European Convention on Human Rights Bill 2001: Second Stage
Dr. Henry: I wish to share time with Senator Norris.
Acting Chairman (Ms Terry): Is that agreed? Agreed.
Dr. Henry: I welcome the Minister for Justice, Equality and Law Reform and I welcome the legislation, although I feel it is inadequate in some ways. There has been a sense of disappointment that this legislation was not brought forward earlier. That is why I am glad it is before the House today. The Minister is very lucky because he has had two bites at this cherry - first, as Attorney General, and, second, as Minister for Justice, Equality and Law Reform. It must be quite something to be both parents of a Bill.
I am glad that the Minister pointed out how rare it has been for cases to be judged in Europe as meriting the benefits of the Convention on Human Rights. The Minister is quite right to say that our Constitution provides great human rights protections. In view of the fact that we are such a litigious group, ten cases in 50 years is quite incredible. The phrase "we will have to go to Europe" is one I have often heard and I would love to know if the Minister's official can tell him how many cases were brought before the court in Strasbourg. The failure rate must be very high indeed.
The Minister pointed out that this legislation comes into effect in association with the promise we made in the Good Friday Agreement. It is important that we try to follow UK law as closely as possible, which is why I am slightly disappointed that the Minister has not made provision to apply the legislation to all courts. In the United Kingdom, the European Convention on Human Rights applies down to the magistrate courts. While the Minister has explained that most cases brought will be dealt with by higher courts, I do not understand why the provisions of the Bill will not apply all the way down to the District Court.
The Minister's explanation that this legislation is not being introduced directly as Irish law is interesting. The President of the Human Rights Commission, Donal Barrington, favoured the 1991 approach to the Hague Convention on the Civil Aspects of Child Abduction, which was brought into Irish law in toto. If that was acceptable then, I do not understand why it is not acceptable now.
The European Convention on Human Rights has been extraordinarily important to all of us as overarching legislation to which we can appeal despite our fine Constitution. We have been involved with the convention since its inception. The cases which have been particularly important are those the Minister discussed involving sexual and family affairs, but it is important to remember that it was our Constitution which permitted the legalisation of contraception through the McGee case. We were not totally coming from behind the wall in terms of these cases. The Airey case was one of the most important of its kind for Irish women because it introduced free legal aid in civil cases. The latter had constituted an area of great difficulty previously.
The aim of the European Convention on Human Rights is to vindicate the rights of the individual, but I do not see that reflected in this legislation on too many occasions. Reference is more often made to the State's obligations under the convention, which is not quite the same as vindicating an individual's rights.
I am also concerned about the use of the phrase "as far as possible". I realise that the convention has always recognised that there may be economic problems in some countries which make it impossible to create the conditions which exist elsewhere. For example, the convention might accept conditions in Greek prisons which would not be acceptable in French prisons. However, I wish we were not using the phrase "as far as possible" because it might really mean the convention will be applied as far as the Government is agreeable.
My main concern relates to the lack of remedies provided for in the Bill, particularly for the mentally ill, prisoners and children. One of the most important provisions of the convention is Article 13, which states that there must be a right to an effective remedy. Everyone whose rights and freedoms set forth in this convention are violated shall have an effective remedy before a national authority, notwithstanding that the violation has been committed by persons acting in an official capacity. I became even more concerned when I read a paper presented to the Law Society of Ireland in October 2002 by Anna Austin, a lawyer in the Registry of the Court of Human Rights, which states:
In addition, in so far as complaints made in Irish courts under Article 13 and other substantive Articles about a lack of an effective domestic remedy for a violation of a convention right are not already answered by the current domestic system, the remedies contained in the 2001 Bill would not appear to fill the gap.
That is an extremely important point. In other words, we are introducing legislation which we already know, and have been told by a very important member of the Court of Human Rights, will not fill the gap. It is not satisfactory. The only remedy offered in this Bill is financial compensation, which will be decided upon at the discretion of the Attorney General, the Government and their adviser. I presume the Government will appoint the adviser. That is not good enough. The adviser, the Government and the Attorney General will be on one side, with the unfortunate person seeking compensation on the other. Money is often an inadequate remedy in any event.
