Pádraig Mac Lochlainn (Donegal North East, Sinn Fein) | Oireachtas source

I commend Deputies Pringle and Healy on this Private Members' Bill. Sinn Féin supports the proposed amendment to the Constitution. A total of 85% of the members of the Constitutional Convention voted in favour of amending the Constitution to strengthen the protection of economic, social and cultural rights, and a majority of the convention voted for a constitutional provision along the lines put forward in this Private Members' Bill.

Sinn Féin proposed a bill of rights amendment in its submission to the Constitutional Convention, having appropriate regard to the Good Friday Agreement - Strand Three, Part 6, paragraph 9. The Constitutional Convention was required by its Oireachtas mandate to have "appropriate regard" to the Good Friday Agreement in its deliberations. Strand Three, Part 6 - Rights, Safeguards and Equality of Opportunity, paragraph 9 of the Good Friday Agreement describes the obligation on the Irish Government to take "comparable steps" to the establishment of a bill of rights for the North. The British-Irish Agreement of 1998 to which the Multi-Party Agreement is annexed, together forming the Good Friday Agreement, is an inter-state treaty with binding effect on the Irish Government under international law, as recognised by the Irish courts.

The Irish Government has a clear obligation under the terms of Strand Three of the Good Friday Agreement, at Part 6 also known as "Rights, Safeguards and Equality of Opportunity", to introduce additional constitutional protections and human rights guarantees. Under the heading, "Comparable Steps by the Irish Government", it states:

The Government will, taking account of the work of the All-Party Oireachtas Committee on the Constitution and the Report of the Constitution Review Group, bring forward measures to strengthen and underpin the constitutional protection of human rights. These proposals will draw on the European Convention on Human Rights, ECHR, and other international legal instruments in the field of human rights ... The measures brought forward would ensure at least an equivalent level of protection of human rights as will pertain in Northern Ireland.

While some of the additional human rights related comparable steps described later in paragraph 9, such as the establishment of a human rights commission, the adoption of enhanced equality legislation and so forth, were met relatively soon afterwards, as was the obligation to incorporate the European Convention on Human Rights in some way into domestic law, the primary constitutional reform aspect of its terms remains to be fulfilled 15 years later.

Constitutional change to improve the situation is required, involving comparable steps in both jurisdictions. In current terms, applying the logic of the Part 6 assessment, neither the Human Rights Act 1998, incorporating the ECHR, in the North nor Articles 40 to 44 of the 1937 Constitution plus the European Convention on Human Rights Act 2003 in the South provides the complete protections indicated in paragraphs 4 and 9, nor can the other international human rights treaties ratified by the two governments do so, as most of these still have neither constitutional status nor even status in domestic law, North or South. When read in light of the equivalence obligation set out at paragraph 9, what Part 6 indicates is that what is therefore needed, but remains outstanding in both jurisdictions, is a comprehensive bill of rights that incorporates but also goes beyond the ECHR rights. Sinn Féin believes that the Oireachtas should authorise a fresh mandate for the Constitutional Convention specific to this purpose.

The 1937 Constitution is now more than 75 years old. At the time of its adoption, it was undoubtedly one of a handful of constitutions that helped set the world standard for protection of fundamental rights and freedoms. However, over successive decades its provisions, and the conservative interpretation of them by the Irish courts, have often fallen short of the mark in this regard. Today, the Constitution struggles to keep pace with our evolving sense of rights and wrongs. Indeed, there will be a vote on Friday on one of those matters that will hopefully strengthen our Constitution in terms of equality. Almost 20 years ago, the leading experts of the Government appointed Constitution Review Group made a thorough assessment of Articles 40 to 45 that set out the fundamental rights of Irish people. Its final report recommended approximately 50 amendments that were required to bring these constitutional provisions up to contemporary standards. Unfortunately, with only a few exceptions, these were never acted upon by the Government of the day or by any government since then.

While the All-Party Oireachtas Committee on the Constitution stated its intent to proceed with this overhaul of the fundamental rights provisions, that work had barely begun before the committee was dissolved. There is consequently no question that these constitutional provisions are still in need of amendment to ensure that all citizens can be fully guaranteed treatment with respect and dignity, can be better protected from abuse of power, can hold the State to account for its actions or inaction and get redress for wrongdoing on the part of the State.

We maintain that consideration of a bill of rights amendment which could treat this matter systematically and comprehensively is both an implied obligation and a logical approach. In addition to the obligations under the Good Friday Agreement that I have outlined, there are five main reasons that a bill of rights amendment would benefit Irish citizens and, therefore, deserves consideration.

First, Articles 40 to 44 on fundamental personal rights are not enough. It is true that Articles 40 to 44 protect an important subset of fundamental rights, but their provisions are far from complete. For example, while they contain many civil and political rights, they do not contain most economic, social and cultural rights.

