A bill providing for the laws of the State to be interpreted in line with requirements of the European Convention on Human Rights will shortly be introduced by the Government, according to the Attorney General.
Mr Michael McDowell was addressing a conference on the incorporation of the convention into Irish law, organised by the Law Society in Dublin at the weekend.
The terms of the Constitution, which acknowledge the Irish people - and no international body, court or agreement - establish the fundamental rights of the Irish people, mean the incorporation must take place at sub-constitutional level, he said.
The "interpretative approach" to incorporation was preferable to enacting a law that purported to incorporate the convention, thereby repealing all inconsistent prior law, he said.
Although at first this might appear neater and more thoroughgoing, it raised a number of problems, he said. "What amendment is supposed to be made in such circumstances? Simply repealing all inconsistent law does not substitute new and workable provisions for those which might be impugned."
As the jurisprudence of the European Court of Human Rights developed over time, the question would arise whether there would be a rolling, ongoing process of amendment depending on the outcome of cases in Strasbourg.
There was also the problem of certainty if this approach was adopted. "Are we certain that the legislation relating to the Criminal Assets Bureau would be upheld if challenged in Strasbourg?"
He pointed out that states that have ratified the convention were not bound to have identical laws, but that a "margin of appreciation" existed allowing individual states to balance conflicting rights and interests in line with their constitutions and legal and political cultures. This would be reduced by a blanket enactment of the convention into Irish law.
The interpretative approach allowed the Irish executive and courts flexibility in accommodating themselves to developments in the jurisprudence of the court in Strasbourg. But if the popular sovereignty of the 1937 Constitution was to be respected, "the ultimate decision as to whether Ireland chooses between its own interpretation of human rights and that of a changing court in Strasbourg must lie with the Irish people".
To surrender this function of the Supreme Court to an international court "would amount to a surrender of independence which is not as yet in contemplation among any significant section of the Irish electorate", he said.
He said that no state in Europe accorded its citizens a comprehensive human rights regime which included the right of a private citizen to challenge any legislative or executive act of the state, or act of any private citizen or association of citizens. This did exist in Ireland, where the citizen could not only challenge the State, but, for example, a worker could challenge a trade union which sought to deny him the right to work.
Mr McDowell warned against attempting to extend the concept of human rights "to cover every social and political disideratum", like what are termed social and economic rights. "I regard social and economic policy as primarily and ultimately the prerogative of democratically elected and accountable politicians," he said.