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Dáil Éireann debate -
Wednesday, 4 Jun 2014

Vol. 843 No. 1

Irish Human Rights and Equality Commission Bill 2014: Report and Final Stages

We will let Deputy Pringle get his breath back. Amendment No. 1 arises out of Committee proceedings. Amendments Nos. 1 and 11 are related and may be discussed together by agreement.

I move amendment No. 1:

In page 6, line 29, to delete "Part 3" and substitute "sections 36 to 39 inclusive and section 41".

Apologies for being late. The Order of Business went a bit quicker than I expected.

The amendment relates to amendments of Part 3 of the Bill where a narrow definition of human rights is used, in terms of enforcement issues but also on a wide range of other functions of the human rights commission. The narrow definition would overly restrict the commission in carrying out its role. The amendment seeks to retain the narrow definition for sections 36 to 39, inclusive, and section 41 which relate to the enforcement role of the commission and to allow the broader definition of human rights, as contained in the Bill, to apply to such roles and functions as the providing of information to the public, the development of codes of practice, equality reviews, action plans and carrying out inquiries. This would be a better interpretation to use within the Bill and would allow the commission to work to its full capacity.

These two proposed amendments relate to the definitions of human rights in the Bill and were discussed at length on Committee Stage. The definition in section 2 gives the commission a mandate to promote human rights in the widest sense, not limited to Irish law or to conventions that we have ratified, or, indeed, to any existing international convention. The commission can seek to develop and promote new human rights standards and its discretion in that regard is unfettered.

The definition in section 29 deals with legal or enforcement powers and, accordingly, it is appropriate that it refers exclusively to human rights that are recognised in Irish law. I should mention again that the Department met the Office of the Deputy High Commissioner for Human Rights, ODHCHR, in October 2012 as part of the consultative process with that office following publication of the general scheme of the Bill. At that meeting, the Department explained that the rationale of having two separate definitions was to give the new body every possible freedom to work towards the enhancement of the human rights environment in Ireland.

There have also been calls for one unified definition of human rights in the Bill. Of course, human rights are indivisible and inviolable but the technical device of having two definitions does not challenge that principle in any way. If we had to have just one definition, it would have to be a narrow definition and be confined to Irish law because we cannot give the commission or any other State agency legal or enforcement powers in respect of matters that are not part of Irish law. I believe one narrow definition would be a retrograde step because the commission would lose much of its ability to be creative in the promotion of human rights.

However, what we can do, as set out in the Bill, is give the commission the freedom to promote human rights on as broad a basis as possible, and reflect new normative developments at an international level in its work. In doing so, we have to be clear that its mandate in monitoring compliance with specific human rights standards is limited, as it must be, to those enshrined in Ireland's legislative framework in accordance with the rule of law. The intention is to allow the commission to be creative in its promotion of human rights principles as broadly understood, but to observe the rule of law in the area of enforcement of standards. The ODHCHR noted that this approach seemed very close to how the High Commissioner for Human Rights sought to describe her own role, relating to the protection of clearly defined rights and the promotion of broader human rights principles. The ODHCHR stated that the two definitions approach is a new best practice model which it will encourage other member states to adopt.

The effect of the Deputy's amendment would be to take sections 29 to 35, inclusive, and section 40 out of the enforcement and compliance definition - the narrower definition - of human rights we have in section 29 and into the broader definition in section 2 that relates to wider promotion of which spoke. I will take a number of the sections, if the Deputy will bear with me, and state what the impact would be of doing that. For example, section 29 contains the enforcement and compliance definition. Acceptance of the amendment would create a logical problem because we would be saying that the phrase "human rights" in section 29 means both. This would make for legal uncertainty and some confusion about what the Bill actually means.

Section 30 relates to provision of information about and keeping under review of Irish legislation on human rights and equality. Legislation on human rights falls logically within the narrower definition in section 29, but there is no restriction on the commission in how it keeps legislation under review or what recommendations it may make. Subsection (2) states that the commission may make such recommendations as it sees fit. Clearly, information to the public is information about what our domestic legislation contains, but there is nothing to stop the commission providing also an individual person or the public generally with information about relevant international instruments that are not part of our law or expressing the view that our legislation needs to be updated. The commission can provide information on the detail of legislation but, equally, is in a position to make the broader reference to what the international situation might be or where the law might go in the future. Indeed, subsection (2) makes it explicit that the commission has an entirely free hand in making recommendations for changes in the law.

