. This is an area in which we have gone ahead.
That is one plus against about ten minuses.
There are also the damages. If you take into account the fact that we have included Article 13, some of the remarks made earlier about Article 1 fall away. We have said that everyone whose rights and freedoms as set forth in the convention are violated shall have an effective remedy before a national authority, notwithstanding the fact that the violation has been committed by persons acting there.
The Bill provides that they cannot get an effective remedy.
It does not.
It is one of my central problems with the Bill.
To adopt the Deputy's mantra, it is subject to the Constitution.
Does the Minister know where the words "subject to the Constitution" came from? He should look at the Long Title of the Bill.
I know where they come from. I put the phrase in myself.
We are both of the same idea. What the Minister says is subject to the Constitution as is what I say. The Minister should not throw the words at me. I thank the Minister for the precedent.
The Minister has still not explained why we are omitting Article 1.
Article 1 is not part of section 1, which provides for the substantive rights and freedoms conferred on citizens by the European Convention on Human Rights. Article 1 is an operative section as part of the international agreement. We are making the whole of section 1 of the convention the template interpretation of Irish laws, rules of laws and statutory provisions. We have given effect to every single part of section 1. We have mentioned the fact that we can derogate. In an emergency, to introduce internment would be inconsistent with the general thrust of the section and I would have to derogate from certain of the obligations. Articles 16 to 18, inclusive, are expressly incorporated by the definition given to the convention provisions because they are expressly mentioned as the interpretative provisions in relation to the rest of section 1. Unlike the UK, I have incorporated that section in its entirety into Irish law.
That is wonderful and we agree with it. However, section 1 is dependent on Article 1 of the convention, which states:
The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention.
The Minister has incorporated all of section 1, for which we are grateful, but will not include the introductory article on which that section depends.
Article 13 states:
Everyone whose rights and freedoms as 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.
The Minister is saying that Article 1 is unnecessary because it is covered in Article 13.
Yes.
Article 1 is the prelude to the entire section, whereas Article 13 is a distinct article.
This bone will be chewed to the marrow by the time we finish.
The Minister is taking the easy way out.
Is the amendment being pressed?
Yes.
Amendment put and declared lost.
I move amendment No. 3:
In page 3, subsection (1), line 25, after "14" to insert ", 34 and 36".
Amendment put and declared lost.
I move amendment No. 4:
In page 3, subsection (1), after line 37, to insert the following:
"(e) subject to ratification by the State, Protocol No. 12 to the Convention done at Rome on the 4th day of November, 2000;”.
Amendment put and declared lost.
I move amendment No. 5:
In page 3, subsection (1), 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;”.
As the Order of Business is imminent, we will adjourn until immediately afterwards when the vote will be taken. Is that agreed? Agreed. Do we have to wait until the Order of Business has been concluded before resuming? This is probably the case, given that there will be a vote. Does Deputy Hoctor, as the convenor, have an opinion on the matter?
With the agreement of the committee——
One would begin with avote.
We will have the vote as soon as we come back. Do we agree that——
We could win this one.
We will return at 5.15 p.m.
Sitting suspended at 4.35 p.m. and resumed at 5.15. p.m.
Amendment put.
The Select Committee divided: Tá, 2; Níl, 7.
Tá
- Costello, Joe.
- O’Keeffe, Jim.
Níl
- Ardagh, Seán.
- Callanan, Joe.
- Hoctor, Máire.
- McDowell, Michael.
- McEllistrim, Tom.
- O’Connor, Charlie.
- O’Donovan, Denis.
Amendments Nos. 7 and 8 are related and may be discussed together, by agreement.
I move amendment No. 7:
In page 4, subsection (1), lines 15 to 17, to delete all words from and including "or" where it firstly occurs in line 15 down to and including "court" in line 17.
This amendment relates to the definition of "organ of the State" under section 1. Strangely, some organs of State have been excluded from the definition. The amendment seeks that either House of the Oireachtas or a committee of either such House or a court be regarded as organs of the State required to have full regard to the provisions of the European Convention on Human Rights. It is wrong to exclude the Oireachtas and the courts if the law is to have full effect.
To exclude any organ of the State sends out the wrong message. The Minister might say the courts already have a duty to have regard to all the provisions. Of course they do, but why does he regard it as necessary to have such exclusions given the very central role of the courts in respect of all legislation and the central role of the Oireachtas in policy making and legislation. A specification of the importance of the courts should be integral to the Bill.
