While the incorporation of the European Convention on Human Rights into Irish law has been delayed by differences between Government departments, there is no doubt that it will happen. The only question is when, and what form the incorporation will take.
When it does happen it will mean that the rights guaranteed in the Convention can be invoked by citizens in court actions against the State and, possibly, in actions against other citizens. Up to now any citizen who wished to vindicate their rights under the Convention had to go to the European Court of Human Rights in Strasbourg, and could only do so after exhausting all domestic remedies, including an appeal to the Supreme Court.
Cases which the Irish Government has lost in Strasbourg include the Airey case (which brought in civil legal aid), the Norris case (ruling against the criminalisation of homosexuality) and the Dublin Well Woman Clinic case (allowing publicity for abortion clinics abroad). These were brought respectively under the right to a fair trial and access to justice, respect for privacy and the right to freedom of expression.
Article Two of the convention guarantees the right to life, and already the Strasbourg court has ruled that Britain violated that right when its forces shot three members of the IRA in Gibraltar. This precedent would have to be considered if the family of John Carthy took a case under the convention in the Irish courts.
They are likely to be able to do so next year, when the convention will be incorporated in some form.
Others who may be looking at the convention with interest include lawyers whose clients are having their property seized by the Criminal Assets Bureau, prisoners who feel their conditions amount to "inhuman and degrading treatment", those unable to access legal aid promptly, and Irish language activists who feel their language rights are not upheld in practice.
The Bill at present being drafted, although a less direct incorporation of the convention than what was previously planned by the Department of Justice, is likely to say that the judiciary should interpret the law by reference to our obligations under the convention.
This is similar to the path followed by the UK, which stipulates that laws should comply with the convention. The British legislation allows for a "declaration of incompatibility" between a piece of legislation and the convention to be made by the courts.
However, this does not strike down the legislation in question. It is up to Parliament to put it right, and it can do this either by amending the law or by a ministerial order. The law continues to operate in the meantime, and no damages arise for the person who challenged it. A similar provision is being considered for the Irish incorporation Bill.
This is seen by human rights activists as the "minimalist" approach to the incorporation of the convention. However, those defending the Government's position point out that the Irish Constitution already gives a high degree of protection to human rights, unlike many other European countries.