I welcome the Minister for Justice, Equality and Law Reform and his officials. As members want to complete consideration of the Bill today and there are 35 amendments remaining, brevity would be appreciated. We are taking amendments Nos. 16 to 19 together, by agreement. Is that agreed? Agreed.
European Convention on Human Rights Bill 2001: Committee Stage (Resumed).
SECTION 4.
Debate resumed on amendment No. 16:
In page 5, line 23, to delete "of the Convention provisions and".
-(Deputy J. O'Keeffe)
These are fairly technical amendments. Amendment No. 16 queries the need for judicial notice of the convention's provisions. I put down the amendment because if we followed the approach I am advocating we would be including the rights directly under domestic law in the schedule. To a degree it would be consequential on that approach being adopted so it is not as relevant at this stage.
The other amendments could be relevant and the Minister should clarify this. Why are we in a situation where judicial notice has to be taken in respect of decisions of the court in respect of any question on which the court has jurisdiction? My problem with that formulation is that it appears to be an unnecessary addition of words which could cause chaos. Why is it phrased in that way? Why can we not just take notice of the declarations, opinions and judgments of the Strasbourg court? Obviously the Commission and Committee of Ministers are the same. Why can we not just take note of decisions or opinions on any question on which these bodies have jurisdiction. Surely that can give rise to problems of proof - how does one prove something? Is there not an onus on a claimant who is trying to prove his or her entitlement under the terms of the convention? Is there then an onus of proof on him or her to show, if he or she is quoting any declaration or decision by the European Court to support his or her case, that he or she would have to prove that that court had the jurisdiction to make a declaration or give an opinion?
These words are unnecessary. They are worse than unnecessary in that including them might give rise to confusion and could result in chaos. These are technical points but I would be happy if the Minister says he will look at them and come back on Report Stage. Maybe they have no weight at all but our job is to make the Bill as watertight as possible.
I go along with Deputy O'Keeffe's line and would have thought it tautological to have judicial notice taken of the convention provisions - that that would be presumed to be part and parcel of what we are doing. I do not know why it is necessary. Furthermore, section (a) refers to any declaration, decision, advisory opinion or judgment of the European Court of Human Rights, so that is in place already. I understand judicial notice has to be taken as a matter of course as the European Court of Human Rights has had continuing application since the Convention on Human Rights. The purpose of this section is confusing.
It is a good idea that judicial notice is taken of the convention provisions and of the protocols as it will not require their proof in any given case. If someone is making an argument in a case as to how a provision of an Act may be interpreted, he or she will not have to prove the Articles of the convention, with which we are dealing here, or the protocols as the court will be presumed to know them. It will not be necessary to formally prove any of these documents. At present judicial notice is taken of, say, the Acts of the Oireachtas and one does not have to prove that on a certain day a certain protocol was established; the judge is presumed to know the content of the relevant item. That is the purpose of taking judicial notice of convention decisions.
On the proposal regarding section 4 (a) and questions regarding a court’s jurisdiction, I am disposed to accepting the deletion. I was not intimately involved with the drafting of this and I cannot now recall the function it is serving. It might have an effect about which I am unclear but subject to talking to the draftsman I propose to accept the amendment on Report Stage if it is retabled. The next one is any decision or opinion of the European Commission on Human Rights so established on any question on which it had jurisdiction. The Commission had a judicial function at one stage and I am trying to distinguish between decisions of the Commission which were purely administrative and ones on issues in respect of which it was exercising jurisdiction. It may be that phrase in paragraph (b) led to a similar phrase being put in paragraph (a) and I want to check if that is the reason for it.
Again, on the decision of the Committee of Ministers we are talking about jurisdictional matters, and matters of adjudication, and not simply decisions as to when they have adjourned - domestic and administration decisions. Regarding the proposal to delete "applying and interpreting" and replace it with "interpreting and applying", again I cannot see any reason to object to that at the moment. That may be correct. Regarding the insertion of "opinion" after "advisory opinion", there is a difference between opinion and advisory opinion in paragraphs (a), (b) and (c). That is a reasonable amendment.
Subject to being told by the draftsman that there is some point I am missing I will accept amendment No. 17 but not amendments Nos. 18 or 19. I will also accept amendments Nos. 20 and 21.
I can react positively to that approach. Since both the Minister and I have both tabled amendment No. 21 that will go through. The others could be left until Report Stage.
My real concern relates to the issue of proof. I do not want challenges as to jurisdiction. I am glad the Minister is addressing the courts issue and should it be considered necessary the Commission is——
I wanted to deal with various forms of decisions.
I should declare an interest in that I attended the Committee of Ministers for some years.
But I presume the Council of Ministers sometimes decided to adjourn and we do not need judicial notice of that.
Usually we adjourned to a restaurant, if I recollect. I would not expect that to be a matter for the court or anyone else.
The only other point made to me regarding this section is that in so far as jurisdiction arises, if it is of relevance could this be phrased in a way as to make it acceptable to the bodies concerned to be deemed to have had jurisdiction unless the contrary was proved? That may be more for the Minister's officials to look at on Report Stage. The Law Society was concerned about the onus of proof and leaving things in a state of confusion. Possibly this could be overcome if there was deemed to be jurisdiction unless the contrary were proved. I will not press the amendment on the basis of the Minister's reaction.
We will make the amendment on which we are agreed, amendment No. 21. I draw the committee's attention to the fact that the United Kingdom text does not contain that jurisdictional point but curiously in the UK version they provide in the interpretative section that decisions which are judicially noted have to be relevant to the decision in which the point has arisen and evidence must be given to the proceedings in such a manner as provided for in the rules. That is section 2(2) of the UK Act.
Our system is slightly different. We are saying judicial notice should be taken while the UK is saying by evidence of them. Our system is more facilitatory than the UK system.
We can tidy things up on Report Stage.
Amendment, by leave, withdrawn.
