David Norris (Independent)

The Minister of State might like to comment on a quote from a lecture I attended by Donncha O'Connell in November of last year. He stated:

The model of interpretative incorporation is premised on the same principle that underlies the presumption of constitutionality – the presumed intent of parliament. In other words, impugned legislation or acts of certain public bodies will enjoy a presumption of compatibility with the ECHR unless and until a litigant rebuts that presumption. This judicial technique, based on an idealised view of the role of parliament in the legislative process, is often something of a legal fiction and can, according to commentators like Gerard Hogan, lead to quite artificial findings by the courts in their determination to uphold challenged legislation. This deficiency is especially apparent when the Double Construction Test is applied and makes it difficult to conceive of situations where future litigants under the 2001 Bill will have any reasonable prospect of establishing incompatibility with the Convention.

I take seriously the last sentence in particular, in the sense that litigants may have difficulty under this kind of legislation. By incorporating the convention through Senator Ryan's amendment, this situation might be cured.