JOINT COMMITTEE ON FOREIGN AFFAIRS (Sub-Committee on Human Rights) debate -
Wednesday, 14 Dec 2005

Irish Human Rights Commission Annual Report 2004: Presentation.

Chairman

Our main business is a presentation from Dr. Maurice Manning, president of the Irish Human Rights Commission. I welcome Dr. Manning back to Leinster House to report on the commission's annual report for 2004, which was launched on 5 October. Members of the sub-committee and perhaps all Members of the Oireachtas received that report, for which we are grateful. We are pleased Dr. Manning is appearing before the sub-committee. We had an extremely informative meeting some months back and we look forward to being brought up to date on his work since then and on issues he considers pertinent.

Dr. Manning has often heard, and perhaps often stated, that while members of the sub-committee have privilege, the same privilege does not apply to witnesses appearing before it.

Dr. Maurice Manning

I thank the Chairman. Privilege is in the air this week, so I will be extremely careful. It is an honour to be invited here and I am grateful to the Chairman and the sub-committee for giving me this opportunity. The report, which was sent to all members, speaks for itself. I will be happy to address any aspect that members care to raise.

I will make some general observations. The year 2004 was the first full year of operation for the commission and the first year we had full staff and premises. National human rights institutions are a relatively new phenomenon. Ten years ago there were fewer than ten or 12 in the world and today there are approximately 60. There is no obvious role model for a new commission. During the past two or three years, to a great extent we followed our initiative in examining the few good examples of established human rights commissions, particularly in Australia, Canada, South Africa, Denmark and New Zealand. A great deal was left to our own initiative.

The Human Rights Commission Act 2000 and the Human Rights Commission (Amendment) Act 2001 are examples of good legislation. It is nice to be able to return to the House and say that the founding legislation is now regarded internationally as a template for many new human rights commissions. It is a great tribute to those who drew it up and to the Houses of the Oireachtas. It is clear, specific and wide-ranging and gives a new commission both guidance and space within which it can develop. We would like to see one change in the legislation. I mentioned this when writing to Members of the Oireachtas. We would like the commission to be accountable to the Oireachtas, rather than to a Department of State, in this case the Department of Justice, Equality and Law Reform. I will return to that point.

I also wish to point out that although the legislation is good, the commission is still only at a developmental stage. We used the initial resources we received well. We now need to make a small number of new strategic appointments. There is always the danger that the Government will regard us as a finished product and a done deal rather than as a work in progress. We are a work in progress and we need to get this message across to the Government when we ask for the small, limited number of new strategic appointments that we wish to make.

The commission is fortunate in the high quality of its members. Some members of the sub-committee may remember the acrimonious controversy surrounding the first appointments to the commission. Happily, that is now in the past and we have a unified commission. What is most important is the diverse talents, which are of extremely high quality. In any future appointments to the commission, however they are made, the quality of those appointed and their range of experiences and talent is essential to the good functioning of a commission. Experience includes that gained working at the coalface in NGOs, in academia or with different organisations or ordinary common sense.

I mentioned the question of accountability. The Department of Justice, Equality and Law Reform is our sponsoring Department. We have good relations with that Department and it has treated us with total propriety. The Department is a security Department. By definition, many of the allegations of breaches of human rights are directed against bodies involved directly with the Department of Justice, Equality and Law Reform, whether it be the police or the Prison Service. Many of the contentious issues such as asylum and immigration also fall within the purview of the Department. There can be a perception that a human rights commission which has as its sponsoring Department the Department of Justice, Equality and Law Reform cannot be fully independent. The Irish Human Rights Commission is independent but there could come a time when matters will change and a different view might be taken by the Department if it was not happy with what the commission was doing in certain areas. We are conscious of this danger. Human rights are of such central and overarching importance, touching every aspect of the law, that the commission would like to be directly accountable to the Houses of the Oireachtas or a special human rights committee of the Houses. We are told and have no reason not to believe the Government is neutral on this matter. It is not a question of the Department wanting to influence the commission in any way. It is entirely a matter for the Oireachtas. I ask for the support of the members of the committee in progressing it.

