Irish Human Rights and Equality Commission Bill 2014 Second Stage Speech

-   Ken Gaughran

A Cheann Comhairle,
I am pleased to present this Bill to the House.

It is now 15 years since the Equality Authority was established, and 14 years since the establishment of the Human Rights Commission. In that time, the demographic, social and economic fabric of the State has continued to change profoundly. The commitment and professionalism of the members and staff of the Equality Authority and of the Human Rights Commission over this period are to be commended. However these bodies have overlapping roles and it has become increasingly obvious that there is a compelling need for a more comprehensive approach to the protection of human rights and equality and to institutional arrangements in that regard.

Drawing together in a single, leaner and more streamlined body the main strands of the vital equality and human rights agendas will positively strengthen the ability of the new Commission to effectively, efficiently, and cohesively promote a culture that respects the human rights and equal status of everyone in our society.

The promotion and protection of human rights is at the heart of Ireland’s domestic and foreign policies, and Ireland has been active – and continues to be active – in this regard both in Europe and further afield. During our Presidency of the Council of the European Union last year, I raised with EU Justice Ministers how we could encourage effective action and enhance cooperation between justice systems in countering hate crime, racism, anti-Semitism, xenophobia and homophobia.

The Irish Presidency’s concern, in particular, was at the apparent rise in extreme forms of intolerance, including racism and homophobia – within the European Union and the failure in some cases to respond adequately. We were also concerned that justice institutions – the courts and police in particular – should function effectively so that fundamental rights are protected.

The reality of continuing intolerance in Europe was starkly illustrated by a report on anti-Semitism published by the EU Agency for Fundamental Rights in November last. A shocking 76% of Jewish people surveyed across EU member states felt that anti-Semitism has worsened in the past 5 years. Over half of the respondents had encountered first hand experience of Holocaust denial within the previous year and a third had suffered some form of anti-Semitic harassment within the previous 5 years. Amongst those surveyed 29% stated they were considering emigrating from the EU member state in which they and their families were resident. In Europe, the economic crisis has spawned new parties and revitalised pre-existing parties of the extreme right whose anti-Semitic and racist rhetoric is both corrosive and dangerous.

Our Presidency discussion on the Rule of Law and protection of fundamental rights led to Council Conclusions adopted by the Justice Ministers in June 2013. These Conclusions essentially were designed to offer guidance to the Commission on how to take the debate forward and the type of considerations to be taken into account.

The Commission published a Communication on the Rule of Law on 11 March last as its response to the debate on fundamental rights and the Rule of law initiated during our Presidency. I welcomed this Communication, as it reflects to a large extent many of the themes of our work in this area. The proposed three-stage Framework is a very solid response to the issues that we – and others, including the European Parliament – raised and will be considered in detail by our partners in the Council.

Along with several other member states and the EU Agency for Fundamental Rights, Ireland is involved in a cooperative project to identify a methodology which will enable us to measure adherence to the rule of law and our shared EU values across all member states. I believe that this work has a vital role to play in protecting the fundamental rights of all EU residents and in tackling extreme intolerance across the European Union.

Extreme intolerance and flagrant abuse of human rights is evident on the wider, international stage as well. As Ireland prepares for a
constitutional referendum on marriage equality for same-sex couples in 2015, in contrast, certain states are working hard to restrict the rights and fundamental freedoms of gay people. In Russia, for example, there are no laws prohibiting discrimination on the basis of sexual orientation or gender identity, and the anti-LGBT propaganda law enacted there last June sparked international condemnation. New anti-homosexuality legislation recently enacted in Uganda requires citizens to report suspected homosexuals to the police. According to Human Rights Watch, 38 African states criminalize homosexual conduct. In Iran, homosexuality is deemed a crime punishable by imprisonment, corporal punishment, and in some cases, even execution. Israel is the only state in the Middle East with an annual gay pride march.

Our contributions to the protection of human rights in Europe and internationally would carry little weight without robust protection of human rights and equality here at home. We cannot and should not ignore issues that must be addressed within our own State.

