The new Minister for Justice, Mr McDowell, is being urged to seek a new Bill on human rights, writes Carol Coulter
It is now over four years since the Irish Government, in the Good Friday agreement, committed itself to incorporating the European Convention on Human Rights into Irish law. The Bill to do so lapsed with the end of the last Dáil, and the Human Rights Commission would now like to see it substantially redrafted.
Despite the commitment in the Good Friday agreement, Ireland is now the only EU member-state not to have incorporated the Convention. Doing so has already generated considerable debate between different Government Departments, and this is likely to continue with the new Government.
Incorporation of the Convention should mean that citizens have access in Irish courts to the vindication of the rights it protects. At the moment, the only recourse citizens have is the lengthy and expensive legal trek to Strasbourg, after every legal avenue in Ireland has been exhausted, seeking a declaration from the European Court of Human Rights there that their rights have been infringed.
Among those who have made that trek is the Independent Senator, Mr David Norris, who obtained a ruling that his right to privacy had been infringed by the prohibition on homosexual behaviour. A ruling from that court also brought about some changes in the rights of unmarried fathers.
Human rights campaigners have long argued that it should be possible to make arguments under the Convention in the Irish courts, and initially it seemed that the incorporation of the Convention would make this a reality.
By September 2000 a draft was ready, a straightforward incorporation of the Convention by way of legislation. This would have stated that the Convention would have had the same force as Irish law, and left it to the courts to sort out any conflicts that might arise with existing legislation.
However, the then newly-appointed Attorney General, Mr Michael McDowell, saw problems with this form of incorporation, which he saw as creating a sort of shadow Constitution. He was also worried that it would mean the retrospective amendment of some legislation, and that it could take away the existing "margin of appreciation", allowing different interpretations of the Convention in different states, from the Dáil and put it in the hands of the judiciary.
There were other worries about the draft. The Department of Finance was concerned at the financial implications of court findings that citizens' rights had been infringed by the State, and there were worries in parts of the Department of Justice that aspects of the legislation setting up the Criminal Assets Bureau and the post-Omagh emergency legislation could be challenged.
So the Bill went back to the drawing board, and a new Bill presented, which reached committee stage before the dissolution of the Dáil.
This provided for a much-diluted form of incorporation, according to which the Convention is the standard by which all administrative action is judged.
The courts are excluded from this provision, so the question of delay in dealing with a case, for example, cannot be pursued in this State, and the unfortunate litigant must still go to Strasbourg. If a citizen challenges a law, he or she can obtain a declaration from the Supreme Court that it runs counter to the Convention. But the offending law is not then struck down. All the citizen can hope for is monetary compensation - at the discretion of the State against whom the action has been taken. Mr Donal Barrington, president of the Human Rights Commission, has questioned the constitutionality of this provision.
When the Oireachtas Committee on Justice, Equality, Defence and Women's Rights discussed the Bill last year he made this and other points, and they are put in written form in the document launched yesterday.
Another contributor to that discussion was the Bar Council, which argued, among other things, that the courts should be bound by the Convention. This is significant, as it had been argued this is not permissible because of the separation of powers. Judges of the higher courts have been drawn from the bar. The person making those arguments was none other than the Bar Council's chairman, Mr Rory Brady SC, who has just taken over Mr McDowell's job as Attorney General. The latter is now the Minister responsible for presenting the Bill, so the debate about the scope of incorporation between the two offices may well continue.
Carol Coulter is Legal Affairs Correspondent of The Irish Times