The Society welcomes the
publication of the Bill as a further step towards realising the commitments
given on behalf of the State to its citizens in the Belfast Agreement and
subsequently by An Taoiseach. The following observations are intended
to assist in ensuring that the legislation meets those commitments.
With that in mind the Society would suggest the following amendments:
Section 1 (1)
The present definition specifically excludes the courts. The exclusion is apparently on the basis that the Courts have in any event a duty to uphold the Constitution and the law and that their specific inclusion would add nothing to that position. The Society does not agree. The Society believes that it is important that a court be specifically defined as an Organ of State and that Convention responsibilities follow therefrom. The experience of the UK Human Rights Act in including a court in the definition of “public authority” has much to commend it in this regard. In addition, the creation of a “Convention duty” would mean that private law disputes must also be decided in accordance with Convention principles. This safeguard is available under the UK’s Human Rights Act, and the obligation to provide for equivalence of human rights protection North and South under the Good Friday agreement would require that this be included in the legislation.
On the basis that the submissions we make in relation to section 3 are accepted by Government we have no specific submission to make in respect of section 2.
The Society believes that the section as presently drafted will give rise to significant difficulties both of principle and practice.
The Society believes that a priority objective of the legislation must be to ensure that citizens can enforce their Convention rights with minimum delay and expense. Clearly where a declaration of incompatibility is required there will be inevitable formality to the litigation. However, the Society believes that in the preponderance of cases it will be the application, rather than the interpretation of existing law that will be at issue in proceedings where persons rely on their Convention rights. Section 3 accordingly should provide manageable remedies to affected persons. We believe that it should be possible to rely on Convention rights as an alternative within existing proceedings and that it should not be necessary for a Plaintiff to demonstrate, by prior proceedings, that there is no other remedy available.
With these principles in mind we would make the following specific points.
Section 3 (2)
This section focuses exclusively on damages as a remedy. Clearly there are many cases within the Convention remit where alternative remedies are appropriate. Cases of detention in breach of Convention safeguards are but one example. This section should be amended to reflect this position.
As presently drafted it appears to require prior unsuccessful proceedings as a condition precedent to the inception of Section 3 proceedings. It should be amended to reflect the fact that the Convention rights can be pleaded in the alternative in existing proceedings.
The District Court has no jurisdiction to deal with section 3 proceedings. We see no reason in logic for this particularly having regard to the volume of work in the criminal and family law sphere transacted in that court. It is also inconsistent with the proposal to substantially increase the jurisdiction of the District Court. If this section is not amended the Society foresees a multiplicity of litigation in different courts with obvious consequential but avoidable duplication of expense.
Section 3 (5) (a) & (b)
In the view of the Society the Convention should become part and parcel of the working jurisprudence of our courts in all cases. As Convention rights should be justiceable in the context of existing proceedings it is illogical to have different limitation periods, where arising out of the same set of facts the Plaintiff relies in the alternative on the provisions of the Constitution, the common law or statute, or the Convention. We would suggest accordingly that the six year limitation period which applies generally in tort and contract should apply. The usual extensions in cases of minority, disability and non-discoverability should be specifically included.
Relevant in this context and in relation to section 5 is the failure of the legislation to provide resources to citizens to effectively invoke their Convention rights. The silence on the issue of legal aid will undoubtedly give rise to litigation under Article 6 either in the domestic courts or before Strasbourg. Accordingly the Society is of the view that a provision should be made in the Bill for legal aid for the litigation of Convention issues. This would be a welcome first step towards the provision of a comprehensive civil legal aid system.
The Society would welcome clarification as to why it is thought necessary to repeat the phrase “of which that Court has jurisdiction” in each of the sub-paragraphs. The Society is not aware of any cases determined by the relevant bodies which are claimed by any parties to have been determined in excess of jurisdiction. The continued use of the terminology in the Statute may give rise to problems of proof of decisions of those bodies. If the phrase is considered essential to the legislation the Society would welcome an amendment to the effect that the bodies concerned are deemed to have had jurisdiction until the contrary is proved.
Section 5 (1)
The Society would welcome an outline of the Department’s thinking in the drafting of this section. Subject to clarification it appears that a number of difficulties arise. Firstly, as observed in relation to Section 3 (2) how is a party to demonstrate that no other legal remedy is adequate, if this is not by bringing prior unsuccessful proceedings? How is it envisaged that the matter comes before the High Court as Convention points are likely to arise more frequently in lower courts, tribunals and administrative bodies? Is it anticipated that a party must commence separate High Court proceedings in the nature of declaratory proceedings each time a Convention issues arises? Is it considered that the District or Circuit Court could avail of the current case stated procedure to the High Court or Supreme Court respectively for a declaration of incompatibility? Would a party be able to appeal by way of case stated and seek such a declaration? How swift will the procedure be and what is to become of pending proceedings prior to the determination of the incompatibility point? Legal Aid should be extended to cover these applications.
The Society believes that this section as presently drafted will amount to a block on the realistic exercise of Convention rights. The following specific points arise.
Section 5 (3)
We believe the sub-section should also mandate An Taoiseach to lay before the Oireachtas within the said period the proposals of Government to address the incompatibility issue.
Section 5 (4)
Where a Convention Right has been breached, a citizen should be entitled to redress as of right and not on an ex gratia basis. As observed in relation to Section 3 (2) specific provision should be made for those cases where compensation is not an adequate remedy.
Section 5 (5)
Such an Advisor should be mandated to have regard to the principles of Irish domestic law in assessing loss.
We fully accept that the Attorney is an appropriate notice party in any proceedings in relation to a declaration of incompatibility. However, there is a danger that the Attorney may in any particular case have a conflict as between his role as Advisor to Government, perhaps the Government that introduced the legislation in question, and his duties as Chief Law Officer of the State on behalf of all citizens. We believe that separate provision should be made for the representation of the general public interest in such proceedings. Subject to the views of the Human Rights Commission it would appear to the Society that that body would be the appropriate body to represent the public interest.
The Society believes that the Human Rights Commission is a discrete subject matter and ought properly to be dealt with in separate legislation.
The bill provides for a possible delay of up to six months before the Act will come into operation to allow for familiarisation by the judiciary, the legal profession and public bodies. The Society feels that this is a reasonable and sensible provision but in order that proper use of this period is made, there needs to be a substantial education programme as there was in the UK. The Society would welcome Government proposals for this familiarization process, and the related funding to be made available for it.
We believe that this Bill
should take the opportunity to introduce a requirement, such as is incorporated
in the UK Human Rights Act and which is probably required by our “equivalence”
commitment in the Belfast Agreement in any event, that on the introduction
of legislation, the relevant introducing Minister makes a declaration of
compatibility with the Convention to the Oireachtas.