Brian Lenihan Jnr (Dublin West, Fianna Fail)

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 are trying to define the boundary between purely private behaviour, not captured by the convention, and public or State matters, which are. In the United Kingdom the "public authority" phrase, comprehended, more or less, in Senator Henry's amendment, has been used, whereas in this jurisdiction the Government has proposed that the phrase "organ of the State" be used as the definition to demarcate the boundary between the public and private spheres.

I see no advantage in mixing two legal concepts and making the distinction between what is in the public and private realms even more difficult to ascertain by setting up two standards. Were I to accept Senator Henry's amendment, I would be introducing into the legislation a second standard for defining what was in the public and private spheres. Reference was made to concerns that a very narrow interpretation could be placed on this matter by the courts. Equally, however, a very broad interpretation could be made by the courts, and the judgment of the Government was that it would have to be left to them as an exercise in interpretation to determine whether a matter was in the public or private sphere.