Oireachtas Joint and Select Committees
Wednesday, 13 November 2013
Joint Oireachtas Committee on Justice, Defence and Equality
Recognition of Traveller Ethnicity: Discussion
The next part of this meeting is an engagement with representatives of the Irish Human Rights Commission and the Equality Authority on recognition of Traveller ethnicity. Briefings have been circulated to members. On behalf of the committee, I welcome Ms Sinéad Lucey from the Irish Human Rights Commission and Mr. Laurence Bond from the Equality Authority. The format of the meeting will be for both witnesses to make an opening statement and then we will have questions from members. I remind everybody to make sure their mobile telephones are switched off because they interfere with the sound system.
Witnesses are protected by absolute privilege in respect of their evidence to this committee. However, if they are directed by the committee to cease giving evidence in relation to a particular matter and continue to so do, they are entitled thereafter only to qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise nor make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable.
Members are reminded that under the salient rulings of the Chair they should not comment on, criticise or make charges against a person outside the Houses or an official either by name or in such a way as to make him or her identifiable. I invite Ms Lucey to make her presentation.
Ms Sinéad Lucey:
The commission appreciates the opportunity to make a presentation to the committee today. Since its establishment, the commission has consistently expressed its concern regarding the human rights of the Irish Traveller community. This concern has been reflected at various levels of the commission's work. It was in the context of the State’s first examination under the International Convention on the Elimination of All Forms of Racial Discrimination, CERD, in 2004 that the commission undertook a detailed consideration of the question of Traveller ethnicity. That was in response to the State’s assertion at that time that Travellers did not constitute an ethnic minority in the State. A discussion paper was published which was a legal analysis of the recognition of Travellers as an ethic minority measured against international human rights standards, relevant case law and legislation. At that point the commission predicted that the CERD committee would regard Travellers as an ethnic minority when the State’s report was examined. The commission was correct in its prediction and the CERD committee has made two recommendations, in 2005 and again in 2011, urging the State to work more concretely towards recognising the Traveller community as an ethnic minority. In addition, the UN Human Rights Committee, in considering the State’s compliance with the International Covenant on Civil and Political Rights, also made the same observation in 2008 and expressed concern regarding the State’s approach to the matter. It is notable that the UN Human Rights Committee has issued further questions to the State on its work towards the recognition of Traveller ethnicity.
At Council of Europe level, the Advisory Committee on the Framework Convention for the Protection of National Minorities expressed its concern in 2006 regarding the outright rejection by the State of Traveller ethnicity. The advisory committee, in its most recent opinion on Ireland published in April this year, welcomed the fact that the Government was now demonstrating a more open approach to the question of Traveller ethnicity and recommended that the State finalised its consideration of the proposed recognition of Travellers as an ethnic minority so that they could access all applicable international and domestic non-discrimination rights.
As for standards, in January 2013 the Irish Human Rights Commission published its most recent consideration on the question of recognition of Traveller ethnicity. The commission's submission to the Government welcomed the more open response of the State to the question. However, the commission also expressed concern that the State had shifted its position from outright denial of ethnicity to one which focused on what may prove to be a wholly-elusive consensus among the Traveller community and Traveller representative organisations as a possible prerequisite to recognition.
The commission’s submission explores this position in detail and submits that the principle of self-identification as protected under the International Convention on the Elimination of all Forms of Racial Discrimination, CERD, and indeed similarly enshrined in the framework convention, was being misunderstood by the State and that a universal form of self-identification as an ethnic group is not a necessary prerequisite for recognition of an ethnic minority by the State for the purpose of ensuring legal protection of that group. We pointed out that the Human Rights Committee is clear that the existence of an ethnic minority in a State requires to be established by objective criteria. This is nothing to do with opinion or consensus. The principle of self-identification presupposes the existence of an ethnic minority but affords protection to each individual within that group from being coerced in any way to so identify. One can think of many reasons from history as to the reason such protection is considered necessary for vulnerable minorities.
