On a point of order, is this the briefing Deputy Howlin was anticipating?
European Convention on Human Rights Bill, 2001: Second Stage.
I move: "That the Bill be now read a Second Time." I hope this is constructive.
Do we vote on this?
No, not until the end.
I thought we voted on it.
It was agreed by the House during the Order of Business that the Bill would be taken now.
The main purpose behind the European Convention on Human Rights Bill, 2001, is to give effect in Irish law to certain provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms, more generally known as the Convention on Human Rights. The Bill also includes within its ambit the four main operative additional protocols to the convention which are still in force and which set out rights supplementary to those in the convention itself. For ease of reference, the texts of all these instruments are scheduled to the Bill. The Bill also contains a provision to amend the Human Rights Commission Act, 2000, so as to increase the number of members of the Human Rights Commission. This will allow the enlarged commission to be placed on a statutory footing immediately the Bill becomes law.
As Deputies may already be aware, the proposals in this Bill and, indeed, those which led to the setting up of the Human Rights Commission can be traced directly back to the provisions in the 1998 Good Friday Agreement on Northern Ireland relating to rights, safeguards and equality of opportunity. I shall return to this aspect later in my contribution.
The Convention on Human Rights was adopted by the Council of Europe in Rome and signed by the then Minister for External Affairs on 4 November 1950. Its provisions were later formally ratified by Ireland on 25 February 1953 and the convention entered into force for Ireland on 3 September that year. Ireland also accepted at that time the articles of the convention which permitted the right of petition by individual citizens and by states against states to the Court of Human Rights established by the convention to adjudicate on complaints of breaches of convention rights. It may be noted at this point that states generally were slow to take up this option and, at the time the convention entered into force, Ireland and Sweden were the only contracting states permitting such petitions. The United Kingdom, for example, only accepted the jurisdiction of the court in 1966 and France in 1981.
In general terms, the convention protects what are universally accepted as the basic civil and political rights in any democratic state. They are the right to life; the right to freedom from torture and inhuman or degrading treatment or punishment; the right to freedom from slavery, servitude and forced or compulsory labour; the right to liberty and security of the person; the right to a fair and public trial within a reasonable time; the right to freedom from retrospective criminal law and no punishment without law; the right to respect for private and family life, home and correspondence; the right to freedom of thought, conscience and religion; the right to freedom of expression; the right to freedom of assembly and association; the right to marry and found a family; the right to an effective remedy for violations of rights as set out in the convention and the prohibition of discrimination in the enjoyment of those rights.
In so far as the additional protocols are concerned, the 1952 protocol deals with property, educational and electoral rights; the fourth protocol contains, among other things, the right to freedom of movement and also prohibits the individual or collective expulsion of nationals; the sixth protocol deals exclusively with the abolition of the death penalty and the seventh protocol, which is in the process of formal ratification by the State, contains procedural safeguards concerning the expulsion of lawfully resident aliens, the right of appeal in criminal matters, compensation for wrongful conviction, the right not to be punished twice for the same offence and equality between spouses.
In deciding to sign up to these international obligations, an important consideration was that we were comparatively very well placed to ensure that we would be able to meet our obligations under them. As a nation, we are fortunate in being one of the few states to have a formal written Bill of Rights enshrined in our 1937 Constitution. Indeed, it has to be acknowledged from the outset that Ireland is unique among the member states of the European Union, and among the other signatory states of the convention, in having a written Constitution which embodies a system of fundamental rights chosen by the people, which are unalterable save by the wish of the people, and which are made superior and justiciable at the instance of the individual over all other law, both in theory and in practice. Our excellent human rights record before the Court of Human Rights in Strasbourg is due in no small measure to these factors.
The hallmark of our protection of fundamental rights in the Constitution has been their development by the superior courts through the doctrine of un-enumerated personal rights largely by means of judicial review of legislation. The drawing up of international human rights texts by the United Nations and the Council of Europe has also influenced that process. It can be said that the United Nations Charter signed in San Francisco on 26 June 1945 marked the emergence of international human rights awareness, in the aftermath of the atrocities committed during the Second World War. It was at this point in history that the need systematically to promote and protect human rights at the international level was fully recognised.
The statement or bill of rights envisaged in the UN Charter was later adopted by the United Nations in the 1948 Universal Declaration of Human Rights. This in turn led to that organisation drawing up two international covenants in 1966 dealing with civil and political rights on the one hand, and economic, social and cultural rights on the other. Running in parallel with these developments, often mirroring them and frequently overlapping them, was the adoption by the Council of Europe of the Convention on Human Rights in 1950, some two years after the Universal Declaration and, at later stages, the various additional protocols to the convention adapting and extending its text and scope.
An important consideration is the effective enforcement of international human rights standards is the relationship that exists in any given legal system between international law and domestic law. In some systems, for example, it is accepted that there is no real separation whatsoever between international law and domestic law. Both are regarded as being parts of a unified system, and it may even be the case in some states under this monist theory that the international rules take precedence over national provisions. Other systems, however, which adopt the alternative dualist theory – and Ireland is a case in point – regard international law and domestic law as totally separate, so that international law is not necessarily part of domestic law, unless it is explicitly made so. What this means in practice is that rules embodied in an international instrument such as the Convention on Human Rights, cannot be enforced in our courts unless and until it is incorporated into our law by an Act of the Oireachtas.
While the convention is law for Ireland, and is binding on it as an international treaty since 1953, its provisions do not actually apply directly in Ireland. That is because in keeping with the dualist theory that I have just mentioned, Article 15.2.1 of the Constitution reserves the sole and exclusive power of making laws to the Oireachtas alone, and Article 29.5.6 provides that no international agreement shall be part of the law of the State, save as may be determined by the Oireachtas.
This does not mean, however, that the convention is merely an academic source of rights. As I have said, Ireland was one of the first countries to allow its citizens the right of individual petition to the former Commission and Court of Human Rights to complain about alleged violations of civil and political liberties. The decisions of the Court of Human Rights in relation to any breaches of the convention's provisions by the State are binding, but under our constitutional scheme of things, it is the prerogative of the Government to decide precisely how any incompatible provision of national law or administrative practice may be reconciled with a ruling by the court. The introduction of the scheme of civil legal aid and advice and the amendments to the criminal law in the area of homosexual offences are just two examples where we took measures to comply with rulings of the court.
It may also be said that although the convention is not part of Irish domestic law, and may not be viewed as a code of legal principles which are enforceable in our courts, regard may still be had to its provisions, particularly when a court is considering or interpreting the nature of a fundamental right which may be argued to exist under the Constitution. However, at the moment while the convention is law for the State on the international plane, it is not law in the State and if a person wishes to vindicate a right under the convention, they must first exhaust all possible domestic remedies which may be availed of under national law before going on to plead their case before theCourt of Human Rights in Strasbourg. In practice this means that the matter must be argued on the basis that the right already exists in the Constitution – which may or may not turn out to be the position – and taken all the way to the Supreme Court.
The provisions in the Bill will alter that position fundamentally because it is designed to facilitate the bringing of cases involving alleged breaches of rights under the convention in Irish courts. In other words, it will make rights under the convention enforceable in Irish courts, and this means that cases of this type will be able to be processed much more expeditiously and with associated savings in legal costs and expenses, than under the present arrangements. The other advantage of the Bill is that Irish judges will be able to apply the benefit of the Strasbourg court's jurisprudence in the domestic situation and, in turn, their application of convention rules in the State will be capable of being considered by that court.
That then is some of the background to the convention and its existing position within the Irish legal and constitutional framework. I would now like to move on to the reasons the Government has decided to propose that further effect should be given to the rights provisions of the convention in our domestic law or, as it is sometimes referred to, the process of incorporating the convention in the sense of amalgamating, combining or merging those provisions into our law.
This whole matter was recently considered in depth by the Constitution Review Group in its 1996 report. In the specific context of the possible incorporation of the convention directly into the Constitution, and having carefully considered the merits and demerits of such a proposal, the group came to the conclusion that the convention should not be directly so incorporated on the grounds that there is already a very high degree of overlap between the Constitution's guarantees in the area of fundamental rights and the provisions of the convention. Furthermore, the group was of the opinion that this form of incorporation could very well lead to a diminution in some individual rights in the Constitution. They also believed incorporation in the Constitution would not have the effect of filling in any gaps in human rights protection, since every substantive right afforded by the Convention is either expressly protected by the Constitution, or has already been recognised as an unenumerated right by the Supreme Court under Article 40.3.1. The group also thought that incorporation might lead to new gaps in protection in fundamentally important areas, such as the right to trial by jury.