If the Minister is to accept amendment No. 10, which states that "the Convention provisions shall be part of the law of the State", there should be no derogation of any organ of the State. Even as matters stand, it is wrong to exclude the organs of the State, especially the courts.
My point is similar to that of Deputy Costello, with particular focus on the fact that the present definition specifically excludes the courts. Perhaps the Minister will explain why they are excluded. It may be on the basis that the courts already have a duty to uphold the Constitution and the law and that their specific inclusion would add nothing to that provision. I do not agree with that.
I am not sure to what extent I should look to UK legislation for a precedent. It seems to offer a very obvious precedent in one sense, but the Minister denies this. I note the British legislation includes the courts. The corresponding provision in British legislation to "organ of the State" is "public authority". The first part of the definition, used to define what constitutes a public authority, is a reference to the court, under section 6(3) of the 1998 Act. It goes even further in that it specifically provides as to how proceedings are to be taken in respect of judicial acts, it refers to a right to appeal and, in Scotland, the right to petition for a judicial review. Why cannot we have something similar where such acts can be dealt with by way of appeal or judicial review? This is an issue that must be confronted in the context of the Good Friday Agreement. It must also be confronted in the context of any future all-Ireland charter of rights.
I accept that judicial independence must be preserved. Yet, it is clear that the convention obligations extend to the performance of judicial functions. Where does this leave us? There can be no question of interfering in judicial decisions but what happens here as opposed to Britain or Northern Ireland if there is unconscionable delay in the delivery of a judgment? I recall a case in Waterford that went on for five years. What are our current obligations under the convention and where does the Minister stand on this issue? Is it merely a case of waving the Constitution, talking about the separation of powers and saying there is nothing we can do?
The question of giving reasons for decisions is, perhaps, even more relevant. A case can be made under the convention where a party to proceedings should be entitled to be given reasons for a decision. Article 45 provides that the court in Strasbourg must give reasons for its judgment as well as for decisions declaring applications admissible or inadmissible. A case has been made for the right under the convention of a litigant to get a reason for a decision. I do not think it interferes with judicial independence to require the court to say why it has dismissed a case.
The Minister could argue that it interferes with judicial immunity but this is another issue that must be confronted. There is no question of suing a judge but the responsibility will be with the State, as it should be. The courts are included under the legislation in Britain and Northern Ireland and Ireland is supposed to have equivalence at least. This can be done without damaging the constitutional independence of the Judiciary.
Deputy Costello's amendment seeks to make the Oireachtas subject to the provisions of the Act. This proposes that the Oireachtas should pass a law binding it generally as to how it discharges its functions and obliging it to comply with the European Convention on Human Rights. The Oireachtas is a sovereign Legislature. It is not free to bind either House as to how it discharges it functions - they are answerable to the people under the Constitution. It is incompetent for the Dáil or Seanad, or in combination, to pass a Bill requiring future Houses to behave in any way. Every House is free to exercise its jurisdiction wholly and freely as long as it complies with the Constitution.
My first point referred to legislation. On the question of how it deals with Members of the Oireachtas, each House of the Oireachtas is sovereign under, and subject to, the Constitution regarding its rules and procedures. It is incompetent for the two Houses together, by Act, to attempt to direct either House as to how it conducts its affairs. I do not know how the Oireachtas could be bound by an Act of a previous Oireachtas in this way. When either House of the Oireachtas puts its mind to an enactment, under the Constitution it is free to arrive at any decision it wishes and cannot be bound by a decision of a previous Act of the Oireachtas.
The charge was idly put against this Bill that it is weaker than the British Act. If one looks at section 3 one will see a cause of actions and damages vested in any person who suffers injury, loss, or damage as a result of contravention of subsection (1). If a House of the Oireachtas was comprehended in the phrase "every organ of State" there would be a cause of action against the Houses of the Oireachtas for enacting laws that were found to be in contravention of the European Convention of Human Rights. Anyone who suffered any loss as a consequence of this would be entitled to sue the Oireachtas for damages. This is unconstitutional. The Oireachtas is free to legislate in any way it likes as long as it obeys the Constitution. Vesting in courts a jurisdiction to punish the Oireachtas for enacting constitutional laws that are found to be in contravention of the European Convention on Human Rights is ultra vires the Oireachtas itself. Nobody can sue the Oireachtas for doing that which the people are entitled to elect it to do and which its Members are entitled to choose to do. Section 3 does not exist in British law. One cannot sue Parliament for enacting a law, nor can one sue it for doing something incompatible with the convention. This is a much stronger provision in the Irish Bill, and the direct course of action conferred on persons whose rights under the convention are infringed by organs of State is something that is new and stronger than what is available elsewhere. It also creates certain problems, and one is that one cannot make the Oireachtas liable to be sued for doing that which it is perfectly free to do under our Constitution.
