Vol. 1 No. 10
I welcome the Minister for Justice, Equality and Law Reform, Deputy McDowell, and his officials. The purpose of the meeting is to resume consideration of Committee Stage of the European Convention on Human Rights Bill 2001. We are considering section 2, amendment No. 11, in the name of Deputy Jim O'Keeffe.
SECTION 2.
I move amendment No. 11:
In page 4, subsection (1), line 43, to delete "the State's obligations under".
There are a number of amendments to section 2 and I also oppose the section. My problem with section 2 is not what is in the Bill or what is in the section but what is not in the section. I will deal with this amendment and a number of other points, if that is in order.
Certainly, we can accommodate that.
As regards the specific amendment of the reference to the State's obligations, I ask the Minister to explain why it is necessary to include that reference. Why do we not require interpretation in a manner compatible with the convention provisions? Since I would like to see direct incorporation and a rights-based approach which involves the rights under the convention actually having force of law here, then in that situation the reference to the State's obligations would be entirely redundant. Even taking the Minister's approach, I think the onus is on him to tell the committee why the section is expressed in this fashion rather than having an interpretation in a manner which is compatible with the convention's provisions.
I mentioned that there are a number of other aspects to section 2 that we might deal with at this stage. Much of my problem with section 2 is not from the point of view of what is in it, apart from that one point I have raised, but from the point of view of what is not in it. My approach is that in any proceedings which arise regarding compatibility, a number of things should happen; the Human Rights Commission should be notified. I also take the view that in a situation where a court, particularly one of the lower courts, is of the opinion that a statutory provision which comes into force after the passing of the Act may be incompatible with the provisions of this Act, it would be referred by way of the case stated to the High Court. In any situation, whether there is a declaration of incompatibility, this is the centrepiece of my approach to direct incorporation. I believe that in that situation where an individual has suffered or is likely to suffer loss or damage, it is a matter for the court. All the law I ever learned involved the court being the arbiter and, where the court came to a view, the court then gave a remedy. From the point of view of the separation of powers it seems to be inappropriate that any other situation should arise.
In any situation where there has been a declaration of incompatibility there should be an obligation on the Taoiseach to lay an order before the House and, within the 21 days, state the Government's intentions with respect to the incompatibility.
You may have noted, Chairman, that I was raising issues that you might shortly rule out of order under amendment No. 12, but they go to the centre of the approach which I adopt from the point of view of direct incorporation. I believe the rights-based approach is the proper approach. All of us are in agreement that a constitutional amendment would be the ideal way of doing things. I agree entirely that there are difficulties in amending the Constitution. If we are not to take the constitutional route, let us take the best legislative route possible. This is the essential difference between the Minister on the one hand and me, Fine Gael, Deputy Costello, the Labour Party and every other organisation that has expressed a view.
I mention this from the point of view of section 2 being, to a degree, the centrepiece of the approach I am proposing, with these additional items that I believe should be inserted. Once that issue is clarified and rejected by the Minister - if he rejects every advice, urging and view from every organisation and political party on this issue - then that is the end of the matter. Dr. Hogan would also prefer the constitutional route. That is my view regarding section 2.
There is supreme arrogance on the part of the Minister in rejecting this advice and all the approaches from every organisation, including his own peers, his colleagues in the Bar Council, the Law Society, the Human Rights Commission, the NUJ and everybody else. That is where the line of difference is in the approach to this Bill. I want to see this Bill going through but I want to see it going through in the best fashion possible. I do not believe the approach adopted by the Minister is the best possible one. I believe that within the constitutional situation, taking a rights-based approach, as has happened in many other countries, we could have a better Bill and our people would have more direct access to their rights and remedies as a consequence. It disturbs me that we are not doing that.
There is a sense of déjà vu about our discussion today. I am sure we will all say more or less the same things and the Minister will give us more or less the same replies. Section 2 is a continuation of the debate about the incorporation of the European Convention on Human Rights into domestic legislation. Section 2 would seem to be curtailing the State's responsibility regarding its duties under the convention. It specifies that there would be some form of derogation subject to what the Minister calls "the State's obligations" under the convention provisions.
Deputy O'Keeffe's amendment seeks to delete the words "the State's obligations under" so that any test would be compatible with the provisions of the Constitution. I would have thought that was the State's obligation. The European Convention on Human Rights is a European convention to which we have signed up. We have an obligation to respect it and ensure it is compatible with our laws. It would seem the Minister is saying on the one hand that we are signing up to the European Convention on Human Rights and on the other hand that we are seeking a derogation subject to what he calls "the State's obligations." As he outlines in this legislation, the State's obligations are less than the incorporation of the convention on human rights.
I am not sure what the actual bald statement means. Where is the definition of the phrase "the State's obligations" under the convention? Who interprets the State's obligations under the convention? I understood that once we signed up to an international declaration, the State's obligation was put into law. Where is this notional obligation on the State to be found? The Minister is interpreting the State's obligation. If we have international conventions - particularly the most fundamental of all, a convention on human rights - the State's obligation is to implement them. If we consider the State's obligation in that bald statement, it seems to be in conflict with our international obligations and what we are seeking to do. There is a conflict in that provision.
