JOINT COMMITTEE ON JUSTICE, DEFENCE AND EQUALITY debate -
Wednesday, 4 Jul 2012

Irish Human Rights and Equality Commission Bill: Discussion

Chairman

We are here to discuss the heads of the Irish human rights and equality commission Bill. There is a delay with regard to briefing material, but it will be circulated. Before we begin, I ask everybody in the room to turn off their mobile telephones completely as they interfere with the sound system. It is not sufficient to turn them to silent mode.

On behalf of the committee, I welcome Ms Rachel Mullen from the Equality and Rights Alliance, Mr. Stephen O'Hare and Mr. Conor Power from the Irish Council of Civil Liberties, Ms Tanya Ward and Ms Edel Quinn from the Children's Rights Alliance and Mr. Des Hogan and Ms Kirsten Roberts from the Irish Human Rights Commission. I believe Dr. Maurice Manning may join us later. I thank witnesses for their attendance today and for the information they have supplied to the committee to date. The format of today's meeting is that witnesses will be invited to make a brief opening statement of approximately five minutes, followed by a question and answer session with members.

Before we begin, I draw the attention of witnesses to the situation in relation to privilege. They should note that they are protected by absolute privilege in respect of the evidence they are to give to the committee. However, if they are directed by the committee to cease giving evidence on a particular matter and they continue to do so, they are entitled thereafter only to qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and are asked to respect the parliamentary practice to the effect that where possible they should not criticise nor make charges against any person or persons or entity by name or in such a way as to make him, her or it identifiable. Members should also be aware that under the salient rulings of the Chair, they should not comment on, criticise nor make charges against a person outside the House or an official by name in such a way as to make him or her identifiable.

I now call on the Equality and Rights Alliance representative to make an opening statement.

Ms Rachel Mullen

I thank the members of this committee for the invitation to address the committee today on the proposals to merge the Equality Authority and the Irish Human Rights Commission, IHRC, as proposed in the Bill. I represent the Equality and Rights Alliance, a coalition of over 170 civil society organisations and activists, established in 2008 to campaign for an effective and independent statutory equality and human rights infrastructure.

We have arrived at a key moment in the development of our statutory infrastructure. There is an opportunity, with this merger, to undo some of the damage that was done to the Equality Authority and the IHRC when their respective funding was disproportionately cut in budget 2009. The merger offers an opportunity to ensure that the new Human Rights and Equality Commission that emerges is stronger than the sum of its parts. Merging equality and human rights bodies can offer potential to address inequality and human rights concerns more coherently. For example, there is potential to deal with complex legal cases that involve both equality and human rights concerns. However, it is vital that the merger process, including the legislation to set up the new commission, creates the right conditions to realise this potential.

Two key standards are recognised internationally as critical measurements to assess the functioning of national equality and human rights institutions, namely, independence and effectiveness. When assessing the provisions set out in the legislation to establish the commission, members should ask whether a provision makes the body more independent or more effective. If the answer is "No", there is a danger that we are setting up the new commission to fail. If we take these two standards and apply them to what is proposed in the current heads of Bill, we see that the provisions of the draft fall short in a number of respects. The Equality and Rights Alliance has already submitted observations on the heads of the Bill to the committee, outlining our response in detail, so I will not reiterate all we have said. However, I will mention some of the key issues, under the headings of independence and effectiveness.

In terms of independence, the Bill falls short in the following areas. First, under head 17, the stipulation that the first CEO of the new commission will be the current chief executive of the Equality Authority removes autonomy from the commission to appoint its staff at all levels, one of the key benchmarks for independent functioning under the UN Paris Principles. Second, the Bill also provides for the new body to remain substantively linked and accountable to the Department of Justice and Equality rather than to the Oireachtas, which would be recommended in terms of independent functioning. Third, the appointments process to select the new board of the commission will be a key test of the credibility of the new body. The criteria for appointments should be detailed in advance and there is need for an explicit prohibition on the appointment of Government representatives to the board of the new commission.

In terms of the effective functioning of the new body, again the Bill falls short in a number of key areas. Equality is quite narrowly defined in the heads of Bill. This raises a potential problem in terms of the promotional function of the new commission. Equality is not defined in our current legislation, although discrimination is defined for the purposes of taking legal cases. Therefore, to define "equality" narrowly in the heads of the Bill will potentially narrow the promotional function of the new commission. The definition of "human rights" in heads 30-36 is also problematic, in that the definition narrows the definition of human rights. This could have implications in terms of the new commission taking cases and in terms of its broad legal function. There is also a need to level up the powers and functions of both the equality and human rights areas to ensure coherence. I have given a number of examples in our submission, but a key example would be where equality is governed by the nine grounds in contrast to the much broader focus of human rights. Coherence in the protection from discrimination and in the protection from human rights abuses requires that, at a minimum, a socio-economic ground is introduced and, at best, that a ground of "any other status" is introduced in the legislation. This approach has been taken in a number of other member states.

A very positive development is the introduction of a new public sector duty in the heads of Bill. This is a welcome evolution in our equality and human rights legislative framework. The introduction of a duty enhances the State's commitment to fulfilling the requirement for an equivalence of protection of rights with Northern Ireland established in the Good Friday Agreement. The Bill refers to public authorities giving consideration to equality and human rights in planning and execution of their policies and actions, strategic plans and reporting. However, "giving consideration" is not defined. This is a significant absence when the detailed provisions of similar duties in Northern Ireland and Britain are considered. A further concern is the absence of any enforcement mechanism to ensure compliance with the duty. These two issues would require amendment in further drafts of the Bill.

Civil society groups are watching how this merger process develops. The first key test will be the transparency of the appointments system to the board and the expertise and independence of the panel of experts appointed to conduct the process. The first key test will be the transparency of the system of appointments to the board and the expertise and independence of the panel of experts appointed to conduct the process. The second test will be the appointment of the new chief executive to lead the body. This cannot be decided in advance without regard to the independence of the new commission. The third test will be the level of resources made available to the new body. Failure in any of these tests will set the new body on a trajectory where its domestic and international credibility will be in question before it has even begun to operate.

