Léim ar aghaidh chuig an bpríomhábhar

Dáil Éireann díospóireacht -
Thursday, 25 Nov 1999

Vol. 511 No. 5

Human Rights Commission Bill, 1999: Second Stage.

I move: "That the Bill be now read a Second Time."

The Bill has its origins in the Agreement reached in the multi-party negotiations on Northern Ireland – the Good Friday Agreement. Under the section of the Agreement headed "Rights, Safeguards, and Equality of Opportunity", the Government is obliged to take a number of comparable steps to further strengthen the protection of human rights in this jurisdiction. One of those steps is the establishment of a Human Rights Commission with a mandate and remit equivalent to the Northern Ireland Human Rights Commission, which commenced operation on 1 March 1999. The purpose of the Bill before the House, therefore, is to give effect to that commitment and to provide for the setting up of a Human Rights Commission in the State which will, as the Taoiseach stated, be a model of its kind and which will set, rather than follow, standards of best international practice in this field.

The establishment of human rights commissions in various countries is a relatively modern development. As it happens, the Northern Ireland commission is the first of its kind in western Europe, although similar bodies exist in other parts of the world, notably in Canada, Mexico, South Africa, India, Indonesia, the Philippines, Australia and New Zealand. It is easy to think of such institutions in the context of emerging democracies, particularly in countries where there has been a history of civil unrest and social upheaval as in some south African countries, including South Africa itself. In this context, human rights commissions play an important role in the development of a human rights ethos which is particularly significant in societies which are deeply divided along political, religious, racial or cultural lines.

However, human rights commissions are also part of the settled landscape in countries with well-established and stable democracies, such as Canada, Australia and New Zealand. It is now well accepted in most common law countries that human rights commissions with a specific role to monitor and assist in the promotion and protection of human rights are necessary institutions, alongside ombudsmen and anti-discrimination and pro-equality agencies.

In framing the proposals which essentially led to the drawing up of the Good Friday Agreement, the question of providing for human rights commissions in both parts of the island was of particular relevance. The drafters had a considerable body of background work and development to draw upon. The idea that states should create official human rights commissions with powers to act independently of Government was considered at international level and had been given support by the principles relating to the status of national institutions – the Paris Principles – adopted at the first international workshop on national institutions in Paris, 1991, and by the UN General Assembly in 1993. These principles leave a good deal of discretion to states with regard to the precise competence and powers of human rights commissions, but underscore the requirement that they should have as broad a mandate as possible "to promote and protect human rights", including the power to make recommendations to Government and to investigate and report on general and specific violations. They also emphasise that such commissions should be independent of Government, should be pluralist and representative of society as a whole and should have adequate funding so as not to be subject to any Government or financial control which might affect that independence.

Closer to home, further attention was devoted to the establishment of human rights commissions in the Forum for Peace and Reconciliation, which commissioned and published a consultancy study on the protection of human rights in the context of peace and reconciliation in Ireland. In its 1996 report, the Constitution Review Group also recommended that a human rights commission should be established in the State to maintain an overview of the extent to which human rights are protected at constitutional and legal levels, to assess the adequacy of this protection and to make recommendations to Government for the better protection of these rights, as appropriate.

It was also the preferred view of the review group that such a commission should have a legislative rather than a constitutional status, at least in the shorter term, but that if it performed well over a number of years, the desirability of affording it such a status should be further considered. The report also suggested that the commission might engage in empirical and other research, and perhaps consult with the public before making any specific recommendations for change. Significantly, the report did not go so far as to recommend that the commission should have an adjudicative role, suggesting instead that complaints of human rights violations should continue to be determined by the courts. The group also felt that consideration should be given to permitting the commission to take constitutional actions on behalf of individual citizens or the public at large, in appropriate circumstances, and that it should have the power to act as amicus curiae– expert adviser to a court – in constitutional cases involving human rights issues. The group did not envisage that the commission would have the power to vet proposed legislation for compatibility with the Constitution, a role currently fulfilled by the Attorney General and his office.

That is the background to the proposals which are contained in the Human Rights Commission Bill, 1999. However, the proposals in the Bill also draw on a widespread consultation process. The general scheme of the Bill was laid before the Oireachtas and was considered in turn by the All-party Committee on the Constitution and the Joint Committee on Justice, Equality and Women's Rights. The text of the scheme was also considered in detail by a number of groups and non-governmental organisations operating in the human rights area generally. I wish to acknowledge the valuable work and contributions of these bodies in making submissions to my Department and meeting with officials to discuss and express their views on the proposals. Chief among those groups were the free legal advice centres, the Irish Council of Civil Liberties, the Combat Poverty Agency, Amnesty International, the Pavee Point Travellers Centre, the National Consultative Committee on Racism and lnterculturalism and the Irish Commission for Prisoners Overseas. We have also taken account of the views of the UN High Commissioner for Human Rights as well as valuable contacts with the special adviser for national human rights institutions in that office, and distinguished members of the Australian and New Zealand Human Rights Commissions.

