Irish Human Rights and Equality Commission Bill 2014: Second Stage

Irish Human Rights and Equality Commission Bill 2014: Second Stage

Wednesday, 18 June 2014

Senator Ivana Bacik: I welcome the Minister, Deputy Fitzgerald, and the introduction of this legislation. It has already been passed by the Dáil and the Minister referred to some of the amendments made there. It is a long-awaited Bill. The Minister stressed the urgency with which it is being brought forward and some of us - clearly not all of us - hope it will be law before the summer. The members of the commission-designate are also very keen to have the legislation brought into force.

The Minister mentioned the key events to which the Government is committed, such as the marriage equality referendum in spring next year. It is vital that we have the statutory framework, such as that set out in the Bill, for a human rights body in advance of that referendum. It is extraordinary that Fianna Fáil is opposing it. In my innocence I had not realised it would take that view. It is particularly extraordinary given that party's history on this. Senator O'Donovan has kindly reminded us that some years ago, when the former Minister, former Deputy Dermot Ahern, made 43% cuts to the Equality Authority budget in 2008, I wrote at the time that a very quiet coup was taking place and that the Equality Authority was being undermined by the then Government.

Other Members have correctly paid tribute to Maurice Manning, the former president of the Human Rights Commission, but I wish to pay tribute to Niall Crowley, former director of the Equality Authority, who played a huge role in the promotion of equality issues, the protection of equality and in taking ground-breaking cases. I utterly reject my friend and colleague, Senator Conway's, critique of the Equality Authority in the Portmarnock Golf Club case. It is easy to dismiss that as a misguided case due to the outcome in the Supreme Court. Many of us disagree fundamentally with the reasoning in the Supreme Court judgment. It was not necessarily a predictable outcome and the authority was quite entitled to take that case.

I conducted a study with colleagues some years ago on gender discrimination in the legal profession. We found golf clubs to be significant sites of discrimination for women working in the legal professions. They were being excluded from golf outings and therefore excluded from the type of client-solicitor gatherings that would bring in money, enhance their reputation in the firm and so forth. It is easy just to dismiss golf clubs as elitist, and I agree with Senator Conway on that, but the action taken by the Equality Authority was not simply a populist act but an important one in terms of trying to promote the rights of women and their rights to be equal members in very influential and large institutions, such as that golf club.

To return to the Bill, it is vital that we move forward with the new merged body and ensure it can be as effective as possible in the protection and promotion of both equality and human rights. The justice committee has conducted hearings on the Bill and members of the commission-designate appeared before it. As Senator Zappone eloquently pointed out, it is hugely important to continue that strong interaction between the justice committee and the new merged entity. I am glad that aspects of the independence of the commission and of its links to the Oireachtas have been highlighted and strengthened in this Bill. The justice committee, on the initiative of Senator Zappone, is considering adding human rights to its title so it will have specific jurisdiction to deal with human rights issues as well as equality and justice issues.

We have received useful observations from the Irish Council for Civil Liberties, ICCL, and the human rights and equality commission-designate. I read them carefully in terms of trying to analyse the Bill and considering what aspects of it must be highlighted on Second, Committee and Report Stages. There are some key themes in the Bill. The first theme I wish to discuss is the definition of equality and human rights. I am glad there is no definition of equality in the Bill. It is appropriate that it is left undefined. I note the difficulties between the two definitions of human rights that have been highlighted by Senator Zappone and in the observations of the ICCL and the human rights and equality commission-designate. There is a narrow definition of human rights in section 29, in the part of the Bill dealing with enforcement and compliance. In some ways that is simply a practical issue. I am trying to get my head around it because-----

Senator Katherine Zappone: Exactly.

Senator Ivana Bacik: I agree in principle that the broader definition in section 2 should be there, particularly for the work of promotion and advocacy of human rights for a commission, but I can see a practical difficulty if a commission is trying to hold bodies within the State, either private or public, to account by reference to a set of human rights standards that are not contained in the Constitution or in any international treaty or in the European Convention on Human Rights, to which the State is a party. There could be a problem. I note the human rights commission-designate says that even if one uses the wider definition of human rights more extensively in Part 3, one would still have to exclude certain provisions. One could not have compliance notices, for example. It recommends that the wider definition be used, save for section 41 and sections 36 to 39, noting that those functions could only relate to law that is enforceable. It does, however, recommend that a wider definition be used in other sections of Part 3. I wonder if a middle ground could be devised here, because there could be a practical difficulty with extending it throughout all of the provisions of Part 3. That is one issue with the definition.

