We will commence consideration of Committee Stage of the Human Rights Commission Bill, 1999, which was referred to the select committee by the Dáil. I welcome the Minister and his officials. It is proposed to adjourn today's meeting shortly before 11.30 a.m. as the committee rooms are booked. The Bill is an important element in the package of measures relating to the Northern Ireland talks and it would be helpful to have it enacted soon. I ask for the assistance of members in completing Committee Stage by 11.30. I also ask for the assistance of officials to ensure all questions and answers are strictly focused.
Human Rights Commission Bill, 1999: Committee Stage.
If no one else wanders into the countryside I will stay on the track.
Excellent. It is proposed to group amendments Nos. 4 and 5, amendments Nos. 6 and 7, and amendments Nos. 13, 16, 21, 22, 23 and 24 for the purpose of debate. All other amendments will be discussed individually. Is that agreed? Agreed.
I move amendment No. 1:
In page 3, subsection (1), line 21, after "enactment" to insert "or resolution".
In section 1, I seek to broaden the definition of "award redress or grant relief". I seek to include the words "or resolution" after the word "enactment" in the phrase "an act specified in the enactment vesting the said powers in the tribunal or other person;".
This is simply a technical matter and perhaps the Minister can address the issue and allay my concerns. It has been pointed out to me that a tribunal is set up by resolution of the House and it is the resolution which transfers the powers. While it might not be strictly necessary, for the avoidance of doubt and plainness of language, I am advised this amendment would help the reading of the section.
The definition which it is sought to amend is a reference to the phrase used in section 10(3) (b) which deals with one of the grounds on which the Human Rights Commission could decide not to grant legal advice, legal representation or other assistance the commission deems appropriate in the circumstances to an applicant on the grounds that the matter is being dealt with more effectively or appropriately in another forum.
The types of body in question would be the Equality Agency or the Director of Equality Investigations, for example. It could also include the Ombudsman or Information Commissioner. The intention behind the provision is to avoid duplication of effort and resources. Any such body would have to have been established under a statute for it to have the requisite powers to deal with the type of case in question. Whether that statute is the tribunal of inquiry legislation or a specific Act intended to meet this particular circumstance is immaterial.
It is difficult to conceive of a body that deals with people's human rights which would not be found within a statute relevant to the type of circumstances where we envisage the commission deferring to it. Furthermore, hypothetically speaking, even in the unlikely event that a person seeks redress before such a body, the fact that he or she might be left without a remedy would be sufficient reason in itself for a human rights commission to assume jurisdiction in the case. Nevertheless, if there is any possibility of a gap in protection here we should ensure it is filled. I am sympathetic to the thinking behind the amendment but I wonder if the words "parliamentary" or "of the Oireachtas" are required. Perhaps Deputy Howlin would agree to leave the matter over for Report Stage so that we can research it further. I am not opposed to the intention behind the amendment, I merely wish to get it right.
I withdraw the amendment with leave to resubmit it on Report Stage. Perhaps the Minister might submit his own amendment.
Amendment No. 2 is out of order as it would involve a potential charge on the Revenue.
May I very briefly comment, Sir. I am concerned that not only amendments but resolutions and Bills submitted by the Opposition have, in recent times, been deemed out of order if they place a potential charge on the Revenue. It is difficult to frame legislation which does not have some impact. Some leeway has been allowed in the past but I confine my comments on the merits of this proposal to the discussion on the next amendment and perhaps I will revisit it on Report Stage.
I move amendment No. 3:
In page 4, before section 2, to insert the following new section:
3.-The State shall, within 2 months from the passing of this Act, ratify or otherwise become a party to the following instruments-
(a) Protocol No. 7 to the European Convention, done at Strasbourg on the 22nd day of November, 1984;
(b) the Torture Convention;
(c) the Racial Discrimination Convention;
(d) the Council of Europe Framework Convention for the Protection of National Minorities, done at Strasbourg on the 1st day of February, 1995; and
(e) the European Social Charter (Revised) done at Strasbourg on the 3rd day of May, 1996, and the Additional Protocol to the European Social Charter providing for a system of Collective Complaints, done at Strasbourg on the 9th day of November, 1995.".
The amendment states that the State shall, within two months of the passing of this Act ratify, or otherwise become a party to, a number of instruments. The amendment lists the instruments which we, in international fora, have signed but not formally ratified. It is important that, in accordance with our stated international positions, we give legal effect to conventions we discuss, support and sometimes promulgate in international fora.
Protocol No. 7 to the European Convention, done at Strasbourg on 22 November, 1984, does not require legislation. It involves the granting of procedural rights to non-nationals. Perhaps the Minister would indicate when an order will be signed by him to bring Protocol No. 7 of the European Convention into effect here, whether it requires a confirmatory resolution of the House and why it has not been done.
The Torture Convention is currently going through the House but I have included it as one of the instruments which needs to be ratified. The Racial Discrimination Convention is one which has never been more clearly required. We have equal status legislation which is germane to it but we need formally to ratify the convention to which we are a party. In the climate which currently exists in the country we should be proactive in this area.
The Council of Europe Framework Convention for the Protection of National Minorities done at Strasbourg on 1 February 1995 is, I understand, ratified but awaiting legislation. The Minister might tell us when that legislation will be introduced.
The European Social Charter done at Strasbourg on 3 May 1996, and the Additional Protocol to the European social charter providing for a system of collective complaints done at Strasbourg on 9 November 1995, is an amended version of the original social charter which we need to ratify. We have yet to do so.
The purpose of this amendment is to ensure the role we take internationally is reflected, specifically, in our domestic law and that we are among the clearest supporters, internationally, of human rights legislation. That would be appropriate and wise. I confine myself to those comments.
The Minister might save time by telling the committee of the Government's proposals to implement the European convention because there has been some media comment on this matter. It seems the proposals fall short of the response given by the Minister to the Labour Party Private Members' Human Rights Bill, 1998. This Bill has been placed on the Order Paper to encourage the Minister to bring forward his own Bill.
I support the amendment. I hope the Minister will confirm that it is Government policy, and his policy, to ensure full compliance by Ireland with all aspects of ECHR. I do not know how we can do that without incorporating the instruments listed in Deputy Howlin's amendment. I have a difficulty with the time limit of two months but this is a matter on which the Minister should give confirmation.
The purpose behind Deputy Howlin's amendment is to place the State under an obligation to ratify or become party to five international human rights instruments within two months from the date of enactment of the Bill. We are already a party to one of those instruments and the position with regard to the others is under active consideration. Protocol No. 7 to the ECHR, which deals with the rights of aliens - the term used in the instrument - procedural guarantees in the event of expulsion, the right of a person convicted of a criminal offence to have his case reviewed by a higher authority, the right to compensation in the event of a miscarriage of justice, the right not to be tried twice for the same offence and equality of rights and responsibilities between spouses will be examined in the light of the changes in law, practice and procedure in the whole area of immigration and asylum. All the other rights are covered by Irish law and as far as I am aware there is currently no impediment in law or practice to ratification of the protocol.
The torture convention is already the subject of the Criminal Justice (United Nations Convention Against Torture) Bill, 1998, which is currently on Report Stage in the Dáil, having passed through the Seanad on 7 July 1999. The Convention on Racial Discrimination is currently being examined now that the Equal Status Bill has been enacted. The framework convention on national minorities was ratified on 1 May 1999. The revised social charter is a matter for the Minister——
The framework convention was ratified, but does it require implementing legislation? I understand it does.
My understanding from my officials is that it does not require legislation.
So it has the force of law here already?
Yes. The revised Social Charter is a matter for the Minister for Social, Community and Family Affairs.
Regarding the amendment in general I find it odd that the Oireachtas should agree to bind the State so that within a period of two months it should ratify the instruments listed. It seems to be an attempt to usurp the powers of the Government and would cross the division between the separation of powers in the Constitution. Therefore, I have no hesitation in rejecting the amendment on that ground. Apart from that, it appears that the amendment is out of place in the legislation.
Regarding media reports to the effect that the European Convention on Human Rights is to be incorporated into Irish law, we were the first State to ratify the convention but its incorporation did not occur. As recently as the Government meeting on Tuesday it was agreed that the legislation incorporating the European Convention on Human Rights into Irish law should be progressed as rapidly as possible and in this respect Deputy Ardagh, the Chairman of this committee, will be advised of the significance of that item in the context of the Good Friday Agreement.
I am disappointed by the tone of the Minister's response as I think it is a matter for the Oireachtas to express interest in the ratification of conventions. I take issue with the Minister that it breaches the separation of powers between the Executive and the Oireachtas. By and large these conventions have been agreed by the Executive on behalf of the nation and signed by the appropriate authority. I am seeking their implementation which, by and large, requires legislation. It is the prerogative of the Oireachtas to implement legislation. Several of the conventions mentioned in the amendment require legislation which is a matter for the committee and the Houses of the Oireachtas.