On the impact of Deputy Pringle's amendment on section 31, when signed into law by the Minister a code of practice can be relied on in court proceedings and used in evidence. It would be ultra vires for me or any other Minister to sign into law a statutory instrument that goes beyond what Irish law allows or requires. To do so would destroy the credibility of the idea of having statutory codes of practice that can be relied upon by both parties to a potential dispute.

We have one code of practice, for example, on sexual harassment, and I think there is room to use this mechanism more in the future. This only works, however, if we all understand that the commission is giving advice on best practice within our legal framework as it exists and the Minister is signing that advice into law. This is not a device that can be used to legislate by the back door for international legal instruments that have not been ratified by the national parliament. I think the Deputy will appreciate that.

Taking sections 32 to 34, inclusive, the words "human rights" are not found in any of these sections. The sections are in Part 3, because they relate to enforcement and compliance matters. They are covered by the narrower definition in section 29 simply as a matter of legal neatness. By that I mean, it is easier for anyone following the Bill if one definition applies to Part 3 and another applies to the rest of the Bill. However, in fact, the two definitions of human rights are not actually relevant to these particular sections.

Section 35 deals with inquiries. The power of inquiry set out in this section is a serious power, including the power to demand the attendance of witnesses and production of documents. It is based on the understanding that it could never be permissible to conduct an inquiry where there is no allegation or reasonable belief that a breach of statutory duty has occurred. That is why the narrower of the two definitions of human rights in the Bill applies here. It could not be permissible in law for the commission to conduct an inquiry without it having expressed any reasonable belief or made any credible accusation that standards demanded by Irish law had been breached.

The Irish Human Rights Commission has confirmed to my Department that the three inquiries undertaken by the commission were undertaken with the tacit agreement of the parties, probably could not have been undertaken without that tacit agreement and were in each case grounded, inter alia, on the European Convention on Human Rights which comes within the narrower definition.

In the course of the inquiry, however, and in its conclusions and recommendations, the commission may consider best practice and international standards, and in that regard is free, in this instance, as well, to draw from wider definitions of human rights and of equal treatment than are currently set out in domestic legislation. What it cannot do is launch an inquiry into something that it, as the commission, does not consider or allege is a breach of applicable Irish law.

Section 41, which would be impacted by the amendment, relates to the provision of legal assistance to a person who wishes to institute legal proceedings in a matter involving human rights law. I think the amendment would not really change this or achieve anything useful. The commission is free to offer such assistance if it thinks, and, of course, if the would-be plaintiff thinks, there is an arguable case involving law or practice relating to human rights. Neither has to prove the case. That is what the court hearing is for. The courts will not entertain a case which seeks to rely on something that is not part of Irish law and does not make any effort to ground the action in the Irish Constitution or the European Convention on Human Rights, to which we are a party and which is part of the narrower definition, or in our domestic legislation. Changing the definitions here will not change that reality.

There is, of course, nothing to stop the commission, once the threshold of having an arguable case has been crossed, from supporting an applicant in referring to other international standards and in drawing the court's attention to the State's wider international obligations, including in respect of international conventions we have signed but not ratified. However, the commission cannot legislate or take any action to enforce rights for which the Oireachtas has not legislated.

By dealing with each of those sections, I hope I have clarified why I am not accepting the proposed amendment. In places it could create possible legal uncertainty with the text and in others it would create substantial problems about the constitutionality of the Bill. I am opposing the amendment, therefore, and I hope the Deputy will understand the reasons I am doing so.

Amendment, by leave, withdrawn.

