Dáil Éireann debate -
Wednesday, 10 May 2000

Vol. 518 No. 6

Human Rights Commission Bill, 1999: Report and Final Stages.

Minister for Justice, Equality and Law Reform (Mr. O'Donoghue)

I move amendment No. 1:

In page 3, line 22, after "person" to insert "or, as the case may be, specified in the resolution of either House of the Oireachtas with respect to the establishment of the tribunal or the appointment of the other person".

On Committee Stage I accepted the principle behind Deputy Howlin's amendment to include bodies which might be established by means other than by statute. At the time I indicated that I wanted to reflect further on the precise wording of the amendment. Following consultation with the parliamentary draftsman, the proposed amendment is drafted to ensure that only those bodies established by the Oireachtas are included within the remit of the legislation.

Mr. Howlin

I thank the Minister for coming back with this amendment which responds to an amendment I moved on Committee Stage. I support the amendment and welcome the Minister fulfilling his commitment.

Amendment agreed to.

Mr. Howlin

I move amendment No. 2:

In page 4, between lines 11 and 12, to insert the following:

"2.–The State shall, within 6 months from the passing of this Act, ratify or otherwise become a party to the following instruments–

(a) Protocol No. 7 to the European convention, done at Strasbourg on the 22nd day of November, 1984;

(b) the Torture Convention,

(c) The Racial Discrimination Convention;

(d) the European Social Charter (Revised) done at Strasbourg on the 3rd day of May, 1996, and the Additional Protocol to the European Social Charter providing for a system of Collective Complaints, done at Strasbourg on the 9th day of November, 1995.”.

We discussed this amendment on Committee Stage. I have reread the Minister's response and retailored the amendment to meet some of his concerns. I have rescheduled the time frame from two months to six months within which the State shall, from the passing of this particular enactment, ratify or otherwise become a party to the following instruments: Protocol No. 7 to the European convention, done at Strasbourg on 22 November 1984; the Torture Convention, the Racial Discrimination Convention and the European Social Charter (Revised) done at Strasbourg on 3 May 1996, and the additional Protocol to the European Charter providing for a system of Collective Complaints, done at Strasbourg on 9 November 1995. The two changes I have made since Committee Stage are, first, to extend the time from two months to six months, which I hope is adequate time for the Minster to agree that these important enactments should be brought into effect in this State. They all do not require legislation. The Minister went through the various relevant ones in response to a Committee Stage amendment. Second, I have deleted the reference to the minorities convention, since that has subsequently been ratified. The Minister will be aware that these amendments formed part of the Labour Party Private Members' Bill on human rights, which has been on the Order Paper for some time. The purpose of that Bill was to make the European Convention and these other instruments part of domestic law, so that there would be a developed corpus of law.

It is important that we are not only party to international conventions and that we do the right thing at international fora, but also that we take the critical next step and enact such provisions into domestic law or make whatever administrative arrangements or orders as are required to fulfil the obligations we freely enter into. The corpus of domestic law made by our courts sometimes far outreaches some of the international obligations placed on us by these conventions. That is beside the point. It makes it all the more reasonable for us to enact lesser provisions so that we can be listed in international bodies as compliant with the requirements imposed on us in signing up to these conventions in the first instance. I hope the Minister has had the opportunity to reflect further on the arguments I made on Committee Stage and that he is now in a position to accept this amendment.

Mr. O'Donoghue

My main difficulty with the amendment is that it seeks to force the Government to ratify, or otherwise become a party to, the four instruments in question. That course of action is wrong because it is contrary to the doctrine of the separation of powers as enshrined in the Constitution. As I said on Committee Stage, Ireland, in so far as the adoption of international treaties and obligations is concerned, takes a dual approach because of the effect of Article 15 of the Constitution, which provides that exclusive power for making laws for the State is vested in the Oireachtas. Article 29.6 states: "No international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas.". This latter provision has been interpreted as precluding the Irish courts from giving effect to an international agreement if it is contrary to domestic law, or grants rights or imposes obligations additional to those of domestic law.

If the State wishes to adhere to an international agreement it must ensure that its domestic law is in conformity with the agreement in question. In some cases the entire contents of such an agreement are transposed into domestic law by providing that the agreement shall have the force of law in this State. In other cases it may only be necessary to transpose certain provisions of the agreements, simply because other provisions are either already incorporated in our law or are of a nature that do not require incorporation. Sometimes transportation provisions are not required. For example, that is the case with regard to the Council of Europe framework convention for the protection of national minorities, which was ratified in May 1999 and which has featured in the debate on this Bill.

Apart from that fatal flaw, the question of ratification of all the instruments mentioned in the amendment is already the subject of detailed consideration. In so far as protocol No. 7 to the European Convention on Human Rights is concerned, that matter is relevant in the context of the Government's recent decision to incorporate the convention into Irish law by October next in the context of the Good Friday Agreement and against the background of the legislative and other developments that are taking place in the immigration area. Legislation on the so-called torture convention has already passed through the other House and is presently awaiting Report and Final Stages in this House.

The convention on racial discrimination is being examined now that the Equal Status Act has been enacted. The 1996 revised European Social Charter, together with its additional protocol, which deals with a system of collective complaints, has been the subject of consultations with both the Irish Congress of Trade Unions and the Irish Business and Employers Confederation. I understand the question of our signature of ratification of both of these instruments is under active consideration.

It must be accepted, therefore, that there is no need to place a statutory obligation on the Government to do what is already well in the process of being done. Apart from that, there is the more fundamental objection, which relates to the question of the Legislature binding the Executive in a manner that requires careful examination and consideration, as to how best and by what means the State should take on board international treaties, agreements or conventions. Accordingly, this amendment is opposed.