Either we will operate in a manner compatible with the convention's provisions or we will not. Is the Minister saying we will not operate in a manner compatible with the convention's provisions? If he is doing so and putting forward this Bill, he is decreeing that there is a limited obligation. Having each state picking and choosing when and how to implement this represents a derogation from the spirit and intention of having the European Convention on Human Rights to apply across the board to all the members of the European Council of States that have signed up to it. The entire spirit is undermined by this provision or derogation if that is what it is intended to mean. The Minister has decided to introduce an interpretation to the implementation of the convention provisions, which leave much to be desired, instead of saying that the implementation should be in full compatibility with the provisions of the European Convention on Human Rights.
I agree with the points made by Deputy O'Keeffe in respect of amendment No. 12. Where any breach or incompatibility is determined, in addition to the matter being the subject of a remedy, the courts should also refer it to the human rights commission for consideration. The earlier we eliminate any incompatibility the better.
It is interesting to note what different people see in the same phrase "the State's obligations". Article 1 of the convention states that "the High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedom defined in Section 1 of this Convention." This is an overriding aspect of the convention and the high contracting parties are contracting with each other that they will secure the rights enumerated in part 1 of the convention. I do not necessarily want to hand bricks to Deputy O'Keeffe and Deputy Costello that they can throw at me. I thought Deputy O'Keeffe tabled this amendment with a view to obtaining horizontal effect. Not just the State's obligations, but also everybody's obligations would have to be considered by reference to the convention. I would not be willing to take that step lightly.
The European convention has been interpreted traditionally as something that binds the State, but does not bind citizens within the State in the same sense as it binds the states that adhere to the convention. For example, the State is prohibited by Article 14 from discriminating. The article states:
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
Although that is the obligation the State undertakes, it would not be an obligation that would fall on, for example, the Fine Gael Party or the Labour Party in dealing with an employee or a potential employee. Those parties might well be able to take into account a person's political affiliations, views or opinions when deciding whether to select him or her.
If, in some imaginary world, I was to give a directive to the Civil Service and Local Government Appointments Commissioners to work out those who had political opinions of a particular colour and to discriminate in State recruitment against people on that ground, I would clearly be in breach of Article 14 in so far as the particular discrimination related to a guaranteed right under other articles in part 1. While I give that as an example, there are many more probably less arcane examples such as the right of a Catholic, Protestant or Jewish church or school to discriminate in a blatant manner. This is subject to all sorts of European directives and equal status and employment equality laws. We are dealing here with our obligations under the convention. Those are just two examples, but there are many more in which people privately are not bound in their dealings with others to uphold the convention. The obligations envisaged by the conventions are those directed to states acting in respect of their citizens.
By getting rid of the term "State's obligations", I thought Deputy O'Keeffe was planning to make the internalisation of the interpretative canon - which the Bill proposes - apply to all private law as well. This would mean that in landlord and tenant matters the convention would be brought in. The convention would also apply to employment, recruitment, freedom of speech, procedures in canon law tribunals and sports clubs. As a matter of private law across the board, every rule of law would be construed in a convention compatible manner even to the point of imposing convention obligations on persons who, at present, are not covered by them. I refer here to private individuals acting in respect of others.
I thought that was the intent of the Deputy's amendment, but I am obviously wrong. The Constitution is not entirely vertical, it is also horizontal. Citizens can sue other citizens by virtue of the constitution being breached. The relevant example is the case involving the Drimoleague national school in which a parent successfully sued the INTO for breach of constitutional rights because a particular course of industrial action it took was found to infringe, unlawfully, the children's right to obtain an education. Arising from the right of children to an education, it was held in that case that constitutional rights are not solely binding on the State but also apply citizen to citizen and that the Constitution applies both horizontally and vertically. The European Convention on Human Rights has not been so interpreted and I do not want to have unintended side effects or consequences. I do not wish to change principles of law which have nothing to do with how the State deals with its citizens and more to do with how citizens deal with each other, by reference to the European Convention on Human Rights, without understanding fully what I am doing.
I mentioned on the last occasion that one of the hopes held out by some academic writers for including the courts in England among the bodies bound by their statute was that, by that means, the European Convention would be made fully horizontal as well as vertical in its application, but that hope proved to be a loser. By taking this particular step, I do not want to arrive at the same consequence that lawyers will argue - irrespective of Deputy O'Keeffe's intention in his amendment and Deputy Costello's intention in supporting it - that we were now making this a matter which applies citizen to citizen and imposing new obligations on citizens to deal with each other, as if they were the State, under the convention.
In general terms, the present Bill refers to the State's obligation. The obligation is cast on the State, which exercises that obligation under our own Constitution and in the context of the marginal appreciation it is given under the European Convention on Human Rights and the jurisprudence of the Strasbourg court. I do not see that any new advantage would be conferred on people, other than the particular one I was worried about, namely that this would wholly widen the effect of the convention to include private law relationships which are not now covered by it.
Notwithstanding the verticality of the section, we will have some horizontal discussion.
