Ms Sinéad Lucey:

Our point on head 8 was on the quantum effectively being linked to the approach of the European Court of Human Rights. Our point is that the State is really required to put in place a remedy that is effective in the domestic sense rather than replicate a remedy that might be available to a litigant who takes the very long road to get to the European Court of Human Rights.

The difficulty we perceive is that the quantum before the European court is quite different from what would be awarded by the Irish courts in similar cases but that is because the European court is doing a completely different job when it decides a case against the State than an Irish court or quasi-judicial tribunal when it decides on a dispute before it. Often the European court will say it has decided there has been a breach of rights, in the view that the simple act of deciding the case in one's favour and declaring there has been a breach is adequate compensation or, as it often calls it, "just satisfaction". It will often not provide any remedy in damages at all. On other occasions, where it does consider providing remedy in damages, it is often an amount that might well be a very effective remedy in Bulgaria but that would hardly pay for one's flight from Ireland to Strasbourg if one were to go there to have one's case heard. The same applies to legal aid. That can be awarded by the European court.

It is like apples and oranges. While we should be providing for apples, we have ended up providing for oranges, and that seems to be the proposal. Consider the position if we were to reconsider all those cases that went before the European Court of Human Rights and found Ireland in default. If we actually had a properly functioning system of compensation for delays operating in a domestic sense, there never would have been a finding against Ireland. Therefore, the absence of a domestic remedy was the issue but there is now no need to bring in a European remedy and to try to transplant it into the Irish context. To us, there seems to be no real justification for making the direct linkage, and that direct linkage is not made in the European Court of Human Rights Act 2003, which is the main legislation providing remedies for breaches of the convention.

The other problem we have identified, which is probably speculative to some extent, concerns the question of an excessive delay in obtaining a remedy for a breach of one's rights under EU law. If somebody takes a case before the courts, where is he or she supposed to go for a remedy?

If machinery is already being put in place by the State for delays, why should it not accommodate delays in whatever context they arise, be it EU law or a breach of Article 6 of the convention? Again, it seems to be a misplaced notion that this is purely a remedy that should stand in the European Court of Justice rather than before the domestic courts.

The other issue raised is the loop that seems to have been included in the legislation whereby an award made goes to the High Court to be approved and then to the same court for an appeal to be heard on it. While a High Court judge will no doubt act independently if considering an appeal, it could create a perception that the appeals process is not wholly independent if the same forum that approves the award hears the appeal. That is just a basic point. Maybe it needs to be considered.