Brian Lenihan Jnr (Dublin West, Fianna Fail)

The Senator has raised a much wider issue. The court in Strasbourg makes declarations of incompatibility. Under this Bill, the Irish courts will be empowered to make similar declarations. The Senator has disavowed any interest in conferring a jurisdiction on our courts to award damages, stating further or other relief may be appropriate. However, under the Constitution, the Supreme Court has confirmed, after some considerable time in divergent High Court cases, that the courts do not have the function of specifically directing the Government to carry out certain activities such as, for example, opening residential centres for children and that, in fact, this is a trespass by the Judiciary on our duties, as a Government and Legislature, to provide for these matters.

I found the Senator's intervention very interesting. It confirms in my mind the grave suspicions and doubts I have in relation to the comments and advocacy, from the Opposition benches in both Houses, on the need for a rights based approach. Rights based approaches ultimately mean that the Government and Legislature abdicate their responsibility and power of choice in relation to public expenditure and allocate to the courts the function of determining priority in expenditure matters – a course about which I have very grave reservations. The very area the Senator has outlined has only confirmed my doubts in that regard. In the particular area to which she has referred – the care, protection and total support of young children in difficult circumstances coming before the courts – because of the difficulties outlined in the case which was taken to Strasbourg, the State has decided to invest an enormous sum of money in developing high support and special care units for children who are out of control and have not come before the criminal courts.

This investment has been made and huge difficulties have been encountered in training and retaining staff in the particular institutions. All this work has been done as a result of the court decision. Also, as a result of the court decision, other areas are not getting the expenditure they require. In effect, the decision has been entirely removed from the political process. That is the consequence if one goes down that road. I am glad the Senator opened the issue, thereby allowing me to express a view which I know is shared by other members of the Government in this regard.

On the specific issue of the amendment, to allow the courts, either in Ireland or Strasbourg, to say, "You are in breach of this particular provision of the convention – this is what you must now do," would be, in effect, to bring judicial powers, whether on the international or domestic level, straight into the business of the Executive and the Legislature. For example, when the judgment in the Airey case was handed down in relation to civil legal aid and the State was found to be in breach of its obligations in that regard, the obligation was then cast on the Government and the Legislature to draw up a scheme of legal aid. However, the court could not take it upon itself to draw up the scheme and issue a circular setting out the persons entitled to legal aid and calling on the Minister for Finance to supply €X to fund the scheme. In effect, that is the end result of giving such powers to the courts.