Mr. Howlin

I am disappointed with the Minister's comments. This amendment deals with a fundamental issue. I hope the Minister is a parliamentarian who will not always be a member of the Executive and that he will be sympathetic to the view that it is the role of the Legislature to legislate. The Executive, on behalf of the State, negotiates and signs international agreements, which are ratified by the Houses of the Oireachtas, as the sovereign assembly of the representatives of the people. Legislation is uniquely and solely the prerogative of the Oireachtas and it is an available option to any Member to institute legislation. Given this, there is no difficulty in any Member seeking, on a Private Members' basis, to bind the Executive to any enactment. That is part of the legislative forum.

We are trying to make the Executive more accountable to the Houses of the Oireachtas. I have argued the case in committee that we are almost unique within European Parliaments to have a functioning Executive that is not accountable in the same way as most European Executives are to their Parliaments. For example, in Denmark an international treaty would not be entered into without the fullest debate in a committee of its Parliament. A treaty or international obligation would be processed by such a committee and the member of the Executive responsible would make himself amenable and accountable to the Parliament.

The tone of the scripted answer from the bureaucracy that the Minister has read out, seeks to delimit the power of this House and its elected Members. The Minister should reflect further on the principle involved here because it is wrong. We should be much bolder in broadening the sphere of purview available to Members of this House and the committees of the House. That was the inanition in the debate we had when we established committees of the House.

I reject the notion that because there is some mechanism – I will not detail the component parts, which are being dealt with at various stages in legislation – we should not put a time frame by which the parts should be enacted. It is good to keep the Executive on its toes and it is useful to insert such a time frame in the legislation. I would be happy to revisit the six months provision if the Minister needed nine months to ensure that all these provisions will be included.

I reject the idea that because our domestic law is greater than these enactments it diminishes the need to specifically enact the obligations we place on ourselves at EU or UN level. It is important that, even if our own domestic arrangements confer greater rights, we would be seen to enact provisions to which we sign up at international fora.

Mr. O'Donoghue

Our system, which is outlined in the 1937 Constitution, is well known. Deputy Howlin, as a former member of the Executive, knows better than most that the Executive is elected by the Legislature and the Members of this House and that the acceptance or non-acceptance of legislation is and always has been a matter for the Executive. There are very sound and solid constitutional reasons for that. In my view, it would not be possible for us to depart from that position. Of course, executives are removed if there is not a sufficiency of votes for them in the House and that usually leads to a general election at which the people make their decision. Either way, general elections are held every few years in our system and that ensures that the people have their say. When the people who are voted in change, the Government changes. That is the prerogative of the Oireachtas and, to that extent, Members of this House have considerable control over the Executive in that they make or break it.

I do not believe it would be possible for the Legislature to delimit the powers of the Executive in the manner suggested by Deputy Howlin without travelling down what, to say the very least, would be a very dangerous constitutional road. It would be unprecedented in the history of the State for the Legislature to bind the Executive in the manner suggested and, in my view, there are very good reasons these structures are structured as they are, one of which is to ensure that we have the maximum amount of checks and balance which can be provided in a republic. I do not believe that this Republic would be served by the enactment of the measures espoused by Deputy Howlin; neither do I believe that Deputy Howlin espoused those measures when he was in Government.

Mr. Howlin

The Minister is occasionally wont to overly dramatising events and his response to this amendment is nothing less than that. It is not an earth shattering amendment and, I dare say that if I had had time to research it, it is probably not unprecedented. It is within the purview of any Member of this House to introduce a Private Members' Bill requiring the Government to do all manner of things as long as they would not involve a cost on the State. The Minister has produced a raft of Private Members' Bills requiring the Executive to take certain actions. For the Minister to say that this proposal, which simply seeks that conventions, protocols and international treaties to which we have freely signed up as a people should be brought into effect within a defined period, would somehow cause a constitutional crisis which would undermine the Executive is so far-fetched as to be quite silly.

It is important that we sign up to international agreements. Given that we are often one of the first countries to be proactive in the human rights area and often, indeed, initiate such agreements, it is wrong that we are so tardy in bringing those agreements into force in domestic law. I am not laying the blame for that solely on the current Minister as it is a practice which has existed for some time.

There is a fundamental general principle at issue here. We have genuinely improved the business of these Houses with the establishment of a committee system whereby Ministers discuss policy and sometimes, as the Minister did with this Bill, bring heads of a Bill to a committee in advance of the Executive making decisions on it. Judging by the comments he made, if it were left to this Minister to decide whether committees of the House should debate heads of Bills before they are ultimately determined by the Executive, that would be a dreadful trespass upon the Executive and its rights. Clearly, it is not and has not been.

We should have a more open response from the Executive and improved interaction and accountability between the Executive and the Members of this House. The Minister was correct when he said that my opinions have shifted somewhat since I was a member of the Executive. I negotiated positions for this country in regard to the preliminary work on the Kyoto Protocol, for example, without having held full discussions with the appropriate committees of the House. I would hope that we can do better in the future and involve committee members in debating our international obligations, what flows from them and how we can best transpose them into our domestic scene. That is all I am seeking to do.

I welcome the progress we have made on some of these enactments and I assure the Minister that if he is determined not to accept this amendment, we will revisit the progress made on these agreements by way of parliamentary question or any other avenue open to us in the coming weeks and months.

Amendment, by leave, withdrawn.

