The European Convention on Human Rights is to be given effect in Irish law three years after this commitment was given in the Belfast Agreement.
The Minister for Justice, Mr O'Donoghue, announced on Tuesday that the Government had approved the text of the European Convention on Human Rights Bill, which will also carry amendments to the Human Rights Commission Act. These will enlarge the commission from eight to 14 and allow it to take court proceedings based on the convention.
The commission has been operating on an interim basis since earlier this year and must await the passing of this Bill in order to be properly established.
The president of the commission, Mr Justice Donal Barrington, is frustrated with this delay. "We would have preferred a two-section Bill providing for the enlargement of the commission, passed by agreement with the Opposition," he told The Irish Times yesterday.
If the amendments to the Human Rights Commission Act remain in this Bill, the commission is unlikely to be fully operational before autumn at the earliest. This would mean that the joint North-South committee of the two human rights commissions, provided for in the Belfast Agreement, could not be set up.
The Bill is expected to provide for a minimal form of incorporation of the European Convention on Human Rights. Its main provisions are to ensure that the courts shall, subject to the Constitution, interpret laws in a manner compatible with the convention, and that every organ of the State performs its functions in accordance with it. It provides for "judicial notice" to be taken of convention provisions.
Where the High Court, or the Supreme Court on appeal, rules that there is an incompatibility between national law and the convention, a "declaration of incompatibility" may be granted by the court.
For constitutional reasons this decision will not affect the validity or continued operation of the law in question. However, where a person has been granted such a declaration, and he or she has suffered loss or damage as a result of the law, the person may apply for ex-gratia compensation from the Government.
The decision will not mean, for example, that where an individual is in custody, and he or she successfully challenges that under the convention, the person will then be released.
Commenting on the Bill, Mr O'Donoghue said that it did not set out to create any new rights, as the State had been bound by the convention's provisions for 50 years, and the 1937 Constitution had provided extensive protection for individual rights.
"The primary purpose behind the Bill is to facilitate actions under the convention being taken in Irish courts rather than in the Strasbourg court," he said.
Responding to the Minister's announcement, the director of the Irish Council for Civil Liberties, Mr Donncha O'Connell, said: "The model of incorporation chosen by the Government will do little to supplement the rights already guaranteed by the Irish Constitution and Irish laws."
He added that people would still have to go to Strasbourg where there was a difference in the levels of protection under the Irish constitution and the Convention. He also stressed that the Norris and Keegan cases [on gay and parental rights] and the recent case in Strasbourg on the right to silence, would not have been decided any differently in the Irish courts if this Bill had been enacted at the time they were tried.
Mr O'Connell queried the decision to amend the Human Rights Commission Act through this Bill rather than through separate legislation, thus delaying the commission coming into full operation. This prevented the new commission making constructive comment on the Bill, he said.
Commenting on legislation which has a human rights dimension is part of the brief of the commission.