Michael McDowell (Dublin South East, Progressive Democrats)

This Bill, when it becomes law, will create a European Convention on Human Rights consciousness in our jurisprudence. It will be a rare case where the right to free speech or freedom of expression will be interpreted differently by the Supreme Court from a fair interpretation of the convention provisions. Where such cases arise, the individual will not have to go to Strasbourg to have the difference between Irish and Strasbourg law identified and stated. The Irish courts will be in a position to state it on their own account and in such circumstances the State will then be confronted, before anyone has to go to Strasbourg or to leave the island in legal terms, with the opportunity to amend the law to get it into accordance with the Strasbourg convention. There is also a mechanism in those circumstances to give the person the same level of compensation that he or she would have got had he or she gone to Strasbourg. This is not just a matter of right, because the State has the right to have laws incompatible with Strasbourg, but a matter of ex gratia payment in order to remove from a person in those circumstances any need to go to Strasbourg to get remedial action.

It is theoretically possible that both Houses of the Oireachtas in their wisdom, with the declaratory order handed down by the court, will simply say, "We refuse to change the law as we are happy with the way it is." That is the act of a sovereign Legislature and no more can be said about it. The person in question would then have to go to Strasbourg and argue, before the court established under the Council of Europe convention, that Ireland was in breach of its obligations to him or her. That is possible. However, I believe the increasing effect of this Bill will be that such situations will not arise. I am confident the Bill deals with most of the problems ever likely to arise in a way which is consistent with, and recognises the supremecy of, our Constitution.

Section 6 provides that before a court decides to make a declaration of incompatibility the Attorney General, as legal adviser to the Government, will have to be given notice under rules of court and will be entitled to appear in the proceedings and become a party to them. I accepted an amendment in the Dáil to include the Human Rights Commission also because, as the House knows, it has the right to ask to be heard in court cases dealing with human rights decisions.

In accordance with the provisions of the Human Rights Commission Act 2000, the commission will have the right to apply to be heard as amicus curiae in those proceedings. This point was debated in the other House on the basis that the commission should have an automatic right to be heard in these types of cases. However, the provision giving the commission a right to apply to be heard was deliberately framed in that way in the relevant Act to allow a court to take account of all the factors in such a case, including the paramount consideration of being fair as between individual parties, before making a decision on the matter.

Section 7 in its original form was amended in committee in the other House to take account of the fact that the increase in the membership of the Human Rights Commission was effected in a separate Act namely, the Human Rights Commission (Amendment) Act 2001. Its purpose now is to ensure that the full role and remit of the commission, including the power to take legal action, will extend to cases involving our expanded human rights protection by virtue of the provisions of this Bill.

Section 8 is the usual expenses provision. Section 9, to which a technical amendment was made in the Dáil, contains the Short Title of the Bill and the commencement provision.