Amendments Nos. 17 to 20, inclusive, not moved.
I move amendment No. 21:
In page 5, line 37, after "opinions" to insert ", opinions".
Amendment agreed to.
Section 4, as amended, agreed to.
SECTION 5.
I move amendment No. 22:
In page 5, subsection (1), lines 41 and 42, to delete all words from and including "and" in line 41 down to and including "available," in line 42.
This arises where no other remedy is adequate or available.
I am concerned by what abuse might occur with that phrase. I am also concerned with proof and additional statutory requirements for proof on a claimant and the procedure by which that proof will be discharged. Does this mean that a claimant will have to prove there are no other legal remedies before he or she introduces the claim to rights under the convention? Will that be done by serial pleadings or by concurrent or alternate pleadings? I am a bit rusty on this.
I take the general view that obviously one should resort to one's rights under the Constitution or otherwise initially, but my concern arises because it is included in the statute under the words where no other legal remedy is adequate or available. Because of that phraseology will the claimant be unable to plead his rights under the convention until all other remedies have been exhausted? Will he have to go to the Supreme Court? This raises all sorts of difficulties with the pleadings and also with time and the Statute of Limitations - the Minister will be pleased to have missed the debate on the Statue of Limitations the last day. Perhaps the Minister can clarify this and ease my mind but it seems it could give rise to considerable difficulties.
I assure the Deputy it is intended to be a concurrent jurisdiction in respect of any proceedings before the High Court or Supreme Court where an application is made for a declaration or alternatively where the court considers no other remedy is adequate or available.
To go through the sequence of events, in most cases if someone puts down a claim that some portion of an Act is incompatible with the European Court of Human Rights that declaratory jurisdiction is normally deferred. If there is a simple remedy or basis on which one wins a case without having to consider the compatibility of an Act with the convention, it is desirable that the court should not waste its time considering compatibility issues if one wins on common law principles before one starts.
Second, in many cases the courts have established a rule of procedure that the courts do not consider constitutional challenges to cases where there is a non-constitutional way of resolving the case. One does not start considering the validity of a statute under the Constitution if there is a non-constitutional remedy available. What I think we have achieved, and if someone sees a clearer way they should speak up, is that the sequence of events is such if one can win without the validity of the law being impugned under the Constitution the court sticks with that. Second, the court then asks if the law is compatible with the Constitution. When it is driven to that point under existing principles and says something is incompatible with the Constitution, then it is only at the very last point that it has been necessary to determine that position in the first place. The court only considers the issue of the convention when it is to determine compatiblity with it.
One could take the example of the Norris case. If there had been a remedy open to him other than challenging the validity of the 1883 Act under the Constitution, the court would not have investigated the question of constitutionality. However, if the validity of the law under the Constitution had to be examined, the High and Supreme Courts, as in that case, would say whether it was compatible with the Constitution. It is only at the final point, if the court says a law is valid under Irish law, that it says it will have to consider whether it is compatible with the European Convention. If it is invalid under Irish law and incompatible with the Constitution there is no point in ventilating convention issues. It is the remedy of last resort in any proceeding.
One should therefore look at the sequence of events in the Norris case. If he had gone to the High Court and the Supreme Court he could have said in either case that they were holding against him the law against homosexual behaviour between consenting adults in private as being constitutional but he could have also pointed out the Dudgeon case which had been decided in Strasbourg and which said this was incompatible with the convention. Having upheld the constitutionality of the law in Irish terms the court could say that was not the end of the issue and could investigate the Dudgeon case to see if it applied.
It happened the other way around in this case. If one decided the constitutional issues were deferred until the convention issues were addressed one would have a bizarre result. In the Norris case he would first have had a declaration that the Dudgeon case applied and the court would then move to the second issue of whether the law was valid having regard to the Constitution.
We are trying to put this in the proper logical sequence. This provision seeks to tweak the present doctrine, which is that one never investigates constitutionality until it is the last issue in a case. We want it to be the second last as it was of no interest to Senator Norris to learn the Act was incompatible with the convention but nonetheless valid according to the Constitution; what he should have been looking for first was a declaration under the Constitution.
In effect this is a point regarding the primacy of the Constitution. If one has a solid case regarding something being incompatible with the Constitution one makes that case first and only in that very narrow territory - something which is compatible with the Constitution but incompatible with the convention - will the court say it must look at the issue.
It sounds reasonable.
Mr. J. O’Keeffe It sounds reasonable. To some extent that makes the case for the deletion of these words because if the current practice is as the Minister describes it, is it necessary to include this in such a way as to allow it to be used as a statutory barrier to someone claiming their rights?
Regarding the lower courts, I agree with the Minister that the proper procedure is one proceeds with a case according to common law or whatever and then one goes to the Constitution and then to the convention. From the point of view of pleadings the Minister says it will not be necessary to have serial proceedings and that one can plead in the alternative. Is the Minister's comment to that effect in the committee enough to clarify that or will something have to be done by rules of court to clear it up?
Also, what happens if an issue arises in the Circuit Court? Can a point be argued and then referred to the High Court by way of case stated? This leads on to another related amendment, amendment No. 31, which deals with this point. The amendment refers to an issue arising in the District Court or Circuit Court, either court can refer it on to the High Court, which can give a direction on interpretation.
We can discuss this when dealing with the amendment.
I have no objection to discussing it.
It is related.
Perhaps I can shorten the debate. At present one does not have a consultative case stated from the District Court to the High Court on the constitutionality of a provision. If one wants to challenge the Road Traffic Act on a constitutional basis one issues a plenary summons in the High Court and one challenges the Act. Otherwise virtually everything would grind to a halt as everyone would say they have a constitutional theory. In the middle of a drunk driving prosecution, instead of challenging the Act, people would ask for a consultative case to be taken to the High Court and one would not have the necessary taking of evidence and so on. The High Court is the only court with the jurisdiction to determine these issues; this is part of its full and original jurisdiction.
