There is little point in having the full panoply of the European Convention on Human Rights unless access to it is easily and cheaply available through the ordinary courts, according to Independent Senator Mr Maurice Hayes.
Speaking at the launch of the Irish Human Rights Commission submission on the European Convention on Human Rights Bill, he was critical of the current Bill on the basis that it did not do this.
The Bill lapsed with the end of the last Dáil. It can either be put back on the Order Paper for the new Dáil, or a new Bill can be drafted and started from scratch.
The last Government committed itself to incorporating the European Convention on Human Rights into Irish law, and, after a lot of discussion, came up with a formula that requires all administrative measures taken by organs of the State to be compatible with the Convention.
It does not make the Convention part of Irish law, nor was there any proposal for a constitutional amendment to make it part of the Constitution.
Under the Bill, a piece of legislation can be challenged under the Convention in the Supreme Court, which can make a declaration that it does not conform to the Convention. However, the legislation will not be struck down, and the only remedy for the citizen is monetary compensation, payable at the discretion of the Government.
In this it mirrors the Act in the UK incorporating the Convention. However, as the submission points out, this was necessitated by the British doctrine of the sovereignty of parliament, which cannot permit a supervisory role for any external system of law. This is not the case in Ireland, where there is a long history of the courts being able to rule legislation unconstitutional.
Referring to the British model of incorporation, Mr Hayes said: "That Bill was an ingenious device to deal with the problem of the sovereignty of parliament. We have the same ingenious device, when the problem didn't exist."
The president of the Human Rights Commission, former judge Mr Donal Barrington, noted the European Court of Human Rights in Strasbourg has jurisdiction over 500 million people. "It can't possibly deal with all the cases that come before it. It wants decentralisation so that its workload is reduced and people have speedier access to justice.
"The Bill is a noble effort as far as it goes, but it does not go far enough. It could have been made part of the Constitution, or it could have been made part of the law. The Government could have done either, but it didn't. Instead it made it a standard for administrative action. I called it an English solution to an Irish problem. In fact, as Senator Hayes said, it is an English solution to a non-existant problem," Mr Barrington said.
The new chief executive of the Human Rights Commission, Dr Alpha Connolly, said it may be a blessing that the former Bill had lapsed, as there was now a possibility of drafting a new one.