As Senator Terry pointed out, discretionary remedies are against Strasbourg law. Ms Austin's paper also states:
I would note here that, given the need under section 5 to establish that no other legal remedy is adequate and available, it is likely that that applicant will have also obtained a finding of constitutionality prior to the declaration of incompatibility. Accordingly, the non-obligatory nature of the declaration of incompatibility, the ex gratia nature of any damages received (whether or not substantial) and, importantly, the recognition that the impugned domestic provision was constitutional, are likely to be considered equivocal and ambiguous acknowledgements by the State of a breach of the Convention. As such a successful section 5 application would not prevent an individual from continuing to claim to be a victim of a violation of the Convention in Strasbourg.
I look forward to hearing the Minister's reply. Since there are no other remedies other than an ex gratia payment, people will believe they must go to Strasbourg where the case load is already enormous and likely to get larger.
Article 3 of the convention, which deals with the prohibition of torture, is extremely important. It provides that nobody shall be subjected to torture or inhuman or degrading treatment or punishment. Ireland is frequently in dire trouble when committees from the Council of Europe on the prevention of cruel and inhumane treatment and torture visit this country and, particularly, the Central Mental Hospital and our prisons. In October 2002 Ireland was heavily criticised for the state of the Central Mental Hospital but people in the hospital will have no remedy with this legislation. What good is financial compensation to them? They are incarcerated in this institution and our mental health laws will do nothing to help them get out. Furthermore, there is nothing in this legislation to insist that the conditions there are improved.
The second Maastricht convention specifies that there are conditions under which we can default from rectifying conditions but this relates to matters like earthquakes and we cannot claim to be in that position. This legislation will bring no remedy for the people concerned. Nothing in it will assist their human rights. As it is already recognised that there is a lack of resources for implementing the mental health Bill, it will not help them. The criminal insanity Bill appears to be stalled and there is nothing in it to assist them either. Furthermore, where is the rules of prison Bill? I read the Committee Stage debate on the Bill in which a Government Deputy stated Ireland had constantly taken an interest in the rights of Irish prisoners in British prisons. I wish people would take more interest in the rights of Irish prisoners in Irish prisons.
The interim human rights commission, when it was chaired by Judge Donal Barrington, in a submission to the joint Oireachtas committee in June 2002 stated: "We would have preferred a more robust and effective form of incorporation; indeed, strictly speaking the Bill does not propose actually to incorporate the convention into Irish law, only to give it more effect here". How useful will that be for Irish children? If an organ of the State injures children, how will the Bill help them when the only remedy is money? How will the legislation help the children Judge Peter Kelly constantly talks about in his court? It was interesting that the Minister mentioned the last case found against Ireland, which involved a disturbed adolescent and the inadequacy of the remedies for that child. Ireland was pretty badly judged in that case and I see nothing in this legislation to help in that regard.
Article 13 of the convention states there should be a right to an effective remedy. This is not provided for in the Bill. Article 34 states individual applications are possible but that is not being helped either. Article 41 of the convention states people should get "just satisfaction". In Schedule 2 there is provision for the right to education but I do not see where there will be a remedy for children in that regard under this legislation.
When I was a child, I read the book "Heidi", one of the moral tales children were given in those days. In the book the grandfather in the Swiss Alps sent the child out to gather wild strawberries for him. He was ill and wanted to eat the strawberries. The child gathered the strawberries but then got involved in commerce. She sold the strawberries. When she returned to the grandfather with the money, he bit into it and asked how he could be expected to eat it. Money is not always a remedy or what people want. I do not see remedies for those in vulnerable situations under this legislation.
The Bar Council and the Law Society have written about this and a submission made by the interim human rights commission, under the chairmanship of Judge Barrington, was most concerned about the lack of remedies. While I welcome this legislation, I have already tabled amendments to it because there are not enough remedies. One example is the right to education. The convention provides that no person "shall be denied the right to education". There have already been a number of cases in this regard before the courts which have found against the State. The article states: "In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions". These issues are extremely important.
The article dealing with individual applications states:
The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.
However, the remedy of money might not be much good in that case. The article on just satisfaction states: "If the Court finds that there has been a violation of the Convention or the protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party". This again recognises that a monetary remedy may not be what is needed. I regret that the Bill does not make provision for this.
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