Seanad debates
Wednesday, 18 June 2003
European Convention on Human Rights Bill 2001: Second Stage.
When a law is found to be incompatible, section 3(3) provides that the Taoiseach shall cause a copy of the declaration of incompatibility to be laid before each House of the Oireachtas within a period of 21 days in order that this House and Dáil Éireann would be put on notice that a particular problem of incompatibility had to be rectified by the organs of Government and State. I say this because some have got this somewhat skewed. What is envisaged, for example, is that if Senator Norris was to be in the same position now as he was then, he would do now what he did then, challenge the legality of the law with which he did not agree up to the Supreme Court, and the Supreme Court if it was minded to make the same decision again – I do not think it would – would say the particular Act he was claiming was unconstitutional was incompatible with the Constitution. It would, nonetheless, be in a position to say it was compatible with the Constitution but incompatible with the jurisprudence of the Strasbourg convention. It would then hand him a declaratory order which he could lay before both Houses of the Oireachtas stating that, although it was consistent with the Constitution, it was inconsistent with the convention. This will never ever happen except in the most extreme of cases.
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