Hitherto our human rights have been protected by our Constitution, in addition to which citizens who have exhausted their recourse to our courts on a human rights issue can go to the Council of Europe's Court of Human Rights in Strasbourg, the decisions of which our Government has bound itself to implement in Irish law.
Now, as a result of the Belfast Agreement, the Strasbourg Convention is to be incorporated in our domestic law, which will greatly reduce the need to take human rights issues to the Court of Human Rights.
But there is a further important development of which we have heard very little in the Republic, a new EU human rights charter. At the Cologne European Council last year the Germans and French proposed the preparation of a such a charter for the EU, to be ready for adoption by the European Council at Nice at the end of this year.
The Court of Justice in Luxembourg, which has the ultimate decision-making power in relation to EU law, has always taken cognisance of the Council of Europe's Convention on Human Rights.
A feeling has grown, however, that the EU needs its own charter, more directly relating to EU issues. At a seminar in the Institution of European Affairs last Thursday on this new charter, three reasons were suggested for this development.
First, it would enhance the credibility of the EU in its relationship with the outside world. Second, by adopting its own charter the EU could strengthen its legitimacy as a political institution. And, third, such a legal development is, perhaps, also seen as a logical next stage in the EU's process of constitution-building, for, with the economic goal of the creation of the single market virtually completed, there is now a move back towards developing further the political construction of the Union.
A charter of this kind could either stick to the traditional political and civil rights that are incorporated in the Strasbourg Convention of Human Rights, or it could add economic, social and cultural rights. These latter are, however, more difficult to enforce.
The task of constructing this charter has been given to a wide-ranging convention, which includes not just representatives of governments, but also those of the European Parliament and national parliaments. The convention is working to a tight timetable: it is due to present a preliminary draft to the Biarritz European Council next October, so that heads of government can have a preliminary look at it before the document is put in final form for the Nice European Council.
One of the issues that will come up for political decision at the end of the year is whether this document will be made a legally-binding text or whether it will merely be a political document of a voluntary character. The draft charter is being designed to be suitable for either purpose and will be presented without any recommendation as to which road should be taken.
Even if it were only to have a political status, so that it did not bind the court, precedent suggests that it would be likely nevertheless to be cited by the court and taken into account in some way in its decisions.
The Government seems to have a reasonably open mind on what ultimately should be the approach to this aspect of the issue. But, together with about half of the EU's governments, it takes the view that because of the very short period within which this text has had to be prepared, it would in the first instance be better to treat the draft as a political text, and then to give some time for reflection and perhaps subsequent amendment before a decision is made as to whether to make the document legally binding.
A distinct question is whether the EU as such should accede to the European Convention, thus involving the Strasbourg court's provisions even more directly in the process of interpreting the Rome Treaty than is now the case.
There have been some hesitations about subjecting the EU to what might be described as external control by the Court of Human Rights. But it would seem logical that it be placed in the same relationship to the Strasbourg court as are its member-states, and there are some signs that opinion may be moving in that direction. It is even conceivable that in time the EU might itself join the Council of Europe as a member.
It should, perhaps, be added that following the post-Cold War accession of 18 more states to the Council of Europe, the Court of Human Rights at Strasbourg has been flooded with cases - several thousand from Russia alone - and is now hugely in arrears with its work. Unfortunately the larger member-states, which tend to be very rigid about increased spending on their international obligations, are refusing to provide the finance necessary for the court to operate effectively.
THIS is extremely disturbing, and I believe that the Republic, together with other like-minded member-states, should expose this failure and seek with others to mobilise resources to prevent the whole human rights process from collapsing under this strain.
Will a new charter of human rights require to be endorsed by a referendum in the Republic? If it were to be merely a political document, it would not require such action, though if it became a legally-enforceable document it would probably require a referendum. But such a referendum should be easily carried.
Finally, a point that requires serious attention, but is not apparently being addressed in the context of the charter, is the fact that - as the House of Lords Select Committee on the European Union has recently pointed out in its seminal report on the charter - the European Court of Justice "may only exercise a limited jurisdiction" in relation to many of the database activities of Europol (crime), Eurodac (asylum) and the Schengen Information Systems (immigration).
There is a further issue raised by the House of Lords committee's report on Schengen, which reveals that part of the EU acquis, to which existing and applicant members have to sign up, consists of decisions adopted in legal form, in most cases by officials rather than ministers, which are secret.
Clearly, secrecy in relation to criminal and security matters is necessary, but, as the House of Lords committee points out: "The process of incorporation [of the Schengen acquis] should be transparent and the laws resulting from it should be accessible to citizens." This is a matter with which the Oireachtas should certainly concern itself.
gfitzgerald@irish-time.ie