Moving to the courts, the point is made that in the UK the public authorities include the courts. The Irish courts are ordained to some extent by the Constitution but also by statute and by statutory instrument. This is of relevance here. Those people who criticise the omission of the courts from the definition of organs of State forget that every rule of court is a statutory instrument and that every one of the Courts, Courts of Justice and Court Officers Acts are provisions that fall to be interpreted under section 2 in a convention-compatible way, if at all possible. The notion that somehow the courts will be wholly strangers to the convention and will not be obliged under the terms of this Bill to comply with it is a bit wide of the mark. After this Bill becomes law, it will be incumbent on the court - the superior courts, the District Court, the Circuit Court or the Special Criminal Court, as the case may be - when it is applying its own rules and the statutes under which those rules are applied, to do so in a manner that is compatible with the convention, in so far as those texts permit them to do so.
That is a significant change. If we consider a witness being obliged to testify, for example a journalist being obliged to disclose his or her sources, it is arguable that, subject to the Constitution not directing a different outcome, the power to compel a witness or punish him or her for contempt, which is a common rule of law that has to be interpreted in accordance with the convention, could be affected. When this comes into effect, a journalist could point to European Court of Human Rights jurisprudence for authority to the effect that he or she should not be compelled to disclose sources except for grave reasons of national security. Such a person would have those rights effectively conferred, admittedly in a slightly circuitous way, but none the less so.
Of the two examples that have been given of areas in which the courts should be made answerable, one was in relation to delayed judgments. My predecessor Deputy O'Donoghue and I conferred at great length on this subject when this Bill was being prepared. As alluded to by Deputy O'Keeffe, people have brought the State to Strasbourg in the past on the basis of a failure by the courts to deliver judgment within a reasonable period and the loss occasioned by the result of such failure. The Court and Court Officers Act 2002 obliges a court to deliver judgment within three months. The registrar of a court must enter on a register any reserved judgment, in other words one that is not given immediately. If the court does not then deliver the judgment within three months, the registrar is obliged to re-list the case before the judge so that he may fix a date upon which judgment will be given.
I know there have been some criticisms of this as an encroachment upon the independence of the Judiciary; some have argued that it is a measure that forces the hand of the Judiciary. I believe that three months is normally long enough for anyone to wait, but if at the end of three months a judgment has not been delivered by any court, to fix a firm date on which it shall be delivered in no way invades the independence of the Judiciary. It does require it, however, to pay reasonable attention to the old maxim that justice delayed is justice denied. That provision has been brought into statute law and in a short time I will have to commence that section and make regulations under it providing for the register.
Today is not the first time that the obligation to give reasons has been raised. As I understand the jurisprudence of the High Court and the Supreme Court, courts are obliged to give reasons for a decision in order to indicate to a person who considers himself aggrieved or potentially aggrieved that he should be aware of the grounds upon which the decision against him was made, in the event of his exercising his right of appeal. I have never seen a case, other than in the criminal process, in which reasons were not given. Juries pronounce guilt or lack of guilt and do not give any further reason, but in other cases, for example in the District Court, which deals with minor matters of the lowest level of jurisdiction, when any substantive issue of law is decided by a non-jury court it is incumbent on the trial judge to give reasons. He or she cannot simply say that he holds for the plaintiff, the landlord or the defendant and simply walk away without giving anybody any inkling of how the issues were disposed of. In so far as the rules of the court provide for an order to be made, either orally by the judge or in writing, unless the Constitution determined otherwise, it would have to be made in a manner compatible with the convention. Under section 2, the rules of the District Court and so on must be interpreted in a convention-compatible way.
