Dr. Eilionóir Flynn:

I thank the committee for inviting me to be here today. It is a privilege. In my opening remarks I will draw the committee's attention to the process by which Ireland generally ratifies UN human rights treaties, with reference to some of the core treaties Ireland has ratified over the years, and what we can learn from this process as we move forward to prepare to ratify the Convention on the Rights of Persons with Disabilities, CRPD.

It is important to outline the legal status of UN treaty ratification for Ireland. When Ireland signs a human rights treaty at the UN, it does not agree to be bound by that treaty, but is obliged to refrain from acts which would defeat the object and purpose of the treaty, according to the Vienna Convention. According to the same convention, states are deemed to have ratified a treaty when the state’s representative deposits the instruments of ratification with the UN. Many UN human rights conventions also have an associated optional protocol, which usually facilitates individual rights holders from states parties to make complaints directly to the UN if they feel their human rights under the particular convention have been violated by the state.

All states, including Ireland, are free to determine their own internal process to prepare for the ratification of a UN treaty or optional protocol. In Ireland, generally the procedure when signing or ratifying a UN treaty is the Minister for Foreign Affairs and Trade brings a proposal to Government. The Minister and the Government will often seek legal advice from the Attorney General on whether there is any legal or constitutional impediment to ratification.

While it is the role of the Minister for Foreign Affairs and Trade to bring forward a proposal for ratification, individual Departments can request the Department of Foreign Affairs and Trade to expedite this process. This approach has been taken successfully to a number of treaties, for example, with regard to Ireland's ratification of the optional protocol to the Convention on the Elimination of All Forms of Discrimination Against Women. In that case, in 2000 the then Minister for Justice, Equality and Law Reform requested the advice of the Attorney General and was satisfied that no legal or constitutional impediment existed to Ireland’s ratification of this protocol.

The Department of Justice and Equality requested that the Department of Foreign Affairs and Trade expedite the process to ratify the optional protocol and ratification occurred the same year, 2000.

Once the proposal for ratification has been approved by the Minister and by the Government, Ireland's representatives at the UN can then deposit the necessary instruments of ratification. Following ratification, Article 29.5 of the Constitution provides that every international agreement to which the State becomes a party, should be laid before Dáil Éireann. In effect, the Parliament is only involved in the process once the Executive - the Minister and the Government - has decided that a treaty will be ratified. It is the policy of the Department of Foreign Affairs to ensure all international agreements to which the State is a party are laid before Dáil Éireann promptly. This has been expedited in recent years. Since 2004, the target is for all international agreements which have entered into force for Ireland in a given calendar year to be laid before the Dáil no later than the end of the following calendar year.

From the process I have outlined, it is clear that the Oireachtas does not play a significant role in determining whether Ireland should ratify any particular international agreement and there is only an opportunity for parliamentary debate on the matter once the Government has already made the decision to ratify. The Council of Europe has developed an Assembly Resolution 1823 (2011) which states that national parliaments should play a greater role in the implementation of international human rights norms at national level and that this can be done, for example, through their involvement in the ratification of international human rights treaties.

In the past, Ireland has tended to sign many UN human rights treaties shortly after their adoption, but in most cases Ireland has not speedily ratified these conventions. For example, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, were adopted by the UN in 1966, signed by Ireland in 1973 but not ratified until 1990. The Convention on the Elimination of Racial Discrimination was also adopted by the UN in 1966 and signed by Ireland in 1968 but not ratified until 2001. I could list many other examples but it is important to note that Ireland has improved its timeframe for ratification of UN conventions in recent years, in particular, between 1990 and 2002, when Ireland ratified the majority of the UN conventions. This might be attributed to a growing awareness of human rights in Ireland during that timeframe with Ireland's incorporation into domestic law of the European Convention on Human Rights. Therefore, while it took Ireland longer to ratify some of the older UN human rights conventions from the 1960s and 1970s, the current climate of human rights awareness in Ireland means that ratification of newer UN human rights conventions should be smoother and also speedier. A good example is the UN Convention on the Rights of the Child which was adopted by the UN in 1989 and ratified by Ireland in 1992. The entire process, from the UN concluding that convention to Ireland's ratification, took a mere three years.

While it is up to each individual state to determine when it is ready to ratify a particular human rights convention, Ireland has taken the approach that it does not become party to treaties until it is first in a position to comply with the obligations imposed by the treaty in question, including by amending domestic law as necessary, as stated by the Minister of State, Deputy Kathleen Lynch, in the Dáil in 2014 in response to questions as to when Ireland might ratify the Convention on the Rights of Persons with Disabilities. However, the determination of whether Ireland is in a position to comply with the obligations imposed by the treaty, tends to vary. For example, when Ireland ratified the Convention on the Elimination of All Forms of Discrimination Against Women in 1986, rape within marriage was not prohibited by the criminal law. In my view, Ireland was not at that time in a position to comply with the convention's provisions on ensuring women had full reproductive autonomy. Nevertheless, Ireland ratified the convention without any reservations on these issues. Similarly, Ireland ratified the Convention on the Rights of the Child long before the Thirty-First Amendment of the Constitution which now explicitly recognises the rights of the child.