Chairman

I invite Mr. Conor Power of the Irish Council for Civil Liberties to make a brief opening statement.

Mr. Conor Power

We welcome the opportunity to address the committee on this important legislation which may have a significant impact on the rights infrastructure and how it will operate in Ireland in the future. We welcome the Bill and the merger of the two bodies. We hope it will provide an opportunity to ensure that the institutional framework for the protection of human rights in this country is increased and deepened.

There are, of course, some concerns. Primarily, we use the internationally best known benchmark, namely, the Paris Principles. These are the rules by which all human rights commissions operate throughout the world. They are there for a very good reason. Human rights commissions will obviously vary. In some countries they could be quangos, intended to dress up a situation. In a modern, functioning democratic state they must be independent, autonomous and carry some weight. The Irish Human Rights Commission and the Equality Authority have fulfilled that role to date. It is important that be continued in the new merged body.

The Paris Principles apply not just to general matters. They are quite specific as to how human rights bodies are set up. This is to recognise that the manner in which the bodies are set up will impact on how they operate. For that reason, we draw the committee's attention to some instances in the heads of the Bill. We hope this will feed into the drafting process so that when the Bill comes to fruition it may not contain what we consider to be certain flaws. Those flaws may lead to a downgrading of the status of the commission in line with the Paris Principles.

The Paris Principles have a rating system of A, B and C for the various human rights bodies. An A rating gives a body access to all the plenary sessions of the human rights committee and to voting and full participation rights at those sessions. Any modern human rights body, such as our new commission will be, needs to have that A rating. Anything less relegates it to something that is not really seen internationally as an independent body. The current commission obviously has an A rating. We are concerned that certain provisions in the Bill, because they conflict with certain aspects of the Paris Principles may well put that A rating in jeopardy. That is our primary concern in addressing the committee today.

Heads 3 and 30 refer to the definition of human rights. In a Bill concerning a body such as the commission will be, the definition of human rights is of considerable importance. In the heads, there seems to be a degree of confusion to the following extent. In head 3 a very generous definition of human rights is set out. It is one we welcome, albeit with certain reservations about the definition of equality. The implementation of human rights comes in head 30. That is where the commission gets its powers and duties to act as a broad-based body to promote human rights and equality across society. Here, there is a much more restricted definition of human rights to instruments of human rights and international human rights treaties that have been incorporated into Irish law, of which there is only one at present. That is the European Convention on Human Rights.

This means the international human rights treaties to which the commission will have regard will be limited to the European Convention on Human Rights and the Constitution. The International Bill of Rights, the Universal Declaration of Human Rights, the International Civil and Political Covenant, the International Covenant on Economic Social and Cultural Rights and the UN Convention on the Rights of the Child, which all form the International Bill of Rights, will have a lesser status. Heretofore, in the Human Rights Commission Act 2000, as amended in 2003, that more restricted definition was rightly limited to the functioning of the then Human Rights Commission as regards the initiation of proceedings. It could not start proceedings in respect of a human rights issue unless the human right in question was operative in Irish law. As regards other functions it could deal with the more general definition of human rights. In the way the heads of the new Bill are drafted there is a divergence from that. The totality of the operations of the new commission seems to be adjudicated by reference to the more restricted definition of human rights. This is a little technical, but I urge members of the committee to address this issue when the Bill is being drafted and to look back at the current structure of the Human Rights Commission Act 2000, as amended in 2003. Members will see that the more limited definition of human rights applies only to the institution of proceedings by the commission.

If that were to continue, we would urge two things. First, that the broader definition of human rights be more operative. Second, although it is outside the remit of this committee, we would be pushing for the incorporation of more treaties within domestic law. That is another way of dealing with the issue.

The Paris Principles note that national human rights institutions, of which the commission will be one, should promote and protect human rights, be given the broadest possible mandate, submit opinions, promote the harmonisation of national legislation and encourage the ratification of new instruments. When the commission is up and running, I hope it will itself promote the incorporation of new treaties and the broadening of its own remit.

The amicus curiae role which is carried out by the commission is broadened under head 30 B(8). We welcome this clarification and restatement. It would seem that the more narrow definition of human rights will also apply to this amicus curiae role, because it applies not just to the initiation of proceedings but to the totality of the involvement of the new commission. That would seem to be a restriction. I urge the committee to address that when the Bill comes before the Houses to ensure that the broader definition applies to these functions.

We welcome the Minister's comment that he will stick to the general scheme of the Bill to ensure the commission is not prevented from offering assistance that draws on the broader definition of human rights to a court. No doubt, the Minister will be as good as his word.

The committee will hear several witnesses this morning express concern about the membership of the commission. The international co-ordination committee has its own principles as to how human rights commissions are constituted. They are called the sub-committee on accreditation rules and were drawn up in June 2009. They say appointments to a commission of this nature must be a transparent process, encompassing broad consultation throughout the selection and appointment process. Vacancies are to be advertised broadly to maximise the number of potential candidates from a range of social groups.

Head 13 details the selection process for the commission. It is a considerable improvement on the way things are done at present, and we welcome that and congratulate those who drafted the heads of the Bill. However, we raise one or two issues. The proposed method of appointing members of the commission is by a selection panel. We would prefer more transparency about the selection panel and the manner in which it operates. The Public Appointments Service should choose the selection panel. Some people have suggested the Oireachtas should be used. That would keep the process within the political forum and would invite a question under the Paris Principles and the sub-committee on accreditation rules. The possibility of indirect influence by the Oireachtas is an issue the committee should look at when examining the heads of the Bill.