On the constitutional issue, this is done through plenary action. One sets up locally, produces one's evidence and makes an appeal to the Supreme Court as of right in that issue.
Was the Wicklow case not an appeal to the Circuit Court where Judge McMahon referred the drink driving point to the High Court by way of a case stated? I refer to the case where a period of 20 minutes was in question.
Yes, but that was not to declare the Act unconstitutional.
I thought it did.
That was not the argument. If there is something wrong with an Act and it seems to authorise some infraction of human rights, the normal response would be to ask whether it is compatible with our Constitution, whether this law is valid, and to solve it by reference to domestic law. There are cases, such as happened in Senator Norris's case, where there is one unresolved issue. In those days he could only make the argument that the Act in question was incompatible with the Constitution. He was able to use the Dudgeon case as a swathe of authority, but he was met with the answer that it was not part of Irish domestic law and that this was just too bad.
What we want is a system whereby if one gets to this narrow band of cases where the Irish courts say an Act is compatible with the Constitution, there is still a remedy in domestic law in the form of an Irish court rather than the court in Strasbourg examining the issue of whether it is compatible with the European Convention on Human Rights. If that point is won, one will get a declaration of incompatibility and, in those circumstances, it is handed to the Taoiseach to lay before the Dáil. If we did it the other way around and the constitutional case were the last issue, we would have the strange situation of the Dáil being notified that something was incompatible with the European convention and the person would effectively be deprived of the more obvious remedy, which is to say it was invalid in the first place.
I am prepared not to press the issue for the moment. I still have a concern but I will take advice on it.
Amendment, by leave, withdrawn.
As there is a vote in the Dáil, I suggest we suspend the meeting.
Sitting suspended at 5.33 p.m. and resumed at 5.50 p.m.
Amendment No. 23 is in the name of Deputy O'Keeffe. Amendments Nos. 24, 25 and 27 are related and amendment No. 26 is consequential on amendment No. 24. Is it agreed that we discuss amendments Nos. 23 to 27, inclusive, together? Agreed.
I move amendment No. 23:
In page 6, lines 1 to 8, to delete subsection (2) and substitute the following:
"(2) A declaration of incompatibility shall render invalid and inhibit the continuing operation or enforcement of the statutory provision or rule of law in respect of which it is made.".
I do not intend to press this amendment. On amendment No. 27, a number of questions arise in respect of a declaration of incompatibility, the most fundamental of which is whether there is an absolute requirement, as provided for in Article 13 of the convention, for an effective remedy before a national authority. I understand the Minister's thinking in this regard, but I still have lurking doubts as to whether this is the ideal approach. However, in so far as we are locked into the declaration of incompatibility approach, it is important that a number of measures should flow from it, one of which is that such a declaration should be followed by action.
There is a requirement under section 5(3) for the Taoiseach to cause a copy of any order containing a declaration of incompatibility to be laid before each House within 21 days, but what happens after that? The Act is silent in that regard. If we use the approach of a declaration of incompatibility, there should be provision for a follow up. At a minimum, the follow up should include the Taoiseach being required to make a statement on the measures the Government proposes to take to remove the incompatibility and the proposed timeframe for achieving that. The effect of amendment No. 27 would be to improve the operation of an approach involving a declaration of incompatibility. I will let Deputy Costello deal with his own amendments, although I may comment on them.
Amendment No. 24 states:
In page 6, between lines 8 and 9, to insert the following subsection:
"(3) The registrar of the court concerned shall transmit a certified copy of an order containing a declaration of incompatibility to the Attorney General within 7 days of the perfection of the order.".
There is a considerable link between Deputy O'Keeffe's amendments and those in my name. Amendment No. 24 seeks to put in place a mechanism for transmission of the order of the court to the Taoiseach and the Attorney General to ensure that there is a mechanism for it to go to Government. Such a mechanism is missing at present. Subsection (3) simply states that the Taoiseach "shall cause a copy of any order . . . ". I am seeking to put a mechanism in place whereby the registrar of the court concerned shall transmit a certified copy of an order containing the declaration of incompatibility to the Attorney General within seven days of the perfection of the order. It is specific as to the mechanism and the timescale.
Amendment No. 25 follows on from that and is very much in line with Deputy O'Keeffe's amendment No. 27 in that unless the matter is appealed to the High Court, the Government should state its proposals to address the incompatibility. There appears to be a lacuna in terms of the way the Government will deal with it and the Government must take action in that regard. There is not much sense in having the order in relation to incompatibility unless it is addressed.
It is open to the Oireachtas to decide that it will not change the law. Constitutionally, it is open to the Oireachtas to do nothing about it. Another possibility would be for Ireland to derogate. If this is what the convention means we will denounce it or whatever. These are theoretical, I admit, but they are possible outcomes under our Constitution.
Not within our amendments.
One aspect of the amendments I am not so keen on, and which I believe is unconstitutional, is to provide for what people must do in either House. That is a matter for the procedure of each House under the Constitution. Under Article 15 of the Constitution, each House makes up its own rules as to who does what and we cannot oblige a Member of a House to do anything in either Chamber. We cannot oblige somebody to make a speech. That is something which cannot be imposed on Seanad Éireann or whatever.
From a practical point of view, if a declaration of incompatibility is made, the reason 21 days is provided is that it allows the State to appeal the matter to the Supreme Court if it wants to do so; 21 days is the normal period for an appeal. In many of these cases, the Attorney General, who will be a party to these proceedings, may, presumably, want time to decide whether to appeal it. If he decides not to appeal it and accepts that the High Court is correct that the Act is incompatible with the convention, it will be for Government, in the normal course of events, to come up with some suggested outcome.
