Brian Lenihan Jnr (Dublin West, Fianna Fail)

The purpose behind this amendment is to provide for the Minister to make and publish a written statement on compatibility or incompatibility. It seems to be based on section 19 of the United Kingdom Human Rights Act where a Minister must either make a statement about the Bill and whether it is compatible or whether the Government wishes to proceed with the Bill in the absence of making a statement. The development of the position in this area in the United Kingdom since the Act came into force two and half years ago is interesting because the provision has not delivered on its promise. The formula adopted for a compatibility statement to date is brief and uninformative. No reasons are given as to why a statement of compatibility is made on the basis that legal advice should not be disclosed. We have often heard this touted also. In cases where no statement of compatibility is made, this is explained by the Government on the grounds that convention issues are frequently complex and that a debate in Parliament provides the best forum for Ministers to explain their thinking on the matter.

Unlike the position in England and Wales, which do not have yet have a human rights commission, it is important to note that our Human Rights Commission can be requested by a Minister under section 8(b) of the Human Rights Commission Act 2000 to examine any legislative proposal and report its views on the possible implications of such a proposal for human rights. The Minister has already used this provision on several Bills. The Attorney General, as guardian of the public interest, has a function in relation to the protection of the Constitution and the vindication of constitutional rights. The Attorney General is more habituated to this type of exercise than the Attorney General of England and Wales who does not have to tender similar advice to Her Majesty's Government and can rest assured on the enactment of a sovereign Parliament. There is a distinction between the two jurisdictions in that respect. The Government is satisfied the experience of the Attorney General in this area, combined with ministerial power to refer the matter to the Human Rights Commission, are more sufficient safeguards than a paper reference to a compatibility issue.

There is also a constitutional issue in the amendment in that it purports to legislate for a House of the Oireachtas. Under the Constitution, the Houses of the Oireachtas are established by the people and their internal regulation is a matter for Standing Orders of each House. There is a question mark over whether we can legislate along the lines proposed by the Senator.