As a State, we have to make sure that we deal in an entirely proper and fair way with for example, persons of Roma ethnicity and, indeed, members of our own Traveller community, and others of minority communities who reside in this State and not allow prejudice or lack of familiarity with specific cultural traits result in flawed assessments of situations, bad decision making or lead to unfair outcomes for individuals or discrimination. We must, in particular, ensure that neither racial prejudice nor racial profiling is ever tolerated in this State. In what we say or in what we do, we must never lose sight of each individuals value and our common humanity.

The types of training that Irish Human Rights and Equality Commission can provide is very important in giving front-line staff the insights and background they need to avoid prejudicial behaviour when dealing with members of minority groups and I will come back to this later on.

The welcome extended to new citizens of Ireland at our Citizenship Ceremonies is in stark contrast to the racist slurs and verbal and physical abuse suffered by some foreign nationals who reside in our State and by some of our new citizens in the workplace, on our streets or on public transport as they go about their daily lives.

In this context, I welcome and fully endorse the campaign launched today across the Dublin public transport network entitled “There’s no room on board for racism and discrimination” Too frequently passengers on public transport are victims of racist abuse.
As a member of a minority in this country, these are issues of which I am particularly conscious. In recognising the huge benefit of the web and social media and the facility of individuals, from the relative anonymity of a keyboard, to comment on news stories reported on a variety of websites, from traditional media outlets websites to the more recent emergence of media outlets such as Journal.ie, I am concerned at the level of vilification, intolerance and extreme comment which is incorporated on a daily basis onto such websites, some of which is little other than an excuse for engaging in hate speech and racism and which corrodes and contaminates public discourse. We must, both as a parliament and as a society, consider how to best address this.

This may be an issue that the new Human Rights and Equality Commission could uniquely consider from the perspective of protecting the human rights and freedom of speech of individuals whilst also ensuring that new media is not used as a vehicle for hate speech and to undermine the values we cherish and share with our EU partners.

The ‘levelling up’ of powers and functions, the introduction of a new role in supporting public bodies to have due regard to equality and human rights issues in their work and the creation of a ‘sliding scale’ of possible interventions and powers which can be exercised in a nuanced way commensurate to the nature of the problem, including as a last resort, an effective power of inquiry and powers to initiate Court action, will all serve to make the Irish Human Rights and Equality Commission a more effective body than its two predecessors combined.

This Bill is the outcome of a period of intensive consultation in which civil society, members of the public and all those interested in the future of human rights and equality in Ireland have been canvassed for their views. I laid the General Scheme of this Bill before the Joint Oireachtas Committee on Justice, Defence and Equality for pre-legislative scrutiny in June 2012, and the Committee undertook a further public consultation before responding with its observations.

The new body will also in due course seek accreditation with the UN as Ireland’s National Human Rights Institution. This is of crucial importance to ensure that it achieves the highest domestic credibility and international standing in respect to its independence and remit. I have made strengthening the new Commission and ensuring that it complies unequivocally with the ‘Paris Principles’ a personal commitment in the preparation of this Bill and in the merger process. I am confident that the new body will maintain the high standing and reputation the Human Rights Commission has achieved internationally.

It should be noted that the new Irish Human Rights and Equality Commission will take over from the Equality Authority as Ireland’s designated equality body under the EU anti-discrimination directives.

The Bill will also amend the European Convention of Human Rights Act 2003, most importantly to give effect to the judgment of the European Court of Human Rights in the DG case by providing for an enforceable right of compensation in the case of unlawful deprivation of liberty due to judicial error in contravention of Article 5 of the Convention.

***

I would now like to outline to the House some of the main features of the Bill.

Turning to Part 1, comprising sections 1 to 7, these are mainly technical provisions.

Section 2 contains the necessary definitions, including a broad definition of human rights that ensures that the Commission is not limited to human rights recognised in existing Irish legislation in its promotion and awareness-raising work, but can undertake work to promote human rights in the broadest possible sense.