There are two or three other matters I wish to raise, the first of which is the question of referring proposed legislation to the commission. The function of the commission is specific. It is to ensure legislation complies with human rights standards as laid down in the Constitution and the many national agreements to which Ireland is party. The commission does not take a personal or political view. It merely tests legislation. Unfortunately, only the Minister for Justice, Equality and Law Reform refers proposals for legislation to us. He does this in a most punctilious manner. All legislation from his Department is referred to us. Obviously, human rights issues affect other areas — welfare, labour law, education, fiscal policy and housing. There is a whole range of issues where human rights are central. We would like Departments to refer legislative proposals to us as a matter of course, as the Minister for Justice, Equality and Law Reform does. We have asked for this on a number of occasions but nothing has happened.

Like the committee, we are also very concerned at the way in which some legislation is dealt with in the Houses. Often detailed proposals or observations are made but the guillotine comes into operation and legislation does not receive detailed consideration. However, that is a matter for the Houses rather than for us but it is something we find frustrating. We are particularly concerned — this is a matter we are raising with other national human rights institutions — about the way in which EU legislation comes directly into Irish law without any attempt being made at European level to apply a critique to see whether it complies with EU or international human rights standards. That is of major concern to us, as it is to many members of the committee.

There are two other points, to which I would like to refer, one of which relates to the joint committee of the human rights commissions of the Republic and Northern Ireland. It has not been functioning very well, largely because of the problems with the Northern commission. We are all anxious that it should become a working joint committee. We had a meeting last week and have put in place a work programme. Under the leadership of Professor Monica McWilliams, there will be a very vibrant joint committee. It is one of the North-South institutions which I believe can work, even in the present difficult circumstances.

We are talking to the Department of Foreign Affairs about the possibility of the Human Rights Commission providing training in human rights as part of Ireland's development aid programme. This would tie in very well with the emphasis the Department places on governance as part of any aid package.

Having made those remarks, I will be happy to answer any questions members may care to put.

Deputy M. Higgins

I join the Chairman in welcoming a former colleague, Dr. Maurice Manning. I am delighted he was able to find time to be here with us.

I strongly support the idea that the commission should report to the Oireachtas. It would certainly address the issue of the perception of the commission as being accountable specifically to a Department which may, of its nature, be doing business with the commission on an ongoing basis, rather than being broadly accountable. One would have imagined there would be a deeper relationship between the Department of Foreign Affairs and the commission than appears from the report.

I am interested in a number of areas. It is worth considering relationships external to us. There is the United Nations committee which monitors the United Nations Convention Against Torture which is referred to in the report, the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, and the European Commission. In the case of these three, specific questions have been occasionally thrown up which are answered in the Dáil, sometimes by the Department of Foreign Affairs. This will arise this afternoon in regard to two issues that are, to some extent, relevant, one of which is the concept of rendition, on which I will have an opportunity to ask questions. The other is the use of white phosphorus and the international instruments governing the conditions of use of what is an incendiary weapon.

There is an issue that arises between Northern Ireland and the Republic in regard to the optional protocol to the United Nations Convention Against Torture. I understand Britain ratified the optional protocol as far back as September 2003 but I could be wrong about the date. However, the optional protocol has neither been signed nor ratified by Ireland. My inquiry to the Minister for Justice, Equality and Law Reform is whether it is the case that Ireland will neither sign nor ratify it before late 2006. The report correctly refers to the consultation that must take place regarding places of detention and so on in order to synchronise implementation, signing and ratification. Interestingly, it creates a situation in the context of the requirements of the Good Friday Agreement that the human rights regime, North and South, should be similar. They are not dissimilar in that regard.

A general issue arises regarding the concept of compliance. The United Nations Convention Against Torture does not simply forbid the use of torture by signatory states but also calls on them to prevent torture generally. There is, therefore, consensus regarding the duty of compliance. I can give an example to illustrate this. If Ireland co-operated on a flight plan in connection with the acquisition of a person in what is referred to as extraordinary rendition and the person ended up at risk of torture, it would not be compliance to say one was simply operating a transit point and did not know what was happening. There is a positive obligation under the convention in so far as one cannot say it was not brought to one's attention. The positive interpretation of compliance is that one must seek to know there is compliance.