Since the enactment of the Constitution in 1937, Irish courts have been working within a system of judicial review of legislation which confers on them far reaching powers. Under these statutory provisions statutory instruments and common law rules may be struck down as being repugnant to, or inconsistent with, the Constitution. It is against this background, almost unique in the common law jurisdictions, coupled with the fact that incorporation of the Convention by other States without written Bills of Rights, or lesser systems of constitutional protec tion of human rights, have not been that effective or transparent, that the view was taken that it was preferable in our case to leave the Convention as a source of non-cognisable and non-justiciable rights in the strict sense.
The Constitution Review Group pointed out that if the Constitution's method of recognising and protecting fundamental rights was advanced for its time, the experience since it was enacted showed that there were some flaws and there was a need for revision. The reasons which the group identified were that the list of rights protected by the Constitution is by contemporary standards incomplete. While the development of the unenumerated personal rights doctrine has proved in many respects to be beneficial, no real guidance is offered to the judiciary as to what these personal rights are. Another difficulty was that some rights are described in absolutist terms while others are highly qualified. The recommendation of the group was for ongoing reform of the Constitution to take account of modern human rights norms, based on its preliminary audit. However, it left the main task of identifying all of the precise areas where changes might be required to another body, suggesting that the All-Party Oireachtas Committee on the Constitution might undertake the work.
Irrespective of the means by which the Convention could be given further and better effect in Irish law, the main issue to be decided was whether there were compelling reasons to depart from the status quo which had demonstrably served us well in achieving a delicate balance as between constitutional protection and its associated jurisprudence for over 60 years on the one hand, and the more specific provisions of the Convention as developed by the Court of Human Rights on the other. The need for such delicate balancing led to the whole matter being reconsidered in some detail, including the possibility of making the Convention effective at the legislative rather than the constitutional level. This was done on foot of the commitment by the Government in the 1998 Good Friday Agreement on Northern Ireland to bring forward measures to strengthen and underpin the constitutional protection of human rights in the State, which would draw on the provisions of the Convention on Human Rights.
Under the Agreement, any measures to be brought forward in this connection are to ensure at least an equivalent level of protection of human rights as will ultimately pertain in Northern Ireland in the light of the ongoing developments on human rights there. It is relevant to the Government's examination of the matter that the United Kingdom had already decided, through the medium of the 1998 Human Rights Act, to give further and better effect to the Convention throughout its constituent jurisdictions, particularly in Northern Ireland, fully from 2 October 2000.
In practical terms, two options were considered in detail by the Government in the matter. One was simply to provide that the Convention should have the force of law in the State. This formula has already been followed in the case of some international Conventions like the Lugano Convention and the Hague Convention on Child Abduction. This solution might appear at first sight to be the neater for a State which already had a sophisticated approach to human rights protection at the constitutional and judicial levels. In fact, it was initially considered – as the anticipatory provision in section 11(3)(b) of the Human Rights Commission Act, 2000, illustrates. On deeper analysis it became apparent that such an approach might have the capacity to interfere with one of the central pillars of the Constitution, namely the doctrine of the separation of powers.
The other option was to avoid as much as possible any risk of possible interference with the legislative supremacy of the Oireachtas or the judicial supremacy of the Courts and to provide that, subject to the Constitution, statute law and rules of common law should be interpreted in a manner consistent with the State's obligations under the Convention. Statutory powers and the exercise of public law functions by State agencies should also be carried out in a manner which will conform with the Convention. Such an approach would be broadly similar to that adopted in the United Kingdom in the 1998 Human Rights Act, which seeks to avoid as far as possible any conflict with the doctrine of sovereignty of Parliament in much the same way as the Government wishes to avoid any conflict here with the authority of the Oireachtas. The Government opted for this latter form of interpretative incorporation as being the most appropriate. The provisions of the Bill are designed to ensure there will be two complementary systems in place in Ireland for the protection of human rights and fundamental freedoms. The superior rules under the Constitution will take precedence, in full harmony with the State's dual doctrine on giving effect to international obligations and the primary role of the Oireachtas in that regard.
I will go through the principal features of the Bill in a general way. Section 1 provides for the definition of certain terms used in the Bill. These definitions, by listing the applicable Convention provisions and by detailing the organs of State to which the provisions will apply, are the yardsticks for the implementation of the Convention. This section provides that "Convention provisions" includes Articles 2 to 14 of the Convention and the four main operational protocols to the Convention as previously mentioned. Article 1 of the Convention is not included in this definition for the simple reason that, in conjunction with our signature and ratification of the Convention and our acceptance of the jurisdiction of the Court of Human Rights, the purpose of the Bill as a whole is to give further effect to the obligation in that Article on each contracting State to secure for everyone within its jurisdiction the rights and freedoms as set out in the Convention. I wish to highlight the fact that Article 13 of the Conven tion, which deals with the right to an effective remedy for breaches of the rights under the Convention, is included within the definition. In this respect, we are going somewhat further than the UK which omitted this Article from the scope of its legislation.
The section also provides for a definition of organ of the State. It includes tribunals or any other body – other than the President, the Oireachtas, either House of the Oireachtas, a committee of either House, a joint 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 are excluded from the definition on the basis that they are already under a duty to administer justice in accordance with the law and the Constitution. The definition of organ of the State is drawn as widely as possible to ensure that the maximum number of organisations will be embraced by it.
Section 2 establishes the framework through which further effect is to be given to the provisions of the Convention. This section provides that any statutory provision as widely defined in section 1 and any rule of law shall be interpreted, in so far as possible, in a manner compatible with the State's obligations under the Convention. Section 3 imposes a positive obligation on organs of the State as they are defined in section 1, subject to any statutory provision or rule of law, to perform their functions in a manner compatible with the State's obligations under the Convention. The section also establishes the first of two possible remedies provided under the Bill for alleged breaches of Convention rights.
The first remedy arises where a person has suffered injury, loss or damage as a result of a breach by an organ of the State, then the person may, if no other remedy is available, institute proceedings in either the High Court or the Circuit Court to recover damages arising from such a loss. In proceedings before the Circuit Court the amount of damages payable is limited to the monetary jurisdictions of that court. While such proceedings must be brought within one year of the alleged breach, on the basis that such proceedings would have considerable importance for the administrative functions under attack, and it would be preferable, therefore, for any claims to be brought as expeditiously as possible, this limitation period may be extended at the discretion of the court where it considers it appropriate in the interests of justice.
The effect of section 3 is to provide that damages will be awardable in a case where an organ of the State commits a breach of the convention, unless the body in question could not under the law of the State have acted differently. Where this is the case, it will be a matter for consideration as to whether the statutory provision or rule of law with which the organ of the State was complying could be found to be incompatible with the convention under the provisions of section 5 which I will outline shortly.
Section 4 provides a statutory aid for the interpretation of the provisions of the convention and the relevant protocols thereto, to which further effect is being given in the Bill. This will allow the courts to examine the interpretation of the convention's provisions by the European Court of Human Rights, the former European Commission on Human Rights and the Committee of Ministers of the Council of Europe, and to take their interpretations into account.
Section 5 provides for the second of the remedies under the Bill for alleged breaches of human rights. Where the High Court or Supreme Court, on appeal, decides in any case that it is not possible to interpret a statutory provision or rule of law in a way which is compatible with the convention and where there is no other legal remedy adequate and available, the court may, either on application by the injured party or of its own motion, make a declaration that the provision or rule of law is incompatible with the provisions of the convention. Such a declaration will not affect the validity, continuing operation or enforcement of the statutory provision or rule of law which may be found to be incompatible with the convention. This has to be the position because of the primary law making role assigned to the Oireachtas under the Constitution. It will then be a matter for the Government to consider what steps should be taken to remedy the particular incompatibility in question. This situation is similar to that which obtains when the Strasbourg court rules that a provision in Irish law contravenes the convention.
