Vol. 526 No. 1
91 Mrs. B. Moynihan-Cronin asked the Minister for Justice, Equality and Law Reform the reason for the delay in bringing forward legislation to incorporate the European Convention on Human Rights into Irish law; and if he will make a statement on the matter. [25761/00]
238 Mr. M. Higgins asked the Minister for Justice, Equality and Law Reform the present position in relation to the incorporation of the European Convention on Human Rights into Irish law. [22359/00]
I propose to take Questions Nos. 91 and 238 together.
In my written reply of 5 October 2000 to Parliamentary Question No. 13, I indicated that at its meeting on 21 September 2000, the Government approved of the drafting of a Bill to provide that, subject to the Constitution, and in so far as it is possible to do so, legislation should be construed and given effect to in a way which is compatible with the European Convention on Human Rights. In this connection, I refer both Deputies to the press release on the Government's legislative programme, which indicates that it is the intention to publish the incorporation Bill during this session. Every effort is being made to meet this commitment.
Will the Minister confirm that we are the last member state of the EU to implement in our domestic law the terms of the European Convention on Human Rights? Will he explain the inordinate delay in doing this? On a previous occasion the Minister indicated to the House that he favoured the indirect or interpretative model of incorporation of the convention. Will he indicate if the terms of the convention supersede domestic law? Will the rights afforded Irish citizens under the convention be an imperative on Ministers in the enactment of subsequent legislation?
It appears that Ireland was the first country to ratify the European Convention on Human Rights, while it may be the last to incorporate it in domestic law. The reason for that is the 1937 Constitution, which has been extensively interpreted by the courts, especially with regard to human rights. Some argue that it is more expansive and comprehensive than many conventions, including the European Convention on Human Rights.
I can only assume that because this country has what may be called a Bill of Rights, it was not seen as urgent for this jurisdiction to incorporate the convention. The Deputy is aware that it was open to any individual to bring his or her case to Strasbourg.
What about the question of transposition?
Will the Minister confirm that the main reason the convention has not been incorporated is because of an ongoing row between the Minister for Foreign Affairs and himself on what should be incorporated in the legislation?
On the question of the transposition of the convention, the Constitution would be measured against the convention and rights which are contained in the Constitution and would take precedence. I read of a row between the Minister for Foreign Affairs and me. I am not aware of any row. That exaggerates the situation. There was a perceived difficulty in my Department with the fourth and seventh protocols, which deal with the appeals process and the expulsion of non-nationals. These two issues had to be clarified before my Department could address their implementation. There was no row.
Does the Minister agree that this commitment was entered into as part of the Good Friday Agreement and that our failure to proceed with the implementation of the convention is a serious embarrassment to those of us who are pressing the British on the implementation of other sections of the Agreement? When the legislation is eventually introduced, will it include the right of fathers to custody of their children along the lines of the European model and will it include the right of children to have their views on being in the custody of either parent heard?
The convention contains a number of protocols and articles. Is it intended to include them all in the legislation? The issue raised by Deputy Currie is covered by Article 5 of the convention. There is an expectation on the part of parents' organisations, particularly Par ental Equality, that this issue will be dealt with. Will the Minister respond to that expectation?
Not all the protocols will be incorporated in the legislation but the majority will. The position on parental rights is given expression in the convention and my interpretation of the manner in which the convention is being incorporated is that, in so far as a law may be in contravention of the Constitution at domestic level, the Constitution would take precedence. This arises because otherwise the Judiciary might make a decision in a particular case which might subsequently oblige the Oireachtas to introduce amending legislation or to hold a constitutional referendum. It was felt that if the European Convention on Human Rights were directly incorporated into Irish law, that could ultimately result in the Judiciary supplanting the Legislature in terms of making legislation and that this would be unacceptable in a democracy.
