No. The Deputy wishes this to have the force of law in the State and is saying, therefore, that it amends all previous law and knocks it out so that it is inconsistent with it. That is what is being argued by the Human Rights Commission, the Law Society and the Bar Council. It is bad enough to find out Acts have been ruled unconstitutional but it would be different if every day I had to monitor the activity of every District Court, Circuit Court and High Court throughout the country and find quite apart from the Constitution they were finding in the course of cases that previous law enacted by the Oireachtas had fallen by the wayside by reference to a case decided in Strasbourg or by reference to their own view of what the court in Strasbourg would find if a case was brought before it. That is what Deputies are arguing for and they should not imagine they are arguing for anything different. If this becomes the rule of law in the State, it will automatically amend all other inconsistent legislation pro tanto. If that is the case, Deputies are suggesting that all pre-existing law which is inconsistent with the convention is hereby amended and is repealed to the necessary extent. If Deputies are saying our courts should be given that function not only in respect of past law but in respect of future law and not simply in respect of past cases decided in Strasbourg but future cases decided there, they would reduce this country to a system of intellectual freefall in law where any judge at any time could, by reference to this convention, say that any prior legislation had, by inference, been repealed. That is, I believe, unconstitutional.
I draw Deputies' attention to what Dr. Hogan said to this committee as recently as last month in the context of this Bill. He stated:
As I understand it the present Bill has been criticised on the grounds (a) that the Bill does not go as far as the Human Rights Act 1998 in the UK and (b) that the present Bill ought to go further by providing for a system of invalidation. The main purpose of my address is to rebut these criticisms. As to (a) the 2001 Bill follows the UK model of incompatibility contained in the Human Rights Act, 1998. In addition the citizen continues to enjoy the full protection of the Constitution. Frankly, unless I have overlooked something, I cannot quite understand the criticisms on this score.
I say hallelujah and amen to that. He goes on further in regard to (b) which concerns the suggestion that there should be a system of invalidation in Ireland which is what Deputy O'Keeffe is arguing for and claiming he will bring in when returned to power in a decade or so. Let us be clear about this. Dr. Hogan stated:
As to (b), it must be recalled that the 2001 Bill cannot seek to replicate, by ordinary legislation, the system of constitutional protections contained in the Constitution itself. I frankly doubt that the 2001 Bill could go further and provide for a system whereby the courts could declare one piece of legislation invalid by reference to another ordinary piece of legislation, namely the 2003 Act as the present Bill would have become. If that happened there would be a very large risk that the ECHR Bill would be found unconstitutional, as amounting de facto to giving the ECHR a status equivalent to the Constitution itself without a corresponding constitutional amendment. Indeed there is already some risk with the present Bill that its more diluted declaration of incompatibility regime would be found unconstitutional on the same ground.
I want to go back to a fundamental point which both Deputies must address because it is what their amendment is about. If the amendment has the effect of actually changing any prior inconsistent law we will be faced with the position that any court, on any day of the week, could look at any provision of the European Convention on Human Rights and declare any piece of law enacted by this Parliament to be inconsistent with it. It could then turn it down and repudiate it. It could do the same with any rule of common law. If that happened our law would become a chaotic jungle in which individual judges could strike down laws by reference to a convention whose meaning is not decided solely in Ireland but in Strasbourg by the European Court of Human Rights.
Furthermore, one could say a Bill is consistent for the moment but if a case in Strasbourg is decided differently after that it will have become inconsistent. Therefore, by reason of a judgment to be given at some point in the future, laws which we in Ireland are confident are valid laws expressed by our Constitution could, by reference to a decision made in Strasbourg and applied by an Irish court, be found to be invalid without further Act of the Oireachtas.
This leaves apart the issue of the margin of appreciation. Under the Strasbourg convention the European Court of Human Rights accords to each state a margin of appreciation as to how the acts guaranteed in section 1 of the convention are applied and what effect they have in individual states. The extent of the margin of appreciation depends on the subject matter of the particular case. For instance, there is no margin of appreciation on torture or in regard to the privilege against self-incrimination. However, in regard to something such as privacy, it is quite possible for the Swedish Government or the Italian Government to have totally different laws. These might relate to the rights of paparazzi to take photographs of people on the beach. In Italy they might have the right to take pictures of people at a private party on the beach while in Sweden that could be considered unlawful or an intrusion into the lives of those people. The corollary of that right, which is the right of the freedom of the press, could also be decided differently in two societies both of which are members of and adhere to the European Convention on Human Rights. The reason this margin of appreciation is given is that the European convention is not a constitution for every state. It does not have a single meaning in every state and it is up to each to decide, within its broad parameters and subject to the margin of appreciation, how it will be transposed into law in the individual state.
If we give this margin of appreciation to our courts we take it away from our Parliament. In this House we have the right to exercise our judgment within that margin of appreciation. We could, for instance, bring in a Bill declaring beyond doubt the right of newspaper photographers to take photographs on beaches as a proper exercise of press freedom and still be within the European convention. Alternatively, we could decide the taking of photographs on beaches is a massive intrusion on privacy and cannot be published. Either decision would be consistent with the European Convention on Human Rights. If, however, an Irish court puts itself in the position of Strasbourg, it will have to say something is within the margin of appreciation or not or it will have to make up its own mind as to the margin of appreciation that is afforded to Ireland in that particular case. This will take from the legislature and give to the courts the right to make decisions which are the prerogative and within the discretion of the Legislature.
Where does this leave us? Does this amendment amend the force of law within the State in regard to past legislation, past rules of law and historical rules of law? If it does amend it I ask the two Deputies to face up to the implications that the Judiciary at any given stage can pick up the convention and knock down any law, practice or rule of law that it finds invalid. There would be nothing the Oireachtas could do about it because we would have given it a licence to do so, if it was constitutional to so do, which Dr. Hogan suggests is not the case. In relation to future laws, how will this operate? If having passed this Bill we then pass another Bill which has a plain and straightforward meaning and the court in Strasbourg decides that this Bill is inconsistent with the Constitution will we then hand over to our courts the right to strike down our own legislation? For example, will we allow the Irish courts, of their own motion or based on some decision in Strasbourg, to strike down the CAB legislation some morning in the courts in reference to the ECHR? That would elevate this to the status of a constitution.
This is what our Bill studiously avoids as a possibility but what this amendment studiously ignores. It seeks to create a situation which would be chaotic. I have had the privilege of speaking to the Human Rights Commission privately and of attending the seminars at which these documents have been produced. I have yet to hear one decent argument put up by way of contrary argument to any of those. These people, in a miasma of good faith, put forward this proposition but will not face up to its consequences. I must face its consequences. We cannot incorporate into Irish law a statute which has the effect of potentially invalidating future statutes under Irish law. That would be a surrender by the Legislature to the courts of the right to make laws for the State. The only exception to that in our law is the right for the Legislature to strike down Acts which are inconsistent with our Constitution.
We are not in the business of giving to the courts additional powers to strike down legislation by reference to a legislative incorporation such as is proposed here. If the two Deputies will not face up to the weakness of this proposal, and are simply fortified by the fact that other people have fallen into the same error as they have, I can do nothing for them. I can do nothing until they tell me how some statute can be declared invalid and cease to have effect by a court decision because of their amendment. How can it happen that at any level, District Court, Circuit Court or High Court, a judge can be in a position to invalidate an Irish law?
How am I to run the system of law reform if every day a District Court judge is competent to tell me that any law that I have enacted falls foul of his view of the convention?