Unlike the British sovereignty of Parliament, under our Constitution it is not possible by Act of Parliament to say what happens in either House. That is the difference between Ireland and the United Kingdom. Not merely can Parliament in England abolish one Chamber, it can provide who can speak or what can happen in Parliament by its laws. However, Article 15.10 of the Constitution states that "Each House shall make its own rules and standing orders . . . ". It is not possible for us to tell Seanad Éireann how to do its business or stipulate who shall say what in Seanad Éireann. Likewise, it is not possible for Seanad Éireann and Dáil Éireann to pass a Bill that binds Dáil Éireann as to its own procedures. It is purely a matter for each House to decide and it can vary those procedures if it wants to do so. That is the reason the UK model is not being followed here because the UK Parliament in Westminster says what has to happen. We cannot do that.
I accept that we are bound by the Constitution, but my concern is that nothing could happen in this regard. There is no great obligation to answer to the Oireachtas for nothing happening. All that is provided for in the section is that a copy of an order of incompatibility will be laid before the Houses, nothing else.
A contrast can be made in this regard with the position in the UK. I am not urging the Minister to follow what happens in the UK in this instance, but in the UK, under section 10 of the 1998 Act, a Minister can make an order providing for an amendment to the offending legislation, which I accept is rather extreme. I am not proposing to give the Minister, Deputy McDowell, that power nor would I want it for myself after a change of Government. I am not pressing the case at this stage, but it was summed up well by my colleague, Deputy Costello, when he referred to a lacuna. In the section there is merely a provision for a statement of incompatibility and for laying that before the Houses. That is of concern to me. If the Minister is saying the approach proposed by me might be unconstitutional, I will reconsider it and I ask him to do so between now and Report Stage to establish if something could be done to strengthen the legislation which would be within the terms of the Constitution.
This is a serious matter. There is a breakdown between an order being made and a statement of intent by the Government as to what Taoiseach will do. We are directing the Taoiseach to cause a copy of an order to be laid before the House. I know the House regulates its own business, but we are telling the Taoiseach to put a copy of an order before the House and surely we can tell him a few other matters. There is a need to put in place some time frame or statement of intent that action will be taken on an order that has been made on incompatibility by the courts. If we do not do that, we are leaving something amiss in the legislation, which can be seen as a loophole and no action need be taken on the matter. I agree with my colleague, Deputy O'Keeffe, that the Minister should reconsider the matter for Report Stage.
I will reconsider it to ascertain if anything more definite can be done, but I do not believe anything more can be done. If a Bill was laid before both Houses of the Oireachtas, the Seanad might decide to introduce a Bill to repeal this Act whereas the Government in Dáil Éireann might sponsor a Bill to amend it.
The Minister cannot make such a comparison, in that, it only deals with what the Government presents to it.
That is not so. If a new party came into existence, under existing law, unless it had the local elections firmly under its oxter, it would have no chance of dominating the Seanad.
The Government always has a majority in the Seanad.
Not necessarily.
We should bear in mind that amendment No. 27 does not provide for what the Oireachtas will do; it merely seeks a statement of intent from the Government on what measures it will propose. We cannot assume or presume what the Oireachtas will do. This amendment, if accepted, would put pressure on the Government to make a statement of intent.
The tabling of a simple parliamentary question would produce the same results.
That is not necessarily correct when I note some replies I get to parliamentary questions.
The matter could be raised on the Adjournment or it could be dealt with by way of Private Members' business.
A junior Minister could be sent in to read a pre-prepared script.
Is Deputy Costello pressing the amendment?
I am reminded that the section benignly assumes that we have an effective Opposition.
Amendment, by leave, withdrawn.
Amendments Nos. 24 to 27, inclusive, not moved.
Amendments Nos. 28, 29 and 30 have been ruled out of order as they involve a potential charge on the Exchequer.
Amendments Nos. 28 to 31, inclusive, not moved.
I move amendment No. 32:
In page 6, between lines 30 and 31, to insert the following subsection:
"(6) Where as a result of an incompatibility between a statutory provision or rule of law and a Convention provision, or a failure to act in a manner compatible with a Convention provision, a person has been convicted of a criminal offence in circumstances where but for the incompatibility or failure the person would not have been so convicted, or would have been sentenced to a lesser penalty, the Court of Criminal Appeal may on application by that person (including a case where the person was convicted by a court of summary jurisdiction) set aside the conviction or sentence or both, and may if the circumstances of the case so warrant order a re-trial.".
The context of this amendment is that the awarding of compensation is inadequate in many criminal cases and provision should be made in regard to jurisdiction and a mechanism to enable criminal cases to be revisited.
I have a number of comments on Deputy Costello's amendment and on the section, as this amendment deals with a central issue, which is partly covered by two of the amendments that were ruled out of order. The central issue of the approach in this regard of making an ex gratia payment grates on me in that the court can come to a decision and it is then left to the Government of the day to decide the remedy. That goes against everything I have ever learned in law. It also goes against my sense of the separation of powers and the basis of our democracy. It seems wrong.
In his amendment, Deputy Costello is addressing an issue where damages would be irrelevant, as in the case of a person in jail who is not able to find a provision of the convention to allow for his or her release. Can the court order the release of such a person? Does such a conviction stand? What is the effect of a declaration in those circumstances? That is one issue.
We touched on another issue, the threads of which we should gather from the point of view of a remedy. What powers does the court have? On the criminal side, there is the question of a conviction and the consequences of one. If there is a fine can it be remitted or can a person be released from jail? What about the issue of an injunction? Do we end up with a judicial eunuch who can merely make a declaration and nothing else and then leave it to the Government which, under the Act, is limited to making an ex gratia payment and should not have the right to exercise other powers that normally would be the reserve of the Judiciary. There is one further issue regarding payment of compensation - the amount. What will be the determining factors? The Government can appoint an adviser but what are the criteria?
Under subsection (5) the adviser will take appropriate account of the principles and practice applied by the European Court of Human Rights. I cannot say I spent any time practising before the European Court of Human Rights but I am advised that the approach of the Strasbourg court is to establish points of principle. There is either no money awarded or it is a token amount.