The Minister has introduced an aspect which, perhaps, we should tease out somewhat further. The purpose of Committee Stage is to ensure we have the best possible Bill, irrespective of whether it includes Deputy Costello's amendments or mine. My position in this matter is particularly influenced by the fact that all professional bodies who have considered this have recommended the approach I am suggesting. Accordingly, the onus is on the Minister to justify the approach he alone is suggesting in relation to incorporation. I am particularly interested in his reference to the Drimoleague case. In my very first election campaign, when I spoke at the church gate in Drimoleague, I was expected to say whether I was for the parents or the teachers.
I hope the Deputy did not sit on the fence.
I recall very firmly indicating a view which did not involve sitting on the fence. I made it quite clear that I was for the children. However, that is by the way. The Drimoleague case appears to have introduced an element of horizontality into our constitutional law, without giving rise to any major ill effects. Can the Minister indicate any disastrous consequences? The convention obligates the contracting parties to secure to everyone within their jurisdiction the rights and freedoms defined in section 1. If that is an obligation, is there anything terribly wrong with some possible horizontal application of the rights under the convention? While I do not pretend to be an expert in this area, I question the Minister's suggestion that the issue would give rise to chaos in our courts or catastrophe for our country.
In my view, 95% of what is in the convention is already covered under our Constitution. The Minister's position, thanks to Drimoleague, is that an element of horizontality now arises in relation to that 95%. What is the problem with the same element arising in relation to the balance? If we accept that our fundamental rights are already very strong under the Constitution, we are really only dealing with marginal elements. Probably, in the final analysis, the remaining 5% does not go far beyond Article 10 on freedom of expression and, perhaps, Article 13 on the right to an effective remedy. It relates to an attitude, as a consequence of direct incorporation, that we have a rights based approach. Under our laws, we give our citizens an entitlement to those rights, whatever they may be. If that only involves the extra 5%, why not give people those rights? What is the objection to a rights based approach? Why box ourselves into a situation of referring merely to obligations rather than rights?
The same thinking applies to the Minister's restrictive approach in relation to remedies. I find it very difficult to handle the idea that a court which comes to a verdict is not in a position to give the corresponding remedy. That is contrary to everything in my experience in law and politics. It is utterly improper to have a situation whereby the Government of the day will decide on an ex gratia payment or whatever, rather than the courts having the right to give a remedy. Clearly, the Minister and I have a totally different approach to this issue. I am anxious that the best possible legislation should emerge from this process. My position is based on the knowledge that other countries have had no problem with a dualist approach by giving the convention the status of law, subject to their own constitutions. I honestly fail to see the reason we cannot follow the same approach.
The few words at issue are only one example of the difference of approach in confining one's thoughts to the State's obligation. I have to focus on those words in view of the fact that my main proposal in amendment No. 12 has been ruled out of order although I believe the approach outlined in that amendment is the proper one. However, if the Minister cannot accept it, then we have reached an impasse.
Perhaps I can satisfy, to some extent, the Deputy's desire to ventilate the issues he would have been allowed to raise had amendment No. 12 been in order. I do not wish to engage in a long discussion on something which is potentially disorderly. However, I would like to give the Deputy a sense of the thinking that lay behind the drafting of the Bill because I was very closely associated with it at the time. For the Irish State to be required by the Irish courts to compensate somebody for an act done by the State, the act has to be wrongful, within the constitutional order. There cannot be a situation where the Oireachtas can punish the State or effectively put in place a system creating damages as of right for somebody who is not being wronged by the State. To do that would effectively prevent the Oireachtas of the day from exercising its rights under the Constitution. That would be the case if there is any area of law open to us under the Constitution which is incompatible with the convention, as there must be, as some things that can be done under the Constitution cannot be done under the convention. For example, it could be argued that internment without an emergency provision would be incompatible.
Unless the Constitution and convention mean the same thing in every respect, there is nothing the State could lawfully do under the Constitution which would not be lawful under the convention. If that is ruled out as a possibility it suggests that, in certain circumstances, the State could be the subject of legal action for damages even though the Oireachtas was acting intra vires, and could be punished by the courts by being ordered to compensate somebody for something which was in accordance with the law, the Constitution and the Parliament’s freedom under the Constitution to make law. If there is such a case, and that must be assumed, there are things that could be done under the Constitution that cannot be done under the convention. If there is not such a case, everybody is entitled to sue for damages for breach of their constitutional rights.
There may be some other case where there is no cause of action in terms of the breach of constitutional rights but a breach of convention rights only, on foot of a statute which was lawfully made under the Constitution. For example, if the Irish Parliament had re-enacted the 1883 Act which outlawed homosexual behaviour among men in private, and if the Supreme Court had said that was a constitutional Act - which it might well have done having regard to the decision in the Norris case - the Supreme Court would have gone down a road I would disagree with because I have never agreed with the Norris decision. To say that somebody who had been arrested, prosecuted and tried under the Act could seek damages, not withstanding the fact that he had challenged the Act and had been told it was constitutional - it was ruled in the Dudgeon case at the Strasbourg court that it was a breach of the convention - would be to say that the Irish Parliament could only enact laws under the Constitution in circumstances where the courts could punish the Parliament if the jurisprudence of the Strasbourg court was breached. That is unconstitutional, which is a problem, and that is why the ex gratia payment is provided for.