We welcome the criteria for appointment, in general terms. The difficulty is that they are in general terms. For example, the members of the selection panel, who will then choose the commissioners, are to have a knowledge in the field of human rights and equality. Potential commissioners are to be suitably qualified for such an appointment by reason of possessing such relevant experience, qualifications, training or expertise as, in the opinion of the selection panel with the agreement of the Government, is or are appropriate, having regard to the functions of the commission. We consider both definitions to be on the vague side of things and would prefer a more particularised requirement for a demonstrable knowledge of human rights and equality issues, as well as the possession of some clearly defined skills. The Paris Principles and the international sub-committee rules state that individuals are appointed in and of themselves rather than as representatives of other bodies. We think that should be enshrined in the legislation. A broad consultation process should be conducted through the Public Appointments Service rather than the Oireachtas. In regard to the staffing of the committee, we are slightly concerned about the use of secondees. International principles indicate that secondees should not be used and, more important, the body should be responsible for the appointment of its own staff rather than having staff assigned to it in advance.

This brings me to the appointment of the head of the new body. I do not intend my remarks as a reflection on the professional competency of the current head of the Equality Authority. I want to make this absolutely clear because my comments will be subject to media commentary. That person does an excellent job. It is not an issue of personalisation but about compliance with the appointment standards set out in the Paris Principles and keeping the A rating for the new body. In this regard we ask for a reconsideration of the manner in which the new chief executive is to be appointed. I do not intend to comment on anyone's individual capacity but, unfortunately, the way in which the heads of the Bill have been presented mandates that we speak about individuals. That is exactly the reason for the criticism we make of the Bill rather than the individual concerned. Compliance with the Paris Principles is the overall benchmark by which the Bill's usefulness should be adjudicated.

Ms Tanya Ward

I welcome the opportunity to address the committee on this important Bill. Ms Edel Quinn and I represent the Children's Rights Alliance, which is a coalition of 104 organisations founded 17 years ago with the primary objective of promoting the most universally accepted human rights instrument, the UN Convention on the Rights of the Child. We acknowledge the excellent report produced by the working group on the merger of the equality and human rights bodies and welcome that the Minister for Justice and Equality has introduced this draft legislation.

Our focus is on the 1.2 million children in this country, particularly those who are most vulnerable. The most vulnerable children are those who belong to groups which are discriminated against on a daily basis. The Equal Status Act 2000, which prohibits discrimination in respect of goods, services and education, is an important tool for protecting children and their families. In 2010, children took 16% of the cases pursued under the 2000 Act on issues related to primary and secondary education. We want the committee to be aware of the potential importance of this body to children, particularly in respect of supporting children and their families in pursuing cases.

The Equality Authority did excellent work until the cuts hampered its ability to support individual cases. I remind members these are some of the most vulnerable children in the country and cases have involved children with disabilities, Traveller children and, in some instances, religion. When the Equality Authority became involved in a case, the complainant was more likely to pursue his or her complaint. The authority was also important in terms of developing jurisprudence under the 2000 Act. The decisions coming from the Equality Tribunal were very different when the Equality Authority was involved. It is important that its experience be retained in the new body because if individuals do not pursue cases, the legislation will not be enforced or developed over time.

The draft heads of the Bill are broad enough to allow the new commission to support cases but we are concerned about the level of resources that will be allocated. If it does not have sufficient resources, it is unlikely to be able to support a large number of cases. We urge the committee to search for a solution that ensures this is a strong function of the new commission.

One of our member groups, BeLonG To, which works with children and young people who suffer from homophobic bullying, has indicated that many children and families will find it too difficult to pursue cases. A case may take one or two years and the child would be singled out. I am reminded of the case of Sarika Singh, with which Senator Bacik will be familiar. This is an important case in the UK because it demonstrated how a judge can deal with a positive duty to promote equality. Sarika Singh was a young Sikh, a religion which includes among its obligations a requirement that adherents wear a bracelet called the kara. Ms Singh's school lost the case she took against it because it failed to promote its equality duty within the school. Last year, I spoke with one of the lawyers involved in the case, who told me that one of the problems Ms Singh faced was that although she won the case, she was effectively bullied out of the school by other children. That is a reminder of the importance of a positive duty on educational establishments and other service providers to promote equality. This provision is contained in the draft heads of the Bill, as my colleague, Ms Quinn, will discuss in more detail.

Ms Edel Quinn

I will speak briefly about the human rights and equality duty on public bodies under head 36 of the Bill. This is a welcome inclusion, as is its broad scope. Proactive measures such as this duty are central to the human rights infrastructure of the State and are especially important for vulnerable groups such as children and their parents, who may not wish or be in a position to take a case before the courts. Effective human rights and equality proofing from a child perspective of legislation, policy, budgets and decisions has a direct effect on children and their families and plays a key role in strengthening the protection and vindication of the rights of the child.

The alliance believes that the human rights and equality duty of public bodies under head 36 could be strengthened and the impact on children and families made more powerful if the duty went beyond the standard of due regard. Clarity is required because the heads of the Bill explain due regard as a consideration of the need to eliminate or prohibit discrimination. However, in what may be a drafting issue, the explanatory note goes beyond consideration to suggest that positive actions are to be taken to address issues that have arisen and pre-empt future problems. We support a wider definition which includes the actions to be taken but if that is the intention it needs to be included in the heads.

The commission would be in an ideal position to monitor compliance with public duty. This is in effect an exercise in self-regulation but the danger arises that it may become a box ticking exercise. We support the working group's recommendation that the commission could take on this role in the future after a review of the effectiveness of the duty is conducted in three to five years' time. Such a review, however, should be provided for in the legislation.

Mr. Des Hogan

I offer an apology on behalf of the president of the Irish Human Rights Commission, Maurice Manning, who could not attend because of a hospital appointment. He had hoped to make the meeting but it appears that time has caught up with him.

Shortly after the commission submitted its observations to the Minister for Justice and Equality on the heads of Bill, we provided copies of our observations to this committee partly because our president has long felt that the close involvement of the Oireachtas in the drafting process of human rights Bills can only strengthen their provisions. In this case the successful conclusion we seek is a viable, independent and adequately resourced national human rights institution which will have no difficulty in regaining our A status accreditation early next year. The president was pleased that the Minister agreed to launch our annual report last week and welcomes that discussions between his officials and departmental officials have commenced. He is eager that the recommendations we made be subject to parliamentary scrutiny as the Bill progresses through the Houses of the Oireachtas.

