David Norris (Independent)

The background to the Bill is quite clear. Ireland is one of the ten founding signatories to the European Convention on Human Rights. As we had the first case, the Lawless case, to be heard in Strasbourg, we have had a long period of involvement. However, I can only give the most guarded welcome to the Bill, as it is quite clear it takes a minimalist approach. We are doing the least amount possible in the circumstances. This is not at all adventurous and flies in the face of the best legal opinion in the country, including that of the Human Rights Commission which advised strongly on a different option. We have worked ourselves into a complete nonsense in some sections of the Bill where we have provided for a situation where a citizen can go to a domestic court in Ireland for a declaration that the impugned section of the law or behaviour contradicts the European Convention on Human Rights but remains compatible with the Constitution; despite the damage done to that individual's rights, he or she has no remedy. That is extraordinary. We are placing the court in the invidious situation where it will find a violation of fundamental human rights but there is nothing it can do about it. It can rely on an ex gratia payment from the Attorney General and perhaps resort to the European Court in Strasbourg again.

I have a review by the Human Rights Commission of this matter which quotes the old Latin tag, ubi ius ibi remedium– where there is a right, there is a remedy. That is a basic principle not only of international law but also of the Constitution, Article 40.3 of which states:

1o The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

2o The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.

The State is not doing this. The legislation provides citizens with a certificate stating their rights are being violated and virtually nothing can be done about it. This flies in the face of the Constitution. The Human Rights Commission states it is unacceptable to place the courts in a position where they can identify a breach of human rights and not be in a position to give an effective remedy.