It is similar to a company acting intra vires. The Irish State can never produce a situation where it can prevent itself from doing something which the Constitution permits it to do. It is a fundamental attribute of our sovereignty that the people can never prevent themselves, under duress of paying damages, from doing something which the Constitution manifestly authorises them to do.
If that were not the case, it would be easy to provide for a system of compensation. If there were no constitutional problem, the ex gratia payments to which the Deputy takes such strong objection would have been dealt with. It would have been decided that the courts award compensation against the State. There is no doubt that would be neater. However, it would say to a future Parliament that, if it enacted laws which are perfectly valid and within its rights to enact, the courts can, nonetheless, treat the Acts as though they were invalid and award compensation to people by reference to some other standard. That is the constitutional conundrum we faced.
In those circumstances, it could have been decided that, in that narrow band of theoretical cases where something was compatible with the Constitution but incompatible with the convention, it would be left to citizens to go to Strasbourg to claim their compensation, which is what the British do at present. They have decided that if rights are breached, British citizens can go to Strasbourg to collect their money. We decided against that and, because the Strasbourg court, its judges and all its public rhetoric have leaned towards states solving their problems at home and not bringing them unnecessarily to the court, we have put in place a middle scheme which was compatible with the Constitution. That scheme is that the State can, in effect, decide that citizens do not have to go to Strasbourg on an ex gratia basis but that the State will give the citizen a sum of money equivalent to what it thought the citizen would get if he or she went to Strasbourg.
There is a difference between the Minister and the Labour Party, Fine Gael and the other organisations which have expressed a view on this. I do not think I will convince the Minister, though I will keep trying, and he will not convince me. We are trying to take a dualist approach. There will not be direct incorporation when the convention is passed because it requires legislation here. Other countries have done that and a number of them have given the convention the status of national law, subject to their constitutions. The position of Germany is very relevant in that regard. It had already substantial human rights provisions in its constitution yet had no difficulty with incorporation or co-existence between the convention and the German constitution. The convention has the status of federal German law, but under the constitution. That is an international comparison and Italy has something similar.
I agree that is possible but, as a matter of the fundamental law of most civil law jurisdictions, there is a hierarchy consisting of the constitution first, international agreements next and then statute law. Ireland has an inverse hierarchy. It has an express constitutional provision with the Constitution first, statute law next, and the convention only to the extent it is incorporated by statute. It is a different playing pitch and we are not playing the same game - it is Australian rules football not Gaelic football.
The Minister is probably referring, in particular, to the French situation where international agreements have an authority which is superior to ordinary law but subject to the constitution. That is the kind of hierarchy the Minister is talking about but I do not believe it applies in Germany. I accept it applies in France but I deliberately did not quote the French example because it does not suit my case. I would like to see a rights-based approach which would include these rights in our legislation. That is why I have trimmed off the surplus elements of the convention, which appear in the Schedule. I am advised that that is the best way to include these rights to ensure they become part of our legislation, subject to the Constitution.
I understand that is what the Deputy is trying to do - we discussed this matter at great length during the last meeting - but the Deputy understands that it is not what I am trying to do. I spent 48 hours in Hillsborough, with little sleep, trying to advance the proposition that the regimes in the North and the South should be roughly the same. I am not engaging in an incorporation into Irish law that is radically different to that in Northern Ireland. I said on the last occasion that I am not going down that road.
Does the Minister agree that major elements in Northern Ireland will not accept our approach to fundamental rights, which is significantly based on the Constitution? Our approach will continue to be based in such a manner. Our unnecessary over-emphasis on the Constitution will cause many difficulties as we try to comply with our obligations under the Good Friday Agreement and produce the all-Ireland charter that is to emerge from the two commissions. As someone who has the highest regard for the Constitution, I am concerned about this matter. The Minister is creating real problems by not opening the convention's doors that would allow us to be in a better position as we deal with those in Glengall Street and elsewhere. I cannot see Dr. Paisley accepting our Constitution as the basis of fundamental human rights on this island.
Will the Deputy allow Deputy Costello to speak?
Of course.
The Minister will have to leave soon to go to the Seanad.
We have discussed the horizontal and the vertical - I do not know which is the best position.
I once heard a joke about such matters, but I do not know if I should tell it.
We are listening.
Someone once said, "Women are like pianos, when they are not upright they are grand."
I appreciate that the Minister and others are working hard to resolve the problems in Northern Ireland and I wish them well in that regard. I hope that a good final outcome can be achieved. It is important that we adopt the European Convention on Human Rights in a similar manner in both parts of the island. The Constitution leaves a lot to be desired in terms of the views that are held by a large section of the community in the North. This State gives a certain primacy to the Constitution, as opposed to this convention. An integrated approach to the Constitution and the convention, on the exact same plane for the entire island, may be possible in the future.
