Frances Fitzgerald (Dublin Mid West, Fine Gael) | Oireachtas source

This was originally Senators Zappone and van Turnhout's idea and it is a good one. I am delighted we were able to agree on a revised text for discussion today, following our talk on this topic on Committee Stage.

The proposed amendment adds something valuable to section 42, which itself introduces a positive duty on public bodies to have due regard to human rights and equality and reflects a commitment in the Government's Programme for National Recovery 2011 to 2016, which states: "We will require all public bodies to take due note of equality and human rights in carrying out their functions."

The commission will assist public bodies to comply with the positive duty, including by producing guidelines and codes of practice as outlined in section 31, and, if we accept this amendment, it will, in situations where it is justified and reasonable to do so, have the power to invite a public body to undertake a review or develop and implement an action plan in regard to a failure by that public body to comply with its statutory human rights or equal treatment obligations. This is a group of five amendments, because there are consequential changes and a cross-reference to adapt, but the essential point is set out in amendment No. 3.

There are two substantive points of difference with the proposed amendment we previously discussed on Committee Stage and I will put on the record the rationale for these two differences and set the proposed new provision in the context of its relationship with the power of inquiry in section 35.

The first point of variation is in regard to allowing the commission to impose a review or action plan on a public body. As I said previously, that will not quite work in practice because for genuine reform to take root, the senior management of an organisation needs to take ownership of the process. It is really about persuasion and support. Again, I repeat the point that the commission is well-placed, once it has developed a good working relationship with Oireachtas committees, to address any instances in which a public body refuses a request or presents a review or action plan that is inadequate. A Minister or a CEO will not want to be in a position of explaining to the Oireachtas why a particular public body took a stand against complying with its statutory obligations. For a CEO to have to explain why the body refused to develop a strategy to address real deficiencies in the way to meet its human rights and equality rights obligations would be a very uncomfortable and an unlikely position in which to put himself or herself but, otherwise, the idea that the commission might work with a public body to address identified deficiencies and areas that need attention and invite it and support it in undertaking a review or putting an action plan in place is a very useful addition to the Bill. Again, I thank Senators Zappone and van Turnhout whose idea this was and which was supported by other Senators.

The second point of difference is that we are looking at evidence of a failure by a public body to meet its human rights and equality of treatment obligations rather than evidence of a systemic failure. The rationale for this change involves me linking back to something I discussed previously, namely, the inquiry provision. The inquiry provision in section 35 allows the commission to launch an inquiry if it has evidence of "(a) a serious violation of human rights or equality of treatment obligations in respect of a person or class of persons, or (b) a systemic failure to comply with human rights or equality of treatment obligations; and (c) the matter is of grave public concern".

The new mechanism we are creating with this amendment should logically fit in before one comes to contemplating use of the inquiry function, and I addressed this on the last occasion we discussed it. It has the potential to allow the commission and public bodies to work together in a positive way to solve problems before they become crisis situations. That being so, logically, we do not need to wait until the matter is of grave public concern and can omit this element. However, if we have evidence of a serious violation of individual rights, then the commission has the option of taking a case to court or assisting persons to take cases as appropriate, so we do not need paragraph (a) of the inquiry function.

We are left then with paragraph (b) which states "a systemic failure to comply with human rights or equality of treatment obligations". However, we also want to make this an attractive option for both the commission and a public body. We propose to do that by not requiring the commission to make a statement that it has found evidence of a systemic failure. That would be a very serious finding and public bodies might feel obliged to dispute it. If we take that element out of the equation and merely require evidence of a failure, there might be less inclination in a public body to object and public bodies might find it easier to accept the commission's invitation and its offer to provide assistance as a positive thing, which is what we want to see. We want organisations and bodies working with the commission to reach ever higher standards in regard to human rights.

As we discussed on Committee Stage, the assistance the commission can offer includes training and, as we know, both the existing bodies - the Equality Authority and the Human Rights Commission - have been active and successful in this area.

I should stress that the mechanism we are creating by this amendment would not be a power to be used routinely, with which I think Senators will agree. It should be used strategically to address, in what I would call a learning and collaborative way, real problems and, in so doing, interrupt larger ones developing down the road. The commission can use this mechanism to help public sector bodies and front-line public servants do a better job. The commission will have to put its own internal processes in place to be satisfied that it has sufficient evidence. It is important the commission has its own rationale for going down this route and has reasons to believe there has been a failure before it involves this new mechanism.

As a State agency itself, the commission is obliged to act reasonably and judiciously and would need, for example, to share that evidence it feels it has and the rationale for its conclusion with the public body concerned and take account of whatever representations the public body might make to it. I hope Senators support this amendment. I commend the amendments to the House.