One issue which has not been raised by the Deputies opposite, possibly out of respect for the courts, is blatant misbehaviour by or corruption of a judge. The creation of a right of action is not something I propose to do. If such a case were to come to light it would have to be dealt with on its own merits. I do not want to create a new cause of action - where one sues a judge against whom one makes an allegation of corruption - and give it statutory form. We have thought long and hard about this. The convention, in principle, puts obligations only on public organs and on the State. An argument made in Britain for horizontal application was that the courts were obliged to apply its terms horizontally in dealing with private disputes between people. The case the Deputy referred to involved the wedding photographs that appeared in Hello magazine.
I have no intention of creating a new parallel system of tort law horizontally. This Bill is conservative in that it deals with public organs of State and their relationship with the individual. It does not purport to regulate transactions between citizens except in so far as the rules of court will be interpreted in a convention-compatible way. Many academic authors in England thought the inclusion of courts in their public authority category would create a new parallel system of torts between individuals in breach of the Convention on Human Rights. I do not want to do that, intentionally or otherwise.
If we are talking about the undoubted convention right to privacy, I do not want it to be said that this statute, when it becomes law, is the basis for a new tort. If we want to create a new law of privacy and new rights of action for people infringed by it, and give Ms Zeta Jones rights of action in Ireland, we should do that consciously ourselves and not by accident by including the term "court" as organs of State in a Bill like this.
This is not an experiment and I do not intend to bring about any unintended consequences. I do not want people to wake up to find that the Bill has totally changed their lives in a way that was never mentioned as it passed through the Dáil. That might sound conservative but this is not the correct way to change our law. If we want to do that, we should examine issues such as privacy and journalists' rights and do our best to change the law ourselves on a conscious basis using the Law Reform Commission and the Houses of the Oireachtas rather than hand a new mandate to the Judiciary to create a new parallel system of legal rights and obligations, citizen to citizen.
It is not an omission. These things were carefully considered. Binding the Oireachtas is constitutionally suspect. Deputy Jim O'Keeffe was worried in case I would wave the Constitution at him, but judges are bound to uphold the Constitution and to interpret even their own rules subject to it in a way which is compatible with the convention and their own procedures.
We should not go further than that. In view of the right of action caused by section 3, I do not want people to sue the State because they think the Supreme Court or the High Court got it wrong in a particular decision and, as a consequence, a new cause of action arose. Suppose a Circuit Court judge got it wrong in convention terms, and wrongly decided to force a journalist to disclose a source. I do not want a situation where a party to those proceedings will start a civil action against the State arising out of the manner in which the court carried out its function. That would open a Pandora's box. Doubtless the lawyers would love it but one of the functions of the Minister for Justice, Equality and Law Reform is to keep the door of the Exchequer firmly bolted against those who are approaching it with shovels and barrels.
Tribunals of inquiry are often headed by judges or former judges. A number of people have claimed recently to have been treated unfairly by one tribunal or other. They are not charged with criminal offences but they claim that the manner in which evidence is given against them is unfair and that a long time elapses before they can put their case. If this Bill is introduced, would such individuals be in a position to make a legal challenge on the basis that their rights under the European Convention of Human Rights have been contravened in some way?
The organ of State does include the tribunals so, in principle, yes, a tribunal would be liable to be sued in circumstances where it breaches an individual's convention rights.
I note that Article 6 of the convention includes a right to a fair trial but that is in the context of a criminal charge.
Under the Constitution, tribunals cannot deal with criminal trials or exercise any judicial function. However, I could imagine a circumstance in which a tribunal, under power of compulsion, required one to disclose one's diary, for example. Then a member of the tribunal wrongly, and in breach of the individual's right of privacy, causes that information to be thrown into the public domain for no good reason, simply to embarrass the individual or whatever. In such circumstances, and if there was no other remedy available to the individual, he or she could in principle, under section 3, sue the tribunal for compensation.
In the explanatory memorandum a reason is given for excluding the courts. It states that our courts have been excluded from the definition of organ of the State on the basis that they are already under a duty to administer justice in accordance with the provisions of the law and the Constitution. Presumably all courts could be sued if they do not administer justice in accordance with the provisions of the law and the Constitution.
The Deputy is misinterpreting the provision. It is not stating that this is the precondition for excluding the courts, it states that this is the reason this was done.