Ireland will be the last country to incorporate the European Convention on Human Rights into its legislation, more than 50 years after it was drawn up. Has the manner in which the convention has been incorporated into the law of other states been analysed? The convention has been fully incorporated into the Swedish constitution, meaning that Swedish law is subject to its provisions, both horizontally and vertically. The Swedish courts have to take cognisance of the provisions of the convention and the constitution, as they are now, in effect, one and the same. I would like to know what will happen if the State is sued, for example, or encounters difficulties if it is found that the convention and the Constitution are incompatible. Are we talking in a vacuum? The Minister referred to the fear of unknown problems that may hit the State, like a meteor appearing out of the blue, if certain constraints are not imposed. He has argued that the effect of the convention in this country should be limited to the State's interpretation of it. Other countries have not experienced difficulties as a result of problems with proper statutory or constitutional incorporation, that have caused their parliaments to introduce amending legislation.
This matter will be discussed further as part of the debate on section 3 of the Bill.
I see considerable difficulties with this section, some of which I touched on in amendments which have been ruled out of order for some obscure reason. The Government should re-examine the drafting of this section which may give rise to difficulties of principle and practice as it stands. Section 3 covers one aspect of claims and section 5 the other. We are dealing with declarations of incompatibility which make for heavy business given the number of senior counsels involved. Section 3 speaks to claims arising from the performance or non-performance of certain functions in a manner compatible with the convention provisions. We should ensure that the approach is straightforward, simple and inexpensive. Any organ of the State which does not perform its functions in a manner compatible with the convention will expose itself to claims by people who have suffered damage or loss as a result. This gives rise to a number of issues which the Minister should clarify.
There is nothing in the section about what constitutes an organ of the State, although the definitions section of the Bill describes one as "a tribunal or other body established by law through which any of the legislative, executive or judicial powers of the State are exercised". The reference to a tribunal is interesting in the context of certain questions being asked by one such body at the moment. I will leave that aside. The courts are not included. Can the Minister explain what is covered by referring to practical examples? I presume health boards are covered by the legislation. The Royal College of Surgeons in Ireland (Charters Amendment) Bill 2002 is a Private Bill before the Houses. When the RCSI performs a public function, is it covered as an organ of the State? We need clarity of definition to ensure that we understand what is covered. Does a private or semi-private body which performs a public function come within the terms of the section's provisions regarding action or lack thereof?
Why does the section prescribe that an organ of the State must perform its functions subject to statutory provision? What does the phrase "subject to any statutory provision" mean in this context? Does it mean, for example, that in the event that the Southern Health Board does something clearly incompatible with the convention, it need only claim that its action is provided for in some obscure statute or regulation? If that is the case, it is an appalling vista. If we want the convention to be incorporated into our domestic law in an acceptable manner, we need to have this matter clarified.
A further serious issue is the question of the remedy the courts can provide. The courts - even the High Court - cannot provide any remedy unless the claimant shows that no other remedy in damages is available. Why is this provision included? How is the claimant meant to show this is the case? The claimant seeking a remedy must wend his or her way over, under or through an obstacle course which appears to be the objective of the Government in incorporating the convention.
If the claimant happens to be a poor unfortunate in jail, as outlined by Deputy Costello at our last sitting, what remedy can he or she receive under this section? As I read it - I suppose English is what one makes of it - the court may award to the person such damages, if any, it considers appropriate. Deputy Costello ably put a valid question to the Minister as to the benefit of damages to a person in jail? I listened carefully to the Minister's answer. Eventually, he seemed to back off by suggesting that by implication the court would have power to grant other remedies, including the possibility of ordering that the claimant be released from jail, a suggestion made by Deputy Costello.
This led me to ask whether the court, in other circumstances, could grant an injunction. The Minister appeared to indicate that there was an implied power under this section for the court to provide additional remedies. If such power is to be granted to the court, why does the Minister not add the three simple words, "or other remedy", to subsection (2), which would then read: "the court may award to the person such damages or other remedy as it considers appropriate." If the remedy of releasing a person from jail is to be provided for, that power should be given to the court. This is a huge hole in the Bill which could be easily remedied. I encourage the Minister, possibly after consultation with his colleague, to inform the committee that this hole will be closed on Report Stage.
There are a couple of other points in this regard. The most obvious one is the time limit. Why are proceedings limited to one year? Why can ordinary time limits not apply? In incorporating the convention, the Government, in particular the Minister, appears to be making every effort at every turn to restrict people's rights. The restriction of the statute of limitations to one year is just one further example of such a restriction. Why does the ordinary limitation period for actions in tort not apply in this case?
I have outlined only a few of the problems I find with the section. I have no doubt my colleague has a few more to add.
We addressed the organs of State thoroughly during the debate on amendments Nos. 7 and 8.
I am seeking practical examples as a means of ascertaining the objectives of the legislation.
Deputy O'Keeffe rehearsed the arguments on section 3 very well. Clarification is required regarding the phrase "every organ of the State" in subsection (1). What does this mean precisely? Although an organ of the State has been defined as a body through which legislative, executive or judicial powers are exercised, the courts are excluded from the judicial bodies, whereas the tribunals are included.
