The Government will not meet its own deadline of next month for legislation incorporating the European Convention on Human Rights into Irish law due to differences between two Government departments.
The Irish Times has learned that a memo went from the Department of Justice to the Cabinet last June outlining the options for incorporation, but objections were raised by the Attorney General's office to Justice's favoured option. As a result, the Bill is being redrafted, and the new draft is expected to be ready within weeks.
It will then have to be discussed by the Cabinet before being published and brought before the Oireachtas. This is expected to happen before the end of the year.
The push for incorporation arises from the Belfast Agreement, where the Government undertook "to further examine the incorporation of the European Convention on Human Rights" and which states that the measures brought forward by the Irish Government "would ensure at least an equivalent level of protection of human rights as will pertain in Northern Ireland".
Last June the Minister for Justice told The Irish Times legislation would be brought forward by October, when the Convention becomes part of British law. This happens on October 2nd.
It is understood the draft being prepared before the summer would have involved a straightforward incorporation of the convention into Irish law by way of legislation. This would have stated that this convention would have had the same force as Irish law, and leave it to the courts to sort out any conflicts that might arise with existing legislation.
However, the Attorney General, Mr Michael McDowell, expressed concern about some of the legal and constitutional implications of this form of incorporation, which he saw as creating a kind of shadow Constitution. He was also worried this would mean the retrospective amendment of some legislation.
At the moment the European Court of Human Rights, which applies the convention, uses a "margin of appreciation" which allows different states to interpret the convention according to their own political and legal cultures. It is understood Mr McDowell was concerned that direct incorporation would take this discretion away from parliament and put it in the hands of the judiciary.
It is understood that other Government departments also have concerns, notably Finance, which is worried about the financial implications of citizens asserting their rights under the convention in the courts, and the legal costs to the State if it lost such cases.
Other arms of the State are worried that certain aspects of recent legislation, notably the powers given to the Criminal Assets Bureau and certain aspects of the post-Omagh emergency legislation, might be vulnerable to the convention when it becomes part of Irish law.