International Protection Bill 2026: Report and Final Stages
Seanad Éireann — 2026-03-25
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Jim O'Callaghan (FF), Dublin Bay South

I thank Senator Stephenson for her amendment and all Senators for their contributions. It has been a very interesting debate and I am going to try to respond to it as much as I can. I will start by looking at the specific amendment. The debate we had went beyond the amendment, but I want to deal with the amendment at the outset. What Senator Stephenson is proposing is that a provision be introduced into section 3 - which is a section that governs orders and regulations I make under the Act – and that provision will provide that any order or regulation made under this Act shall comply with the European Convention on Human Rights. Everything I do as Minister for justice and every order or regulation I make, whether under this legislation if and when it is enacted or any other legislation, must comply with the European Convention on Human Rights. Not only that, it must comply with the charter set up from 2004 and indeed, more importantly, Bunreacht na hÉireann. I am required to act lawfully in everything I do, and that applies to every other Minister as well. The proposed amendment is unnecessary and could also be misleading because it simply states that there should be a requirement that whatever I do or whatever order I make shall comply with the European Convention on Human Rights. It would need to include that it must comply with the Constitution of Ireland and the charter of fundamental rights. I could list every piece of legislation which is relevant to the provisions within this Act and say that it must also comply with the Data Protection Act and all criminal justice legislation. It is unnecessary. It is implicit in everything that is done in legislation, by second statutory instrument or executive order that I must comply with the law. That applies to every Minister and to every office holder. It is unnecessary to put into legislation that the Minister shall comply with the law. It has to be implicitly recognised that I must and am obliged to comply with the law.
The provisions contained within the European Convention on Human Rights are extremely important and they influence what is contained within this legislation, and indeed all legislation. When legislation is being drafted, the charter, Bunreacht na hÉireann and indeed, the ECHR are all fundamental requirements that must be complied with when legislation has been proposed or any orders are being made. For that reason, I will not be supporting the amendment. It is, in my opinion, completely unnecessary.
The Senator did, however, bring the debate on to a more interesting discussion, and I welcome the opportunity to discuss the role of the European Court of Human Rights, the decision made in Strasbourg by 27 member states of the Council of Europe on 10 December to seek the process to get a political declaration, and other issues which were raised subsequently by other Senators. As I said to Senator Stephenson earlier on, Ireland’s commitment to the European Convention on Human Rights is absolute. That remains the case. However, it must also be the case that we recognise the role played by courts. Nobody elected persons to be on courts. Courts are not representative of individuals within societies or of the democratic wishes of persons. They are there to apply the law. They are a very important part of our constitutional architecture and governance. Elected representatives make laws and the courts ensure those laws are applied. For instance, for many years in Ireland, when challenges were made to our restrictive abortion laws, the courts said they could not change them because of what was in the Constitution, namely, the eighth amendment. We got around that by removing the eighth amendment to the Constitution, and obviously the courts were then able to apply different laws and rules. It is very important for the state of democracy that we emphasise and recognise that elected people make the laws and the courts apply those laws. It is not the function of courts to make laws because there is no democratic mandate behind the courts making laws.
I am very proud of the fact that the Irish courts in the 1960s and 1970s did enumerate what was within the Irish Constitution and set out the personal rights enjoyed by citizens of Ireland as a result of what they viewed as being the enumeration of unenumerated rights in our Constitution. That was a very important part of the judicial process. They were not making law; they were giving voice to personal rights that were contained within the Constitution but had not been enumerated at that stage.