Section 5 also requires that where a declaration of incompatibility is made, the Taoiseach is required to lay a copy of any order containing a declaration of incompatibility before the Houses of the Oireachtas within 21 days of the making of that order. The purpose of this provision is to provide a mechanism to ensure both Houses of the Oireachtas are notified as to the making by the court of a declaration of incompatibility.
The Bill also creates a new compensatory scheme under section 5, whereby, following a declaration of incompatibility by the courts, the injured party may apply to the Government, through the Attorney General, for anex gratia compensation payment in respect of any loss, injury or damage suffered as a result of the incompatibility. The reason any such payment would be made by the Government and not the courts is that the courts could not award damages where there is compliance with a statutory provision or rule of law which, while incompatible with the convention, remains constitutionally valid. In the absence of such a compensation scheme, the injured party seeking damages may be faced with the prospect of taking the case to Strasbourg, citing the State for failure to provide a full and effective remedy. Clearly such a state of affairs would be inconsistent with the principle underlying the Bill to give further effect to the convention in national law by enabling cases to be taken and remedies obtained before national courts in respect of violations of the convention.
In making such payments the Government may appoint a person to provide advice as to the quantum of damages, if this is going to be the case, to be paid to the injured party. Where the Government considers that it may be appropriate to make such payment, the provision is also made for the adviser, in advising the Government, to take account of the principles and practice of the Court of Human Rights in affording just satisfaction to an injured party under Article 41 of the convention.
Section 6 is a technical mechanism providing for the Attorney General to be given notice of proceedings in which a court may make a declaration of incompatibility and provides that the Attorney General shall be entitled to appear in any such proceedings. The purpose of this provision is to ensure before a court makes its decision on such a fundamental matter the Attorney General can bring to its attention all constitutional and legal arguments which may be relevant to the issues before it. The Human Rights Commission, if it so wishes, will be able to apply to the court to be heard in the matter asamicus curiae under its existing function as listed in section 8(h) of the Human Rights Commission Act, 2001.
Section 7 provides for technical amendments to the Human Rights Commission Act, 2000, to take account of the increase in the membership of the commission from the nine commissioners specified in the Act to the 15 appointed by the Government. I shall say more about this matter.
The section also provides for an amendment to section 11 of the Human Rights Commission Act, 2000, to enable the commission to institute proceedings in any court of competent jurisdiction for the purposes of obtaining relief of a declaratory or other nature in respect of matters concerning the human rights of a person or persons under the Bill when enacted and in force as the European Convention on Human Rights Act, 2001. This amendment is required because the convention would not be embraced within the existing definition in the section as it is not a treaty being made part of the law of the State. The existing provision in subparagraph (b) is being retained as it may be relevant to certain areas of the commission's work and will enable the commission to take proceedings in the future if the Government of the day decides that any other human rights instrument is to be given force of law in the State.
The Government is concerned to ensure, commensurate with the need for a full debate in the Oireachtas on the Bill's main provisions, the Human Rights Commission should be placed on a full statutory footing as soon as possible and definitely before the end of the present parliamentary session. I am aware the commission has been working in an interim capacity for some months and compliment its president and the other commissioners on the progress they have made so far. I indicated on a number of occasions that I would take the first available legislative opportunity to place the enlarged commission on a statutory footing. This Bill is that opportunity.
Section 8 is a standard provision providing for the payment of any expenses arising under the Bill out of moneys provided by the Oireachtas. Section 9 provides that the Bill may be cited as the European Convention on Human Rights Act, 2001, and for a commencement period of six months.
The idea that people have rights simply by virtue of their humanity is almost as old as humanity itself. It can be traced back through the political and legal theories of the natural law philosophers to the foundations of Roman law and, perhaps, even back to the philosophy of ancient Greece. In more modern times a dramatic shift of emphasis occurred in the crucial period leading up to the American and French revolutions which had the effect of moving these scholastic and theological theories into propositions which were intended to have the force of law.
I knew the Minister would mention the French Revolution.
Its effects were never felt in Kilgarvan.
The French Declaration of the Rights of Man and the Citizen and the American Declaration of Independence are the foundation texts in this regard with respect to those civil and political rights which are now universally accepted as fundamental.
The framework proposed in the Bill acts as a bridge between the Constitution and the convention, thereby enabling future development of Irish case law to be informed by both instruments. The Bill also facilitates cross-fertilisation of ideas and jurisprudence and ensures the rights as enshrined in the Constitution are informed by international developments. It also affords an opportunity for our jurisprudence to influence the future evolution of human rights jurisprudence in Strasbourg and beyond. The provisions of the Bill will ensure there are two complementary systems in place in Ireland for the protection of fundamental rights and freedoms, with the superior rules under the Constitution taking precedence, in accordance with the State's dualist doctrine on the giving of effect to international obligations and the mutually exclusive roles of the Oireachtas and the Judiciary in that regard.
I commend this Bill to the House and look forward to an interesting and worthwhile debate on its provisions.
It will be a truncated debate.
I propose to share time with Deputies Fitzgerald and Barnes.
The Deputy is sharing time with Deputies Fitzgerald and Barnes.
The Bill presented to the House by the Minister is fundamentally defective and flawed. The Minister made reference to the Good Friday Agreement, on foot of which, in April 1998, the Government undertook to strengthen the protection of human rights in this jurisdiction and indicated that measures would be brought forward here which would, at least, be equivalent to the level of protection of human rights in Northern Ireland. A commitment was made to incorporate the European Convention on Human Rights into Irish law. Ireland is the last of the 41 signatory countries to the convention to incorporate it into domestic law. The UK legislation was enacted in 1998 and became fully operational throughout the United Kingdom, including Northern Ireland, on 2 October 2000.
The Minister has been extraordinarily negligent in bringing forward the legislation to implement the commitment we made in the Good Friday Agreement. Unfortunately, the legislation as brought forward does not even measure up to the legislation passed by the United Kingdom Parliament.
The Minister brought before the House legislation to provide for the establishment of our domestic human rights commission. This was the Act of last year. In an extraordinary act of political incompetence and sabotage, the Minister ignored the provisions in his legislation and chose to appoint to the commission a variety of individuals who did not feature among those recommended to the Minister for appointment by the committee established to suggest nominations. As a consequence, we have had for the past six months a commission on human rights unable to fulfil its statutory functions with the Minister proposing to nominate additional members to it way beyond the numbers permitted within his own legislation so that he can appoint to the commission many of those people whose names were previously recommended to him and which he ignored.
This issue and problem should never have arisen in the first place. By way of an afterthought, the Minister now seeks in a section in the Bill to extend membership of the human rights commission to include the additional members he wishes to appoint to it having made a shambles of this issue in an extraordinary piece of political incompetence endorsed by the Government last December. If the Minister insisted on making additional appointments, there was nothing to stop him introducing a simple one-section Bill to amend the Act of last year and bringing it before the House in January or February last to have it enacted. It took the Minister until April of this year to publish the Bill with this provision included in it. He regards human rights as such a great priority that, having published the Bill in early April, we are only beginning the debate on Second Stage in a truncated and guillotined form. The manner in which our domestic human rights commission has been treated by the Minister is a disgrace and is regrettable.
I note the Minister did not inform us whether the additional members whose names became public knowledge and who we understand he intends to appoint to the commission have all accepted his offer of appointment. That remains a matter of mystery and the House is entitled to know the answer to that.
I want to deal with some of the specific issues which arise under the convention. As a matter of principle, the Fine Gael Party supports the incorporation of the human rights convention into Irish law. Our difference with the Government is the approach taken in the Bill which is minimalist and designed to ensure we do not go any further than the minimum distance required to allow the Minister to portray the Government as having lived up to its Good Friday obligations.
Section 2 is a central provision in the Bill. Section 2(1) states:
In interpreting and applying any statutory provision or rule of law, a court shall, in so far as is possible, subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State's obligations under the Convention provisions.
The Minister has explained his approach to the Bill as being based on advice he has received concerning the issue of the separation of powers. The advice appears to be that courts should be allowed to make declarations that legislation is incompatible with the convention but should not of themselves be able to strike down statutory provisions which are incompatible with the convention. In effect, we will create a situation within the legal system where a court may make a declaration that a statutory provision is incompatible with the convention but, nevertheless, be required and compelled to apply that statutory provision to the resolution of a dispute between individuals in a case in which the incompatibility is pronounced and in future cases until such time as the legislation is changed. That type of approach will bring the courts system and the Judiciary into disrepute and will undermine the public credibility of the State's commitment to human rights as contained in the European convention.