An Ceann Comhairle

Amendment No. 3 has been ruled out of order. Amendment No. 4 arises out of committee proceedings and No. 5 is related—

Mr. Howlin

I did not receive any indication that amendment No. 3 was out of order.

An Ceann Comhairle

It involves a potential charge on the Revenue.

Mr. Howlin

Giving the European Convention on Human Rights the force of law would involve a charge on the State?

An Ceann Comhairle

That is the position. It would involve a potential charge on the Revenue.

Mr. Howlin

Who determined that? Was it the Ceann Comhairle's office or the Minister's?

An Ceann Comhairle

My office.

Mr. Howlin

The Ceann Comhairle's office determined that the enactment of the European Convention on Human Rights would involve a potential charge on the State?

An Ceann Comhairle

Yes. The amendment is out of order. We proceed to amendment No. 4. Amendments Nos. 5, 6 and 7 are related and the amendments may be discussed together by agreement. Is that agreed? Agreed.

Amendment No. 3 not moved.

Mr. O'Donoghue

I move amendment No. 4:

In page 4, between lines 34 and 35, to insert the following:

"(2) Of the members of the Commission, not less than 4 of them shall be men and not less than 4 of them shall be women.".

On Committee Stage I agreed to specifically provide for gender representation on the human rights commission. In the course of drafting the amendment with the parliamentary draftsman, it was felt that the most appropriate way of providing for this was to do so by way of a separate subsection in section 5. I am therefore proposing that a new subsection (2) be introduced to provide for gender representation. This separates the purpose of gender representation from the requirement in subsection (11) that the commission be representative of Irish society. As a consequence, the reference to the commission comprising both men and women in subsection (11) is being deleted.

I also acknowledged on Committee Stage that the proposed amendment could cause practical difficulties in regard to appointments and the filling of vacancies on the commission. The purpose behind amendment No. 5 is to ensure that the commission can continue to act, notwithstanding the fact that there may be a temporary vacancy in either the male or female ranks of its members. Accordingly, I would ask Deputy Howlin to withdraw his amendment as section 5(2) now meets his concerns.

Mr. Howlin

I welcome the Minister's amendments and thank him for accepting the logic of the argument made by myself and others on Committee Stage. It would have been a difficult wicket for the Minister with responsibility for equality to resist that amendment. I am happy to accept the three amendments in the Minister's name which are logical and well structured and I do not intend to move my own amendment.

Amendment agreed to.

Mr. O'Donoghue

I move amendment No. 5:

In page 5, line 55, after "members" to insert "(including one or more vacancies that result in subsection (2) not being complied with)”.

Amendment agreed to.

Mr. O'Donoghue

I move amendment No. 6:

In page 6, line 8, to delete "include both men and women and".

Amendment agreed to.

Amendment No. 7 not moved.

Mr. Howlin

I move amendment No. 8:

In page 6, between lines 32 and 33, to insert the following:

"(a) to encourage ratification by the State of human rights instruments or accession to those instruments, and to ensure their implementation,”.

This is one of a number of amendments which seeks to extend the functions of the human rights commission under section 8. The first additional function this amendment proposes to give the commission is to encourage ratification by the State of human rights instruments or accession to those instruments, and to ensure their implementation. It is important the commission should have clear functions. In responding to this amendment on Committee Stage, the Minister said the import of the amendment was already covered by section 8 (c). I argued that this was not the case and if the Minister was convinced that the amendment was a good one, it should be explicitly stated that the commission should be obliged to encourage ratification by the State of human rights instruments or accession to those instruments. Paragraph (c) does not explicitly state the commission should advocate the ratification of agreements.

This relates to a point I made on a previous amendment, that the State enters into national agreements on human rights but often they languish without being transposed into domestic law. It would be good for the State, the legislature and the executive for the commission to have a clear function to encourage such ratification. I hope the Minister, having reflected upon it, will not find the additional function too burdensome and will not reject it simply on the basis that he decided it was not a good idea on Committee Stage.

Mr. O'Donoghue

I oppose this amendment dealing with a role for the commission in encouraging ratification for the reasons I outlined on Committee Stage. It will be open to the commission in any event, as part of its function under the existing section 8 (c) to recommend to the Government that it should accede to or ratify particular human rights instruments. The provision in question is deliberately widely drawn in order to encompass precisely this type of role for the commission. It may take the initiative in the matter, which is relevant in the context of the type of activity contemplated by the amendment. It must also be borne in mind that the commission would take action in this area because it would see a need for the Government to act to strengthen, protect and uphold human rights in the State. The implementation of the instruments in question is already taken care of by the existing provisions in the Bill. It is hardly possible that the commission, having raised the matter, will sit back and let it rest.

Mr. Howlin

I am disappointed at the Minister's response. Section 8 (c) does not explicitly state it is a function of the commission to ensure the implementation of human rights instruments or accession to those which have not been acceded to by the State. I would like that to be explicit in the Bill and to be one of the stated functions of the commission. I am disappointed the Minister is trenchantly refusing to concede that because I am sure he agrees with it. I am surprised that, for the sake of being negative, the Minister has decided not to accept this amendment.

Amendment, by leave, withdrawn.

Mr. Howlin

I move amendment No. 9:

In page 6, between lines 32 and 33, to insert the following:

"(a) to contribute to the reports which the State is required to submit to United Nations bodies and committees, and to regional institutions, pursuant to its treaty obligations,”.