I move amendment No. 2:

In page 9, between lines 18 and 19 to insert the following:

"8. Pursuant to the Good Friday Agreement, an international agreement of which this Government is a co-guarantor, the Irish Government will take steps to further strengthen the protection of human rights in its jurisdiction. The Government will bring forward measures to strengthen and underpin the constitutional protection of human rights. These proposals will draw on the European Convention on Human Rights and other international legal instruments in the field of human rights and the question of the incorporation of the ECHR will be further examined in this context. The measures brought forward would ensure at least an equivalent level of protection of human rights as will pertain in Northern Ireland. In addition, the Irish Government will—

(a) maintain and promote a Human Rights Commission with a mandate and remit equivalent to that within the North of Ireland, and

(b) continue to take further active steps to demonstrate its respect for the different traditions in the island of Ireland.".

Sinn Féin has a fundamental difficulty with this Bill. As the Minister will be aware, our concerns are that it undermines the Good Friday Agreement. When we from this State would ask those within unionism to support the Good Friday Agreement and implement it in full, particularly the human rights dimensions and to have a Human Rights Act in the North, the fact that we have amalgamated our Human Rights Commission with the Equality Authority does not put us on a very strong platform to lecture them about their responsibilities.

This amendment is aimed essentially at respecting the Good Friday Agreement and it is a challenge to the Bill. It lays out our fundamental and most serious concerns about this legislation. Rather than strengthening the State's human rights and equality framework, this is just about saving money. It is about describing or labelling important institutions that protect the human rights and equality of citizens of this State as quangos. We are told they have to be amalgamated because there are too many quangos, but that is deeply unfortunate.

A number of years ago, the Equality Authority's budget was slashed by 34%. That led to the resignation of the authority's widely respected chairman. There is a fear and concern that the protection of citizens' human rights has been undermined and that this Bill is unfortunately another step in that direction. Primarily, this amendment is about our concerns over the Good Friday Agreement. The Bill will undermine the Government when it seeks unionism to implement and meet its responsibilities.

There was a long discussion about this issue on Committee Stage when the arguments were put to the Deputy about why the Bill was not doing what he suggests. The position remains that the text in amendment No. 2 is technically inappropriate for legislation. If the Government were to take forward actions on the lines suggested, these would either be matters for policy and allocation of resources or otherwise issues that would need to be addressed in legislation. However, one does not put into legislation that the Government should bring forward proposals that may require legislation. Instead, we just get on with implementing the policy programme of the Government of the day and where this requires legislation, such legislation is brought forward.

In this case, as the Deputy said, we are merging the Equality Authority and the Irish Human Rights Commission. My predecessor consulted the then Northern Ireland Secretary of State around the time this proposal was announced. I can assure the House that there are no adverse implications for our commitments under the Good Friday Agreement or for our relationship with Northern Ireland.

Equivalence of protection relates to substantive human rights law and not to questions of institutional structures, which will always operate differently in different jurisdictions. Our body of human rights law under our Constitution is at least equivalent to that which exists in Northern Ireland. In that regard, the proposed amendment is devoid of substance. I do not agree with the basic points the Deputy is making in the amendment.

The merger will create a body that is greater than the sum of its parts. It will be better equipped by this Bill, once enacted, and by the additional staff and financial resources that have been put in place for 2014, to protect both human rights and equality rights in a cohesive way. The extra funding of €2 million for staff in 2014 shows that the extra support is there for the new commission.

While I acknowledge there is a change and there are different points of view on the changes being enacted, the goal is to have a very strong regime for the protection of human rights. The merger will create a body that is greater than the sum of its parts and that will be very well equipped to deal with the issue the Deputy rightly raised, namely, the importance of human rights both North and South.

Amendment put and declared lost.

Amendments Nos. 3 and 4 are related and may be discussed together. As amendment No. 4 is an alternative to amendment No. 3, if amendment No. 3 is agreed to, amendment No. 4 cannot be moved.

I move amendment No. 3:

In page 10, to delete lines 16 to 20 and substitute the following:

“(d) to encourage good practice in intercultural relations, to promote tolerance and acceptance of diversity in the State and respect for the freedom and dignity of each person, and

(e) to work towards the elimination of human rights abuses, discrimination and prohibited conduct.”.