A fundamentally different approach should have been adopted which would have done no damage to the Constitution, would have copperfastened our respect for the European convention and would have ensured that, in so far as incompatibilities exist between the Constitution and the European convention, they would have been highlighted in a clear and coherent manner should they have arisen in the context of any litigation in the courts. The approach which should have been adopted as opposed to the approach contained in section 2 would be to provide that statutory provisions or rules of law should be amended to the extent that they violate provisions contained in the convention subject to the overriding authority of the Constitution. That would have effectively meant a court which made a declaration that a statutory provision was incompatible with the Constitution would not have been obliged to enforce that statutory provision. That provision, by virtue of such decision, would have ceased to be applicable in future as a determining legal provision with regard to domestic legal disputes involving individuals or the State. The only proviso to it would be that the court, in making the decision on incompatibility, would have to be compliant with the constitutional provision.
The suggestion is that, if the courts were to override legislation, it would in some way violate the concept of separation of powers and the position of Members of the House as legislators. The reality is that courts regularly override statutory provisions where they are found to be unconstitutional. The House regularly enacts legislation which supersedes existing legislation. On occasion, Acts have been passed by the House with a broad section contained in them to the effect that, where there is a provision in existing legislation inconsistent with a provision in the Act, it is the later legislation which applies. A catch-all section of that nature has, on occasions, been inserted in legislation we have enacted. There is no reason this Bill should not have provided that the European convention and the rights under it take precedence over statutory provisions and that, if there is a court declaration of incompatibility, any statutory provision incompatible with the convention will cease to be enforceable, subject to the overriding rights individuals have under the Constitution.
The Government, however, has sought to go a different route. It is my contention that it is the wrong route and that it is applying the wrong principles. What we are doing, which is extraordinary in the context of the number of the years the State has asserted its independence, is slavishly following the approach taken in the legislation enacted by the United Kingdom Parliament, except that, in some respects, that legislation, when it comes to declarations of incompatibility and ensuring compliance with the European convention, is broader than this legislation.
In the Bill the courts are excluded from the organs of the State required to comply with the European convention. Why should they not be required to comply with the European Convention on Human Rights? The United Kingdom courts are required to do so. In other words, in the context of the Good Friday Agreement, the citizens of Northern Ireland have greater protection in their domestic law under the Human Rights Act, 1998, as passed by the Westminster Parliament than the citizens of this State will have under this measure.
The provisions of the Human Rights Act, 1998, are far broader in their application to public authorities. In the context of it being unlawful for a public authority to act in a way which is incompatible with a convention right, section 6 of the Human Rights Act, 1998, says the concept "public authority" includes first, a court or tribunal – our Bill includes a tribunal but excludes a court – and second, any person, certain of whose functions are functions of a public nature, but excluding the Houses of Parliament. All sorts of functions of a public nature undertaken by persons of legal identity will fall outside the provisions of this Bill as it is currently drafted. Again, the citizens of Northern Ireland will have greater protections than the citizens of this State. The Minister has not explained the reason for this.
Section 3, which the Minister referred to as one of the sections under which a citizen of this State may obtain compensation for breach of the European Convention on Human Rights contains a provision which, again, slavishly follows the United Kingdom legislation. It provides that where there has been an acknowledged violation of convention rights in circumstances where the violation is not required by an existing statutory provision, an application for compensation can be made. Why can that application for compensation only be made within one year from the time when someone's rights are violated. There is a proviso that the period of one year in considering seeking compensation may be extended by order of the court, if the court considers it appropriate to do so in the interest of justice. However, on the basis of any basic civil action which can be brought, the statute of limitations currently prescribes a limit of three years in certain types of actions and a limit of six years in others. Where there is a violation of constitutional rights there is no limit at all. If there is to be a limitation period why should it not be three years? Why should someone whose rights are violated by an organ of the State in circumstances where that violation of rights was not required by statutory provision and who only discovers that his rights have been violated two years after the event, be excluded from seeking compensation? Why should such a person have to seek the special permission of the court to seek compensation and what principles would the court invoke in applying the concept of "in the interest of justice"? We do not know the answers to any of these questions. The one year period should be three years.
Earlier, I contended that if we are serious about what we are doing our courts should not be required to apply statutory provisions to the outcome of litigation in circumstances where they are incompatible with the convention. In section 5 we are told:
In any proceedings, the High Court, or the Supreme Court when exercising its appellate jurisdiction, may, having regard to the provisions of section 2, on application to it.where no other legal remedy is adequate. make a declaration.that a statutory provision or rule of law is incompatible with the State's obligations under the convention provisions.
Why should a declaration of incompatibility be confined to the High Court or Supreme Court? The Government has plans, in the Court and Court Officers Bill, to confer an enormous additional jurisdiction on the Circuit Court. The Bill will extend the jurisdiction of the District Court. The Minister should tell us what is the District or Circuit Court to do in litigation in which it is drawn to the attention of a District or Circuit Court Judge that making a decision might be incompatible with the convention?
In the United Kingdom legislation where litigation takes place in the courts, the courts are under a duty to consider whether the issue to be determined is relevant to the convention and whether issues concerning the convention should be brought into consideration. The courts have an independent duty to be aware of the provisions contained in the convention and are required to ensure that in administering justice, even if the lawyers representing individual litigants before the court or the litigants themselves do not refer to the convention, they do nothing which is contrary to the convention and the cases determined under it. Why is that provision excluded from this Bill? I do not understand why that is or why the citizens of Northern Ireland should have greater protection in that regard than the citizens of this State.
In the context of what should happen following a declaration of incompatibility, the Government has included an extraordinary provision. If the courts make a declaration of incompatibility it means they have declared that someone's rights under the convention have been violated. However, the court which makes that declaration is not permitted to determine what compensation, if any, should be paid to the individual whose rights have been violated. It is interesting to note that the chairman of the Human Rights Commission, Mr. Justice Donal Barrington, a former Judge of the Supreme Court has dealt with this issue. Mr. Justice Barrington, addressing the provisions of the Bill at a recent conference, raised the question:
Is it constitutional to have a decision where Parliament defines rights, the courts find that these rights are violated but cannot order compensation? This Bill needs a large measure of thought before it is passed by the Dáil. It is regrettable that we have adopted the British model of administrative option rather than legislative option.
Not only have we adopted the British model of administrative option for dealing with the issue of compensation, the Minister is proposing a model which, of itself, violates the concept of separation of powers, further undermines the position of our courts in the constitution and seeks to confer on the Attorney General and the Government an adjudicating power in determining issues of compensation for violation of rights under the European Convention on Human Rights. We have now an Attorney General who wants to take to himself all sorts of powers which previous Attorneys General have not sought, who wants to exercise a personal veto on who might in the future be appointed to the judiciary, regardless of what the commission which is supposed to vet the qualifications of those who seek judicial appointments recommends and who believes he should determine what compensation should be paid to those whose rights are violated under the convention.
Section 5(4) says that where a declaration of incompatibility is made, a party to the proceedings may make an application in writing to the Attorney General for compensation in respect of an injury or loss or damage suffered by him, and if the Government "in their discretion" considers it appropriate to make anex gratia payment to that person the Government may request an adviser appointed by it to advise it of the amount of such compensation, if any. The Government may then, “in their discretion”, make such payment.
What does that mean? If my rights are violated under the convention I may write to the Attorney General and say I think I should be compensated. The Attorney General, rather than the court, may say that maybe I should or maybe I should not. He may then appoint an adviser who will advise on what compensation might be paid. If this adviser gives advice it can be entirely ignored by the Government, varied, amended, changed or implemented.
Who is the adviser? Will it be a civil servant in one of the Departments or a friendly solicitor or barrister nominated to deal with the issue? What criteria will be applied in determining who is eligible to be appointed as adviser and what fee the adviser will be paid for the advice forthcoming? This proposal not only undermines the position of our courts in a constitutional system but also confers a function on the Attorney General that he should not exercise and a compensatory power to determine issues of damages on Government which violates the constitutional powers of the courts. It will result in Government taking unto itself a function excluded from it within our constitutional system. This is a deeply flawed Bill that should not have been brought before the House in this form. The Bill requires radical change by amendment and Fine Gael will be proposing such change on Committee Stage.