Whereas the primary duty to withhold human rights lies with the State, the primary duty of a national human rights institution, such as the current commission and future body, is to hold the State to account in relation to human rights. An oppositional issue arises in terms of what this new body will do given it is not like other State bodies. This is not an easy task. It is seen as a fundamental duty of an independent national human rights institution. While we work with Government in terms of promotion, education and training, we also must take issue with it when we conclude that human rights are not being respected. In certain circumstances, this will involve going head to head with Government, taking cases and doing that oppositional work which is part of the protection mandate of a national human rights institution.

The president in his remarks also states that one of the key lessons of recent years is the need for independent scrutiny of the State, which is not only healthy but essential for Ireland's future well being. While he believes that the commission's record in this regard is clear and that it is well placed to continue vigorous impartial oversight the future commission cannot be expected to function without adequate resources, as has the IHRC for several years. A lack of adequate resources risks undermining the Government's stated commitments to human rights in Ireland and the creation of an institution that cannot fulfil its statutory mandate.

Among its values, the IHRC has always considered two as of particular importance, namely, the quality of its work and its independence, which have been stressed by commissioners during both terms of the commission. There are five areas, in terms of the landscape and the heads of the Bill, which the president believes need to be improved. These are, the commission's legal powers, which must not be diminished in scope, the provision of adequate resources and no legacy debts for the commission; that the commission be fully independent and accountable to the Oireachtas rather than a Department; that the commission be in a position to recruit its own staff and that the appointment of independent commissioners be by way of an open and transparent process with the right Oireachtas involvement. The president welcomes that the Minister has been engaging with this committee in this regard. As stated previously, there must be no Government involvement in or on the board.

The president also refers in his remarks to the issue of the link between the commission and the Oireachtas and stresses his belief that the commission should have an organic link, not with a Department but with the national Parliament - the Oireachtas. In this regard, he states that a strong commission should be in a position to feed into the daily detailed work of Parliament, to be its expert, independent, public adviser on human rights issues, to provide guidance where appropriate and ultimately to be accountable to a strong all-party human rights committee. The president welcomes that the Minister is moving in that direction and hopes this will continue and be strengthened.

The president also calls for a stronger and more imaginative role for the Oireachtas in the current process because he believes that an independent commission directly accountable to Parliament will have a meaningful and positive effect on the work of that Parliament, through which the commission will have an enhanced sense of authority. While he welcomes the requirement to lay any report and strategic plan before the Oireachtas, as provided for in the heads of the Bill, he expresses the need for deeper involvement by the commission. This is our second appearance before the Oireachtas this week. We expect our meetings with Members will continue.

The president welcomes the Minister's statement that the new Bill will be subject to full parliamentary scrutiny and that Bills are never perfect and regularly require improving. He also makes the point that there is a big difference between the Oireachtas today and that of 1999 when the original human rights commission Bill was first being discussed. It is hoped that this legislation will put in a place a new and better body in which the Oireachtas can feel a genuine sense of ownership. The president then makes some complimentary remarks in terms of the Minister being a politician with a record of respect for Parliament and the parliamentary process and ends by saying he welcomes his time with the commission.

Chairman

I thank the organisations for their interesting submissions and the thought they have put into them. I will now invite one member to engage with each organisation, following which other members may ask questions. I invite Senator Bacik to engage with the representative of the Equality and Rights Alliance.

Senator Ivana Bacik

I, too, thank all of the witnesses for their work on the submissions, which will assist us in our report to the Minister. We find this process of the committee hearings on the general scheme of Bills very helpful in terms of their feeding into the legislative process. I note Mr. Manning's remarks on the need to ensure that the Bill is improved and that it is not enough to go through the standard drafting process. This process helps to strengthen the legislation process.

There are some common themes to the submissions made today, including on the definition of "equality" on which the Irish Council for Civil Liberties made a detailed presentation. The Minister has indicated that some changes will be made in that regard. I would like to focus on the Equality and Rights Alliance observations in regard to the appointment process. Ms Mullen is right to point to the need to undo the damage done in this regard. I welcome that everyone broadly welcomes the Bill. I referred to the disproportionate budget cuts in 2009 as a quiet coup by the Department of Justice and Equality against the then Equality Authority. We all want to ensure that damage is undone and that we restore the integrity of the merged body. The appointments process is clearly critical in this regard. Ms Mullen stated that like the ICCL the Equality and Rights Alliance would like the criteria in this regard to be more precise. We are all agreed that a selection panel whose recommendation the Government must accept is a definite improvement on the previous process. What specific aspects, in terms of criteria for recommendations by the selection panel, should be included in the Bill? The ICCL recommendation that people should not be asked to serve in an individual capacity and that there should be a prohibition on a Government representative serving is helpful. However, what else should be included? Given the need to ensure the board comprises people with a range of skills and is as representative as possible of different interests and backgrounds, how should the new provision be drafted?

Ms Rachel Mullen

I would echo what Senator Bacik just said, namely, that the criteria should be detailed in advance so that we can determine what they are. Currently, it is recommended that they would be produced at the same time as invitations are being sought. The criteria should ensure that people putting themselves forward as candidates would have a recognised expertise in the area of equality and-or human rights. There should be some attempt made to have a broad representation of the different groups that will be represented by the commission. For example, we must ensure that minorities are represented.

I echo what the ICCL said about the need to ensure people on the commission are not there in an individual capacity but represent particular sectors. That is a key issues for us. It is important that the criteria would be developed in advance of the process and that engagement with civil society groups around the criteria to be developed would be sought at that stage. I agree also with the ICCL on the need for a panel of five, which will be critical in terms of deciding who will form the new commission. There is a slight contradiction in that one of the heads suggests that the panel will ultimately make the decision about the individuals recommended while another states that the Government will agree with the panel's selection. This needs to be addressed. It could perhaps be suggested that the Government would have to vet who the panel selects. The panel selection will be equally as important as the criteria for selecting the board members.