According to the UN Office of the High Commissioner for Human Rights, the requisite standard for states to be in a position to ratify human rights treaties is not that the state is compliant with all the provisions of the convention, which is a very ambitious and perhaps unattainable standard, but rather that the state’s laws are in conformity with the object and purpose of the convention. This approach recognises that the process of achieving full compliance with a convention’s provisions takes time and that states can benefit from the guidance of UN treaty bodies and from dialogue with other states in order to achieve this goal. Without ratification, states are not required to report to the UN treaty bodies for those conventions and therefore do not get feedback on their progress and neither do they have opportunities to be formally involved in conferences of states parties to a particular convention, where they might be able to share their experiences with other states and exchange examples of good practice.

With specific reference to the ratification of the Convention on the Rights of Persons with Disabilities, the UN Office of the High Commissioner for Human Rights has recommended that states considering ratification should review national legislation and policies for compliance with the convention. The office also clarifies that any pre-ratification review should be part of a process that continues in the implementation phase to review existing and proposed legislation. From these statements it seems clear that the expectation by the UN is that not all issues of compliance will be resolved prior to ratification but that the process of ensuring compliance is an ongoing one to carry on into the implementation phase. The Office of the High Commissioner for Human Rights strongly urges states to engage in a meaningful consultation process to prepare for ratification and that those processes should involve parliaments as well as non-governmental stakeholders and in particular, in this context, the representative organisations of persons with disabilities. The UN also recommends states should publicly launch the process of ratification, make publicly available a plan that includes timelines and opportunities for consultation, and invite civil society and organisations of persons with disabilities to make submissions presenting their views on the opportunities, implications and challenges of ratification. To date, responses to parliamentary questions on Ireland’s preparations to ratify the UN Convention on the Rights of Persons with Disabilities, have been made by both the Minister for Justice and Equality and the Minister of State with responsibility for equality, disability, mental health and older people. The Ministers in their responses have generally referred to the fact that Ireland does not ratify conventions until it is sure that it is in a position to comply. It has also referenced the fact there are various Departments working on issues to determine whether any actions are required to address the issues in advance of ratification. An interdepartmental committee is working on these issues. Each Department has been identifying areas of concern prior to ratification. In the answers to parliamentary questions provided by Ministers to date, the only key legal reform being discussed explicitly is the idea of an acting capacity legislation. We are aware that the Committee on Justice, Defence and Equality will be considering the Committee Stage of the Assisted Decision-Making (Capacity) Bill shortly.

Last April the Department of Foreign Affairs and Trade has made available some information on the work of this interdepartmental committee and identified some further areas of reform beyond the Assisted Decision-Making (Capacity) Bill which, in its view, may need to be addressed prior to ratification. Those areas include sexual offences legislation, mental health legislation and various miscellaneous amendments, including a constitutional issue around the definition of "reasonable accommodation" contained in the UN Convention on the Rights of Persons with Disabilities. The Department of Foreign Affairs has committed to publishing a roadmap to ratification once all Departments with responsibility in these areas have reverted to the interdepartmental working committee with information on how they will progress actions required under their remits to enable ratification and once the Government has approved the actions to be taken.

In light of the lessons from Ireland’s ratification of previous UN human rights treaties, I could make a number of suggestions for how the ratification process for the UN Convention on the Rights of Persons with Disabilities and other new conventions that might emerge from the UN can be strengthened in Ireland. It would be crucial to strengthen the role of the Oireachtas in providing input and feedback on the proposed roadmap to ratification. Many other countries in their processes of ratifying this convention have demonstrated how the involvement of parliamentarians in providing input and feedback on the ratification challenges has strengthened the implementation of the convention post-ratification. It is also vital to engage in a meaningful participatory process with civil society to debate the issues for ratification. This should include the national human rights institution which is the Irish Human Rights and Equality Commission and especially the representative organisations of people with disabilities.

A clear plan of action for eliminating remaining obstacles to ratification should be published, along with an agreed timeframe for completion of these actions. There are many allies in the Government, Oireachtas and civil society who are more than happy to work together to find solutions to the remaining obstacles to the ratification of the UN Convention on the Rights of Persons with Disabilities, but there is a need for transparency and accountability to be increased to move this work forward.