Brian Lenihan Jnr (Dublin West, Fianna Fail)

Senator Tuffy has raised a very interesting question about the operation of this legislation. The core provision is section 5(1) which gives the High Court or, on appeal, the Supreme Court, the power to make a declaration of incompatibility between a statutory provision or rule of law – I presume a rule of law would relate to a rule of common law – that it is incompatible with the State's obligations under the convention's obligations. It is an interesting issue as to what would happen regarding a rule of law, whether the court's decision, of itself, would be sufficient there or whether the Oireachtas would have an obligation to follow that through with legislation.

The second subsection to which the Senator has drawn attention provides some degree of protection for the validity, continuing operation or enforcement of the statutory provision or rule of law in respect of which it is made. The declaration of incompatibility is a declaration by the courts that a provision of our law, though perfectly valid and subsisting legally and constitutionally, is at variance with the convention. In other words, the litigant no longer has to travel to Strasbourg. He or she can establish, before the courts established under our Constitution, that a particular law passed under our Constitution is at variance with the convention.