I welcome the fact that Senator Stephenson says there is nothing wrong with the political declaration. The purpose of what the 27 member states signed up to on 10 December last was to ensure that there was a political declaration. That was sought because there was concern on the part of member states about how the court was interpreting, in particular, Article 3, and the provision dealing with inhumane and degrading treatment. I gave the example earlier of the hooded men and how that was an example of whether it is torture. The court said it was not torture but it was inhumane and degrading treatment. The reason many member states sought to ensure that we have a political declaration of respective issues is because of how the court was interpreting Article 3 in the context of many issues associated with immigration, and one was the instrumentalisation of borders, which is something that has happened on the eastern part of the Council of Europe, particularly at the Polish border with Belarus. There are issues of real legitimate concern for member states as to how the court is interpreting Article 3. Of course, it is up to member states to decide if they want to put in a political declaration and a political declaration will, of course, be taken account of by the European Court when it comes to interpreting the different articles.
There have been declarations before. There was the Interlaken declaration in 2010 for reform of the backlog in the court. There is nothing unusual or unorthodox about member states deciding they want to come forward with a political declaration in order for it to be used as a travaux préparatoires for the court in interpreting provisions within it. The reason there were specific issues in terms of removal of persons from one country to another was because of a number of decisions of the European court in the area of asylum and deportation of persons. As I mentioned earlier, one of them was the case of Paposhvili v. Belgium, where the Belgian authorities wanted to remove a person who had been convicted of quite serious criminal offences back to the country he came from, which was Georgia. The European court said that would be inhumane and degrading treatment because he would not get the same quality of healthcare treatment in Georgia as he was getting in Belgium, and he was a person who was ill. That is just one example of the type of relevant cases. Another was a case of MSS v. Belgium and Greece, where the Belgians again wanted to remove a person who was in Belgium and had had their asylum application removed, and they wanted to send them back under the Dublin III regulation to Greece. A challenge was brought, saying the conditions in Greece for asylum applicants would be overcrowded and clearly not as good as was the case in Belgium. There also, the European court intervened on the side of the applicant. Other similar cases include Tarakhel v. Switzerland. Those are the type of cases which have created concern among member states in respect of how the court is interpreting Article 3 of the convention, and in particular the definition of inhumane and degrading treatment. All of the states in the Council of Europe, from my assessment of them in December, are committed and want to remain within the European convention. Ireland absolutely is insistent upon complying with our obligations under the convention and ensuring that we remain part of it.
It is extremely important to us that the UK similarly stays part of the European convention. We would want to be blind to not be aware of the risks of the UK not being part of the convention due to the efforts of a future British Government. That is why we should recognise and empathise with the position of the current British Government in respect of what it is seeking to do.
That is just some of the overview in respect of the issues at the Council of Europe. It is worthwhile having the debate here. There will be a political declaration in due course. It will probably be agreed in early May. One of the things we repeatedly talk about is democracy and the rule of law. Democracy and the rule of law mean decisions are made by elected people and also that courts ensure that the rights of individuals, be they convention, charter or Irish constitutional rights, are protected. However, it has to be the case that some direction can be given to a court in Europe by way of a political declaration. I am sure if the European court went off on a tangent that was very anti the rights of individuals and its interpretation was very anti the protections we thought existed under the provisions of the convention, we would want to do something to try to put the court back on a pathway by saying what member states meant by those articles.
I welcome the debate. I cannot accept the amendment. It is unnecessary. On Senator Higgins’s points, she seems to think this is part of a co-ordinated campaign to make life unpleasant for asylum applicants. It is not. It is an extremely difficult time and a difficult challenge for governments in Europe to deal with the asylum process, especially because of the chaos happening in the world. However, if you believe in asylum and the right to it, you must believe in an asylum process because if we just say everyone who says they are entitled to asylum gets it, that defeats the whole purpose of it, and why then should we not be honest and have open borders when it comes to where people want to go? We do not have open borders where people can go wherever they want to go. We have rules, and if we want to ensure we can protect asylum, we need to ensure the asylum process itself is a fair but firm process.

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Record URI: https://data.oireachtas.ie/akn/ie/debateRecord/seanad/2026-03-25/debate/main
Retrieved: 2026-08-14T04:54:46+00:00
Sitting date: 2026-03-25