The amendment is a response to points made by Deputy Pringle on Committee Stage. The amendment separates the two phrases "to work towards the elimination of human rights abuses, discrimination and prohibited conduct" and respecting diversity and "the freedom and dignity of each person" to avoid giving the mistaken impression that one is subservient to the other, a concern that was raised on Committee Stage. The amendment clarifies the issue. There was concern that there could be confusion and a hierarchy of rights. The reference to respecting diversity and the freedom and dignity of each person is important in that it recognises that we exist in an increasingly diverse society where acceptance of difference and the rights and freedoms of other people is a cornerstone of the liberties and democracy we all enjoy. I hope the Deputy will accept this approach and will not press his amendment. The words remain but are separated to make it clear that they apply equally.

I thank the Minister for the explanation. On Committee Stage I was concerned about whether the wording allowed freedom to discriminate as part of respecting the diversity and dignity of an individual. I am not 100% sure the wording deals with the issue. Can a person's "freedom and dignity" allow him or her to act in a prohibited way?

No, if something is prohibited, it is prohibited. As I said, the amendment brings clarity.

Amendment agreed to.
Amendment No. 4 not moved.

I move amendment No. 5:

In page 15, line 24, to delete “a criminal” and substitute “an indictable”.

This is straightforward. There is a concern that somebody who was involved in a human rights protest could be caught up under the wording "criminal offence". I ask that it be reconsidered. With this amendment, such a person would not automatically be excluded because he or she had been involved in a legitimate protest.

The existing text of section 14(3) on page 15 provides that a member of the commission ceases to be a member automatically on conviction for a criminal offence. The case the Deputy describes would not necessarily be a criminal offence, unless there was assault. The amendment seeks to raise the threshold to conviction for an indictable criminal offence. The commission will have very significant powers in ensuring compliance with Irish human rights law. It would fatally damage the credibility of any person with such a powerful role were that person to be convicted for a criminal offence while in office. The wording "is convicted" in the Bill means convicted now or in the future and does not refer to past convictions. This means a person with a criminal conviction is not precluded from appointment. While such a conviction would be a factor to be considered in the selection process, a person would not be precluded from appointment by virtue, for example, of a youthful indiscretion or incident. The existing provision is appropriate to a human rights commission and I will not accept the amendment.

A person who was convicted of a public order offence for protesting for the rights of the Palestinian people, for example, and went on to become a leading human rights advocate, would not be ruled out by virtue of such an offence. Is that the Minister's interpretation?

Yes, it is very clear that "is convicted" refers to convictions now or in the future, not past convictions. That has been confirmed by the Attorney General.

Amendment, by leave, withdrawn.

I move amendment No. 6:

In page 18, between lines 19 and 20, to insert the following:

“(5) The Director shall be the accounting officer in relation to the appropriation accounts of the Commission for the purposes of the Comptroller and Auditor General Acts 1866 to 1998.”.

As indicated on Committee Stage, this amendment will enhance the perceived independence of the commission by making the director the Accounting Officer for the Vote of the commission. The commission will have its own Vote, although this is not a matter for this Bill but for administrative arrangements which are in train. On the commission’s financial independence, in our system money may be voted for a public body only on foot of a request from the Government. This is set out clearly in Article 17.2 of the Constitution, which states:

Dáil Éireann shall not pass any vote or resolution, and no law shall be enacted, for the appropriation of revenue or other public moneys unless the purpose of the appropriation shall have been recommended to Dáil Éireann by a message from the Government signed by the Taoiseach.

We are all very familiar with this. Within this constitutional imperative, the Minister for Public Expenditure and Reform’s consent is required for any allocation of public funds and a Minister of the Government – in the case of IHREC the Minister for Justice and Equality – must take political responsibility for the allocation and be answerable to this House for the amount allocated.

There have been calls for the commission to receive its funding directly from the Oireachtas. While this is not possible, we have put arrangements in place to ensure the commission is fully independent while conforming to our constitutional system. Having its own Vote and having its director as Accounting Officer are important further innovations in that regard. There is no departmental involvement in day-to-day expenditure decisions by the Equality Authority and the Human Rights Commission, and there will be no such involvement in the new body to be established by this Bill.

Amendment agreed to.