Reference has been made to our colleague, Senator Norris. He was not looking for money but for a statement of principle. I do not recollect that there was any award, although he had obviously been affected by our legislation. Practice and procedure in the Strasbourg court does not include the award of money of any consequence.
From the point of view of remedy, the courts can make a declaration of incompatibility but do not appear to have any other power. They are spancelled. There is a provision whereby the Attorney General can advise the Government, having listened to an adviser who must take appropriate account of the principles and practices of the European court before giving the advice. The outcome will be an ex gratia payment which, if it is related to Strasbourg, could be the proverbial penny or shilling.
The way the Minister framed this approach grates from the point of view of the lack of judicial power. In addition, large holes can be drilled through the provisions for remedy in this section. I do not like the section generally and specifically for the reasons I have outlined.
Our proposed legislation is more favourable to the ordinary citizen than the UK legislation. The Deputies will recall section 3(2). In Ireland there is a system of damages for breach by any public authority of its obligations to comply with the convention. The damages are the ordinary compensatory measure of damages available under Irish law. The United Kingdom, in contrast, has a compensation section in the Act but the compensation available is along the principles laid down by the Strasbourg court. In layman's terms, one would get far less money in Strasbourg than one would get from a common law court for breach of one's rights. I will not use the term "token damages" but they are not what an Irish court would award in those circumstances. They are usually 10% or 20% of what one might expect an Irish court to award in similar circumstances.
Reparation.
Yes. It is a different ballgame, if one can use that colloquialism. In any action by an Irish citizen for damages under section 3(2) the courts will apply ordinary Irish compensatory principles. That is a significant advance on the position in the United Kingdom.
What happens in the UK where an Act of the United Kingdom Parliament is declared to be incompatible with the convention? I am subject to correction but there are no damages for incompatibility. If the UK enacts a law which is incompatible with the convention, the person gets nothing. He or she must go to Strasbourg to get money, if he or she is after money. In Ireland, people who suffer loss and damage by virtue of the breach of the statutory duty contained in section 3 will get ordinary Irish compensatory damages.
However, some people will go through all the procedures we mentioned earlier: going to the Irish courts, challenging an Act, finding that it is constitutional but also getting a declaration that although it is constitutional, it is incompatible with the convention. This will apply to a narrow category of cases. In those cases, rather than saying, as is the case in the UK: "You have won and got your declaration of incompatibility", we will say: "You have won and, by the way, you do not have to go to Strasbourg because we have put a system in place whereby you can apply to the Attorney General to give you the same amount of money that the Government thinks you would get if you went to Strasbourg". Unlike a UK citizen who gets a declaration of incompatibility, Irish citizens are given everything they could get in Strasbourg.
However, if they do not agree with this ex gratia compensation or do not consider it adequate, they can go to Strasbourg for the money. We are not ruling out any application to Strasbourg. We are saying, however, that the person can get the same in Ireland as he or she will get in Strasbourg. Deputy O’Keeffe is worried about the ex gratia payment. He thinks it is a judicial eunuch. However, as I pointed out on the first day on Committee Stage, it is not possible for the Irish State to create a law which entitles the Irish courts to compensate people for the consequences of legislative Acts which are intra vires of the Irish Constitution. It is not possible for the Irish Parliament to punish the Irish State for doing something which is legal and to give the courts the jurisdiction effectively to force the State to compensate people in circumstances where no legal wrong has been done to them and where the Parliament is acting intra vires of the Irish Constitution.
As one cannot create a right of action against the Irish State for doing something that is constitutional, we had to think about what else somebody who has got a declaration of incompatibility would get from Strasbourg. The one thing he or she could get is reparation of a financial nature. We are giving that person a method of getting the same amount of money from the Irish State without having to go through the hassle of going to Strasbourg. We are not blocking people's right to go to Strasbourg if they do not believe they are being fairly treated.
John Hedigan, a member of the European Court of Human Rights, came to Ireland and told us that the court in Strasbourg wants every remedy that is available in Strasbourg made available to people domestically, if possible. We were left with a constitutional conundrum. Could we create a right of compensation, that is, a right to apply for ex gratia compensation, or a right of court-based compensation where the State acts lawfully under the Irish Constitution, has done no wrong by reference to the Constitution, but has infringed the terms of the European Convention on Human Rights? Our view is that one cannot create an entitlement as of right to damages in those circumstances. All we can do is put together this ex gratia scheme. However, it should end up with exactly the same outcome as if the person had brought his or her case in Strasbourg because, in relation to some putative Senator Norris in the future, the Attorney General will say to the Government, “We have infringed his rights under the convention. The Supreme Court has said it is not a breach of the Constitution. If he goes to Strasbourg he will be awarded damages. Here is a scheme whereby - since we have a declaration of incompatibility and the Houses of the Oireachtas are going to amend or repeal the law - he can get from the State, albeit on an ex gratia basis, every penny he would have received if he had brought his case to Strasbourg”. I cannot do better than that.
To a large extent, the Minister has answered the query I was going to raise. When one reads it in conjunction with section 3 (2), it provides quite a liberal regime of compensation or damages. As regards the issue of compensation, will the Minister clarify if the intention of subsection (5) is to provide in this jurisdiction what might otherwise be awarded in Strasbourg? Is there any particular reason the word "reparation" rather than "compensation" was not used in line 26, as it would mirror identically the provisions of article 41 of the convention? To my mind, compensation would tend to suggest something wider than reparation.
I will consider between now and Report Stage whether we should delete the word "compensation" and insert the word "reparation". I have not answered Deputy Costello's amendment at all, have I?
I will let Deputy Costello come in because he has an additional comment to make.
I am conscious that I have not answered his amendment at all.
I desisted from intervening so that the Minister could answer it. He went on to answer the section but did not refer to my amendment.