Our proposals and those which culminated in the setting up of the Northern Ireland Human Rights Commission under the relevant provisions of the Northern Ireland Act, 1998, were also discussed with our British and Northern Ireland counterparts. I acknowledge the expert help and generous assistance of one of the senior British officials involved in the area of equality and human rights in the context of Northern Ireland, Mr. Tony Beeton, who was so tragically killed in the recent Paddington rail crash and to extend my condolences to his wife and family.

Given the Government's commitment to equivalence with the Northern Ireland Human Rights Commission, I would like to refer briefly to the legislative provisions outlined in the Northern Ireland Act, 1998, which relate to it. The Northern Ireland commission, which came into existence on 1 March 1999, has ten members, including a chief commissioner, all of whom have been appointed initially for a term of three years, and it is expressed to be representative of the community in Northern Ireland. It is independent of Government and has a vastly extended role beyond that exercised by the former Standing Advisory Committee on Human Rights, the body which preceded it. For the information of the House, the chief commissioner of the Northern Ireland commission is Professor Brice Dickson, formerly a professor of law at the University of Ulster. The nine other commissioners who work part time for the commission are: Ms Christine Bell, professor of law-elect at Magee College, University of Ulster, Ms Margaret Ann Dinsmore, QC, practising barrister, Mr. Tom Donnelly, MBE, a businessman, the Rev. Harold Good, a Methodist minister, Professor Tom Hadden, professor of law at Queen's University, Ms Patricia Kelly, director of the Children's Law Centre, Ms Angela Hegarty, lecturer in law at Magee College, University of Ulster, Ms lnez McCormack, regional secretary of UNISON and president of ICTU, and Mr. Frank McGuinness, Northern Ireland director of Trócaire.

The functions of the Northern Ireland commission are to keep under review the adequacy and effectiveness in Northern Ireland of law and practice relating to human rights; to advise the Secretary of State and the executive committee of the Northern Ireland Assembly of legislative and other measures which ought to be taken to protect human rights; to advise the Northern Ireland Assembly whether a Bill is compatible with human rights; to provide advice for the Secretary of State on the scope for defining in Westminster legislation rights supplementary to those in the European Convention on Human Rights, such legislation when taken together with the European convention to be called a Bill of Rights for Northern Ireland; to promote understanding and awareness of the importance of human rights in Northern Ireland by, for example, undertaking, commissioning or otherwise assisting research and educational activities; to do all that it can to ensure the establishment of a joint committee with the Human Rights Commission in the State; and to make to the Secretary of State within two years such recommendations as the commission thinks fit for improving its effectiveness. In addition, the Northern Ireland commission has four important powers: to give assistance to individuals who apply to it for help in relation to proceedings which involve law or practice concerning the protection of human rights; to bring proceedings itself which involve law or practice concerning the protection of human rights; to conduct such investigations as it considers necessary or expedient for the purposes of exercising its other functions; and to publish its advice and the outcome of its research and investigations.

As will be seen, my proposals for a commission in this jurisdiction provide that it will have a mandate and remit at the very least equivalent to that of the Northern Ireland commission and in so doing fully meets the Government's commitment in this regard under the Agreement. I shall deal with this matter in greater detail later on.

At this point I will turn to the Bill and go through its principal features in a general way. Section 1 sets out the various definitions used in the Bill and is a common and unexceptional provision.

Section 2 defines "human rights" as the rights, liberties and freedoms conferred on or guaranteed to persons by the Constitution and any agreement, treaty or convention to which the State is a party. This means that the commission will not just be concerned with fundamental rights guaranteed by the Constitution, which are of considerable importance, but with those rights contained in all the agreements, treaties and conventions to which the State is a party. This gives the commission a very wide remit indeed and means that it can base its operations on a foundation which comprises not just the Convention on Human Rights but all other modern human rights norms. As an indication of just how wide the commission's remit will be, I have circulated for the information of Deputies a list of the human rights instruments to which the State is already a party and those which it expects to take on board in the near future.

Section 3 provides for the Minister to appoint a day to be the establishment day for the purposes of the Bill. Section 4 provides for the establishment of a Human Rights Commission which will be independent in the exercise of its functions. This is the statutory guarantee of that independence.

Section 5 provides that the commission will consist of a president and eight other members. The members, who will be appointed by the Government, will be selected on the basis of possessing such relevant experience, qualifications, training or expertise as in the opinion of the Government is appropriate having particular regard to the functions of the commission. Members will hold office for a period not exceeding five years and will be eligible for re-appointment for a further term not exceeding five years. The section also sets out the provisions to be followed in the event that a person who holds judicial office in the superior courts is appointed president of the commission. The Bill differs from the general scheme in this respect in that a judicial appointment for the presidency of the commission is now an option, not a requirement. Subsections (4) and (5) of this section are technical and consequential provisions in the event that the Government decides to appoint a judge as president of the commission.