Part 2 comprises sections 8 to 28 of the Bill. Section 8 is a standard provision which provides for an establishment day for the new Commission, replacing the Equality Authority and the Human Rights Commission.

Section 9 contains a number of provisions regarding the establishment of the Commission as a body corporate with perpetual succession. It also sets out that the Commission will be independent and be guided by best international practice in the area of human rights and equality.

Section 10 lists the detailed functions of the Commission. These include providing information to the public on human rights and equality, keeping under review the adequacy and effectiveness of law and practice in the State relating to the protection of human rights and equality, providing practical assistance including legal assistance to an individual under equality or equal status legislation, and carrying out equality reviews and action plans. It also provides for the Commission to appear before the High Court and Supreme Court as amicus curiae in proceedings before either court that concern the human rights or equality rights of a person. This Section provides for continued participation with the Northern Ireland Human Rights Commission in the Joint Committee as provided for under the British-Irish Agreement Act 1999.

The section is also a principles section and sets out the principles that underpin the functions of the Commission.

The Commission is mandated to exercise its functions under this Act with a view to encouraging and supporting the development of a society in which —

(a) there is respect for, and protection of, each person’s human rights,

(b) there is respect for the dignity and worth of each person,

(c) a person’s ability to achieve his or her potential is not limited by prejudice, discrimination, neglect or prohibited conduct,

(d) each person has a fair and equal opportunity to participate in the economic, political, social or cultural life of the State, and

(e) there is mutual respect between persons, including classes of persons, based on a shared understanding of the value of diversity within society and on a shared respect for equality and human rights.
Section 11 is a technical provision allows for the Minister with the consent of the Minister for Public Expenditure and Reform and the agreement of the Commission to confer additional functions on the Commission.

Section 12 contains the provisions in relation to terms of membership of the Commission. Members shall hold office for a term not exceeding 5 years, which can be renewed. The Commission shall consist of not more than 15 and not less than 12 members, one of whom shall be Chief Commissioner. The section provides that the members designate who were appointed on 19 April 2013 shall become the first Commission, with each member being appointed for a term of either 3 or 5 years so as to ensure continuity of expertise and experience for future Commissions by avoiding a situation where the term of all members expires at the same time.

As Deputies will be aware, 14 members designate of the New Commission were selected in April 2013 on foot of an independent selection process. They were assigned to the existing two bodies on an interim basis pending publication and enactment of this Bill. Once the Bill is enacted, they will be formally appointed as members of the new Commission. In the meantime, they have progressed the practical arrangements necessary for the amalgamation of the and for their functioning as a cohesive organisation. I want to publicly acknowledge and thank them for their very substantial and valuable engagement since appointment, including their constructive contribution to the development of this Bill

The previous selection process was not able to recommend a person for appointment as Chief Commissioner. This position will be re-advertised by the Public Appointments Service very shortly and I am hopeful that we will be in a position to welcome a new Chief Commissioner as soon as the Bill is enacted.

Section 13 outlines the selection and appointment process for membership of the Commission. Members of the Commission will be appointed by the President, on the advice of the Government following the passing of a resolution by each House of the Oireachtas. The persons to be appointed in future – including the first Chief Commissioner of the merged body – will be selected by the Public Appointments Service following a Paris Principles compliant selection process to be undertaken by the Service. To underpin the independence of the selection process, the section provides that the Government shall accept the persons recommended for appointment by the Service, save in exceptional circumstances and for stated and substantial reasons.

Section 14 lists the conditions of membership including the circumstances in which the Government may remove a member of the Commission. These circumstances are failure without reasonable excuse to discharge the duties of the office, incapacity to perform those duties or stated misbehaviour. A member may only be removed from office with the agreement of both Houses of the Oireachtas.

Section 15 provides for filling of casual vacancies on the Commission and section 16 outlines how the Commission shall organise its meetings. The Commission shall meet not less than once every 3 months. Subject to the Act, the Commission regulates its own procedures.

