Vol. 233 No. 3
I welcome the Minister for Justice and Equality, Deputy Frances Fitzgerald.
Before we commence, I remind Senators that a Senator may speak only once on Report Stage, except the proposer of an amendment who may reply to the discussion on the amendment. Also on Report Stage, each amendment must be seconded. Amendment No. 1 is a Government amendment which arises out of committee proceedings. Amendments Nos. 1 to 5, inclusive, are related and may be discussed together. Is that agreed? Agreed.
This was originally Senators Zappone and van Turnhout's idea and it is a good one. I am delighted we were able to agree on a revised text for discussion today, following our talk on this topic on Committee Stage.
The proposed amendment adds something valuable to section 42, which itself introduces 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 the positive duty, including by producing guidelines and codes of practice as outlined in section 31, and, if we accept this amendment, it will, in situations where it is justified and reasonable to do so, have the power to invite a public body to undertake a review or develop and implement an action plan in regard to a failure by that public body to comply with its statutory human rights or equal treatment obligations. This is a group of five amendments, because there are consequential changes and a cross-reference to adapt, but the essential point is set out in amendment No. 3.
There are two substantive points of difference with the proposed amendment we previously discussed on Committee Stage and I will put on the record the rationale for these two differences and set the proposed new provision in the context of its relationship with the power of inquiry in section 35.
The first point of variation is in regard to allowing the commission to impose a review or action plan on a public body. As I said previously, that will not quite work in practice because for genuine reform to take root, the senior management of an organisation needs to take ownership of the process. It is really about persuasion and support. Again, I repeat the point that the commission is well-placed, once it has developed a good working relationship with Oireachtas committees, to address any instances in which a public body refuses a request or presents a review or action plan that is inadequate. A Minister or a CEO will not want to be in a position of explaining to the Oireachtas why a particular public body took a stand against complying with its statutory obligations. For a CEO to have to explain why the body refused to develop a strategy to address real deficiencies in the way to meet its human rights and equality rights obligations would be a very uncomfortable and an unlikely position in which to put himself or herself but, otherwise, the idea that the commission might work with a public body to address identified deficiencies and areas that need attention and invite it and support it in undertaking a review or putting an action plan in place is a very useful addition to the Bill. Again, I thank Senators Zappone and van Turnhout whose idea this was and which was supported by other Senators.
The second point of difference is that we are looking at evidence of a failure by a public body to meet its human rights and equality of treatment obligations rather than evidence of a systemic failure. The rationale for this change involves me linking back to something I discussed previously, namely, the inquiry provision. The inquiry provision in section 35 allows the commission to launch an inquiry if it has evidence of "(a) a serious violation of human rights or equality of treatment obligations in respect of a person or class of persons, or (b) a systemic failure to comply with human rights or equality of treatment obligations; and (c) the matter is of grave public concern".
The new mechanism we are creating with this amendment should logically fit in before one comes to contemplating use of the inquiry function, and I addressed this on the last occasion we discussed it. It has the potential to allow the commission and public bodies to work together in a positive way to solve problems before they become crisis situations. That being so, logically, we do not need to wait until the matter is of grave public concern and can omit this element. However, if we have evidence of a serious violation of individual rights, then the commission has the option of taking a case to court or assisting persons to take cases as appropriate, so we do not need paragraph (a) of the inquiry function.
We are left then with paragraph (b) which states "a systemic failure to comply with human rights or equality of treatment obligations". However, we also want to make this an attractive option for both the commission and a public body. We propose to do that by not requiring the commission to make a statement that it has found evidence of a systemic failure. That would be a very serious finding and public bodies might feel obliged to dispute it. If we take that element out of the equation and merely require evidence of a failure, there might be less inclination in a public body to object and public bodies might find it easier to accept the commission's invitation and its offer to provide assistance as a positive thing, which is what we want to see. We want organisations and bodies working with the commission to reach ever higher standards in regard to human rights.
As we discussed on Committee Stage, the assistance the commission can offer includes training and, as we know, both the existing bodies - the Equality Authority and the Human Rights Commission - have been active and successful in this area.
I should stress that the mechanism we are creating by this amendment would not be a power to be used routinely, with which I think Senators will agree. It should be used strategically to address, in what I would call a learning and collaborative way, real problems and, in so doing, interrupt larger ones developing down the road. The commission can use this mechanism to help public sector bodies and front-line public servants do a better job. The commission will have to put its own internal processes in place to be satisfied that it has sufficient evidence. It is important the commission has its own rationale for going down this route and has reasons to believe there has been a failure before it involves this new mechanism.
As a State agency itself, the commission is obliged to act reasonably and judiciously and would need, for example, to share that evidence it feels it has and the rationale for its conclusion with the public body concerned and take account of whatever representations the public body might make to it. I hope Senators support this amendment. I commend the amendments to the House.
I welcome the Minister and apologise for being a few minutes late. As I understand it, we only have one opportunity to speak on Report Stage, so I want to start with a preface to my remarks on the amendment.
I have found it to be a very special privilege, as part of my Seanad work in this Chamber and as a member of the Oireachtas Joint Committee on Justice, Equality and Defence, to be involved in the shaping of law which will establish the Irish Human Rights and Equality Commission, a merged body which brings together the archives of the Irish Human Rights Commission and the Equality Authority - I know of the Minister's previous involvement - their institutional memories and also the heritage of extraordinary public service commitment on the part of all the former staff, members of each body, former board members and commissioners. I want to put on the record my personal gratitude to Dr. Maurice Manning and Mr. Niall Crowley, in particular.
I am aware, as I know the Minister is, that the international human rights sector, including the Office of the United Nations High Commissioner for Human Rights and, closer to home, the European Group of National Human Rights Institutions, have watched very closely what we have done with this Bill and how we are completing it. They have seen that the Government has engaged strenuously with civil society groups and individual human rights scholars and experts. I want to express particular gratitude to the Irish Council for Civil Liberties, Ms Judy Walsh of the school of social justice in UCD and the Equality and Rights Alliance.
I am also grateful to the Irish Human Rights Commission and the Equality Authority as well as the designate members of Irish Human Rights and Equality Commission, IHREC, for their contributions. It is because of these robust and democratic changes to the Bill that the new body has a solid legal framework to achieve "A" status with regard to the Paris principles. This founding legislation provides IHREC, as we fondly describe the new commission, with a host of appropriate functions to ensure its potential will have a wide and independent reach.
This brings me to the amendment which proposes the addition of a substantive dimension to the Irish Human Rights and Equality Commission's function with regard to the ways it can support bodies to have regard to eliminating discrimination and promoting and protecting the human rights and equal opportunities of its staff and the people it serves. The Minister, in her reflections on the substance of the amendment, provided a comprehensive insight into what the commission will be able to do and the potential impact of its actions in this regard.
I will add a few words on our efforts in respect of the amendment in its original form. In addition to the commission having an opportunity to provide guidance and encouragement to public bodies through guidelines or codes of practice, the amendment proposes that it can use this new mechanism to invite the public body in question to undertake an equality and human rights review or prepare an equality and human rights action in support of the performance of its public duty. As stated in the amendment, the trigger for the use of this tool is when the commission considers that there is evidence of a failure by the public body to perform its functions in a manner consistent with public duty. The original amendment used the words "systemic failure". As the Minister outlined, the removal of the word "systemic" increases the potential for using this mechanism, enhances the independence of the commission in its use and expresses trust in the commission that it will come to appropriate decisions on the use of this mechanism. As the Minister stated, it will not act always or often but when it needs to do so. The text of the amendment reflects a positive change to the original wording.
I emphasised previously that the amendment provides the commission with a tool to secure an integrated approach and set of practices to the human rights and equality strands of its work. If used strategically and well, it may also avoid the need for an inquiry down the track.
As the Minister is aware, we proposed an earlier version of the amendment on Committee Stage. We express our gratitude to her and her officials for accepting the principle behind our amendment and, in doing so, we also acknowledge the stamp of her leadership on the Bill.
As Independent Senators, we are pleased to support the amended version of our original idea. I and other Senators are aware, as is the Minister, that the Irish Human Rights and Equality Commission-designate is recruiting a chief commissioner and new director. They will join the outstanding group of IHREC commissioners-designate and staff. Our job, as law-makers, is almost complete and it is my hope that this legislation will be a good base upon which the commission undertakes the challenge of merging two cultures into one and utilising old and new powers to protect and promote human rights and equality in Ireland.
