Council of Europe summit will mark its coming of age

Boris Yeltsin will be there, and Helmut Kohl, Tony Blair, Lionel Jospin and Bertie Ahern, as the leaders of 40 countries gather in Strasbourg today for a summit of the Council of Europe. They will agree on a political declaration - largely, as one Irish diplomat put it, "motherhood and apple pie" - and adopt an action plan for the organisation to launch it into the 21st century.

Most importantly, however, the summit will mark the reform and relaunch in November next year of the council's major institutional achievement, the European Court of Human Rights. It will also agree on a ban on human cloning and the strengthening of the campaigns against racism, xenophobia and social exclusion.

In his speech, the Taoiseach is expected to stress the importance of the council's work in the protection of children and in fighting drugs. He is likely also to report on the opening of the Northern Ireland talks.

When the leaders met four years ago in Vienna for only their second summit the organisation counted 32 member-states, up from 23 in 1990. Today that wave of expansion, the product of the collapse of Stalinism in eastern Europe, has completely transformed the 48-year-old organisation, whose democratic standardsetting writ now guarantees the basic human rights of some 800 million people.

Although its profile in western Europe has been somewhat eclipsed in the public consciousness by the European Union, the Council of Europe has come of age in eastern Europe, where newly emerging democracies are trying to establish their credentials for membership of the EU.

Old national tensions and bureaucratic habits die hard, providing plenty of work for the hardpressed Court of Human Rights (not to be confused with the EU's European Court of Justice in Luxembourg) as it enforces the standards of the European Convention on Human Rights (ECHR).

Last year the commission, which rules on the admissibility of cases, opened 12,161 provisional files, registered 4,754 and declared 624 admissible.

From November next year, in an attempt to speed up access to justice, the court and commission will merge and function as a fulltime court for the first time. Most cases will be heard by panels of seven judges instead of the full grande chambre, and the memberstates have all now agreed to accept the right of "individual petition" by their citizens.

The move will serve to highlight an anomaly in Ireland's relationship with the council. With Britain's new Labour government now moving to incorporate the ECHR into its domestic law, Ireland will be the only EU member-state in which the court's writ does not have a direct effect, a sore point for our human rights lobby.

When Josie Airey won her case in Strasbourg for free legal aid and David Norris won his for gay rights, they created an obligation on the government to amend Irish legislation, but did not actually change Irish law. ECHR case law is "persuasive" as an argument in the Irish courts but, unlike EU law, not binding. In other EU countries it is a binding part of domestic law.

The result, human rights lawyers complain, is that to vindicate ECHR rights a complainant must go to Strasbourg, a process that may take many years.

Successive Irish governments have been reluctant to move to incorporation, their legal advice suggesting that such a move would be extremely complex and the case for it fundamentally weaker than it is in Britain.

The situation of the two countries is not comparable, Government advisers say. The absence of a written constitution in the UK means that the incorporation of the ECHR into domestic law will create an entirely new legal framework for securing human rights. In doing so, Labour will in effect be reversing hundreds of years of constitutional history and in some cases establishing new rights that do not exist even in statute law.

In Ireland's case, fundamental human rights are already enumerated in the Constitution; and incorporation would create an entirely different problem, that of marrying similar rights expressed in different words. Many of those rights are also sustained by precedents whose standing would be nullified by a new wording.

In some cases, moreover, the Irish Constitution provides stronger rights than the ECHR - such as rights to bail or trial by jury - and care would have to be taken not to undermine these. Proponents of incorporation argue, however, that in some key areas the ECHR has extended rights well beyond the provisions of the Constitution, on freedom of speech, privacy, and, recently, on the wider definition of the family.

But senior Irish legal sources suggest that the advantage of being able to plead ECHR law in the courts may be illusory. Left to interpret the meaning of the ECHR provisions on privacy rather than those of the Constitution, they ask, would the courts have come to different conclusions in the Norris case? In the end, adjudication by the Strasbourg court would probably still have been necessary.

In a submission to the UN human rights committee, explaining the reluctance to incorporate both the ECHR and the International Convention on Civil and Political Rights into Irish law, the Attorney General's office points to the Constitution prohibition on incorporation and also argues that it would be inappropriate to amend the Constitution to incorporate second or even third parallel provisions where it already provides guarantees.

Yet this pragmatic case against incorporation would be stronger if Irish governments showed themselves to be quicker in implementing reforms required by the court. And, it can legitimately be asked, why, if giving direct effect to the ECHR is so problematic, is that not the case with EU legislation?