The qualifying criteria applicable to the members of the commission are widely drawn so as to embrace the whole range of persons who may have experience in the area covered by the Human Rights Commission. In this regard, the Paris Principles, to which I have already referred, emphasise the importance of pluralism in the composition of human rights commissions. They suggest that representatives from non-governmental organisations, trade unions, professional organisations and trends in social and religious thought, and possibly parliamentary or Government officials, could be appointed to such bodies. In the case of the latter two categories their appointment would be in an advisory or observational capacity only. It is clear that the overriding consideration is that appointees should have strong human rights credentials and be persons of integrity, experience, imagination and commitment. It goes without saying that the Government intends to consult as widely as possible with interested organisations in the matter of potential nominees. The composition of the commission will be crucial to its credibility and ultimately its success. The Government will take great pains to ensure that it gets this right.

As further evidence of this, section 5(11) provides that the Government in making appointments under this section must have regard to the need to ensure that the membership of the commission includes both men and women and broadly reflects the nature of Irish society. I should, perhaps, say at this stage that it is not proposed to appoint Members of either House of the Oireachtas or of the European Parliament to the commission. First, the number of commissioners is relatively small given the range of duties that it will have to perform. Second, it would be necessary to give appointees in this category a limited role. There is a real possibility that membership of the commission could involve a possible conflict of interest with parliamentary work at home or abroad.

Section 6 provides that where the number of ordinary judges of the High Court or Supreme Court fails to be determined for the purpose of any enactment which makes provision with respect to the number of such judges, the operation of section 5(5) of the Bill, which provides that where a person who holds judicial office is appointed as president of the commission the number of ordinary judges may be exceeded by one, shall be taken account of in making that determination. This is a technical provision and is applicable only in the event that the Government decides to appoint a judge of the superior courts to be president of the commission. As I have already said, the Bill allows the Government to appoint the president of the commission from as wide a pool of candidates as possible.

Section 7 is in the usual format and provides that where a commission member, including the president, is nominated as a member of Seanad Éireann, elected as a member of either House of the Oireachtas or to the European Parliament, they will cease to be a member of the commission. In addition, a member of the commission will be disqualified from holding office if he or she is adjudged bankrupt or convicted on indictment and sentenced to imprisonment. The Government may dismiss a member of the commission if he or she has without reasonable excuse failed to discharge his or her function for a continuous period of three months, been convicted of a criminal offence, is unfit to carry out his or her function or for any other stated reason.

Section 8 deals with the functions of the Human Rights Commission and as such is the core provision in the Bill. In this regard, I propose to give the Human Rights Commission as wide a remit as possible in keeping with the Government's commitment to equivalence with the Northern Ireland Human Rights Commission as stipulated in the Good Friday Agreement. As I have already mentioned, my proposals are fully in keeping with the Government's obligations under the Agreement and as far as possible meet the criteria for national human rights institutions as set out in the Paris Principles.

The main functions of the commission will be to keep under review the adequacy and effectiveness of law and practice in the State relating to the protection of human rights, to consult national and international bodies as it sees fit, to make recommendations to Government either of its own volition or on request on measures to strengthen, protect and uphold human rights in the State, to promote understanding and awareness of the importance of human rights and for those purposes to undertake or sponsor research and educational activities, to conduct inquiries as it considers necessary or expedient, to prepare and publish reports on any research or inquiries conducted by it, to appear as amicus curiae on application to the High Court or the Supreme Court in proceedings before those courts that involve or concern human rights, to establish and participate in the joint North-South committee of representatives drawn from the commissions in both jurisdictions, to provide legal and other assistance and to institute proceedings for the purpose of obtaining relief of a declaratory or other nature in respect of any matter concerning the human rights of any person or class of persons.

For the purpose of conducting inquiries I am proposing to give the commission specific powers to obtain information and documents relevant to the matter being inquired into. This step is indicative of the Government's commitment to give the commission a powerful and independent pro-active role in relation to the defence of human rights. While the Northern Ireland Act gives the Northern Ireland commission powers of investigation, it does not yet have the ancillary power to compel witnesses to attend before it or produce books, documents or other evidence. However, I am sure this matter will receive further attention in the context of the two year review of the commission's work. In this respect, the requirement of equivalence for both commissions as set out in the Good Friday Agreement will be exceeded in this jurisdiction. However, as I have already indicated, I am of the view that the Agreement represents the minimum required. I shall set out these inquiry powers when I come to section 9.

I propose that the commission be given the role of amicus curiae in human rights litigation in constitutional cases in the superior courts. Amicus curiae means literally “a friend of the court”, and the provision will allow the commission to appear before a court in proceedings where the court may find the commission's knowledge and expertise useful. I propose to allow the commission to apply to the High Court or the Supreme Court for liberty to appear before the court. Such appearance, however, will always be at the discretion of the court.