The Minister is very welcome, as always. I echo the words of Senator Zappone that it is an honour to play even a small part in shaping this legislation on our equality and human rights framework. I thank Senator Zappone, who has great expertise in the field of human rights and equality law, for having conveyed the rationale behind the amendment so articulately and convincingly on Committee Stage and again today.
I thank the Minister and her officials for recognising the importance and added value of the amendment Senator Zappone and I tabled on Committee Stage last Thursday. It is difficult to argue against the added value of including the proposed provision. As the Minister stated, the commission, where it deems it appropriate do so, may act strategically and carry out an equality and human rights review of a public body, requiring same to prepare and implement an equality and human rights action plan. This will impose a positive duty on public bodies, which is something on which we all agree.
I am very honoured to support the amendment. I also thank Senator Zappone, the departmental officials involved and the Minister for her generosity in taking on board our arguments. The version before us is good and I am pleased to support it and see the Bill passed. I acknowledge the leadership and sense of urgency shown by the Minister on this legislation.
Cuirim fáilte roimh an Aire. Unfortunately, I am unable to show the same vigour as my colleagues in support of the Bill. Sinn Féin has raised concerns that the Bill unpicks the Good Friday Agreement and dilutes the measures introduced under the Agreement. We continue to be concerned that the Bill marks a stepping back from the commitments given under the Good Friday Agreement. We hope the Government will advance these commitments and a number of outstanding issues arising from them. That is not, however, the issue being addressed in the amendment, which I support.
I welcome the manner in which the Minister has handled the amendment. This is not an experience with which we are familiar in dealing with previous justice Bills. Many Ministers could learn from the Minister's constructive decision to accept the points being made by Senator Zappone and others on Committee Stage. While that is welcome, I am disappointed my amendment has been ruled out of order and the Minister was not in a position to take on board our opinions. Perhaps we will have our day when we introduce other constructive amendments on justice Bills. In supporting the amendment we are, however, disappointed with the Bill overall for the reasons I have outlined.
I thank the Minister for her engagement on this Bill. I reiterate the point made by Senators Zappone and van Turnhout. It is always a proud moment when a Senator has an amendment accepted. I have had this experience on a small number of occasions. It is a measure of a good and engaged Minister that she was willing to take amendments, reconstruct them and incorporate the principles involved in a Government amendment that is then shared with the Independent Senators. I commend her as it strengthens the legislative process when Ministers are willing to act in this manner.
We all appreciate the engagement shown by the Minister on this amendment and another amendment tabled by Senators Zappone and van Turnhout on Committee Stage related to the referral to the joint committee. While the amendment was not appropriate, we all appreciated that the principle was incorporated in a different amendment.
I echo the comments of previous speakers. The purpose of the Seanad is to improve legislation. If other Ministers were to adopt a similar position, it would improve the work of the House and legislation and, as such, enhance people's lives. It is fantastic that the Minister accepted a Committee Stage amendment in principle before proceeding to foolproof and reconstruct it. Her actions augur well for the future.
I thank Senators for their positive approach to the amendment. I am grateful we engaged on the issue because the amendment will strengthen the Bill and the implementation of human rights and assist the work of the new commission, all of which are positive. As I stated, having been on the board of the former Employment Equality Agency and a member of the second Commission on the Status of Women, this type of strengthening of human rights institutions, in so far as it can be done, is very important. That is what this process has been about. I pay tribute to the officials in my Department and the Attorney General who pulled out all the stops to ensure we were in a position to return to the House with an amendment.
It is not always possible to have this amount of work done in a short space of time and get the amendment to this stage. I was very pleased to be able to do that. I pay particular tribute to the staff of the Department of Justice and Equality for the work they have done on this. I also take this opportunity to thank Senators for their interest in this Bill and the work they have done on it over a long period.
Votáil.
Will the Senators claiming a division please rise?
As fewer than five Members have risen I declare the question carried. In accordance with Standing Order 61 the names of the Senators dissenting will be recorded in the Journal of the Proceedings of the Seanad.
