Brian Lenihan Jnr (Dublin West, Fianna Fail)

Section 5 is structured in such a way that when the High Court or the Supreme Court, on appeal, make a declaration of incompatibility, the person in whose favour the order is made will be faced with two choices. He or she can decide to take the case to Strasbourg on the sole issue of damages. In deciding whether to take that course, the person will receive legal advice on the issue. It might be to the effect that, as in many cases, the Strasbourg court takes the view that the decision is just and satisfactory and merely awards the applicant his or her legal costs. Senator Norris may have a view on that point and on the jurisprudence of the Strasbourg court in that connection. In other cases, the court may make an award of damages under Article 41 of the convention, but, as the Minister stated, the amount of these awards is not overly generous.

An alternative is to apply under section 5(4)(b) to the Attorney General for compensation from the Government on an ex gratia basis. There has been some confusion about this. The role of the Attorney General is merely that of a conduit for the processing of the application. He or she has no function or role in the matter, other than to bring it to the attention of the Government. The Government may appoint an adviser to advise it as to the amount of compensation payable and in coming to a decision. The adviser will be obliged to take appropriate account of what the principles and practice the Strasbourg court would apply under Article 41 of the convention.

The amendment does not fit easily with that procedure. It allows the High Court or the Supreme Court to grant relief for a non-monetary remedy or to make such offers as it considers just and appropriate. The problem, as the Minister went to great lengths to explain on Second Stage, is to decide how the courts can give such a remedy when the legislation involved is valid, having been enacted by the Oireachtas under the Constitution. This is why section 5(2)(a) provides that the validity or continued operation of the statutory provision cannot be affected by the making of the declaration. This is the fundamental principle on which the Bill is based. Senator Ryan referred earlier to this section, but no amendment has been set down in that connection. The same position applies in the United Kingdom.

The use of a legal mechanism such as declarations of incompatibility to deal with a case in which legislation is incompatible with the convention and which cannot be resolved by judicial interpretation, is a novel way of ensuring that the doctrine of the separation of powers is retained. Only the Oireachtas has the power to change the law. There is no doctrine of implied repeal. The Bill respects the sensitivities of the Judiciary about being given an overriding constitutional power of explicit legislative repeal.