That is correct. I should have dealt with Deputy Costello's amendment but I forgot about it. What happens if people who have been convicted of a criminal offence go through the whole procedure, the Act under which they have been incarcerated is found by the Supreme Court to be valid under the Constitution, and, therefore, if they are still in jail their custody is lawful, or if they have been released, their custody was lawful? In those circumstances, what happens if that person nonetheless gets a declaration of incompatibility with the convention?
Is the Minister asking me?
No, that is the question the Deputy has put to me. Given that it is within the right of the Legislature to leave the law exactly as it is and walk away from the situation saying "too bad", I believe that in those circumstances the constitutional course that would be most open would be for the President, on the advice of the Government, to pardon the person under the provisions of the Constitution and so to wipe away the conviction.
I tabled the amendment very much along those lines - to provide a meaningful remedy for somebody who has been convicted of a criminal offence and may very well be in prison. Unless there is some mechanism to set aside the conviction or to try to remedy——
A free pardon from the President.
A pardon is effectively the equivalent of this wonderful ex gratia compensation which the Minister tells us is better than anything our friends across the water could think up. It comes down to a flaw in the legislation, that one must have a meaningful and relevant remedy. The only remedy that is expressed here is ex gratia compensation or, as Deputy Power is now suggesting, “reparation” which is an interesting word. In a case of this nature, however, that is not a particularly relevant method of redress. A presidential pardon would seem more appropriate but there is no provision for that. I do not see the connecting steps that would give rise to that, unless we incorporate them in legislation. We should put in place a provision whereby we could set aside the conviction or sentence, or both, and if the circumstances so warranted it we could make provision for a retrial. We have not addressed the matter but we should do so. Perhaps the Minister could examine it between now and Report Stage.
I will have to look at it because I can see some merit in what the Deputy is saying. In all these cases, a declaration of incompatibility will only be given if the convicted person has effectively failed to find that the Act in question was unconstitutional. It will be in a situation where somebody has been convicted on foot of a valid Irish law.
Which would be a valid incompatibility case at the same time.
Yes, and then one is left with the position as to whether one should create a new jurisdiction in any court. If it is a valid Irish law and the person is validly in Irish custody - or has validly served a sentence under Irish law - should one then create a jurisdiction to re-open the criminal case? I do not know.
The motto of the courts is "Let justice be done though the skies fall".
Yes.
To some degree, the Minister has proved a point that shows the inadequacy of the legislation. I am somewhat appalled at the prospect that somebody who proved that his incarceration is contrary to the convention, and obtains an order to that effect from a judge, is then left incarcerated while awaiting the pleasure of the Government as to whether it will recommend a pardon. Even if there is a pardon, my understanding is that the conviction stands, although I am not entirely certain of that.
Is it not a further consequence of the way in which we are doing business here? It goes back to the whole question of not having the rights incorporated into our domestic law, subject to the Constitution. I will deal with this in relation to the Schedule in a moment. If that were done it would get over the problem but I will not re-open that debate at this stage. Serious issues have arisen here, however, which both Deputy Costello and I have touched upon. I hope they will give cause for reflection between now and Report Stage.
I am very interested in Deputy Costello's suggestion. Would the Minister consider making an initial response now - although not for the purposes of Report Stage - as to whether the legislation could make provision for a defendant in a criminal case to plead the convention as an alternate defence? I am not an expert in the area but is that something to be considered or is it an alternative to Deputy Costello's suggestion? This mention of the criminal law for the first time in our deliberations is interesting. It is worth considering.
I thought about it a good deal. We do not allow the constitutional validity of an Act to be determined in the course of a criminal proceeding. In other words, one does not empanel a jury and half way through the case, counsel for the accused gets the bright idea that the theft Act or whatever is unconstitutional and asks the judge to give him or her a direction on the basis that the Act should never have been passed.
The Court of Criminal Appeal is the normal venue for appeals from jury trials - in fact, it is the only one subject to going to the Supreme Court on a point of law. The Court of Criminal Appeal has no jurisdiction to determine the validity of any law under the Constitution. In our criminal process, if one faces prosecution under the Road Traffic Act, a homicide Act or whatever, and if one claims the Act is unconstitutional, one launches an action separate from one's criminal proceedings and one fights the constitutionality of the Act with which one is faced. One does not go to the Circuit Criminal Court or the Central Criminal Court and start to argue about the Constitution when the jury is coming into the room. That does not happen. Likewise, if one is convicted by a jury and if the verdict is guilty or not guilty, one does not go to the Court of Criminal Appeal to say the whole Act was invalid in the first place. That option is not normally available as a remedy in criminal law.
Taking a practical example, if somebody was imprisoned for gross indecency among male persons, before the trial or even after the trial, they could have launched an action to declare the relevant provision of the 1883 Act, the 1861 Act or whatever to be incompatible with the Constitution. If a gross indecency charge had been brought under the 1883 Act, one would not start to argue the Constitution half way through the case before the jury. Our system does not operate that way. The criminal area is ring-fenced.
In terms of those separate proceedings, should there be some provision for the right of the defendant to appeal contravention of the convention?
Every Act must be interpreted in a constitutionally friendly way as must every rule of law, including every rule of criminal law. If it is capable of having a convention-compatible meaning in its ordinary wording, the courts are required by this statute to so interpret it. It is only if it has a clear meaning which is incompatible with the convention that this area would open up, namely, having to seek a declaration of incompatibility. If it is capable of having a convention-compatible meaning, the courts will so interpret it. It is only in a narrow band of cases which relate to the interpretation of a statute and where it is incapable of having a convention-compatible interpretation and where it is also compatible with the Constitution, that this situation could possibly arise. I find it almost impossible to imagine a case where somebody would not, if convicted of an offence, challenge the constitutionality of the Act under which he or she was tried as well as challenge its convention compatibility.