I strongly support what is contained in the report regarding education in terms of racial discrimination but, first, I should say my daughter works for Comhlámh on its anti-racism project. We should consider that section, which contains a description of good seminars on the question of formation, but we need to examine the sources of funding for anti-racism campaigns and public education on all these issues.

I wish to refer to a specific case. This week the Office of Public Works succeeded through the Chief State Solicitor's office in getting a debt collection firm to seek the recovery of the State's cost in litigation relating to the attempt to build an interpretative centre at the foot of Mullaghmore in the Burren, County Clare. I previously served as Minister with responsibility for this area and cases were taken by various litigants. The State lost all the cases except one but out of the blue the Chief State Solicitor's office has handed to the debt collection firm, Crosferrys, the job of collecting the State's costs. The issue that arises is what happened after the State lost, with one exception, the case to which I refer. The State sought to be positive and the legislation was amended to require of it the same compliance under planning law that applies to every other citizen and entity. It was a good legislative response. Oblique references are made in the report to protections afforded under the European convention for citizens to advance cases in the public interest. This latest action by the OPW flies in the face of the evolving sense in Europe that citizens should be free to take such cases without having heavy penalties imposed on them or being exposed to the actions of debt collectors.

The sub-committee should address the question of to whom the commission should respond and it should also ensure that the issue of an increase in the commission's staff complement remains open. An evolving consciousness about human rights, which is evidenced by the number of cases being taken and the number of people who are anxious to take cases in the public interest, will result in the necessity to increase the number of staff.

I would like Dr. Manning to comment on another issue. The number of bodies being established in this area internationally is welcome but the debate on moving towards a definition of universalism and human rights has closed. The latter would be a good issue for our commission to participate in outside of the Council of Europe and the United Nations. The proposed restructuring of the Geneva arrangements by the UN may not necessarily be an advance. They may be, if matters are structured differently, but they could well represent a weakening rather than a strengthening. A discourse on, for example, whether it is possible to move towards a universal definition and how this will involve a debate between Islam and the western world is vital if we are to move forward peacefully.

Chairman

The Deputy raised five or six important issues. He referred to the accountability of the commission. Perhaps Dr. Manning will advise the sub-committee regarding the changes that have been made or whether he has engaged in correspondence to seek change in his role in that regard.

Deputy Carey

I welcome Dr. Manning and I also welcome the opportunity to discuss the report. I raised the issue of the reporting relationship by way of a parliamentary question. I forwarded it to Dr. Manning who, in response, indicated that he felt there was a slight change in nuance. Perhaps he will elaborate on what he meant by that.

I am taken by what Dr. Manning said about the European legislation issue. I was a member of the Sub-Committee on European Scrutiny for a year and a half. He is correct that the sub-committee found it was examining directives and legislation that were all but signed off and, in some cases, completely signed off. Has he made progress in his discussions with Brussels about how improved scrutiny of European legislation might be put in place? The draft constitutional treaty provides a different mechanism for national parliaments to examine legislation. There is nothing to prevent the Commission introducing informal arrangements to begin that process and, for example, to legislate in public if it so desires. We do not need to wait for the constitution, if it ever sees the light of day, to be ratified.

Dr. Manning referred to DCI. Trócaire made a presentation to the Joint Committee on Foreign Affairs yesterday on its work in Timor-Leste. The representatives highlighted the need for organisations with expertise in governance and best practice to make their resources available to DCI and the Timor-Leste Government. This could happen elsewhere. The Government is heavily involved in Ethiopia, which is experiencing significant political unrest. A respected body such as that represented by Dr. Manning might have a role to play in knocking heads together in this regard because a vibrant opposition has emerged there but the people involved need coaching in how to make the best use of that status in parliamentary terms.

I am uneasy about the issue of migrant workers. According to a reply to another parliamentary question I tabled, the Government does not propose to sign up to the Convention on the Protection of the Rights of all Migrant Workers. That is disturbing but I am sure the Government can explain why it does not want to go down that road. Can the commission suggest anything to change the Government's mind?

I refer to amicus curiae requests. It has been suggested that the commission is involved in attempts by local authorities to evict people for anti-social behaviour. Is the commission advocating on behalf of those who are under threat of eviction by local authorities? If so, what is the basis for that position?

Deputy M. Higgins

Dr. Manning referred to changes in visa arrangements to address the issue of citizenship. An issue arises in a particular case involving a Zimbabwean whose late husband was an Irish citizen and all of whose children are Irish citizens. She is not even entitled to special treatment by way of the issuing of a visa. If difficulties arise in Zimbabwe, she will not be automatically entitled to protection as an Irish citizen. This is the case, even though one had been married for perhaps 20 years but not exercised one's rights under the previous legislation. Such questions are being thrown up. Does Dr. Manning really see what he refers to as the enhanced visa system, as I understood it in the report, correcting some of these anomalies in the short term?

Dr. Manning

I thank members for their positive remarks and challenging questions which I will try to deal with them in the order in which they were asked.

Deputy Higgins asked about our relationship with the Department of Foreign Affairs. The legislation confines us specifically to a role in this country. We do not have a role in foreign policy, except in limited circumstances. The question of rendition is an interesting one which we will discuss tomorrow to see if there have been any breaches by this country. For the most part, given that the IHRC is a new body, we have tended to focus on human rights questions specific to this country. This does not mean, however, that we do not have a good relationship with the human rights section in the Department of Foreign Affairs, for which I have a great deal of admiration. They are fine people doing good work. We have worked with them, for example, at the drafting of the UN treaty in New York on the question of disability. A colleague of Deputy Higgins from NUI Galway, Professor Gerard Quinn, is absolutely splendid. He is a world leader on the question of disability in human rights. Both he and Professor William Binchy have played a major part and featured at a seminar at the Harvard law school last week on the question of a treaty to monitor implementation of disability legislation worldwide. We work with the Department of Foreign Affairs on such questions and have found it helpful.

We are puzzled as to why this country does not ratify the convention on migrant workers. It is our view that it is virtually compliant with all of the demands made in that treaty. Much legislation has been enacted in recent years. Therefore, we do not know the reason there is a reluctance to ratify the convention. The Government could give a great lead to other countries. We are virtually ready to ratify it. On behalf of the commission, last week I wrote to the Minister for Justice, Equality and Law Reform, Deputy McDowell, asking him to spell out in detail the reasons the Government would not ratify the convention and urging him to overcome any difficulties. I would be happy to make his reply public as soon as we receive it. I urge the committee to exert pressure on him because there is nothing to be afraid of in the convention.

There is nothing the IHRC can do on the matter raised by Deputy Higgins about the OPW until all other channels have been exhausted. If, for example, there is a sense that human rights legislation has been breached, the IHRC is in a position to hold an inquiry. While we have not yet held any public inquiries, we could do so and send for witnesses, papers and so forth. We ask that all other means be attempted before one comes to us.

The question of amicus curiae was raised by Deputy Carey. It is not our role to advocate. We will only become involved in an amicus curiae case where we believe there is important human rights legislation which should be drawn to the attention of the court. Sometimes those who come to us for help see us as being on one side or the other. We are not. We are there to take up a point of law. We felt particular aspects of the European Convention on Human Rights should be clarified in the public interest. The outcome of the case was that the court clarified the law in favour of Dublin Corporation. Our view was that a question had arisen and that it was part of our mandate to try to ensure there was as much clarity as possible but we are not running a crusade.

On the question of accountability, as I stated, we believe the Government would be open to change. I wrote to each Member of the Oireachtas and mentioned the issue in the annual report. I want to build support within the Oireachtas. I realise it is not a significant matter for most Members but, nonetheless, to us it is fundamental that we report directly to the lawmakers, to Parliament. We see ourselves also having a role in dealing directly with parliamentary committees on legislation and believe that to help Members on Committee Stage there should be an input on the implications of legislation for human rights. Whether they would accept what we would have to say would be a matter for them but there should be such an organic relationship between us and the Houses of the Oireachtas. The other point is that this would dispel any sense of the absence of independence but it will be a long haul, as such matters move slowly. The Department of Justice, Equality and Law Reform might not be as willing to see us but I am willing to take its officials at their word and push ahead. I may try to engage in discussions with Members of the Oireachtas in the new year to see how we could push forward on the issue and also whether it comes within the purview of the Oireachtas Commission, which may be one way of pursuing it. It would mean a change in the relevant legislation but we have been told by the Government that it would have no difficulty in sponsoring such a change.