The committee has previously debated the importance of moving to an era where the exclusivity of the Executive is examined. Most Parliaments, certainly in the EU, debate international covenants, conventions or protocols before ratification. The establishment of a committee system was to afford committees of the Houses to have a much greater input into our international affairs and a much greater constitutional role in terms of the overview of the Executive. Many of the things which have happened in recent years indicate this is a good and proper objective. I had hoped that a progressive Minister, such as the Minister for Justice, Equality and Law Reform, would be well attuned to that ambition and would be willing to lead the way in ensuring the cross-party views of the Oireachtas are considered in these matters.
The issues germane to this amendment are not a matter of party political divide but are supported, by and large, by most Members of the Oireachtas - I know of no Member who does not support them. It is not good enough for us to rush to be first to ratify international conventions and be among the last to implement them in a meaningful way in domestic legislation. I do not wish to labour the point further, other than to ask the Minister to respond to the general points made and to say when the European convention ratification process will be brought forward. Will it form a Bill on its own, and when will it be published?
These matters are currently under active consideration with a view to measures being taken to take on board the relevant provisions. Therefore, there is no need to include the issues in this Bill. I have already outlined the position in relation to all the matters raised in the amendment.
Regarding the European Convention on Human Rights, I intend bringing forward legislation. An amendment to this Bill, as was raised yesterday by the leader or a front bench Member of the Labour Party, is not the way forward for the simple reason that it would be out of place. Having given due consideration to the matter a separate Bill is required and is best practice.
Regarding Deputy Howlin's comment that we ratified the convention but did not incorporate it into law, there are a considerable number of jurists who would very strongly argue that the corpus of rights which has been developed by our Supreme Court, having interpreted the personal rights provisions of the Constitution, go further than the European Convention on Human Rights and that we have a greater degree of personal rights as a result of precedence established by the Supreme Court. Again, that is a matter for argument, and there are others who would say this is not the case. Either way, it is desirable that we be seen to incorporate the convention into law and I expect legislation will be published some time in October. My intention is to have the convention fully incorporated into Irish law by the end of the year.
Is the Minister willing to bring heads of a Bill to the committee in advance of finalising the draft Bill so that we can have some input? It would be very useful and is envisaged in the terms of reference of the committee and in the reason behind establishing committees.
I do not wish to be disrespectful to the committee - far from it. However, I honestly feel that would cause unnecessary delays. The committee already has a huge amount of work to do and if I added the Bill to that workload I would delay all the work of the committee. The committee would have to sit every day of the week——
We will risk it.
——in order to deal with the business. In any event I am aware of very few precedents for discussing heads of a Bill before they are submitted to Government. It would be rather unusual.
I thought there were a number of precedents in that regard. I am sure the Chair is carefully noting the very deep concern of the Minister regarding the work of the committee.
I will not press the amendment at this stage, but I wish the Minister to give consideration to this issue before Report Stage. Perhaps, as Deputy Flanagan suggested, some timeframe can be found within which treaties to which we are a party can be included in domestic law. I heard the Minister's argument before in relation to the corpus of rights developed by court decisions in this jurisdiction being so extensive that they supersede any international convention, including the European Convention on Human Rights. That would be the basis to ensure we are certainly party to corpuses of rights inferior to our own that already exist. It should be a further impetus to us to ratify, rather than an excuse not to.
Without straying from the amendment, I agree with Deputy Howlin that there appears to be a wish on the part of the State to sign many UN and European conventions and then allow full ratification or compliance to fall into abeyance. As a general rule of thumb, there should be a definite timeframe within which we would fully incorporate these conventions.
Is Deputy Howlin withdrawing the amendment?
Subject to the right to resubmit it.
Amendment No. 4 in the name of the Minister. Amendment No. 5 is related - both amendments involve the insertion of a comma.
I move amendment No. 4:
In page 4, paragraph (a), lines 13 and 14, to delete “guaranteed to” and substitute “guaranteed to,”.
I move amendment No. 5:
In page 4, paragraph (b), lines 15 and 16, to delete “guaranteed to” and substitute “guaranteed to,”.
Amendment No. 6 is in the name of Deputy Howlin. It is proposed to discuss amendments Nos. 6 and 7 together, by agreement.
I move amendment No. 6:
In page 5, lines 1 to 46, to delete subsections (4) and (5).
This is an issue that is important to the implementation of the proposals to establish a human rights commission and it is one which I hope we can spend some time teasing out. I propose to delete lines 1 to 46 on page 5. Section 5 sets up the structure of the commission and states that the commission shall consist of a president and eight other members and that the members of the commission shall be appointed by the Government. That is acceptable. Various groups are anxious that it be made clear that the commission is not regarded as an ordinary State board and that its members should be people of particular characteristics. The section of the structure I propose to delete is an important one because it relates to the president of the commission. The Minister's view is that the person who holds the office of president of the commission should be a judge. My view is that the president of the commission should not be a judge, especially where the commission has powers that may involve legislation. To some extent the commission must be able to challenge the status quo and we propose, therefore, to delete the provisions regarding judges.
I put forward my thinking on this matter on Second Stage. It is not the norm in other jurisdictions that a judge should be the appropriate person. It is a post that could be held by a number of non-judicial personages, for example, a distinguished former politician, a former Ceann Comhairle, somebody who is active in human rights issues or a former UN High Commissioner for Human Rights who might be exceptionally appropriate to fill such a job. There is a range of eminent people——
Canvassing will disqualify.
——who would lend themselves to fill this critical position who never held judicial office. There are people who are active in the human rights field here - it would be disingenuous of me to mention names but we can all think of people who, through experience, work or international contact, would be suitable candidates for this post. We should leave open that possibility to a Government now and in the future. I would like to hear the Minister's reasoning in relation to subsections (4) and (5) and then perhaps we could tease out some way of broadening the options open to a future Government.
I listened to Deputy Howlin's submission with some interest. I did not go as far as that in my amendment No. 7 but the spirit of my argument would not be dissimilar, although obviously the confines of my submission would be considerably narrower. It is important that the president of the commission would not be simply a judicial figure but a judicial figure with a track record in the area with which that person will be dealing as president of the commission. The import of subsection (4) of section 5 is far too heavily weighted in favour of judicial experience alone. I am not sure if that is in the best interest of the office of the presidency, although important. With the acceptance of my amendment there would be in the legislation a necessity to look beyond mere judicial experience to the area of law as outlined by Deputy Howlin, given an appropriate track record in the area of human rights and the area to which the person would be minded as president of the commission.
The purpose of this amendment is effectively to rule out the possibility that a judge of the superior courts could be appointed as president of the human rights commission.
Why is that so important?
May I finish? It cannot be said that a judge could still be appointed under the provisions of section 5(3) because the substance of the provisions sought to be deleted deals with the consequences of a court's administration of that appointment through the replacement of the person so nominated in the ranks of judges of the superior courts.
Will the Minister repeat that?
It cannot be said that a judge could still be appointed under the provisions of section 5(3) because the substance of the provisions sought to be deleted deal with the consequences of a court's administration of that appointment through the replacement of the person so nominated in the ranks of judges of the superior courts.
We would need an amendment to the court officers' Bill to clear that.
I am dealing with the amendments as they are put down and I cannot be asked to deal with amendments which are in Deputy Howlin's imagination or in his mind.
It is the principle I am more interested in.
As I said originally, the Government's intention was to appoint a superior court judge or a person so qualified to be president of the commission.
That provision was later amended in the light of comments and observations by the various groups who were consulted on the heads of the Bill and by both of the joint committees which examined the matter. It was felt at the time that, coupled with the other provisions on membership in the heads, there was a leaning towards the legal profession at the expense of experience or expertise in the field of human rights. Contrary arguments were made but in the event the Government changed its approach and the Bill now emphasises that membership of the commission, including the post of president, will be based on relevant experience, qualifications, training or expertise in the whole area of human rights as reflected in the wide-ranging functions of the commission. This approach is clearly within the spirit of the Paris principles. The Government felt, however, that it would be short-sighted to rule out definitively a candidate as president of the commission from the ranks of the superior courts whose members have contributed and indeed generated the development of human rights and a rights based culture through careful development of the fundamental rights Articles in the Constitution. That is the reason a suitable enabling provision is included in section 5(4).
The following subsection (5)(a), (b) and (c) are merely consequential provisions. They are not indicative of a particular mindset. The Government wishes to keep its options open on the matter of the appointment of the president of the human rights commission. The amendment seeks to fetter the discretion of the Government in the matter and, therefore, it is not acceptable. Deputy Howlin will probably withdraw the amendment having heard what I had to say by way of explanation. There have been tremendous jurists in the Supreme Court who developed fundamental rights to which I referred earlier. I refer to people such as the late Mr. Justice Brian Walsh and the late Judge Cearbhall Ó Dáiligh. They contributed enormously to the building of the fundamental rights in Irish law. There are people on today’s Supreme Court who have considerable credibility in this respect - I am thinking in terms of Ms Justice Susan Denham and Ms Justice Catherine McGuinness, whom I had the pleasure of recommending to Government as a member of the Supreme Court. I do not want to rule out any of these people. That is not to say that the list is exhaustive because I mentioned those four judges. I am sure Deputy Howlin would agree it is important we allow the Government leeway in this respect. I am sure that is what he intends.
Is that agreed?