I move amendment No. 7:

In page 20, between lines 26 and 27, to insert the following:

“(7) The number of staff seconded to the Commission from the Department of Justice and Equality, or any other government department, should not exceed 25 per cent and never be more than 50 per cent of the total workforce of the National Human Rights Institutions. Senior level posts in the Irish Human Rights and Equality Commission are never to be filled by secondees from government departments.”.

What this amendment seeks to achieve is fairly self-explanatory, and it is to ensure, in as much as is possible, the independence of the new body. It should not be a matter of Department officials being seconded to this new body so we are trying to put a ceiling on the number of people who may be seconded to the new human rights and equality commission, as well as overall human rights institutions. This particularly applies to senior positions.

The key feature of secondment, which distinguishes this concept from leave of absence or from being on a career break, is that the person seconded remains under the direction and control of the sending organisation. Section 24(6) of the Bill allows for temporary engagement by the commission of staff of other organisations but prohibits such temporary postings from being on a secondment basis by providing that such persons shall be under the direction and control of the commission rather than the current employer. The following might be helpful in understanding why we are not accepting this amendment; put simply, the Bill does not allow for any secondment to the commission. This is a clear policy decision to go beyond what is required by the Paris Principles and the amendment would actually weaken the separation of the commission from the Government by allowing secondment of senior civil servants to the commission, something which the Bill as published does not allow to happen. On the basis of the explanation, the Deputy might reconsider his approach to the amendment.

To clarify, the Minister believes the amendment would contradict the stated objective.

It would weaken what is there already, which is that no secondment is allowed by the current provisions. Therefore, the clear policy decision is to separate the commission from the Government but if we accepted the amendment, it would weaken that separation.

Amendment, by leave, withdrawn.

I move amendment No. 8:

In page 20, to delete lines 37 and 38 and substitute the following:

“(a) comprise—

(i) the key objectives and related strategies, including the use of resources of the Commission, and

(ii) having had regard to subparagraph (i), the key priorities and objectives of the Chief Commissioner for his or her term of office,

and”.

This amendment is in response to suggestions that the role of the chief commissioner be set out in the Bill, and I understand there was much discussion about this. The job description for the position as advertised by the Public Appointments Service includes key responsibilities, and Deputies are very familiar with them. The person shall act as chairperson of the commission and its committees as appropriate and ensure that the commission operates as a collegiate body; provide strategic leadership to the commission, including leading on the development of the strategic plan and the strategic plan cycle; represent and act as the public voice of the commission, including participation in relevant national and international forums; and support and supervise generally the director in the exercise of his or her statutory functions and the day-to-day administration of the commission’s business. An outstanding individual is sought to become chief commissioner and this person should be able to give strategic direction to the work of the IHREC. He or she should also be able to unite and lead a team of commissioners from diverse backgrounds and forge good working relations with partner organisations across the public, private and voluntary and community sectors.

The Attorney General has advised that these are too detailed for inclusion in legislation and could prove to be too restrictive if they were included. It is better to leave day-to-day decisions about which member of the commission is best placed to handle specific tasks to the discretion of the commission as a body corporate. That said, we thought it useful to provide that the chief commissioner should set out his or her personal key priorities and objectives for his or her term of office as part of the commission’s strategy statement. That is the right approach as the statement will be laid before the House. The approach I am recommending in this amendment therefore gives an opportunity for the chief commissioner to engage directly with the committee on what his or her personal contribution and priorities will be. This will be laid out for the term of office or the life of the particular strategy statement.

This amendment allows for increased engagement by the commission with the Parliament through work in committees. The priorities of the commissioner will be laid out clearly, which will lead to more effective discussion on how the strategic plan may go.

Amendment agreed to.

I move amendment No. 9:

In page 21, line 15, after "sufficient" to insert "in the view of the commission".

This concerns the budget allocation to the relevant body, which section 26 indicates "with the consent of the Minister for Public Expenditure and Reform, to be reasonably sufficient for the purposes of expenditure". We are asking that the commission should be "reasonably sufficient" by itself rather than with the consent of the Minister.

