Opening remarks by Ms Frances Fitzgerald TD, Minister for Justice and Equality: Ireland’s appearance before the UN Human Rights Committee on International Convention on Civil and Political Rights

Thank you Chairperson. I would like to thank you for your words of welcome

and Ambassador Patricia O Brien who is our Permanent Representative to the

UN in Geneva, for her words of introduction. I very much welcome the

opportunity to be here. On a personal note, I was until very recently

Minister with responsibility for children and youth affairs and for just

two months now, I have responsibility for the Department of Justice and

Equality.

I want to start by introducing the other members of our delegation today.

These are: Mr. Paul Hickey, Assistant Secretary, of my own Department who

has overall responsibility for equality and migrant integration issues.

Also from my Department, Mr. Deaglán Ó Briain, Head of Division with

responsibility for equality legislation, including the establishment of our

new Irish Human Rights and Equality Commission. We have Mr. Noel Dowling

who heads our Refugee Reception and Integration Agency and we have Mr.

Kevin O Sullivan from the Irish National Immigration Service (INIS). Ms

Layla de Cogan Chin has responsibility for coordination on our

international human rights reporting obligations within my Department is

here as is my Private Secretary Mr. Chris Quattrociocchi, and my Press

Officer, Roisin Eccles,

Mr. Richard Barrett, Advisory Counsel with our Attorney General’s Office

will deal with any questions of a constitutional nature that members might

raise.

Turning to our Department of Foreign Affairs and Trade, we have the Head of

the Human Rights Unit, Mr. Colin Wrafter and Mr. Peter White Assistant

Legal Adviser based in Dublin. Ms Mary Jackson from our Department of

Health, will deal with questions that relate to that Department’s policy

responsibilities. And from our Mission here in Geneva, we have Ms Nuala Ní

Mhuircheartaigh Deputy Perm Rep., Mr. James O Shea, First Secretary, Ms

Breda Lee First Secretary and Mr. Cathal Loughney, Attaché.

Mr. Chairman, Ireland has a great respect for and attaches great

significance to the UN human rights treaty monitoring process. Support for

the role of the Treaty Monitoring Bodies is a cornerstone of Irish foreign

policy in respect of the promotion of human rights globally and as members

currently of the Human Rights Council we see the very real importance of

this work.

I am proud that Ireland played an instrumental role in the recently

concluded treaty monitoring body strengthening process, which has resulted

in greater resources for and helped secure the integrity and independence

of the various Committees, which occupy such an important place in the UN

human rights infrastructure.

We have attempted throughout the reporting process on this Convention to be

transparent and consultative, and we held civil society consultations in

February and May 2012 and in June 2014. The June meeting was the first

time we held a consultation at this stage of the process, and I understand

that it was extremely useful and productive. We greatly value the

submissions by Irish and international civil society to your Committee, as

well as that of the Irish Human Rights and Equality Commission. Civil

society activism provides impetus to our continued efforts to respect,

protect and fulfil the rights of all those living in Ireland. I also

welcome the hearings organised by and the useful report prepared by my

parliamentary colleagues in the Seanad Public Consultation Committee.

I want to outline some significant developments since we provided our

answers to the Committee’s written questions last February.

As I said at the start, I am in my new Justice and Equality portfolio for

just over two months. Reform of police accountability and oversight

mechanisms is my central priority. We are progressing a package of

measures aimed at restoring confidence in the performance, administration

and oversight of policing in Ireland. The Government has decided that a

Garda Síochána Authority will be created. Just very recently (on 1 July

last), the Government agreed the Heads and General Scheme of the Garda

Síochána (Amendment) Bill 2014 which proposes a number of reforms to the

remit, functions and operation of the Garda Síochána Ombudsman Commission

(GSOC).

The Irish Human Rights and Equality Commission Bill is nearing completion

of the enactment process – we finished all stages of parliamentary debate

last Friday and now await the President’s signature. There were a number

of significant amendments agreed to the Bill as it made its way through

both Houses of the Oireachtas (our national parliament), including that the

Director of the Commission will be appointed as Accounting Officer for the

Vote of the Commission, to further underpin its financial independence, and

a strengthening of text that relates to the duties of public bodies and the

Commission’s work with public bodies in improving standards of compliance.