It is a hard one but if somebody can come up with a practical set of circumstances where Deputy Costello's worry kicks in, I would like to see it. I would like to see some method. There is one thing which has just occurred to me and which perhaps I should not mention, but I had better do so in the spirit of friendliness. Where an Article 26 reference has been made and a law has been found constitutional and incapable thereafter of being challenged, this would probably kick in then. This might be the last port of call for someone.
The best remedy in those circumstances is to provide that a free pardon be given to those involved. If they claimed their rights under the convention had been trampled on, they would have the right to go to Europe at that stage or to claim compensation ex gratia on the basis that they did not want to go to Europe.
We are talking about cases in which a declaration of incompatibility has been determined and where there has been an order of incompatibility. We are also talking about a remedy, what arises and how it is addressed. This section deals with redress. The situation I envisage in my amendment is irrelevant to the situation which pertains. The Minister raised the possibility that a presidential pardon might be an appropriate type of ex gratia remedy but that is not incorporated in the legislation. Once again we are leaving a lacuna in that there is no connection in terms of how this will be resolved. How will we deal with an area which is not addressed in the legislation?
First, it is not always necessary to provide for something in a Bill if it is available under the Constitution. Between now and Report Stage, I will think about providing the right to apply to the Government to advise the President to pardon somebody for an offence for which he or she has been convicted in addition to the right to apply for ex gratia compensation. That might be the best way to deal with it.
Amendment, by leave, withdrawn.
Question, "That section 5 stand part of the Bill", put and declared carried.
SECTION 6.
Amendment No. 33 has been ruled out of order as it involves a potential charge on the Revenue.
Amendment No. 33 not moved.
Amendments Nos. 34 and 35 are cognate and amendment No. 36 is consequential on amendment No. 35. We will take amendments Nos. 34 to 36, inclusive, together. Is that agreed? Agreed.
I move amendment No. 34:
In page 6, subsection (1), line 32, after "Attorney General" to insert "and the Human Rights Commission".
The purpose of these amendments is to give the Human Rights Commission a role under this legislation. It is appropriate that the Human Rights Commission should be a noticed party where the issue of incompatibility with the convention arises. Section 6 prescribes for the giving of notice to the Attorney General where the issue arises before a court and also gives the Attorney General the right to become a party to the proceedings. Now that we have a Human Rights Commission properly set up by statute, the proper course of action would be to involve the commission.
Having acted as Attorney General, the Minister will understand that cases may arise where the Attorney General will be conflicted, especially in view of his variety of roles, including acting as guardian of the public interest, adviser to the Government and so on. A conflict of interest would not arise as far as the Human Rights Commission is concerned. Its role and mandate is clearly laid down by statute. In view of this, my proposed changes are appropriate.
I concur with Deputy O'Keeffe's remarks. It is important to acknowledge the establishment of the Human Rights Commission. This is human rights legislation and we should insert the role of the commission in this section.
The existing provisions in relation to the Human Rights Commission allow it to apply to the High Court or Supreme Court for liberty to appear before either court, as the case may be, as amicus curiae in any proceedings before that court that involve, or are concerned with, human rights of any person and to appear as amicus curiae on foot of such liberty being granted, which liberty each of the said courts is hereby empowered to grant in its absolute discretion. The Human Rights Commission has been given the right to apply to the High Court or the Supreme Court. It does not even to have first been in the High Court, it can go at first instance to the Supreme Court to appear amicus curiae in a case.
Putting this into context, first, in any of these cases somebody will have locus standi to challenge the compatability of the Act and that person will have brought his or her claim. Second, the Attorney General, or the State in one shape or form, will be normally a respondent to those proceedings, but not necessarily so. There could be an argument between two private individuals in which one of them claimed this as a final last resort.
The real question is whether it is right to give the Human Rights Commission the right to intervene in cases or whether it should be the same as any other case from the point of view of the commission, namely, that it can apply to intervene in a case. I have mixed views on this. In some cases if the Human Rights Commission has the right to intervene as of right in a case, two people might be involved in litigation at which point the commission wishes to intervene. The party at the loosing end of an intervention from the commission may take the view that while he had to proceed legally unaided or with relatively modest resources, a State agency has intervened to help the other party or parties. The Human Rights Commission Act provides that, ultimately, the court has the discretion to decide on the fairness of an intervention by the commission, that it cannot intervene as of total right in one of these cases.
It may then be questioned why the Attorney General is entitled as of right to appear. The Attorney General is only entitled as of right to appear because, in the last analysis, the State is party to the European Convention and it is the State that would be dragged, in a notional sense, before the court in Strasbourg. If a declaration of incompatibility was to be processed all the way to Strasbourg, the Attorney General would have a right to appear. One possibility would be to require the Human Rights Commission to be notified.
That appears to be the compromise. These cases will be rare. Very few people will be seeking declarations of incompatibility and there is unlikely to be even one such case in a year.
The Human Rights Commission may take the view that two good parties are in contention and that it does not want to waste its budget on such a proceeding.
Mr. J. O’Keeffe That may be the case. A situation may arise where legislation is being questioned. The Attorney General might be the adviser to the Government which declared that not only is the legislation constitutional but that it is compatible with the convention. It is conceivable in such circumstances that the Attorney General could be conflicted. An acceptable compromise would be to provide under section 1 that the commission is notified, so that at least it would be aware of the situation. As it has the right to apply to the court it can decide whether to make an application.
That is correct. Giving the commission the right to apply to be amicus curiae presumes it knows about the proceedings in the first place. If the commission first hears about it from the newspapers the day after the case is decided, it is not much use. Subject to the advice of the Attorney General, I intend to introduce an amendment on Report Stage.
I will withdraw the amendment on that basis.
Amendment, by leave, withdrawn.
Amendments Nos. 35 and 36 not moved.
Section 6 agreed to.
NEW SECTION.
