Michael D. Higgins
Ceist:9 Mr. M. Higgins asked the Minister for Foreign Affairs if he will outline the reservations made by Ireland in its recent signing of United Nations Conventions; and the reason for such reservations.
Ceisteanna—Questions. Oral Answers. - United Nations Conventions.
I should point out that even though there is quite a long reply to this question from Deputy Higgins it is necessary. Having regard to the fact that Deputy Barry has two remaining questions on priority time, even if we overrun I will be quite willing to deal with the Deputy's questions.
The House will have to agree to that.
If it assists the Minister I am perfectly willing to accept a summary of the reply in terms of listing the convenants and the main reservations.
I have two options, one is to give it as I have it; the other is to ask the Deputy to accept it by way of circulating it in the Official Report.
It is not unusual in a long reply of this kind to accept it by way of tabular statement.
Obviously, the Minister is in charge of his Department, not I. Therefore, I will have to wait for the reply.
I take it that the Deputy is referring to the two Covenants elaborated on the basis of the Universal Declaration of Human rights. Ireland ratified the International Covenant on Economic, Social and Cultural rights and the International Covenant on Civil and Political rights on 8 December 1989. On the same date Ireland acceded to the Optional Protocol to the International Covenant on Civil and Political rights. On 8 March 1990, these Covenants entered into force for Ireland.
The Government decide on the ratification of international legal instruments following a full examination of what legislative or other measures may be necessary to allow Ireland become a party to the instrument. The Government may deem a reservation necessary where constitutional, legislative or other considerations might conflict with the full application of a provision of the instrument in question. The effect of a reservation is to limit the application of an element of the instrument to Ireland. This may be necessary, for example, to enable the completion of legislative measures enabling full compliance with the instrument.
In the case of the international instruments, it was considered necessary to make a number of reservations which I will now outline. These reservations were made in the light of certain provisions of our Constitution, of long-standing Government policies, and of legislative considerations.
The reservations to the Covenant on Economic, Social and Cultural rights are as follows: The first reservation is on Article 2, paragraph 2 of the Covenant which relates to discrimination on the basis of, among other things, language. In the context of Government policy to foster, promote and encourage the use of the Irish language by all appropriate means, the Government reserved the right to require, or give favourable consideration to, a knowledge of the Irish language for certain occupations. The reservation arises from Government policy in regard to the Irish language.
The second reservation is on Article 13, paragraph 2 (a), which deals with compulsory primary education. While Ireland recognises the inalienable right and duty of parents to provide for the education of children, and, while the State's obligation to provide for free primary education and for requiring that children receive a certain minimum education is recognised, the Government nevertheless reserved the right to allow parents to provide for the education of their children in their homes provided that certain minimum standards are observed.
The right to free primary education is guaranteed by Article 42.4 of the Constitution. While Article 42.1 of the Constitution refers to the duty of parents to provide for the education of their children Article 42.2 specifically leaves them free to provide this education in their homes, in private or in State schools. Article 42.3 prohibits the State from obliging parents, in violation of their conscience and lawful preference, to send their children to schools established by the State or to any particular type of school designated by the State. It can be argued that the provision in the Covenant referring to compulsory primary education does not preclude the possibility that this may be provided in the home. However, Article 13.3 of the Covenant specifically recognises the right of the parents to choose schools for their children but makes no reference to their right to provide that education themselves. It was deemed prudent for the State to make a reservation in relation to parental rights because if compulsory education were to be interpreted to mean solely education provided in the schools the obligation under the Article and the Covenant could not be met by the State without an amendment to the Constitution.
With regard to the Covenant on Civil and Political rights the Government made the following reservations: First, the Government made a Declaration on Article 6, Paragraph 5 which deals with the death penalty for minors. The Government declared that, pending the introduction of further legislation to give full effect to the provisions of paragraph 5 of Article 6, should a case arise which is not covered by the provisions of existing law, the Government will have regard to its obligations under the Covenant in the exercise of its power to advise commutation of the sentence of death. This declaration reflects the Government's intention to introduce legislation removing the death penalty from the statute books.
Second, with regard to Article 10, paragraph 2, which deals with the detention of accused persons, our reservation noted that while the Government accept the principles and implement them as far as practically possible, they reserve the right to regard full implementation of these principles as objectives to be achieved progressively.
Although every effort is made to keep remand prisoners separate from convicted prisoners and to achieve the segregation of juveniles from adults, the pressure on accommodation in recent years has made this difficult to achieve.
Third, with regard to Article 14, which concerns the right to legal assistance and to legal review and compensation for miscarriage of justice, the Government reserved the right to have minor offences against military law dealt with summarily in accordance with current procedures which may not, in all respects, conform to the requirements of the Article.
Ireland also made the reservation that the provision of compensation for the miscarriage of justice in the circumstances contemplated in paragraph 6 of Article 14 may be by administrative procedure rather than pursuant to specific legal provisions.