I should say that it is a good try. Most bodies would like that but the idea is somewhat problematic in view of what I stated regarding the Constitution earlier. In our system, money may only be voted for a public body on foot of a request from the Government. Within that constitutional imperative, the Minister for Public Expenditure and Reform’s consent is required for any allocation of public funds and a Minister – which in the case of IHREC is the Minister for Justice and Equality – must take political responsibility for that allocation and be answerable to this House. No State body, no matter how important its work, can be given a guarantee of receiving all the funding it regards as sufficient. This could vary from time to time.

The current language of the Bill is stronger than one would often find in similar language in legislation. There is reference to "reasonably sufficient", although it is not what the Deputy desires, but that is not found in the legislation relating to any comparable State agency. This recognises the work of the commission as resources can be an issue. This text is a recognition that this commission is in a special position and we have gone as far as is constitutionally permissible to protect funding, which is effectively what the amendment is trying to do. We have gone as far as we can to put in a wording that is quite robust compared to what would normally be in legislation. If a future Government should decide to impose disproportionate cuts on our human rights and equality bodies, that is an issue for political resolution in this House and elsewhere, but it cannot be solved in advance by this amendment or any other form of words that one might wish to put in legislation. We need to ensure the best cross-party support for these issues, and I acknowledge the cross-party support that we have seen with the development of the new commission. I will oppose the amendment on that basis.

Amendment put and declared lost.

I move amendment No. 10:

In page 22, line 26, to delete "equality remuneration term" and substitute "equal remuneration term".

This is to correct an error in the wording of the Bill and I hope the amendment can be agreed without discussion.

Amendment agreed to.
Amendment No. 11 not moved.

I move amendment No. 12:

In page 26, line 31, to delete “56 days” and substitute “42 days”.

The Human Rights Commission has argued that this should remain at 42 days, as opposed to 56 days.

I wish to make a general point first about sections 32 to 34 and 36 to 38. These are all continuations with little substantive change of existing provisions in the Employment Equality Act 1998 and as such, they form part of our EU equality law obligations. This is so on the basis of provisions in the relevant directives that prohibit a regression in existing standards of protection. This obligation exists even though these provisions have not been used in recent years in practice.

Section 33, to which the amendment relates, provides that, in connection with preparing either an equality review or an equality action plan, the commission may serve a substantive notice on a person to supply information with regard to an equality review or action plan. Such a notice may also be served if an undertaking fails to implement the requirements of an equality action plan as outlined in section 32. This section also provides an opportunity for an undertaking to appeal such a notice and a penalty for failure to comply, other than in the case of a successful appeal being lodged. The notice takes effect, and has the force of law, after the expiry of 56 days, but a person can appeal within 42 days to the Labour or District Court as appropriate. In the current legislation, notices take effect after 42 days, but 42 days is also the deadline for taking an appeal.

Following consultation with the Equality Tribunal, the length of time for taking an appeal in relation to this section remains unchanged, but the period of time after which a notice takes effect is being extended to 56 days. This is to avoid a situation where an appeal is lodged on the last day possible and on the immediately following day the Commission, which may not have notice of the appeal, commences enforcement action. Such legal confusion is to be avoided if at all possible. It is good practice to leave a "gap" and two weeks seems a reasonable length of time and not excessive. This change in the Bill was made following consultation with the Equality Tribunal and I hope the Deputy will accept that.

Amendment, by leave, withdrawn.

I move amendment No. 13:

In page 33, after line 38, to insert the following:

“(c) carry out an equality and human rights impact assessment on all new policies, programmes and proposals in relation to budgeting and resource allocation.”.

It is vitally important that if public bodies respect human rights they must provide for new policies to be proofed against the human rights Acts. The Government must also ensure that adequate budgets and resources are made available for them to carry out their duties.

I can see that the Deputy is suggesting a formal impact assessment but such a process cannot substitute effectively for the ongoing responsibility the commission or any public body would have to manage its functions effectively or for the ultimate responsibility of the Government and this House to make political choices in the allocation of resources. I do not need to speak here about the challenges of different levels of expenditure for various agencies or EU obligations, and the decisions we have to make in that respect, day in, day out. Resources are limited and additional expenditure demands or costs, arising for whatever reason, will have to be paid for through expenditure reductions elsewhere, or through the raising of additional revenue. These are challenging issues in respect of the allocation of resources. The amendment does not change that reality and will not be of any help to this Government or any future Government in making difficult decisions on allocation of resources.