A number of other provisions need to be addressed in greater detail, such as the Attorney General's rights should a case be taken to the European Court for this State's alleged violation of the Convention on Human Rights and the entitlement of the Attorney General to contend that this State is in compliance with the convention even in circumstances where the High Court or Supreme Court have already declared a legislative provision to be incompatible with the convention.
Because of the deep-seated flaws in the Bill, the wish of the Fine Gael Party to see a much more inclusive measure enacted that truly gives effect to the European Convention on Human Rights and the appalling and scandalous manner in which the Human Rights Commission has been treated by the Government, Fine Gael will be voting against the Bill.
The enactment of human rights legislation is an issue of the utmost importance, and the manner in which it is handled is critical. In that context, it is extremely disappointing that Fine Gael finds itself unable to support this legislation. The fact that we find ourselves in such a position today is an appalling reflection on the approach which the Government, particularly the Minister for Justice, Equality and Law Reform, has taken towards the establishment of the Human Rights Commission and the incorporation of the European Convention on Human Rights into domestic law.
The Minister should seriously consider the detailed critique which Deputy Shatter has made of the legislation. He should also seriously consider amendments on Committee Stage. I hope that Deputy Ardagh, who is Chairman of the Select Committee on Justice, Equality, Defence and Women's Rights, has been listening to the detailed critique which has been made during the debate. It needs to be seriously addressed when this legislation comes before the committee.
When the history of the establishment of the Human Rights Commission is written and when we look back over what has happened, I am afraid that some very serious issues will have to be reflected upon. The importance of having a strong Human Rights Commission in any country cannot be underestimated and neither can the importance of having a strong Human Rights Commission in this country. It arises in part from commitments given under the Good Friday Agreement, the North-South dimension of which is critical. The history of human rights in this country should have taught us much about the importance of having a strong and independent Human Rights Commission. The Human Rights Commission should have been in a position to comment on the European Convention on Human Rights and its integration into Irish law. However, the commission does not find itself in a position to do that because in this legislation we are also dealing with the mishandling of the original establishment of the commission.
As of now, therefore, the commission has not been properly established and because of its legal status it is not in a position to comment on the Bill we are debating. As Deputy Shatter said, however, Mr. Justice Donal Barrington has made some comments on it. Any reading of what he has had to say should give the Minister and his Department cause for serious concern. The Minister should reflect on the Bill's contents because Mr. Justice Barrington, who is a very experienced judge, has raised the most serious issues concerning the detail of the legislation and its implications for the courts, not to mention the implications for the individual rights of citizens, because of the way in which the Minister is incorporating the European Convention on Human Rights into Irish law through this Bill.
Another question that arises is the extraordinary difficulty the Human Rights Commission, although appointed, has had in operating during recent weeks. For example, it was to meet with the equivalent body in the North but a question arose about the status of that meeting and whether it could proceed. We put the Human Rights Commission into a situation where, because of the mishandling of its establishment in the first place, its raison d'être and ability to work in recent months have been seriously undermined. What way is that to establish a Human Rights Commission and what way is that to begin its work?
A group of people who were chosen by the original selection committee under Dr. Whitaker were left out of the commission. All the NGOs, including groups such as the Irish Council for Civil Liberties and Amnesty International, were seriously concerned about the initial approach that was taken. The Minister attempted to get the Opposition parties to support his approach, which was incorrect. He then reviewed his original decision, decided to change it and brought forward legislation. He delayed bringing forward the legislation, however, to place the commission on a statutory footing and has now incorporated it in this Bill which is incorporating the European Convention on Human Rights. Both measures are being brought in together but the Opposition parties have been requesting for months that the Human Rights Commission should have been dealt with in a separate Bill. This would have corrected the original decision to establish the commission without taking on board those who had been recommended by the selection committee. That would have been a more appropriate approach and would have given the commission the statutory authority to do its work and to comment on relevant legislation.
Instead, as Deputy Shatter has clearly outlined, there is a badly based and poorly thought out attempt to incorporate the European Convention on Human Rights into Irish law. The approach adopted can compromise our courts, puts decision making on human rights where it should not be, takes it away from a real interpretation of what the convention means and takes it back to arbitrary decision making by the Government to determine compensation levels. It seems to be a very weak-willed approach to human rights and an attempt to water down the importance which the convention could have provided through the courts for Irish citizens.
All in all, the Bill represents an extraordinarily weak approach to the furtherance of human rights. It is very disappointing. It is clearly a missed opportunity to strengthen both the commission and the future of human rights. It is a poor reflection on the Government's approach to this legislation.
I wish to share my time with Deputy O'Sullivan and Deputy Barnes who is Vice-Chair of the Select Committee on Justice, Equality, Defence and Women's Rights.
Is that agreed? Agreed.
I regret that so many of us who wished to speak at some length on a matter of fundamental importance find ourselves having to truncate our remarks to meet an arbitrary timeframe. That is a bad way of dealing with important business in the House. I am surprised and disappointed the Minister, who I believed had some regard for issues such as human rights, would treat this House, particularly the Opposition, in this way. It is not a good way of doing business.
The issue of human rights is fundamental and should be a bridge builder across this House. With few if any exceptions the thrust of agreement on these matters that has been built up in the House would allow us to develop a consensus on matters such as this. I have sought clarity from the Minister in regard to these matters on a daily basis for the past week because it involves two separate issues. The first is rectifying the bad job made of establishing the human rights commission on a statutory basis and the second is transposing the European Convention on Human Rights into Irish law. The convention has been around for a long time and following the wind of fresh air that permeated public thought and political discussion in Ireland in 1998 during the negotiation of the Good Friday Agreement its transposition into enforceable law in this jurisdiction and in Northern Ireland, and by extension the United Kingdom, and the rights afforded to the broad European citizenry under it were highlighted.
The Minister has made a bags of it instead of rectifying the deficiencies that were readily identified at the end of last year in the human rights commission legislation and making sure members of the commission were not further insulted. Simple, amending legislation could have been introduced that would have had the full support of Members. I have made that offer repeatedly on the Order of Business. The Minister gave some consideration to it and to taking a different, more considered approach to the transposition into domestic law of the terms of the convention.
I am invariably frustrated dealing with the Minister and the Department. They use impenetrable justice speak whenever they produce a speech. I am fearful the Minister is, four years on, a captive of the Department. There is a definite shelf life for anybody working in the Department and the Minister has gone well beyond it.
Is the Deputy saying the Minister is past his sell-by date?
His sell-by date is well expired. His best before date is probably the most current phraseology.
I did not feature in the list of the top 100 legs yesterday.
The phrase "do not display after" is more apt.
The Minister's contribution needs to be unravelled and I will refer to three areas, the debacle concerning the human rights commission, the history of the legislation, including the Good Friday Agreement, and the method of transposition of the convention and our record on human rights. The Minister referred to states generally being slow to take up the option of transposing the convention into legislation in their own jurisdictions. He cited the United Kingdom, which only accepted the jurisdiction of the European Court on Human Rights in 1966, to bolster this argument but we are getting around to it much later than that.
Deputy Shatter outlined a very good analysis of the method of transposition of the legislation, with which I agree entirely. By design, a minimalist approach has been taken. It is designed to ensure there is an extraordinary mechanism in place to half vindicate rights enunciated in the convention for Irish citizens. The Minister stated in a dense, impenetrable paragraph: "The view was taken that it was preferable in our case to leave the convention as a source of non-cognisable and non-justiciable rights in the strict sense."
That is correct.
Let us get out the Oxford English Dictionary. That statement means rights are not enforceable and courts cannot say that one has a certain right under the convention, which has been violated by act of an institution of the State and should be struck down. However, this justice speak is dressed up to pretend something else is the case.
The Constitution Review Group stated that, not the Department.
It is incumbent on the Minister to speak to the House in plain English and say he is not transposing the European convention in plain rights terms into basic statute law in this State. Why is that the case?
