Brendan Ryan (Labour)

The European Convention on Human Rights is a most extraordinary achievement, not because it contains the wonderful, highfalutin language of, say, the United Nations Universal Declaration of Human Rights but because, within limited legal frameworks, it confers extra-territorial enforcement rights on a court independent of the judiciaries and executives of individual states. It was extraordinary 50 years ago – when concepts of sovereignty were even stronger than they are now – that a group of European states said that, within a limited brief, they would allow their citizens to appeal against the actions of a state to a court which was outside the state and independent of its law and constitution. Like many of the seminal ideas about the European Union, it was visionary and the irony, as others have said, is that had it not been for the horrors of the Second World War, governments would probably never have assembled the political will to set up the European Court of Human Rights. Similarly, but for the Second World War the process of Europe coming together perhaps would never have begun. The convention was an extraordinary and historic idea because it conferred rights on citizens vis-à-vis their own state, enabling them to appeal against its actions and binding the state, except under certain limited circumstances, to respect and implement the outcome.

I agree with the Minister – I have said this on many occasions – that the 1937 Constitution, contrary to much of the superficial liberal analysis of it, is a robust defence of human rights. In many instances, this probably is not worthy of the term "analysis" because people have picked up quaint phrases that characterise the time at which it was written. One has to remember that it was being drawn up when democracy was profoundly unfashionable all over Europe on both the left and the right and within the institution which dominated the ideology of this State, namely, the Roman Catholic Church, which was not keen on it and was quite impressed by many aspects of the so-called corporate state. The wording used in the constitution replicates many of the phrases used in the European Convention on Human Rights, particularly those relating to freedom of speech. The incorporation of the explicit right to criticise the Government sounds quaint, but in the Europe of 1937 it was anything but quaint. There were few countries then – and even fewer two years later – where one, without the risk of being shot – not to mention the risk of being prosecuted – could criticise government.

The 1937 Constitution is usually waved away by liberals as de Valera's constitution, but it is a remarkable document. I would not like the current system of public administration to be given the job of rewriting it because many of the rights that have been developed and interpreted from it could well be heavily qualified. I am certain that the constitutional right to primary education would be diluted because the fashion is to say that the incorporation of social rights into the Constitution is bad. The Supreme Court has taken a view on aspects of this matter which indicates that it is fashionable in the judicial as well as the political process to make such suggestions.