Where does one draw the line between what is an organ of the State and what is not an organ of the State? This is not clear, despite the definition in the Bill. For example, we are establishing the Residential Institutions Redress Board to compensate the victims of child abuse. Were residential institutions organs of the State? Certainly the State provided funding for their administration. However, they were administered privately by religious orders. Despite this, the State has assumed primary responsibility for the running of the institutions.
The Taoiseach and other Ministers have argued that the Government sought a voluntary contribution from the religious orders, yet by any definition the residential institutions were privately-owned institutions which received funding from the State. I am sorry the Minister is not present. As the Attorney General at the time the agreement was reached, perhaps he would have given us the benefit of his ruling on the matter.
I am sure he would.
Given that he has not yet done so in the Dáil, it would have been wonderful to hear it here first. Unfortunately, he is not here and I am not certain whether the Minister of State at the Department of Justice, Equality and Law Reform, Deputy Brian Lenihan, has intimately discussed the matter with him.
There have been no discussions, intimate or otherwise. I am now grappling with the profound juristic issues that have been raised by the Opposition.
Can we expect a Lenihanesque wing and a prayer approach?
Deputy O'Keeffe has sought clarification as to the precise meaning of "every organ of the State" and I have given one example of the complications that can arise from the State's determinations on these matters. In accepting the principle that the residential institutions were effectively organs of the State, the Government, by extension, has accepted that this also applies to every organisation run by a religious order or other organisation which is State funded, including virtually every hospital run by a religious body and nearly every voluntary secondary school, vocational education college and university.
The application the Minister is trying to avoid in vertical terms is being introduced largely in terms of a semi-State application. As the definition is not sufficiently clear on the question of organs of the State, further clarification is required. This is the reason we have again raised the matter.
I reiterate my earlier comments and those of Deputy O'Keeffe regarding damages.
There is something perverse about the fact that they are treated in the Bill as the sole remedy considering the variety of damage that could be caused, or the variety of incompatibility that might arise through the various organs of the State not properly fulfilling their duties. What use are damages in the case of a person who has been incarcerated and is not given the obvious remedy? If an incompatibility has arisen, the obvious remedy is release but that is not included. What good are damages if one is stuck in jail for the next 20 or 30 years? The Minister is not going to allow that person out to enjoy the damages that have been paid. There is something very perverse about that and there is a need to extend the remedies in other areas as well. An injunction would be another aspect of extending the remedies available.
My amendment in regard to torts was ruled out of order on the grounds that it might result in a cost to the State.
Letting someone out of jail would be the reverse.
It would be a reduction and it would be far more effective.
The Deputy was not out of order in respect to that amendment but he is becoming disorderly now.
I am not. My amendment stated that we should adopt and maintain the same statutory process that operates already in regard to torts. Why should we introduce a second one, which is effectively what the Minister has done? He is given two bites at the cherry. One refers to one year and the other to three years for personal injuries and six years for other tort actions. It is the Minister who is putting an extra charge on the Exchequer. Why should we not have the same application of time in regard to torts as exists already rather than introducing a new period of time? In the Minister's reply can he also refer to why the District Court is excluded from operating in this jurisdiction?
The Deputy spoke to the section and I will do my best to deal with the different issues raised by bringing the committee through the provisions of the sections.
First of all, subsection (1) provides that all such organs of State, subject to any statutory provision or rule of law, other than this Act, shall perform its functions in a manner compatible with the State's obligations under the convention. That requirement has been phrased in a positive manner and the organ of State, as has been commented by Deputy O'Keeffe, is defined in the first subsection of the Bill and includes tribunals or any other body other than the President, the Oireachtas, a committee of the Houses or a court which is established by law or through which any of the legislative, executive or judicial powers of the State are exercised.
The courts have been excluded from this definition because they are already under a duty to administer justice by virtue of the Constitution and the law. The constitutional doctrine of the separation of powers underscoring the legislative authority of the Oireachtas is preserved by the phrase "subject to any statutory provision (other than this Act) or rule of law". This means that if an organ of the State fails to act in a way which is compatible with the State's obligations under the convention, but is nevertheless acting with the statutory authority laid down by the Act of the Oireachtas, it will not be liable in damages. That is on the basis that, lawfully, it could not have acted any differently under the law of the land as prescribed by the Houses of the Oireachtas. It was our decision to enact that legislation and therefore some measure of cover has to be provided for that. In such circumstances the person whose rights under the convention have been breached has the remedy of the declaration of incompatibility as provided for in section 5 with the ancillary right to apply to the State for an ex gratia award of compensation under section 5(4). In any other case the provisions of section 3 will apply to allow the person whose convention rights have been breached to obtain damages or any other remedy in the particular circumstances.
Deputy Jim O'Keeffe raised the point of a difficulty in regard to subsection (2). It is important to understand that subsection (1) does not preclude the other remedies which may be considered by a court. Subsection (1) allows the court to grant any remedy to a litigant. On the other hand, subsection (2) solely deals with the issue of damages. It may be, for example, that injunctive relief would be appropriate and subsection (1) does not exclude that in any way. If injunctive relief is desired the section does not limit that or any other option.