In this regard, my thinking has been influenced by the comments of the Constitution Review Group in its 1996 report that consideration might be given to conferring such a role upon the commission. I have also noted that, while the legislation setting up the Northern Ireland commission does not specifically provide that it can intervene in human rights cases before the courts as an amicus curiae, the commission has interpreted its powers as meaning that it can prepare such cases.

Section 9 provides that the commission may conduct an inquiry at its own volition if it considers it necessary or expedient to do so for the purpose of the performance of any of its functions under section 8 or, subject to certain conditions, at the request of any person. The section also confers on the commission a specific power to require the production of documents or information, supported if necessary by a Circuit Court order, with necessary safeguards for legal professional privilege and incrimination. Provision is being made that the inquiry may be conducted in public or in private as the commission, at its discretion, considers appropriate.

The section also provides that the commission can decide not to conduct an inquiry, or discontinue an inquiry which has commenced where the matter concerned is trivial, vexatious or manifestly unfounded, the person making the request has an insufficient interest in the matter, or the matter concerned could be more appropriately dealt with by the institution of legal proceedings or the making of an application to a tribunal or other person in whom are vested powers to award redress or grant relief in respect of the matter.

A relevant consideration at this point is a complaint relating to discrimination or an issue of equality. I recently brought the provisions of the 1998 Employment Equality Act into operation, and the provisions of the Equal Status Bill should be enacted in the new year. The Equality Agency and the Office of the Director of Equality Investigations have extensive powers to deal with cases of this type. It makes no sense for the Human Rights Commission to conduct parallel inquiries in the same area. Similarly, where a disputed matter involves an area covered by the Ombudsman, the Information Commissioner, the Data Protection Commissioner or the Garda Síochána Complaints Board, the intention is that the Human Rights Commission will refer the applicant to the appropriate statutory agency.

Section 10 provides that a person can apply to the commission for legal or other assistance regarding proceedings involving law or practice relating to the protection of human rights. The assistance could be in the form of the provision of legal advice, legal representation or such other assistance as the commission deems appropriate. The commission can decide to provide assistance on the following grounds: that the matter raises a question of principle, that it would be unreasonable to expect the person to deal with the matter concerned without assistance because of its com plexity or for any other reason, or that there are special circumstances which make it appropriate for the commission to grant such assistance. The commission may decide not to grant assistance where the assistance sought could be obtained under existing legal aid schemes, or powers to award redress or grant relief in the matter to which the proceedings relate stand vested in any tribunal or other person and the matter could, in the opinion of the commission, be more effectively or conveniently dealt with by that tribunal or other person.

Section 11 provides that the commission may institute proceedings in any court of competent jurisdiction for the purpose of obtaining relief of a declaratory or other nature in respect of any matter concerning the human rights of any person or class of persons. For the purposes of this section, "human rights" is defined as the:

rights, liberties, and freedoms conferred on, or guaranteed to, persons by the Constitution and as the rights, liberties and freedoms conferred on, or guaranteed to, persons by any agreement, treaty or convention to which the State is a party and which has been given the force of law in the State or by a provision of any such agreement, treaty or convention which has been given such force.

As can be seen, for the purposes of this section it has been necessary to formulate a definition of human rights which is more restrictive than the definition set out in section 2. This is because declaratory relief can only be sought for provisions which have force of law in the State. In this respect, and as I have already mentioned in the case of the Convention on Human Rights, it is not sufficient for Ireland to be a party to an international instrument, we must also have incorporated the relevant provisions into our domestic law in accordance with our constitutional requirements. If, subsequent to the enactment of this Bill, we incorporate the European Convention on Human Rights into our law, the convention will then be covered by the definition in section 11 and, accordingly, the relevant provision in the convention may then be relied on in cases before the Irish courts.

Sections 12 and 13 provide that there will be a chief executive of the commission who will manage and control generally the staff, administration and business of the commission. The chief executive will be responsible to the commission for the performance of his or her functions and the implementation of the commission's policies. I regard this type of appointment as absolutely essential for the proper and efficient operation and day to day management of the commission. Section 14 provides that the chief executive will, whenever required to do so by the Committee of Public Accounts, give evidence on the financial transactions etc. of the commission. Section 15 provides that the chief executive will also attend before any other committee of the Oireachtas to give account for the general administration of the commission. The chief executive will not, however, be required to give account before a committee for any matter which is, has been or may in future be the subject of proceedings before a court or tribunal.

Section 16 provides for the keeping of accounts by the commission. Section 17 provides for the appointment of staff, and section 18 provides for the remuneration of such staff. Section 19 provides for the performance of the commission's functions by any member of staff duly authorised. Section 20 provides for the superannuation of staff. Section 21 provides for a seal of the commission. Section 22 provides for the payment of a grant to the commission. As a matter of administrative convenience and to comply with Government accounting instructions and procedures, it is proposed to channel the grant payable to the commission through the Minister for Justice, Equality and Law Reform. Section 23 provides for the commission to publish an annual report.

