Brian Lenihan Jnr (Dublin West, Fianna Fail)

How well we know it. Here we have no abiding city.

When considering this amendment, we must start with the European Convention on Human Rights. The fundamental principle, common to the legal tradition of all member states – more markedly to those of a civil than a common law tradition – is the distinction between public and private law. In this provision of the Bill the Minister is trying to grapple with that fundamental distinction between matters which pertain primarily to private disputes between parties, be they corporate or individual, and public law, which lies in the public domain. When the convention was adopted, it was always intended by the high contracting parties that it was an instrument of public law that regulated on the international plane the relationship between the contracting states and their individual citizens.

The heart of the Bill is section 3 which obliges the organs of the State to perform their functions in a manner compatible with the State's obligations under the convention provisions and creates a remedy in damages where there is a contravention and no other remedy for damages. While I do not want to anticipate further discussion, I am certain we will be arguing whether that was the appropriate mode of implementation. However, that is the appropriate mode for the purposes of this discussion.

Given that this is the case – this issue would arise on any mode of implementation – a distinction must be drawn between that which clearly lies in the public realm, that is, in the realm of the State and its relation with its citizens, and in the private realm, that is, a dispute between private individuals. It is not intended to incorporate the convention for the purposes of creating individual rights in private disputes between citizens. Therefore, some standard, rubric or definition must be provided to guide the courts. The decision of the Government is that the concept of the "organ of the State", which interestingly for the purposes of the Bill is different from the purposes of an organ of the State in the Constitution, should be the talisman used for the purpose of making that distinction.

The definition section states: