Brian Lenihan Jnr (Dublin West, Fianna Fail)

The effect of this amendment would be to bring the courts within the definition of "organs of the State" in section 1 of the Bill. It would ensure they were bound by the obligations imposed by the Bill, specifically the requirement in section 3 to perform their functions in a manner compatible with the State's obligations under the convention. This matter has been debated at length in the Dáil and was referred to by the Minister for Justice, Equality and Law Reform in this House yesterday. I will speak but not in the same detail of the reasons the Government has decided not to include the courts in the definitions section of the Bill.

The courts are ordained and obliged by the Constitution, statutes and statutory instruments to perform their functions in accordance with the Constitution, statutes and statutory instruments. Critics of the omission of the courts from the definition of "organ of the State" seem to forget that every rule of the court is a statutory instrument. Every decision of the courts and the Courts and Court Officers Act must be interpreted under section 2 of this Bill in a manner compatible with the convention. The courts do not operate as an autonomous area of unregulated power. They are constrained by the Constitution, statutory instruments and the legislation the Oireachtas has enacted to regulate the conduct of court proceedings. The rules of court constitute a statutory instrument which the courts are obliged to follow. Under this Bill, all of these provisions will have to be interpreted in the context of the convention in a manner compatible with it, if at all possible.

As the Minister pointed out, the notion that the courts will be wholly strangers to the convention and not be obliged to comply with the Bill is wide of the mark. When the Bill becomes law, it will be incumbent on the superior courts, the District Court, the Circuit Court and the Special Criminal Court to apply their own rules and the statutes under which those rules are applied in a manner compatible with the convention in so far as those texts permit them. The phrase "in so far as possible" in section 2 of the Bill is not a limitation. The relevant United Kingdom provision reads, "so far as is possible to do so". In both jurisdictions the intention is not for the courts to ascertain the true meaning but to strive to find a meaning which will prevent the making of a declaration of incompatibility. In other words, they are being asked to apply a rebuttable presumption in favour of the convention rights.