Brian Lenihan Jnr (Dublin West, Fianna Fail)

I think the Minister said he would have a look at it, but he took the advice of the Attorney General and decided to resist the amendment. I will outline the general views of the Minister in this area.

The purpose of section 4 is to provide that judicial notice be taken of the jurisprudence of the Court of Human Rights, as well as the other Strasbourg organs relating to the provisions of the convention and the relevant protocols, Nos. 1, 4, 6 and 7, to which further effect has been given in the Bill. The section also provides that a court shall, when applying and interpreting the provisions of the convention, take due account of the principles laid down in that jurisprudence in all its various forms. In other words, the provision is a persuasive one.

It has been noted that the provision does not provide that the Strasbourg jurisprudence should have binding effect similar to that of the European Court of Justice in so far as European Community law is concerned under the various EC treaties. The approach which has been adopted in the case of the convention is that it should have a persuasive effect. I would like to set out the reasons for this.

The convention system recognises that it is possible to satisfy the requirements of the convention and give effect to its provisions in a number of different ways, particularly where social values of contracting states may well be different. The European Community system, on the other hand, is geared towards harmonisation. Convention case law represents a minimum threshold of rights which convention states themselves may well wish to exceed. The "take due account" requirement in section 4 allows for this. There is no imperative that the convention countries should adopt a uniform solution. I would not expect, for example, that an Irish court would wish to follow a decision of the European Court of Human Rights in the case of Reyntjens and Belgium in 1992, which decided that the obligation to carry an identity card and to show it to the police when requested to do so does not as such constitute an interference in a person's private life within the meaning of Article 8 of the convention. It is possible, therefore, that given our very well developed case law on fundamental rights and freedoms based on the Constitution, that Irish courts might give a lead to Strasbourg and show that standards and respect for the rights of the individual in this jurisdiction are higher than those required by the convention.