The bald statement is made that the courts are already tied to the administration of justice in accordance with the law and the Constitution. If that is the case, and if they depart from that legal and constitutional requirement, surely the courts are then open to be sued for misbehaving or operating in a manner contrary to the law or the Constitution. The further step that appears to be envisaged here is that similar organs of the State would be required to have due regard to the provisions of the European Convention on Human Rights. In all of their deliberations, therefore, they would be obliged to take into consideration the requirements of the convention as incorporated into our legislation. It seems reasonable that organs of the State should be duty bound to acknowledge these principles in conducting their activities. The courts are already required, of course, to obey the requirements of the Constitution. I do not understand, therefore, the distinction that is being made here. If the courts are empowered to administer the law under the Constitution, why can they not administer the law with due respect to the principles and provisions of the European Convention on Human Rights when they are incorporated into our domestic law? What we include in the organs of the State are the tribunals, which have a judicial function as the Chairman pointed out, or a quasi-judicial function at least, in relation to matters of public concern. Is the Minister saying that people working in those areas are now liable to be sued if they do not abide by the principles that we are now incorporating, that he will include the chairmen of the various tribunals that have been established but will not include any officer of the courts or any member of an Oireachtas committee? Is it the case that we, as committee members, do not have to have due regard for the principles of the European Convention on Human Rights?
There seems to me something wrong with those exclusions. They go against the grain of the intention of having all activities in the countries that have signed up to the convention duty bound by the principles inherent in it. That is part of the difficulty I have in accepting the Minister's argument. Why should this exclusion exist? The Minister seems to simply accept that all organs of the State, by definition, are automatically bound to have due regard to the principles incorporated in the European Convention on Human Rights.
If we could try just to complete amendments Nos. 7 and 8.
I go back to the question of the courts. I have followed the Minister's reasoning, and I thought that his arguments contributed, to so some extent, to the case for including the courts. The two principal difficulties we have referred to in this regard are delays in delivery of judgments and grievance. As the Minister says, however, those two problems are already being tackled. He is required under a recent Act to make an order in relation to one of them and the other is also being resolved domestically under our own rules of court. If they are the two principal objections to including the courts, then, as the Minister states himself, we have dealt with the problems already. Why not include the courts, therefore?
The other issue that arose was in relation to the position of the UK, and the possibility of encouraging many new actions in tort. I was struck by a paper written by Lord Wolfe, of which I am sure the Minister is aware, on the 1998 Act in the UK. According to him, the fears that were expressed prior to the enactment of the legislation in the UK in 1998 were absolutely unfounded. There has been quite a small number of tort cases as a result and according to Lord Wolfe those that have arisen have, in the main, been absolutely meritorious. There was no flood of actions arising from the 1998 Act.
This brings me back to my original point about involving the courts here in the same way that they are involved in the UK. Given that they are included in the UK legislation, will we not find ourselves in difficulty in terms of equivalence? I am not making a political point here. I am genuinely concerned about the commitments made in relation to the Good Friday Agreement.
The United Kingdom has no written constitution. Parliament could abolish the High Court in Britain tomorrow. It could resolve that it must decide all cases of a particular kind in a particular way. Parliament could empower the Home Secretary to hand out certificates of innocence, thereby enabling people to walk free from English courts. It is an unwritten constitutional framework in which parliament is sovereign.
Our situation is different. Our courts are given a function under the Constitution to administer justice. That role is the monopoly of the courts and they are independent in the discharge of that role and subject only to the Constitution and the law when administering justice. I do not, under any circumstances, want to create a new system making the courts liable for damages to third parties, for the simple reason that the ingenuity of lawyers knows no bounds. If, for instance, the High Court was given a right to entertain a case that the Circuit Court, on appeal from the District Court, had violated Michael McDowell's convention rights in some way, we would, in effect, have a situation whereby, on a never-ending set of appeals, one could bring a civil action to upset the outcome of another civil action which was decided finally. There would be no end to litigation because whenever people run out of one set of remedies, they will instead sue for a declaration that the final decision on the unappealable decision of that court was wrongly decided, and thereby be rewarded money on that basis.
I am content that the Judiciary carry out its function under the Constitution, that it administer justice freely and impartially under the Constitution, that it not be liable to be sued when it gets things wrong but that the system that we have had heretofore continues to operate. There are individual cases where, for instance, we have created a statutory right to compensation for certain persons where there is a miscarriage of justice. If, for instance, a judge unconscionably delayed giving a judgment and I was hauled before the court in Strasbourg as the Minister responsible for the failure to give the decision within a reasonable period, I would undoubtedly have to take out the State's cheque book and, with the concurrence of the Minister for Finance, write a large cheque.