The Minister stated some international conventions like the Lugano convention and the Hague Convention on Child Abduction could be transposed into Irish law but this convention will not be because of the doctrine of the separation of powers. That is justice speak for an entirely different concept. By this, the officials in the Department mean that by protecting the doctrine of the separation of powers it will be ensured that judges of the High Court will keep their noses and fingers out of the Department's affairs so that fundamental rights will not be demanded by courts. It also means that courageous and honourable judges, such as Mr. Justice Peter Kelly, who repeatedly underscores the deficiencies of public administration in vindicating rights of citizens, will not be given any extra powers to trespass on the fiefdom of independent Departments that might vindicate for citizens rights that these Departments and Governments co-operate on and contrive to deprive them of. That is the argument contained in the phrase: ".one of the central pillars of the Constitution, doctrine of the separation of powers". The intention is to keep to a minimum the enforceable rights of citizens to rights established under the European convention.
I am disappointed the Minister has bought that line and that he does not have the courage to say that we will risk it because we are in a new era where not only is there a new recognition of fundamental rights, but there is a new economic framework within which the State has the wherewithal to give fundamental rights capable of being enforced through to the courts to marginalised, vulnerable people. That is not to be case. Minimalist transposition will be the method used and it is on a par with the minimalist view taken in the United Kingdom. However, as Deputy Shatter correctly pointed out, it does not even go that far.
The Minister indicated yesterday that there would be an extended Committee Stage debate on all these matters. We will engage with him as regards our views then but in the meantime he has, by insisting on this flawed transposition process and coupling with it the rectification of the flaws in the Human Rights Commission Act, 2000, ensured the Human Rights Commission, which has been established for many months, will not have statutory authority, probably, until the next Dáil session in the autumn. That is not only a great pity but an abdication of duty by the Minister for Justice, Equality and Law Reform. I said that to him when I offered, on behalf of this party, a swift and easy passage of that tidy up legislation. He has chosen instead to couple it to an unpopular set of proposals which will, by necessity, take considerable time to process through committee. That is regrettable and bad judgment by the Minister.
Other Members indicated the views of the president of the Human Rights Commission on this Bill. He is a distinguished jurist and a former Supreme Court judge whom we selected and the Minister endorsed to be the president of the Human Rights Commission – the first such office holder. We must start as we mean to continue. If we do not have respect for his views on human rights issues, what point is there having a commission or the exalted title of president? He said publicly that the Bill was regrettable and ill-thought out. He went into detail, which I will not quote because Deputy Shatter quoted it and my time is limited, about the identifiable deficiencies in the transposition and how it will affect the rights of citizens of this State to have their full European convention rights vindicated. I will hold most of my powder dry in the time I have left on this matter for another day.
Unfortunately, the consequence of having a protracted debate on this contentious issue means that the statutory establishment of the Human Rights Commission in this State will be further delayed. The thought might occur to people that that might be deliberate. It might be designed to ensure the commission will not be statutorily able to comment on this legislation. It would be the supreme irony that the most important first legislative measure involving human rights to come before this House will not be properly commented on by the Human Rights Commission by design of the Minister. His tactics would lead one to believe that is exactly what was intended.
I want to talk about the Irish record on human rights. We are often complacent in this House and in the State to believe that human rights are issues which affect other jurisdictions where there is quantifiable objective oppression to which we are immune. Many believe we do not need a Human Rights Commission because all is well in this emerald State. Unfortunately, that is not always the case. Amnesty International in its audit of all countries last year had some profound things to say about the status of human rights in this State. Among the findings of the 2000 audit of Amnesty International was its main area of concern about the lack of an independent police complaints procedure in this jurisdiction. This is an issue to which I have returned on many occasions. I have returned to it at Question Time and tabled comprehensive proposals which, I must confess, were copied in many ways from the Patten proposals in relation to Northern Ireland. It is appropriate that I refer to them again today because not only are they fundamental to the administration of human rights in this country, but this Bill is part of the same Good Friday process of which Patten is part.
We must ensure we do not tinker with the police complaints procedure in this House or, as the Minister has repeatedly said, polish the existing internal procedures with some external input from the Garda Complaints Board, but that we instigate a fundamental change by the establishment of an independent police ombudsman modelled on the Northern Ireland model. That case is now unanswerable and doubly so in the context of the decision of the European Court of Human Rights, the Strasbourg court about which we are speaking, in the Loughgall case. It found that the basic rights of the individuals in that case were violated not by any action that was taken, but by the lack of an independent mechanism for investigation of the incident. It found in its judgment that it was not possible for the force being investigated to carry out the investigation through the separation of units within the force.
There is now an unanswerable case to implement the proposals I have argued in favour of for a long time, such as the establishment of a police ombudsman. I was slightly heartened by the most recent reaction to these proposals at the last Question Time to the Minister for Justice, Equality and Law Reform. I did not get as emphatic a rejection as I got on previous occasions. I have no doubt we will have an opportunity to come back to the issue of Garda accountability through an ombudsman and a new Garda authority. I drafted both proposals and the time has now come to implement them.
The second comment made by the Amnesty International audit was about the rights of prisoners. It referred to the absence of an effective safeguard to prevent the ill treatment of prisoners. We have been awaiting the prisons Bill for a long time which, we understand, will include an independent prisons inspectorate. When will we see the concrete proposals to establish, on a statutory basis, the prison service and what nature and type of independent inspectorate will be established? These are issues the Minister should address. We cannot dismiss international reports from respected organisations because we are a developed, open and democratic State and, therefore, those criticisms do not apply to us, they only apply to a Third World or undemocratic state. I hope the Minister responds to this point in his reply.
The Minister will be aware of the comments of the director general of the prison service, Mr. Aylward, who has promised the publication and implementation of new prison rules. When will those rules be published? Will there be any democratic input into them? Will they be brought before the Committee on Justice, Equality, Defence and Women's Rights in order that we can discuss them? That is the type of open way to deal with these matters, which should be the hallmark of a developing, open and transparent society.
I will not have time to talk about the Offences Against the State Act which will continue in operation or to inquire about the Minister's intentions in relation to it, which is unfortunate. I would have hoped the Minister would have accepted the bona fides of the Members of this side of the House to facilitate the early enactment of basic legislation to put on a proper and acceptable basis the Human Rights Commission and to give us the time, space and an openness of mind to see how the European Convention on Human Rights can be transposed in this jurisdiction in a way that has the broadest possible good effect for the citizens of this State. If we do not make radical decisions which upset Administrations, it is likely that our decisions are inadequate. If we want to advance human rights, it must be done in a way which affects thestatus quo and those in charge of institutions in this State.
There is an inherent reluctance to take that step and half a century after the Convention on Human Rights was first adopted we are still dragging reluctant Administrations into the understanding of, and vindication of basic human rights.
I thank Deputy Howlin for giving me five minutes of his time. I join other Opposition spokespersons in expressing regret that the Minister has chosen this method of dealing with the two very important issues of the establishment of the Human Rights Commission and the incorporation of the European Convention on Human Rights into Irish law.
I fully support what my colleague, Deputy Howlin said both today and previously, on the fact that we would have facilitated the Minister in bringing forward a short Bill which would have dealt with outstanding matters with regard to the establishment of the Human Rights Commission. This would have allowed the commission to be up and running on a statutory basis well before the summer recess in accordance with both our obligations under the Good Friday Agreement, and the expectations of very many groups in this country. This has been awaited for a long time and many people feel it will be a very substantial addition in the human rights area in this country.
One group which has been awaiting this commission in terms of its rights is people with disabilities. The promised disabilities Bill has been long in coming and has now been shoved on to the end of this year. These people feel they will need the Human Rights Commission to vindicate many of their rights, because there appears to be no political will to bring forward specific legislation with regard to them. This applies to many other areas as well.
As I have a short period of time, I will concentrate on the substance of this Bill which is the incorporation of the European Convention on Human Rights into Irish law. I add my voice to the voices of those who have already expressed deep disappointment, not only in this House. Mr. Justice Barrington, and others outside this House have expressed disappointment about the minimalist method the Minister has chosen to undertake in this regard. As Deputy Howlin has said, this convention has been in existence for half a century and we would have hoped that when we incorporated it into our laws it would make a real difference in terms of people's opportunities to vindicate their human rights. It is so minimalist that I have to ask whether it will really make much difference at all. The method the Minister has chosen in incorporating it will inevitably provide issues around the question of the Constitution and the rights under this convention. Will people still have to go to the European Court of Human Rights in order to vindicate matters that are of concern to them, having gone through all of the processes under our national jurisdiction?
