The model of incorporation of the European convention into Irish law outlined by the Attorney General would create difficulties, warned Mr Gerard Hogan SC.
If a "declaration of incompatibility" was made between a law and the convention, what would happen, he asked. "What if a person was in custody and a declaration of incompatibility was made regarding the law under which he was being held? Would he be released?"
He stressed he was not saying the difficulties in the "interpretation model" could not be adequately resolved by the ingenuity of the courts in both Ireland and the UK. Eventually, however, he suggested, the manner of incorporation might have to be revisited "by the incorporation of the ECHR via a full-scale constitutional amendment"
Referring to recent decisions of the Supreme Court, Mr Hogan said it had shown "an unfortunate tendency towards result-oriented jurisprudence. A number of statutes which should have been found unconstitutional were saved by dubious reasoning."
He referred specifically to the Heaney v Ireland decision where the court held that Section 52 of the Offences against the State Act, which compels suspects to answer questions, did not constitute a disproportionate interference with the right of free speech.
A few months after this the European Court of Human Rights took an entirely different view in the Saunders v United Kingdom case. It found that the public interest could not be invoked to justify the use as evidence of answers compulsorily obtained in non-judicial investigations.
"The reasoning in Heaney is unimpressive and shows an unwillingness to protect the very essence of the right to silence. Not only is Heaney plainly wrongly decided, but the effect of the judgment is simply that there is a sort of stay of execution on section 52 until the ECHR pronounces the section to be incompatible with the convention."
However, he added, "we now have probably the strongest Supreme Court bench in the history of the State. In my view they should leave behind the era of result-oriented constitutional jurisprudence and ensure that henceforth our standards of human-rights protection will meet the highest international standards."
Mr Michael Farrell, a solicitor and former co-chair of the Irish Council for Civil Liberties, said the incorporation of the convention could have a major impact on the rights of citizens.
He said he favoured going further than the UK model and putting the convention "at the very heart of our legal system".
Addressing the criticism that this would result in judges making laws instead of the Oireachtas, he asked: "Would that be any different from the courts reading into the Constitution unenumerated rights that are very unlikely to have been in the minds of the electorate that voted for the Constitution?"
He said that, while it was true there was considerable protection for human rights in the Constitution, this did not extend to the six cases where Ireland was found in contravention of the convention.
However, access to the European Court of Human Rights was greatly restricted by the time and cost involved. It had taken David Norris almost 16 years to take his case on homosexuality through the domestic courts and eventually through the European Court of Human Rights in Strasbourg, and have the decision reflected in legislation.
This was despite the fact that, while the case was being heard in the Supreme Court, Strasbourg had found against an identical British Act.