It is important to note that Article 13 of the convention becomes part of domestic law, unlike in the United Kingdom. If one looks at the First Schedule, this article speaks of a right to an effective remedy. Everyone whose rights and freedoms, as set forth in the 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. That is a possible answer to the queries raised by Deputies Jim O'Keeffe and Costello about what the position would be in the case of a prisoner. Their hypothesis is very unlikely because a court, under Article 40 of the Constitution, has a very wide power to set at freedom a person whose detention is otherwise than in accordance with law. The tendency of the courts has been to interpret that phrase in a very broad manner. Assuming that there is an Act of the Oireachtas that permits the detention of a person and there is a finding of incompatibility under the convention system, that is, a direct conflict between the national law and the convention system, and assuming also that that detention is not constitutionally required - if the Constitution required the detention to take place that would close the question entirely - the detention which was required by the Constitution would supersede any provision of this particular measure. Does Deputy Costello wish to interrupt me?
What is the case with the Offences Against the State Act?
That is different because it is not something which is required by the Constitution; it is in accordance with the Constitution but it is not required by it. I am postulating an example which is very hard to envisage where a detention was constitutionally mandated. Then, of course, this Act would not arise at all. The more common case is the 1940 Act which authorises detention under warrant of the Minister and is in accordance with the Constitution by virtue of the decision of the Supreme Court upholding the Act.
It could be incompatible with the convention.
In certain circumstances the operation might be incompatible with the convention though, of course, as the Deputy is aware, when the matter last went to the court - I think I am right in saying it was upheld by it, in re Ó Láighléis. We are on firm ground there as well. However, that is history and in future the issue can be retested. Article 15 might give the High Court judge power to say he will set someone at freedom because damages are an ineffective remedy in this context. The point I am trying to convey to the Deputies is that there is express reference to damages in the second subsection and it does not exclude the inherent powers the courts have to grant the remedy or relief that is appropriate in the circumstances.
In regard to the question of the organ of State, is a public hospital or a publicly funded university an organ of State?
Yes, I wish to deal with that. In the context of the material relating to the definition of section 1 of the Bill, consideration was given to defining an organ of the State in greater detail. Taking into account similar arguments made during the passage of the legislation in the United Kingdom where the phrase "public authorities" was used, it was considered preferable to leave the definition as broad as possible. We are leaving to the courts an interpretative facility and the Bill adopts the same approach. Therefore, the notable exception in our case pertains to the courts, where clarity has been given.
An example of the application of the definition, depending on the circumstances of a case, might concern a private company which would be considered an organ of the State only in respect of its public functions. The hiring and firing of staff would be a private matter for the company. However, if a staff member was fired arising from conduct associated with the public functions of the organisation, such as the failure to put in place adequate health and safety measures, the dismissal in this instance could bring it back under the definition of an organ of the State.
A "public domain" has to be defined. Our giving a very exact definition might prejudice the rights of persons who wish to invoke the protection of the convention system. Were we to say a limited liability company strictly falls outside the definition of this phrase, we would then be excluding any limited liability company or company limited by guarantee which was performing public functions. Clearly, such companies, while not established by law necessarily, but under a law, can sometimes perform legislative, executive or judicial functions in the State.
The issue is similar to that pertaining to judicial review proceedings concerning the definition of a public body. The Deputies opposite will be aware there have been disputes about whether bodies such as universities or the Turf Club are public bodies for the purposes of allowing the courts to review their functions in judicial review proceedings. A similar issue has arisen for us in drafting this Bill. Were we to follow a very tight, pedantic definition and give an exact definition of what comprises an organ of the State, we could, in theory, exclude from the protection of the convention persons who are entitled to invoke that protection. One must remember that many of the parties to the convention are states that have a very rigid distinction between what they call public law and private law. We have never had such a rigorous distinction in our case law or legal doctrine. Therefore, it is a difficult drafting exercise to try distil that distinction in our system into a practical working maxim.
We have left an area of discretion to the courts, but it is a form of discretion that the courts can use to maximise the protection of persons who have an entitlement to invoke the provisions of the convention.
Does Deputy Jim O'Keeffe not think that is eminently reasonable?
The devil can quote scripture and the Minister of State can quote British legislation. The comparable definition of "organ of the State" in the UK uses the term "public authority". With respect to the Minister of State, the definition of public authority in the UK legislation is far wider than ours. He may be aware that that definition, apart from including a court, covers any person certain of whose functions are functions of a public nature. However, the Irish definition refers to a tribunal or any other body, excluding the President or the Oireachtas or either House of the Oireachtas or a committee of either such House or a joint committee of both such Houses or a court, which is established by law or through which any of the legislative, executive or judicial functions of the State are exercised. This seems to be part of the restrictive approach of the Government in incorporating the convention into domestic law.
The Minister of State should be aware that a court might examine the matter some day. I am not sure, because of the restrictive way in which the Irish definition is framed, whether universities, schools, hospitals and bodies such as the Royal College of Surgeons are covered in terms of their performance of public functions.