Section 24 provides for a review of the effectiveness of the commission within two years of establishment. There is a similar provision in the case of the Northern Ireland commission. It should be noted that the initiative in this regard is vested in the commission, not the Government. The purpose behind the provision is to allow any adjustment to be made in the provisions governing the commission's remit and functions in the light of a reasonable period of operation having elapsed.

Section 25 provides for the expenses incurred by the Minister in the administration of the Bill, as sanctioned by the Minister for Finance, to be paid out of moneys provided by the Oireachtas. Section 26 provides that the Bill may be cited as the Human Rights Commission Act, 1999.

The Bill I have set out is the product of a great deal of consideration and consultation. As I have already mentioned, it is a better Bill because of this. This is an appropriate point to comment on other separate, but related matters in this area of the Agreement where the Government is also obliged to take action. Chief among them is the introduction of measures to strengthen and underpin the constitutional protection of human rights, taking into account the work of the All-Party Committee on the Constitution and the report of the Constitution Review Group which was published in 1996. These proposals are to draw on the European Convention on Human Rights as well as other international legal instruments in the field of human rights. The question of incorporation of the convention into Irish law is to be further examined in this context. Obviously any change in the position of the convention will have an important bearing on the work of the Human Rights Commission. This matter has been the subject of an indepth study in my Department over the past year or so. A committee of officials from the relevant Departments, including the Attorney General's office, have considered the various options which may be open to us in this regard. The matter is a complex one, raising difficult constitutional, legal and technical questions.

The 1950 Convention on Human Rights drawn up by the Council of Europe may be regarded as one of the main foundation texts in international human rights law. The others are the UN Universal Declaration of Human Rights, 1948, the UN International Covenant on Civil and Political Rights, the UN International Covenant on Economic, Social and Cultural Rights, 1966, and the UN Convention on the Rights of the Child, 1989. In addition, there are many other treaties or conventions dealing with a wide range of issues, such as torture, discrimination against women or members of ethnic groups, as well as a large number of declarations and resolutions issued by the UN and the Council of Europe.

The nub of the matter is that while this State was one of the first countries to sign and ratify the convention almost 50 years ago and was also one of the first to allow its citizens the right of individual petition to the Court of Human Rights, the convention is law for Ireland only on the international plain. This means we are bound in international law to abide by the decisions of the court.

The Minister's time has concluded. Do Members wish the Minister to complete his speech?

Yes, he is very close to the end.

I thank the Acting Chairman and Members for allowing me to conclude.

The convention, however, for constitutional reasons, most notably connected with Article 15 which reserves the sole and exclusive power of making laws to the Oireachtas alone and Article 29 which provides that no international agreement shall be part of the law of the State, save as may be determined by the Oireachtas, is not actually part of the law of the State. Accordingly, its provisions cannot be pleaded before domestic courts and persons seeking remedies under its provisions must first exhaust all domestic legal remedies before then taking their case to the Court of Human Rights in Strasbourg. This can be a lengthy and expensive exercise.

In essence, the position can be summarised thus: the convention is law for Ireland, but not directly in Ireland. The effect of this is that decisions relating to the precise means by which the decision of the court is to be given effect are in the hands of the Government or the Oireachtas. Most commonly, this will take the form of amending legislation as, for instance, in the case of the repeal of certain provisions which criminalised homosexual conduct. Sometimes the change required can be of a lower order such as an amendment to administrative procedures or practices.

The arguments against direct incorporation of the convention in the text of the Constitution are cogently and persuasively set out in the 1996 report of the Constitution Review Group which noted that such a move would diminish some rights in the Constitution on personal liberty, equality before the law and the rights of children, as well as creating gaps in other areas, such as the right to jury trial and the guarantee that the State should not endow religion. The review group considered instead that it would be preferable to build on and improve the existing fundamental rights provisions of the Constitution, including, where necessary, liberally drawing on some of the convention's text for this purpose rather than opting for direct incorporation of the convention.

It will be clear from all of this that while the issues relating to the establishment of the Human Rights Commission and consideration of the question of incorporation of the Convention on Human Rights are related, they require separate and detailed consideration. That is the main reason it has not been possible to deal with both matters in the one Bill as the Labour Party Private Members' Bill proposes.

However, incorporation of the convention by means of legislation could still be an option, though this solution has its own difficulties which should not be minimised. My feeling in the matter is that it is difficult to justify a situation where we alone, out of 41 contracting states of the Council of Europe, have not incorporated the convention into our law in some shape or form. Other countries with constitutional difficulties similar to our own have found a means of doing so, including most recently the United Kingdom and Norway. As a result of the committee's work in the area and, as soon as I have completed the process of consulting with other Departments in the matter, I hope to bring proposals to the Government consistent with our obligations under the Agreement in this regard. The timing of the matter is appropriate as Ireland has just taken over the political leadership of the Council of Europe for the next six months for the sixth time since 1949.