This amendment proposes another important function to be given to the commission, to contribute to the reports which the State is required to submit to United Nations bodies and committees, and to regional institutions, pursuant to its treaty obligations. The Minister will, no doubt, repeat this is already encompassed in its purview. However, it does not do any harm to be explicit. It would be an addition to state the commission should be part of the body which prepares our international responses, if it is to be a powerful commission on human rights. Perhaps the Minister has had an opportunity to reflect further on this matter. I have not resubmitted all the additional functions I sought on Committee Stage. I have selected some which I thought it was important to explicitly state. I hope the Minister will accept this amendment.

Mr. O'Donoghue

I am satisfied the role for the commission intended by this amendment is adequately catered for by the provision of section 8 (b). That is the primary intention behind that paragraph. I envisage that the commission will have a large input into the various reports the State is obliged to submit to various international committees operating in the area of human rights, particularly UN committees, which examine our reports on UN covenants on civil and political rights and economic, social and cultural rights.

Mr. Howlin

There is an explicit difference between section 8 (b) and my amendment. Section 8 (b) states the function of the commission shall be to consult with such national or international bodies or agencies having a knowledge or expertise in the field of human rights as it sees fit. This amendment seeks to give a role to the commission to contribute to the State's response where it is required to report to United Nations bodies and committees or to regional institutions, pursuant to its treaty obligations. I propose that it would not only have the right to consult international bodies, as the Minister has provided for in paragraph (b) but rather that it would have a legislative right to be part of the State's response. I understand why many in the establishment would not like the human rights commission to have such a right but it is clearly and quantifiably different from only having the right to consult internationally. I hope the Mini ster will accept that. If he does not want the commission to have the right to be part of the contribution to our international bodies, he should say that. There should not be a pretence that this amendment is covered by paragraph (b) because it is not.

Mr. O'Donoghue

I obviously disagree. I also refer Deputy Howlin to paragraph (c). We must recognise the commission is meant to be independent of the State. Its independence is of tremendous importance in the context of the work it is being charged to carry out. Its independence must not be compromised, lest there be any confusion between the role of the State on the one hand and the commission on the other. It is important that the commission has the role of an independent watchdog in this respect. If it is seen to be making contributions to submissions which the State makes, it is clear there is a blurring of the distinction between the State and the commission. The commission is not part of the State apparatus and is not a subservient agency of State. It will be independent in the exercise of its function as a statutory authority under this legislation. I respectfully submit that to introduce a provision of the kind suggested by Deputy Howlin would blur that distinction and that would be undesirable. There is a more substantive reason which I have outlined, that is, the intrinsic independence of the commission which is fundamental in terms of the pillars utilised to construct this authority.

Mr. Howlin

I do not accept the Minister's argument that this amendment trespasses on the independence of the commission. It seeks to give it a statutory right to be part of the international response. It can be critical of the State but its views should be encompassed in any report required by the United Nations or any regional assemblies which have treaties or protocols to which Ireland is party. Clearly I will not win the Minister over, which I regret. I will not press the matter further.

Amendment put and declared lost.

An Ceann Comhairle

Amendment No. 10 is in the name of Deputy Howlin. Amendments Nos. 10a., 14, 15, 16 and 17 are related. Amendments Nos. 10, 10a., 14, 15, 16 and 17 may be discussed together.

Mr. Howlin

I move amendment No. 10:

In page 6, between lines 32 and 33, to insert the following:

"(f2>a) to examine the text of all Bills introduced or presented to either House of the Oireachtas and report to each House within 2 weeks on the compatibility of the Bill with the Conventions,".

The amendment seeks to institute a new function for the commission. I was very encouraged by the Minister's response to an amendment on Committee Stage which I did not re-table, which provided for proposed draft legislation to be seen by the commission before a Bill was finalised by the Executive and published.

Amendment No. 10a. in the name of the Minister is a half way house in terms of giving the right to the new commission to examine any legislative proposal and report its views on any implications of such a proposal for human rights. Unfortunately, it includes the caveat “if requested by a Minister of the Government”, and I would like to tease this out. In reality it could be the stumbling block beyond which no legislative measure ever progresses. A Minister or Government could simply not seek the views of the commission, even on measures with significant or serious implications for human rights, in advance of publication of legislation. So while I welcome the Minister's three steps forward, I am sorry he has not taken a full five steps. However, I certainly will not oppose his amendment on that basis.

My amendment provides for something which committees of the House may automatically seek in any event. Bills with clear human rights implications would, as a matter of course, be referred to the human rights commission by committees of the House before a debate on Committee Stage in order to get their observations, as committees have done in the context of other interested bodies. Therefore, my amendment would be somewhat redundant, but it is useful to explicitly state what it provides for.

The Minister's amendment represents some progress from the previous position, but does not go as far as I would like. However, I acknowledge that he has at least reflected on the arguments made on Committee Stage and I am grateful that he has produced some progressive proposal on Report Stage.

Mr. O'Donoghue

I apologise to the House, and in particular to Deputy Howlin, for the lateness of the arrival of the draft amendment. This was because I said I would consider two of Deputy Howlin's amendments at this stage. Obviously I had to discuss the matter with the Government and seek the opinion of the Attorney General. We have already dealt with the gender issue and are now addressing the question of the commission examining legislation. The Government met yesterday, and the drafting of the amendment obviously took some time.

The matter was considered in great depth over a long period, but having given due consideration to it I felt I could not go all the way in terms of what was being suggested, namely, that the commission could examine the legislation independently of a request from the Minister sponsoring it. The reason I decided this should not be the case was that the legislation would have to be referred as a matter of course and duty to the commission, which would represent an interference with the function of the Executive.