We expect to be able to appoint a Chief Commissioner shortly – following a

Paris Principles-compliant process independent of Government – and formally

establish the new body in the autumn.

The Gender Recognition Bill is being progressed, with a view to publishing

it later this year. This will be a very significant reform for a

particularly vulnerable group of people. The revised General Scheme of the

Gender Recognition Bill – recently approved by the Government – includes an

amendment to the requirement for an applicant for gender recognition to be

18 years or more. This will mean that:

· a person aged 16 or 17 years may, with parent/guardian consent, apply
for a Court order exempting them from that requirement;

· the application by that 16 or 17 year old will be accompanied by

confirmation from the treating physician and an independent physician

that the person is sufficiently mature to make the application.

There have been a number of significant recent developments in relation to

access to lawful termination of pregnancy in Ireland. The Protection of

Life During Pregnancy Act 2013 has been enacted to regulate access to

lawful termination in accordance with the X case and the judgment of the

European Court of Human Rights in the A, B and C v Ireland case. The 2013

Act followed extensive consultation with stakeholders and detailed

examination in parliament. Article 40.3.3 of the Constitution, as

interpreted by the Supreme Court in Attorney General v X, provides that it

is lawful to terminate a pregnancy in Ireland if it is established as a

matter of probability that there is a real and substantial risk to the

life, as distinct from the health, of the mother, which can only be avoided

by a termination of the pregnancy. The purpose of the new legislation is

to confer procedural rights on a woman who believes she has a

life-threatening condition, so that she can have certainty as to whether

she requires this treatment or not.

The Act upholds the right to life of the unborn where practicable, and the

right to life of a pregnant woman whose life is threatened by her

pregnancy, as required by Article 40.3.3. The Act also creates procedures

which apply to the lawful termination of pregnancy. The objectives of these

procedures are firstly to ensure that, where lawful termination of

pregnancy is under consideration, the right to life of the unborn is

respected where practicable, and secondly to ensure that a woman can

ascertain by means of a clear process whether she is entitled to medical

treatment to which the Act applies.

A Guidance Document to assist health professionals in the implementation of

the Act has been prepared and will be published very shortly. The Guidance

Document identifies referral pathways to fulfil the requirement of the Act

and other relevant operational matters. It brings the necessary clarity

for medical professional to implement the revised legislative regime.

The Act is a very important recent development, but I also want to set our

position in its historical and constitutional context. Abortion has been

a highly politicised and divisive issue in Ireland for a number of decades.

The question of the right to life of the unborn and the extent of that

right has been the subject of five constitutional referenda held in 1983,

1992 and 2002. The issue of the extent of any entitlement to lawful

abortion has been extensively debated in the political sphere. Not only has

the Irish public and their political representatives considered the

domestic legal framework’s impact on the availability of abortion, but the

possible effect of international instruments signed by the State on this

question has also been the subject of extensive public debate. Thus, the

issue of abortion arose in the context of the ratification by the State of

the Treaty on European Union (“the Maastricht Treaty”) and the Treaty of

Lisbon. Each of these Treaties was voted upon by the Irish people,

consulted by way of referendum. The Government of Ireland negotiated a

protocol to the Maastricht Treaty, approved by the people by way of

Referendum ensuring that nothing in the Treaty on European Union would

affect the application in Ireland of Article 40.3.3 of the Constitution.

The question of abortion also was a factor impacting on the electorate’s

decision to vote against the ratification of the Lisbon Treaty. As a

result, the Irish Government sought and obtained certain guarantees from

the European Council, including guarantees to the effect that the Treaty of

Lisbon would not impact upon Article 40.3.3 of the Constitution. These

guarantees contributed to the “Yes” vote in favour of the ratification of

the Lisbon Treaty when the people were again consulted by way of referendum

in October 2009.

