A consensus choice who is determined to be effective, independent (Part 3)

VB: The commission has got off to a bad start with the row over the other appointments to the commission. The Minister for Justice ignored nearly all the recommendations of the selection committee and made his own appointments.

DB: I am kind of between a rock and a hard place in relation to this. I must say I was very impressed by the Minister. I thought he wanted to establish an independent and representative commission and he worked very hard and conscientiously on it.

Under the statute, the commission is supposed to be representative of our society. If you look at the appointments he made, it would be quite incorrect to say that there were any stooges among them.

VB: Did you threaten to resign over his failure to appoint those chosen by the selection committee?

DB: Well, I would prefer not to discuss that. I took the view that you couldn't have a working commission unless you had the respect of the non-governmental organisations. In any case, we now have a situation where I think as a result of our wars we have a very strong commission of outstanding people. I'm delighted with it.

I must say that it was very difficult to see why the selection committee did not select Mervyn Taylor, for instance. He was the minister who put through the equality legislation and he was eminently suitable.

And then there was William Binchy. Whatever you think of his views on abor tion and divorce, he is an outstanding lawyer and very strong on human rights. Neither of these was chosen by the selection committee.

VB: What do you think the commission is going to do?

DB: I think one of the basic ideas we have to get across is that the disadvantaged in society - Travellers, mentally handicapped and the rest - are not to be viewed as merely entitled to our charity. They are all our fellow citizens and are entitled as of right to be at the table with the rest of us.

Then a body drawn from the two commissions [the commissions on human rights North and South] must draft a charter of rights for the whole island. They have been working on this in Northern Ireland for almost two years now and we haven't started yet.

VB: One of the members of the commission, Michael Farrell, has said that its first task would be combating racism, and we should also consider the rights of those accused of crime. Do you believe that?

DB: Yes, I do.

VB: Do you think there's a problem with regard to how those accused of crime are treated?

DB: It's a thing on which you have to be vigilant. We've received certain complaints already but it's not our primary niche. But we've received certain complaints concerning the Garda Siochana already and how the commission will deal with that I don't know. It's something I can't anticipate.

VB: Michael Farrell also suggested the use of the Special Criminal Court for non-subversive crime should be examined. Do you agree?

DB: Well, it's a huge problem, but you have to have regard to the reality that crime is not as it was when I started at the Bar. It is much more organised and violent nowadays, sometimes spilling over into gangland warfare. The question arises: can the normal courts always deal adequately with this phenomenon or do you need special courts?

VB: Do you think it is right that a court which was established to deal with subversive crimes should be used so widely for trying people accused of non-subversive crime and where, very often, such people are not associated in any way with gangland warfare?

DB: I believe it is a big problem and certainly shouldn't be mucked about. We should make up our minds about it. Of course, we should attempt to preserve the jury system wherever possible. But we are a small society, and jurors and witnesses can be exposed to intimidation. The existence or non-existence of intimidation is a vital point, rather than the motives of the perpetrators.

VB: Michael Farrell also felt that the Offences Against the State Act should be reviewed. Do you think that's a priority of the commission?

DB: It is certainly one of the things we're going to have to do.

VB: How about the use of so-called super grasses in major trials nowadays, and convictions on the basis of supergrass evidence without any corroboration. Do you think that's a problem? DB: Yes. I do.

VB: The commission has got quite widespread powers to require the furnishing of documents and require people to attend and answer questions. It seems almost to have the powers of tribunals.

DB: Yes, and all of that requires money.

VB: The initial budget was just £600,000 a year, but if you are going to operate like tribunals, you would need a budget of about £60 million a year.

DB: The Australian Human Rights Commission has a staff of 200. They seem to be the most successful one so far. All I've said to the Minister is that I don't know how much this is going to cost but we need whatever it takes to be effective and independent. There has been some talk recently of £1.25 million.

VB: The necessity for a Commission on Human Rights is implicitly a commentary on the courts. Why can't the courts protect the human rights of citizens? Why do we need a commission to do that?

DB: We have two kinds of problem there. First of all, the notion is abroad that going through the legal system is going to cost you a fortune and that, although we can be rightly proud of our jurisprudence, there is a feeling that the small person does not have access to it. That's why we have to have a kind of human face to deal with people with no means and few means.

We also have the problem of the charter of rights. I think we will probably be able to agree a charter of rights with our Northern colleagues as long as it doesn't appear to come from the Irish Constitution. In other words, we would have to approach these problems in a new language.

I think there's very little difference between the Constitution and the European Convention, but ideas coming from the European Convention or from the United Nations will be a lot more acceptable in Northern Ireland than drawing on what they regard as a theological constitution.

I think we may have to be careful about the way we present our articles and our case in that context.