Deputy Carey mentioned EU legislation. A great opportunity is being missed with the creation of the new European fundamental rights agency. The national and European human rights commissions have great reservations about the way in which this is being approached. There is, undoubtedly, a need not just for a fundamental rights agency but for a European human rights agency. We would see such an agency as having the role played by a national human rights agency in examining legislation at an early stage to see that it was compliant, at least by European standards, even if it did not reach international standards. We would see this as a key role. We would not see it as the bureaucratic body being proposed but as a small focused body which could do this work. In the drafting of legislation its expertise would be available to national parliaments, national governments and the European Parliament. We are not happy with what is happening in the creation of the fundamental rights agency. We see it as presenting an opportunity. We also believe some of the new member states do not have great human rights records and that there is a need for a strong voice within the European Union on human rights, both to give a lead and to be vigilant as to what is happening.

I appreciate the support of both Deputies on the question of tying human rights issues to aid. I hope it is a matter on which we can follow up.

Deputy Higgins raised a number of questions about areas in which we are not directly involved. They are matters about which we talk late at night when in conversation one becomes philosophical. In the early stages we are keen to put down roots and get ourselves up and running and not to stray from our brief. Nonetheless, these questions exercise us and we certainly address some of them with our colleagues from Northern Ireland. Through the joint committee, we hope we will be able to secure direct action on some of them. For the moment, with the Northern committee we are jointly placing the emphasis on the charter of rights which forms part of the Good Friday Agreement, as well as on the questions of migrants' rights, asylum and immigration, in respect of which there are many problems common to both parts of the island. These are the issues at which we are looking with our Northern colleagues.

Deputy Carey

Has the IHRC done any work with its Northern colleague on a Bill of Rights for Northern Ireland?

Chairman

The Human Rights Consortium addressed the committee in recent weeks.

Dr. Manning

The bill of rights is specific to Northern Ireland, while the charter would be for the entire island. If one can get agreement in Northern Ireland on a bill of rights, the overall charter would not be all that much different. Given the absence of a parliamentary structure there, it is one of the issues that has sadly gone into limbo or, now that the latter has been abolished, is located where limbo used to be. If one cannot obtain agreement on a parliament, it is doubtful that one could do so in respect of this matter. We will make renewed efforts, examine its feasibility and concentrate more on the political parties than we have done in the past.

Deputy M. Higgins

I will ask a practical question in respect of the delivery of human rights. Two weeks ago, I raised in the Dáil the conditions of a halting site at Carrowbrowne, a matter that was reported in the media. In that case, the elected members of the relevant local authority had twice passed unanimous resolutions to provide electricity, basic clean water and sanitation to the site. This has been an issue since 2004 and it gave rise to the much publicised "Can We Have Electricity For Christmas?" campaign. However, conditions at the site began to deteriorate in approximately 1995, when photographs of it first appeared. Today, 18 families live in those conditions and do not have access to electricity, water, sanitation and so forth.

How can the commission exercise any influence or moral suasion or seek the compliance of the involved local authorities with basic conditions? An issue arising, which is part of the prejudgments that have been made, is that one can justify the non-delivery of services and facilities for today's occupants on the basis of what is suggested by the conditions experienced by those who were there many years before. As a result of the events at Carrowbrowne, I began to examine other cases. How do we ensure compliance across the various halting sites?

The sub-committee previously engaged in an academic and philosophical debate, with Dr. Joshua Castellino and I on one side and the man who knows everything, the omniscient Minister for Justice, Equality and Law Reform, on the other. The latter found it easy to dismiss us on the issue of whether Travellers comprise a separate ethnic group. In this instance, however, I am referring to water, electricity — not that produced by generators — and sanitation of a kind other than that which would result from the provision of a pair of Portakabins. It is unbelievable that local authorities are able to continue year after year in flagrant violation of even the most basic rights for children and families, particularly on these sites. I do not want to have this elaborated into a large argument, which is why I told the sub-committee that Dr. Castellino and I would hold other discussions where we would be received differently. This is a concrete example going from 2005 to 2006.

In 2004 the National Building Agency was going to carry out a plan, following which there would be a review. The suggestion now is that one would need to move the families to another location in order that the work might be carried out. However, the location to where they are being directed does not have planning permission and is not in the ownership of any local authority. That is scandalous.

Dr. Manning

The Irish Human Rights Commission, in working with the Irish Traveller Movement, is currently completing what I hope will become a Private Members' Bill on the rights of Travellers. It is the first time that the movement is producing legislation. We are helping it with the human rights principles, legal structure and so forth. We hope that this new legislation will be sponsored by someone in the Houses early in the new year.

Deputy Carey

I wish to raise a practical matter similar to that to which Deputy Michael D. Higgins's referred. A Private Members' Bill will come in due course but we are in the middle of a very cold winter. I received an e-mail reply yesterday from a public official to my request for a second Portaloo for a group of approximately 20 people. The reply was fairly blunt — the official had no intention of providing anything for a group of people who had decided to camp on what he regarded as an illegal site. This family has been there for as long as I have lived in Finglas, approximately 30 years. That was it. I presume that, if I wished to provide the Portaloo, I could do so. Other than jumping up and down and creating a public nuisance of oneself, can anything be done in this type of situation?

Dr. Manning

I am the wrong person to ask that question.

Deputy Carey

That is fine. I do not want anyone to say that I have compromised the commission.

Chairman

Earlier Dr. Manning stated that while the commission is in regular communication with the Department of Justice, Equality and Law Reform — all of the latter's proposals are sent to the commission for observations and comments — other Departments may not be in such regular communication.

Dr. Manning

No other Department is in regular communication with us.

Chairman

Has the commission engaged in any degree of dialogue to try to encourage other Departments?

Dr. Manning

Yes. We have spoken to representatives of the Government and the Department of the Taoiseach a number of times and made a formal request that where human rights issues are involved in legislation in its early stages, they be distributed to us for observations.

I do not wish to take too much of the sub-committee's time but one of our failures to date has been to engage with the policymakers in the public service. We see ourselves as a resource. We are not here to wave fingers at people, rather we try to help improve the quality of legislation by ensuring it is compliant with human rights. This makes much sense because it is the right thing to do and it can save visits to courts later. We would like to be in a situation where policymakers in the public service do not regard us as some type of NGO — the commission is a statutory body — do-gooders or a crowd that must be avoided at all costs. We want to be viewed as a resource to add value to what they are doing and help them in any way possible.

One of our major priorities in the coming year is the question of human rights within the police force. We are working with the Garda Síochána in trying to help it develop best human rights practice, which would be welcome from its point of view. Instead of preaching at people, we want to give them whatever practical assistance we can.

Chairman

I thank Dr. Manning. While our numbers have been unfortunately small this morning due to other committees and both Houses sitting, we have certainly learned more about the valuable work the Irish Human Rights Commission is doing and Dr. Manning has hopefully taken on board some of the suggestions my colleagues made. I hope we will have occasion to meet Dr. Manning again in his formal capacity during the new year.

Dr. Manning

I thank the Chairman and the sub-committee for inviting me to appear.

Chairman

I sincerely thank Dr. Manning and the commission for their outstanding work. We should try to ensure that public policymakers take on board Dr. Manning's final point, namely, that he is here to be a resource, to be part of the team, to add and help rather than to detract or be someone simply screaming from the sidelines. I hope the Departments will liaise as fully as possible with the commission because I am sure all sides would benefit. We look forward to entering into further dialogue with Dr. Manning in the coming year.

The joint committee went into private session at 1 p.m. and adjourned at 1.10 p.m. sine die.