The Agreement also obliges the Government to take action in a number of other human rights related areas and the Government has, as promised, ratified the Council of Europe Framework Convention on National Minorities. It has also implemented enhanced employment equality legislation through the Employment Equality Act, 1998, which I brought into effect on 18 October last. The new Equality Authority and the Director of Equality Investigations formally commenced operations on that day. In so far as discrimination in areas not related to employment is concerned, it is the Government's intention that the new equal status legislation will be brought into operation in the first half of the new year. The House will appreciate the reasons for this slight diversion from the matter in hand and will understand my desire to give as full a picture as possible of these very important and connected developments.

To return to the provisions of the Bill now before the House, the Human Rights Commission Bill, when enacted, will form an important part of our constitutional and legal landscape and will ensure that fundamental rights and freedoms based on the Constitution and internationally recognised human rights norms are developed and applied throughout the State. The interplay between the Human Rights Commission and its counterpart in Northern Ireland, through a committee of joint representatives is a most significant development, which will lead, as the Agreement puts it, to "the possibility of establishing a charter, open to signature by all democratic political parties, reflecting and endorsing agreed measures of protection of the fundamental rights of everyone living in the island of Ireland."

Human rights have always been regarded by states as their own preserve over which they tend to be extremely sensitive and vigilant, since they involve many aspects – economic, social and cultural – of the life of the country. As relations between states have developed, it has been possible to move recognition for fundamental rights out of the national arena and on to the international stage through the adoption of various international instruments. However, the issue of human rights is about much more than law in the pure legal sense. As a concept, it has more to do with the natural law, it is transcendent. Human rights are not just what international rules in conventions, treaties or agreements say they are. They are what humans are entitled to as humans and the natural consequence of that is how we regard and treat each other as human beings irrespective of the social, cultural or religious environment in which we live. In this respect, the Leader of the Labour Party last night stated in this House that it was a matter of concern to him that the Minister for Justice, Equality and Law Reform, from the security of south Kerry, said the country was being swamped by asylum seekers—

The Minister is trespassing on his extra time.

I am quite proud of where I come from and I would have Deputy Quinn know that one of the leading human rights campaigners of the last century and the father of parliamentary democracy came from the same area.

The Minister has gone over time.

At no point did I say this country was being swamped by asylum seekers.

The Minister's injury time tackle deserves a red card.

Deputy Quinn should withdraw his statement.

It is outrageous, but typical of the man, for the Minister to trespass on the House's willingness to let him conclude his speech.

Acting Chairman

I ask the Minister to conclude his contribution.

It follows that the duty of upholding human rights is not one that belongs to the State alone. The State may be regarded as the leading and ultimate guardian because of its powerful and influential role which society has bestowed upon it. However, that is to ignore the duties and responsibilities placed on other organisations such as large multinational companies, the churches, the media, political parties and community groups, employers and trade unions right down to the level of the individual.

I commend this Bill to the House and look forward to an interesting and worthwhile debate on its provisions.

I welcome the Bill on behalf of the Fine Gael Party. It was not clear until approximately 8.50 p.m. last night who would introduce the Bill on the Government's behalf. The Minister held on to his job due to the votes of four independent Deputies.

One of the reasons this House had a difficulty with the Minister's stewardship arose from a feeling that he was not on top of things and one of the reasons for that may be the sheer volume of work which passes through his Department at any given time and the huge changes visited upon the Department in recent years which have not been properly dealt with.

I will continue to bemoan the abolition by this Government of the highly successful Department of Equality and Law Reform, established in the early 1990s, and I commend the performance of the only holder of ministerial office in that Department in the history of the State, former Deputy Taylor. The Minister would not be experiencing the current difficulties if we had a Department of Equality and Law Reform dealing with civil law separate and distinct from a Department of Justice dealing with, among other things, criminal law.

The Minister spoke at length about the State's obligations under the Good Friday Agreement and the various EU and UN conventions. We have been tardy in incorporating them into our legislation because we have regarded these matters as less than pressing. I am not saying it is the fault of the Minister, but the climate in the Department of Justice, Equality and Law Reform does not allow for the priority and detailed con sideration to be given to the many important UN and EU conventions and declarations which we, as a State, signalled our intention to ratify years ago but have not exhibited the appropriate level of political will to do so. The Department of Equality and Law Reform must be reconstituted, if not by the current Government – I know it will not do so – by a future Government which will separate the Department into two component parts.