Section 17 provides for the Commission to appoint from its membership Ireland’s representative on the Management Board of the EU Fundamental Rights Agency as is provided for under Council Regulation No 168/2004. This is a new provision as previously the Government made this appointment.

Section 18 allows for the establishment of Advisory Committees and other formal methods of consultation with civil society. Such committees etc. will allow for the Commission to establish and maintain contact and cooperation with relevant agencies and with NGOs and other civil society interests.

Section 19 is a standard provision providing that members of the Commission will cease be members of the Commission when elected to either House of the Oireachtas or to the European Parliament.

Sections 20 and 21 provide for the appointment of a Director for the Commission and outline his or her functions. In addition to the functions set out in the Bill, which are standard for a post of this nature, it is intended that the Director will be the Accounting Officer for the Commission and that the Commission will have a separate Vote.

Sections 22 and 23 provide for the accountability of the Director to both the Public Accounts Committee and other Oireachtas Committees. These are standard provisions.

Section 24 provides for staff of the Commission and their remuneration. This section should be read in conjunction with section 45, which provides for the transfer to the Commission of the existing staff of the Equality Authority and the Human Rights Commission. The Bill provides for the Commission to undertake its own recruitment in accordance with the standards set out in the procedures and codes of practice applicable to civil service recruitment generally.

This section also provides that staff of the Commission on transfer from the Equality Body and the Human Rights Commission shall become civil servants of the State. and that the Commission is the appropriate authority (within the meaning of the Civil Service Commissioners Act 1956 and the Civil Service Regulation Acts 1956 to 2005) in relation to its officers. This is in line with the staffing arrangements of other independent organisations of a constitutional nature such as such as the Ombudsman, Garda Síochána Ombudsman, DPP and other such institutions, including the Oireachtas. As civil servants of the State, the staff of the Commission are not amenable to instruction by Government or by any Minister for the Government. These arrangements are designed to ensure the independence of the Commission in full compliance with the Paris Principles, which require that the National Human Rights Institution be legislatively empowered to determine its staffing structure and to select its staff in accordance with national law.

It cannot be denied that both the existing bodies suffered steep and disproportionate cuts to their funding up to 2011 and were particularly targeted in this regard by the previous government. They also suffered staffing reductions. On appointment of the new members designate of the Commission, I asked them, as a priority, to undertake a staffing needs review and submit a business case in that regard. Following intensive negotiations with my colleagues in Government, I was delighted to be able to secure an increased staffing complement of 47 for IHREC and an increase of €2 m in its budget for 2014. This staffing level represents an increase of 15 and we have an agreement that the ceiling will be further reviewed once these extra staff are all in place and in the light of experience of workloads at that stage, in 12 to 18 months.

The Commission has already started recruitment of the additional staff already approved, with the assistance of the Public Appointments Service, starting initially with the additional clerical staff identified as necessary.

Section 25 requires the Commission to prepare a strategy statement not later than 6 months after the commencement of this section. This statement will be for a period of 3 years. The Commission will be directly accountable to the Oireachtas in relation to its strategy statement. The section also provides for the renewal of the strategy statement every 3 years.

Section 26 outlines how funding will be made available to the Commission by the Oireachtas and contains a commitment that such funding will be reasonably sufficient to allow the Commission fulfil its mandate.

Section 27 sets out what form the Commission shall prepare its accounts and provides for such accounts to be laid before each House of the Oireachtas.

Section 28 requires the Commission to prepare an Annual Report each year and this will be laid before each House of the Oireachtas. Again, the Commission will be directly accountable to the Oireachtas in relation to its report.

In Part 3, comprising sections 29 to 42, the Commission’s legal and enforcement powers are set out. Section 29 contains a number of definitions relevant to this part of the Bill, including a definition of human rights that is appropriate to enforcement of rights guaranteed by the Constitution or otherwise given force of law within the State, including the European Convention on Human Rights and other international instruments that are ratified by the State.