My basic instinct is that I would prefer if the president of the commission, certainly its first president, was not a judge. As I explained, the person appointed should be a person who can take on the status quo, who is not captured by judicial performance or rulings of the past and who can be an advocate for human rights in a unique way. That in no way gainsays the value of the co-operative law we have built up through very able far-reaching, far-seeing and humane based judgments of our superior courts in recent decades. I readily accept that, but in setting up this commission we should chart new grounds. By including a succession sequence as proposed in this section, in essence the Minister is signalling not only that the first president will be a superior court judge——
That is what that signals.
No, that is not what that signals. That is not true.
If the Minister is willing to read my mind and intention, I must have the same privilege.
I said I could not be expected to read the Deputy's mind or intentions and that I was not prepared to do so.
The Minister did a good job at trying to do that.
We are also discussing another amendment relating to the first president. I understand the first president of the commission can be any person. While Deputy Howlin proposes that it should not be a judge, that is not proposed in any of the amendments we are discussing.
It appears as if we are beginning to head out of the stadium.
This point is extremely important. It is extremely important that the structure of the commission is right. We should have some modicum of debate on that. We had a debate on it on Second Stage. What we decide will lie in the structure of the commission until the law is amended. Has the Minister given thought to the ideas I and others tried to articulate on Second Stage on this matter? The structure of the section states that there will be a follow on procedure, whether the person is a member of the High Court or the Supreme Court, but that is not a lead-in to stating this is the panel from which it is appropriate to select. I do not want to labour this point further. I look forward to hearing the Minister's response to it.
I support the case made by Deputy Howlin. The person appointed will need to be a dynamic and committed person with experience in human rights who will be able to take on the judicial and political establishments. It is important that person is seen to have that kind of independence and dynamic. The signal that would be sent by the appointment of a member of the Judiciary as first president of the commission would be one that we would not want in terms of this type of legislation. The person appointed to the commission in Northern Ireland is not a member of the Judiciary. That is a very good example and it is one that should be followed in respect of this commission.
Perhaps the Minister would consider the points made by the Deputies on the appointment of the first president of the commission.
Deputy Howlin pointed out that what we are dealing with is human rights. It is not really a matter of politics but of fundamental human rights, as shared by all political parties across the House.
Especially the small ones.
In those circumstances I would not envisage any president of the commission being railroaded through the Houses of the Oireachtas. I anticipate there will be a certain consensus regarding the appointment. I did not intend to indicate that the first president of the commission will be a serving or retired member of the Judiciary - far from it. All I am trying to do is to keep the options open and that is important. The new president of the commission could be somebody who is currently active in human rights. To that extent, it could be somebody who is a distinguished member of a non-governmental organisation. Alternatively, it could be a former Member of the House. It could be any person who is deemed to be qualified in this respect. The issue we are discussing would not be served by an argument in regard to it. All I can do is indicate, in good faith, that whoever obtains this position will be suitably qualified. I hope there will be a good degree of consensus in relation to the appointment when the day comes.
How stands the amendment?
I think the Minister has accepted the view that a judicial personage is not required for this job, that future holders of this office should not necessarily be drawn from the Judiciary, and that signal should be given by this committee.
What Deputy Howlin says is the position. I indicated earlier that it could be a former or a serving Member of the Oireachtas, but that is not to indicate that it will be either.
I am mindful of people who have served and are serving now.
Deputy Howlin's point is well made.
I am reassured by the Minister's response. If the first president of the commission was a judge, a precedent could be set that could be questioned later if the second and subsequent appointments were not members of the Judiciary. The selection of somebody outside the Judiciary opens up a greater choice and would not give rise to certain comment on the appointment of the next and subsequent office holders.
There appears to be a consensus that whoever is appointed from whatever profession, it should not set a precedent in relation to any subsequent appointment. That does not give an indication as to who might be appointed because the Government will have to consider that very carefully. Having given it very due consideration, I imagine it will be necessary for the public to have confidence in the system that there will need to be a fair degree of consensus on who obtains the position.
I move amendment No. 7:
In page 5, subsection (4), line 7, after "Commission." to insert "Judicial experience alone shall not be the determining factor.".
I will withdraw my amendment if the Minister confirms, in direct terms, that on the basis of an appointment, the determining factor will not be judicial experience alone and that it would be a precondition for appointment that the person would have had an involvement and a track record in the human rights arena.
That is confirmed in section 5(3), and I confirm what Deputy Flanagan is seeking.
I move amendment No. 8:
In page 6, subsection (11), line 8, to delete "both men and women" and substitute "at least 4 men and at least 4 women". Amendment No. 8 seeks to delete "both men and women" and to insert "at least 4 men and at least 4 women". A four-four gender balance is necessary to meet the 40% requirement that was the objective of the last Administration for appointments to bodies such as this. I presume it is still the policy of the current Administration. Since the Government decided to incorporate the Department of Equality and Law Reform into the remit of the Minister's Department, it is his particular responsibility, and pleasure in this case, to ensure that this objective is fully realised. I am sure there will be no hesitation in accepting the amendment.
I support the amendment. It is practical to provide and to ensure there is an equal number of women and men. The difficulty is that while the theory and aspiration might be incorporated into the legislation, the fact that the requirement is not spelt out often means there is a disparate number of women and men. It is right to acknowledge equality and balance in the numbers to be appointed. We have not reached that target in many boards and commissions so far.
I support the amendment. It is necessary to provide for a specific number. Otherwise we might end up with two if the word is read as plural and even one if it is read as single. It is necessary to provide for balance. It is all very well to have aspirations but unless they are provided for in legislation, we might regret it later when there is no proper balance.
I support the amendment.
I have a difficulty with the amendment. If there were six women and two men who were eminently qualified and two men who were less eminently qualified, I would be obliged to pick——
The Minister is going down a slippery slope.
——four men and four women despite the fact that there might be women who would be more qualified than some of the men.
Yes. It is called equality.
As equality spokesperson, I fully support that.
It is an argument we could discuss in circles all day.
No. One is either serious or one is not.
It is an argument we could circle all day. I will try to achieve the best commission possible. It is a commission dealing with human rights. Taking a different perspective, a strong argument could be made that we are dealing with something that is quite different from expertise in other more technical matters in that people will surely be able to identify human rights more easily than if they were required to have technical expertise. In the circumstances, I will look at this favourably.
Is the Minister accepting the amendment or will he bring forward an amendment on Report Stage?
I will bring forward an amendment to reflect the spirit of this amendment.
That is an excellent suggestion.
I move amendment No. 9:
In page 6, line 11, to delete "Surpreme" and substitute "Supreme".
I move amendment No. 10:
In page 6, lines 16 to 30, to delete subsections (1) and (2).
The provision in the heads of the Bill which proposed the usual exclusion from the human rights commission of parliamentarians was commented upon by the Oireachtas Joint Committee on Justice, Equality, Defence and Women's Rights. Nevertheless, the Government decided to maintain the provision in the Bill mainly for reasons to do with the fact that space was limited on the commission and that Members of the Dáil or Seanad could be faced with conflicts of interest as between their work in the Oireachtas and work in the commission. As such, it was felt that they would either have to resign on appointment to the commission or take up a position in an advisory capacity only.
It is useful to note that Members of Parliament in the UK who are members of the legislative Assembly in Northern Ireland are not eligible for appointment to the Northern Ireland Human Rights Commission. On Second Stage, Deputy Flanagan and Deputy Howlin again raised the question of the exclusion of parliamentarians from membership of the commission. I indicated on 1 March that I would look at this provision.
Having carefully examined the matter and considered the guidelines, particularly the Paris principles, I am satisfied that membership of the commission should be open to Members of the Houses of the Oireachtas and of the European Parliament without restriction. I propose, therefore, to remove the exclusion of parliamentarians from membership of the commission by deleting subsections (1) and (2) from section 7. As I tabled this amendment at the earliest opportunity, in light of the further consideration to which I adverted on 1 March, I request Deputy Flanagan to withdraw his amendment. This amendment has the advantage that neither Deputy Howlin nor Deputy Flanagan will have to resign from politics if they become members of the commission.
Would the Minister consider other members of the committee?
It was agreed earlier.
I thank the Minister for his comments. I agree with what he stated and will, consequently, withdraw my amendment.
I move amendment No. 11:
In page 7, between lines 1 and 2, to insert the following:
"(a) to encourage ratification by the State of human rights instruments or accession to those instruments, and to ensure their implementation,".
Section 8 deals with the functions of the committee. I have drafted a number of amendments to broaden the functions. I will not spend much time on each amendment but I am seeking a response from the Minister as to why the functions should not be expanded in the way proposed.
This amendment provides that the committee encourage ratification by the State of human rights instruments or accession to those instruments and to ensure their implementation. This links directly to an earlier amendment. It should be a function of the commission to ensure that our international obligations under treaties and so forth do not rest in the international forum alone but are implemented in domestic law. It should have that advocacy role.
I oppose this amendment. The intention of the amendment is already part of the functions of the human rights commission under subsection (8)(c). This enables the commission on its own initiative to make whatever recommendations to Government it deems appropriate and to take whatever measures it considers should be taken to strengthen, protect and uphold human rights in the State. It is a widely drawn provision, purposely so, to give the commission the type of remit envisaged by the Paris principles.
I am aware of the remit of the commission in broad stroke terms. However, there should be a specific obligation to encourage the State to ratify and implement international treaties to which the State is party. That may well be encompassed by the broader principles but it is not a specific function of the commission, which it should be. Will the Minister reflect further on this before Report Stage?
While I have great sympathy with the Deputy, it is already part of the functions of the human rights commission under subsection 8(c).
Then the Minister should have no difficulty specifying it.
There is no point specifying something that is already there. The one thing one should not do in legislation is introduce measures which are already covered. We could be here for the night at that. I need to have certainty and it is already there.
I will not press the amendment. However, I am disappointed. If it is already there, there should be no difficulty putting it in explicit terms. The commission should have that role. It will probably undertake that role anyway.
I move amendment No. 12:
In page 7, between lines 1 and 2, to insert the following:
"(a) to have due regard to the United Nations 'Paris Principles' on National institutions for the promotion and protection of human rights (A/RES/48/134, 85th Plenary meeting, 20 December, 1993), and the UN Centre for Human Rights Handbook on the Establishment and Strengthening of National Institutions for the Promotion and Protection of Human Rights,".
This is another duty the commission should have, to have due regard to the United Nations Paris principles on national institutions for the promotion and protection of human rights - the reference is in the amendment - and the UN Centre for Human Rights handbook on the establishment and strengthening of national institutions for the promotion and protection of human rights. The amendment seeks to extend the functions of the commission. The Minister has already referred to the Paris principles, the basic document of powers of the UN Commission. Has he a difficulty in accepting the amendment?
This amendment is also opposed. It is simply not necessary to place a statutory requirement on the commission to have due regard to the Paris principles in the UN handbook. That is something that is not envisaged by the documents concerned. For the sake of comparison, neither do the United Kingdom authorities think it necessary or desirable to incorporate such statutory provisions or references in the Human Rights Act, 1998. Indeed, one could ask why we should stop at the documents listed in the amendment. Should we not go on and list, for example, recommendation No. R97/14 of the Committee of Ministers to member states on the establishment of independent national institutions for the promotion and protection of human rights, together with its explanatory memorandum, and resolution 97/11 on co-operation between member states' national institutions for the promotion and protection of human rights between them and the Council of Europe? I will stop there.
If the Minister wants to submit that as an amendment, I will support it because it is very wise.
We could be here forever and where would we stop? I am giving this as an example of how we just cannot pluck things here and there and decide that they will make up the feather mattress. We have to pick all the feathers or none.
We are doing very good business and it is disingenuous of the Minister to adopt that tone. The Paris principles are the fundamentals and they have been referred to repeatedly by the Minister. They represent the bedrock for the promotion of human rights. They have a singular significance beyond other international covenants, treaties and protocols the Minister may cite in an exhaustive list. I will not press the issue but I do not think the Minister should diminish the importance of the Paris principles either.
I am not seeking to diminish the Paris principles. It would be very difficult for me to do so, even if I wanted to. The reality is that the Paris principles are not the definitive situation that Deputy Howlin portrays them to be. They are a blueprint, they are not definitive.
Is the Deputy withdrawing that amendment?
I will not call a vote on it. I am asking for the commission to have due regard to the Paris principles. In light of the Minister's difficulties in this matter and the fact that there are other amendments I wish to deal with, I will withdraw it.
Finish the proposition.
I hope the Minister is not trenchantly opposed to the vindication of the Paris principles.
I think Deputy Howlin understands the position.
It would be a bad line for the Minister to take.
He should save that for the Gaiety.
It would be a bad principle for the Minister for Justice, Equality and Law Reform to be trenchantly opposed to the Paris principles. I am sure he did not mean to say that.
Did I oppose them?
Amendments Nos. 13, 16, 21, 22, 23 and 24 are related and may be discussed together by agreement.
I move amendment No. 13:
In page 7, between lines 1 and 2, to insert the following:
"(a) to examine (on a confidential basis) the text of all draft Schemes of Government Bills, which the Secretary-General to the Government is hereby required to transmit to the Commission prior to submission to Government, and report to the Secretary-General within 2 weeks (or such shorter period as the Secretary-General may reasonably require in the exceptional circumstances of the case) on the compatibility of each proposed Bill with the Conventions,”.
Because the amendments, while related, are all quite different, may I suggest that we deal with them seriatim? I only received the consolidated list of amendments this morning and it would be too difficult for me and other members to cross reference them all in a single submission now. We can pass very quickly over the ones that have already been covered.
That is fine and sensible.
That is accepted.
This amendment concerns another function that I want to give to the commission. It is one that will give even greater difficulty to any Minister and will probably put the Civil Service into shock because it is against the nature of the way the system is currently operated. However, it is a shock that may serve us well and I hope the Minister will not give a knee-jerk reaction to it. I am proposing that the commission would examine on a confidential basis all draft schemes of Government Bills, which the Secretary General to the Government is hereby required to transmit to the commission prior to submission to Government, and to report to the Secretary General within two weeks, or whatever period the Secretary General determines if an exceptionally quick response is required, on the compatibility of the proposals with the conventions.
Those who have worked in Government know the way legislation is promulgated. Draft proposals are circulated to all relevant Departments and they then come back to the parent Department with observations from the Department of Finance and other Departments that are in any way affected by the proposals. I can see that it would be a ground-breaking proposal, but I am simply asking that the new commission we are establishing would be added to the list of those who would have right of access to have an input at that basic stage. In essence, I am saying that all legislation that has a bearing on human rights should be human rights proofed, the same as it is now, and finance proofed by the Department of Finance.
It does not mean that any new authority will be given to the commission which will not have any right of veto and will not be represented at Cabinet. However, the commission's observations will be put in from the beginning of the process. I genuinely and respectfully request the Minister to reflect on this proposal. If he does not have a final view on it today, he might be able to reflect further upon it for Report Stage. If we did this it would give an extremely important signal concerning human rights.
On the basis of my amendment No, 21, which has the same import, I agree with Deputy Howlin. It refers in particular to what the Minister said earlier regarding the Government's proposal on the incorporation of the European Convention on Human Rights into Irish law. It is something that will have to be done. It is an important amendment because it places an onus and duty on all Departments and all Ministers to ensure our legislation is human rights compliant. We are either serious about UN conventions or we are not. In addition, we are either serious about the powers, role and function of the commission or we are not. If we do not accept these amendments and do not ensure, at this initial stage when the commission is being established, that we are going to mandate the commission to examine all proposed legislation, we will be leaving a considerable gap in the legislation that will not do the commission a service that we would otherwise wish. The amendment is very important and I hope the Minister will accede to it.
Let us be clear about what we are discussing. What is being sought is that the commission would have the power to put forward recommendations on its own volition, prior to the drafting of legislation, with regard to amendments which should or should not be made to legislation.
That is the position, Deputy Flanagan. In that respect, it would be empowered to put forward suggestions, for example, on the heads of legislation.
Is the Minister discussing the amendment in my name?
I am talking about both amendments.
I thought we were dealing with them seriatim. What text are we talking about?
Effectively, this is my view of what it would actually mean. In those circumstances, it will be clear to everybody that the commission would be in a position to obtain - it would probably have to obtain - draft legislation, the heads of legislation, just the same as any Department.
The commission is not represented in Government and the president of the commission is not a member of the Government. In those circumstances, Deputies might reflect on whether that is the right way to go. I accept it is obviously necessary that the commission would have the power and ability to make recommendations from time to time to the Government on human rights issues. Otherwise the commission would not have any teeth. Of course it should have the power to draft legislation and present it as a proposal to Government. Of course it should also have the power to make recommendations to the Government on foot of draft legislation which has been published in Bill form.
Does that happen when the Bill is published?
Yes. The reality of what is being suggested, however, is that before any Bill is published, the commission would be in the same situation as a Department in regard to making observations. In terms of drafting legislation, that would be almost tantamount to saying that the commission was as powerful as any Department. To that extent, I am not at all sure if it would not be usurping a governmental function which was reserved for the Executive. In those circumstances, I must reluctantly reject the amendment, but there is provision in the section which gives the commission very wide powers in regard to legislation and it will have the power and the function of submitting to the Government from time to time its views on how matters should progress in regard to human rights and in this context how legislation, in particular, should be framed. However, it would be a step too far to do what is being suggested.
I am half encouraged by the Minister because I can see that there would be a hostile reaction to this from the Civil Service. It is loathe to share departmental draft work with other Departments, much less broaden it beyond that confine.
My Department takes the view that it would prefer to transfer it.
Those of us who have been involved in the formulation of legislation at the Executive would know that the critical response would be from the Department of Finance, who can strangle one at birth before one gets too far. When we were in Government we established a new requirement for any memoranda to Government to the effect that in relation to any proposed legislation, not only would the observation of the Department of Finance be required, but also that the implications for equality, especially for its impact on gender as it affects women, would need to be considered. I presume that is still in existence. It was done, and I presume continues to be done by the Minister's Department.
Also on poverty.
