Thursday, 19 June 2003
Seanad Eireann Debate
Although I read the Minister's Second Stage contribution carefully, I am at somewhat of a loss regarding the process by which certain sections of the convention, which are not incorporated in Irish law, will be incorporated in this legislation while others will not. Amendment No. 1 proposes to insert Articles 34 and 46 into section 1.
Article 34 involves individual applications to the European Court of Human Rights. It states that “The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”, namely, the right to make individual application. Article 46 concerns the binding force and execution of judgments. I do not understand why we would enable a position to persist where Irish law or practice could hinder somebody's right to make an individual application or not operate a final judgment of the court. There would be no remedy in Irish law for either of those situations. If, for example, the prison system interfered with the right of a prisoner or somebody appealed to the European Court of Human Rights, received a judgment in their favour but the State declined to implement it, there would be no remedy in Irish law because of the omission of the two articles to which I refer. The person would be obliged to return to the European Court of Human Rights.
I am at a loss to understand how it could be regarded as fair that two of the basic individual rights would be essentially kept at arms length from this country. Therefore, our proposal in amendment No. 1 is that Articles 34 and 46 be added to the list of articles to which section 1 refers.
Minister of State at the Department of Justice, Equality and Law Reform (Mr. B. Lenihan): Article 34 of the convention provides for the right of individuals to apply to the Court of Human Rights in Strasbourg in cases where they claim to be victims of alleged violations of convention rights. This is the right of individual petition. The related Article 35 of the convention enables the court to deal with such cases only after all domestic remedies are exhausted and within a time limit of six months.
The convention entered into force almost 50 years ago and Ireland and Sweden were the only contracting states which accepted this important right of individual petition. That has been our unvarying practice ever since. It is something with which the State has engaged itself in international law. We have always accepted this right of our citizens and it is not at issue in this legislation. The legislation does not affect the current position in any way because the practice has been established. As a matter of individual obligation, our citizens have always been permitted to make an individual application to the court at Strasbourg.
At the time, the thinking on international jurisprudence was that the sovereignty and equality of the state should be paramount and that nationals should not be allowed to invoke the protection of international tribunals against the sovereignty of a particular state. Ireland, along with Sweden, was one of the first states to disagree with this. We laid our marker in that respect many years ago. The Minister outlined yesterday the ten cases which have already been instituted and taken in Strasbourg.
The Bill provides for cases under the convention being taken before our courts. However, that in no way prejudices or interferes with the right of individual petition to Strasbourg, under the provisions of Article 34, if a person so wishes. Our original acceptance of the right of individual petition to the court remains in full effect. The international law on the matter is self-executing in our law. It does not require to be added to by express statutory restatement. It is an international provision, one of the first of its kind in the world, to which the State undertook to be bound before an international tribunal in respect of its own citizens.
Article 46 is a related provision and deals with the issue of the compulsory jurisdiction of the Court of Human Rights. Many of the state signatories to the European Convention on Human Rights, at the time it was drawn up, were unhappy with the idea of an international court having compulsory jurisdiction in matters pertaining to fundamental rights and freedoms. It was, therefore, decided that it would be optional. Ireland exercised that option. The State bound itself in international law, since the date of its signature and ratification of the convention in 1953, to accept the binding force of judgments of the Court of Human Rights and the supervision of the execution of those judgments by the Committee of Ministers of the contracting states. The Committee of Ministers is the sheriff in this particular operation and at one stage the sheriff had to be brought in to deal with the Greek Government when the colonels took over and abused people's fundamental rights and freedoms.
These provisions have been part of our consistent international practice since 1953. My party was in Government, exclusively, when these particularly wise decisions, which have no bearing on this particular legislation, were taken. The addition of the references to Articles 34 and 46 would add nothing to the legislation. We were careful to ensure the substantive rights in the convention were what legal effect should be given to in the Bill. These substantive rights are contained in Articles 2 to 14 and Articles 16 to 18.
The other articles in the convention fall into two general categories. They are either technical and procedural or they already have full binding effect on convention states such as Ireland by virtue of our signature and ratification. It is not necessary to include every article of the convention because many of them are technical in nature and deal with the procedures of the court or, as in this instance, with matters that have always been accepted by Ireland as consistent international law.
Mr. Ryan: Much that the Minister of State said reflects what I said yesterday in respect of the considerable pride this country should take in its early ratification of the idea of extraterritorial jurisdiction for an international institution. I agree with him in that regard.
Our commitment to human rights dates back further and, as I have said on many occasions, is manifest in the much-maligned 1937 Constitution, which people must always remember was written at a time when human rights were far from fashionable. As such, it is extraordinarily progressive. However, if some organ of the State interferes with a citizen's right to make an individual petition to the European Court of Human Rights, that person has no domestic remedy. The provision that judicial notice shall be taken of the convention provisions in section 4 refers to the convention as defined in section 1, which specifically excludes Articles 34 and 46. This means that judicial notice does not have to be taken of the individual's right to make a petition. Therefore, the only place a person can get redress, if the right to make an individual petition is interfered with, is through the European Court of Human Rights.
I fully accept that was and continues to be the position. However, it seems a great pity that the only remedy a citizen of this State can have, if that right is interfered with, is via the European Court in Strasbourg, with all the cumbersome procedures that involves. The same applies to Article 46, which deals with the binding force and execution of judgments. Again, it seems extraordinary that the only remedy a citizen would have is to return to the European Court in Strasbourg, rather than seek a domestic remedy which would be simpler, less expensive and probably much quicker. The Minister of State did not address that in his reply.
I fully appreciate that the State has been an impeccable participant of the convention, apart from a couple of incidents of internment when we derogated from it. The State has a good and credible record in human rights. However, it would be much easier for citizens if those two sections were incorporated into domestic law, the way the rest of it is, in order that they would have a domestic remedy.
Mr. B. Lenihan: The Lawless case was the first individual petition to Strasbourg, on which occasion the State's position was upheld. I take the point the Senator makes but, in a sense, he has missed the point that the rights in the Bill are rights in international law – the right of individual application to a body in Strasbourg and the right of that body to exercise compulsory jurisdiction. It is factually inconceivable that one could have an attempt to frustrate a right which is an international right. For example, there is clearly nothing any Irish citizen, national, company or person can do to frustrate the court from exercising its compulsory jurisdiction. The Irish courts would never have a function in regard to the compulsory jurisdiction of a court located in Strasbourg.
In regard to the right of individual petition, the Senator suggests the possibility of that being frustrated and the individual having no domestic remedy in Irish law in the event of a frustration or interference with that right. However, this is a right to go to Strasbourg, not any court in Ireland – it is not a right to go to the Four Courts. Rather, it is an international legal right, enjoyed by Irish citizens, to go through the European convention system. In a sense, there is no domestic court involvement in that matter at all.
The treaties themselves have been part of international law for many decades and the courts take full judicial notice of their provisions. They accept, without further proof, the existence of the treaties as international legal norms.
An Cathaoirleach: Amendment No. 3 is consequential on amendment No. 33, which is related to amendment No. 2. Therefore, amendments Nos. 2, 3 and 33 may be discussed together by agreement. Is that agreed? Agreed.
When this issue was debated in the Lower House on Committee Stage, I understand the Minister said it was not appropriate to insert an anti-death penalty measure into the Bill. However, I have not read the Official Report and am, therefore, unsure. There already is an anti-death penalty measure contained in, I think, Protocol No. 6. However, this protocol is being superseded by Protocol No. 13, which incorporates a much less exception-focused death penalty provision, and comes into force on 1 July this year. The Minister has the proud record of having drafted the constitutional amendment which prohibited the death penalty and deserves credit for such because it copperfastens a principle of our society. Protocol No. 13 of the European Convention states that no one shall be condemned to such penalty or executed, no derogation from the provision shall be made and no reservations may be made. In this manner, it is a much tighter and more demanding protocol than the previous one. It is coming into force and we have accepted it. Therefore, why is it not incorporated into the legislation?
Mr. B. Lenihan: Ireland has signed and ratified Protocol No. 13, as the Senator pointed out, which abolishes the death penalty in all cases. Protocol No. 6 to the convention, which is in the Schedule to the Bill, also makes provision for the abolition of the death penalty, but in Article 2 it permits states to make provision for it in time of war or imminent threat of war. We have amended the Constitution to remove the possible use of the death penalty in times of emergency. We are now a totally abolitionist State in the context of the death penalty. This has paved the way for us to accept, as a matter of international obligation, Protocol No. 13. It is reasonable to ask why Protocol No. 13 cannot be brought within the ambit of the Bill.
Protocol No. 13 is not yet in force and our advice from the Minister for Foreign Affairs is that it will not come into force until 1 August next. We anticipate that the Bill will have been enacted before that date and it is not the practice to include prospective provisions in legislation. In any event, the inclusion of Protocol No. 13 in the Bill would have no effect, a point with which the Senator agrees. However, he seeks to ensure consistency between the constitutional and statutory provisions. The Constitution, as the superior law, has already dealt with this matter. Therefore, the matter is unstateable in Irish law in any event.
Given the constitutional provisions, the repetition in a statute would be superfluous. That said, I understand the Senator's intention, but it is not the practice to include prospective provisions in legislation. I assume that we are not supposed to play God with what might happen in the next few months.
Mr. Ryan: If I had time, I am certain I could find an exception where a protocol which was not in force was incorporated into legislation because it was expected that it would be so in the not too distant future. I do not accept that this is a universal rule. However, I will not fall out with the Minister for State over it. It is a wonderful feature of Irish politics that, as far as I am aware, there is an absolute consensus on the death penalty and its barbaric nature. Therefore, I will not push the matter further.
This amendment goes to the nub of the views expressed on the degree to which the European Convention on Human Rights will be incorporated into Irish law. The definition of “organ of the State”, set out in page 4 of the Bill, specifically excludes, “the President or the Oireachtas or either House of the Oireachtas or a Committee of either such House or a Joint Committee of both such Houses or a court”. The Minster's argument against the incorporation of a court was concerned with the separation of powers.
The separation of powers is a universal principle by which a functioning democracy can be identified, which is the reason I sometimes wonder about the neighbouring jurisdiction which has not yet managed to achieve the kind of clarity in this area we take for granted. The effect of the amendment would be no more than to provide that courts must operate according to the principles of the European Convention on Human Rights. It is argued that this would be seen as interfering with the courts. However, there are other areas where we are happy to prescribe to them how they deal with people's rights. An example would where a person wishes to speak or have a trial conducted in Irish. The Judiciary is required to facilitate the request by doing the business of the court through Irish or providing interpreters. We expect the Judiciary to operate according to certain procedures and it does so because we have a good Judiciary and courts system.
I do not understand the reason the courts cannot be incorporated into the definition of “organs of the State”. It might be better to make separate provision for this because if the amendment is accepted in its present form, there may be an implication that the Judiciary is no more than another “instrument of public policy”, to quote a term used by an eminent former Fianna Fáil leader when referring to RTE. It is argued that the courts are bound by the Constitution, which is superior law. However, if other countries as committed as we are to the separation of powers can do this, I am not persuaded that we could not.
