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Seanad Éireann debate -
Thursday, 3 Jul 2014

Vol. 232 No. 12

Irish Human Rights and Equality Commission Bill 2014: Committee Stage

I welcome the Minister for Justice and Equality, Deputy Fitzgerald, to the House.

Sections 1 to 7, inclusive, agreed to.
NEW SECTION

I move amendment No. 1:

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 on the island of Ireland.".

Cuirim fáilte roimh an Aire. Is mór agam é go bhfuil deis againn an Bille seo a phlé arís eile. We raised our concerns previously with the Minister about the amalgamation's impact on the Good Friday Agreement and all it has striven to achieve. As such, we have tabled this amendment. Paragraph (b) is particularly pertinent, given the delicate negotiations on legacy issues that are ongoing in the North, for example, flags, etc. We can never take for granted that the peace process will stay firm. While it is everyone's intention that the process be maintained and every effort be taken to ensure that all agreements are held to fully and both Governments play their role, we fear that this Bill dilutes the understandings on human rights under the Good Friday Agreement and the way the Irish Human Rights Commission, IHRC, does its work. We have tabled our amendment to reiterate the importance of these matters and we want the Minister to take it on board, as the Bill is a retrograde step in this context. No chances can be taken with the maintenance of peace and good relations between all traditions on the island of Ireland. I hope the Minister will look favourably on our amendment.

I thank the Senator. He will recall that this amendment was discussed on Committee and Report Stages in the Dáil. The position remains that the amendment's text is technically inappropriate for legislation. Were the Government to undertake actions along the lines suggested, they would either be matters of policy and resource allocation or would need to be addressed in detail in legislation. However, one does not insert in legislation that the Government should make proposals that may require legislation. Instead, we get on with implementing the Government's policy programme. Where this requires legislation, such legislation is introduced. There are technical issues with the amendment's drafting.

We are merging the Equality Authority and the IHRC. My predecessor consulted the then Northern Ireland Secretary of State around the time this proposal was announced. I assure the House that there are no adverse implications for our commitment under the Good Friday Agreement or for our relationship with Northern Ireland. Equivalence of protection relates to substantive human rights law, not to questions of institutional structures. This Bill addresses the future institutional arrangements for equality mechanisms. They will always operate differently in different jurisdictions. Under the Constitution, our body of human rights law is at least equivalent to that which exists in Northern Ireland. Contrary to the impression that the amendment's proposed paragraph (a) might convey, the remit of the new commission as regards human rights compares favourably with that of any national human rights institution in Europe.

The merger is intended to create a body that is greater than the sum of its parts. There is a significant commitment to ensuring an effective body. Extra resources and staff for the body have been agreed and it will be well equipped by the Bill. Thanks to the extra staff and resources and this legislation, protection of human rights and equality will be provided for cohesively. As such, I am not in a position to accept the amendment.

I appreciate the Minister's reply. In our reading, though, the IHRC does not have the full range of powers available to the commission in the North. Therefore, the equivalence obligation under the Good Friday Agreement appears to have been ignored. That the Government is proposing to amalgamate the IHRC and Equality Authority will result in a mismatch of powers and obligations and the equivalence obligation will again be ignored. We call on the Minister to maintain the IHRC as a sole body and to invest in it the broad range of powers available to the commission in the North. The Bill is unpicking parts of an agreement to which both Governments are equal co-guarantors and that was supported by the vast majority of the people of Ireland. This sends the wrong message to parties that may want to diminish powers granted under the Good Friday Agreement and unpick other elements of it. We struggled and fought for the Agreement. Therefore, will the Minister reconsider our points?

I reject the Senator's assertions of an "unpicking" of the Good Friday Agreement. There are no adverse implications for the Agreement. Nor do I accept the Senator's points about the powers of the Northern Ireland Human Rights Commission, NIHRC, versus those of the IHRC. I invite him to cite an example of where the NIHRC is stronger.

I put it to the Senator that the Bill's proposals on the protection of human rights are strong. The Government would not introduce a Bill that had adverse implications for the Agreement. My predecessor consulted the then Northern Ireland Secretary of State when this proposal was announced and shared its details. There was discussion of the matter.

For these reasons, I will not accept the amendment.

Amendment put and declared lost.
SECTION 8
Question proposed: "That section 8 stand part of the Bill."

I appreciate the comments of the Minister and Senator Ó Clochartaigh. We must always be vigilant in our duties and obligations under the Good Friday Agreement and St. Andrews Agreement. Had this House been abolished last year, my constituents in Northern Ireland would never again have had a vote in the Oireachtas. Some were annoyed by this, but it did not happen. This is an example of how voting rights that were protected under those agreements and the 1937 Constitution could have been removed by a referendum in which those who had the voting rights were not entitled to vote, as they were in Northern Ireland and the referendum was only held in the Republic. They value their rights, which form part of a better tradition of the two parts of the island sharing a common heritage.

The debate between Senator Ó Clochartaigh and the Minister was important, in that we can sometimes inadvertently intrude on people's rights.

The Government speakers at that time appeared to be unaware that there were implications for Northern Ireland of the abolition of this House. While that is over and done with and the abolition did not happen, it shows that sometimes things can have inadvertent consequences. We want to preserve the best possible relations between the two parts of the island. The Government is to be commended on doing so. It is, as we all know, a 24-7 job. I will not be opposing the section.

I take the point made by Senator Barrett. It is an important point, in respect of which we will be very vigilant. I would like to point out that under section 10 one of the functions of the commission is to participate in the joint committee with the Northern Ireland Human Rights Commission in accordance with the multi-party agreement annexed to the British-Irish Agreement within the meaning of the British-Irish Agreement Act 1999. That is built into the Bill.

Question put and agreed to.
Section 9 agreed to.
SECTION 10

Amendments Nos. 2 and 7 are related and will be discussed together by agreement.

Government amendment No. 2:
In page 11, between lines 8 and 9, to insert the following:
"(i) to be the body designated for the purposes of Directive 2014/54/EU of the European Parliament and of the Council of 16 April 2014 on measures facilitating the exercise of rights conferred on workers in the context of freedom of movement for workers;".

These are technical amendments which need to be made in two places, namely, section 10 and the Long Title to the Bill. They transpose into Irish law the EU directive referred to. The directive was one of a package of competitiveness measures published by the Commission at the time of our Presidency of the Council of the European Union. Essentially, the idea is to ensure that we remove any barriers to free movement of workers within the EU by putting in place positive measures to ensure that relevant information is available to them in languages other than the language of the receiving State and that they have access to redress mechanisms on the same basis as nationals of the receiving member state.

The substantive EU directive that eliminates discrimination against migrant EU workers is contained in an earlier EU regulation 492/2011, which we have already fully transposed into our employment equality legislation. The directive to which I am now referring now is 2014/54/EU of the European Parliament and of the Council of 16 April 2014, on measures facilitating the exercise of rights conferred on workers in the context of freedom of movement for workers, which was published in the Official Journal in April 2014 and comes into operation by virtue of Article 10 on the 20th day following its publication. We have until 21 May 2016 to transpose this directive, but as there is nothing new in the directive in so far as it compares with our existing equality legislation, I am taking the opportunity today of including it in this legislation. The sole exception is contained in Article 4.2B, which creates the new role for our designated national body of "acting as a contact point vis-à-vis equivalent contact points in other Member States in order to cooperate and share relevant information." Through this amendment, we are providing in our legislation that our new body will be the contact point. The Equality Authority is the designated body for the purpose of other EU equality-related directives and is already part of the European network of equality bodies. As such, this is not a new role in practice.

During my time as a member of the board of then Employment Equality Authority, an important part of its work was defending employment rights. It is interesting to note that this has not been referred to in legislation previously. Article 8 of the directive requires that the directive be referenced in national transposing legislation. All the other provisions of the directive have equivalents in our equality legislation. As this directive provides for no new rights, the opportunity is being taken today to make this amendment to the Bill, which is all we need to do by way of legislation for transposition to be complete. If we do this today, the transposition of the directive will have been completed ahead of time. To some degree, it is a technical amendment. However, it is important in that it means that the new body is the contact point for equality measures.

The Government and Minister are to be commended on having this directive transposed quickly. My understanding is that this is effectively adding an additional function to the Irish Human Rights and Equality Commission and that it is identified in the directive that in order for a body to be appointed as the point of contact it must have certain competencies in providing or ensuring the provision of independent or legal assistance to union workers and their families; conducting or commissioning independent surveys, particularly in relation to obstacles to the right to free movement; and ensuring the publication of independent reports, also in relation to freedom of movement and so on.

I note that in the preamble to the directive it is stated that should a member state decide to expand the mandate of an existing body it should ensure the allocation of sufficient resources to the existing body for the effective and adequate performance of its existing and additional tasks. The Minister indicated in an earlier response that she has provided additional resources and staff for the new merged body, which I acknowledge. However, as this amendment comes so late in the day, was account taken of these additional competencies and the work required in relation to this additional function in the calculation of those resources, or was it at least acknowledged that the organisation may require additional resources in order to incorporate this function in light of the transposition of the directive?

In regard to the competencies of the new body, it does have all the competencies necessary to fulfil what is provided for in the directive. There is no concern in that regard. In regard to the resource issue, this is about the body being the contact point and attending the relevant networking meetings. I would be confident that the resources allocated would encompass the body's work in this area. We were aware that this was a competency that this body was likely to have.

I agree with the Minister that the body would have the competencies required. My question is, given that the body is now the point of contact and for that reason additional work will potentially arise, in particular in terms of employing its competencies and extending them to issues related to freedom of movement, there may be a requirement for additional resources. I am concerned not that the body will not have the competencies but that this additional function may result in additional work for the commission, such that it will require additional resources. Does the Minister accept that?

No, I do not accept that. I believe the extra costs will be marginal and can be met by the additional resources provided. Obviously, once the body is up and running I have no doubt the resource issue will be ongoing, as it is for all bodies.

Amendment agreed to.
Section 10, as amended, agreed to.
Sections 11 to 24, inclusive, agreed to.
SECTION 25

Amendments Nos. 3 and 4 are related and will be discussed together by agreement.

I move amendment No. 3:

In page 21, line 15, after “appropriate” to insert the following:

"and referred for consideration to the Joint Oireachtas Committee with particular responsibility for human rights and equality".

The objective of both amendments is to seek to encourage closer co-operation between the new body and the Oireachtas.

There are international, European and Irish elements in the background to our recommendation of these amendments. Internationally, in February 2012 the United Nations Office of the High Commissioner for Human Rights organised an international gathering to develop principles to guide the interaction between national human rights institutions and parliaments. Its rationale for the gathering was rooted in its desire to assist implementation of the Paris Principles, which are foundational principles for the establishment of effective national human rights institutions. The Paris Principles state national human rights institutions shall establish effective co-operation with parliament. The document published subsequent to that 2012 gathering is entitled the Belgrade Principles. That is the short title and sufficient for now. Principle 21 states: "Parliaments should identify or establish an appropriate parliamentary committee which will be the NHRI’s main point of contact within Parliament".

At European level, on Second Stage I mentioned that the Parliamentary Assembly of the Council of Europe had produced a report in May on a similar topic of improving co-operation between national human rights institutions and parliaments. I am pleased that the Bill includes many of the elements included in the report's resolution, which was adopted unanimously by the Parliamentary Assembly. Section 6 of the resolution states the assembly calls on national parliaments of Council of Europe member states to "set up, where it does not yet exist, a parliamentary committee responsible for human rights [and] equality". It is this committee with which the national human rights institutions has a formal relationship.

The Irish background to the proposals on foot of the Belgrade Principles and other international initiatives is that the Oireachtas Joint Committee on Justice, Defence and Equality met members of the IHREC designate in March to consider ways to ensure deeper engagement between the committee and the IHREC. One of the items we agreed to was to see whether there was a legislative basis for the engagement of the IHREC with committees, including a committee with specific responsibility for human rights oversight. Both amendments seek to ensure closer co-operation between our committee system and national human rights institutions to support parliamentary involvement in the oversight of human rights and proper integration of human rights obligations in law-making.

I have spoken with Senator Katherine Zappone and the Minister about this issue. We must encourage greater co-operation between Oireachtas joint committees and the new institution, but I am not sure if the best way to do it is through legislation. We have had that debate and I look forward to the Minister's response. In spirit, we agree with the principle that there be co-operation. Senator Katherine Zappone has spoken eloquently about our record in the Joint Committee on Justice, Defence and Equality in meeting the members designate of the commission.

I agree with the sentiments expressed by Senator Katherine Zappone and note that the amendment is also supported by Senator Jillian van Turnhout. My advice is that it is not appropriate to impose obligations such as these on the Oireachtas in primary legislation. Under Article 15.10 of the Constitution, the Houses of the Oireachtas regulate their internal affairs and this is done under Standing Orders. I recognise and appreciate some of the points made by Senator Katherine Zappone on this legislation. It is included in the legislation that a strategy statement and an annual report will be submitted directly to the Houses. It is being set up under the Paris Principles which call for strong engagement between the body and national parliaments. I would like to see the Oireachtas responding actively when these reports are received. It can be arbitrary as to which annual report is discussed by the committee and as such, it is not built into legislation. Generally, it is left to the discretion of the committee to call in the body after an annual report is presented. It varies depending on the committee's priorities and how important it thinks it is. Clearly, one wants reports and strategy statements coming from the commission to be discussed by the committee. The committee with responsibility for human rights and equality is the place where we expect the reports to be discussed.

I am happy to support the Senator in putting this request to the Committee on Procedure and Privileges. On that basis, perhaps we might try to progress the issue under Standing Orders. I cannot guarantee that it will be accepted, but it is the appropriate way to move forward, rather than by an amendment to the Bill. Given the differentiation between the work of the Houses of the Oireachtas and what we can include in legislation, I am advised it would not be the best way to deal with the amendment. I am happy to pursue the issue raised by Senator Katherine Zappone with the Committee on Procedure and Privileges and take the recommendation forward. Perhaps it is an innovative way in the Houses ensuring particular Bills, about which Members feel strongly, have substance in respect of Standing Orders.

I thank the Minister for her response and the incorporation into the Bill of the requirement that the strategy and annual report be laid before the Houses of the Oireachtas. This is a progression from the last Irish Human Rights Commission and a positive development. We were attempting to make it more interactive and dynamic. I hear the response of the Minister that it is not possible to do what we ask in the Bill. Perhaps it might be done under Standing Orders and I appreciate the willingness of the Minister to support us. Senator Ivana Bacik knows, being part of the Joint Committee on Justice, Defence and Equality, that we are looking at the possibility of doing this as a committee. If we make a move to specify our human rights obligations which may have something to do with the Irish Human Rights and Equality Commission, we would appreciate the support of the Minister. I accept what she says and thank her for her support in a different way.

Amendment, by leave, withdrawn.
Section 25 agreed to.
Sections 26 and 27 agreed to.
Amendment No. 4 not moved.
Section 28 agreed to.
Sections 29 and 30 agreed to.
SECTION 31
Government amendment No. 5:
In page 25, to delete line 17 and substitute the following:
“(4) A code of practice under section 56 of the Act of 1998 in operation immediately before the commencement of this section shall—
(a) remain in operation after such commencement, and
(b) be deemed to be an approved code of practice for the purposes of this section, and may be amended or revoked by order of the Minister.
(5) A code of practice standing approved under this section (including a code of practice to which subsection (4) applies) shall be admissible in evidence—
(a) in proceedings before a court, or
(b) in the case of proceedings under Part VII of the Act of 1998 or Part III of the Act of 2000, before the Labour Court, the Labour Relations Commission, the Employment Appeals Tribunal, the Director of the Equality Tribunal, or a rights commissioner.”.

This is a technical amendment which is being included for the sake of consistency with the approach adopted in the workplace relations Bill which is being worked on. It does not make any substantive change to the text from a strict legal perspective, but it spells out in detail what judicial notice shall be and its impact. On that basis, it makes the text more accessible and avoids any doubt about the intention. Put briefly, the intention is that the code of practice, once signed into law by the Minister of the day, can be relied upon by employers or employees or any group of the public as the definitive guide on how to deal with a particular issue or stay out of trouble and can be relied upon in court if a dispute arises on the issue. I commend the amendment to the House. It refers to the court and takes into account court proceedings. It can be used in court proceedings and spells out the meaning of the original text.

Amendment agreed to.
Section 31, as amended, agreed to.
Sections 32 to 41, inclusive, agreed to.
SECTION 42

I move amendment No. 6:

In page 34, between lines 19 and 20, to insert the following:

“(5) Where the Commission considers that in any public body there is evidence of a systematic failure to comply with human rights or equality of treatment obligations, the Commission may invite the public body to—

(a) carry out an equality and human rights review in relation to that public body, or

(b) prepare and implement an equality and human rights action plan in respect of that body, or both.

(6) The Commission may, if it thinks it appropriate, itself -

(a) carry out an equality and human rights review,

(b) prepare an equality and human rights action plan.

(7) An equality and human rights review or equality and human rights action plan may relate to -

(a) equality of opportunity or human rights generally, or

(b) a particular aspect of human rights or discrimination, within a public body.

(8) Where an equality and human rights review or equality and human rights action plan relates to matters that are covered by -

(a) the Act of 1998,

(b) the Act of 2000, and

(c) human rights as defined under section 29,

the review or action plan, as the case may be, shall deal separately with those matters and each part of the review or plan, as the case may be, shall be treated as a separate equality and human rights review plan or equality and human rights action plan, as the case may be.”.

I will begin by outlining the importance of equality reviews of organisations and the potential impact of integrating these with a human rights review of the same organisations. Then I will outline our rationale for placing the amendment within section 42, which deals with public bodies, rather than the more obvious section 32, which deals with equality reviews and equality action plans.

Equality reviews are a potentially significant tool for embedding good practice in organisations. They go beyond strict compliance with the law to securing or even coaxing equality of opportunity. We believe that combined with a human rights review, the mechanism could provide a means of building good practice, particularly in respect of proposed public sector duty, as covered in section 42. More generally, it would enable the commission to develop an integrated approach to the human rights and equality strands of its mandate. I referred to the importance of this on Second Stage. Equinet, the European Network for Equality Bodies, has published research on mergers between equality and human rights bodies. The network noted in its research that in some instances mergers of equality and human rights bodies have resulted in a near invisibility of work in one area. The network concludes that equality and human rights mandates must be clear and linked and that a merged body should have the capacity and powers to undertake a multidimensional approach to issues and initiatives.

The Bill affords us an opportunity to secure an integrated approach to the human rights and equality strands of the commission's work. The Minister is aware, as are all of us, that the Equality Authority has built up a considerable body of good practice and guidance on the equality reviews and action plans. Again, as we are aware, reviews are a feasible alternative to the more protracted option of undertaking an inquiry. This good practice can be drawn on and integrated with a human rights review. That is the general rationale in respect of incorporating a human rights review with an equality review.

I will outline the reasoning for the placement of the amendment. Since human rights, as defined in section 29, does not for the most part impose direct obligation on private entities, it would not be possible, although it might be desirable, in the context of how human rights are defined under section 29, which applies to section 32, to suggest that a human rights review is conducted along with an equality review, as outlined in section 32, because that section applies to the private sphere. Instead, we are proposing that section 42, relating to the public duty function of the Irish Human Rights Commission, is amended to include the practice of carrying out an equality and human rights review in respect of a public body. It is fantastic and a progressive move that this element is in the Bill. We suggest the trigger for such an integrated review should be set at the level, to use the language of the amendment, of evidence of a systemic failure of the public body to comply with human rights or equality of treatment obligations. In this case, evidence would refer to the commission having a reasonable basis for believing that there is a systems failure with regard to human rights and equality obligations. If the commission has reason to believe this is the case, it may invite the public body to carry out an equality and human rights review and prepare and implement an equality and human rights action plan. It would be terrific to see the new body developing this new practice and we believe it is an excellent opportunity to integrate the two strands.

The amendment proposes that the commission may, if it deems it appropriate, carry out the review and prepare an action plan. The amendment describes what such a review and action plan relates to and adopts the same language as section 32 with regard to equality reviews for private entities.

Senator van Turnhout is next.

I totally support everything Senator Zappone has said.

I thought you had indicated since your name was on the amendment.

The first point to note about the legislation - I realise this is different to what Senator Zappone is suggesting - is that section 35 makes reference to the ability the commission has in respect of inquiries. It is worth considering this as one reference point in respect of the serious powers the commission will have. The commission, either of its own volition or, if requested by the Minister, may conduct an inquiry if it is considered by the commission that there is a body, public or otherwise, suspected of a serious violation of human rights or equality of treatment obligations, or where there is a violation of or systemic failure to comply with human rights or equality of treatment obligations. That is an important power already in the legislation and it should form part of the context when we reflect on the substance of Senator Zappone's amendment.

Section 42 introduces a positive duty on public bodies to have due regard to human rights and equality and reflects this commitment in Government for National Recovery 2011-2016 which states, "We will require all public bodies to take due note of equality and human rights in carrying out their functions". I understand the point Senator Zappone is making with the amendment. I am keen to work through my thinking on the matter and any suggestion that I make in respect of how to take this forward.

The commission will assist public bodies to comply with the positive duty by producing guidelines and codes of practice as outlined in section 31. This is an important interaction the commission can have with public bodies. I offer one example from the day before yesterday which was high-profile in nature. It relates to the absolute need for public bodies to develop the cultural competence to engage with members of the new communities who have come to Ireland in the past ten or 15 years, particularly those who have most difficulty in engaging with authority figures, perhaps, or who are otherwise vulnerable. I am referring to the report I published by Ms Emily Logan, under section 42 of the Garda Síochána Act, into the events surrounding the taking of two young Roma children from the care of their parents.

At the launch of the report on Tuesday I made the point that members of An Garda Síochána carry out important and difficult duties. Often, they have to make hard decisions in real-time, frequently without access to perfect information. The report has found that well-intentioned gardaí acting in what they believed to be the best interests of the children concerned made the wrong decision on the day. Unfortunately, these wrong decisions had a very distressing outcome for the families concerned. I apologised on behalf of the State and the acting Garda Commissioner made her apology, as did the Taoiseach, for these events. The report found the fact that the families concerned were members of the Roma community played a part in the decision-making process. Specifically, the report found that while there may have been other factors which informed the Garda actions, the fact that the families were Roma was a significant factor in these events.

It is important to note that the report found no evidence, through the examination of these two cases, of ethnic profiling at a systemic level in the Garda. However, Ms Logan found that the actions of the gardaí involved in these cases on the day conformed to the definition of ethnic profiling. The report has not found that the gardaí involved were motivated by conscious racism. Indeed Ms Logan was at pains to point out that in respect of the Tallaght case the report highlights the Garda officer's extensive commitment and contact with the local community, his community policing work and his voluntary engagement with minority communities.

The report has found - this is where I am linking it to Senator Zappone's amendment - that wherever there is a possibility that decision-making in respect of a marginalised community, such as the Roma, may be affected by negative stereotyping, An Garda Síochána and other bodies would have a positive duty to be especially vigilant to ensure that these stereotypes are challenged, identified and corrected. Of course, this applies to all public bodies that must develop such cultural competence to interact effectively with minority communities. One of the points made following the publication of the report was the importance of training and that if we do not put the proactive training in place there is a risk of this happening, even unconsciously. Training is very important as is consultation with, for example, the Roma community and Traveller interests.

I am establishing an implementation group to take the work and the recommendations forward. It is a cross-departmental group, involving consultation with other organisations.

This brings me to the positive duty provision in the Bill and to the Senator's suggestion for its improvement. That is a very good example of the type of work that must be done. The idea in section 42, simply put, is to put the positive duty on public bodies to conduct their business in a manner that is consistent with individual human rights to reflect the commitment contained in the current programme for Government. I believe the commission will have a very important role in the development of this concept, so it is meaningful in terms of developing and promoting equality in human rights across the public sector. There is huge potential for this type of work to be integrated more systematically than it has been in the past.

