A "shadow of unconstitutionality" falls over the new criminal trespass legislation, according to the Regius Professor of Laws in Trinity College Dublin.
Prof William Binchy was referring to the Housing (Miscellaneous Provisions) Act rushed through the Dáil on the eve of the election, which makes it an offence to enter land without permission or to bring "objects" such as caravans or horses on to land.
Prof Binchy, also a member of the Human Rights Commission, was speaking at a conference on the legislation in Trinity yesterday.
He told the conference, attended by about 150 delegates from local authorities, the Civil Service and Travellers and human rights organisations, that the Act may violate key constitutional provisions.
These include the guarantee of equality under Article 40.1, the right to travel, the rights of assembly and association, the right to autonomy, privacy, health and bodily integrity, the protection of the family and the right to education.
Prof Binchy also said the legislation could be used against people other than Travellers. "Where eco-protesters or others with a political agenda enter premises without the owner's consent, then they will be guilty of an offence under section 19C if two further elements can be established," he said.
These were that they "occupied" the land and that the occupation had the detrimental effects specified in the legislation.
The head of the law school in Trinity College, Mr Gerry Whyte, said that Travellers had already attempted to have their rights addressed by the courts under the Constitution. The results were mixed, he said, but included a Supreme Court judgment that gave Travellers some limited protection against eviction from unlawful sites by local authorities. This has been modified by the recent legislation.
However, judicial decisions over the past 10 years had raised the possibility of the courts being used successfully to challenge other omissions in State provision for Travellers, he said.
"However, victory in the courts has not led to significant tangible improvements on the ground and Travellers still await the provision of an adequate number of halting sites to meet their needs."
Mr David Joyce, national accommodation officer with the Irish Travellers Movement, said the new Act threatened to push Traveller-Garda relations back 20 years, when members of the Garda were widely used by local authorities to "move on" Travellers parked on public land. However, this changed following the Rosella McDonald case in 1981 and gradually relations between gardaí and Travellers improved.
The manner in which the new Act was brought in flouted previous consultation procedures, he said. The problem it was meant to address, large-scale encampments in areas of public amenity like last year's on the Dodder in south Dublin, were discussed by a working group which included the ITM, set up by the then minister for justice, Mr O'Donoghue
. "In its report it concluded that if existing laws were enforced, it would address the issue in full," Mr Joyce said. "The working group made a number of sensible and proportionate recommendations, which would have made it easy for land-owners affected by this type of activity to access the court and obtain civil injunctions. However, all these recommendations were totally ignored by the government."
Another ministerial commitment, that the law would not be used against families waiting for accommodation, had also been broken, he said, referring to recent evictions in Cork, Lucan and Ennis.
Ms Jane Liddy, a member of the Human Rights Commission and formerly with the European Commission of Human Rights, said that a recent case involving gypsies gave grounds for hope that Travellers' rights would in future be vindicated by the European Court of Human Rights in Strasbourg.
She referred to a case taken by gypsies who had been asked to remove caravans from their own land, where the British state settled the case rather than allow it to proceed.