Ms Terry: I agree with Senator Ryan that amendment No. 4 is at the nub of how we incorporate this convention into domestic law. Both amendments seek to include the courts in the definition of “organs of the State”, set out in page 4 of the Bill. I understand the reason the Minister wishes to have them excluded because they have a duty to uphold the Constitution and the law. However, there is a good case for including them in the definition and giving rights to individuals to have the convention upheld in domestic law. The similar legislation passed in the United Kingdom includes the courts, where they are referred to as being included within the term “public authorities” rather than organs of the state. If we take the same approach, we will give people the right to have the convention upheld when they take cases in this country. Rather than provide for this, the Minister is taking a minimalist approach.
Dr. Henry: I support this amendment. This legislation is similar to that passed in the United Kingdom. The Good Friday Agreement encouraged that approach. The UK legislation has managed to include the courts, down to the Magistrates' Courts, in this area in a satisfactory manner. The main reason for bringing this forward is to ensure judgments could be given without undue delay and also that people would be given the reasons for them.
When the Minister spoke about this on Committee Stage in the other House he said the problem regarding judgment delays had been solved by section 46 of the Courts and Court Officers Act 2002, which provides for the establishment of a register of weighted judgments and a review procedure to ensure they are delivered. While that is as good as far as it goes, it is not a remedy against the State in the event of a breakdown of the system, which could happen.
The Minister argued that reasons for judgments would be required by the rules of courts being interpreted in accordance with the convention principles, which are commonly given. Sometimes when the reasons are given, they are not adequate enough for the person trying to appeal the judgment to a higher court. In view of this, the amendment would ensure the convention would also apply to the courts. I hope the Minister of State will accept it.
Mr. Norris: I support the amendment for the reasons outlined. People are entitled to a speedy judgment and the reasons for it. There appears to be no provision for this in the Bill. There are delays. A document I have received from the Law Society states:
It is not the experience of many practising lawyers and their clients that reasoned judgments are commonly given in all courts. This issue has arisen in a number of recent Supreme Court cases, for example, T v. T, judgment of Denham, J., and K v. K, judgment of McGuinness, J.
The Law Society document goes on to state this may increase the number of reasoned decisions. Is this a cause for alarm or regret? I would not have thought so. The more reasoned decisions we get from the courts, the better.
Without this amendment there is no effective remedy for citizens in a situation where there is this kind of dereliction. The Minister indicated his concern that this may lead to perhaps even vexatious actions against judges. We know that judges like to stay on one side of the bar and not get into the box reserved for the accused, which is a natural human tendency. I have tabled an amendment which would address this problem. The Minister of State can, therefore, accept this amendment without having any worries about the possibility of judges being impugned for corruption, because this would be looked after by a subsequent amendment.
Tribunals, which are a form of court, are not excluded from the definition of “organs of the State”, set out in page 4 of the Bill. If they are not excluded, why should a parallel situation, where courts are involved, be excluded? There are a number of reasons, including those effectively advanced by the Law Society, for accepting this amendment.
Requiring judges to have regard to the principles of the convention would also be very effective and a useful effect of the amendment. Given the arguments advanced by this side of the House, there is strong case for the Minister of State to accept it.
Mr. J. Walsh: While I understand the motivation behind the amendments, it should be recognised that section 2 places a statutory obligation on the courts to make decisions compatible with the State's obligations under the convention. This provision appears to be quite adequate. Given that people will have to return to the courts to seek recourse and compensation, to remove the courts from the exemption might be a little incestuous. On the other hand, I have sympathy with the argument that while it is essential the courts are separate in a democratic system such as ours, there should be some form of accountability in terms of ostensibly strange decisions and derogatory, snide remarks by judges which have nothing to do with the cases being processed. While there is a need to examine these matters, I am not sure it would be prudent to take matters as far as the amendments suggest.
Mr. B. Lenihan: The effect of this amendment would be to bring the courts within the definition of “organs of the State” in section 1 of the Bill. It would ensure they were bound by the obligations imposed by the Bill, specifically the requirement in section 3 to perform their functions in a manner compatible with the State's obligations under the convention. This matter has been debated at length in the Dáil and was referred to by the Minister for Justice, Equality and Law Reform in this House yesterday. I will speak but not in the same detail of the reasons the Government has decided not to include the courts in the definitions section of the Bill.
The courts are ordained and obliged by the Constitution, statutes and statutory instruments to perform their functions in accordance with the Constitution, statutes and statutory instruments. Critics of the omission of the courts from the definition of “organ of the State” seem to forget that every rule of the court is a statutory instrument. Every decision of the courts and the Courts and Court Officers Act must be interpreted under section 2 of this Bill in a manner compatible with the convention. The courts do not operate as an autonomous area of unregulated power. They are constrained by the Constitution, statutory instruments and the legislation the Oireachtas has enacted to regulate the conduct of court proceedings. The rules of court constitute a statutory instrument which the courts are obliged to follow. Under this Bill, all of these provisions will have to be interpreted in the context of the convention in a manner compatible with it, if at all possible.
As the Minister pointed out, the notion that the courts will be wholly strangers to the convention and not be obliged to comply with the Bill is wide of the mark. When the Bill becomes law, it will be incumbent on the superior courts, the District Court, the Circuit Court and the Special Criminal Court to apply their own rules and the statutes under which those rules are applied in a manner compatible with the convention in so far as those texts permit them. The phrase “in so far as possible” in section 2 of the Bill is not a limitation. The relevant United Kingdom provision reads, “so far as is possible to do so”. In both jurisdictions the intention is not for the courts to ascertain the true meaning but to strive to find a meaning which will prevent the making of a declaration of incompatibility. In other words, they are being asked to apply a rebuttable presumption in favour of the convention rights.
It is acknowledged that individuals have brought the State before the Court of Human Rights over the failure of courts to deliver a judgment within a reasonable time. Since the last occasion of such a failure, steps have been taken to deal with the matter. The Courts and Court Officers Act 2002 obliges a court to deliver judgments within three months. The registrar of a court must enter on a register any reserved judgment, one not handed down immediately. If the court does not deliver the judgment within three months, the registrar is obliged to re-list the case before the judge to allow him or her to fix a date upon which judgment will be given. The Minister has indicated that the provisions in question will be brought into effect shortly and that he will be making regulations providing for the register.
More generally, the Minister has made it abundantly clear that the policy underlying the exclusionary approach with regard to the courts is based on the fact that the convention and the rights protected under it are framed in a vertically effective way. They deal with private individuals and the State rather than private disputes between private individuals. There is no question of experimentation in this area. The Bill will not create a parallel system of tort law within the State to regulate transactions between private citizens except in so far as statutes and the rules of court will be interpreted in a convention compatible way.
If the amendment was accepted, one of the most obvious consequences would be that the provisions of subsections (1) and (2) of section 3 the Bill would apply. Individuals would be allowed to sue the courts in the courts in respect of court decisions. The Minister has made it very clear that he will not go down that road as to do so would open up a wholly unpredictable and chaotic scenario. The doctrine of res judicata, according to which judicial decisions cannot be revisited, would disappear as every action would give rise to a subsequent action. The decision in the case of the first action would be found to breach someone's convention rights allowing them to reopen the issue to sue the court in respect of the court's decision.
The point has been made that we are somehow out of step with the United Kingdom whose courts are included in the definition of “public authority” and caught by the requirement to act in a convention compatible way. There is an important difference between our two jurisdictions. Members of the judiciary in the United Kingdom are bound by an oath to the sovereign power of parliament and obliged to do whatever parliament instructs. The courts here are bound by a written constitution to uphold the Constitution and laws.
Senator Norris referred to the practical rather than theoretical problems. He raised the practical matters of the delay in court judgments and the lack of an obligation on courts to provide reasons for their decisions. I have outlined the Minister's position as it relates to the delay in judgments. He is satisfied the legislative arrangements which have been put in place and will be implemented through statutory instruments will address the matter. The strict common law position is that a judge of a superior court is not obliged to give reasons for his or her decisions. It seems extraordinary but the judge is obliged to give a judgment and make an order while not necessarily explaining the reasons he or she does so. This has been the traditional common law position. I am not aware that the issue has been visited—
Mr. B. Lenihan: The argument for the position might be that by the time a judgment is given enough discussion has taken place and there has to be an end to litigation. That is the common law position.
Senator Jim Walsh referred to the need for accountability in judicial decisions. While the difficulty is that there must be finality in judicial decisions, the questions the Senator raised are being examined in the context of the preparation of a Bill on judicial ethics which forms part of the Department's legislative programme.
Dr. Henry: I understand judges are not obliged to give reasons for their decisions but it causes great difficulty for those who wish to appeal cases if they do not know the grounds on which decisions have been made. The Minister of State does not think so, unfortunately.
Senator Jim Walsh raised the matter of section 3(1) and the Minister of State explained that the phrase “in so far as possible” is not meant to be a limitation. I hope it will not be but I am concerned that under section 3, we are discussing interpretation in a manner compatible with the State's obligations under the convention's provisions rather than the ability of the individual to vindicate his or her rights under the convention. That may be quite different.
Mr. Norris: The Minister for Justice, Equality and Law Reform, Deputy Michael McDowell, was quoted by the Minister of State. The Minister waffles rarely but when he does, he gives a bravura performance. For him to say a court is not a stranger to the European convention is a great relief for the people. I realise that the phrase is a legal one but we are talking about implementing the provisions of the European Convention on Human Rights as far as possible in Irish law and would not expect the courts to be strangers to them, even though they may have held their noses when they passed them from time to time.
With regard to judgments being vexatiously challenged if we remove this exemption, amendment No. 31 would remedy that. This is the point of the amendment. All the Minister need do is accept both amendments.
The Minister has said, in effect, that the courts are not an organ of the State. That is news to me. What else are they? If the court is not an organ of State, what is it? Is it animal, vegetable or mineral? Common sense tells us that the courts are an important organ of the State and they are so defined and referred to in official literature. Why go through the fiction of saying that, for the purposes of this Bill and to protect certain fossilised sensibilities, they are not an organ of State when we all know they are? If the Minister is telling the House that the courts are not an organ of the State, what are they? A clear definition would be useful.
Mr. Ryan: We have managed to ramble a good deal on this issue but it is central to the Bill. I was taken by the Minister's description of the position in the United Kingdom. In the UK the judiciary is bound by an oath to the sovereign power, which is obliged to do whatever parliament says it can do. I share his dismissive view of the much vaunted British constitution. I have always believed that British citizens are more vulnerable to the power of the state than Irish citizens. In Ireland, there are clear limits beyond which the State cannot go. That was evident with the Prevention of Terrorism Act. Many of its operations could never have been implemented in this country.