Yes. I suggest that human rights be included in the process at that stage. Once a Bill is published Ministers and Department become proprietorial because they have gone through a process and, by definition, much of the structure of a Bill as published has been passed by Government and, therefore, contains a balance of agreement on sometimes conflicting views within Government. If the human rights input is not included at that stage one is involved in a catching up process.
If we believe - I think there is a consensus on this in this committee and the Oireachtas and probably in the broader community - that human rights is something that is not firmly on our agenda, there are a number of pressure points in terms of changing the culture in which we live that require it to be very proactively debated. It is an issue that has the status of the gender issue in the past and it needs to be given the same level of input and time. Since we are establishing a commission to do that it should be the way to proceed. I do not suggest my amendment is the perfect way of doing that - there might be a safer way in terms of the protection of the Executive. For example, there might be a certification process that where things would clearly have a human rights implication, the secretary general to the Government would certify whether it should go to the commission in the way I have outlined. There might be a requirement for specific secrecy in relation to this and legislation could incorporate that. I ask the Minister to reflect on these matters because it is of critical importance regarding the signal we give on our genuine commitment to ensure that the human rights commission impacts on every detail of life and society.
It appears from the Minister's interesting reply that his only difficulty would appear to be that of the commission unduly imposing itself or usurping a power that is reserved to Government, which may be a reasonable point. If that is the only difficulty, I am sure he could draft an appropriate amendment for Report Stage that would incorporate what Deputy Howlin is saying. Amendment No. 21 in my name probably overcomes that obstacle in so far as it provides that the commission would examine proposed legislation - by proposed legislation I mean a Bill as initiated, published and in the public domain but prior to its being given a Second Reading in the Dáil and prior, of course, to Committee Stage, Report Stage and other Stages.
It is important that the Government has a view of the commission as to compliance with appropriate international treaties. The Minister has accepted that in his reply. It is now a question of working out a formula to meet what in effect we are all agreed upon, bearing in mind the Minister's remarks, which I accept, about heads of Bills or the Government's powers to legislate or at least to publish legislation for the Oireachtas or whatever.
We must put something into the functions of the commission that will underline the import of what Deputy Howlin and I propose. By not doing so we are allowing a gap to develop. At a minimum we should have a specific provision to allow for a Minister to refer initiated legislation to the commission. The human rights commission legislation in Australia is specific on that. We also need to be specific and not just provide for something that may occur from time to time. It is sufficiently important that this would become regular and accepted practice and procedure on the part of the Government and the commission. That can only be done by the legislation containing this in section 8 as a separate and distinct function of the commission.
Is it agreed that we can discuss all these amendment together after having had the opportunity to read through them?
Are we discussing them all? I understood we were considering amendment No. 13 only. I only referred to the amendment in Deputy Flanagan's name because it was tied in with it.
We can debate amendment No. 21 separately, but it will be a similar debate because the amendments are remarkably similar.
They are similar but different.
We will try to pull them together so that when we turn to amendment No. 21 we can be quick.
The underlying philosophy behind this legislation is to ensure that we have the best human rights commission possible and that it be effective. I am not in the business of putting in place a toothless, conservative kind of group which will be sitting on a shelf gathering cobwebs for the next 50 years.
The Department of Justice, Equality and Law Reform would never contemplate such a thing.
Neither I nor my Department would be party to that, as all the revolutionary legislation which has emanated from the Department for the past several decades has indicated.
Revolutionary, yes, not least in recent years. The most revolutionary legislation in the history of the State has traditionally emanated from my Department. If the Deputy wants me to indicate the legislation I will do so, but that would mean me leaving the stadium, so I will not be tempted. I will stay on the track, inside the walls.
I have set out my stall and that is the situation. In view of that I must look at the question of Deputy Howlin's amendment in the context of the functioning of our democracy and the Government. I have made it clear why I have reservations about his proposal. Both he and Deputy Flanagan have very reasonably responded that I am probably right to have those reservations.
It must be pointed out that the Attorney General is of course in the legislative process from the beginning. He is charged with upholding the public interest under the Constitution. If follows axiomatically that the Attorney General must have regard to human rights. I accept it is not specifically stated but it must be clear that if the public interest is to be protected, people's human rights must be protected. To that extent, I suppose it could be said - at least the argument could be cogently made - that the issue of human rights is already considered under the legislative process.
A number of new measures regarding proofing have been introduced in recent years, and Deputy Howlin is quite correct regarding his party's initiative in that respect. Taken together, all these measures, which were taken by different Governments, have improved the legislative process. If I were to accept Deputy Howlin's amendment, I would be still left with the difficulty of how precisely it would be possible to ensure that the Human Rights Commission would not become a sort of arm of Government in waiting or in expectation. There is probably a way around this and if there is, I am anxious to find it. In those circumstances, I would ask Deputy Howlin to withdraw the amendment to see if we can come up with some formula. He will appreciate that it would not be possible for me to come here unilaterally and agree to an amendment to this legislation which would impact on all my colleagues and on subsequent Governments. In those circumstances, what we will do is discuss this issue with the Attorney General to see if there is some mechanism which would achieve, at least in part, Deputy Howlin's objective and, indeed, that of Deputy Flanagan in an amendment in his name which we will discuss later.
I am heartened by the Minister's response and I am grateful to him. That is a constructive approach and I happily withdraw the amendment.
I move amendment No. 14:
In page 7, between lines 1 and 2, to insert the following:
"(a) to contribute to the reports which the State is required to submit to United Nations bodies and committees, and to regional institutions, pursuant to its treaty obligations,”.
This amendment inserts another function of the commission.
I oppose this amendment on the simple ground that it is not required. The Government's primary intention in drafting the functions of the commission, as laid out in section 8, is to give the commission the widest possible remit having regard, first, to the obligations of the Good Friday Agreement and the equivalence with its northern counterpart and, second, as the Taoiseach stated, to the framework in the Paris principles as a starting point. Many of the functions of the commission are, therefore, set out in general terms so as to give it considerable freedom in interpreting them. The difficulty with setting out a list of specific functions is, contrary to that intention, that the list can turn out to be restrictive.
The argument is similar to that regarding the last amendment.
I am happy that the provision set out in this amendment is something which the commission will do anyway. On that basis, I will withdraw it.
I move amendment No. 15:
In page 7, between lines 1 and 2, to insert the following:
"(a) to promote the harmonisation of national legislation regulations and practices with the international human rights instruments to which the State is a party, and their effective implementation,”.
The amendment would give the function to the commission to promote the harmonisation of national legislation regulations and practices with the international human rights instruments to which the State is a party, and their effective implementation. No doubt I will get the same response from the Minister.
Yes. That will be covered.
On that basis, I will withdraw it.
Amendment No. 16 has effectively been discussed with amendment No. 13.
I move amendment No. 16:
In page 7, between lines 1 and 2, to insert the following:
"(a) to examine the text of all Bills introduced or presented to either House of the Oireachtas and report to each House within 2 weeks on the compatibility of each Bill with the Conventions,”.
With all due respect, this is quite different from the other amendment in that one is to impact on the thinking of Government and the other is to impact on the thought process of the Oireachtas. It would be useful for the committees to do that anyway. It is a fairly onerous burden on the commission to have to comment on all Bills within a timeframe and my only reservation about tabling this amendment is that it would put a great responsibility on the incoming commission. The Minister might give me his response. I would suspect that, once the commission is established, committees of the House would ask for their observations in due course in any event. Does the Minister accept what I am saying?
I am afraid that would be impractical from the Government's perspective.
I understand that sometimes things move more quickly and I am a little concerned that it would be a fairly onerous burden to put on the commission. It might be something which committees of the House would take upon themselves to do.
Yesterday we dealt with emergency legislation in the House. In general, it is not a good thing to rush legislation. There should be as reflective and as board a debate as possible.
I move amendment No. 17:
In page 7, paragraph (b), line 7, after "fit," to insert "including to co-operate with the United Nations and any other organisation in the United Nations system, the regional institutions and the national institutions of other countries that are competent in the areas of the promotion and protection of human rights,".
Is that already broadly encompassed in the remit?
It is encompassed in section 8(b).
I am not sure it is expressed as I would like, but I accept the Minister's view on it and withdraw the amendment.
I move amendment No. 18:
In page 7, paragraph (c), line 13, after "State" to insert "; on the publication of the views and recommendations of the Commission, the Government shall, as soon as practicable thereafter, publish a formal reply".
This has to do with section 8(c). Earlier the Minister mentioned that he did not want the commission to be a cobwebbed body in a distant office. In order to ensure that is not the case, there should be a specific statutory onus on the part of the Government to reply to recommendations of the commission rather than just to receive recommendations. The Government can receive recommendations from anybody but it is important to give those recommendations the due importance of eliciting a formal response of Government. That is the import of the amendment, which is self-explanatory. I hope it is one with which the Minister will find favour.
The reason I see no need for the amendment is if the human rights commission is charged with looking at a given matter by the Government and responds or makes a submission to the Government on its own initiative, it will have a considerable amount of weight to say the least. There would be almost a democratic imperative and that, of itself, is probably far more powerful than anything we can insert into the legislation.
On the basis that it is a ministerial statement during the course of Committee Stage, I am prepared to accept what the Minister has said.