I will not, however, create a new system of court jurisdiction whereby civil claims can be launched every time somebody is unhappy with any form of criminal, licensing, civil or whatever jurisdiction decision made by a court whose decision is final. I do not want to go down that road. Aside from the reasons that the Deputy mentioned, aside from the delay issue that is being dealt with separately and aside from gross misbehaviour or corruption, I see no reason why we should go down that road. If it is not broken, do not fix it, as the saying goes. I am not saying this to protect the Judiciary. I simply do not want unintended consequences. I know that if I included the courts, section 3 as it stands would give a right of action to individuals who claimed their licence was wrongly suspended by the District Court or whatever. Such people would conclude they had a right of action against the decisions of the lower courts in the High Court. The system of justice would snarl up and become a paradise for lawyers but a nightmare for the rest of us. What I am doing is a case of poacher turning gamekeeper.
I understand the point made by the Minister, but these very points were made in the UK when its 1998 Act was introduced but were proved to be utterly unfounded. With respect, the Minister has not dealt with the commitment we gave in the Good Friday Agreement.
I will deal with that but I was accused earlier of slavishly following the British in taking a Bill which was a slavish, weak imitation of theirs. We have conferred more rights on Irish citizens than the British have, under section 3 of this Bill. One of the consequences of that is that there is an action for damages against public authorities in Ireland where one's rights are breached. The obverse side of that is that I do not want to drag the courts into the business of being defendants in litigation arising out of litigation. That is a perfectly reasonable point of view. I put it to the Deputies opposite, that they should not ask me about what unfounded worries there were in Britain. Can somebody tell me some injustice they want to remedy by bringing the courts into this? Otherwise, most of the criticism of this is lawyers playing games. This is mirrors upon mirrors upon mirrors. I do not know what new good would result if I brought the word "court" within this definition. Nobody has ever explained to me one positive advantage of doing so.
May I just ask——
One advantage is that the human rights convention would be adhered to.
They are not worth a damn to people.
I have listened with interest to the points made by my colleague, Deputy O'Keeffe, about judges and courts giving the reason for their decision in certain cases. I concur with the Minister in regard to the inclusion of the word "courts" as it would create many practical problems. For example, with a District Court judge there is a right to appeal, a right to state a case and one is under obligation to the Constitution. Under the recent Court and Court Services Act, there are certain other obligations on judges. Its inclusion would open a can of worms and the floodgates for actions against judges, which is unnecessary. We are accused from time to time concerning delays in the courts system. I am aware from road traffic offences and minor matters where, as the Minister said, lawyers would say after a case has gone to appeal, and, perhaps, a case stated to the High Court on a point of law that two years later one could go through the door of the European Convention on Human Rights on another angle of the case. This would make our judicial and courts system more cumbersome and draconian. I have great faith in our judges and the courts system. While there have been exceptions, the system has worked well. The reasons outlined by the Minister are solid, realistic and pragmatic and are acceptable to me. We would be going into uncharted waters by taking risks which would not create any extra benefits for the ordinary citizen.
To finalise it, will Deputies Costello and O'Keeffe put their final questions, please?
The Minister raised the spectre of greedy lawyers waiting to sue the State and judges for all this gross misbehaviour.
For getting it wrong.
I do not share the Minister's view of lawyers. They are wonderful people and have a great sense of civic duty, etc.
I will convey the Deputy's views to the Bar Council immediately.
The other side of the coin is that we need to incorporate the European Convention on Human Rights to the maximum in all areas of public action where citizens' rights and welfare are affected. If we do not include all the organs of State that are relevant to the provisions, we are neglecting to implement the provisions properly and there will be a loss. The Minister made a strong case that we should not open up any Pandora's box in terms of offering avenues to sue. We have witnessed that type of culture. The other side of it is the inability to properly accord with our duties and obligations to ensure the fullest possible implementation of the provisions of the convention.
It is clear, as we are drawing to a conclusion on this issue, that the Minister has no great liking for the European convention and would be just as happy if we managed without it and relied solely on our Constitution in relation to fundamental rights. That is where there is a difference between us. I have the highest regard for the Constitution and I do not want it to be diminished in any way. Subject to the Constitution I want us to have the fullest incorporation possible of the convention. Obviously that is where there is a difference. That is the background to the issue of whether we include the courts.