It would make a big difference to the difficult choices. The Government would make the choices that had the least negative impact. If public bodies human rights proof policies and decisions that will inform their decision-making. If the Government is faced with a choice between a decision that has a negative impact on human rights and one that does not, with the same financial bother, it can decide on that basis. It is an important principle, that public bodies should respect human rights in our society. Strong consideration should be given to this principle.

Amendment put and declared lost.

I move amendment No. 14:

In page 34, between lines 22 and 23, to insert the following:

“(9) Where a public body has failed to comply with section 42(1) and (2), the Commission shall issue a notice requiring that the public body shall—

(a) comply with the duty, and

(b) supply the Commission, within 30 days from receipt of the notice, with a submission detailing progress to be made for the purpose of compliance with section 42(1) and (2).”.

This amendment arose on Committee Stage. It aims to provide a mechanism whereby when the commission feels that public bodies have failed in their positive duty it can ensure they comply with the requirements under the Act.

On Committee Stage the former Minister said that the threat of being brought before an Oireachtas committee should be enough to ensure a public body complied with the human rights legislation. In the past week or two we have seen how serious that threat is when Secretaries General of Departments can come before a committee and stonewall and not answer any questions. The threat of being brought before an Oireachtas committee is not enough of a deterrent to ensure that public bodies comply with their obligations. There does have to be some enforcement measure to ensure compliance.

In the UK, where regular reviews are carried out, public bodies do not believe that any of their duties cause them to take action which is disproportionate to the benefit of those delivered. They accept that they must comply and there is no additional cost. On Committee Stage the former Minister raised the cost of doing this. The bodies covered in the UK believe that their required duties are effective and positive. We need an enforcement mechanism.

Section 42 places a positive duty on public bodies to have due regard to human rights and equality and reflects a commitment in the Government’s Programme for National Recovery 2011 to 2016, which states: "We will require all public bodies to take due note of equality and human rights in carrying out their functions". The commission will assist public bodies to comply with that positive duty, including by producing guidelines and codes of practice, which will be very helpful, as outlined in section 31. Those guidelines and codes of practice should lead, as they develop, to higher standards in all public bodies in the implementation of human rights and good practice.

Those guidelines and codes of practice should lead as they develop to higher standards in all public bodies in regard to the implementation of human rights and good practice. There is no doubt about that and that has happened to quite a degree already, as we know, but one cannot be complacent about it.
This is a positive opportunity to bring about real reform within the public sector by adopting the approach of active engagement successfully pursued by the Equality Authority in its workplace relations work with social partners. I served on the board of the Employment Equality Agency, which preceded the Equality Tribunal, for quite a number of years. A huge amount of work and practice have developed together with engagement with the social partners which has led to huge improvements in equality standards in the workplace. The case practice that has developed there has been helpful in terms of changing the mores around human rights. That is a very good way to promote best practice, highlighting the good practice to which bodies that have not yet reached that standard can aspire.
The Deputy referred to ongoing evaluation and review in regard to the UK example. I put on the record that the working group that was established to advise the then Minister on practical issues in regard to the merger recommended this specific approach to the creation of a positive duty on public bodies. It went on to recommend that a formal review of the operation of this section be undertaken by the Government in consultation with the IHREC after a period of three or five years. I am happy that such a review should take place and I believe it should happen after three years. The review should assess the effectiveness of the public sector duty in securing improved human rights and equality outcomes and in assisting public bodies to pre-empt problems on an evidential basis. The evidence could be gathered by way of an independent evaluation commissioned jointly by the IHREC and the Department of Justice and Equality. The review should also assess whether there is a need to modify or develop the recommended arrangements, including whether there is a need to institute a formal review and monitoring mechanism and the question of integration with other regulatory assessment procedures, on the basis of the evidence.
The key point I would make in regard to the Bill, as it is worded, is that it presents an opportunity to view the new provision as a positive and developmental opportunity in the way I have outlined in terms of developing human rights standards through the various mechanisms which the commission has at its disposal, rather than at this point thinking in more legalistic and enforcement terms. I accept part of the point the Deputy made, namely, that we must have ongoing assessment. The review that will be done, and as I said I would prefer if it took place after three years, will give us information as to how matters are progressing and whether more detailed mechanisms are needed at that point. I am not accepting the amendment.