Deputy Howlin said I have gone half way, but being honest I think I have come a little more than half way in providing that it will be possible for a Minister to refer legislative proposals to the commission in order to seek its views on any implications for human rights. Deputy Howlin's view is that it will be a stillbirth in terms of the possibility of legislation going to the commission at all—

Mr. Howlin

I said that is a possibility.

Mr. O'Donoghue

I accept it is a possibility, but I do not accept it would mean that as a matter of course. Some legislation will have a direct impact on human rights and the wish of the Minister will be to seek the expert views of the commission. In fairness this is a generous response to the amendment. More importantly, it improves the legislation and in general terms should be welcomed by people involved in the area and by society.

Mr. Flanagan

I welcome what the Minister has done, but the reservation that referral can only be at the request of the Minister could give rise to some difficulties. In terms of the UN guidelines, I thought a fundamental function of the commission was the receipt of legislation from the Executive, without which the commission is very much reduced in terms of its power and influence. I am not sure how much further the Minister can go to meet the concerns raised, but in the context of the Seanad debate I hope greater consideration is given to ensuring the difficulty envisaged by Deputy Howlin, where a Minister may not establish the relationship with the human rights commission, does not arise. Otherwise difficulties not now foreseen by the Minister for Justice, Equality and Law Reform will arise.

I hope the Minister will move towards deleting the words "if requested by a Minister of Government" to ensure there will be a proper, adequate and appropriate examination of all legislation. I thought this was fundamental to the legislation establishing the commission and in terms of allowing the commission function along the lines hoped for by Members on all sides, namely, to receive, examine, report on and influence legislation.

Mr. O'Donoghue

I should have acknowledged the contribution of Deputy Flanagan to this amendment. Deputy Flanagan tabled an amendment similar to that tabled by Deputy Howlin. To that extent I am grateful to Deputy Flanagan for assisting us with the legislation and the provision now being inserted.

We must have regard for certain complications. Granting a power to the commission to review draft proposals is acceptable provided the Minister refers them to the commission. However, the imposition of a duty on the commission would not be acceptable, either on policy or constitutional grounds.

I thank the Deputies for their contributions on this important amendment.

Mr. Howlin

I withdraw the amendment in support of the Minister's amendment No. 10a.

Amendment, by leave, withdrawn.

Mr. O'Donoghue

I move amendment No. 10a:

In page 6, between lines 35 and 36, to insert the following:

"(b) if requested by a Minister of the Government, to examine any legislative proposal and report its views on any implications of such proposal for human rights,”.

Amendment agreed to.

Mr. Howlin

I move amendment No. 11:

In page 6, line 38, after "fit" to insert "including to co-operate with the United Nations and any other organisation in the United Nations system, the regional institutions and national institutions of other countries that are competent in the area of the promotion and protection of human rights".

Under the functions of the commission determined by section 8, I seek to add "to consult with such national or international bodies or agencies having a knowledge or expertise in the field of human rights as it sees fit, including to co-operate with the United Nations and any other organisation in the United Nations system, the regional institutions and national institutions of other countries that are competent in the area of the promotion and protection of human rights". It is an elaboration on the responsibilities of the commission. We should be as explicit as we can. I argued this case at length on Committee Stage and I hope the Minister has had time to reflect on it.

Mr. O'Donoghue

I recall the discussion on this on Committee Stage. Without putting a tooth in it, I refer the Deputy to section 8(b). I regard this function as being included in the legislation already. I know this is the reply I gave to the Deputy on another matter but that is the position.

Mr. Howlin

Section 8(b) contains an elastic sentence because the Minister is able to encompass a lot in that one sentence but given that, even on reflection, he is not willing to accommodate my amendment, I withdraw it.

Amendment, by leave, withdrawn.

Mr. Howlin

I move amendment No. 12:

In page 7, line 3, after "activities" to insert "including to assist in the formulation of programmes for the teaching of, and research into, human rights and to take part in their execution in schools, universities and professional bodies,".

Of the amendments relating to the functions of the commission, I regard this as one of the most important. I seek to give the commission a new responsibility. Section 8(d) states that one of its functions shall be “to promote understanding and awareness of the importance of human rights in the State and, for those purposes, to undertake, sponsor or commission, or provide financial or other assistance for, research and educational activities”. I seek to add “including to assist in the formulation of programmes for the teaching of, and research into, human rights and to take part [this is a critical component] in their execution in schools, universities and professional bodies”.

The Minister argued on Committee Stage that the amendment is somehow encompassed in section 8(d), as drafted. I do not believe that. Since Committee Stage, there has been an unanswerable demand and requirement for proactive education on human rights within the education system and the Oireachtas should explicitly instruct this new, important commission that this will be one of its important roles. I appeal to the Minister to accept the amendment, since he has rejected all the others. Education of people in the area of human rights is urgently required because of the changing nature of our society and the growing multiculturalism of this State, which I welcome. I hope the Minister accepts the logic of my argument.

Mr. O'Donoghue

This amendment was discussed on Committee Stage. I remain firm in my view that it is not needed. The provision in section 8(d) enables the commission to promote understanding and awareness of the importance of human rights in the State. That is the primary objective of the provision. For that purpose the commission can undertake research and educational activities as it can sponsor or commission such activities or provide financial and other assistance for such activities. The role of assisting in the formulation of programmes for the teaching of, and research into, human rights and taking part in the execution of such activities in educational and professional bodies is covered by the subsection, particularly by the reference to undertaking research and educational activities throughout the State. My view has not changed since Committee Stage.

