European Convention on Human Rights Bill 2001: Report and Final Stages
Dr. Henry: I second the amendment and thank Senator Norris for tabling it again. I was more concerned after the reply from the Minister of State at the Department of Justice, Equality and Law Reform to my amendment which was worded the same as this one on Committee Stage. In this country we have a long tradition of private institutions carrying out functions for the State. As I pointed out when we had this debate on Committee Stage, I was not looking for the Minister of State to make some sort of list now because, unfortunately, we have ended up with one from the Laffoy commission where private institutions which were carrying out functions for the State had to be investigated. I strongly believe this amendment should be accepted.
I was particularly anxious about the reference to private hospitals and how they would be different. Even as we speak, under the national treatment purchase scheme, we are paying private hospitals to carry out work on public patients. They should not be treated under a different regime to public patients within public hospitals. I am more anxious now than I was after hearing after the Minister of State's replies on Committee Stage because of our long tradition of private institutions carrying out work for the State.
On numerous occasions it has gone badly wrong and now the State is paying for public patients to be treated in private hospitals - it is not as though they have wished themselves into this situation. The State has purchased the treatment for them, yet apparently they will not be covered by the same legislation as public patients being treated in a public hospital. I require no deathbed conversion; I wish the Government good health and hope the amendment will be accepted.
Dr. Henry: I second the amendment. It addresses one of the most serious issues in the Bill which has not been rectified, even though the Minister said he would re-examine it when Deputy Costello raised it in the Dáil. There are real problems of incompatibility between the convention and the legislation in the case of persons who have been convicted. Deputy Costello pointed out that convictions can stand in the way of persons who wish to travel.
We have all seen the mess that exists for many people who have tried to travel to the United States since the twin towers disaster of September 2001. I am sure the Minister of State will have read in the newspapers about a lady who was resident in the US for 30 years and whose husband and family live there at present. She has not been allowed to return to the US for the past seven months, since she came to Ireland for a wedding, apparently because her US residency papers are not in order. It is not as if this issue will not have practical significance for people. It seems wrong that people should be unable to get redress, through no fault of their own, because this Bill only allows for ex gratia monetary remedies.
It is reasonable to ask that these people should have redress and the right to a re-trial, if that is necessary. Presidential pardons are all very well, but they depend on the President. I am quite sure that our President would be a person of great compassion and charity who would want to rectify everything she possibly could. Do presidential pardons exist in the United States of America? What is the general view in regard to this area? The current regime certainly has some peculiar views on justice.
Ms White: It certainly does. Hear, hear.
Dr. Henry: Would a Presidential pardon suffice in this regard? This is a serious practical issue. People have been refused visas for various reasons and it would be dreadful if a person were wrongly convicted and that, due to incompatibility, there was no possibility for them to have a re-trial. Something must be done to allow such cases to be properly treated. The problem with the Bill is that there are no remedies for a vast array of circumstances.
Dr. Henry: I move amendment No. 10:
In page 6, between lines 30 and 31, to insert the following:
"(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.".
This brings us back to the issue of non-monetary relief or remedy, which is so important in this legislation. On Committee Stage, I thanked the Law Society and the Bar Council for the great deal of work they put into considering the Bill and briefing me on it. I also wish to thank the library staff, who managed to provide everything I sought from them.
While I did not go through every case lost by Ireland before the European Court of Human Rights, I was particularly struck by the most recent - DG v. Ireland. The case in question related to a young man who had been incarcerated in St. Patrick's Institution in Mountjoy even though the High Court judge had serious misgivings about doing so because the individual was a minor. On appeal to the European Court of Human Rights, it was found that the child's rights had been violated.
I presume that people who bring cases under this legislation will be granted free legal aid as they fall into that category in other contexts. It is fine to take a case before a lesser court of law where the proceedings will not be overly expensive, but once the action moves to the High Court it can be extremely expensive. If an individual is trying to argue a declaration of incompatibility in the High Court, regardless of whether there is an immediate prospect of personal benefit, I would certainly hope that he or she would have the benefit of free legal aid. It is extremely important that we would ensure it is available in regard to these important points of convention law. I am taking it that this is the position, but I would be grateful if the Minister of State would clarify the matter.
