European Convention on Human Rights Bill 2001: Committee Stage
Dr. Henry: I support this amendment. This legislation is similar to that passed in the United Kingdom. The Good Friday Agreement encouraged that approach. The UK legislation has managed to include the courts, down to the Magistrates' Courts, in this area in a satisfactory manner. The main reason for bringing this forward is to ensure judgments could be given without undue delay and also that people would be given the reasons for them.
When the Minister spoke about this on Committee Stage in the other House he said the problem regarding judgment delays had been solved by section 46 of the Courts and Court Officers Act 2002, which provides for the establishment of a register of weighted judgments and a review procedure to ensure they are delivered. While that is as good as far as it goes, it is not a remedy against the State in the event of a breakdown of the system, which could happen.
The Minister argued that reasons for judgments would be required by the rules of courts being interpreted in accordance with the convention principles, which are commonly given. Sometimes when the reasons are given, they are not adequate enough for the person trying to appeal the judgment to a higher court. In view of this, the amendment would ensure the convention would also apply to the courts. I hope the Minister of State will accept it.
Dr. Henry: I understand judges are not obliged to give reasons for their decisions but it causes great difficulty for those who wish to appeal cases if they do not know the grounds on which decisions have been made. The Minister of State does not think so, unfortunately.
Senator Jim Walsh raised the matter of section 3(1) and the Minister of State explained that the phrase "in so far as possible" is not meant to be a limitation. I hope it will not be but I am concerned that under section 3, we are discussing interpretation in a manner compatible with the State's obligations under the convention's provisions rather than the ability of the individual to vindicate his or her rights under the convention. That may be quite different.
Dr. Henry: I remind the Minister that we do not want judges to be sued either. Some of my best friends are judges. The convention specifically provides that it is only judicial review and appeals which can be sued under the convention.
Dr. Henry: I move amendment No. 5:
In page 4, subsection (1), line 19,after "exercised" to insert "and shall include any person or body certain of whose functions are functions of a public nature, but in relation to a particular act, such a person or body shall not be an organ of state if the nature of the act is private".
The intention of this amendment is to ensure that bodies which are publicly funded but privately managed, such as schools and hospitals, are included in this grouping. They serve a public purpose and should be included as organs of the State and be subject to the convention. It could be inferred from what is there already that they will be included but I feel, and I have had the advice of the Law Society on this too, that it would be wiser to accept this amendment and be quite sure that such organisations are covered.
Dr. Henry: When the Minister for Justice, Equality and Law Reform was here yesterday and some of us pointed out that we had received considerable briefings from the Bar Council and the Law Society, he said he was not going to do a head count of who was in favour of his Bill and who against among his legal colleagues. However, it is worrying that there appears to be such concern that these areas could be interpreted narrowly. Senator Norris has quite rightly pointed out that hospitals and schools are where there have been problems in the past, and I certainly do not want to introduce any list system. It was because those organisations were privately run but had a public function that we ended up with a list system with the Laffoy commission. That is the reason I would really like to see the amendment accepted by the Minister of State. It is very important.
Dr. Henry: The Minister explained yesterday why he had not made the convention part of the law of the State. However, I am unclear on how it was possible to make the Hague Convention on the Civil Aspects of International Child Abduction part of the law of the State yet it is not possible to do so with this convention.
Dr. Henry: It is extraordinary that, for what will almost certainly be a small number of cases, the Government or the Minister involved is not obliged to do anything if incompatibility is discovered. We face a situation where there could be a recurrence of previous difficulties. All that will happen is that a person will receive an ex gratia payment if the Attorney General and an adviser consider it a good idea. As I said on Second Stage, I thought it would be much better if the court gave advice in this area. It is peculiar that this issue is going to be addressed in this way, that there will be no remedy for dealing with future cases and that the person involved in the current case will be referred to some adviser to see what will be the position in terms of an ex gratia payment. This provision was included in the United Kingdom legislation. I understand that it has not caused a great deal of trouble and that there has not been a large number of cases. I do not know why we are not prepared to do it.
In a later amendment in my name and that of Senator Norris, which we may not reach, we propose that the Taoiseach should inform the Dáil about what it was proposed to do if incompatibility went wrong.
Dr. Henry: We have congratulated ourselves several times on the human rights elements of the Constitution. We are confident that these situations will arise rarely. Amendment No. 21 states that the Taoiseach or other Government Minister shall within two months of the declaration of incompatibility make a statement to the Houses of the Oireachtas detailing what measures, if any, it proposes to take. We are not saying that it must do something, but we would like an assurance that it will at least be looked at and not left on the long finger. As Senator Norris said in respect of his case, the Taoiseach of the day said that it was not a priority. We want to be sure that an issue will be considered. We will have a situation where the only remedy being offered is discretionary, which is against the convention. This section is peculiar. I hope the Minister of State will accept the amendment.
Dr. Henry: Deputy Costello pointed out in the Lower House that someone who still had a conviction could have difficulties with travel and in many other areas no matter what financial recompense he or she received. I am keen to get complete our deliberations on the Bill and I will not labour the point. However, many Members thought the issue would be addressed in the Bill. It is not something the Government should want to allow to stand. I am sure it does not want to cause injury to people without being able to rectify such injuries. This is an injury that cannot be simply rectified through finance or by letting the person in question out of prison. There must be something to remove the conviction.
Dr. Henry: I am intrigued by the Minster of State's explanation. Amendment No. 28 differs from amendment No. 26 because it seeks to ensure that those who have been convicted of a criminal offence because of incompatibility will have a means of remedy. The major problem with the legislation is the provision that the sole remedy available will be monetary compensation. Money is not always a remedy for the wrong done. In view of this, I ask the Minister of State to reconsider. I will withdraw amendment No. 28 with a view to reintroducing it on Report Stage.
Dr. Henry: I move amendment No. 27:
In page 6, between lines 30 and 31, to insert the following new subsection:
"(6) In relation to any declaration of incompatibility, the Court may grant such other non-monetary relief or remedy, or make such order, within its powers as it considers just and appropriate.".
I reiterate that the Bill provides that remedies may only take the form of monetary compensation. Monetary remedies are not necessarily always the cure for the wrong that has been done.
Dr. Henry: The Minister of State is a lawyer and I am a doctor. For years I have endured lawyers giving me medical advice, so I will not start to give the Minister of State legal advice. However, Article 13 of the convention provides that people are entitled to an effective remedy and it does not specify that it must be financial in scope. The Minister knows my views on the role of the adviser. In saying this, I do not cast aspersions on a person who has not yet been appointed. However, it would be better if the court decided on the remedy.
Dr. Henry: I move amendment No. 30:
In page 6, before section 7, to insert the following new section:
"7.--(1) A Minister in charge of a Bill in either House of the Oireachtas must before the Second Reading of the Bill:
(a) make a statement to the effect that in her or his view the provisions of the Bill are compatible with the Convention provisions (referred to in this section as a 'statement of compatibility'), or
(b) make a statement to the effect that although she or he is unable to make a statement of compatibility, the Government never the less wishes the House to proceed with the Bill.
(2) The statement must be in writing and published in such a manner as the Minister considers appropriate.".
This amendment seeks to ensure that any legislation being brought forward is declared to be compatible with the convention in order to avoid a scenario in which future law is incompatible with it. If the Minister who brings a Bill before the House wishes it to be enacted, despite the fact that it is incompatible with the convention, the amendment provides that the House will know that this is case. As the Minister of State is aware, such a provision is included in the United Kingdom legislation as the Minister of State knows. I thought the Minister would consider making the provision in the Dáil.
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