Mr. Howlin

I regret that the Minister will not accept the amendment. It is important for us to explicitly state that the commission should be involved directly in teaching and research programmes in the area of human rights and that it should take part in the execution of such programmes in schools, universities and professional bodies. It is clear that they are needed. I am not happy that the role is explicit enough in section 8(d), but what can I do when I do not have the bodies to ensure the instruction is given? I wish to press the amendment.

Amendment put and declared lost.

Mr. Howlin

I move amendment No. 13:

In page 7, line 16, to delete "in its absolute discretion".

I am anxious to hear the Minister's response on this because we did not have much time to hear his views on Committee Stage. I am not a lawyer but he is. I want clarity in regard to this matter. Section 8(g) contains the phrase “absolute discretion”. The Minister clearly stated on Committee Stage that it is normal for a High Court or Supreme Court judge to have “absolute discretion” in these and like matters. I am advised that the key point is that no decision is made in “absolute discretion”. I refer the Minister to Hogan and Morgan, who I am advised are leading authors on administrative law in Ireland. On page 686 of the 3rd edition of “Administrative Law in Ireland” they state:

Since judicial review has now been given a constitutional pedestal its removal could not be effected by any statutory formulae. In a sense the absolute discretion is an indirect attempt to create an ouster clause.

In other words it is asserted that "absolute discretion" is unusual and it is also contended to be of dubious constitutionality.

As I understand it, it is discretion without having to provide a reasoned opinion. I do not regard this a hugely important issue but I was concerned by the Minister's response on Committee Stage. I am interested in his response to the normalcy of "absolute discretion" in legislation, whether judicial review is subject to it under the terms he indicated on Committee Stage and whether he will comment on the quote which I read into the record from accepted authorities on administrative law in Ireland.

Mr. O'Donoghue

There was a discussion on this matter on Committee Stage and Deputy Howlin contributed extensively to it. I explained then, and I hold the same view now, that the courts must be independent in the exercise of their function. That is necessary in terms of our written Constitution and it is a feature of many other jurisdictions, irrespective of whether they have a written constitution. In those circumstances the right which is provided is a right to apply only. The court in its "absolute discretion" will make a decision thereafter. That must be the way. I do not believe the Deputy sees this as a crucial issue and that is fair enough. However, if I was to interfere with the independence or the discretion of the court in the manner which is being suggested, it would rapidly become a crucial issue.

Mr. Howlin

I am no wiser following the Minister's comments. I would be obliged if he had responded to the points I made, rather than stating the consequences of accepting the amendment. Judicial discretion is a normal part of the administration of law and judges have a right to determine a case. However, we are arguing about whether that right is absolute and I am advised that such absolute right is not normal, is unusual and is, potentially, constitutionally dubious. I quote from authorities who assert that opinion because I am not a lawyer. I am anxious to hear the Minister's response.

Mr. O'Donoghue

The Deputy will understand that I can only explain matters in the terminology I use every day. That may be fortunate or unfortunate from the perspective of Deputy Howlin, but that is how things stand. I have always held the view that it is not possible to do what Deputy Howlin is seeking to do.

Mr. Howlin

Why?

Mr. O'Donoghue

Coincidentally, but importantly, the Attorney General holds the same view and as a member of the Government I am obliged to listen to what he has to say. Clearly, the Attorney General is a greater authority than me in this matter—

Mr. Howlin

I would not say that.

Mr. O'Donoghue

I would say it, and I am obliged to listen to his advice. It is not possible to do what Deputy Howlin is seeking to do.

Mr. Howlin

This is not an issue of such importance that I intend to progress it. However, I would welcome it if the Minister, on foot of my withdrawing the amendment, could undertake to provide me with the advice he received from the Attorney General or his synthesis of that advice if the original cannot be given. This would help me understand its implications for future legislation.

Mr. O'Donoghue

Deputy Howlin will understand full well that this is something which never happens.

Mr. Howlin

Will the Minister put forward his opinion—

An Ceann Comhairle

We are not on Committee Stage.

Mr. Howlin

No, unfortunately we are not. Will the Minister undertake to give his opinion because the only response I received in respect of the amendment is that he is not in a position to accept it. He has not provided a reason for this and I would like him to provide one.

An Ceann Comhairle

The Minister has spoken twice and he cannot, under Standing Orders, speak again on this amendment.

Mr. Howlin

The Minister could simply state that he will provide me with the reasoning behind his refusal to accept the amendment.

Mr. O'Donoghue

I have already done so.

Mr. Flanagan

In his absolute discretion, the Minister is not prepared to explain the matter further.

Amendment, by leave, withdrawn.

Amendments Nos. 14 to 16, inclusive, not moved.

Mr. Flanagan

I move amendment No. 17:

In page 7, between lines 25 and 26, to insert the following:

"(k) to carry out within a period of three years after coming into effect of this Act a comprehensive human rights audit in respect of legislation and regulation in force, to ensure compliance with this legislation.”

This amendment should not have been grouped with amendment No. 10 and others because it is entirely different. I did not realise until we concluded the debate on the earlier amendments that it was grouped with them. Amendment No. 17 differs from those amendments because it has nothing to do with proposed legislation, examination of proposed legislation or receiving any legislation in Bill form.

Amendment No. 17 is very important because it proposes that, when the commission is established, one of its first undertakings should be an assessment of all the legislation on the Statute Book over a specified period. It is important that such an examination should cover all legislation relevant to a broad range of Departments. I refer to legislation dealing with asylum seekers, refugees, the equal status or otherwise of members of the Traveller community.