I am concerned about the position we are in under the Good Friday Agreement. The route we are travelling puts us in a situation where we cannot comply with the Good Friday Agreement. While we are five years late in doing so at least we are attempting to do it now. However, we are doing it in a fashion which will not ensure an equivalent level of protection of human rights as will pertain in Northern Ireland. From that point of view this Bill is a major disaster and this particular provision is relevant to that point, because the UK legislation includes the courts. The Irish legislation does not. From that point of view I strongly press the Minister to consider a change of tack. I have been trying to get him to consider a change of tack regarding his fundamental philosophy, so I have no great hope of him doing so in relation to this issue.
I would like to put this issue to a vote.
Are our rights going to be protected as much here as they are in Northern Ireland?
It is not a question of me not liking the convention, it is the reverse. I admire the convention in every respect but I do not believe it is a substitute constitution for Ireland. I have said again and again that I believe in the vast majority of cases, both in the letter, implementation and jurisprudence, the Irish Constitution guarantees immeasurably better rights across the board to Irish citizens than does the convention.
I did not say that. If it is a common case there is no problem.
For example, in relation to homosexuality, or section 52 which demands accounts of movements, there are cases where the Irish have been found to have fallen short of the standards of the European Convention on Human Rights while, apparently, complying with our own system of constitutional law. In those cases I appreciate the intervention of the European Court of Human Rights to put us right. This Bill is designed to minimise the occasions on which Irish citizens will be obliged to go to Strasbourg because, for instance, to take the Dudgeon case, which was the homosexuality issue, it would have put it firmly up to the Irish Judiciary at that time. That case involved a homosexual man in Northern Ireland who found that the same law that would apply down here was incompatible with the European Convention on Human Rights and got a declaration from the Strasbourg court to that effect. Prior to this Bill coming into effect, and in the absence of the ECHR having any function at all in domestic law, we had a situation where Senator David Norris went unsuccessfully to the High Court and the Supreme Court, with no guidance to the Irish Judiciary from the Legislature as to how the 1883 Act was to be interpreted and no function given to the courts or provision made for a decision in Ireland under which, even though the then Supreme Court - with whose decision I would not agree - said the criminal ban on homosexual behaviour between consenting adults was compatible with the Constitution, Senator Norris could have been given a final right to go to the High Court or Supreme Court and say, "Okay, I take your point that it is compatible with the Irish Constitution, even though I do not agree with it, but I am asking you to find, as a matter of law in Ireland that it is incompatible with our obligations under the convention, as laid down by that court, and put it up to the Oireachtas, without going to Strasbourg, to say 'I want a remedy'."
There is no question of my not liking the convention but, if at all possible, I want our Constitution, laws, statutes, procedures and all the activities of public bodies to be carried out in a manner that is compatible with the convention, without bringing the roof down on ourselves by altering the system we have, which is immeasurably better than the great majority of European states.
The Minister has no support from anybody who knows anything about this area.
I had in the Dáil on Second Stage.
Is the amendment being pressed?
No.
Amendment, by leave, withdrawn.
I move amendment No. 8:
In page 4, subsection (1), line 17, to delete "or a court".
Question put: "That the words proposed to be deleted stand."
The Committee divided: Tá, 3; Níl, 7.
Tá
- Costello, Joe.
- Crawford, Seymour.
- O’Keeffe, Jim.
Níl
- Ardagh, Seán.
- Callanan, Joe.
- Hoctor, Máire.
- McDowell, Michael.
- McEllistrim, Thomas.
- O’Connor, Charlie.
- O’Donovan, Denis.
Question declared carried.
Amendment declared lost.
Question proposed: "That section 1 stand part of the Bill."
It is not agreed; it is utterly opposed.
Question put.
The Committee divided: Tá, 7; Níl, 4.
Tá
- Ardagh, Seán,
- Callanan, Joe.
- Hoctor, Máire,
- McDowell, Michael.
- McEllistrim, Thomas.
- O’Connor, Charlie.
- O’Donovan, Denis.
Níl
- Costello, Joe.
- Crawford, Seymour.
- Moynihan-Cronin, Breeda.
- O’Keeffe, Jim.
Question declared carried.
Progress reported; committee to sit again.
The select committee adjourned at 6.45 p.m. until 5.15 p.m. on Wednesday, 19 February 2003.