Senator Norris has raised a genuine issue in his response to the Minister's concern. We do not want people to sue the courts. However, with regard to the Minister's assertion that this is about vertical rights and that he was reluctant to open up the area of horizontal rights, Article 4 deals with the prohibition of slavery and forced labour.
Mr. Ryan: The Minister said that the convention is primarily a vertically effective instrument, by which he meant that it is designed as a means of redressing human rights violations as between the individual and the state. The prohibition on slavery is not a matter between the individual and the state. It is not a prohibition on slavery implemented by the state but a prohibition on slavery per se, which is a horizontal right according to the Minister's terminology. It is not simply that the state is prohibited from allowing slavery but that any citizen is entitled to redress if he or she is in a position vis-à-vis another citizen of slavery or servitude. The principal plank of the Minister's argument, that he does not want this to have a horizontal effect, is in contradiction with Article 4 of the convention, which has horizontal effects. By excluding the courts, we are making that more difficult.
I am not aware of a prohibition on slavery in the Constitution, although I am sure it is implied in the provisions on personal liberties. However, there is a prohibition of slavery in the European Convention on Human Rights and our courts should be required to enforce that right. We are effectively diluting the capacity to enforce it by not including the courts in this provision.
Ms Terry: By excluding the courts and the State's obligations we are not giving our citizens the best opportunity to defend their rights. Section 5 provides that the High Court or Supreme Court may “where no other legal remedy is adequate . make a declaration . that a statutory provision or rule of law is incompatible with . the Convention provisions”. In that case, the litigant can obtain no other legal redress and the legislation remains in force. By continuing the way the Minister is proposing, we are not providing the best and clearest opportunity to citizens to defend their rights and that is central to these two amendments.
Dr. Henry: I remind the Minister that we do not want judges to be sued either. Some of my best friends are judges. The convention specifically provides that it is only judicial review and appeals which can be sued under the convention.
Mr. B. Lenihan: This debate relates to section 3 of the Bill, which will create a new remedy in Irish law. It will allow a person who has suffered injury, loss or damage as a result of a contravention of the convention, if no other remedy in damages is available, to institute proceedings to recover damages in respect of the contravention in the appropriate court, the High Court or the Circuit Court under a certain limitation. That right of action for damages is predicated on an organ of State performing its functions in a manner compatible with the State's obligations under the convention provisions.
Under section 3 a new right of action for damages accrues in respect of a breach by an organ of State of obligations under the convention. We must define “organ of State” for the purposes of this new right of action in damages and we are excluding the courts from the definition. We are not allowing the courts to be sued in that respect for the reason I have outlined. To permit the courts to be sued in respect of a breach of obligation in that respect would be to re-open litigation and encourage a multiplicity of lawsuits. Essentially, it would allow persons to relitigate, in the guise of an argument about the convention, a law case which the person had already lost. The Government agrees with the Minister that the introduction of such a measure would cause considerable difficulty in the courts and considerable relitigation of issues which are already concluded as far as litigation is concerned.
It should be remembered that the High Court is established by the people in the Constitution. It is the centrepiece, subject to the right of appeal to the Supreme Court, of the judicial system. The High Court has sole and original jurisdiction under the Constitution to deal with all matters. In contemporary Irish law the High Court cannot be sued in respect of its decisions. To introduce this provision would permit it to be sued in respect of its decisions. The other courts referred to by Senators – the Circuit Court, District Court and Special Criminal Court – can all be corrected by the High Court and can be party to litigation in the context of judicial review proceedings. The High Court can ensure that they act within their jurisdiction. To introduce into Irish law the principle that a court can, on convention grounds, be sued in respect of its decisions would, in effect, revolutionise our system of jurisprudence and would be a very remarkable departure.
The incontestable fact remains that, under this Bill, the courts will be obliged to construe all legislation they must operate under in accordance with the statutory principles and instruments governing their jurisdiction. The point is theoretical, but to concede it could cause much practical difficulty in the future.
Mr. Ryan: I return to one argument used by the Minister of State. The issue he raised about suing the courts could be dealt with by, among other things, the procedure that Senator Norris suggested. The other argument being used is that the convention is “a vertically effective instrument designed as a means of redressing human rights violations between the individual and the State.”
I raise the question of Article 4 of the convention. Does a victim of slavery sue the State? What would the State have done wrong? It may not have known about the act of slavery. As far as I am concerned, this means that if I am in a condition of slavery and certitude and I am a citizen of a party to the convention, I am entitled to sue the person who subjects me to servitude or slavery. The Minister of State does not want the courts to be drawn into a development as a horizontally effective means of resolving rights-based disputes between individuals. The issue of slavery is a rights-based dispute between individuals, not between an individual and the State. I would like the Minister of State to address that point before I indicate what I propose to do about the amendment.
Mr. B. Lenihan: Article 1 of the convention provides that the high contracting parties shall secure to everyone within their jurisdiction the rights and freedoms defined in the convention. That is the obligation on the State in the international sense.
The Senator canvassed the possibility of slavery. Under this legislation, if the State or an organ of the State – other than the excluded organs of the courts and the Oireachtas – had failed to prevent slavery from taking place, the State could be sued. The State could be sued if a health board, for example, had demonstrably failed to ensure that slavery did not take place in the context of a particular group of individuals living in its functional area. There could, in such circumstances, be a possible right of action against the health board. The Senator is canvassing a far-fetched scenario. Rather than examining these contingencies, we should look at the practical working system of government that operates in the State. The High Court is established by the people in their Constitution and has that protection from having its issues re-litigated.
Mr. Ryan: The Commission on Human Rights is not happy with the procedures this Government is adopting. It would prefer a different procedure. Whatever the arguments, eminent members of and authorities from the legal profession take differing views, so it is clearly a matter of opinion as to which is the best route to take. I am resolved to remaining of the same opinion as that with which I started, so I will not withdraw the amendment.
Lydon, Donal J.
Ó Murchú, Labhrás.
In page 4, subsection (1), line 19, after “exercised” to insert “and shall include any person or body certain of whose functions are functions of a public nature, but in relation to a particular act, such a person or body shall not be an organ of state if the nature of the act is private”.
The intention of this amendment is to ensure that bodies which are publicly funded but privately managed, such as schools and hospitals, are included in this grouping. They serve a public purpose and should be included as organs of the State and be subject to the convention. It could be inferred from what is there already that they will be included but I feel, and I have had the advice of the Law Society on this too, that it would be wiser to accept this amendment and be quite sure that such organisations are covered.
Mr. Norris: I support this amendment. I, too, was briefed by the Law Society which advised Senator Henry and me. Many amendments have in common the fact that they come from the same unimpeachable source. Although it is possible that the legislation might be interpreted to include such institutions, that is by no means certain, which is a powerful legal view. In other words, a court could interpret this narrowly. The lawyers' view – that of the collective body of lawyers – is that it is possible that the Bill might be interpreted narrowly and exclude schools and hospitals, the very areas where we have had so much trouble with the violation of children's human rights. That is the reason we have had all the tribunals. It would be quite extraordinary if the most vulnerable elements in society – those attending school or in hospital – should not have their rights clearly and specifically protected by this legislation.
Although my colleague, Senator Henry, has anticipated the Minister of State's reply that they are probably included and there by implication, a legal view, that of the body representing a very significant group of lawyers, is that the Bill is capable of a narrower interpretation than that which the Minister of State has supplied to the House. In that case, and in view of the fact that it could scarcely do any damage to include those groups, I urge that the amendment be accepted.
Mr. B. Lenihan: I regret to advise the Senator that it would do some damage to include the amendment, since one of the key definitions we are discussing is “organ of the State”. The Senator posed the question at an earlier stage of the debate as to whether the courts were an organ of the State. The courts are, in our constitutional law, an organ of the State but not in this proposed legislation.
Mr. B. Lenihan: Regarding the precise point raised by Senator Henry, it appears that the amendment is based to some extent on an equivalent provision in United Kingdom human rights legislation where there is a provision that it is unlawful for a public authority to act in a way incompatible with the European Convention on Human Rights. The term “public authority” is not defined in the United Kingdom Act. We are trying to define the boundary between purely private behaviour, not captured by the convention, and public or State matters, which are. In the United Kingdom the “public authority” phrase, comprehended, more or less, in Senator Henry's amendment, has been used, whereas in this jurisdiction the Government has proposed that the phrase “organ of the State” be used as the definition to demarcate the boundary between the public and private spheres.
I see no advantage in mixing two legal concepts and making the distinction between what is in the public and private realms even more difficult to ascertain by setting up two standards. Were I to accept Senator Henry's amendment, I would be introducing into the legislation a second standard for defining what was in the public and private spheres. Reference was made to concerns that a very narrow interpretation could be placed on this matter by the courts. Equally, however, a very broad interpretation could be made by the courts, and the judgment of the Government was that it would have to be left to them as an exercise in interpretation to determine whether a matter was in the public or private sphere.
It is impossible to attempt an exhaustive list. The legislation lays down a standard, namely, “organ of the State”. The Bill places a positive duty on organs of the State to perform their functions in a manner compatible with the State's obligations under the convention. The definition of an “organ of the State” is designed to address the problem of the public and private spheres. The test under the Bill is simple: if the organ of the State is established by law, it falls within the definition. If it is not established by law but exercises the legislative, executive or judicial powers of the State, it also falls within the definition. To accept this amendment would be to mix two completely different approaches to the issue. For that reason, I am not prepared to do so.
I am absolutely delighted with the Minister of State's definition. I am grateful that he has indicated that an organ of the State is not an organ of the State for the purposes of the Bill. How absolutely wonderful that is. We are really in some kind of cloud-cuckoo land here, particularly since there are various Supreme Court judgments and texts emanating from the highest levels of the State which refer to courts as “organs of the State”. It is a wonderful kind of Alice in Wonderland use of language, and I am grateful that the anomaly has been outlined so firmly.
Perhaps I might comment with regard to one thing the Minister of State said about the difficulties often pleaded by Ministers that, if we try to get into this area, we will create a list system, and it is impossible to create an exhaustive list. That is not what the amendment tabled by Senator Henry and me would do at all. It produces a definition which would catch in the net those bodies which we are concerned might fall outside it such as schools, hospitals and so on. There is still a very good case and the Minister of State is defending himself against a situation which does not occur. We are not suggesting, attempting or trying to encourage the Government to create lists. We are trying to create a form of words that would obviate the need for the creation of lists, instead, by its operation, including elements not currently included or may not be so.
The Minister of State indicated that the Government had taken a “judgment call”, as the Americans describe it, on the matter and believes there will be a broad interpretation. However, he has not excluded the possibility of a narrow one – or at least, that is how I understood his remarks. He said he felt the courts would interpret the legislation in a particular way but that is only the Government's view, and Governments have been wrong in the past, particularly in assessing such legal matters. The Minister of State has accepted that there is a possibility, which he and the Government regard as minimal, but they still accept that it is a matter of judgment and that there is a possibility that a narrow interpretation might be placed on the legislation by the courts. All our amendment would do would be to resolve the situation in advance of going to court and finding that the law was defective.