I welcome the fact the Minister circulated the heads of the Bill at committee level prior to its publication. We experienced an example of the committee system working well, in the way which was intended in the early 1990s when we expanded and developed the system. It accords a modicum of primacy of the Parliament over the Executive, something which was designed in our Constitution but which we neglected over the years. One of the reasons for the increasing irrelevance of this Chamber of Deputies is that for too long the practice of this Parliament acting as a mere rubber stamp in terms of implementing items brought forward by the Executive has been defended and tolerated.

The committee dealt extensively with the heads of the Bill and, as the Minister said, heard submissions over a lengthy period. A considerable number of groups were invited to make both written and oral submissions. I have no doubt, as the Minister conceded, that the Bill is all the better of that. It is important the Department does not treat the Human Rights Commission Bill in isolation and that the heads of other legislation will be submitted to the committee before a Bill is given a Second Reading in the House. This is an example of the committee system playing a vibrant and active part in our democratic process.

The decision to introduce this legislation arises from the commitments we entered into in the Good Friday Agreement signed in Belfast on 10 April last year. Under the Agreement we committed ourselves to a variety of measures to further strengthen the protection of human rights in our jurisdiction. We committed ourselves to the establishment of a Human Rights Commission with a mandate and remit equivalent to that within the jurisdiction of Northern Ireland. We committed ourselves to proceeding with arrangements as quickly as possible to ratify the Council of Europe Framework Convention on National Minorities, which I do not believe we have done yet.

We committed ourselves to the implementation of enhanced employment equality legislation which, as the Minister said, we have recently done. We committed ourselves to the introduction of equal status legislation, which we hope to do at some stage in the future. We committed ourselves to continue to take further active steps to demonstrate our respect for the different traditions on the island of Ireland. We committed ourselves to the further examination of the possibility of incorporating the European Convention on Human Rights into our legislation.

While the immediate momentum for this legislation derives from the Good Friday Agreement, the need for a Human Rights Commission is all the more urgent given the present controversy surrounding refugees. Ireland is undergoing a rapid social, economic and culture transformation. Some 25 years ago we were a relatively poor country. We were an insular and homogenous society on the Atlantic edge of Europe. The changes now taking place are transforming this country into a prosperous multicultural society, an active participant in the leading technologies of the global information society.

One of the most important challenges facing us as a society is the establishment of agreed value systems which will be a guide to social relationships in an increasingly diverse and complex society. One of the value systems must be an enthusiastic and wholehearted commitment to a culture of human rights. That is why the broad thrust of this Bill is welcome. An active and independent Human Rights Commission is a fundamental element of a broadly based human rights culture.

Fundamental rights already have substantial protection under the Constitution. We have an impressive body of case law developed over the years by our courts, particularly over the past 25 years. As regards incorporating the European Convention on Human Rights into our domestic law, the Government should be favourably disposed to such a development. The 1996 Constitution Review Group, as mentioned by the Minister, recommended against incorporating the convention, largely on the basis that the Constitution gives stronger protection in some areas of fundamental rights than the European convention. It feared that replacing the fundamental rights provisions in the Constitution by the European convention might weaken protection in some areas.

The concerns of the review group could be overcome by adopting the Swedish model of incorporating the convention into law. The amendment to the Swedish constitution, which facilitated the incorporation of the convention into Swedish law, took place in January 1995. It simply states that no law or other regulation may be enacted contrary to Sweden's obligations as follow from the European Convention on Human Rights. We should look at a simple constitutional change to that effect which would allow us to proceed with the convention. A similar article in the Constitution would allow Irish case law and precedent to remain largely in tact. A constitutional amendment like the Swedish model would also be very similar to Article 29.4.5 which governs our membership of the European Union.

Incorporating the European Convention on Human Rights into domestic law would bring enormous benefits. The rights of the individual would be additionally protected. Parties to litigation concerning human rights would be able to invoke the convention and cite decisions of the European Court of Human Rights as direct pre cedents in Irish courts. Incorporation would involve an increased awareness of and respect for human rights among the public, the Judiciary, lawyers and those involved in the preparation of legislation. Incorporation would be in line with the general trend in Europe. We have much to learn from the Good Friday Agreement other than the incorporation of a Human Rights Commission into our legislation. It is important that we continue to be mindful of the human rights section of the Good Friday Agreement which is strong and worth bearing in mind at all times. The commission will deal with the fundamental rights guaranteed to citizens under our Constitution.

Only this morning a committee of this House had the opportunity to hear a submission from and listen to the experiences of the victims of the 1974 Dublin and Monaghan bombings – the forgotten people. This is something which should be taken on board by the Government and the Minister by way of a public inquiry. The human rights section of the Good Friday Agreement is followed by a section on victims. It is vitally important that a proactive role is taken by the Government in the area of victims. I acknowledge the report of the Victims Commission under the chairmanship of former Tánaiste, John Wilson. It has done a good job and published a good report, but we have seen no great commitment on the part of the Government to this area. Given that we are on the eve of the budget, the Minister for Finance should make a sum of £10 million per annum available for three to four years to help victim support groups here and in Northern Ireland. It is a small amount of money given the effect it could have on the victims of three decades of violence on this island.