Accordingly, the constitutional and legislative framework in Ireland

reflects the nuanced and proportionate approach to the considered views of

the Irish Electorate on the profound moral question of the extent to which

the right to life of the unborn should be protected and balanced against

the rights of the mother.

I want to turn to the dreadful situation of the survivors of symphysiotomy.

The Government has decided to establish an ex-gratia scheme for the

survivors. The main advantage of this is that it offers a more flexible

solution in terms of the mix of pecuniary and non-pecuniary elements of any

award to applicants. This non adversarial approach will also ensure that

the women concerned will not have to pursue cases in the High Court or risk

the burden of an adverse costs order. This seems particularly desirable

given that a large percentage of the women are now aged between 75 and 91

years of age. I should also say that the women are receiving and will

continue to receive a range of health and social care supports from the

State.

These services include the provision of full General Medical Services

eligibility on medical grounds, independent clinical assessments/advice

(including, where requested a home assessment by an occupational therapist

or physiotherapist), the arrangement of appropriate fast tracked follow-up

care where possible, the provision of counselling, physiotherapy and home

help services and the arrangement of home modifications where necessary.

One of the elements of our existing employment equality framework that has

come in for criticism is section 37 of Employment Equality Act 1998.

Section 37 is the provision that allows religious-owned institutions to

discriminate against employees or prospective employees if that is

necessary to protect the religious ethos of the institution (i.e. a school

or hospital). When this provision was introduced into our law in 1998, the

Supreme Court had found, in an earlier judgment, that it represents a fair

balance between the competing rights of freedom of religion and the right

of employees to be protected from discrimination.

Experience subsequently has shown that the balance has not been a fair one

in practice – the provision has been described as having a chilling effect

on LGBT teachers in particular. We have a commitment in our Programme for

Government to ensure that

“people of non-faith or minority religious backgrounds and publically

identified LGBT people should not be deterred from training or taking

up employment as teachers in the State”.

Last year, the Government agreed to support a Private Members’ Bill that

seeks to restore a fair balance to the equation. Given the constitutional

implications, the Bill was of course examined very carefully by our

Attorney General’s Office. Just last week, we completed that scrutiny

process when the Government approved the Heads of a number of technical

amendments to the Bill. These amendments will be published later in the

year, with a view to the Bill being enacted before end-2014. The Bill as

published is essentially sound and the amendments are largely technical in

nature.

As members know, we are also reforming our institutional arrangements for

adjudication and redress in relation to employment and equality complaints.

I am glad to inform the Committee that the Workplace Relations Commission

Bill will be published very shortly.

The key point I want to draw to your attention is that persons with

potential claims under both employment equality legislation and equal

status legislation that they will, on the merger of the Equality Tribunal

into the new Workplace Relations Service, continue to be able to pursue

formal complaints before the new body and that these complaints will be

dealt with as effectively as by the Equality Tribunal. There will be no

change to rights under the Equal Status Acts as a result of the structural

reforms.

I am delighted to be able to inform the Committee that the Government has

decided to develop a national plan for the implementation of the UN Guiding

Principles on Business and Human Rights.

Turning to issues of gender equality, the Government accepts the need to

amend the language in Article 41.2 of the Constitution on the role of women

in the home. I have established a task force in my Department to look at

these issues, collaborating with other Departments and the Office of the

Attorney General as necessary, with a view to completing the task and

reporting back to Government by 31 October 2014 and to preparing for a

constitutional referendum at the earliest opportunity after that.

I want to mention the Civil Partnership and Certain Rights and Obligations

of Cohabitants Act 2010, which extended the application of domestic

violence orders to civil partners, and in 2011 we introduced further

reforms, including that a parent may now apply for a safety order against

the other parent of their child, even where the parents do not live

together and may never have lived together. This ensures that the full

protection of the law is available where access to a child is an occasion

of intimidation or even violence between disputing parents. In addition,

the protections of the Act are available on the same basis to unmarried

opposite-sex couples and same-sex couples who have not registered a civil

partnership; and couples who are not married or are not in a registered

civil partnership are no longer required to have lived together for a

particular minimum period of time before one of them can obtain a safety

order against the other. The Irish Naturalisation and Immigration Service

has published Immigration Guidelines for Victims of Domestic Violence. The

guidelines apply to any foreign national with an immigration status that is

dependent on another individual (Irish, EU or other citizens) and who is a

victim of domestic violence.