I move amendment No. 37:
In page 6, before section 7, to insert the following new section:
7.-(1) A Minister in charge of a Bill in either House of the Oireachtas must, before Second Reading of the Bill-
(a) make a statement to the effect that in her or his view the provisions of the Bill are compatible with the Convention provisions (referred to in this section as ’a statement of compatibility’), or
(b) make a statement to the effect that although she or he is unable to make a statement of compatibility, the Government nevertheless wishes the House to proceed with the Bill.
(2) The Statement must be in writing and be published in such manner as the Minister making it considers appropriate.".
While I am not sure if the legislation is a pale imitation of the United Kingdom legislation - certain aspects are similar - I understand section 19 of the UK Act provides for a statement of compatibility regarding Bills before Parliament. If it can be done there why can it not be done here? The amendment seeks to provide for it.
The same Article 15 argument applies to this. It is not open to the Houses of the Oireachtas to pass a law which requires either House to conduct its business in any way, or which prohibits somebody from doing something in either House, which the rules of the House permit. It would be reasonable for either House to insert in its Standing Orders a provision along the lines of this amendment. I see no reason the Dáil and the Seanad should not place a requirement on Members moving public measures - it is perhaps unfair to have it applied to private Members - to provide an assessment of compatibility with the convention.
I will leave this matter for Report Stage, but I should point out that I do not accept what the Minister has said. I am concerned here with an obligation on the Government, not on the Oireachtas. The United Kingdom legislation provides that the statement must be in writing and published in such a manner as the Minister considers appropriate. I understand in the UK the relevant statement appears on the explanatory memorandum or on the Bill and that it may be argued it is nothing more than a rote requirement. It focuses the minds of those involved to consider the convention. I will not press the point further now but I will on Report Stage.
Amendment, by leave, withdrawn.
SECTION 7.
Amendment No. 41 is consequential to amendment No. 38 and both may be take together by agreement.
I move amendment No. 38:
In page 6, to delete lines 39 to 44.
The amendment removes the reference in section 7 to the increased size of the Human Rights Commission. That was done in the 2001 Act.
Amendment agreed to.
Section 7, as amended, agreed to.
SECTION 8.
Amendments Nos. 39 and 40 not moved.
Question proposed: "That section 8 stand part of the Bill."
Legal aid should be provided for those who want to plead the convention. My amendment to that effect has been ruled out of order because there would be a potential charge on the Exchequer. This section deals with where expenses arise and figures were quoted to me. It would be no bother to spend €100,000 for a few days in the High Court, as senior counsel can be expensive. I am worried that if the convention is incorporated in this indirect fashion, with all the warts we have been debating, we will only provide a remedy for somebody who can afford it. Legal aid is confined in its operation nowadays but this is an area in which it should be available. I would provide separately for it if I could.
Question put and agreed to.
SECTION 9.
I move amendment No. 41:
In page 7, subsection (2), line 13, to delete "(other than paragraph (a) of section 7)”.
Amendment agreed to.
Section 9, as amended, agreed to.
FIRST SCHEDULE.
Amendments Nos. 42 to 51, inclusive, form a composite proposal and all may be discussed together by agreement.
I move amendment No. 42:
In page 8, to delete lines 5 to 33.
My approach to the legislation is that it should incorporate a rights-based model. The consequence of incorporating the convention would be that the rights provided under it would become part of domestic law subject to the Constitution. The contrast is what is before us, which merely deals with our obligations under the convention. This goes back to the basic difference between the Minister and myself, Deputy Costello and every other organisation that has expressed a view. That is the proper approach but I do not expect the Minister will accept my amendments.
We debated this at length earlier. Deputy O'Keeffe's position, while genuinely held, has proved to be manifestly incorrect. Various different authorities were brought forward to support the view of Deputies O'Keeffe and Costello and we disagreed with that. Subsequently, I attended a meeting of the Oireachtas Joint Committee on the Constitution at which the eminent senior constitutional jurist, Gerard Hogan, discussed various constitutional issues with us. I raised the issue of the constitutionality of Deputy O'Keeffe's proposal. Mr. Hogan was unequivocally of the view that the incorporation of the convention would be a wholly incorrect way of dealing with this legislation.
I will not press the amendments but I will reply to Deputy Power's contribution. I would not say a word about Gerard Hogan. He is the only individual who has given solace to the Minister's case in some of his writings. The other side of the coin is that every organisation, including the Law Society, of which Deputy Power is a member, the Bar Council, of which the Minister is a member, the Human Rights Commission, Amnesty International, the NUJ and a host of NGOs, have an entirely different view that has been seriously argued. I do not intend fighting those battles now.
I have great respect for Dr. Hogan's views. He is an eminent lawyer, one of the finest of our era. However, the wrong approach was taken with this legislation. A more generous approach should have been taken and I have listened to the Minister's arguments. Having examined all the approaches taken within the Council of Europe, ours was minimalist and it is not right for a non-aligned, neutral country that is always trying to promote human rights aboard. We take pride in the manner in which we do our business abroad and we should have incorporated the convention in its totality in our legislation.
Amendment, by leave, withdrawn.
Amendment No. 43 not moved.
First Schedule agreed to.
Amendments Nos. 44 and 45 not moved.
Second Schedule agreed to.
Amendments Nos. 46 and 47 not moved.
Third Schedule agreed to.
Amendments Nos. 48 and 49 not moved.
Fourth Schedule agreed to.
Amendments Nos. 50 and 51 not moved.
Fifth Schedule agreed to.
TITLE.
Question proposed: "That the Title be the Title to the Bill."
Are we amending the Human Rights Commission Act? I want to make sure the long Title is correct. If it is not, we will deal with it on Report Stage.
It should be deleted.
Question put and agreed to.
I thank the Minister and his officials. I also thank the spokespersons for Fine Gael and the Labour Party, Deputies Jim O'Keeffe and Costello, respectively, and Deputies Peter Power and Hoctor of Fianna Fáil for their contributions on Committee Stage.