Senator Ivana Bacik

It is a rather complex process. Head 13(b) states: “The Government shall accept the recommendations of the Selection Panel”. It also states: “However, where for substantial and stated reasons in exceptional circumstances”. We may need to tease that out. There is a slight difference of view between the ICCL and the Irish Human Rights Commission on whether the Oireachtas should have a role in the appointments process. What is the view of the Equality and Rights Alliance? The Human Rights Commission suggests the Oireachtas might confirm the independent panel or interview nominated individuals while the ICCL suggests this might politicise the process. I have an open mind on the matter.

Ms Rachel Mullen

I agree the Oireachtas rather than the Government should have a role in the selection of the panel so I agree with the Irish Human Rights Commission.

Senator Katherine Zappone

I echo the words of Senator Bacik with regard to all of the presentations, which were excellent, and the more detailed written submissions. I have a question for Ms Mullen. She spoke about the positive public sector duty as did the Children Rights Alliance. I understand the UK has an integrated positive duty in its equality legislation to consider equality and human rights in carrying out functions. It might help the committee if Ms Mullen provides an idea of how this duty operates in the UK so we can compare it with what is being proposed in the Bill.

Ms Rachel Mullen

Two different duties operate at present in Britain and Northern Ireland. We consider the model in Britain to be the one which should be emulated here. It is slightly less bureaucratic than that in the North. Three independent reviews have been conducted on how these duties have operated since their introduction in 2002. The reviews have been very enlightening in that they have shown any costs involved in introducing the duties are far outweighed by the benefits. Usually the cost is extended during the learning curve when staff in public bodies are trying to get their heads around how to operate the duty. There have been some very tangible results from the operation of the duties in the UK. For example, in the education sector a huge reduction in expulsion of students has been shown, particularly expulsion of students from minority groups, as has an improvement in teaching curriculum. The Crown Prosecution Service in the UK made a thorough job of introducing the race duty, which came about because of the Stephen Lawrence case. After four years of operating the public duty it conducted a thorough review of how it had worked and found very tangible results, such as a huge improvement in outcomes for domestic violence homicides and cases involving hate crimes. We can learn much from this and I echo what was stated by the Children's Rights Alliance, that there needs to be more enforcement so the duty is not just about ticking boxes.

Ms Edel Quinn

With regard to the UK experience, the courts there have had an opportunity to tease out the meaning of due regard and the due regard standard. It specifically excludes the positive action measure I mentioned earlier and is limited to consideration.

Deputy Jonathan O’Brien

Earlier Ms Quinn mentioned a discrepancy, perhaps a drafting error, whereby the explanatory memorandum is more robust than what is contained in the draft legislation. Will Ms Quinn repeat the point she was making?

Ms Edel Quinn

Under the heads of the Bill the due regard standard is explained to mean public bodies must give consideration to the need to eliminate discrimination, but according to the explanatory memorandum it goes beyond this and states in addition to consideration action must be taken to address the problems which arise and to pre-empt future problems. Consideration is one thing but action is another and we would like some clarity on this. We support the concept of having to take action as well as consideration.

Deputy John Paul Phelan

I apologise for missing the beginning of the meeting and the start of the presentations, but I heard most of them and I thank the witnesses for the thorough presentations they gave. I am interested in the question asked by Senator Bacik on the apparent difference of opinion between the Irish Council for Civil Liberties and the Human Rights Commission on the composition of the commission. I am keen to see greater involvement and engagement with the Oireachtas in many areas and I have a question with regard to the determination of the Irish Council for Civil Liberties that the Oireachtas would not have such a function. I would like clarification on this. The criteria for appointment to the selection panel were questioned, with the suggestion that being knowledgeable in the field of human rights and equality would not be sufficient. Will Mr. Power elaborate on this?

Mr. Conor Power

It is about getting the best possible mechanism for the appointment, which in this context means open, transparent and independent. These are the benchmark international standards, so it is not something coming from the ICCL. It comes from our interpretation of the Paris Principles as implemented by the accreditation sub-committee. The way we see it, with the greatest respect, the implementation should be as distant from politics as possible given the nature of the body in question. This is not intended to be down on politicians; I recognise the considerable work they do in feeding back human rights issues through their clinics. This is about the perception of transparency as well as the reality of it. It is not about doubting the expertise of the Oireachtas in this area either, because from making submissions to various committees we know it has considerable expertise. The committees give the Oireachtas a peculiar expertise. One may ask if it is not about this what is it about. It is about the core importance of independence and transparency to a body such as the commission. If the commission or any similar body has its independence from Government and the Oireachtas questioned it is devalued as a body. We do not state this to exclude Oireachtas; we state it to promote the commission when it gets up and running so it can assert itself nationally and internationally as being independent of politics in Ireland with the only link to politics being the legislation establishing it after a committee considered the details such as is happening now, and that it is not impacted on by politicians making political decisions. This distance would be good for the commission and therefore we respectfully disagree with the commission's use of the Oireachtas. We consider this selection process is much better than what happened in the past so it is an improvement and I acknowledge this. We welcome this opportunity to address the committee on the Bill and we will discuss what we believe best practice to be. The Public Appointments Service has served this independence and transparency in other contexts very well in the past.

Chairman

We welcome Mr. Power's views.

Mr. Conor Power

Of course, and I thank the committee for listening.

Chairman

The point made by Deputy Phelan on the role of the Oireachtas is interesting. One must ask what is the Oireachtas and how does it manifest itself. These are big questions. The committee considered the selection panel and we grappled with how the committee might have an input. This is new ground and Deputy Phelan and Senator Bacik put their fingers on it. We are seeing a little more tension between the Executive and the Oireachtas, which is quite interesting and exciting.

Mr. Conor Power

It is very welcome. It is tripartite. We are not just talking about the independence of the commission from the Executive. We are talking about its independence from politics. That includes the Oireachtas. I respect fully what the Chairman has said.