I move amendment No. 19:
In page 7, paragraph (d), line 18, after “activities,” to insert “including to assist in the formulation of programmes for the teaching of, and research into, human rights and to take part in their execution in schools, universities and professional bodies,”.
I did not press the other amendments but I want to push this one a little further because it is important. One of the functions of the commission, as set out in section 8(d), is to promote understanding and awareness of the importance of human rights in the State etc. I intend, by the insertion of the amendment, to broaden that, “including to assist in the formulation of programmes for the teaching of, and research into, human rights and to take part in their execution in schools, universities and professional bodies,”.
The Minister is acutely aware now of the issue of human rights as it affects evolving society in a way that is new to our time. We need a proactive body to promote the idea of human rights in all schools and to evolve particular programmes to do that. The Minister has initiated one. I do not think a great deal of money has been spent on it, but we need a formal structure through the education system. To give that function to the commission would be extremely valuable and important. I hope the Minister will accept this amendment.
I support this because of the positive action involved which goes beyond aspiration. I agree with Deputy Howlin that now, more than ever, we urgently need an educational programme on rights and the removal of prejudice. The Human Rights Commission would have the greatest authority and responsibility to do this.
I am opposed to the amendment because this matter is already covered in section 8 (d) which states that the functions of the commission shall be to promote understanding and awareness of the importance of human rights in this State and for those purposes, to undertake, sponsor or commission and provide financial or other assistance for research and educational activities. In that context, I had the pleasure of launching the new department in NUI, Galway, dealing with human rights. There is a chair of human rights there and I pay tribute to the president and the governing body. I believe it will be tremendously successful and its establishment has considerably raised awareness of human rights. There is great credit due to the university for that. It is my wish and hope that we might see similar initiatives in other third level colleges and the other initiatives mentioned by Deputy Howlin at second and primary levels. There are no rights more fundamental than the rights of human beings.
The Minister's aspiration is well and good but this is an important issue and it is good that the president of NUI, Galway, would take that initiative and I join with the Minister in applauding him. However, quite frankly, it is not good enough for the Minister for Justice, Equality and Law Reform, to be a sideline spectator, to go to the opening and hope that others will do the same. Nobody will do it at primary and second levels unless this Oireachtas provides for it. The Minister referred to section 8 (d) which does not specifically ensure, as I want it to, they assist in the formulation of programmes for teaching on and research into human rights at all levels.
I genuinely feel this is an important amendment. There is no doubt they will commission individual research, but to actually formulate programmes in co-operation with the teaching bodies that will impact on the formulation of the attitudes of the next generation is critically important to us now. We have seen the consequences of confusion, ignorance and some prejudice. We need to be able to respond positively and proactively, as Deputy Barnes said, and in an educating way in the true sense of that word. I hope the Human Rights Commission will be the proper and correct body to do that. I ask the Minister to reflect further on this matter.
The legislation is quite specific. We have categorically stated that one of the functions of the commission would be to promote understanding and awareness of the importance of human rights. It must follow that certain things have to be done in order to promote understanding and awareness of the importance of human rights. Clearly this must include the issue of providing financial assistance for research and educational facilities. That is stated categorically in the legislation. What could be more explicit than the legislation stating that financial and other assistance will be provided in order to promote the understanding and awareness of the importance of human rights and that in this context financial and other assistance will be provided for research and educational activities?
I contend that Deputy Howlin's intentions and aspirations are already covered by the legislation. I said earlier that I could not become involved in inserting superfluous matters in the legislation, in other words, catering for matters which are already there. They are either there or not. I am saying they are there and if Deputy Howlin feels they are not there, there is very little I can do to convince him other than to ask him to read section 8 (d).
I will read paragraph (d) to the committee because the Minister is quite wrong. He has repeatedly said that what I want to insert is already there. It is not. It states:
to promote understanding and awareness of the importance of human rights in the State and, for those purposes, to undertake, sponsor or commission and provide financial or other assistance for research and educational activities,
I want that broadened to include "assist in the formulation of programmes for the teaching of and research into human rights and to take part in their execution in schools, universities and professional bodies, to be a proactive agent in the teaching of human rights throughout our education system." If the Minister is opposed to that principle, let him say so. If he is not opposed to that, he should accept the amendment. It is not in the legislation as drafted. I will not press the matter if the Minister is opposed to it but if he accepts it, he should make it specific.
We will have to agree to disagree.
I move amendment No. 20:
in page 7, paragraph (g), line 31, to delete “in its absolute discretion”.
This is another important amendment. The Minister has used the phrase contained in the amendment a number of times recently. Why should there be absolute discretion in this matter? Why should judges, in exercising a judicial discretion, not give reasons for their decisions? Section 8 (g) states:
to apply to the High Court or the Supreme Court for liberty to appear before the High Court or the Supreme Court, as the case may be, as amicus curiae in proceedings before that court that involve or are concerned with the human rights of any person and to appear as such an amicus curiae on foot of such liberty being granted (which liberty each of the said courts is hereby empowered to grant in its absolute discretion),
Why should it not have judicial discretion to give reasons? I am not a legal person but I am advised that it is the norm in the courts that after discussion, the judge makes a decision and a reasoned argument is presented to the public.
Deputy Howlin's amendment seeks to delete " in its absolute discretion", in other words, the court would not have an absolute discretion in this matter. The provision in section 8 (g) which gives the Human Rights Commission the power to take on the role of amicus curiae, or friend of the court, is a novel one. It has been widely welcomed as an innovative, helpful and imaginative measure. The phrase which the amendment seeks to delete is intended to underscore the fact that an application by the commission in a suitable case does not carry with it an automatic assumption that the court is in some way bound to accede to the request.
A decision whether to allow the commission to appear in the role of amicus curiae must always rest with the court itself, taking into account all the circumstances of the particular case. To do otherwise could be seen as an unjustified interference in the independence of the courts. For example, a party on one side of the argument might object strenuously to a third party involvement. The court must have absolute discretion on the matter. The present wording makes that clear. Accordingly, I must insist that the Bill should remain unaltered in this respect.
Deputy Howlin said that the court should give a reason it has exercised its discretion. He will accept that is a different argument. Even if the court were to give reasons for the exercise of its absolute discretion, it would still be exercising its absolute discretion in the manner which it had decided in the first instance. The giving of the reason would not in any way fetter the exercise of the discretion. The discretion would still be exercised and exercisable in any event. It must be clear that it would not be possible for the Oireachtas to bind the courts in the manner suggested by Deputy Howlin. In point of fact, I have little doubt but that we would be told in stark and clear terms that we could not do so under the Constitution, even if we wished to do so.
I do not seek to remove the discretion from the courts which the Minister intends to give them but, in a general sense, we should move towards more openness in judicial principles. I will not press the matter now but with the evolution of new court structures we should have as a matter of course the fullest explanation of judicial decisions relating to all matters. There is a particular burden of responsibility when they relate to basic personal and human rights. I accept the logic of the Minister's argument and I withdraw the amendment.
I move amendment No. 21:
In page 7, between lines 40 and 41, to insert the following:
"(k) examine proposed legislation to ascertain its compliance with relevant international treaties to which the State is a party.”.
I do not wish to reopen the debate we had on amendments Nos. 13 and 16. I have not heard a ministerial reply to this amendment, which I await.
I understand the purpose of Deputy Flanagan's amendment, but it is something which the Government intended to be the case and is already covered by relevant provisions in section 8 of the Bill, namely paragraph (c) and also to some extent, paragraph (a). As I have already indicated, the commission will be aware of proposed legislation through various mechanisms, for example, the receipt of Bills. I have no doubt but that to reflect these functions I have mentioned the commission will in all probability, as a matter of basic administrative practice, establish, for example, a legislative policy committee or group, which, common sense would dictate, would more than likely seek views from members of the public and the relevant non-governmental organisations on policies and practices already in force and planned which may have implications for human rights, monitor the situation with regard to particular laws, propose legislative policies and practices in the State on human rights, decide and prioritise which of those areas need immediate attention and make the necessary arrangements for reviews.
As defined by section 2 of the Bill, the term "human rights" embraces not just rights and fundamental freedoms in the Constitution and developed case law on enumerated personal rights, but also international treaties to which the State is a party. As I said, this is an extensive list which is being added to constantly. We ratified the United Nations Framework Convention on National Minorities last May and we are well on the way to ratifying the United Nations torture convention, the racial hatred convention and remaining reservations which are part of the Convention on the Elimination of all Forms of Discrimination against Women. Furthermore, we should not lose sight of the fact that the Attorney General, as I have already indicated, has a constitutional role as legal adviser to the Government to consider the State's human rights obligations under international law. I have already outlined his role under the Constitution.
In the circumstances, having commented on what Deputy Flanagan said, I request that he withdraw the amendment, particularly in the light of our earlier discussion.
I do not understand why the Minister will not allow a specification under section 8 and the function of the commission, to allow an examination of proposed legislation. That wording is contained in the Paris principles. In human rights legislation in other jurisdictions there is a specific reference to this. The most recent human rights legislation in another jurisdiction, that of Northern Ireland, there is a specific reference to a function to examine proposed legislation and ascertain its compliance with the appropriate international treaties. Why does the Minister skirt around the issue and obliquely point to paragraphs (a) and (c) without actually specifying it. I do not understand why the Minister has a difficulty with spelling out this specific function in the legislation.
