Brian Lenihan Jnr (Dublin West, Fianna Fail)

Senator Henry is under a misapprehension on one specific point – that there is an intention in the proposal before the House to reverse the DG case, either in substance or as to procedure. The proceedings in the DG case were taken to Strasbourg where the State was found to be in breach of the European convention and an award of damages and costs made, with which the State is in the course of complying. There is nothing in the legislation which takes away from this. What it actually addresses is the quite distinct question as to whether the establishment of a breach or a declaration of incompatibility in Irish law gives rise to a claim for damages in Irish law, in addition to the claim for damages under the Strasbourg system. The Government's proposal is to exclude the possibility of a right for damages in those circumstances following on a declaration of incompatibility.

The Government's view, on the basis of the legal advice available to it, is that the measure of damages in such a case is primarily a matter for the European convention system – it is the court in Strasbourg which decides the level of damages to which one is entitled in the event of a breach or a declaration of incompatibility between domestic legislation and the European convention system.

On the basis of what Senator Henry is advocating, the result of this amendment would be that, say, in the DG case, the Irish courts could also award damages, quite apart from the Strasbourg court. That would introduce a very novel and uncertain element into the European convention system, whereby a separate scale of damages would be available in the Irish courts, above and beyond what was available under the strict letter of the convention in Strasbourg.

That is not to say the Government has not, in its proposal, addressed the issue of concern raised by the Senator. This is where the whole issue of an ex gratia payment comes in, under section 5(4). I appreciate that, by uttering the words "ex gratia", any Government spokesperson, acting on legal advice, exposes himself or herself to criticism. However, the purpose of the ex gratia system now being written into this legislation is to give the Attorney General and the Government, in their discretion, the power to make compensation prior to any decision in Strasbourg, in order that at least the person who has a declaration of incompatibility can obtain the appropriate monetary award from the Government, by way of settlement, prior to the determination of proceedings in Strasbourg. That operation now becomes possible under this legislation.