The second issue is the establishment of the new commission. Independence is a hugely important issue. Section 9 provides a guarantee of that. The funding issue has been highlighted along with the fact that the commission must have adequate resourcing to be effective. We have seen that from the rather controversial history of the Equality Authority, in particular. It is welcome that an amendment was made in section 21 on Committee Stage in the Dáil to make the director the Accounting Officer for the Vote of the commission. The commission will have its own Vote and the Minister has said that administrative arrangements for this are in train. That is hugely important because it was an issue in the observations on the first published version of the Bill produced by the commission-designate and the ICCL.

The third theme is enforcement. An amendment the Minister did not mention but which I consider important was to the title of Part 3, which was originally "Enforcement" and is now "Enforcement and Compliance". That is something the human rights commission-designate recommended because it is a more accurate depiction of the wide range of provisions contained in Part 3.

I wish to refer to three aspects of Part 3. The Minister highlighted some of them. First is the codes of practice issue. The sexual harassment code is a good example of the type of important promotional work bodies can do in seeking to ensure compliance with human rights standards. I hope to see more of that under section 31.

Section 35 deals with the power to conduct an inquiry. There have been recommendations from the ICCL and the human rights commission-designate that changes should be made. I looked carefully at the wording in section 35 - I realise we will deal with this in more detail on Committee Stage - and I believe it is of particular significance now, in the wake of the report Judge John Cooke produced on the Garda Síochána Ombudsman Commission, GSOC, bugging allegations. Judge Cooke devoted a significant part of his recommendations to the public interest inquiry power of GSOC. He said that one of the problems, and this was highlighted in the political controversy surrounding those allegations earlier this year, was the lack of specificity of criteria as to when GSOC could conduct a public interest inquiry. It is hugely important that there are very specific criteria in section 35 and that the commission may conduct an inquiry of its own volition, so it does not have to wait for a ministerial request. Also, if one looks carefully at the wording, even if it is requested by the Minister, it does not have to do it. It "may" conduct an inquiry if the commission considers it appropriate and so forth, and the criteria are set out.

This is the sort of power that was in the previous legislation, but was not practicable. This is a more practicable section, but this is not a power that should be or will be exercised lightly. It is important the initiative is left to the commission and that the criteria are clearly spelled out for it and that the procedures are set out in Schedule 2. I am pleased to see this. The GSOC example is an important example of where we are not specific enough and of how we can run into problems where we set out power to conduct a public interest inquiry.
I welcome the new provision in section 42. This new provision was promised in the programme for Government and was sought by different NGOs. It concerns public sector duty and provides that a public body, in the performance of its functions, shall have regard to the need for equality and human rights protection. This is hugely important. At the Joint Committee on Justice, Defence and Equality this morning, we heard of some impressive examples of the work being done currently in the Defence Forces by Commandant Jane Lawlor, gender equality officer, and of the practical way she has begun to ensure gender equality is not just an aspiration in the Defence Forces, but a reality. There is, for example, the insertion of a requirement for people at every stage of promotion to receive some gender and equality training. A requirement is also being introduced to provide that before any members go on a tour of duty abroad, they will complete training on gender based violence and so on. There are practical examples of how Irish troops serving with the UN abroad have made life safer for women and girls who must leave camps to collect water and so on. This work recognises the need to ensure protection. There are impressive examples in practice of how this positive duty on public bodies can be implemented, which is why I believe section 42 is so important.
I welcome Part 5, section 54 and the new enforceable right to compensation in case of judicial error and deprivation of liberty. In regard to the D.G. v. Ireland case, I was in practice and acting in cases where juveniles were detained following the precedent set in that case. Many of us were troubled by that judgment, but it was often used where parents were begging us for some way to ensure a child's safety. However, it was problematic and I am glad to see we have now remedied the issue addressed in the European Court of Human Rights decision.
This merger has been a long time in the making and most of us are keen to see the Bill come into being. I am very disappointed it will be opposed. I assumed, perhaps naively, we might have cross-party consensus on this, because it is essentially a good Bill. I agree there are areas that can be tweaked and discussed, but it is imperative we have a statutory framework for our national human rights and equality body.