I refer to the case of our Oireachtas colleague, Senator David Norris, who in 1988, was granted the rights under the European Convention, that had been denied to him under our legislation. I suggest that if this measure which the Minister is proposing today had been incorporated at that time he would still have had to go to Europe to vindicate his rights because of the conflict with the Constitution and that even though he would have established a right under the convention, he would not have had remedy for that right. I suggest to the Minister that we are really not taking the opportunity that is there under this legislation and that is a terrible shame.
I also put it to the Minister that there will be many groups who will wish to express their views to the committee and if that is facilitated, which it should be, and if the amount of time that is needed is provided, as it should be in order to go into the deeply complex aspects of this, then we will not enact the legislation before the summer recess. There are many groups that have already expressed concern and I have no doubt they will have something to say with regard to this. As legislators we should listen to them.
As equality spokesperson for the Labour Party, I am deeply concerned that this is such a very small step when it could have been a much larger, broader and more meaningful one in terms of advancing human rights here.
I thank Deputy Howlin for giving me five minutes to put down a few markers as he and other colleagues have done. Like him, Deputies Shatter, O'Sullivan and Fitzgerald I want to express my sense of disappointment on two levels. We are trying to respond to one of the most important Bills to come through this House that will, I hope, affect generations and we are sharing time in allotments of five minutes, because of the truncated guillotined way in which the Second Stage is being taken. Second Stage is usually an opportunity to discuss, not just the contents, but the policy, direction and commitment of that Bill, all of which is lamentably short, no more than the time allowed to us here to address it.
I am disappointed and hugely annoyed by this Bill. Members on this side of the House have urged the Minister again and again, and the Taoiseach on the Order of Business to take a fast track approach and introduce an amending Bill with which everybody on this side of the House would agree, given that this Bill arose out of the chaotic way the setting up of the Human Rights Commission was bungled. We do not have it on a statutory basis that would allow the authority, support, resources and respect for a Human Rights Commission that is sorely lacking. To set it up in this slipshod way, in this derisory minimalist way, to have to go back and not to have the representation and the full cross population of this country included in that in the first place is a reflection of the way this Bill is being dragged through this House.
This Bill provided an opportunity. I saw this Human Rights Commission, as did my colleagues, as a wonderful piece of bridge building, a bridge to be built between North and South. It is to our shame and embarrassment that the Northern Ireland commission is up and running and we are still dragging this Bill in this way through this House. It could also have been bridge building to the extent that everybody here on this side of the House wanted to work with the Government and the Minister in bringing about a fundamental, positive, supportive Bill, on what the Minister himself called the most fundamental right, human rights. We are not doing that.
I concur with what Deputy Shatter said particularly on sections 3 and 5, and I hope one of the things we can do arising from this, is study models of good practice and listen to people on Committee Stage. God knows, we have left it long enough to be able to see models of good practice all over the world, particularly at European level. I appeal to the Minister to look again at our minimalist approach to this. The British Act requires that new legislation be European Convention proofed. We have done that with some other legislation here. Why is a similar provision not in this Bill? There is still time and I hope the Minister and his officials will take on board what we have just begun, and respond in the way that Members across the House have asked them to, so that people in a sovereign State such as that we were trying to establish during the Nice treaty referendum, can stand proudly with the other European member states that have done this long before us and with far greater alacrity and far greater spirit.
The Minister has agreed to give me five minutes of his time, if that is agreeable to the House.
On a point of order, I do not want to take up the time of Deputy Ardagh, but the Minister would have to agree this is unacceptable. When other parties want to get in, never mind other Deputies, it is unacceptable that people would be so limited in terms of time. I would like to hear a long contribution from the Chairman of the justice committee and others who are deprived of their rights. This is wrong.
I am obliged to follow the decision of the House earlier this morning.
On a point of order, Sir, it is worth pointing out that in the context of human rights, one of the fundamental rights in a parliamentary democracy is the rights of Members of Parliament to speak to important legislation. I agree with Deputy Howlin. I am sure Deputy Ardagh, as the Chairman of the justice committee, has a substantial contribution to make. I am aware there are numerous members of the Fine Gael Party and of the other parties who are not represented in the House at present—
Other parties will not get in.
—and some of the Independents, who want to talk on the Bill. It is bizarre on a human rights issue to drive a coach and four through parliamentary procedure, to gazump the right of other Members of Parliament and to guillotine a measure that should be given far greater consideration than the Government is allowing.
Without the agreement of the House, I am obliged to call the Minister at 1.15 p.m. As we are rapidly running out of time, I ask Deputy Ardagh to make his contribution in the time available.
Will the Minister withdraw it?
I believe my right to time has been taken away from me today.
The same applies to all our time.
It is interesting to note the progression of human rights generally. The Minister referred to the natural law philosophers of Greece, Roman law and the American and French Declarations of Independence, but we could not but look at the Proclamation of Poblacht na hÉireann in which there is one sentence which is very relevant. It states, "The Republic guarantees religious and civil liberty, equal rights and equal opportunities to all its citizens, and declares its resolve to pursue the happiness and prosperity of the whole nation and of all its parts, cherishing all the children of the nation equally, and oblivious of the differences carefully fostered by an alien government, which have divided a minority from the majority in the past". That informed the drafters of the 1937 Constitution in which there is enshrined a formal written bill of rights.
The European Convention on Human Rights was a product of certain people in response to the Holocaust and the awful atrocities that occurred in the Second World War. They saw fundamental human rights as a foundation for justice and peace and they hoped they would be implemented into the laws of countries throughout Europe in particular.
The Commission issued a memorandum in 1979 requesting the communities to become signatories to the European Conventionen bloc, and there was a great deal of argument in various governments and Parliaments. At the time, the House of Lords Select Committee on the European Communities took the view that “the immediate practical gains of accession are likely to be limited, the benefits being largely indirect and to some extent symbolic”. There were problems even then. Again, in 1990, the European Commission set out to get the various countries to consolidate human rights in the community but the European Court of Justice ruled that out of order in 1996.
On the question of why it has taken so long for the convention to be transposed into legislation, as the Minister said, in 1996 the Constitution review group talked about the incorporation of the convention directly into the Constitution. It said at that time that the Constitution was so complete in relation to human rights that the European convention would cloud some of the issues that were clear in the Irish Constitution.
I must ask the Deputy to conclude.
It was agreed that the Minister would give the Deputy five minutes of his time.
The constitutional method of recognising and protecting fundamental rights was advanced for its time but the Constitution review group felt it contained certain flaws and that there was a need for revision. Because of the strength of the Constitution and the importance of the European Convention on Human Rights, I agree with the Minister that statute law and rules of common law should be interpreted in a manner consistent with the State's obligations under the convention, and that statutory powers and the exercise of public law functions by the State agencies should be carried out in a manner conformable with the convention.
Article 13 of the European Convention on Human Rights states, "Everyone whose rights and freedoms as set forth in this 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 encompassed in the Bill and the Minister has already outlined the various remedies that are available, and the whole concept of incompatibility The question of compensation was raised and who would decide on the amount, but that is a matter for discussion on Committee Stage, although I acknowledge it is a valid point to raise. That is an important part of the Bill which is not included in the United Kingdom law because it believes parliamentary sovereignty is supreme.
The incorporation of the European Convention on Human Rights was a long way off until the Good Friday Agreement whereby the Governments, acting together under that Agreement, decided the convention was an important element of it. It has been incorporated in respect of Northern Ireland since October 2000 and I am delighted it is being incorporated into this Bill.
I want to mention a number of articles in the European Convention on Human Rights. Article 1 states that everyone's right to life shall be protected by law. There is a further protocol, the abolition of the death penalty, and I am delighted that the recent referendum on the death penalty was successful.
No doubt all members of the Government voted for it.
Article 2.2 states that the deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary. There are three sub-paragraphs to that article. Certain bodies in the State will have to examine the way they work to ensure all the articles in the European Convention on Human Rights are fully taken into account in any rules of procedure or engagement being drafted.
Article 4.2 states that no one shall be required to perform forced or compulsory labour. Article 5.2 states that everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and the charge against him. That raises the whole question of certain asylum seekers having to work in enforced labour in a country to repay the person who brought them to that country.
On the question of the language, as referred to in Article 5.2, we would have a problem in that regard. As a cosmopolitan country, we will have to improve our linguistic skills and I am delighted we will have the opportunity to do that and that we will be encouraged to do so.