Last December, on the 50th anniversary of the signing of the Universal Declaration of Human Rights, the Taoiseach committed himself to setting up a Human Rights Commission which would be a model of its kind in Europe. The objective was to take the UN-Paris Principles guiding the establishment of a Human Rights Commission and to set, but not to follow, standards of international best practice in the field. I hope the Taoiseach and the Minister for Justice, Equality and Law Reform return to do this during their tenure.

In his response the Minister should outline the nature of the discussion and correspondence between his Department and any other Department or the office of the UN High Commissioner for Human Rights on this issue. The Minister said that for the first time we have a person in very high office in that area. I would have thought there would be extensive discussions, briefings and correspondence during the drafting of this Bill. Was the Bill submitted to that UN office while in draft form and what, if any, was the response? The Minister should inform us of the level of consultation with countries such as Australia, South Africa, New Zealand and Canada, all of which have human rights commissions and similar legislative provisions to ours.

It appears from the Bill that the Government may be predisposed towards appointing a senior judicial figure as president of this commission. In considering this appointment the Government should give particular thought to the proposed appointee's record in the human rights area. Judicial experience alone should not be the determining factor. We should look for someone with direct experience in the area prior to making an appointment. That should be the most influential factor in making the appointment. I fail to see why Deputies and Senators should be automatically excluded by legislation from membership of the proposed commission. The UN guidelines on the composition of such commissions specifically mention parliamentarians as a category to be considered. I do not accept the Minister's argument that there might be a conflict of interest, that politicians might not be suitable or that this is an area into which sitting Members of either House should not tread.

This seems to be broadly similar to an attitude of Governments since the foundation of the State that, for example, no former parliamentarian, irrespective of experience, is considered suitable to act as an ambassador for the State. Why has that been the case? It is because of tradition or convention, though there are many Deputies, from all sides of the House, who have served their constituencies, country and Parliament well and who would be ideal candidates for ambassadorships. Yet our tradition has been that this is a matter entirely within the domain of the Department of Foreign Affairs, with few exceptions over the years. The Minister may be excluding parliamentarians from this body without giving the matter sufficient thought and we can return to this matter on Committee Stage.

The UN guidelines also recommend that national institutions shall examine the legislation and administrative provisions in force as well as Bills and proposals and shall make recommendations as it deems appropriate in order to ensure that these provisions conform to the fundamental principles of human rights. This Bill does not propose that the commission be given the right to examine proposed legislation to ascertain its compliance with international treaties to which the State is a party. At a minimum, the Bill should include a provision to allow the Minister of the day to refer proposed legislation to the commission for consideration. The Australian legislation in 1986 established a human rights commission there and it contains such a provision. The commission should also be given specific responsibility to carry out a human rights audit of Acts and regulations within a three year timetable. The Minister should also look at the New Zealand Human Rights Act, 1993, which obliged its commission to carry out a human rights audit of New Zealand laws and regulations. The New Zealand commission also has the power "to make public statements in relation to any group of per sons in, or who may be coming to, New Zealand or who may be subject to hostility, or who have been or who may be brought into contempt on the basis that that group consists of persons against whom discrimination is unlawful".

The Human Rights Commission we propose to enact should be given this specific responsibility. It would have plenty to say about the treatment of refugees and travellers, for example. We recently had a debate on refugees and it is extraordinary that neither the Minister nor his predecessors have introduced appropriate legislation to ratify the UN convention on racial hatred. It has been ratified by 155 countries worldwide and we are the only EU state not to have done so. That is indicative of a mindset in certain areas that needs changing.

I hope the new commission will urgently examine our legislation and regulations regarding the committal and continuing detention and care of those who are mentally ill. There is fairly compelling evidence that the basic human rights of the mentally ill are constantly being infringed in this jurisdiction. It is also high time the State answers the strong human rights case regarding the care we provide for the physically and mentally handicapped. The Belfast agreement commits the Government to setting up a joint committee of the two Human Rights Commissions, North and South, as a forum for consideration of human rights issues on the island of Ireland. There is still a strong culture of political violence on this island, and punishment beatings, paramilitary-style shootings and the exiling of people are a manifestation of that culture. Hopefully the executive political institutions will be established in Northern Ireland next week. With devolution in operation it will be possible for all political parties on our island to co-operate together in order to establish and endorse agreed measures for the protection of the fundamental rights of everyone on this island. The Good Friday Agreement envisages all political parties on the island working together to establish a human rights culture throughout the island that we do not appear to have at present.

I welcome the legislation and I thank the Minister for introducing it in head form at committee level, which allowed for a fine debate. The establishment of the Human Rights Commission is a great opportunity to improve human rights.

Debate adjourned.