Dr. Henry: When the Minister for Justice, Equality and Law Reform was here yesterday and some of us pointed out that we had received considerable briefings from the Bar Council and the Law Society, he said he was not going to do a head count of who was in favour of his Bill and who against among his legal colleagues. However, it is worrying that there appears to be such concern that these areas could be interpreted narrowly. Senator Norris has quite rightly pointed out that hospitals and schools are where there have been problems in the past, and I certainly do not want to introduce any list system. It was because those organisations were privately run but had a public function that we ended up with a list system with the Laffoy commission. That is the reason I would really like to see the amendment accepted by the Minister of State. It is very important.
Mr. B. Lenihan: The Senator has raised the practical problems that can occur in the context of hospitals and schools. If one examines the issue of hospitals, one sees that a health board is a body established by law under the definition provided by the Act. In the case of a private hospital, other considerations would apply. It is not possible in legislation to provide an exhaustive list of whether a body is public or private in character. All one can do is lay down a test for the courts to apply. The test proposed, about which the Government made the “judgment call”, was that the body should be established by law or a body through which any of the legislative, executive or judicial powers of the State were exercised. All I have said on this amendment is that it would add an additional test to the present one based on another standard and criterion, thus making the test confused and difficult to apply were the matter to fall for determination in the courts.
Dr. Henry: The Minister explained yesterday why he had not made the convention part of the law of the State. However, I am unclear on how it was possible to make the Hague Convention on the Civil Aspects of International Child Abduction part of the law of the State yet it is not possible to do so with this convention.
The amendment would make a fundamental change in the way in which further effect is to be given to the convention in Irish law. The Government decided that the best course open to us is to provide for a form of incorporation based on the interpretative model. The mode of incorporation chosen by the Government was arrived at only after the most searching examination of the various options open to it in the matter. The force of law as part of the law of the State model, as canvassed in this amendment, was studied in great detail before any decision was taken by the Government. Possible Constitution-based approaches and other legislative approaches were also examined. In this regard, the views of the Human Rights Commission and other human rights-based organisations were examined. Those views were presented to the Select Committee on Justice, Equality, Defence and Women's Rights and many of them were published to inform and stimulate debate. They were discussed at different fora, seminars and conferences. Nevertheless, the position of the Government is that, in our constitutional scheme of things, the interpretative approach is the best and most suitable choice of model for us. There are several reasons for this.
First, we already have a written bill of rights in Articles 40 to 44 of the Constitution. We do not need a shadow constitution in the form of a convention. Second, by giving the convention the force of law in the State, the courts would then be empowered to operate such a shadow constitution. Such a provision would be directly contrary to the provisions of the Constitution in Articles 5.15, which provides that the Oireachtas has the sole and exclusive power to legislate for and in the State. No other authority has the power to make laws for the State. The courts have the power to interpret the law, but they cannot be instructed by the Oireachtas to disregard the clear intention of the Oireachtas.
Giving the force of law to the convention would amount to an uncertain amendment of existing legislation. Therefore, issues concerning Article 34 of the Constitution, which restrict to the High Court and Supreme Court the question of the validity of any law, would arise in every court. Giving the convention the force of law would require all courts to decide whether existing statutes were valid by reference to the exterior law of the convention. Under the Constitution, legislation enacted since 1937 enjoys a presumption of constitutionality and the District Court and Circuit Court have to act on the assumption that the Acts enacted by the Oireachtas are valid, effectual and constitutional. A vast amount of the legal business of the State is transacted in the District Court and Circuit Court and they must operate on the assumption that the Acts are valid. Were we to introduce a provision of this type and make it directly part of the law of the State, these courts would then have jurisdiction to invalidate Acts of the Oireachtas on the basis of an exterior law based on the convention.
The force of law model then admits the possibility that any court, including the District Court, could decide that highly important legislation relating to serious crime or subversion, matters of fundamental importance to the security of the State or the safety or well-being of its citizens was to be repealed on the basis of a Strasbourg ruling in a similar case or because of that court's interpretation of a provision of the convention. This would introduce a huge element of uncertainty into our law and the view of the Government is that the doctrine of separation of powers is a cornerstone of the Constitution. Giving the convention the force of law would interfere with the delicate balances inherent in that doctrine and would be to our detriment.
Mr. Norris: Is the Minister of State suggesting that the Government will be churning out enormous amounts of legislation that conflict with the provisions of the European Convention on Human Rights? I do not believe so. This is a completely artificial situation. If, by accident, such law was enacted, it would be very proper for an Irish court to strike it down.
I have nothing to fear from the European Convention on Human Rights. Ireland was one of the first signatories to it, the first state to have a case tried under it and Irish citizens have used it extensively since then. Why should we fear our legislation being brought into accord with it? That is our objective, so of what are we afraid?
Regarding the different models, the Minister of State tried to justify the model chosen by the Government and referred to the various bodies that gave evidence on this. The Government seems not to have listened to what it was told. Professor William Binchy recently criticised the indirect mode of incorporation used for its weaknesses, anomalies and drawbacks. In this regard, he is reiterating the views of the Irish Human Rights Commission, of which he is a member, the Bar Council and the Law Society as well as numerous NGOs. The Minister of State was coy about that matter, saying that the Government had consulted. It consulted, but it did not listen to those bodies.
Three models were given: the constitutional model; legislative incorporation; and this model, which was described by the bodies consulted as being unequivocally the worst. We headed unerringly for that model, which was brilliant. Even the phase used to describe it, “interpretative incorporation at a sub-constitutional level”, gives one an idea of its nature.
I do not want to return to Second Stage, but I made the point that this is a minimalist approach. We chose the United Kingdom precedent, but we did not even go the whole hog with that approach and watered it down somewhat. We have nothing of which to be afraid if we are serious about this. We were put in this situation because we were embarrassed and ours was the last European country to formally incorporate the convention. Many other states have incorporated it, legislatively or constitutionally, but I am not sure how many other countries, apart from the UK, have gone for the delights of the interpretative incorporation at sub-constitutional level. Perhaps the Minister of State knows, but I imagine the number is quite low.
If we are serious about bringing Irish law into conformity with the European Convention on Human Rights, what have we got to fear from letting the courts interpret it? That is fine by me and I have no problem with it. I wish it were incorporated fully into Irish law.
Mr. Ryan: As the Minister of State said, this is the nub of the argument. He is not going to agree to this, which is a great pity, but I will deal with some of his arguments. What is singularly unimpressive is neither the goodwill of the Minister of State today, nor that of the Minister yesterday, but the fact that the arguments which are far from convincing are being drawn up to justify a position.
One of these is the idea that we cannot incorporate a convention into Irish law. How many European directives do we incorporate into Irish law every week? I have never figured out the logic behind that. Some directives are incorporated via primary legislation while many others are not even incorporated via primary or secondary legislation. I have seen numerous documents go through this House which have incorporated various bits of international conventions and given them effect in Irish law.
In the first referendum on the Constitution, the amendment, which essentially wiped out any conflict between the Constitution and European commitments, stated that nothing in the Constitution can be interpreted to prevent the State from fulfilling its obligations under the European treaties. The people decided to amend the Constitution in that way but it was quite an extraordinary change to the Constitution. It is a bit rich to come into the House having made that amendment in respect of our membership of the European Union and to state that we cannot incorporate international law into our domestic law. We have been doing that for 30 years via the European Union.
My preference would have been to incorporate the convention through a constitutional amendment. As I said, unfortunately, Seanad Éireann cannot introduce constitutional amendments. Much to the relief of the Minister of State I suspect, we cannot go down that route. The Minister of State's arguments on the constitutional route are even weaker than those on this route. The fundamental issue is a deep-seated conservatism about the European Convention on Human Rights which is being defended by arguments which do not hold much water.
Ms Terry: Like Senator Norris, I wish to ask the Minister of State, as I did the Minister yesterday, although I did not get a reply, why the Minister is standing alone on this issue and disregarding advice given to him by the Irish Human Rights Commission, the Law Society and the Bar Council. How often does the Minister disregard their opinion? I do not really expect an answer to that question. I expect their opinion is worthwhile and it is difficult for us to understand why the Minister has disregarded advice from those three organisations and other NGOs and is going it alone. All the other countries have incorporated this convention into their domestic law but this country will be different in this regard.
The model of interpretative incorporation is premised on the same principle that underlies the presumption of constitutionality – the presumed intent of parliament. In other words, impugned legislation or acts of certain public bodies will enjoy a presumption of compatibility with the ECHR unless and until a litigant rebuts that presumption. This judicial technique, based on an idealised view of the role of parliament in the legislative process, is often something of a legal fiction and can, according to commentators like Gerard Hogan, lead to quite artificial findings by the courts in their determination to uphold challenged legislation. This deficiency is especially apparent when the Double Construction Test is applied and makes it difficult to conceive of situations where future litigants under the 2001 Bill will have any reasonable prospect of establishing incompatibility with the Convention.
I take seriously the last sentence in particular, in the sense that litigants may have difficulty under this kind of legislation. By incorporating the convention through Senator Ryan's amendment, this situation might be cured.
Mr. J. Walsh: We covered a lot of this ground yesterday on Second Stage when the Minister made the point, to which many Members subscribed, that our Constitution is a document which has stood the test of time. There are probably no additional rights within the European Convention on Human Rights which are not explicit or implicit in our Constitution. Section 5, dealing with the declaration of incompatibility, will address any perceived difficulties or contradictions which may arise. They will have to be addressed in the context of both Houses of the Oireachtas being notified and will be raised if it is considered that the matter should be dealt with in subsequent legislation. It comes back to whether we accept the primacy of the Constitution.
Mr. B. Lenihan: As Senator Norris is only too well aware, litigants face difficulties in all legal proceedings. This Bill is drafted in such a way as to at least give clarity to litigants as to the precise status of the convention in Irish law. The provision in the Bill of a right of action for damages is an innovation and is not provided for in the equivalent United Kingdom legislation.
Senators asked about the practice in other states. Practices vary depending on the view other states have taken on the incorporation of international law into their domestic legal systems. Those states which subscribe to what is called the monist view of a total assimilation of international and domestic law naturally tend to favour the direct application of the convention in their municipal legal systems. This State has always subscribed to the dualist view in international law, namely, that no international arrangement is part of the law of the State unless it is so decided by the Oireachtas, the people's representatives.
Mr. B. Lenihan: I do not have that information to hand but the majority of EU states subscribe to the monist view of international law. Our near neighbour, the United Kingdom, does not and it shares with us the dualist view and has decided on—
In regard to Senator Terry's intervention on the Bar Council and the other groups, we are coming close to the heart of the issue. The Minister and the Government have a strong view on this question based on their conviction that the Constitution of 1937 provided for a basic law for this State even before the Second World War took place. It is one of the oldest constitutions in Europe and it provides for a clear vesting in the people of a right to control their Government through the referendum procedure. It also provides for clear organs of State, the legislative Executive and judicial domain. It contains a bill of rights which has been interpreted and developed by the courts over the decades to create an impressive scaffolding of rights which, as Senator Jim Walsh mentioned, is virtually identical to the substantive content of the European Convention on Human Rights.