Chairman

It is interesting. If the Oireachtas acts as a body in its own right, rather than in individual groups or parties or as the Executive, how political is it? We can let that question hang there.

Deputy Jonathan O’Brien

Is it possible to get the other side of the argument from the Irish Human Rights Commission?

Chairman

Of course. I am sure we will come to that in a few moments. The Deputy was engaging with the Children's Rights Alliance.

Deputy Jonathan O’Brien

I think the question I asked has been covered. A common theme is running through almost all of the submissions. It has pretty much been covered.

Chairman

We will come back to the Deputy to hear his views after Senator Zappone has engaged with the Irish Human Rights Commission.

Senator Katherine Zappone

I also have a question for the Irish Council for Civil Liberties.

Chairman

Of course. The Senator can direct her questions to anyone she wishes.

Senator Katherine Zappone

I will go back to the Irish Council for Civil Liberties. I did not want to get in on that debate. I will ask two questions. I am keen to respect the Chair. I thank Mr. Power for his excellent presentation. My first question relates to the substantive aspect of Mr. Power's first main point, which related to the difference between the definitions of "human rights" in head 30 and in head 3. This issue has also been raised by other speakers. The definition in head 30 is more restrictive. Am I correct in my understanding of the writing of heads of Bills when I suggest that an attempt may have been made to restrict the definition in head 30 because of a concern about the justiciability of economic, social and cultural rights, or because of a desire not to apply a level of openness to those functions that relate to law or to the initiation of proceedings? Can Mr. Power say whether I am correct in that regard? As a practitioner who often pleads cases with reference to international human rights standards that have been given the force of law in this State, can Mr. Power comment further on the restrictive nature of the definition of human rights in head 30 and how it would affect the work of the commission?

Mr. Conor Power

I will begin by commenting on the difference between head 3 and head 30. It comes from a distinction that was not there in the past. There was a distinction in the Human Rights Commission Act 2000, as amended by the Act of 2003, such that the commission would operate in general by utilising the broad definition of human rights. That included treaties which were not given the force of law in the State. The restricted definition only applied to the initiation of proceedings by the commission. It seems from a reading of head 30 that more of the duties of the new commission will be subject to the more restricted definition. If I am reading the heads of the Bill correctly, that would limit the role of this commission by comparison with the role of the last commission.

Senator Katherine Zappone

What does Mr. Power consider to be the rationale for that? That is really what I was trying to ask.

Mr. Conor Power

I cannot discern a rationale for it. I do not think anyone has questioned the effectiveness of the commission operating in a duality. It is effective when it uses the softer and broader definition of human rights as a benchmark across a range of its investigations and policy documents. If it is restricted when initiating proceedings to treaties that have been given the force of law, there is a certain logic to that which relates to the second question asked by Senator Zappone. Only treaties that have the force of law are justiciable in the State. It would have been pointless for the Irish Human Rights Commission in the past to have been initiating proceedings under treaties that had no force of law in the State. It simply would not have made sense. That is the old rationale. That would be a continuing rationale. The difficulty we have is that the narrower definition will apply to a broader range of the functions of the new commission, as opposed to the old one. Our respectful submission to the committee is that there is no reason for that. As a practitioner, there is a world of difference between international treaties that have the force of law within the State and those that do not. We have a dualist system of law. In other words, when the Government signs a treaty on behalf of the State, it is later ratified by the Parliament. That means the treaty is binding on the State but not within the State, as lawyers put it. In other words, internationally we are seen as being bound by that particular treaty. If an Irish citizen or individual goes into court and asks to use the provisions of the United Nations Convention on the Rights of the Child - to use a prime example - that is not justiciable. It is not Irish law. The Minister for Children and Youth Affairs, for example, might have to go before the United Nations Human Rights Committee every so often to defend Ireland's record of compliance with the United Nations Convention on the Rights of the Child because Ireland is bound by it as a State, but no one within Ireland can use it in an Irish court. That happens time and again with international human rights treaties, the exception being the European Convention on Human Rights, which was given the force of law in the State by an interpretative mechanism in 2004.

Chairman

Mr. Power referred to other treaties in his submission.

Mr. Conor Power

There are other treaties that comprise what is called the International Bill of Human Rights.

Chairman

Okay.

Mr. Conor Power

The first of them is the Universal Declaration of Human Rights of 1947. That was followed by the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Those three treaties, together with the UN Convention on the Rights of the Child, are generally seen as the International Bill of Human Rights. All of them are binding on the State but not within the State. I can give other examples of such treaties - the UN Convention Against Torture, the UN Convention on the Elimination of All Forms of Racial Discrimination and the UN Convention on the Elimination of All Forms of Discrimination Against Women - that Ireland was among the first countries to sign up to internationally. Thankfully, we have a good record in this area. The Oireachtas has done a great job of legislating for this and other matters of this nature. As a human rights body, the Irish Council for Civil Liberties would call for the greatest possible protection of human rights and therefore the incorporation of these other treaties.

Ms Tanya Ward

I would like to add to Mr. Power's statement on dualism. It is important to note that in the Kavanagh case, which is one of the leading cases around the justiciability of international human rights law - law that has been given effect and is justiciable in the courts - the Supreme Court said that although it is accepted that international human rights law is not justiciable in the courts, it could be relevant for policy-making. That was an important statement because it means that international human rights law can be used by different Government Departments and by the new commission. It would be a retrograde step if that was not to be carried forward in the future functions of the commission. One of the best pieces of work the commission did, from a pragmatic or practical point of view, was to inquire into the refusal of leave to land to a Pakistani man at the Irish Border. The commission normally looks at the Constitution and all of the State's human rights obligations and does a gap analysis on that basis. It checks whether what happens on the ground is in compliance with international human rights law. If the man in question had a child, the commission would have referred to the UN Convention on the Rights of the Child. The restriction in the draft heads of this Bill would prevent it from doing so in a future case. It would make it less effective. It would create a greater role for civil society organisations and make the commission less relevant. It is important to remember that when the new commission is being put together.

