The Bar Council has suggested amending the European Convention on Human Rights Bill to ensure that the Irish courts are bound by it. It also wants the Bill amended to ensure that the courts cannot be sued for damages arising out of it.
These are among a number of suggested amendments put to the Oireachtas Committee on Justice, Equality, Defence and Women's Rights when the Bar Council was invited to address the committee on Tuesday. The chairman of the council, Mr Rory Brady SC, and two of its members, Mr Bill Shipsey SC and Mr Paddy Dillon Malone BL, attended the consultation meeting.
Other suggested amendments include stating that all organs of State should be bound to respect Convention rights in the exercise of their functions, giving the superior courts power to declare laws incompatible with the Constitution, giving them, rather than the Government, power to award damages under it, and providing for greater monitoring and review of the Act by the Oireachtas and its committees.
"These suggested amendments are designed to give greater force to the Convention than is presently afforded to it under the terms of the Bill," their submission said. "Their cumulative effect would be to give the European Convention on Human Rights the force of law in this State."
"The Bill does not in fact give the European Convention on Human Rights the force of law domestically," Mr Dillon Malone told the committee.
He said that if the limited form of incorporation arose from fears about the separation of powers between the courts and the executive, these were misplaced. "Unlike the United Kingdom, the doctrine of parliamentary sovereignty does not form part of our Constitution. In our constitutional system, the courts are the ultimate guarantors of fundamental rights.
"From this perspective, the Bill introduces an element of confusion and risks undermining an important first principle of our Constitution."
He said that the exclusion of the courts from the definition of "an organ of the State" meant they were not bound to exercise their functions in a manner compatible with the Convention.
This was particularly important in the light of the fact that approximately three-quarters of the decisions handed down by the European Court of Human rights related to issues of fair trial and due process, he said.