I have already stated that I do not want to have anything in the legislation which is superfluous because there is no point in including a provision if it is already there. On the other hand, I said I would look at amendment No. 13 in the name of Deputy Howlin. I will look at Deputy Flanagan's amendment No. 21 in the same context.
I accept that.
I move amendment No. 22:
In page 7, between lines 40 and 41, to insert the following:
"(k) propose legislation and assist in the drafting of legislation.”.
This is self-explanatory and proposes to give a power to the commission to propose legislation, circulate heads and assist in the drafting of legislation. The Minister said he had a difficulty with this, which I am not sure I accept.
I have already referred to the work of the Joint Committee on Justice, Equality, Defence and Women's Rights. During the course of its examination of the matter, that committee heard from various non-governmental organisations operating in the human rights area, including the Irish Council for Civil Liberties which made a detailed and well thought-out presentation. The council made the case that the commission should have the power not just to review the adequacy of law and practice, as is the case under section 8(a), but also the power to draft legislation, which is what Deputy Flanagan suggests. The committee took the view that the provision in section 8(a) already gives the commission the discretion to advocate legislation, which power could also include the preparation of draft legislation, if the commission considers that this is the best way to proceed in the particular circumstances.
That is what the Government always intended in drafting the functions of the commission. It has yet to be seen how this particular function will dovetail with the existing constitutional role for the drafting of Government sponsored legislation through the office of the Attorney General and more specifically through the office of the parliamentary draftsman. However, this is only a matter of procedure. The Law Reform Commission produces proposed legislation in draft form and there are no difficulties with that arrangement. I see no reason why, if the Human Rights Commission sees fit to produce proposals for measures of reform in any area under its remit, that it cannot assimilated into the normal drafting process. It might also be relevant to the discussion that the proposals prepared by the commission could obviously be useful as a basis for Private Members' Bills, which would be a considerable consolation to hard-pressed Opposition front bench spokespersons. I am sure Deputy Flanagan would welcome that.
I am prepared to accept the favourable response from the Minister.
I move amendment No. 23:
In page 7, between lines 40 and 41, to insert the following:
"(k) to receive from members of the Government any proposed legislation or the consideration of the Commission.”.
I will anticipate the Minister's reply who will perhaps tell me this role and function is contained elsewhere.
I would like to be in a position to say what this means exactly. This general area was considered by the Joint Committee on Justice, Equality, Defence and Women's Rights, as part of its detailed consideration of the Government's proposal. It is important that I express my thanks and appreciation for the work the committee did on the proposals which led to the Bill. The committee produced an excellent, well-reasoned report on the matter in June 1999 and the All-Party Committee on the Constitution also examined the matter. It forwarded its observations in March 1999 and these were also extremely useful.
In the course of its discussion on the specific question of whether the commission should have the power to review proposals for legislation, the joint committee took the view that while there was merit in it, it was reluctant to recommend that this power be granted to the commission as a right because it was felt it would lead to further delays in the legislative process. As an alternative, the committee recommended that as a matter of administrative practice, a copy of every Bill initiated should be forwarded to the commission, thus enabling it to make its views known if it considers this to be necessary. I agree with that suggestion and I do not see any difficulty with putting it into effect, which will be done.
I move amendment No. 24:
In page 7, between lines 40 and 41, to insert the following:
"(k) to carry out within a period of three years after the coming into effect of this Act a comprehensive human rights audit in respect of legislation and regulation in force, to ensure compliance with this legislation.”.
This is a fundamental function of the commission, regarding what we said at the outset about the number of conventions that we have signed and not incorporated and the legislation on our Statute Book which has not been proofed. I would have thought this would be the initial function of the commission, that is, to carry out a complete audit within a defined period. I hope the Minister will indicate that this will be the case.
To be honest, I am sympathetic to what Deputy Flanagan is trying to achieve but I am reluctant to tie the commission's hands in the fashion he advocates. I am worried that if I do this, that is, in terms of there being an audit, I would be unduly restrictive on the commission, I would put an undue onus on it and I would be overburdening it.
Deputy Flanagan's amendment seems to be based on a provision in New Zealand's human rights legislation. The Deputy might recall my earlier reference during discussions on this legislation that when such a remit was given to the New Zealand Human Rights Commission with a four year time frame under the 1993 Human Rights Act, the commission had been in operation since 1977. That is not the position here. We are starting from a position where there is no commission. In those circumstances, I would prefer to leave it up to the commission, in accordance with section 8(a), as to whether it wants to do what Deputy Flanagan suggests.
I see merit in what he suggests but believe I would be unduly overburdening the commission and that it might be unduly restrictive in the initial phases. In those circumstances, I ask him to let the commission off under section 8(a) and see how things go.
It may be preferable not to tie the hands of the commission by incorporating this amendment in legislation. Would the Minister be favourably disposed to this work being carried out by the commission? Perhaps a body such as this committee might write to the commission, following its inauguration, or invite it here and propose that such an audit be undertaken at a future date. It will have to be done and whether we tie its hands by way of legislation, is something which perhaps can be debated. I regard this as fundamental and believe the commission should be mandated to undertake such a task.
I support this extremely important amendment. When the Environmental Protection Agency - I am not suggesting this is an analogous forum - was established, the legislation stated that the EPA was required to have a comprehensive audit of the environment within a five year rather than a three year time frame and thereafter to produce a report, an update, every five years. That is implicit in the legislation and I do not believe it would happen without it being stated so overtly. A comprehensive audit of our position in relation to our international obligations would be very useful so that we can all take our responsibilities more seriously. If that was visited periodically on a statutory basis, it would be a good thing.
I have a difficulty with it. The difficulty relates to the tying of the hands of the commission. The legislation does not include a time frame and that is not an omission, it is a deliberate tactic. The reason for that deliberate tactic is to allow the commission time to breathe. Obviously, it will be necessary, as Deputy Flanagan said, for an audit. It would be open to the committee to write and suggest that but I am very reluctant to include it in the legislation for the reasons I have outlined. We are starting from a de novo position. If we had had a commission on a non-statutory basis, I would be all for it. I am, however, reluctant to include it because the power is in section 8(a) and there will be enough work for the commission to do in its initial stages besides trying to meet a time frame which I insert in the legislation.
I hear what the Minister is saying and I will not divide the committee on it. I am, however, a little disappointed.
I move amendment No. 25:
In page 8, between lines 2 and 3, to insert the following subsection:
"(2) The Commission may from time to time as appropriate assist an individual or group in the matter of proceedings to the European Court of Human Rights, or some such forum.".
Under section 9, we move to the inquiries which might be undertaken from time to time by the commission, and there are many. I would have wished we might have added one to allow the commission to back an individual or group on a direct matter of proceedings to the European Court of Human Rights. We have experience of cases being taken by individuals and groups in the human rights area without the benefit of having an important body like the Irish human rights commission which we will inaugurate. It may be appropriate, in the course of any proceedings which may be initiated, that assistance would be forthcoming. To ensure that, an amendment specifying that power would be appropriate.
As Deputy Flanagan is aware, only individuals, organisations or groups of individuals who claim to be victims within the terms set out in the convention can take an action before the European Court of Human Rights. If an individual or group is so qualified, the text, as drafted in section 10, has been defined in such a way as not to preclude the commission funding such an application where it considers it is appropriate. I should perhaps add a note of caution here. The human rights commission would not be a super-litigious agency, far from it. In the discussions with representatives of the Australian and New Zealand Human Rights Commissions, it was clear that in both those jurisdictions, their respective commissions in their crucial proactive advisory roles were able to avert entirely or substantially reduce possible difficulties which might have arisen in the implementation of certain policy matters and legislative provisions. In those circumstances, I ask Deputy Flanagan to withdraw his amendment.
I have not made the case that the commission would institute proceedings but that it would assist an individual or group. I am not sure if that is included in section 10.
The text of section 10 has been drafted in such a way as not to preclude the commission from funding such an application where it considers it appropriate.
If the Minister is happy that——
I am happy enough with it.
If the Minister is happy that the point I am making is, in essence, incorporated in section 10——
I am happy that the point Deputy Flanagan is making is covered.
I move amendment No. 26:
In page 8, between lines 2 and 3, to insert the following subsection:
"(2) The Commission may make public statements in relation to any group or person, in or who may be entering the State, who are or who may have been or may be subject to hostility, or who have been or may be brought in to contempt, on the basis that this group consists of persons against whom discrimination is unlawful.".
The making of public statements by the commission from time to time is something which is important. This is specifically referred to in the New Zealand legislation. I would have thought consideration might have been given to this in so far as specifying that the commission would make statements in the public arena when the need would arise.
As I indicated at the conclusion of Second Stage on 1 March, I have given further consideration to the point at issue in this amendment. It is something which was looked at during the initial drafting phase of the Bill and the provision in section 5(1) of the 1994 New Zealand Human Rights Act was considered as a model. Deputy Flanagan's draft may be drawn from that source.