Members will recall that the Report of the Inter-Departmental Committee to

establish the facts of State involvement with the Magdalen Laundries – the

McAleese Report was published on 5 February 2013. The contents of the

report have been fully accepted by the Irish Government as a comprehensive

and objective report of the factual position prepared under the supervision

of an independent chairperson. On 19 February 2013, on foot of the

findings of the report, the Taoiseach made an apology in Dáil Éireann.

We have put in place on an ex gratia basis, a scheme of payments and

benefits for those women who were admitted to and worked in the Magdalen

Laundries, St Mary’s Training Centre, Stanhope Street, and House of Mercy

Training School, Summerhill, Wexford. The Office of the Ombudsman will

provide an independent appeals procedure in line with the seventh

recommendation of Mr Justice Quirke.

New legislation expected to be enacted this year, the Fines (Payment and

Recovery) Bill 2013, provides for a new fines recovery regime that will

ensure to the greatest extent possible that persons are not committed to

prison for an inability to pay fines. It provides for an attachment of

earnings order in most cases where a fine defaulter is in employment or in

receipt of an occupational pension. Provisions also allow for the making of

a recovery order (directing a receiver to recover the fine or assets to the

value of the fine) or a community service order as an alternative to

imprisonment for defaulting.

Turning to the issue of asylum, legislative reform aimed at establishing a

single application procedure in the area of international protection

remains a key priority which has been reconfirmed in the Statement of

Government Priorities 2014-2016 agreed last week. The intention is that a

Protection Bill will provide for the introduction of a single application

procedure for the investigation of all grounds for protection and any other

grounds presented by applicants seeking to remain in the State. This

re-organisation of the protection application processing framework in this

way should substantially simplify and streamline the existing arrangements

and reduce the length of time persons have to spend in direct provision.

The Government is also committed to ensuring that our policies in the area

of integration remain capable of responding to current and future

challenges which an increasingly diverse society presents Ireland in which

non Irish nationals now make up 12% of our population. That is why my

Department was tasked in March to lead a cross Government review of our

integration strategy in order to ensure that our approach to integration in

full keeping with the Government’s commitment to promote policies which

promote social inclusion, equality, diversity and the participation of

migrants in the economic, social, political and cultural lives of their

communities. My intention is that the review will be completed and the

Review Group will report to me in 2015.

It is equally important that we address the particular needs of some of the

more disadvantaged of our new communities. That applies in particular to

the Roma community in Ireland. On 1 July last, I published the Report of

the Inquiry by our Ombudsman for Children, Ms Emily Logan, into the

circumstances surrounding the removal of two Roma children from their

families. The Report highlighted the distress that was caused to these

children and their families for which I, the Acting Garda Commissioner and

our Prime Minister, Taoiseach Enda Kenny apologised.

I should stress that the Report has not found that the Gardaí involved were

motivated by conscious racism, or that there is evidence of

institutionalised ethnic profiling. Indeed, in relation to the

aforementioned Tallaght Case, the Report highlights the Garda Officer’s

extensive community policing work and his voluntary engagement with

minority communities.

The Report does make some important recommendations which will guard

against similar situations arising in the future and on how government

services might better cater for the needs of the Roma community which I on

behalf of the Government have accepted. I have established an

Implementation Group to oversee the actions being rolled-out in response to

the Report’s recommendations and to report to me by the end of the year.

These are some of the main changes and developments since we provided you

with our written replies. We have a lot of positive developments to report

on, but I have tried to keep my opening remarks short to allow for a full

engagement with you and to leave as much time as possible for your

questions.

Thank you Chairperson and members for your attention. I am looking forward

to our engagement this afternoon and tomorrow morning and to addressing

your questions and expanding on the necessarily concise material we have

provided already.