Brian Lenihan Jnr (Dublin West, Fianna Fail)

The proposed section goes to the heart of the legislation. It is a Second Stage matter and the Minister outlined his views on it.

The amendment would make a fundamental change in the way in which further effect is to be given to the convention in Irish law. The Government decided that the best course open to us is to provide for a form of incorporation based on the interpretative model. The mode of incorporation chosen by the Government was arrived at only after the most searching examination of the various options open to it in the matter. The force of law as part of the law of the State model, as canvassed in this amendment, was studied in great detail before any decision was taken by the Government. Possible Constitution-based approaches and other legislative approaches were also examined. In this regard, the views of the Human Rights Commission and other human rights-based organisations were examined. Those views were presented to the Select Committee on Justice, Equality, Defence and Women's Rights and many of them were published to inform and stimulate debate. They were discussed at different fora, seminars and conferences. Nevertheless, the position of the Government is that, in our constitutional scheme of things, the interpretative approach is the best and most suitable choice of model for us. There are several reasons for this.

First, we already have a written bill of rights in Articles 40 to 44 of the Constitution. We do not need a shadow constitution in the form of a convention. Second, by giving the convention the force of law in the State, the courts would then be empowered to operate such a shadow constitution. Such a provision would be directly contrary to the provisions of the Constitution in Articles 5.15, which provides that the Oireachtas has the sole and exclusive power to legislate for and in the State. No other authority has the power to make laws for the State. The courts have the power to interpret the law, but they cannot be instructed by the Oireachtas to disregard the clear intention of the Oireachtas.