In those circumstances, the Minister's decision to opt for this form of incorporation was based on the conviction that the Constitution has served us well over generations and that we should not seek, as these professional bodies are seeking, to bypass our constitutional arrangements by introducing far-reaching provisions which would, for example, have the effect of judges operating a parallel set of rights to those already conferred by the Constitution. That would be the effect of making the convention a direct part of our law. It would empower the courts to have a shadow bill of rights in operation as well as the bill of rights already contained in Articles 40 to 44.
Mr. B. Lenihan: The Senator identified one of the rare divergences between the Irish bill of rights and the European system. That said, those are the reasons that particular decision was taken. Of course these bodies express their points of view, as they are entitled to. I do not agree with them and neither does the Government. The Government believes it has a responsibility to the Constitution in this matter and this is how it decided the measure should be implemented.
It is a mystery to me how it would cost the State more if it was not possible to sue for three years. I would like to be informed by the Minister why the State decided on such a short period of time. Three years is a reasonable period. I do not want people suing for things that happened twenty-five years ago, although this country is awash with people attempting to do that for very good reason. However, a maximum time period of one year, not from the coming into force of the legislation, but from the time an alleged breach happened, is very short. I cannot see how it would cost the State any more money if it was longer.
Mr. B. Lenihan: The cases involved in proceedings of this character will involve serious matters for all parties concerned, including the State. It is in the public interest that the exposure of the State to potentially large awards and damages should be reasonably short, commensurate with the rights of the individual. For the sake of comparison, if a person wishes to invoke the right of individual petition under the convention and take proceedings in Strasbourg, the time limit is six months.
That said, it is important to realise the context in which this limitation is imposed. It is one in which a contravention of the convention must be established. In all probability, the establishment of that contravention through judicial proceedings will have already taken a substantial period of time, so that in a sense the one year limit comes into effect at that stage.
In section 3(5)(b), there is a provision where the court can extend the period if it considers it is appropriate to do so in the interests of justice. The one year is not an absolute limit, as the Senator is no doubt aware. Generally statutes of limitation provide for an absolute limit. There is a very limited category of exceptions to that, generally based on ignorance of matters, disability or minority, as in lack of full age. In this case, while the limit is one year, the period may be extended by order of the court if it considers it appropriate in the interests of justice. In the context of limitation periods that is a very broad discretion to give to a court. If the court believes that justice requires it, the relevant period may be extended.
Mr. Norris: I move amendment No. 15:
In page 5, paragraph (a), lines 27 and 28, to delete “on any question in respect of which that Court has jurisdiction”.
I understand it was more or less agreed on Committee Stage in the Dáil that the amendment would be taken. That is my recollection of it. Yet it is not included in this amended version of the Bill. Why was this dropped? Presumably there must have been a reason. The intention of the amendment was to avoid the necessity for proving that the court had jurisdiction to make the decisions to which reference is made.
Mr. B. Lenihan: I think the Minister said he would have a look at it, but he took the advice of the Attorney General and decided to resist the amendment. I will outline the general views of the Minister in this area.
The purpose of section 4 is to provide that judicial notice be taken of the jurisprudence of the Court of Human Rights, as well as the other Strasbourg organs relating to the provisions of the convention and the relevant protocols, Nos. 1, 4, 6 and 7, to which further effect has been given in the Bill. The section also provides that a court shall, when applying and interpreting the provisions of the convention, take due account of the principles laid down in that jurisprudence in all its various forms. In other words, the provision is a persuasive one.
It has been noted that the provision does not provide that the Strasbourg jurisprudence should have binding effect similar to that of the European Court of Justice in so far as European Community law is concerned under the various EC treaties. The approach which has been adopted in the case of the convention is that it should have a persuasive effect. I would like to set out the reasons for this.
The convention system recognises that it is possible to satisfy the requirements of the convention and give effect to its provisions in a number of different ways, particularly where social values of contracting states may well be different. The European Community system, on the other hand, is geared towards harmonisation. Convention case law represents a minimum threshold of rights which convention states themselves may well wish to exceed. The “take due account” requirement in section 4 allows for this. There is no imperative that the convention countries should adopt a uniform solution. I would not expect, for example, that an Irish court would wish to follow a decision of the European Court of Human Rights in the case of Reyntjens and Belgium in 1992, which decided that the obligation to carry an identity card and to show it to the police when requested to do so does not as such constitute an interference in a person's private life within the meaning of Article 8 of the convention. It is possible, therefore, that given our very well developed case law on fundamental rights and freedoms based on the Constitution, that Irish courts might give a lead to Strasbourg and show that standards and respect for the rights of the individual in this jurisdiction are higher than those required by the convention.
A more serious objection to binding an Irish court to follow a decision of the Strasbourg court is that we then have to apply the doctrine of the margin of appreciation in the same way as the Strasbourg court applies it in a case involving another state, even though the circumstances can be quite different. The doctrine of the margin of appreciation in Strasbourg is that within each member state there must be a wide discretion as to how the rights can be applied, given the cultural and social differences between the states.
In so far as the amendment moved by the Senator is concerned, the phrase has been queried in the other House, and it refers to a jurisdictional requirement in the case of each of the bodies mentioned in sub-paragraphs (a), (b) and (c) of the section. It was suggested that the bodies concerned should be deemed to have had jurisdiction until the contrary is proved. I note that the Minister said in the other House he was receptive to making a change on the lines proposed by the Senator in his amendment. However, the point was discussed in some detail with the Attorney General, who was of the view that the words that the amendment seeks to delete should remain.
This is not really an evidential matter. The provision relates entirely to the matter of judicial notice, and as such it is not correct to say, in supporting the deletion of the words in question, that their inclusion would prevent problems of proof. What that means, in essence, is that the section dealing with the doctrine of judicial notice defines, as far as the Oireachtas is concerned, that the courts must accept all these matters without further proof, so it is not necessary to accept the amendment along the lines advocated by the Senator.
Amendment, by leave, withdrawn.
Mr. Norris: I move amendment No. 16:
In page 5, lines 29 to 31, to delete paragraph (b) and substitute the following new paragraph:
“(b) any decision or opinion of the European Commission of Human Rights so established on any legal question,”.
Amendments Nos. 16 and 17 are in the same general area as amendment No. 15. The Minister undertook to consider how rephrasing might avoid uncertainty about jurisdiction and the requirement of proof, which is what amendment No. 15 was about, but also to exclude irrelevant operational decisions made by the bodies on, for example, adjournments and meeting dates. I was briefed by an expert legal body and I am assured that the amendments I bring forward have been subject to expert legal and drafting advice. I am interested to hear the Minister of State's response.
I do not propose to hold up the House for very long because I am really horrified to discover that there is a guillotine on this very important Stage of the Bill, which is to be completed by 1.30 p.m. This is frightful, if true.
Mr. B. Lenihan: The matter raised by the Senator is the same as that which related to amendment No. 15. Essentially, section 4 deals with the doctrine of judicial notice. The Oireachtas frequently includes a section of this type in legislation. Effectively, we are instructing the courts that they do not have to have all the matters set out in the section proved as a matter of evidence. They just need to realise that they are there. Judicial notice can be taken of a wide variety of matters commonly taken in respect of the days of the week, the currency, historical facts and personages. The advice we have received from the Attorney General is that the particular formula used to describe the matters, of which notice should be taken is the appropriate one because it refers to the concept of jurisdiction. This would seem the appropriate way to define a judicial body such as the judicial bodies in Europe.
Amendment, by leave, withdrawn.
Amendment No. 17 not moved.
Section 4 agreed to.
Acting Chairman: As amendment No. 20 is consequential on amendment No. 18, they may be discussed together.
Mr. Ryan: I move amendment No. 18:
In page 6, between lines 8 and 9, to insert the following new subsection:
“(3) The registrar of the court concerned shall transmit a certified copy of an order containing a declaration of incompatibility to the Chief State Solicitor within 7 days of the perfection of the order.”.
The lawyers from whom I take advice indicate a slight gap in the process. Therefore, amendment No. 18 proposes that, where a declaration of incompatibility is made, there should be a clear process of transmission of that declaration from the judicial process to the State.
On amendment No. 20, my legal advisers tell me that the making of an order is not the final stage of a judicial process. The order has to be perfected, which means that any process of appeal, or otherwise, has to be completed. Therefore, orders only have legal effect when perfected, not when made because there is a period left for appeal etc. These two amendments are not in any way central to the Bill but are genuine attempts to be helpful.
Mr. B. Lenihan: While I accept that, I am not convinced of the need for amendment No. 18. The Bill provides that, before a court decides whether to make a declaration of incompatibility under section 5, the Attorney General and the Human Rights Commission must be given notice of the proceedings in accordance with the rules of court that will have to be made following the enactment of this legislation. Upon enactment, the rules of court, statutory instruments adopted under the courts of justice legislation, will require to have a provision regulating the curial side of this legislation.
The Attorney General will have a right to appear at and become a party to the proceedings. As the Senator pointed out, when a declaration is made, certain obligations are placed on the Taoiseach under section 5(3) of the Bill regarding the laying of copies of the declaration before both Houses of the Oireachtas within 21 days. The inclusion of a provision along the lines of this amendment would descend into a level of detail not required in the Bill. However, I will ensure the Senator's view on this matter is brought to the attention of the rules committee in order that an appropriate provision can be made in the rules of court, if it is deemed necessary to do so.
Mr. Ryan: Did I miss a reference to amendment No. 20?
Mr. B. Lenihan: I apologise to the Senator. He wants to insert the word “perfection” rather than “making”. This point was considered during the drafting phase of the Bill but section 5(3) refers to the “making of the order” containing the declaration of incompatibility rather than the “perfection of the order” for purely practical reasons. This is because there may be a period between the making of the order and its perfection or, to use another term, writing it down. In some cases, this period could be up to six weeks. The Government's intention is that the making of the declaration should be notified to the Oireachtas at the earliest possible opportunity. The Attorney General is a notice party to the proceedings. Therefore, the Government has, within the knowledge of its legal adviser, knowledge of the proceedings. We see no reason to change this.
Were the concept of perfection to be used, the obligation to lay the matter before the Oireachtas would be relaxed rather than strengthened. We take the view that there should be a strict duty to account to the Oireachtas in this matter and that the Government, having been represented in the proceedings by the Attorney General, should be in a position, within the relevant period after the making of the decision, to lay the matter before it.