The way section 3 is framed is unsatisfactory. Will the Minister of State consult the Minister, Deputy McDowell, to see if it could be improved on Report Stage. The approach of the Opposition is to acknowledge that it is important that people should be able to rely on their convention rights in the simplest and most direct way possible. There should be manageable remedies for affected persons and it should be possible, for instance, to plead to rely on the convention rights as an alternative within existing proceedings. Will that be possible under this section as it stands or will the claimant have to show that no other remedy in damages is available?
It has to be said that there are many cases within the convention's remit where alternative remedies to damages are appropriate. I do not accept the Minister of State's point about the court, which is specifically given the power to award damages under the section, or the contention that there is an implied right under the section to give other remedies where appropriate. If that is the case, why not provide for it? I urge the Minister of State to do so on Report Stage.
I have received no satisfactory information on why the section makes organs of the State subject to any statutory provision. This should be omitted from the section. We have no reasonable explanation as to why there is a restriction of one year in terms of the statutory limitations applying to the convention. Why are we so mealy-mouthed and mean in our approach to the convention such that we are restricting an applicant to a 12 month time limit in bringing proceedings to the High Court? The section affords certain rights but should go much further and should be entirely redrafted on that basis.
The Minister of State has responded to some points and not to others. If one believed his statement that the Minister, in his goodness, decided to give discretion to the courts to interpret the question of public and semi-public authorities, thus protecting the rights of the citizens in some way, one would believe anything. The last thing he wants is to extend the provision to include further rights of citizens because he wants to restrict them. The Minister of State is indicating that there is a certain generosity in the manner in which the courts will be allowed to interpret the Bill to ensure maximum protection is given, but this should be in the law.
We are here to legislate and the less scope we give to the courts to make interpretations, the better. The last thing we want to do is criticise them because of the manner in which they behave in some cases. Very often, the courts are very impatient with the manner in which the Oireachtas draws up legislation. We want to keep the two areas as separate as possible. The Minister should be more specific in his clarifications and should table an amendment, if necessary, so we will know where we stand in respect of every organ of the State.
The issue of damages is very confusing. All that has been said on this side is that the matter should be clarified. The Minister says subsection (2) implies that the remedy can include more than just damages, but it refers only to damages. As Deputy Jim O'Keeffe has said, why can we not have an amendment saying that "the Court may award to the person such damages or other remedy (if any) as it considers appropriate"? Surely that does not substantially change the legislation but it certainly clarifies it. He did not refer to the matter of tort.
I did not have an opportunity to deal with that——
It is not in order to discuss that as it could involve a potential charge on the Revenue.
We are discussing the section, not the amendment.
While I had intended to reply to this issue, the Deputy initiated his reply before I had a chance to do so.
When Deputy Costello finishes his contribution I will ask the Minister of State to make his final reply.
The last point the Minister of State made did not address why the jurisdiction of the District Court does not apply here.
As the Deputy has pointed out, subsection (2) confers a right to recover damages in the High Court or, subject to subsection (3), in the Circuit Court. This will be within the monetary limit of the jurisdiction of the Circuit Court. While the District Court has jurisdiction to award damages in tort and contract up to a specified monetary limit, legislation has traditionally not assigned to the District Court the power to award damages in cases involving complex legal issues. For example, the District Court has no jurisdiction to award damages for libel or slander - this is reserved to the Circuit Court and above. I am sure that Deputies appreciate that complex legal questions may arise under this legislation. It is considered appropriate not to have those questions determined in the District Court. The complexity of the questions requires that it go before the Circuit Court or High Court.
It can go up by case stated.
While this is possible for a case stated in the District Court it would require the litigant to commence proceedings in one court and have the carriage of the proceedings transferred to another. This would be a rather cumbersome procedure.
We are talking about damages, not remedies, when dealing with subsection (2). While damage is a remedy, it is not the complete catalogue of remedies available to a litigant. Deputy Costello referred to the section as obscure as it seemed to be confined to damages. The crucial phrase is "may, if no other remedy in damages is available."
That is obscure.
There is no obscurity in that, rather it is an act of generosity in that it expressly provides that if damages are not available then they may be obtained under this subsection. That is the purport of this subsection. Were a court to take the view that damages would not normally be available for a breach of a convention provision, this subsection provides that damages are available.
It is crazy.
It is an act of generosity that the Deputies cannot recognise.
The question of the time limit was also raised. The Deputies understandably referred to the more generous time limits that operate under the Statute of Limitations, the six years provisions in contract and tort and three years in the case of personal injury. In the case of damages here, they must stem from a contravention of subsection (1). In the case of contract and tort damages, the period of limitation is measured from the time when the cause of action accrued. Here, the contravention must first be established. Therefore, the time limit only runs from the time when the contravention is established.
That is not what the subsection states. It is delaying the litigant in that he or she will have to prove no other remedy in damages is available and by the time he or she has done this the year will be over.
The subsection states: "Proceedings under this section shall not be brought in respect of any contravention of subsection (1) which arose more than 1 year before the commencement of the proceedings."
It does not use the phrase, "which is established in one year." It uses the phrase "which arose."
I accept that. However, a provision is included that the period may be extended by an order of the court that considers it appropriate in the interests of justice.
This is more generosity. This section needs to be looked at again. It is badly drafted, unclear and illogical in many ways.
I will raise this issue with the Minister.