While the statutory procedures for the trial by court-martial of offences against military law conform to those contained in Article 14, except for paragraph 6 which is already the subject of a reservation, the procedures for the investigation and summary trial of offences (contained in sections 177 to 180 of the Defence Act, 1954) cannot be said to do so in all respects. Unless a capital charge or a charge of murder is involved, legal representation is not allowed at a preliminary investigation or at a summary trial. Furthermore, there is no right to review of conviction or sentence arising from a summary trial except in so far as is provided for in section 180. It was considered that the reservation was appropriate in the circumstances.
Paragraph 6 of Article 14 requires that a person whose conviction is reversed or who is pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice shall have a right to be compensated according to law. At present there is no such right in Irish law although it has been the practice to pay compensation in such cases on an ex gratia basis. In the absence of appropriate legislation it was considered prudent to enter a reservation under this Article.
The fourth reservation concerns Article 19, paragraph 2, which deals with freedom of expression. Here, the Government reserved the right to confer a monopoly on or require the licensing of broadcasting enterprises, because the State monopoly on broadcasting or broadcasting licensing systems might be regarded as contrary to the provisions of this Article.
The fifth reservation, on Article 20, paragraph 1 on the prohibition of propaganda for war, stated that Ireland accepts the principle of this provision and implements it as far as is practicable.
Nevertheless, having regard to the difficulties in formulating a specific offence capable of adjudication at national level in such a form as to reflect the general principles of law recognised by the community of nations as well as the right to freedom of expression, Ireland reserved the right to postpone consideration of the possibility of introducing some legislative addition to, or variation of, existing law until such time as it may consider that such is necessary for the attainment of the objective of the paragraph.
There is no existing provision of Irish law which prohibits propaganda for war. If legislation were introduced, a reservation might still be necessary unless propaganda for war in all circumstances were prohibited, as it is unclear whether this article outlaws all propaganda for war or only propaganda for war in contravention of international law. War is permitted by international law in certain circumstances, for example, in exercise of the right to self-defence (Article 51 of the UN Charter).
The extent to which the provision of Article 20, paragraph 1, is compatible with the right to freedom of expression guaranteed by Article 19 of the Covenant was also considered. A number of States have entered reservations to Article 20, paragraph 1, on the grounds that it is not compatible, while others stated that they did not accept the obligations set out in Article 20, paragraph 1.
The UN Human rights Committee has adopted general comments on Article 20 strongly expressing the view that the required prohibitions are fully compatible with the right to freedom of expression "the exercise of which carries with it special duties and responsibilities", and the text of Ireland's reservation takes account of this.
The sixth reservation is on Article 23, paragraph 4, which deals with the dissolution of marriage. Our reservation states that Ireland accepts the obligations of this paragraph on the understanding that that provision does not imply any right of spouses to obtain a dissolution of marriage.
Although the last sentence of paragraph 4, which reads "In the case of dissolution, provision shall be made for the necessary protection of any children", may be considered to be concerned solely with the situation which arises on the dissolution of marriage, without in itself implying recognition of any right to a dissolution of marriage, it was considered that the making of an interpretative declaration in relation to divorce would be prudent.
Finally, the Government made a reservation to the Optional Protocol to the International Covenant on Civil and Political rights to state that Ireland does not accept the competence of the Human rights Committee, established under the Covenant, to consider a communication from an individual if the matter has already been considered under another procedure of international investigation or settlement.
This reservation, which has been made by a number of other countries, ensures that the possibility of complaints being made to two separate international bodies in respect of the same issue will be avoided.
I thank the Minister for his detailed reply. Is it the intention of the Government to regard the reservations in relation to legislation as a legislative programme? In other words, are these reservations to be allowed stand? An interesting phrase used throughout the answer is "achieved progressively". Many people will say that means some time in the future. The question I want the Minister to answer is the one in relation to Article 19. As I understand it listening to the reservations mentioned, no reservation has been submitted by the Irish Government concerning the right of access to information and to transmit information in relation, for example, to abortion referral. In this regard I take it that any citizen who wishes to either transmit or receive such information would be perfectly within his or her rights as now recognised by Ireland.
Of course I agree with the thrust of the first supplementary question as we make legislative progress we will have to consider the question of removing the reservations which would not be necessary and which would be redundant.
With regard to the second part of the question as to why reservations on other matters were not introduced, if the Deputy gives me a list of the reservations he feels should have been considered, we will deal with that separately. The Deputy asked whether I would outline the reservations made in our recent signing of the Convention and the reasons for such.
Mr. M. Higgins rose.
I am sorry, Deputy. The time allocated for dealing with Priority Questions is exhausted. I am proceeding therefore, to deal with other questions.
Could I seek an opportunity to say the Minister missed his chance?
Am I wasting my time protesting?