The president-elect of the Human Rights Commission has questioned the constitutionality of the Bill incorporating the European Convention on Human Rights, now before the Dail. Mr Justice Donal Barrington heads the commission, which will oversee the protection of the rights guaranteed under the Convention.
"Is it constitutional to have a decision where parliament defines rights, the courts find that these rights are violated, but can't order compensation? This Bill needs a large measure of thought before it is passed by the Dail," Mr Justice Barrington told the conference.
"It is regrettable that we have adopted the British model of administrative option rather than legislative option," he said.
Three options were available, he said, the constitutional option, which would have required constitutional amendment, the administrative option, necessary in Britain because of parliamentary sovereignty, and the legislative option. This State had opted to follow the British option, despite the fact it did not have parliamentary sovereignty.
"If the courts, under this Bill, arrive at a conclusion that a piece of legislation violates the Convention, they make a declaration. This is sent to the Taoiseach. The Taoiseach informs the Government. The Government decides whether or not to make an ex gratia payment. It appoints a lawyer to assess the damages. There is an assessment. Then the Government decides to pay some of it, all of it, or not.
"It seems extraordinary that that's all. It is regrettable that we have followed this course. There is no parliamentary sovereignty here. Parliament is subordinate to the Constitution and the courts. So now we will have two systems of superior law."
Referring to the impact of the convention on criminal law, he said that there could be problems with the Special Criminal Court under the convention, and the issuing of certificates by the DPP stating that certain cases should go before this court could also arise.