Senator Katherine Zappone

I would like to ask the Irish Council for Civil Liberties a further question. I think it will be helpful. Mr. Power made a strong statement earlier when he said that some aspects of the Bill are in "conflict" with the Paris Principles. He said that before he made his presentation. It would help the committee if he could summarise the aspects of the Bill that are in "conflict" with the Paris Principles. It was a strong statement given that the Paris Principles are so critical to this process.

Mr. Conor Power

In our broader written submission, as opposed to our statement, we pointed to the degree to which regulations are being used under the heads of the Bill. The heads allow for the Bill itself to be expanded by regulations. The Paris Principles state particularly that such a move should be made in primary legislation. That is one example. The extent to which there is a conflict is open to interpretation, but we are concerned-----

Senator Katherine Zappone

I suppose that is why I am pressing Mr. Power on it.

Mr. Conor Power

Absolutely. The Senator is entitled to press me on that point. The Paris Principles set out a clear general view on how this should be done. We are concerned that there is a conflict with that. That is as far as I will put it, with respect.

Mr. Stephen O’Hare

When we are discussing the Paris Principles, we are discussing the principles themselves and the guidelines that have been issued by the sub-committee on accreditation. I think we take them as a body.

Mr. Conor Power

Yes, of course.

Mr. Stephen O’Hare

That is really what we are pointing to. Issues relating to secondees, appointments and terms of office, etc., appear to be in conflict with what the sub-committee has recommended.

Chairman

I thank Mr. O'Hare and Mr. Power.

Senator Katherine Zappone

I would like to thank the representatives of the Irish Human Rights Commission again for their presentation and their more extensive submission on the heads of the Bill. I regret that Dr. Manning is not here as well. I have three questions. All the delegates spoke about the independence of the new body, specifically about its links with the Department of Justice and Equality. Will they outline a little more on this from the perspective of the commission? They might address financial issues in their reply. In their more extended submission they argue, "The new commission must not be subject to audit by Government Department but rather by the Comptroller and Auditor General." The Minister, Deputy Shatter, was at the launch of the final report on the Irish Human Rights Commission. Is that issue still being debated with the Department? The Minister would take the view that the commission should stay with the Department.

Mr. Des Hogan

In our observations we stated there are a few areas in the heads of the Bill where there are links with the Department and these could possibly be removed. One hopes that as the Bill progresses dialogue will occur.

Regulations, though not a huge area, is one that could be looked at. I refer to the annual report. The Bill contains a line to the effect that the Minister shall request or direct this and I believe this is something that can be examined. Dismissal of members of the commission would be another area for discussion.

On audit, head 26 is an area beyond section 16 of the Human Rights Commission Act 2000. There are two new provisions about which we are not too happy. At present, the commission is independently and externally audited by the Comptroller and Auditor General. We had a finance risk audit and general purposes committee which basically directed the internal audit function. Under head 26(3) there would be a role for the Minister to have an officer examine the accounts of the commission and conduct an internal audit and we believe that would be a difficulty in the heads of the Bill. I stress it is not that the commission wants to avoid accountability. That is absolutely important and we have said as much at every opportunity. However, we think there are mechanisms. At present we are looking at the mechanism in the Ombudsman's office where the internal audit meets all statutory requirements but preserves independence. We think that is important. We must also point out there has been a history of budget cuts to the commission, with the result that the relationship has been fraught with the funding Department over time. We have a better relationship now but in the future that cannot be taken for granted. For a national independent institution to be completely independent it is important that it is seen to be independent, acts independently and has that operational ethos.

One of the main areas which the sub-committee on accreditation will look at next year, for the re-accreditation process, is funding and budgeting. For example, in our observations we note one of its recent reviews of a different institution, the National Human Rights Institution, NHRI. It states:

Funds should be allocated to a separate budget line. Once funds have been allocated by parliament the funds should be released to the NHRI and it should exercise absolute management and control. Where accountability requirements are imposed by Government such regulation must not compromise the capacity of the NHRI to function independently and effectively.

It also refers to its general observation, 2.6, on adequate funding, and 2.10, on administered regulation.

The idea is that the independent commission would be given, in the first place, a say in the budgetary process. At the moment there is not that dialogue. That would come in discussion with Parliament in terms of the accountability of the commission to Parliament, if that can be worked out. The commission would then be free to exercise control over its budget during the year, as it sees fit, so it can determine its priorities, be properly audited and meet all those requirements. That is the idea behind an independent commission. It is funded by the State and acts as an independent institution, being independent from the Executive, as was said, and also from other arms of the State.

Senator Katherine Zappone

That is very helpful. My second question relates to resources which is what Mr. Hogan was alluding to in his finishing remarks. It is a matter I raised recently on the Adjournment with the Minister, Deputy Shatter. He acknowledged there would be €500,000 of savings made by the merging of the two bodies which would be given towards the resources for the new commission. However, as many have noted, resources are critical to maintain independence.

I wish to be clear, because right now I am not. The new body may get that new money but at present, according to the submission about the two bodies, the IHRC has seven staff. Is that correct? I am not sure what the figure is for the Equality Authority. When those cuts were made initially there were 35 staff at the Equality Authority and 17 at the IHRC. Now, there are reduced staff numbers, at least in the IHRC. I do not know the other figure. Perhaps there will be further resources but what will the composition of the new body be, as Mr. Hogan understands it, in terms of the resources that will be there from day 1?

Mr. Des Hogan

That is in our submission. Our staffing is as the Senator stated. There are one or two people on career break but these are the numbers we are working with. We have some people who are funded philanthropically. For example, our human rights education and training programme and a programme on Irish Aid have three other people who are not State-funded. State funding has to go to the core of the functions of the commission, otherwise its independence will be called into question.

Staffing will be critical. This is particularly so when we talk about the expectation on the new commission to deliver to citizens. If there are 16 functions of the commission but not enough staff to do that work very difficult choices will have to made by the new commission. That is one of the first things the new commission will have to put its mind to when it looks at the strategic plan and how that will work.