As I said, training will be an important element. We should recognise the work the Irish Human Rights Commission already does in respect of training. The civil and public service has had tailored training. The members of An Garda Síochána have had some training, as have members of the Irish Prison Service, local authority officials and civil servants. This should be ongoing. Given that there are new recruits and changes of personnel, there is a need for ongoing training and the report that was published yesterday found that even though particular gardaí were doing a great deal of specific work with the communities, they may not have had that specific training.

There is potential in the legislation to use the positive duty function to persuade and promote best practice by highlighting good examples to which other bodies could aspire. The report yesterday made it clear that we must do this work. One of the points on which I wish to elaborate is how much work has been done. The potential here is to see the Irish Human Rights and Equality Commission working in partnership with Departments and other relevant statutory bodies to ensure that the potential contained in this provision is developed to the full.

I have given that long background context because I understand the Senator's thinking. I am concerned about part of the proposed amendment relating to the imposition of a review or action plan in subsection (7). What must happen more than anything for genuine reform to take place is that the senior management of the organisation must take ownership of the process. It is very much about persuasion and support. The commission is well placed, once it has developed a good working relationship with Oireachtas committees, to address any instances where a public body refuses a request or presents a review or action plan that is inadequate. I do not believe the CEO of any of the public bodies we are discussing would wish to have to appear before an Oireachtas committee to explain why he or she had not done this type of training or were not fulfilling the obligations that are envisaged under the legislation. They would not wish to be in that position.

Part of the amendment is also suggesting that the commission might work with a public body to identify deficiencies and to look at areas that might require more attention and support it in undertaking a review or putting an action plan in place. That is something I would like to consider. I do not believe it is a power that should be used routinely, but strategically to ensure there is learning and that work can be done in a collaborative way. For example, if there was an organisation or public body where problems were emerging in this area and it was not doing this work, the commission could work with it.

There is already the power of inquiries, and there is the routine work that must be done. The Senator appears to be suggesting something that is somewhere in between. Clearly, it cannot have the same power as the inquiries, which is dealt with in a different section. My suggestion is that we do further work on this amendment - there are some drafting issues with getting this right - so we do not move into the territory of inquiries. We can return to it on Report Stage and suggest a revised text, if that is possible and I hope it will be. I will see if I can return with a formulation that captures what the Senator is suggesting but is not moving into the territory surrounding inquiries, which is already dealt with.

I thank the Minister for her fulsome response. It was very helpful and necessary. The report the Minister published provides a brilliant example of the type of practice we are suggesting. A similar type of practice could be developed. The Minister referred to the report and I commend her on its publication, the way she responded to it, the public apology and the swiftness with which she dealt with it. It is very heartening and many other people felt that way too.

The Minister's response to the amendment is very much in tune with what we were trying to do, which is to pitch it somewhere in between. If there are some technical difficulties in that regard, it would be wonderful if the Minister took the opportunity to look at those and return with a suggestion of something better from a technical perspective that would still incorporate the substance of what we are suggesting. I appreciate her recommendation.

We reserve the right to table it again on Report Stage.

The matter will be dealt with on Report Stage as the Minister has suggested.

Amendment, by leave, withdrawn.
Question proposed: "That section 42 stand part of the Bill."

I agree with the Minister and Senator Zappone. There is the other aspect to imposing these requirements regarding the positive duty. Let us make it a dialogue going both ways. There is a positive duty on public bodies to have regard to human rights. I would accentuate the positive. We received a briefing recently from An Garda Síochána and the garda giving the briefing to Deputies and Senators had been in Serbia. He had fantastic expertise on how people of different cultures and races would get on together. We also have the expertise of our peacekeepers who have kept the peace in Cyprus and other countries.

With regard to public bodies that are funded by the Exchequer, sports bodies have done a huge amount to give racism the boot and so forth. This is a two-way thing, rather than holding inquiries or imposing duties on people. Many people are doing really good work in the Army, the Garda and in sports bodies in the public sector. Let us have some of that come to the surface because perhaps we are better at this than the newspapers sometimes lead us to believe. Many people in Ireland have experience of dealing with interracial and intercultural matters and they are pretty good at it. It makes society so much richer for us all.

Section 42 is a two-way process, with many good things happening. That is to be commended and it is in the spirit of what Senator Zappone and the Minister have just said.

