McDowell backs payment for infringement of rights

An ex-gratia payment could be awarded to citizens who successfully argued they were affected by a law in the State which was …

An ex-gratia payment could be awarded to citizens who successfully argued they were affected by a law in the State which was incompatible with the European Convention on Human Rights, the Attorney General said.

This was one possibility under consideration to allow domestic courts to give their own remedies to people whose convention rights had been infringed - rather than having the matter resolved in Strasbourg, Mr Michael McDowell told a law conference.

A Bill to incorporate the convention into Irish law will be published in this Dail session, the Minister for Justice has said.

The Attorney General said such an informal remedy would "permit the State to hold up its hands" in cases where it conceded constitutional law contravened the convention.

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The Minister, Mr O'Donoghue, said an issue in drafting the forthcoming legislation concerned what powers the courts should have to give adequate remedies, such as the payment of compensation and damages, in a situation where Irish constitutional law was incompatible with convention rights.

The Attorney General said there seemed to be no constitutional problem in according to courts in the State a jurisdiction to award damages as a remedy against public law bodies for "unwarranted infringements of ordinary people's convention rights".

The Minister mentioned a particular difficulty in compensating somebody who claimed their convention rights had been infringed in circumstances where it was clear the infringement was legally authorised by a constitutionally valid statute.

Mr McDowell said: "The most obvious consequence of the legislative incorporation of the ECHR into Irish law will be to encourage our judges" to factor Strasbourg jurisprudence into their thinking.

The conference heard cases were not brought to Strasbourg to obtain large damages but to have a person's rights upheld or to impugn legislation.

Another speaker, Mr Dara Robinson, a solicitor, told the conference the delay in bringing proceedings and the cost were major deterrents for those considering taking a claim for a violation of their convention rights.

"An estimate of the cost of bringing proceedings was furnished in the UK White Paper prior to the Human Rights Act 1998 as being in the order of £35,000 sterling," Mr Robinson said.

He said matters currently before the European court in respect of complaints against Ireland included, among others: the incarceration of troubled children in custodial institutions, the ban on religious advertising and the length of ongoing civil proceedings.

Cases which the Government had lost in Strasbourg include the Airey case (which brought in civil legal aid), the Norris case (ruling against the criminalisation of homosexual acts) and the Dublin Well Woman Clinic case (allowing publicity for abortion clinics abroad). These were brought under the right to a fair trial and access to justice, respect for privacy and the right to freedom of expression.