Similar commissions have been established in other jurisdictions. In New Zealand, for example, the new commission uncovered a raft of legislation which required amendment. This was all for the good of that country and its citizens.

We did not have a good opportunity to discuss this matter on Committee Stage and, for that reason, I tabled this amendment because it is important that such an assessment of legislation be carried out. If the Minister has a difficulty with limiting such an assessment to three years, I have no problem with his amending the proposal. However, it is important that the human rights commission should embark on a root and branch examination of all legislation which has been placed on the Statute Book since the foundation of the State.

Mr. O'Donoghue

The position on this amendment, to my recollection, is that it was fully debated on Committee Stage. With regard to the time limit for the proposed audit of legislation and regulations to be carried out by the commission in amendment No. 17, I stated at that time that it will be open to the commission to undertake an audit under its existing functions.

I refer Deputy Flanagan to section 8 (a) in respect of placing a time limit on the period within which the commission should conduct such an audit. I readily admit, as I indicated on Second Stage, that the Bill is silent with regard to the time frame within which such an audit should be undertaken and completed. This is not an accidental omission, it was done on purpose. We must be careful not to over-burden the commission, particularly during its infancy. The proposed amendment is based on New Zealand human rights legislation. Deputies will recall my earlier reference to the fact that in 1993, when the New Zealand human rights commission was given such a remit and required to complete such an audit within a four year time frame under section 5 of that country's 1993 human rights Act, the commission was in the advantageous position of having been in operation since 1977.

As already stated, I would prefer to leave matters as they stand. I would like the commission to determine its priorities and work programme in light of the matters it considers should be prioritised and investigated immediately. I am deeply conscious of the independence of the commission and I referred to it already in an earlier reply to Deputy Howlin. The independence of the commission is such that if it is considered that an audit of the type to which Deputy Flanagan referred is an immediate priority, the commission will be free to instigate one under section 8 (a). On the other hand, it might not wish to conduct such an audit immediately.

My difficulty is that I do not want to tie the hands of the commission. I accept that Deputy Flanagan has a point, but I ask him to recognise that this is, in all probability, the more desirable course and allow the commission to develop and evolve its own way of operating.

Mr. Flanagan

I will withdraw the amendment if I can be so bold as to presume that we, as legislators, may assume that the commission will undertake such an audit when it sees fit.

Amendment, by leave, withdrawn.

An Ceann Comhairle

Amendment No. 19 is an alternative to amendment No. 18 so the two may be taken together by agreement.

Mr. O'Donoghue

I move amendment No. 18:

In page 9, lines 35 and 36, to delete "or, at the election of the Commission, for the Dublin Circuit." and substitute "or ordinarily carries on any profession, business or occupation.".

This amendment is in line with the undertaking I gave Deputy Howlin on Committee Stage to remove the specific reference to the Dublin Circuit Court in subsection (18). Where a person fails to comply with an inquiry by the commission the jurisdiction of the Circuit Court is now with the circuit where the respondent lives or works. I presume this is now acceptable to the House.

Mr. Howlin

I welcome the Minister's amendment which is another small victory for rural Ireland. I knew the Minister's heart would support my initiative. I welcome his initiative and I withdraw my amendment.

Amendment agreed to.

Amendment No. 19 not moved.

Mr. Howlin

I move amendment No. 20:

In page 11, lines 12 to 15, to delete all words from and including "and" in line 12, down to and including "force" in line 15.

The amendment seeks to delete the words "and which has been given the force of law in the State or by a provision of any such agreement, treaty or convention which has been given such force". Subsection (3)(b) is important because it defines human rights as meaning “the rights, liberties and freedoms conferred on, or guaranteed to, persons by any agreement, treaty or convention to which the State is a party.”. I want to put a full stop after the word “party”. However, the Minister goes on to require that such treaties should have been given the force of law in the State, because the subsection continues: “and which has been given the force of law in the State or by a provision of any such agreement, treaty or convention which has been given such force”.

I thank the Minister for the note he sent me, which I requested on Committee Stage and which I have read with some interest. I am grateful for the explanation contained therein. The Minister's definition of human rights is quite interesting, but I do not find convincing the reasons the courts should not be given powers in relation to agreements, even though the agreements themselves are not currently part of statute law. There is a very restrictive definition of human rights in this section; that is only where the treaty referred to is part of our domestic legislation. It is too restrictive.

The Minister may say the section does not make sense unless the treaty is currently law, but as I tried to explain on Committee Stage, since in this section we are only dealing with declarations, there is no reason the commission should not get a declaration regarding a conflict between a statute and a treaty which the State has ratified but has not yet implemented. I do not see why that poses a difficulty for the Minister and neither do I see why my amendment is not acceptable to the Minister, even having read his welcome and elaborate note.

Mr. O'Donoghue

Deputy Howlin will be well aware of the briefing note I forwarded to him regarding the definition of human rights as used in the Bill. If he is not convinced by the briefing note, I do not believe it would serve any useful purpose for me to go back over the whole issue again. I am of the view outlined in the note that was sent to Deputy Howlin and I am not prepared to change my view.

An Ceann Comhairle

Is amendment No. 20 being pressed?

Mr. Howlin

I will withdraw it, reluctantly.

Amendment, by leave, withdrawn.

Mr. Flanagan

I move amendment No. 21:

In page 12, between lines 32 and 33, to insert the following:

"15.–There shall be established within a period of six months following the enactment of the within legislation a joint committee comprising representatives of the Commission and the Northern Ireland Human Rights Commission, as a forum for consideration of human rights issues in the island of Ireland. The joint committee shall consider, among other matters the possibility of establishing a charter, open to signature by all democratic political parties, reflecting and endorsing agreed measures for the protection of human rights of every person living in the island of Ireland.".