Article 8.1 states that everyone has the right to respect for his private and family life, his home and his correspondence. I wonder whether one should add, "except for Oireachtas Members", as we do not seem to have the right to respect for our private and family lives. This issue has already been discussed on the Electoral Bill but we might be able to bring about a change in the Public Offices Commission under the European Convention on Human Rights.
I thank Deputies who contributed to this debate. This Bill is compatible with the UK legislation but, in a number of respects, it goes further than that legislation. I make this point, particularly in response to Deputy Shatter's contribution. The Bill goes further in that it incorporates Article 13 and provides a remedy where declarations of incompatibility are made by the courts. In those two respects the Bill goes further than the British legislation.
The Good Friday Agreement does not provide that this jurisdiction must incorporate the European Convention on Human Rights into law. The option is, and was, always there for Irish Governments to do so since ratification in 1950. However, no Government chose to do so until this Government decided to incorporate the European Convention on Human Rights into law. There is no obligation to do so under the Good Friday Agreement.
The points made by Deputy Shatter regarding declarations of incompatibility are more relevant to Committee Stage and I have already indicated that additional time will be made available on that Stage to discuss this legislation. Deputies will be aware that I do not order the business of the House. However, the Government Chief Whip has made it clear that additional time will be made available. All Deputies will welcome that measure and will have the opportunity to make a full and complete contribution if they so wish.
As to the exclusion of the courts, it is not accepted that citizens of Northern Ireland enjoy greater protection than citizens in this jurisdiction. In my speech I stated that our courts are required to act in accordance with the law and the Constitution. The limitation period of one year, to which Deputy Shatter also referred, can be extended by the courts if they so desire. I stated that this period of one year is required because of the importance for the State of the areas which may be impugned. The powers to make declarations are tied to the Superior Courts in the same way as those courts alone have jurisdiction to strike down unconstitutional statutes.
The courts cannot award compensation because, under the scheme of the Bill, rational provisions remain in force until they are changed by law. In other words, provisions which exist would have to be changed by law. The role of the Attorney General is limited by the Bill to one of notification. The Government will decide the matter and the Attorney General has no jurisdiction or function because the Government—
The Attorney General selects the adviser.
No, the Government appoints the adviser.
It does so on the recommendation of the Attorney General.
Deputy Howlin referred to what he described as the Department of Justice, Equality and Law Reform language used in my speech. This was the language used by the constitutional review group, not by the Department.
It was probably drafted by the Department.
No, it was used and drafted by the constitutional review group. Deputy Howlin has lost sight of the fact that recent developments in the Superior Courts regarding human rights issues have been constitutionally based. In effect, all the unenumerated rights to which the Deputy referred are home-grown and do not derive from the European Convention on Human Rights. The argument has been made by people far more versed in human rights, that the Supreme Court, through its liberal interpretation of the human rights provisions of the 1937 Constitution, and, in particular, in its elucidation of unenumerated rights, has, on many occasions, gone further with regard to the protection of human rights and freedoms in this jurisdiction than the European Convention on Human Rights. Many jurists, not just in this country, but world-wide, have expressed great appreciation for the work of some of our more eminent judges. Many of these judges are deceased, but some are still active in our courts.
I will take on board the views of the Human Rights Commission. However, that does not necessarily mean I have to accept what it says. The commission, and its chairman, are entitled to their opinions and, whether they are on an interim or statutory footing, any Government will listen to what they have to say and give careful consideration to their deliberations and expressions. However, it is a matter for the Government to govern and for the Human Rights Commission to perform its functions, pursuant to the statute under which it is being established.
That is a great start.
It is, to a certain degree, the function of the Human Rights Commission to interface with the Government if it is to represent the public. At no stage would I wish to have a Human Rights Commission in this State which felt it was in some way subject to the views of the Government or anyone else. No commission could fulfil its functions if it played such a role. I have made it clear from the outset that the intention is that the commission will be independent in the exercise of its functions. It is heart-warming to hear the commission express views which I may not hold.
While the Minister's heart is being warmed, perhaps he might listen to those views and take them on board.
Deputy Howlin also referred to the adequacy of the police complaints procedure, and it would be accepted that this issue is for another day. The drafting of the prisons Bill is at an advanced stage, but that issue is also for another day. I hope to shortly deliberate on the Hederman committee which is reviewing the Offences against the State Act.
With regard to the case referred to by Deputy O'Sullivan, if the provisions of this Bill were in force in 1988, the Supreme Court would have issued a declaration of incompatibility and it would then have been up to the court to rectify the position. Effectively that is what happened. If the Bill had been applied it would have happened within months, rather than the long hiatus to which the Deputy referred.
Deputy Barnes is normally constructive, but I reject her suggestion that the appointments to the Human Rights Commission were bungled or performed in a slipshod manner. The Government had to act in accordance with the Act and the Government of the day has to preserve its freedom to appoint people from a broad spectrum of society to the board in question.
Why did the Minister appoint those he originally left out a couple of weeks later?
Some people were appointed to the board first, but it became apparent to me at a conference in Dublin Castle that non-governmental organisations were unhappy with the composition of the board. I did not wish to see the Human Rights Commission strangled at birth and, therefore, I went back to the drawing board and decided to increase the number of persons on the commission. This was not an act of cuteness, or anything like that, but an act of magnanimity to ensure we would have a broad spectrum of society dealing with this issue. That is precisely what occurred.
On a point of order, is it appropriate for the Minister to suggest that, in the context of the Human Rights Commission, he could be classified as the "Caherciveen strangler".
I would ask the Deputy to allow the Minister to continue. He has 13 seconds remaining.
The Minister should have allowed more time.
We certainly have a Dublin strangler in the House.
Ahern, Dermot.Ahern, Michael.Ahern, Noel.Ardagh, Seán.Blaney, Harry.Brady, Johnny.Brady, Martin.Brennan, Matt.Brennan, Séamus.Briscoe, Ben.Browne, John (Wexford).Byrne, Hugh.Callely, Ivor.Carey, Pat.Collins, Michael.Cooper-Flynn, Beverley.Coughlan, Mary.Cullen, Martin.Daly, Brendan.
de Valera, Síle.Dennehy, John.Doherty, Seán.Ellis, John.Fahey, Frank.Fleming, Seán.Flood, Chris.Gildea, Thomas.Hanafin, Mary.Haughey, Seán.Healy-Rae, Jackie.Jacob, Joe.Keaveney, Cecilia.Kelleher, Billy.Kenneally, Brendan.Killeen, Tony.Kirk, Séamus.Kitt, Michael P. Lawlor, Liam.
Lenihan, Conor.McCreevy, Charlie.McDaid, James.McGennis, Marian.Martin, Micheál.Molloy, Robert.Moloney, John.Moynihan, Donal.Moynihan, Michael.Ó Cuív, Éamon.O'Donnell, Liz.O'Donoghue, John.O'Flynn, Noel.
O'Hanlon, Rory.O'Keeffe, Ned.O'Kennedy, Michael.O'Rourke, Mary.Power, Seán.Roche, Dick.Ryan, Eoin.Smith, Brendan.Smith, Michael.Treacy, Noel.Wallace, Mary.Wright, G. V.
Barnes, Monica.Boylan, Andrew.Bradford, Paul.Browne, John (Carlow-Kilkenny).Bruton, Richard.Burke, Ulick.Carey, Donal.Clune, Deirdre.Connaughton, Paul.Cosgrave, Michael.Crawford, Seymour.Currie, Austin.D'Arcy, Michael.Deasy, Austin.Durkan, Bernard.Enright, Thomas.Farrelly, John.Fitzgerald, Frances.Gilmore, Éamon.Gormley, John.Gregory, Tony.Hayes, Brian.Higgins, Jim.Howlin, Brendan.
McCormack, Pádraic.McGinley, Dinny.McGrath, Paul.McManus, Liz.Mitchell, Gay.Mitchell, Jim.Mitchell, Olivia.Naughten, Denis.Ó Caoláin, Caoimhghín.O'Sullivan, Jan.Perry, John.Rabbitte, Pat.Ring, Michael.Ryan, Seán.Sargent, Trevor.Shatter, Alan.Sheehan, Patrick.Shortall, Róisín.Stagg, Emmet.Stanton, David.Timmins, Billy.Upton, Mary.Wall, Jack.