To return to the case DG v. Ireland, what is being proposed by the Minister does not provide any remedy for this person. As I argued on Committee Stage, the convention states that remedies are not discretionary, yet in the legislation before us the only monetary remedy is discretionary. That is most unsatisfactory. The young man to whom I refer eventually got his costs and €5,000 which, of course, did nothing for him. Due to the current state of affairs in respect of suitable accommodation for such people, the monetary remedy will not do any good for anyone who finds themselves in a similar position. It will not prove beneficial for judges, who - as the Minister of State knows better than I - are sometimes at their wits' end trying to find places of accommodation for difficult cases such as this.
We must remember that the individual in the case DG v. Ireland had been in the care of the State since he was two, so it was not as though the State had not had a great involvement in his upbringing, which was, obviously, entirely unsatisfactory. A person like that will not have any remedy at all, which is why the amendment contains a reference to non-monetary relief or remedies.
Dr. Henry: I had thought this legislation was with a view to having European convention cases taken here in order that people would not have to go to Strasbourg to have their rights under the convention vindicated. That is quite clear. However, what I am seeking for a person concerned in this regard is not damages but a remedy. The DG case took about three years to get to Strasbourg. The person concerned was only about 16 years old on being put into St. Patrick's and starting this case. It took at least two, if not three, years to get as far as a ruling in Strasbourg. At that stage, the person concerned would have been old enough to go to St. Patrick's.
My argument is that the person had been in a position to go before the courts in Dublin at age 16, that there was still no remedy, even in the event of winning the case, because there was still no appropriate institution available. The required remedy was a place to go to, not money. Money was of no use to the person concerned in a situation of being put out on the street at age sixteen and a half or whatever. What was needed was an institution to which the person could go. If such an institution was not provided, the next person who appeared likely to be put in St. Patrick's because of the absence of an adequate place in the State, would be in the same position. No remedy was being provided to deal with a situation deemed wrong. One could not simply give money to the person in the DG case and put them out on the street. Some money - not a great deal, I believe - was given to the person at age 18 years and one can only hope it was, somehow, sensibly used for their benefit.
This person, as those who have read the case will know, had been treated abominably by the State - I refer to all of us, not just the Government - from when they were about two years of age. This was not the only instance - there was a constant breakdown in State services for the child. For that or any similar child, there was going to be no remedy as a result of taking the case. It was my hope, in the context of this legislation, that the approach would not be simply in terms of providing a few euro to get rid of the person concerned but that we would also try to remedy the circumstances in which Ireland was found to be in breach of the convention.
Dr. Henry: I move amendment No. 11:
In page 6, between lines 30 and 31, to insert the following:
"(7) Where as a result of an incompatibility between a statutory provision or rule of law and a Convention provision, a person has been convicted of a criminal offence in circumstances where but for the incompatibility or failure the person, would not have been so convicted, or would have been sentenced to a lesser penalty, the Court of Criminal Appeal may on application by that person (including a case where the person was convicted by a court of summary jurisdiction) set aside the conviction or sentence or both and may, if circumstances of the case so warrant, order a retrial.".
Ms Tuffy: I second the amendment.
Amendment put and declared lost.
An Leas-Chathaoirleach: There is a typing error in amendment No. 12. The word "compatibility" is misspelt in paragraph (a).
Dr. Henry: I move amendment No. 12:
In page 6, between lines 37 and 38, to insert the following:
"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 nevertheless wishes the House to proceed with the Bill.
(2) The statement must be in writing and be published in such a manner as the Minister considers appropriate.".
I thought this was a good idea because if one looks at the text of the Good Friday Agreement, it states the measures brought forward will ensure at least an equivalent level of protection of human rights as will pertain in Northern Ireland. This pertains in the legislation in Northern Ireland. I am only trying to be consistent with the Good Friday Agreement.
Dr. Henry: I thank the Leader. I recognise I am beaten once again by the Constitution and the Attorney General.
Amendment put and declared lost.
Dr. Henry: I thank the Minister of State for the clarity with which he explained all the mistakes in my amendments. It was extremely useful. He did not reply to my question about free legal aid. Given his good memory and great brain, I am sure he did not forget it. He just left me in the wilderness to thrash the issue out on the Adjournment. I thank him for his courtesy and kindness during the debate.
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