Mr. Ryan: I will not argue with the Minister of State about amendment No. 18 which I am quite happy to withdraw. I take it that his undertaking is perfectly reasonable. However, I am not sure that unfinalised judicial decisions should be the basis for communicating with the Oireachtas. If a judicial decision is made in the High Court that something is incompatible with the convention and if the State appeals it to the Supreme Court, why should we tell the Oireachtas in a formal fashion about an incomplete judicial process?
I do not know how long an appeal takes but why should we not wait and notify the Oireachtas only when matters are finalised? It is only after the final decision that the Oireachtas must take heed of it. Amending legislation should not be introduced on the basis of a decision made by the High Court only to discover it is appealed to the Supreme Court. The Oireachtas would have to wait until the latter court had made its decision. It would be a lot simpler to address the problem in the way I propose, which seems more clear-cut.
Mr. B. Lenihan: I confess that I have some sympathy for the point advocated by the Senator but, under the Bill as proposed, it remains that there will be a greater amount of information submitted to the Oireachtas. If, for example, the making of an order of the High Court was notified to the Oireachtas and an appeal taken to the Supreme Court, the Oireachtas would be perfectly well aware that it could not act in respect of the matter until the Supreme Court had considered it.
Mr. J. Walsh: Will the Minister of State consider this issue before Report Stage? It could happen that a decision would be raised in the Oireachtas and then subject to appeal. We try to avoid debating issues before the courts. There could, therefore, be a second reason for addressing it.
Mr. B. Lenihan: The matter can be revisited on Report Stage.
Amendment, by leave, withdrawn.
Acting Chairman (Mr. Finucane): Amendments Nos. 19 and 21 are related and may be discussed together, by agreement.
Mr. Ryan: I move amendment No. 19:
In page 6, line 10, after “incompatibility” to insert “and, unless the declaration was made by the High Court and has been appealed, a statement as to the Government's proposals (if any) to address the incompatibility”.
One of the extraordinary points – the Minister for Justice, Equality and Law Reform dealt with it on Second Stage – in respect of the Bill is that if a declaration is made and perfected by the courts to the effect that some legislation in the State is incompatible with the provisions of the European Convention on Human Rights, we do not appear to have obliged the State to do anything about it, other than to inform the Oireachtas that it has happened. I realise that there are provisions for individual damages, but surely it is logical that if legislation is incompatible with the European Convention on Human Rights, the State should either seek a derogation under the procedures that are available in certain circumstances or it should change the law to bring it into a position of consistency with the convention.
To simply say, where a declaration of incompatibility is made, that the Government will tell us about it and, perhaps, compensate the individual if it chooses to do so, is not adequate. The most obvious thing, apart from the person whose case has to be addressed, in terms of the law is that we cannot have legislation continuing in force which has been found by the courts to be incompatible with the European Convention on Human Rights. It is, therefore, a necessary consequence that the Government should tell us what action it should take. In that regard, our amendment suggests the insertion of the words “and, unless the declaration was made by the High Court and has been appealed, a statement as to the Government's proposals (if any) to address the incompatibility”. I do not understand why there is not such a provision.
Dr. Henry: It is extraordinary that, for what will almost certainly be a small number of cases, the Government or the Minister involved is not obliged to do anything if incompatibility is discovered. We face a situation where there could be a recurrence of previous difficulties. All that will happen is that a person will receive an ex gratia payment if the Attorney General and an adviser consider it a good idea. As I said on Second Stage, I thought it would be much better if the court gave advice in this area. It is peculiar that this issue is going to be addressed in this way, that there will be no remedy for dealing with future cases and that the person involved in the current case will be referred to some adviser to see what will be the position in terms of an ex gratia payment. This provision was included in the United Kingdom legislation. I understand that it has not caused a great deal of trouble and that there has not been a large number of cases. I do not know why we are not prepared to do it.
In a later amendment in my name and that of Senator Norris, which we may not reach, we propose that the Taoiseach should inform the Dáil about what it was proposed to do if incompatibility went wrong.
Mr. Norris: I concur with what my colleagues said. I refer to a well-established principle of law to which I referred yesterday, that is ubi ius ibi remedium, wherever there is law or a decision given, there must be a remedy. The person who goes to court already knows damn well that they have the victim of injustice. That is their conviction. The attitude in respect of people's rights being trampled on appears to be of the “So what?” variety. These amendments are a classic test of the Government's real commitment to the implementation of the European Convention on Human Rights. If it is serious about implementing them and giving citizens redress, it is not sufficient to merely state that an injustice has taken place. If there has been an injustice, surely it is right to at least indicate the steps that will be taken to remedy it. That much appears clear to me. However, I notice the crocodile smile emerging on the Minister of State's face so he may well have some answer that will enrich our learning in respect of the law.
Ms Terry: I agree with the views expressed by other Senators on this issue. The Irish Human Rights Commission stated:
It is unacceptable to place the courts in a position where they can identify a breach of human rights and not be in a position to give an effective remedy. The whole procedure set out in Section 5 of the Bill is of questionable constitutional validity. Moreover, the Commission finds it difficult to understand how one can purport to incorporate Article 13 of the European Convention on Human Rights (ECHR), which requires the provision of an effective remedy at national level, into domestic law while withholding a domestic judicial remedy for a breach of the Convention. Strasbourg case law establishes the principle that a discretionary remedy is no remedy.
In amendment No. 21, I am mandating the Taoiseach to come to the Government within two months with his remedy, whatever that may be. That is in line with section 10 of the UK Human Rights Act 1998 which provides for remedial action which may be taken by a Minister to amend legislation which has been declared to be incompatible with the convention. We ask for a similar provision here.
Mr. J. Walsh: Given that the declaration of incompatibility will be laid before both Houses, what is being sought is that the Government would state what action, if any, is to be taken. The amendments envisage that it may not be necessary to take any action, which could well be the case. In that scenario, surely the Oireachtas can prompt the Executive in the same way as the Executive can give a lead to the Oireachtas. I have no doubt that once this is laid before the Houses, if it is considered to be a matter of general concern, surely it will be raised in the Houses. We should have sufficient confidence in ourselves in that regard. There are provisions in the Bill to compensate the individual party where this declaration arises. Provision is being made to deal with the specific case that will come before the courts. Therefore, we are showing a lack of confidence in ourselves—
Mr. Norris: We are quite right.
Mr. J. Walsh: —to raise the matter if we consider it is a fundamental issue of importance.
Mr. Ryan: I do not want to waste time, but I invite the Minister of State to address section 5(2)(a) which states that, “A declaration of incompatibility . shall not affect the validity, continuing operation or enforcement of the statutory provision”. Essentially, this means that even if the Supreme Court rules that an item of our law is incompatible with the European Convention on Human Rights we will continue to use it.
Dr. Henry: It seems crazy.
Mr. Ryan: That is what it says.
Mr. J. Walsh: Not, if one accepts that the Constitution takes precedence.
Mr. Ryan: In fact, it does not. When Senator Norris's case arose, we did not use the Constitution. Some people tried to argue that, but the view of the then Government and the then Fianna Fáil Minister was that it was nonsense. I believe it was nonsense. If somebody comes before the Supreme Court and obtains a ruling that what was done to them was done by legislation which is incompatible with the European Convention on Human Rights, our response is that we might give the person compensation but we reserve the right to continue to use it.
I would not mind if an attempt was made to ensure that some actions taken in the past could not be challenged. I might not agree with that, but I could understand it. However, it is brazen to say that it shall not affect the continuing operation. The item of legislation which the Supreme Court has interpreted as being incompatible with the European Convention on Human Rights will continue in force until somebody gets around to doing something about it. In the case of our constitutional law, once the Supreme Court decides that something is not constitutional that is an end to it and it cannot apply in the future.
Mr. Norris: I echo Senator Ryan's comments. The Bill, as it stands, provides for a continuance of a breach of the European Convention on Human Rights. It is obvious that this is what we are doing. Senator Jim Walsh made a useful point when he asked if we had so little trust in the Oireachtas that we imagined, in our wickedness—
Mr. J. Walsh: I did not put it quite that way.
Mr. Norris: —that it would have this drawn to its attention and do nothing about it. What a dreadful prospect. I have been in that position and had that experience. I obtained a verdict against the State that it was in breach of the European Convention on Human Rights. I raised the issue repeatedly in the House and the Taoiseach of the day, Mr. Albert Reynolds, made a public statement saying that it was not a Government priority. That track record is an answer for the Senator and there is no reply to it.
We have been there, have got a judgment that certain legislation here was in conflict with the European Court of Human Rights and the Taoiseach of the day's reply was that it was not a priority. He said that we could wait because the Government had no proposals to do anything about it. That is the history of the past ten years and it is the reason that this matter is important. I am grateful to Senator Jim Walsh for asking if we are so suspicious of Government that we imagined this could happen. Not only can I imagine it, it has happened. We want to make sure it does not happen again.
Mr. J. Walsh: The Senator is taking liberties. If he is going to paraphrase me, I would like him to do it accurately. The argument being made by Senator Norris and others is that when we get a declaration of incompatibility, the human rights convention should take precedence over all other law, whether it cuts across constitutional law or otherwise. That is not the premise upon which this legislation is framed. However, there is provision to deal with issues of incompatibility, which will be assessed and judged on their merits. There is nothing precluding the Government from coming forward with legislation. Equally, there is nothing forcing it to do so. However, there is nothing stopping the House, or any Member, from raising it as an issue. The way the Bill is currently framed is the essence of democracy.
Mr. Norris: One is either serious about the convention or not.
Dr. Henry: We have congratulated ourselves several times on the human rights elements of the Constitution. We are confident that these situations will arise rarely. Amendment No. 21 states that the Taoiseach or other Government Minister shall within two months of the declaration of incompatibility make a statement to the Houses of the Oireachtas detailing what measures, if any, it proposes to take. We are not saying that it must do something, but we would like an assurance that it will at least be looked at and not left on the long finger. As Senator Norris said in respect of his case, the Taoiseach of the day said that it was not a priority. We want to be sure that an issue will be considered. We will have a situation where the only remedy being offered is discretionary, which is against the convention. This section is peculiar. I hope the Minister of State will accept the amendment.
Ms Terry: Senator Henry has summed up the issue well and it is important to include the suggested provision in the Bill. The points made by Senator Walsh are weak. The amendments will strengthen the Bill and ensure that our elected representatives will have an opportunity to be informed about what, if anything, the Taoiseach decides to do. That is democracy and it is the least we should expect of our Taoiseach.
Mr. B. Lenihan: I understand the thinking behind this amendment, but it provides for something which is not practicable. We are dealing with declarations of invalidity of legislation enacted by the Oireachtas, or previous legislation continued in force under Article 50 of the Constitution from the pre-1937 era. Senator Norris encountered such an item of legislation. In his passionate intervention, the Senator confirmed my thesis that the reason we should not accept this amendment is because it relates to matters of passion and political debate and concern. Once the report is made to the Oireachtas, it is for these Houses to address the difficulties that arise, in accordance with the conventions and procedures that apply here. Including an obligation that the Government shall submit proposals to address the incompatibility does not add anything to the legislation.
