Results 121-140 of 16,537 for speaker:Brian Lenihan Jnr

Seanad: European Convention on Human Rights Bill 2001: Committee Stage. (19 Jun 2003)

Brian Lenihan Jnr: Article 34 of the convention provides for the right of individuals to apply to the Court of Human Rights in Strasbourg in cases where they claim to be victims of alleged violations of convention rights. This is the right of individual petition. The related Article 35 of the convention enables the court to deal with such cases only after all domestic remedies are exhausted and within a time...

Seanad: European Convention on Human Rights Bill 2001: Committee Stage. (19 Jun 2003)

Brian Lenihan Jnr: The Lawless case was the first individual petition to Strasbourg, on which occasion the State's position was upheld. I take the point the Senator makes but, in a sense, he has missed the point that the rights in the Bill are rights in international law – the right of individual application to a body in Strasbourg and the right of that body to exercise compulsory jurisdiction. It is...

Seanad: European Convention on Human Rights Bill 2001: Committee Stage. (19 Jun 2003)

Brian Lenihan Jnr: Ireland has signed and ratified Protocol No. 13, as the Senator pointed out, which abolishes the death penalty in all cases. Protocol No. 6 to the convention, which is in the Schedule to the Bill, also makes provision for the abolition of the death penalty, but in Article 2 it permits states to make provision for it in time of war or imminent threat of war. We have amended the Constitution to...

Seanad: European Convention on Human Rights Bill 2001: Committee Stage. (19 Jun 2003)

Brian Lenihan Jnr: The effect of this amendment would be to bring the courts within the definition of "organs of the State" in section 1 of the Bill. It would ensure they were bound by the obligations imposed by the Bill, specifically the requirement in section 3 to perform their functions in a manner compatible with the State's obligations under the convention. This matter has been debated at length in the...

Seanad: European Convention on Human Rights Bill 2001: Committee Stage. (19 Jun 2003)

Brian Lenihan Jnr: The argument for the position might be that by the time a judgment is given enough discussion has taken place and there has to be an end to litigation. That is the common law position. Senator Jim Walsh referred to the need for accountability in judicial decisions. While the difficulty is that there must be finality in judicial decisions, the questions the Senator raised are being examined in...

Seanad: European Convention on Human Rights Bill 2001: Committee Stage. (19 Jun 2003)

Brian Lenihan Jnr: This debate relates to section 3 of the Bill, which will create a new remedy in Irish law. It will allow a person who has suffered injury, loss or damage as a result of a contravention of the convention, if no other remedy in damages is available, to institute proceedings to recover damages in respect of the contravention in the appropriate court, the High Court or the Circuit Court under a...

Seanad: European Convention on Human Rights Bill 2001: Committee Stage. (19 Jun 2003)

Brian Lenihan Jnr: Article 1 of the convention provides that the high contracting parties shall secure to everyone within their jurisdiction the rights and freedoms defined in the convention. That is the obligation on the State in the international sense.

Seanad: European Convention on Human Rights Bill 2001: Committee Stage. (19 Jun 2003)

Brian Lenihan Jnr: I regret to advise the Senator that it would do some damage to include the amendment, since one of the key definitions we are discussing is "organ of the State". The Senator posed the question at an earlier stage of the debate as to whether the courts were an organ of the State. The courts are, in our constitutional law, an organ of the State but not in this proposed legislation.

Seanad: European Convention on Human Rights Bill 2001: Committee Stage. (19 Jun 2003)

Brian Lenihan Jnr: Regarding the precise point raised by Senator Henry, it appears that the amendment is based to some extent on an equivalent provision in United Kingdom human rights legislation where there is a provision that it is unlawful for a public authority to act in a way incompatible with the European Convention on Human Rights. The term "public authority" is not defined in the United Kingdom Act. We...

Seanad: European Convention on Human Rights Bill 2001: Committee Stage. (19 Jun 2003)

Brian Lenihan Jnr: The Senator has raised the practical problems that can occur in the context of hospitals and schools. If one examines the issue of hospitals, one sees that a health board is a body established by law under the definition provided by the Act. In the case of a private hospital, other considerations would apply. It is not possible in legislation to provide an exhaustive list of whether a body is...