I wish to press it.

Amendment put and declared lost.
Bill received for final consideration.
Question put: "That the Bill do now pass."
The Dáil divided: Tá, 79; Níl, 29.

  • Barry, Tom.
  • Breen, Pat.
  • Bruton, Richard.
  • Burton, Joan.
  • Buttimer, Jerry.
  • Byrne, Catherine.
  • Byrne, Eric.
  • Cannon, Ciarán.
  • Carey, Joe.
  • Coffey, Paudie.
  • Collins, Áine.
  • Conaghan, Michael.
  • Conlan, Seán.
  • Connaughton, Paul J.
  • Corcoran Kennedy, Marcella.
  • Deasy, John.
  • Deenihan, Jimmy.
  • Deering, Pat.
  • Doherty, Regina.
  • Donohoe, Paschal.
  • Dowds, Robert.
  • Durkan, Bernard J.
  • English, Damien.
  • Ferris, Anne.
  • Fitzgerald, Frances.
  • Flanagan, Charles.
  • Gilmore, Eamon.
  • Griffin, Brendan.
  • Hannigan, Dominic.
  • Harrington, Noel.
  • Harris, Simon.
  • Heydon, Martin.
  • Hogan, Phil.
  • Howlin, Brendan.
  • Humphreys, Heather.
  • Humphreys, Kevin.
  • Keating, Derek.
  • Kehoe, Paul.
  • Kelly, Alan.
  • Kenny, Seán.
  • Kyne, Seán.
  • Lawlor, Anthony.
  • Lynch, Ciarán.
  • Lyons, John.
  • Maloney, Eamonn.
  • McCarthy, Michael.
  • McEntee, Helen.
  • McFadden, Gabrielle.
  • McGinley, Dinny.
  • McHugh, Joe.
  • McLoughlin, Tony.
  • Mulherin, Michelle.
  • Murphy, Dara.
  • Murphy, Eoghan.
  • Nash, Gerald.
  • Neville, Dan.
  • Nolan, Derek.
  • Ó Ríordáin, Aodhán.
  • O'Donnell, Kieran.
  • O'Donovan, Patrick.
  • O'Mahony, John.
  • O'Reilly, Joe.
  • O'Sullivan, Jan.
  • Phelan, Ann.
  • Phelan, John Paul.
  • Quinn, Ruairí.
  • Rabbitte, Pat.
  • Reilly, James.
  • Ring, Michael.
  • Ryan, Brendan.
  • Spring, Arthur.
  • Stagg, Emmet.
  • Stanton, David.
  • Tuffy, Joanna.
  • Twomey, Liam.
  • Varadkar, Leo.
  • Wall, Jack.
  • Walsh, Brian.
  • White, Alex.

Níl

  • Adams, Gerry.
  • Boyd Barrett, Richard.
  • Broughan, Thomas P.
  • Calleary, Dara.
  • Collins, Joan.
  • Collins, Niall.
  • Colreavy, Michael.
  • Cowen, Barry.
  • Crowe, Seán.
  • Doherty, Pearse.
  • Ellis, Dessie.
  • Healy, Seamus.
  • Mac Lochlainn, Pádraig.
  • McConalogue, Charlie.
  • McGrath, Finian.
  • McGrath, Mattie.
  • McGrath, Michael.
  • McLellan, Sandra.
  • Murphy, Catherine.
  • Ó Caoláin, Caoimhghín.
  • Ó Cuív, Éamon.
  • Ó Fearghaíl, Seán.
  • Ó Snodaigh, Aengus.
  • O'Brien, Jonathan.
  • O'Dea, Willie.
  • Pringle, Thomas.
  • Shortall, Róisín.
  • Stanley, Brian.
  • Tóibín, Peadar.
Tellers: Tá, Deputies Paul Kehoe and Emmet Stagg; Níl, Deputies Seán Ó Fearghaíl and Aengus Ó Snodaigh.
Question declared carried.
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