Section 30 requires the Commission to provide information to the public and keep under review the effectiveness of any legislation relating to the protection and promotion of human rights and equality.

Section 31 provides that the Commission, at the request of the Minister, may prepare draft codes of practice. Such codes shall address issues such as the protection of human rights, elimination of discrimination, promotion of equality of opportunity in employment and the promotion of equality of opportunity in relation to matters covered by the Equal Status Act 2000. The Commission is required to consult widely including with relevant Government Departments prior to the submission of a code of practice. Once signed into law by the Minister, a Code of Practice is admissible in evidence in proceedings before a Court or Tribunal.

I regard this as a power that can be of crucial importance in improving standards of compliance with best human rights and equality practice. To date, only one such code of practice has been prepared and approved – in relation to Sexual Harassment and Harassment at Work. I believe there is enormous potential for the new Commission to break new ground here and to have a really substantial influence for the better by utilising this power to the full.

Sections 32 to 39 inclusive are a continuation with technical amendments of provisions of existing equality legislation. Section 33 provides that, in connection with preparing either an equality review or an equality action plan, the Commission may serve a substantive notice on a person to supply information with regard to an equality review or action plan. Such a notice may also be served if an organisation fails to implement the requirements of an equality action plan as outlined in Section 32. This section provides an opportunity for an organisation to appeal such a notice.

Section 34 details how such a substantive notice may be appealed.

Section 35 provides the Commission may, of its own volition or at the request of the Minister, conduct an inquiry. This section continues in force the existing powers of the Equality Authority and of the Human Rights Commission to conduct inquiries, which have not been used in practice in the precise manner set out in the existing Acts. So as to ensure that the power to be vested in the new Commission is a real one which can in future be invoked in practice the inquiry power has been re-designed, modelled on that contained in the Commissions of Investigation Act 2004.

The detailed procedural and other rules in relation to an inquiry are set out in Schedule 2. In brief, it is intended that an inquiry may be carried out in respect of a public or private organisation, institution, sector of society or geographical area if there is evidence of a serious violation of human rights or equality of treatment obligations in respect of a person and the matter is of grave public concern. Prior to conducting such an inquiry terms of references must be drawn up and laid before each House of the Oireachtas and then published in the national media.

Section 36 provides for the publication of an equality and human rights compliance notice following or in the course of an inquiry. Such notices will specify the nature of the discrimination or violation of rights found and require the persons on whom they are served on to act on the notice. The notice will also outline the steps required to address the violation and specify the timeframe which applies.

Section 37 provides an appeal mechanism for persons served with an equality and human rights compliance notice.

Section 38 provides a register of all equality and human rights compliance notices.

Section 39 provides that, on the application of the Commission, the Circuit Court may grant an injunction against a person who does not comply with a human rights and equality compliance notice.

Section 40 provides for the provision of legal and other assistance by the Commission. Such assistance may include the provision of legal advice and the provision of legal representation. Prior to granting any assistance the Commission will consider if such assistance could be obtained by the applicant under the Civil Legal Aid Act 1995 or the Criminal Justice (Legal Aid) Act 1962.

Section 41 allows the Commission to institute proceedings in its own name seeking relief of a declaratory or other nature in respect of any matter involving the human rights of any person or class of persons. This is a continuation of the power granted to the Human Rights Commission in section 11 of the Human Rights Commission Act 2000.

Section 42 is a new provision which introduces a positive duty on public bodies to have due regard to human rights and equality and reflects a commitment in the Government’s Programme for National Recovery 2011 to 2016. The Commission will assist public bodies to comply with the positive duty by producing guidelines and codes of practice, as outlined in Section 31.