Recognising the work being done by bodies is a point we ought to be making here. Obviously, when there is a report such as that on the investigation carried out by the Ombudsman for Children one is highlighting the deficiencies, the areas that need improvement and why what happened took place. However, it is very relevant to point out as well, and I was very conscious of this as the former Minister for Children and Youth Affairs, the huge amount of work the Garda has done regarding child protection. Many new initiatives have been taken, much training has been done and new sections have been developed to deal with cases, such as sexual abuse cases, that come to the attention of the Garda. Equally, the sports bodies have done a huge amount of work in respect of better practices, codes of conduct, investigations and taking action, and responding to guidelines such as Children First.

The Senator provided an example in respect of sporting bodies and the work they are doing to tackle racism. He is absolutely correct to state that a great deal of that work sometimes occurs below the radar. We tend to hear more about the gaps and the deficiencies. His point regarding the fact that there has been a sea change in Ireland in respect of equality and human rights in recent decades is well made. It must be stated that we had a great deal of catching up to do and there is no room for us to be complacent. However, huge strides have been made and, as stated on a previous occasion, we must pay tribute to those who have taken the lead in respect of this matter, including the Equality Authority, the Human Rights Commission and individuals such as Senator Zappone and others.

The Minister will be aware that I and many other Senators have continually raised the issue of direct provision in the House. There are many who feel that the human rights of those in direct provision have been transgressed. A former holder of the position of Ombudsman raised the issue of the oversight of the direct provision system and stated that she wanted the Ombudsman (Amendment) Act to be extended to include those in direct provision as a result of the fact that such individuals are of the view that there is no independent mechanism available to them in the context of making complaints, etc.

Will the Minister clarify whether the new commission will be responsible for overseeing the direct provision system? It must be remembered that the system in question has no statutory basis. The system does have a legal basis in that the Government decided to establish it but there is no regulatory framework in respect of it. The Irish Refugee Council and other groups have raised serious concerns with regard to what is happening in some direct provision centres. In light of the fact that she previously served as Minister for Children and Youth Affairs, the Minister will be aware that people were raising concerns in respect of children being raised within a system which was only designed to obtain for a six-month period while people were accommodated in the country. There are children aged between seven and nine years of age who have been living within the system for their entire lives. I would like to discuss this matter at length with the Minister on another occasion. Perhaps now, however, she might clarify the role the new commission will play in respect of the direct provision system.

The points the Senator makes are particularly relevant to the immigration and residency legislation and the work that needs to be done on that. The way to address some of the issues relating to direct provision is by examining the option of the single procedure. Ireland does not have such a procedure and it is out of line with every other European country as a result. One of the greatest concerns in respect of direct provision is the length of time families spend within the system. The best way to deal with that is to ensure that we have the kind of process which works in a timely and effective manner and which does not put families in the position to which the Senator refers.

I would beg to differ but I will not discuss the matter in detail now. There are inherent difficulties with the system of direct provision as it is set up. I refer to the fact that it is a privatised system and that there is lack of oversight in respect of it. There are many issues which arise in the context of direct provision but we will not discuss them now because they are not particularly relevant to this debate. Will the Minister indicate what type of role the Irish Human Rights and Equality Commission might play in the context of direct provision?

It is clearly spelled out in the Bill that the commission will be able to comment on and make recommendations in respect of legislation. However, it will not be able to take up the cases of individuals who find themselves in the circumstances to which the Senator refers.

Question put and agreed to.
Sections 43 to 55, inclusive, agreed to.
Schedules 1 to 4, inclusive, agreed to.
TITLE
Government amendment No. 7:
In page 5, line 10, after “body;” where it secondly occurs to insert the following:
“to provide that the said body is the body designated for the purposes of Directive 2014/54/EU of the European Parliament and of the Council of 16 April 2014 on measures facilitating the exercise of rights conferred on workers in the context of freedom of movement for workers;”.
Amendment agreed to.
Title, as amended, agreed to.
Bill reported with amendments.

When is it proposed to take Report Stage?

On Tuesday next.

Report Stage ordered for Tuesday, 8 July 2014.
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