Rónán Mullen: Why Ireland Asked the ECHR for a Rebalance

Thank you very much, Elas Comhairleach. It seems to me that I serve currently on the Irish Parliamentary Delegation to the Council of Europe, along with Senator Stevenson. I have great respect for her and for her concerns. I also currently serve on the Committee on the Appointment of Judges to the European Court of Human Rights. So I've taken a great interest in this issue of what has happened with Ireland's position in joining the Danish initiative and with 25 other countries, I think, to ask, in effect, for a fresh conversation, a rebalancing of the interpretation of the Convention by the European Court of Human Rights. And Senator MacDoul mentioned France, Germany, and Spain. And I find their position very interesting because I think, to some degree, whereas you have 26 countries out of 46, I think, now on the Council of Europe, since Russia is no longer a member, you have 26 countries whose position is very clear, that there has been an overreach by the European Court of Human Rights in its interpretation of the Convention in such a way as creates unacceptable difficulties for member states as they seek to protect their citizens and promote the common good according to their role. What's interesting about France, Germany, and Spain, I think, certainly in some of those countries, it's not that they're on the other side of the argument, as Senator MacDoul has said, and that they are on board with the process. But it also, I think, reflects possible political differences of opinion within their situations, and that that is what has prevented some of them, at least, from signing up as well to the letter. Now, I'm not one for normally saying that just because everybody is in favor of something, that that means that somehow it's a good idea. Your position, Minister, on this has to be saying that just because everybody is in favor of something, that that means that somehow it's a good idea. Your position, Minister, on this has to be examined on its merits. But I think you are in the right, and Ireland is in the right here, in joining with other countries and seeking to interrogate the way the European Court of Human Rights has functioned on these particular issues. And to ask those hard questions of the Court, I know it has given the Council of Europe and the bureaucracy at the Council of Europe a fit of the vapors, for the very good reason, of course, that they are anxious to prevent any perception that the authority of the European Court of Human Rights is somehow relative and that that might somehow give succor to countries where decisions have been made by the European Court of Human Rights that were very much deserved, countries that have genuinely frustrated the cause of democracy, human rights, and the rule of law. But that concern to avoid a perception of relativism or to avoid some kind of a moral hazard that certain countries will somehow disregard the common understanding of human rights can't be turned into some kind of a dogma whereby the courts can never be questioned. Courts are sometimes activists, and they sometimes do lose their way. And it isn't just international courts that can lose their way. It is a very important principle of a democracy that we have the separation of powers. And when I give talks to students, as I occasionally do, I mention to them the fact that we can count ourselves fortunate that our judges are independent, that a Taoiseach or a minister can't ring up a judge in the middle of the night and say, you'd better decide that case this particular way or else. And there are people, sadly, all too many parts of the world who live under that kind of system where there is no separation of powers and where executive power rules all and corrupts the rule of law and frustrates the ability to keep everybody equal before the law. So I'm aware of all of that. And there has to be a respect for the independence of the judicial function. But let nobody say that that means that the judicial function is always perfect and always right. There is an NGO that I have a lot of respect for, the European Centre of Law and Justice, which did a considerable amount of research and looked at, for example, the way the George Soros Open Society Foundation seemed to have an awful lot of influence in forming human rights activists who ended up, in many cases, as I understand it, on the court. And there is a great risk, it seems to me, of groupthink in the whole human rights world around a range of issues. And sometimes human rights bodies talk as though the ideas that they are promoting have been handed down to them from Mount Sinai and can't be questioned and are somehow a true and authentic interpretation of the context of human rights. But it's very far from being the case. And some of those organisations, even in our own country, have feet of clay. Now I noticed that Mr Liam Herrick of the Irish Human Rights and Equality Commission gave yourself a wallop, Minister, for signing Ireland up to this letter of the 26 countries. But he himself had an association at one point, at least, with the Irish Council for Civil Liberties. And a number of us in recent weeks here pointed out how they had misrepresented the actual state of the law in Ireland in a booklet that was produced for schools around their obligations, around pronouns, et cetera, in relation to trans issues. And what we actually saw was a kind of a bait and switch where they held out a certain state of affairs as being an obligation that schools had to use pronouns and suggested that they might be on the wrong side of the law, when in fact the law is in no way settled on those issues at all. So here you had an NGO receiving money, I think from the Human Rights and Equality Commission, towards the preparation of this document, misrepresenting the law for political purposes. And I give that as an example to show that sometimes human rights advocates, human rights academics, like to lead us to believe that a certain state of affairs must apply as a matter of human rights law, when in fact they are very often pushing their own agenda, an agenda that might be shared by practically all of them, but that's an example of groupthink, it isn't necessarily an example of correctness. So I make that point, I make that point not to be controversial, though I know one of my colleagues finds it controversial, and I regret the fact that we transacted very happily yesterday on another matter, but I have to say... Senator Mullen, sorry, I think the Senator's trying to interject in the debate, which is allowed to do under sending orders only if you allow, and if you don't want to do it... I'm happy to allow. Okay, Senator Flynn, you've 30 seconds. Chair, Senator Mullen is speaking about trans rights. Earlier on you said to me to stick to the bill. This bill is not about trans rights, so he's gone way off point. It's about children in international protection. Thank you. As I said, because a lot of the amendments won't be gotten to in relation to this, I'm allowing a little latitude, but this is in relation to the human rights element of the European, which is an element in relation to identity and other issues. So as I said, and I'm being fair to everybody, I'm giving a lot of latitude because a lot of the amendments won't be gotten to, but this does relate to human rights as well. So people can discuss it in that context. Thank you. I can assure Senator Flynn that if I were planning to veer into the air issues and the controversies around trans matters, I'd be speaking and saying an awful lot more than I have been saying on this point. I merely give it as an example for how we see human rights bodies really having feet of clay and how they propose ideas, as I said, as though they were wholly writ, when in fact they are certain people's views of the world. In the same way, I think there is considerable reason to think that aspects of the European courts of human rights jurisprudence have been shaped in some ways by ideology. Now everybody is entitled to their own philosophy and some people will call that one person's philosophy is another, judicial philosophy is another person's ideology. I get that. But the fact is that the courts have gone in a particular direction. And if we are to have democracies, we can't have, we can't set up judges as dictators who can turn previous understandings on their heads without any future change being possible. We might as well just appoint judges to run our countries all together if that was to be the judicial function. But that's not the judicial function. It is the role of judges to interpret the law and to apply the law. And it is the role of democratically elected governments to secure the common good in their countries according to their lights, according to the desires and the will of the people as expressed. And yes, that is subject to higher duties. And it cannot be that governments can cause their legislators to legislate for just anything. Yes, there is an international, there are international understandings about what is necessary in order to promote democracy, human rights and the rule of law. But where are the courts in the views of the majority of governments of the Council of Europe are seen to have lost their way ever so slightly. We can't pretend that this is just about a conversation between governments and courts. Governments want the European Court of Human Rights to reassess its position on certain issues, not on every issue, but on some issues where their jurisprudence has made it impossible in the view of those governments to secure the common good for their people in their respective jurisdictions. And there can be nothing wrong about democratically elected governments meeting, discussing, identifying issues of concern in decisions that have been made and seeking to get the European Court of Human Rights, in this case, to consider the situation and to reassess. And there is no point in pretending that this is just governments acting in some kind of consultative way to help the court make up its mind. There's an awful lot more direction involved in this and that is as it should be.