Seanad: European Convention on Human Rights Bill 2001: Committee Stage. (19 Jun 2003)

Brian Lenihan Jnr: The proposed section goes to the heart of the legislation. It is a Second Stage matter and the Minister outlined his views on it. The amendment would make a fundamental change in the way in which further effect is to be given to the convention in Irish law. The Government decided that the best course open to us is to provide for a form of incorporation based on the interpretative model. The...

Seanad: European Convention on Human Rights Bill 2001: Committee Stage. (19 Jun 2003)

Brian Lenihan Jnr: As Senator Norris is only too well aware, litigants face difficulties in all legal proceedings. This Bill is drafted in such a way as to at least give clarity to litigants as to the precise status of the convention in Irish law. The provision in the Bill of a right of action for damages is an innovation and is not provided for in the equivalent United Kingdom legislation. Senators asked about...

Seanad: European Convention on Human Rights Bill 2001: Committee Stage. (19 Jun 2003)

Brian Lenihan Jnr: I do not have that information to hand but the majority of EU states subscribe to the monist view of international law. Our near neighbour, the United Kingdom, does not and it shares with us the dualist view and has decided on—

Seanad: European Convention on Human Rights Bill 2001: Committee Stage. (19 Jun 2003)

Brian Lenihan Jnr: —-a form of incorporation not unlike ours. It has not, however, provided for this right of action for damages which we have provided for in the Bill. In regard to Senator Terry's intervention on the Bar Council and the other groups, we are coming close to the heart of the issue. The Minister and the Government have a strong view on this question based on their conviction that the...

Seanad: European Convention on Human Rights Bill 2001: Committee Stage. (19 Jun 2003)

Brian Lenihan Jnr: The Senator was once a major beneficiary of the existence of the Strasbourg shadow.

Seanad: European Convention on Human Rights Bill 2001: Committee Stage. (19 Jun 2003)

Brian Lenihan Jnr: The Senator identified one of the rare divergences between the Irish bill of rights and the European system. That said, those are the reasons that particular decision was taken. Of course these bodies express their points of view, as they are entitled to. I do not agree with them and neither does the Government. The Government believes it has a responsibility to the Constitution in this...

Seanad: European Convention on Human Rights Bill 2001: Committee Stage. (19 Jun 2003)

Brian Lenihan Jnr: The cases involved in proceedings of this character will involve serious matters for all parties concerned, including the State. It is in the public interest that the exposure of the State to potentially large awards and damages should be reasonably short, commensurate with the rights of the individual. For the sake of comparison, if a person wishes to invoke the right of individual petition...

Seanad: European Convention on Human Rights Bill 2001: Committee Stage. (19 Jun 2003)

Brian Lenihan Jnr: I think the Minister said he would have a look at it, but he took the advice of the Attorney General and decided to resist the amendment. I will outline the general views of the Minister in this area. The purpose of section 4 is to provide that judicial notice be taken of the jurisprudence of the Court of Human Rights, as well as the other Strasbourg organs relating to the provisions of the...

Seanad: European Convention on Human Rights Bill 2001: Committee Stage. (19 Jun 2003)

Brian Lenihan Jnr: The matter raised by the Senator is the same as that which related to amendment No. 15. Essentially, section 4 deals with the doctrine of judicial notice. The Oireachtas frequently includes a section of this type in legislation. Effectively, we are instructing the courts that they do not have to have all the matters set out in the section proved as a matter of evidence. They just need to...

Seanad: European Convention on Human Rights Bill 2001: Committee Stage. (19 Jun 2003)

Brian Lenihan Jnr: While I accept that, I am not convinced of the need for amendment No. 18. The Bill provides that, before a court decides whether to make a declaration of incompatibility under section 5, the Attorney General and the Human Rights Commission must be given notice of the proceedings in accordance with the rules of court that will have to be made following the enactment of this legislation. Upon...