Question Time is available in the Dáil and motions can be raised on the Adjournment in this House. There are procedures available in the Seanad under which the Government can be tested in regard to the incompatibility.
Mr. Norris: On a point of order, as I understand it we are specifically precluded from addressing proposals for legislation on matters for the Adjournment. That avenue is ruled out and as we do not have Question Time in the Seanad, both avenues are excluded. Can the Chair confirm that?
Acting Chairman: Each case would be considered on its merits.
Mr. B. Lenihan: May I interrupt? That is not a point of order.
Mr. Norris: The Minister of State has no locus standi.
Mr. B. Lenihan: As the Senator enriches our legal learning, I want to enrich his political learning and recall the case of Mrs. McGee, who instituted proceedings in the early 1970s under our Constitution and obtained a declaration from the Supreme Court that the legislation prohibiting the importation of contraceptives was unconstitutional. The matter then lingered for some time in these Houses. One particular Government in 1974 brought proposals forward on the matter and the Taoiseach had made a secret mental determination not to deal with the issue of the incompatibility at all. That illustrates the point that the matters in question here are political in character.
Once a declaration of incompatibility is laid before the Houses, I have no doubt it would be permitted in either House to raise on the Adjournment the issue of what the Government proposes to do about the incompatibility. While the incompatibility the Senator established related to legislation, it does not always relate exclusively to legislation. That is where complex issues can arise. For example, in the Airey case, concerning the failure of the State to provide an effective system of legal aid, the State was obliged to put in place a scheme of legal aid which involved financial provision, rules, procedures and guidelines. In that situation, a different arrangement or response was required to the judgment of the court in Strasbourg.
There is no doubt that complex issues can arise on a declaration of incompatibility. It may not be possible for a Government to come to a decision as to what should be the possible response to the declaration, within the period of 21 days, or even in the two months permitted in Senator Terry's amendment. This is the main concern of the Minister regarding these amendments.
There are also other considerations. There could be several options open to a Government in the matter. The Oireachtas could decide that it will not change the impugned law. The ultimate nightmare could arise where an incompatibility was established with constitutional provision in Strasbourg. That does not arise under this legislation. However, such a scenario would oblige the Government to institute the referendum procedure. A wide variety of circumstances could give rise to declarations of incompatibility. The making of the declaration is formally before both Houses. This is a sufficient safeguard to ensure that the Government pursues whatever solution to the problem is necessary.
Acting Chairman: As it is now 1.30 p.m., in accordance with an order of the House today, I must now put the question: “That amendment No. 19 is negatived; that the undisposed sections of the Bill, Schedules 1 to 5, inclusive, and the Title of the Bill are hereby agreed to; and that the Bill is reported to the House without amendment”.
Mr. Norris: It is outrageous to guillotine a Bill of this nature and it shows the Government's real commitment to the European Convention on Human Rights.
Mr. J. Walsh: I understand that certain amendments from this point on are out of order and I suggest we take another half an hour to try to complete Committee Stage of the Bill.
Ms O'Rourke: I came to the House with the purpose of proposing to extend the debate. Senator Jim Walsh and I discussed the matter this morning, but we must ask for the Minister of State's approval.
I move: “That we extend the period for Committee Stage of this Bill until 2 p.m.”
Acting Chairman: Is that agreed? Agreed.
Mr. Norris: The flexibility of the Leader and the Minister of State is greatly appreciated.
Amendment put and declared lost.
Mr. Ryan: I move amendment No. 20:
In page 6, line 12, to delete “making” and substitute “perfection”.
Question, “That the word proposed to be deleted stand”, put and declared carried.
Amendment declared lost.
Ms Terry: I move amendment No. 21:
In page 6, between lines 12 and 13, to insert the following new subsection:
“(4) The Taoiseach or other Government Minister shall within two months of the declaration of incompatibility make a statement to the Houses of the Oireachtas detailing what measures (if any) the Government proposes to take to remove the incompatibility and the proposed timeframe for achieving this.”.
Amendment put and declared lost.
Amendments Nos. 22 to 25, inclusive, not moved.
Acting Chairman: Amendment No. 28 is an alternate to amendment No. 26 and, therefore, the two may be discussed together by agreement. Is that agreed? Agreed.
Mr. Ryan: I move amendment No. 26:
In page 6, between lines 30 and 31, to insert the following new subsection:
“(6) Where as a result of an incompatibility between a statutory provision or rule of law and a Convention provision, or a failure to act in a manner compatible with a Convention provision, a person has been convicted of a criminal offence in circumstances where but for the incompatibility or failure the person would not have been so convicted, or would have been sentenced to a lesser penalty, the person the subject of such conviction or sentence may apply to the Minister pursuant to this section for a recommendation to the Government that the Government should advise the President to pardon the person concerned, or alternatively for a recommendation that the conviction or penalty be commuted or remitted, and the Minister may following such inquiries if any as in his or her discretion he or she sees fit to make, make such a recommendation.”.
I am not our party's spokesperson on justice. Therefore, I came to deal with the Bill later than would normally have been the case. As we proceed with Committee Stage, the degree to which the Bill is limited becomes increasingly apparent.
If someone is convicted of an offence in this State, the basis for which is found to be incompatible with the European Convention on Human Rights, I presume we would let such a person out of prison. However, I am not certain that this is the case since the validity, continuing operation or enforcement are not affected by the declaration. Even if we let such a person out of prison and award him or her damages, the Bill does not propose to give him or her a pardon.
The purpose of the amendment is to at least raise the issue by stating that if someone is convicted, in breach of his or her human rights, as defined under the convention, the State should have to address the issue of a pardon. It is the least one could expect from the State in such a case. Hopefully, we will have some time to discuss section 5, because I still want to refer to subsection 2(a).
Dr. Henry: Deputy Costello pointed out in the Lower House that someone who still had a conviction could have difficulties with travel and in many other areas no matter what financial recompense he or she received. I am keen to get complete our deliberations on the Bill and I will not labour the point. However, many Members thought the issue would be addressed in the Bill. It is not something the Government should want to allow to stand. I am sure it does not want to cause injury to people without being able to rectify such injuries. This is an injury that cannot be simply rectified through finance or by letting the person in question out of prison. There must be something to remove the conviction.
Mr. Norris: I support my colleagues on this issue. It seems extraordinary that someone could be convicted of an offence which was subsequently found to be a violation of fundamental human rights and that no remedies are provided. It appears that there is a question over the Government's seriousness in regard to human rights because it has galloped through the Bill in order to meet obligations under international commitments and to remove us from the unenviable position of being the laggard in human rights legislation in Europe.
The Bill provides that there can be a determination that something is a violation of human rights, but it does not provide for a remedy. Someone may be imprisoned under a statute that is found to be counter to the convention's provisions. Nevertheless, it is unlikely that many of these remain and, if that is the case, it will not make any difference for this amendment to be made. However, it seems wrong to permit a situation to continue where someone who has been convicted under a law which is found to be in violation of human rights may remain in jail. One cannot assume that they would be released from prison automatically because there is no requirement from the courts to do so.
Ms Terry: I am glad this amendment has been tabled by the Labour Party. I assumed that a pardon would be granted. I support this amendment and I hope that the Minister of State will take it on board in the spirit in which it is intended because such an anomaly should be corrected.
Mr. B. Lenihan: All this amendment proposes is that someone may write to a Minister, which people may do in any event. It goes on to propose that the Minister can make a recommendation, which her she can also always do. Therefore, there is nothing in this amendment which is not part of our existing practice. The parliamentary counsel drafted the amendment in a peculiar and cumbersome manner. In saying that, I am assuming that the Senator employed a parliamentary counsel or that someone assisted him, for which I apologise.
Mr. Ryan: The Minister of State should not underestimate our skills.
Mr. B. Lenihan: I should not and I apologise for doing so.
The person who drafted this amendment knew well that the power of pardon is vested exclusively in and may only be exercised by the President, strictly on the advice of the Government. That procedure is written into the Constitution. Therefore, there is little one can do to hedge around it. If it was established that a person was wrongfully convicted in breach of the European convention, the Government would make such a recommendation to the President. However, to provide in this Bill that a person can write a letter to a Minister who can make a recommendation to the Government is surplusage and unnecessary in the circumstances.
I understand the spirit in which the amendment was tabled, but it is excessive of Senator Norris to suggest that because the Government does not accept this amendment, it shows a blatant disregard for the convention. That is not the case. I am wary of accepting provisions such as that proposed in the amendment because it attempts to regulate the power of the Government to advise the President on this matter – a power which is expressly conferred by constitutional provision.
Amendment No. 28 is interesting since it seeks to refer the matter to the Court of Criminal Appeal. A great deal more consideration would have to be given to the precise drafting of an amendment of that character and how this jurisdiction would be conferred upon the Court of Criminal Appeal. The problems which can arise are not confined to the province of criminal jurisprudence. There could also be a civil judgment where a wrong has been done in breach of the convention procedures. In the case of the criminal law, there is a matter pending in the Supreme Court. The Minister is of the view that it would be better to await developments and the clarification the court will bring to that issue.
Mr. Norris: The last remark by the Minister of State is the most effective part of the argument, particularly if certain elements of the matter are sub judice. I suggest that Senator Henry does not press the amendment so that it can be reintroduced on Report Stage, when the Minister might perhaps be in a position to provide further clarification. There is a substantial difference between amendments Nos. 28 and No. 26. Senator Henry and I are not seeking to allow somebody to write a letter to the Minister; anybody can do that. We are proposing that the person whose rights have been vitiated has the right to apply to the court for it to set aside the conviction. That is different. It is a legal entitlement and provides an extra right. It gives the citizen the right of enforcement. That is why it is important that the Minister of State considers amendment No. 28, in particular. I hope it will be reconsidered for Report Stage.
The Minister of State underlined the reason for our concern when he said that acceptance of amendment No. 28 would restrict the Government's right to advise the President. That is good. He is saying that there might be circumstances where the Government would not act. The Minister of State is shaking his head, so I had better allow him to respond.
Mr. B. Lenihan: That was not my intention. My point is that, because of the constitutional provision, there are doubts about the extent to which we can qualify it in legislation.
Dr. Henry: I am intrigued by the Minster of State's explanation. Amendment No. 28 differs from amendment No. 26 because it seeks to ensure that those who have been convicted of a criminal offence because of incompatibility will have a means of remedy. The major problem with the legislation is the provision that the sole remedy available will be monetary compensation. Money is not always a remedy for the wrong done. In view of this, I ask the Minister of State to reconsider. I will withdraw amendment No. 28 with a view to reintroducing it on Report Stage.
Mr. B. Lenihan: A case is pending before the Supreme Court on this issue. As I understand it, the provision under Irish statute law, which was deemed to be constitutional, was contrary to the provision of the convention. There is a conviction in issue and the entire matter is before the Supreme Court, where it will be examined in due course. I did not give an extensive textual exegesis on the amendment because the Minister would prefer to leave the matter until the Supreme Court clarifies the legal position. It is easier to draft legislation when the precise position is known.