The idea simply is to create a positive duty on public bodies to conduct their business in a manner that is consistent with individual human rights, in reflection of the commitment contained within the current Programme for Government. As I have said previously this model of positive duty is not the model found elsewhere. The Commission will have an important role in its development and in achieving a key tool which will be meaningful and effective in actively promoting equality and human rights across the public sector. Training as well as preparation of codes of practice (which I referred to earlier) will be important elements of what the Commission can offer. Currently, the Human Rights Commission provides tailored training to the Civil and Public Service in the field of human rights. Training has been provided to members of the Garda Síochána, prison service, local authority officials and civil servants. This training is ongoing.

For example, just last December I had the pleasure of launching the Irish Prison Service’ Irish Human Rights Commission Human Rights Training Programme. What is unique about this particular initiative is that it is proactive. The Irish Prison Service had itself identified a specific training need and in conjunction with the Human Rights Commission has developed a bespoke training programme specifically designed for staff working in our prisons. This unique training programme, which was originally developed as a pilot programme by the Irish Prison Service and the Human Rights Commission was launched in December 2013 to coincide with International Human Rights Week, which is fitting. The original pilot was independently evaluated and subsequently formally launched as a Human Rights Training Course for prison staff which reflects best international practice.

By way of another example, the Garda Racial Intercultural and Diversity Office (GRIDO) provides training and advice to all members of An Garda Síochána on the need to be aware of the issue of racial profiling when carrying out their duties. This training and advice focuses on the requirement on all members to carry out their functions and exercise their authority in a non-discriminatory manner in accordance with law. I believe there is a need for this training to be expanded and further intensified and this is an issue for our new interim Garda Commissioners.

I might also mention that in December 2013 the Human Rights Commission hosted a conference in Dublin to highlight best practice in human rights education and training for civil and public servants. The event was organised in cooperation with the Office of the UN High Commissioner for Human Rights.

The point I want to draw out here is that the work already undertaken by the Commission with their Human Rights Education and Training Project across the civil and public service is an excellent example of the “soft” and “persuasive” powers which I envisage will be influential in the development of this positive duty and in ensuring that our front-line public servants are properly sensitive to the specific difficulties that arise in dealing, for example, with migrants to our shores. This can be particularly important in ensuring fair treatment of people who may have been marginalised in their country of origin, may not speak English sufficiently to understand what is happening to them and may not have had in the past a positive relationship with the local police in their previous home. The Fundamental Rights Agency’s Guide for law enforcement officials Towards More Effective Policing refers to the danger of racial profiling taking place at an operational level. It notes that at an operational level, profiling may occur where individual officials may apply stereotypes or generalisations based on race, ethnicity or religion. This may be consciously motivated by personal prejudices, but it may not. It may simply be that officers are not conscious of the degree to which they are applying generalisation and stereotypes. I believe that this valuable guide should be required reading for all members of An Garda Siochana in the context of a changed and continually changing Ireland. We should never assume that we are, in this State, immune from difficulties that have arisen elsewhere in the European Union.
Moving on now to Part 4, comprising sections 43 to 51 inclusive, which makes provision for a range of technical and transitional issues consequential on the dissolution of the existing bodies and to ensure continuity as between these bodies and the new Commission which replaces them. These are all standard provisions.

Part 5 comprises section 52 to 55. Section 52 is a technical section, to provide a definition of the European Convention on Human Rights Act 2003.

Section 53 includes references to Protocol Nos. 11 and 14 in the definition of the Convention in our domestic legislation. Protocols 11 and 14 both relate to the workings of the European Court of Human Rights. The reforms in Protocol No.14 are designed to address the problem created by the large number of inadmissible or repeat cases so as to enable the court to concentrate on the most important cases. Protocol No.14 also made new rules concerning the terms of office of judges of the European Court of Human Rights. The definition of ‘convention provisions’ is also amended by including reference to Protocol 13, which relates to abolition of the death penalty.

Section 54 provides for a new Section in the principal Act which will allow an enforceable right to compensation for a person whose detention is found to be in breach of Article 5 of the European Convention of Human Rights and where the detention was as a result of judicial error. This is a requirement of Article 5(5) of the Convention.

The backgroun

Stay Up To Date With Fine Gael