I read a newspaper report of a comment by the Minister on this matter which probably renders my amendment redundant. Perhaps it is not the case, but I believe the Minister intends recommending that an appropriate joint committee of the human rights commission here, once set up, and the Northern Ireland Human Rights Commission would be established. There is a commitment to do so under the terms of the Good Friday Agreement in any event, but I hope we can ensure – particularly in the context of the weekend's deliberations – progress that will give rise to the re-establishment of the Northern Assembly, Executive and other bodies. Notwithstanding that, we should proceed with such a joint committee and have it up and running as soon as possible. There is still a strong culture of political violence on the island, despite the ceasefires and the progress that has been made. It is fundamental to the Good Friday Agreement that we should all work together towards establishing a culture of human rights. A joint human rights committee, comprised of representatives from North and South, would underpin such work. I hope it can be established during the summer.

Mr. O'Donoghue

I am not prepared to accept the amendment. Section 8 (h) already specifically provides that the human rights commission is to take whatever action is necessary to establish and participate in the joint committee of representatives referred to in paragraph 10 of the section entitled “Rights, Safeguards and Equality of Opportunity” of the Agreement Reached in the Multi-Party Talks.

The equivalent provision applicable to the Northern Ireland Human Rights Commission is clause 69, subparagraph 10, of the Northern Ireland Act, 1998. That provides that the commission should do all it can to ensure the establishment of the committee referred to in that section of the agreement. I see no need to elaborate on the provision in the Bill.

Both commissions through their respective joint committees are mandated by the terms of the agreement to consider, among other matters, the possibility of establishing a charter, open to signature by all democratic political parties, reflecting and endorsing agreed measures for the protection of the fundamental rights of everyone living in the island of Ireland. I envisage that the substance of the work to be carried out by the joint committee will be decided after the committee has been formed and will be subject to each commission. As set out in the letter sent to the Northern Ireland parties by the two Governments on 6 May last, the Government intends that the joint committee will be established by the end of July 2000.

Mr. Flanagan

Right.

Amendment, by leave, withdrawn.

Bill reported with amendment and received for final consideration.

An Ceann Comhairle

That disposes of all the amendments. When is it proposed to take Fifth Stage?

Mr. O'Donoghue

Now.

Question proposed: "That the Bill do now pass."

Mr. Flanagan

I thank the Minister for moving on this important issue, although it was on the shelf for most of the spring. I was interested in a television contribution last night by the Ulster Unionist MP, Mr. John Taylor, who was critical of the Irish Government for its tardiness in this matter. He stated that, in spite of the length of time that had elapsed since the signing of the Good Friday Agreement, we still had not set up our human rights commission. I hope Mr. Taylor will have an opportunity of reading today's Official Report so that he can see we are proceeding. I trust the Minister will proceed to take the Bill through the Seanad at the earliest opportunity. I look forward to the establishment of the commission, which will be a radical new departure in our arrangement of matters of State. I also listened with interest to the Minister's comments on the incorporation of the European Convention into our domestic legislation, which will be a most exciting venture and one of great importance to the country and the people.

Mr. Howlin

The Minister will be delighted to note that I have to attend a committee meeting at 6 o'clock. I am, therefore, very restricted and have been for the past hour in relation to amendments on this section.

Mr. O'Donoghue

I should have known.

Mr. Howlin

I welcome the enactment of this legislation. I also welcome the precedent of referring the heads of the Bill to a committee of the House. It is an important precedent which I hope the Minister will repeat in future concerning other important legislation. I thank him for having listened to the debate on Committee Stage and for having moved amendments on Report Stage where he felt they were appropriate. He certainly did not have a closed mind on the matters raised. I wish the new commission every success in the extremely important work it will carry out on behalf of the citizens of this State.

Minister for Justice, Equality and Law Reform (Mr. O'Donoghue)

I thank the Deputies who contributed to the debate on the various Stages of the Bill. I particularly thank Deputies Flanagan and Howlin for the considerable amount of work and effort they put into it. The Bill has been improved accordingly.

We had some differences of opinion on certain issues, which is to be expected. However, I am confident the commission will not find itself fettered, in so far as its role and functions are concerned. The Government's main aim and purpose has been at all times to give the commission the tools and material it needs and to let it get on with the job it has been assigned. That is abundantly clear from the Taoiseach's statement in December 1998, when he said the commission would be a model for other jurisdictions and that the legislation would be designed to lead, rather than follow, the standards of best international practice for such human rights institutions as are laid down in the 1993 Paris principles.

It is relevant to say at this juncture that if, in the light of experience after two years of operation, some fine tuning of the commission's role and functions is required, section 24 of the Bill provides an in-depth and comprehensive review mechanism for that purpose. The commission is statutorily mandated in this respect. It will be very interesting in two years time to see how the commission has operated in line with the legislation and what additional powers, if any, it thinks might be required.

In regard to Mr. Taylor's comments, to which Deputy Flanagan referred, the Department of Justice, Equality and Law Reform has had 26 Bills passed in this House since the Government was formed, about 15 Bills are before the House and seven more are being drafted. If Mr. Taylor ever has the opportunity to do the same, he will understand the constraints under which I must operate.

I thank the staff of the House and, in particular, the staff of the Department of Justice, Equality and Law Reform for their wonderful work in drafting this legislation.

Question put and agreed to.