I am reinforced in my view that such an amendment is not needed on several grounds and I propose to list these as follows. If the commission wishes to take an initiative in this particular area, it may do so under its functions, specifically under section 8(c) and no specific provision is thus required to enable it to do so. The commission will have a considerable legislative background to draw upon. A comprehensive regime is now in place to underpin discrimination in the workplace through the establishment of the Employment Equality Agency and the Director of Equality Investigations. The new authority is based on a wider and deeper equality agenda which prohibits discrimination in employment, training and job-related advertising and in the provision of education, goods and services and facilities and on nine specific grounds, including race and membership of the Traveller community.
The Equal Status Bill, when it becomes law very shortly, will outlaw discrimination in the provision of services on similar grounds. Enactment of that Bill will also enable us to ratify the UN international convention on the elimination of all forms of racial discrimination and will move us several significant steps towards the lifting of certain reservations applicable to the convention on the elimination of all forms of discrimination against women. Action can be taken by means of prosecution under the Prohibition of Incitement to Racial Hatred Act. The provision in the New Zealand human rights code was considered to be required to deal with problems associated with attitudes towards indigenous inhabitants, Maori, not immigrants and, accordingly, I am opposed to the amendments.
We are dealing with indigenous groups here as well as refugees.
I move amendment No. 27:
In page 9, subsection (8) (a), line 5, to delete "fully and truthfully" and substitute "under oath".
I would have thought those persons who would be required to appear before the commission might be required to give evidence under oath.
By way of background to this matter I should explain that initially when the Government decided, in line with the Paris Principles, to give the human rights commission the powers to initiate and undertake inquiries it was clear from the start that it should have the necessary means to conduct those inquiries. The analogous provisions in clause 69, subparagraph (7) of the Northern Ireland Act, 1998, giving the commission the power to conduct such investigations as it considers necessary or expedient is silent on precise methods the commission could use to make such a power effective. I know this is a matter of some concern to the Northern Ireland Commission and it hopes to have the position changed as part of the review procedure. In our case, the draft heads of the Bill released for consultation and comment contained a provision based on the power given to the Ombudsman in the 1980 Act which, as adapted to suit the human rights commission, would have meant that any person who obstructed or hindered the commission in the performance of its function or did any other thing which, if the commission were regarded as a court having the power to commit a person for contempt of court, would be such contempt. It was felt this approach struck the right balance appropriate to a human rights commission between the choices which were available.
While most of the bodies that were consulted on the proposals and investigative powers were quite happy with what was proposed, including this committee, the statutory powers of the Ombudsman in this area were never really tested. We were also aware that these powers were under review and that a provision along the lines of what the Human Rights Commission Bill now contains in this area was thought suitable for the Ombudsman also. Accordingly, the more transparent provisions in the Equal Status Bill seem to suggest a more workable and practical alternative suitable for the commission. The provisions in the Bill in this respect are largely modelled on those provisions including the requirement for persons appearing before the commission to answer questions fully and truthfully and acknowledge compliance by signing a declaration to that effect, if requested to do so by the commission.
The Bill acknowledges that persons appearing before the commission may not wish to take an oath or affirmation and the procedure as set out is as neutral as it can be in that respect. I am happy with the provisions and do not believe the proposed amendment would improve the position, particularly as it does not cater for people who, for whatever reason as Deputy Flanagan is well aware, might not wish to swear an oath.
I will study the Minister's reply between now and Report Stage.
I move amendment No. 28:
In page 10, subsection (18), lines 5 and 6, to delete "or, at the election of the Commission, for the Dublin Circuit".
Section 9 deals with inquires by the commission. Subsection (6) states that for the purposes of the inquiry the commission may do certain things. Subsection (9) states that if it appears to the commission that a person has failed to comply with the requirement under subsection (6) the commission may apply to the Circuit Court. Subsection (18) states that an application under section 9 to the Circuit Court shall be made to the judge of the Circuit Court, so it is the circuit in which the respondent resides, or at the election of the commission for the Dublin circuit. As a rural Deputy speaking to a rural based Minister I am at a loss to understand why it would be at the election of the commissioners to require the circuit to be in Dublin. It diminishes the normal rule where a defendant has a case heard in the area in which he lives and it ousts the jurisdiction of the Circuit Courts outside of Dublin. It is not a good principle.
I agree with the intention behind the amendment. On the face of it, it may be considered a burden on a party who lives outside Dublin to answer a case put by the human rights commission in Dublin. I realise there could be instances where a party engaged with the commission might wish to have the matter dealt with in a neutral environment but I imagine this would be rare. Furthermore, the present provision might give the impression that the commission will, of necessity, be based in Dublin and that might not be the case. I am more than happy to accept the Deputy's amendment but perhaps it would be better to state: "the jurisdiction conferred on the Circuit Court in proceedings under this Bill shall be exercised by a judge of the court for the time being assigned to the circuit in which the respondent resides or ordinarily carries on any profession, business or occupation". We can look at it for Report Stage.
I move amendment No. 29:
In page 11, subsection (3), lines 27 to 30, to delete all words from and including "and" in line 27, down to and including "force" in line 30.
The definition of human rights is outlined in section 11(a) and (b). Section 11(b) states:
the rights, liberties or freedoms conferred on, or guaranteed to, persons by any agreement, treaty or convention to which the State is a party. . .
I want to insert a full stop at that point. It continues:
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;
That is a restrictive view of human rights. It is only where the treaty is part of the domestic law. The definition of human rights should cover the broad corpus of liberties enshrined in international treaties and conventions to which the State is a party.
The need for a more restrictive definition of human rights for the purposes of the Bill connected with the taking of legal proceedings by the human rights commission was fully outlined by me on Second Stage on 25 November 1999, at column 1027 of the Official Report, Our courts can only deal with matters that are law for and in the State. There is no point in basing cases on human rights instruments that are not law in this State. While many such instruments have been signed and ratified by the State it does not follow that the provisions of such instruments are cognisable or justiciable on their own in the State. They may be law for us on the international plane but on their own they cannot be pleaded before our courts. Article 15.2 of the Constitution provides that the sole power of making laws for the State is vested in the Oireachtas exclusively. Article 29.6 provides that no international agreement shall be part of the domestic law of the State save as determined by the Oireachtas. The European Convention on Human Rights is a case in point, though the position in that regard may be about to change in the not too distant future in the light of action that may have to be taken to incorporate the convention into Irish law in the light of the obligation under the Good Friday Agreement to further develop and underpin the constitutional protection of human rights in the State. To accept the amendment would be to make a nonsense of the commission's legislative powers. It cannot take cases based on rights that are not cognisable nor justiciable under Irish law. Perhaps in those circumstances the Deputy will withdraw the amendment.
We are dealing with section 11. The commission may institute proceedings in any court of competent jurisdiction for the purpose of obtaining relief of a declaratory or other nature. I am advised that, as we are only dealing with declarations, there is no reason in law the commission could not get a declaration regarding a conflict between a domestic statute and a treaty that the State has ratified but not implemented in law. It is a matter on which I will reflect further and return to on Report Stage. The Minister might send me a briefing note on his reasoning on this.
I move amendment No. 30:
In page 11, lines 33 to 35, to delete subsection (1) and substitute the following:
"(1) There shall be a chief executive of the Commission who shall be appointed by the Commission (and such an officer shall be known, and is referred to in this Act, as 'the chief executive').".
It was always the Government's intention that the chief executive of the human rights commission would be appointed by the commission. The purpose is to underline the importance of the independence of the commission. The power to appoint its own staff runs through all the provisions dealing with staff appointments.
I move amendment No. 31:
In page 12, before section 15, to insert the following new section:
"15.-There shall be established within a period of six months following the enactment of the within legislation a joint committee comprising representatives of the Commission and the Northern Ireland Human Rights Commission, as a forum for consideration of human rights issues in the island of Ireland. The joint committee shall consider, among other matters the possibility of establishing a charter, open to signature by all democratic political parties, reflecting and endorsing agreed measures for the protection of human rights of every person living in the island of Ireland.".
Unfortunately, I do not have time to go into this matter to any great extent. It is very important in the context of the Good Friday Agreement, because were it not for the Agreement, the legislation would not be before us this year. Under the Good Friday Agreement, specific reference is made to a joint committee. It is regrettable that there is no reference in the legislation to the joint committee. This is of great importance and I hope that if Minister will not incorporate the amendment in the legislation he will confirm that what is stated in the amendment will be carried out within the six month period.
Section 8(h) already provides that the Human Rights Commission will take whatever action is necessary to establish and participate in the joint committee of representatives referred to in paragraph 10 of the section entitled “Rights, Safeguards and Equality of Opportunity” of the Agreement Reached in the Multi-Party Talks. Therefore, there is no need to elaborate on the provision in the Bill.
What about a timeframe?
There is not a timeframe. Neither is there a timeframe in the Northern Ireland legislation or in the Agreement. There is not a timeframe anywhere.
Is the Minister prepared to say he will undertake this initiative?
We will wait until the commission is established and consider the matter then.
I move amendment No. 32:
In page 12, subsection (1), line 51, to delete "Interestes" and substitute "Interests".