Senator Rónán Mullen: Ba mhaith liom fáilte a chur roimh an Aire. This is the first time I have had the opportunity in the House to wish her well in her new duties. I would also like to wish the Human Rights and Equality Commission the best for its work. This is an important body and it has important and sensitive work. As the Minister has said, the commission will be Ireland's internationally recognised body with responsibility for human rights.

I wish to make some general points. The Minister has invoked important ideas and concepts. For example, she referred to best international practice, including the Paris Principles, underpinning our approach to human rights and the work of the commission. The new commission will nominate members to the fundamental rights agency of the European Union and so on. The describing and circumscribing of circumstances in which members can be removed seems appropriate also.

Looking to the future, we must continue to reflect carefully on human rights, what they are, how we identify human rights, how we define them and how we go about enforcing them or ensuring compliance with best international practice or authentic human rights standards as identified. On the issue of having regard to best international practice, the identification and promotion of human rights goals must never become the exclusive province of any closed or elite group, however well educated, academically qualified or connected with the Government, civil power or the public service. Human rights work must be done with passion, but also with humility and in a listening spirit. It must have particular regard to the people it must serve, particularly minorities or those who are vulnerable, because these are the groups who most depend on our spirited defence of human rights. Our identification and defence of human rights and equality must be done in the context of respect for the letter and spirit of Bunreacht na hÉireann. Our constitutional values might even be sometimes in tension with what might be regarded as best international practice and this is an area in which we need to tread very carefully and with great respect for our Constitution and its important role in the work we must do.

We must recognise that the idea of human rights in itself poses particular challenges. After the horrors of the Second World War, states rightly came together to establish international laws, treaties and conventions and to promote human rights standards. This has been a positive and progressive development for the human race. However, in the absence of recognised concepts of natural laws and rights, we will always remain vulnerable to the possibility that the most powerful elements in our world will redraw the human rights map from time to time.

For example, the right to life of the unborn is not well championed by what we might call the identifiable human rights fraternity, in the western world in particular, at this time. Various human rights committees repeatedly interrogate countries that have sought in their laws to protect the unborn. Some of these so-called human rights defenders seek to restrict freedom of conscience in the case of certain health care workers for example. I am not aware of any international human rights body that sought to challenge our, frankly, corrupt abortion legislation, which was passed here last year, with all of the dangers and contradictions it entailed.

Language is also frequently abused. Notions such as "reproductive rights" are used as a Trojan horse when what is really being referred to are rights to abortion. People even talk about a concept such as a safe abortion, which is a concept foreign to anybody who realises an abortion can never be a safe experience for the unborn child involved. I cite the example of the unborn, simply because the unborn is, perhaps, today's victim of what can often be the arbitrary and selective nature of human rights discourse.

Given the demographic changes that are occurring in our world and in Europe, if we think, for example, about the emerging strength of Islam and the existence of particular strains of Islam, these have very different ideas about human rights and human dignity to the ideas that would be shared by a majority of those in this Chamber. Think of the emergence of China and its enormous economic power. Only yesterday, we saw our British friends kowtowing to the Chinese authorities, because China must now be propitiated because of its huge economic strength. This has enormous implications for our attempts to continue to vindicate human rights and to raise important concerns about human rights in China. We must constantly reflect on these issues, instead of just looking at the mechanics of this legislation or the balancing of rights or the extent to which the legislation facilitates or spancels the members of the commission, although I do not deny these are important questions. We also need to think about the concepts we as legislators must struggle to address and the issues on which the members of the commission must continue to reflect.

I referred to the emerging strength of Islam and of China. We can ask, legitimately and with great concern - with burning anxiety one might say - what is the future for human rights when it comes to determining women's full participation in civil and political life, or people's right to full participation in a democratic system of decision making. I suggest we must move from seeing things in terms of what we decide is right or wrong at a given time, according to the current international consensus or current shared consensus of those within the human rights circle. We must struggle at least to try to establish clearly in our minds what we believe is objectively right and wrong.