The question is not whether Articles 40 to 44 provide any protection; it is whether they provide sufficient protection of all the fundamental rights recognised in the 21st century as well as the equivalent protection required under the Good Friday Agreement. The answer to that question is "No". According to the Constitution Review Group, "experience... has demonstrated that Articles 40-44 contain flaws and are in need of revision" not least because "the list of rights expressly protected by the Constitution is, by contemporary standards, incomplete" and "it is scarcely satisfactory that [certain important rights do] not receive general constitutional protection". That is why the review group recommended almost 50 amendments to these articles, some of which are extensive. In addition, Article 45 on directive social principles has been rightly criticised for describing another subset of fundamental rights but at the same time stipulating that these rights cannot be the subject of constitutional litigation. In other words, they cannot be enforced by citizens. This is not satisfactory. A comprehensive bill of rights amendment can remedy these identified deficiencies and bring Ireland's constitutional protections back into line with international best practice.

Second, the unenumerated rights model disadvantages citizens. It is true that the courts have interpreted the Constitution and Article 40 in particular to include some additional unenumerated rights. This is welcome. There is certainly room under its current provisions for a more progressive judiciary to go even further, as the Indian judiciary has done in interpreting very similar clauses. This means the extent of our rights under the Constitution remains largely under judicial control and subject to judicial discretion, as pointed out by the Constitution Review Group. The unenumerated rights model is fine for lawyers and judges, but it is not great for citizens. The Constitution is not just for legal professionals; it is the citizens' contract with the State. It sets out what the State is permitted to do, is required to do and is prohibited from doing. It is an important tool that citizens can use to hold the State to account, to get justice when the State acts wrongly or fails to act when it should and to vindicate their fundamental rights. Average citizens should know and clearly understand their constitutional rights, rather than having to guess what they are or needing specialised legal knowledge and expertise to interpret the basic meaning of provisions. Understanding the content of the Constitution, especially the provisions it makes on fundamental and other constitutional rights, should not be the preserve of judges and lawyers alone. A bill of rights amendment could help provide clarity and certainty in a way that is accessible and meaningful to the average person. This is, in effect, what the EU Charter of Fundamental Rights did. It gathered together all the EU-recognised rights, including the unenumerated rights that had been confirmed through judicial decisions of the European Court of Justice with a view to making these rights more transparent for citizens for the ultimate purpose of enhancing their enforcement, in a single accessible document.

Third, ordinary equality and human rights legislation is not enough. While the enhanced corpus of equality and human rights legislation, such as the Equal Status Acts and the European Convention on Human Rights Act 2003, is very welcome - indeed, it was one of the benefits of the Good Friday Agreement we gained here in the South - ordinary legislation is not enough to provide sufficiently robust and durable guarantees of these equality and other human rights. Without constitutional protection, a future Government could simply repeal this legislation if it so decides. In contrast, constitutional provisions such as those contained in a bill of rights provide a more permanent guarantee and can only be repealed by the Irish people. The fact is we need both the Constitution and a future comprehensive bill of rights within or attached to it to provide the core guarantees and the avenue for judicial remedies for violations of these rights. The much more detailed legislation provides a necessary framework for implementation of these rights and can provide for both non-judicial and quasi-judicial remedies short of the courts. The two structures play different but complementary roles.

Fourth, the EU Charter of Fundamental Rights does not provide sufficient extra protection. The charter applies in relation to domestic incorporation and implementation of EU law only. Even so, many of its provisions are made subject to domestic law. While it is welcome - indeed, it was the only part of the Lisbon treaty supported by Sinn Féin - it is not enough.

Fifth, the piecemeal approach of individual additional or amending clauses is not enough. The Constitutional Convention has considered to some extent amendments to protect the equal rights of women, LGBT people and children. It is welcome that it has recommended some important changes that are long overdue, but the two referendums that are taking place this week represent no more than piecemeal reform. It will be fantastic if the Irish people vote in favour of marriage equality on Friday, as I hope they will. I would like to see the other referendum passing as well to ensure people under the age of 35 can attempt to become President of Ireland. I am mindful of the famous painting of Michael Collins that hangs in the foyer of this building. Michael Collins would not have been able to run for President of Ireland under the constitutional provisions that are in place today. This week's referendums do not amount to more than a piecemeal approach. We need the more comprehensive and complete overhaul that would be represented by a bill of rights. Unquestionably, these groups of citizens need and deserve unambiguous constitutional protections. Other groups in Irish society need these protections too because they remain potentially vulnerable to certain abuses. Piecemeal reform is not good enough. A comprehensive bill of rights amendment could ensure everyone gets the constitutional guarantees and protections they need. The adoption of a comprehensive bill of rights amendment would give our fundamental human rights, including civil, political, economic, social and cultural rights, a more central place in the Constitution. This would better reflect the ethos and aspirations of Ireland in the 21st century.

I would like to conclude by commending the two Deputies who have proposed this Private Members' Bill and facilitated this evening's debate. We support the amendment to the Constitution they have proposed. My party would argue that we need to go much further than a simple amendment to the Constitution. We need a comprehensive bill of rights. It can be argued that it should be attached to the Constitution, as is the case internationally. We believe the Oireachtas should reconvene the Constitutional Convention to examine that matter. It should work with the Irish Human Rights and Equality Commission and all the other stakeholders. Until we reach that point, regardless of who is in government we will continue to have debates in here about injustice and the failure to defend citizens' rights. That is our call. We will engage with Governments and with our colleagues in this House until we get to that point.

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