The Government's decision to proceed with the incorporation of the European Convention on Human Rights and Fundamental Freedoms (ECHR) into domestic law should, on the face of it, be widely welcomed. Ireland is the last State of the forty-one members of the Council of Europe to do so even though it was one of the first, on the entry into force of the ECHR in 1953, to permit individual petitions to be made to the European Court of Human Rights. The rights of the individual will now be additionally protected. The movement towards an equivalent level of basic rights, North and South, and the protection of them, will be facilitated in accordance with the spirit of the Belfast Agreement.
After reports of differences of approach between the Department of Justice and the Attorney General's Office on the issue, the Cabinet agreed yesterday to draft a Bill, as a matter of priority, to give legislative effect to the incorporation. The Government intends to seek all-party agreement for the Bill in the new Dail session. But if the Government's decision to proceed with the incorporation of the ECHR into Irish law is long overdue, the manner in which it has chosen to do so raises questions. Three options were put before the Government: a constitutional amendment to incorporate the ECHR into the Irish Constitution; incorporation by legislation giving the ECHR the same force as Irish law and leaving it to the Irish courts to sort out conflicts; and, finally, what is being called an "interpretative incorporation" by legislation. The Government is reported to have chosen the last option.
The difficulties surrounding different methods of incorporation have been examined over the years, most recently by the Constitution Review Group in its Report in 1996. The group, chaired by Dr T. K. Whitaker, recommended that the ECHR should not be directly incorporated into the Constitution. It argued that the replacement of the existing Fundamental Rights provisions by the ECHR would lead to a diminution of some individual rights, for example the right to personal liberty in Article 40.4. It also claimed that incorporation would not fill any gaps at constitutional level but could create new gaps in areas such as the right to jury trial. The review group held that the replacement of the Fundamental Rights provisions of the Constitution by the text of the ECHR would mean jettisoning sixty years of well-established and sophisticated case law.
The Government did not have the option of accepting the review group's conclusion, however, following the undertaking in the Belfast Agreement that "the question of the incorporation of the ECHR will be further examined". This commitment was strengthened by the Taoiseach at the height of the difficulties in the peace process last May when he stated that the ECHR would be incorporated into Irish law. A Bill is to be brought forward, belatedly, to coincide with the incorporation of the ECHR into British, and Northern Ireland, law on October 2nd.
In all of these circumstances, the Government may have sound reasons for choosing what could be described as a hybrid-type incorporation of the ECHR into Irish law. It apparently wants to ensure that the law will be made by legislators, not by judges. The fear of civil libertarians is that the Government may have opted for the minimalist route. If there was sincerity in the calls by Taoiseach, the Tanaiste and the Minister for Arts, Culture, Gaeltacht and the Islands, Ms De Valera, this week for a debate on European issues, they should speak out now on this point. The issue of human rights is fundamental.