As a worker, you would have to say that you will do what you can but you have to be realistic as well. We have certainly found it difficult to convey that message to the public, in terms of what we can and cannot do. It is a frustration and a tension. We completely recognise there is a financial crisis in the country but if Parliament is going to give functions to a body, and if there is an expectation that the work is going to be done, there has to be a commitment to resourcing it because that will follow, or not follow, as the case may be.

Senator Katherine Zappone

It is really important that we know the starting point in terms of actual staffing levels when the commission starts. I have one last question and I thank Mr. Hogan for his patience. In the past it has been stated that some of the rationale for the merging was because of a possible overlap of functions between the commission and the Equality Authority. However, the heads of the Bill recommend the retention of the powers of each body. Can Mr. Hogan offer some clarity, given the retention of the powers of each body, on how he believes the commission should operate in order to ensure coherence?

Mr. Des Hogan

Speaking from personal experience, while we would work with the Equality Authority on a number of matters, the remits of both bodies have come from different perspectives. The Equality Authority came from domestic legislation and European law whereas our genesis is the Constitution and human rights law internationally. We would look, therefore, at different things. A task certainly lies ahead in bringing all that together to give coherence. The Senator is right in that the functions are more or less as they were.

Perhaps I might say a word on the legal powers which might relate to the drafting. In terms of some of the work we are doing at the moment in amicus curiae inquiries, the wider definition of human rights is contained in the Human Rights Commission Act 2000. That is what we have been doing during the past few years. There has not been a problem with judicial applicability before the courts because the courts will not allow anybody before them unless they are pleading domestic law. What one does in such cases, and also in section 10 legal systems cases, is that the parties plead domestic law and one brings things to the court’s attention. On the other hand, if one is giving legal representation one can only plead domestic law but one might have decided to go in for a person being evicted from local authority housing, because the person has disabilities and his or her rights under the disability convention have been breached. However, one might have to argue the Housing Acts when one is in the courts.

That is the difference. Part of it is the decision to go in but it applies to inquiries too, as when an Act is deemed constitutional, as in the example of the foreign national detained at Dublin Airport. If one was going to do that inquiry all over again one would only look at the prison rules, the Constitution and whether the Garda regulations were breached. One would not be able to consider the international standards because one's mandate would be reduced.

There is a difference between legal powers and enforcement powers. We recognise there are enforcement powers which it would not be appropriate for the commission, the new body, to have and perhaps that is where the drafting needs to be examined. As Mr. Power said, section 11 of the Human Rights Commission Act limits human rights to the institution of legal proceedings in our own name. We recognise that is the case and should be the case but in respect of some of the other powers under the protection mandate, from the human rights perspective, we believe the position should be as it is in the 2000 Act.

Chairman

To return to the role of the Oireachtas, which was raised earlier, the commission welcomes the involvement of the Oireachtas in the selection process and recommends that the Oireachtas be given a stronger role in the appointments process through confirming the independent panel, interviewing nominated individuals in an Oireachtas committee and through agreeing the list of such nominated individuals. There was a degree of discussion on that earlier. Could Mr. Hogan tease out his thinking on that for us?

Mr. Des Hogan

One of our general thesis is that there should be more Oireachtas involvement and accountability to it and we believe that is important. I agree with what Mr. Power said about openness, independence and transparency. Once that happens and is seen to happen, the process can be defended and it will be seen to have the faith of everyone involved. We recommended the involvement of Parliament because the sub-committee on accreditation has recommended a parliamentary process in that regard. It praised the Scottish model as the Scottish commission would have that model. That is not to say there would not be another model that would meet the Paris Principles requirements. The current process is better than the process in the 2000 Act and we have said that in our observations.

Chairman

Will Mr. Hogan clarify what he understands the current process to be vis-á-vis what happened previously?

Mr. Des Hogan

My understanding of the previous process is that the Minister would have set up a panel to examine applications for persons who wanted to be appointed to the commission, the panel would make recommendations individually and the Minister would either accept or reject them as he or she saw fit. The Minister could look beyond the panel as well, whereas currently - the Chairman will be more aware than I am of the discussion taking place between the committee and the Department - there is certainly more involvement, and the heads of the Bill which we have been examining will allow for that. There is still "the Minister shall decide" difficulty. We were recommending that the panel, which appoints the commissioners, would be beyond reproach, that its members be independent people. I gave the example when we met the Department previously of somebody like the first president of the commission, Donal Barrington, who nobody could say would not be other than independent on that panel. As to who would appoint that person, that is a difficulty but in our submissions we have said that we believe the Oireachtas, and perhaps this committee, should have that role.

Chairman

I apologise for delaying Mr. Hogan as I know he is under pressure of time. On the practicalities of a committee such as this one selecting and nominating people, how would Mr. Hogan envisage that working in practice? Would members bring forward names to the committee or would people apply? How would it work in practice?

Mr. Des Hogan

For the panel?

Chairman

Yes. For the panel or for the commission but for the panel initially.

Mr. Des Hogan

Starting with the panel, I imagine names could be suggested by the Department or by members of the committee, the committee could have a discussion and conclude that five persons on the list would be the five persons and through discussion with the Department that would occur. Then there would be an open and transparent process for the appointment of commissioners. We said in our submission that the sub-committee on accreditation is pushing for more civil society involvement in the process. There will probably need to be a little bit more in that respect than there is in the heads of the Bill in terms of what the sub-committee on accreditation is ideally looking at. People would apply, be considered and then the list would go forward for decisions. That would be more or less the process but it would be transparent, open and accountable in terms of the Oireachtas.

Chairman

I thank Mr. Hogan and the other witnesses for coming here today, for the very good interaction and contributions they have made to the work we are doing. I suggest that members be requested to submit recommendations to the secretary by Friday, 13 June and that we will meet on Wednesday, 18 June to finalise our response to the Minister on the meeting we have had today. We will also meet tomorrow morning with the Equality Authority. The joint committee is adjourned until tomorrow morning.

The joint committee adjourned at 10.55 am. until 9.30 am. on Thursday, 5 July 2012.