Mr. Norris: When is the decision expected?
Mr. B. Lenihan: That touches on an earlier part of the debate.
Dr. Henry: Could there be a delay and will the Supreme Court give reasons for its findings?
Amendment, by leave, withdrawn.
Dr. Henry: I move amendment No. 27:
In page 6, between lines 30 and 31, to insert the following new subsection:
“(6) In relation to any declaration of incompatibility, the Court may grant such other non-monetary relief or remedy, or make such order, within its powers as it considers just and appropriate.”.
I reiterate that the Bill provides that remedies may only take the form of monetary compensation. Monetary remedies are not necessarily always the cure for the wrong that has been done.
Mr. B. Lenihan: Section 5 is structured in such a way that when the High Court or the Supreme Court, on appeal, make a declaration of incompatibility, the person in whose favour the order is made will be faced with two choices. He or she can decide to take the case to Strasbourg on the sole issue of damages. In deciding whether to take that course, the person will receive legal advice on the issue. It might be to the effect that, as in many cases, the Strasbourg court takes the view that the decision is just and satisfactory and merely awards the applicant his or her legal costs. Senator Norris may have a view on that point and on the jurisprudence of the Strasbourg court in that connection. In other cases, the court may make an award of damages under Article 41 of the convention, but, as the Minister stated, the amount of these awards is not overly generous.
An alternative is to apply under section 5(4)(b) to the Attorney General for compensation from the Government on an ex gratia basis. There has been some confusion about this. The role of the Attorney General is merely that of a conduit for the processing of the application. He or she has no function or role in the matter, other than to bring it to the attention of the Government. The Government may appoint an adviser to advise it as to the amount of compensation payable and in coming to a decision. The adviser will be obliged to take appropriate account of what the principles and practice the Strasbourg court would apply under Article 41 of the convention.
The amendment does not fit easily with that procedure. It allows the High Court or the Supreme Court to grant relief for a non-monetary remedy or to make such offers as it considers just and appropriate. The problem, as the Minister went to great lengths to explain on Second Stage, is to decide how the courts can give such a remedy when the legislation involved is valid, having been enacted by the Oireachtas under the Constitution. This is why section 5(2)(a) provides that the validity or continued operation of the statutory provision cannot be affected by the making of the declaration. This is the fundamental principle on which the Bill is based. Senator Ryan referred earlier to this section, but no amendment has been set down in that connection. The same position applies in the United Kingdom.
The use of a legal mechanism such as declarations of incompatibility to deal with a case in which legislation is incompatible with the convention and which cannot be resolved by judicial interpretation, is a novel way of ensuring that the doctrine of the separation of powers is retained. Only the Oireachtas has the power to change the law. There is no doctrine of implied repeal. The Bill respects the sensitivities of the Judiciary about being given an overriding constitutional power of explicit legislative repeal.
The question of damages under the convention rightly and properly must take account of the jurisprudence of the court in Strasbourg. In effect, if the amendment was accepted, following a declaration of incompatibility, we would provide a different scale of damages in the Irish courts than the quantum that applies in Strasbourg. This would open two different systems of convention law on the question of damages.
Mr. Norris: The Minister of State has neatly underlined the fact of the matter by suggesting that there could be two parallel systems, which the Government would wish to avoid. It could have avoided it if it taken the constitutional route or, failing that, opted for full legislative incorporation. The European Convention on Human Rights and the Constitution would then have been synchronised. We seek a synchronisation to demonstrate that the country has a real commitment in this area. The Minister of State said that the Government has opted for the worst option which, if the amendment is accepted, might lead to a parallel situation. The Government has created this problem because it chose what it was advised was the worst possible option.
The proposals on ex gratia payments are patronising. If people win a case in which their fundamental human rights are trampled upon, they will be told that any compensation accruing to them will be a matter of grace and favour and that the lordly figures of the Government might deign to patronise them with a little charity, which it is not compelled to do but which it will provide out of goodness. It will fling a few coins at the plebs. No, thank you. That is not republican justice. We did not fight for our independence for that.
Dr. Henry: The Minister of State is a lawyer and I am a doctor. For years I have endured lawyers giving me medical advice, so I will not start to give the Minister of State legal advice. However, Article 13 of the convention provides that people are entitled to an effective remedy and it does not specify that it must be financial in scope. The Minister knows my views on the role of the adviser. In saying this, I do not cast aspersions on a person who has not yet been appointed. However, it would be better if the court decided on the remedy.
Mr. B. Lenihan: To address the point by Senator Norris about the right in republican justice to have a large sum of money paid to one on the establishment of a violation of one's rights as a result of a legislative violation, there is not always such an automatic right. When an Act of the Oireachtas is declared unconstitutional, there is no automatic right to damages. The plaintiff in proceedings which establish unconstitutionality does not have an automatic right to damages. The same position obtains as far as the convention is concerned. In certain circumstances, the court in Strasbourg has awarded damages and that is the legal context in which this provision has been drafted. One always has the right to seek damages in Strasbourg under the system that operates there. We have interposed the option and the authority for the Government to make a settlement of an issue before it gets to that stage. We have not provided for a jurisdiction in the Irish courts as that is a separate jurisdiction to the jurisdiction which exists in Strasbourg. That is the essence of the matter.
Amendment put and declared lost.
Amendment No. 28 not moved.
Question proposed: “That section 5 stand part of the Bill”.
Mr. Ryan: I appreciate complexity and I understand the complexity of this section, but that is no excuse for section 5(2)(a), which provides that the declaration of incompatibility shall not affect the validity, continuing operation or enforcement of the statutory provision or rule of laws in respect of which it is made. The wording is appalling. Essentially, this means that the while the declaration is fine, we will nevertheless carry on as before. The fact that we may have done this in the past is irrelevant.
By means of this section, the Government is saying that while one can have a declaration of incompatibility and, perhaps, receive damages in the courts, it will carry on until it is ready to do otherwise. There is no timescale involved. That is an affront. I was fascinated by the Minister's reference, on section 7, to the expanded human rights protection provided in the Bill. If there is no remedy, one has no extra rights other than the right to go to court at, presumably, one's own expense to get a declaration that one's rights were violated. Nothing will be done about it.
Mr. B. Lenihan: Where a declaration of incompatibility is made, it means that a section – or sections – of an Act of the Oireachtas which is in operation is declared incompatible with the convention system. The Act, as enacted by the Oireachtas, remains on the Statute Book and it is for the Houses to address the issue. For the protection of all parties involved with the operation of Acts of the Oireachtas, the Act must continue to have a validity until the impasse is resolved.
Question put and agreed to.
Amendment No. 29 not moved.
Section 6 agreed to.
Dr. Henry: I move amendment No. 30:
In page 6, before section 7, to insert the following new section:
“7.–(1) A Minister in charge of a Bill in either House of the Oireachtas must before the Second Reading of the Bill:
(a) make a statement to the effect that in her or his view the provisions of the Bill are compatible with the Convention provisions (referred to in this section as a ‘statement of compatibility'), or
(b) make a statement to the effect that although she or he is unable to make a statement of compatibility, the Government never the less wishes the House to proceed with the Bill.
(2) The statement must be in writing and published in such a manner as the Minister considers appropriate.”.
This amendment seeks to ensure that any legislation being brought forward is declared to be compatible with the convention in order to avoid a scenario in which future law is incompatible with it. If the Minister who brings a Bill before the House wishes it to be enacted, despite the fact that it is incompatible with the convention, the amendment provides that the House will know that this is case. As the Minister of State is aware, such a provision is included in the United Kingdom legislation as the Minister of State knows. I thought the Minister would consider making the provision in the Dáil.
Mr. Norris: I agree with Senator Henry that this is a useful amendment. According to the record of the Dáil, the Minister gave an undertaking to examine this matter on Report Stage in that House, but I am not sure what conclusion was reached at that point. It seems reasonable to fire-proof legislation. While past legislation may, by historical accident, come into conflict with the European Convention on Human Rights while being held to be compatible with the Constitution, incompatibility can be avoided in the future. We should provide for a fire-proof certificate or a something similar to the national car test. If we are prepared to test cars before allowing them on the roads, surely we should be prepared to test legislation. A statement should be made to the effect that legislation has been tested against the European Convention on Human Rights and is believed to be in accordance with its provisions. It is not much to ask that a certification be provided with legislation to indicate that is the intention of the Oireachtas to avoid, at all times, conflict between its legislation and the European Convention on Human Rights.
Mr. Ryan: I have no objection to the amendment, but I wish to pose a question. When we discuss the convention provisions to which the amendment refers or those to which the section refers, we are speaking only about those provisions that will be referred to in European Convention on Human Rights Act 2003. Does section 7 restrict the Human Rights Commission to the defence and vindication of those sections of the convention that are incorporated in the Bill before the House? The convention is defined differently here to the full convention. Are we saying in the section that the Human Rights Commission can defend only those rights provided for in the Bill, as distinct from those provided for in the full breath of the convention?
Mr. B. Lenihan: The rights referred to are those specified in section 1 of the convention. That provision is made in the interpretation section of the legislation.
Mr. Ryan: Is the commission entitled to assist people in asserting those rights even though they are not mentioned in the Bill?
Mr. B. Lenihan: The commission will have a role in testing legislation, which is one of the reasons I am not accepting this particular amendment. Under section 8(b) of the Human Rights Commission Act 2000, the Minister can request the Human Rights Commission to examine any legislative proposal and to report its views on any human rights implications it might have. That provision has already been used by the Minister in regard to several Bills.
Senator Norris referred to a vehicle testing centre for legislation, but that role is, of course, performed by the Attorney General. The Attorney General advises the Government on these matters and has had a long practice of doing so due to the existence of a written constitution. While there is a provision in the equivalent United Kingdom legislation that is similar to the proposed amendment, a very different constitutional structure exists in that jurisdiction and the British Attorney General does not advise on compatibility with basic law. Our Attorney General advises on compatibility with the basic law and also with our obligations under the European convention. That procedure and advice are already available to the Government. The Attorney General, as guardian of the public interest, must protect the Constitution and vindicate constitutional rights. That comes into play in any analysis of draft legislation.
Acting Chairman (Mr. Moylan): As it is now 2 p.m. I am required to put the following question in accordance with the order of the House today: “That amendment No. 30 is negatived, that the undisposed of sections of the Bill, Schedules 1 to 5 and the Title of the Bill are hereby agreed to and that the Bill is reported to the House without amendment.”
Lydon, Donal J.
Mooney, Paschal C.
Ó Murchú, Labhrás.
Tellers: Tá, Senators Minihan and Moylan; Níl, Senators Norris and Ryan.
Question declared carried.
Report Stage ordered for Tuesday, 24 June 2003.
Sitting suspended at 2.15 p.m. and resumed at 2.30p.m.
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