As to the question of whether the State should recognise Traveller ethnicity, the commission would submit that Traveller ethnicity essentially is a legal reality by which the State is bound, irrespective of any formal act of recognition. Regardless of whether the State chooses to so recognise Travellers, it will in no way prevent the international bodies identified in our submission from continuing to recognise Travellers as an ethnic minority and to hold the State to account for their treatment in that light. By its denial, the State puts itself in the anomalous situation of denying ethnicity but not being able to deny the protections that flow from that status. We point out that the State has never itself put forward cogent reasons as to why it considers that Travellers do not satisfy the necessary criteria for recognition as an ethnic minority. More positively, the commission sets out in its submission the reasons recognition of Traveller ethnicity will be of benefit to the Traveller community itself and to the State and society in general. We also pose the question as to how the State should recognise the ethnicity of Travellers and observe the modalities for recognition of ethnicity are not set out in any international instrument or opinion and so there is no defined process in this regard. In our written statement, we suggest a possible statement on the record of Dáil Éireann, which then is reflected in the State's international reporting and is carried through into domestic law and policy.
In conclusion, the commission is presently anticipating its merger with its sister organisation, the Equality Authority, and it is appropriate that representatives of both organisations are sitting here side by side today. We understand that new legislation is imminent and may confer on the new Irish human rights and equality commission a wider remit, including in respect of encouraging intercultural understanding, promoting tolerance and acceptance of diversity in the State. At this juncture the commission respectfully urges the State itself to lead by example in this regard by finally recognising Traveller ethnicity.
Mr. Laurence Bond:
On behalf of the Equality Authority, I thank the joint committee for its invitation to make a presentation today. It is the view of the authority that recognition of Traveller ethnicity is central to effective promotion of equality for members of the Traveller community. Such recognition has significant practical implications. International agreements and EU legislation will not name specific ethnic groups from particular states within their provisions on ethnicity. Therefore, Traveller ethnicity needs to be recognised by Ireland to ensure Travellers can fully enjoy the protections and benefits that flow from these agreements and legislation alongside other ethnic groups. In addition, Traveller ethnicity is a key factor that must be taken into account in identifying and responding to the needs of the Traveller community. Furthermore, equality is not only concerned with access to resources or decision-making, important as they are, but must involve access to recognition, status and standing in society. The recognition of Traveller ethnicity is in our view central to achieving equality of status or standing for the Traveller community and would provide a strong foundation for building new relationships of respect and solidarity between the Traveller and settled communities. Our submission to the Committee consists of a detailed consideration of the issue of Traveller ethnicity, which the authority published in 2006. Prior to this, as we have just heard, the Irish Human Rights Commission had already published an in-depth consideration of the question of the recognition of Travellers as an ethnic group from a legal perspective, which the Equality Authority endorsed. Our report, therefore, has a different focus.
It provides an overview of the evolution of public policy thinking on Travellers’ identity as a group in Irish society, drawing on the three major official reports on Travellers and related material, relevant Dáil debates and various statements of Government policy. What this overview shows is that official policy thinking has in fact moved to a position of strongly affirming the distinct culture and identity of Travellers as an indigenous minority within Irish society. There is indeed general consensus on this matter. It further shows that what this has actually meant is that in many ways, Traveller ethnicity has de facto been acknowledged. For example, I refer to the decision in the Equal Status Act 2000 to incorporate in equality legislation a definition of the Traveller community that was explicitly modelled on the Northern Ireland Race Relations Order 1996. Not surprisingly the incorporation of this definition in the legislation at the time was generally interpreted as confirming legislative recognition of Travellers as an ethnic group. However, if in on the one hand it appeared as though Traveller ethnicity was being acknowledged, on the other it was being denied and specifically in the context of Ireland’s engagement with the international human rights system. In the light of the positive shifts in official thinking that were evident, the position then taken by Ireland when reporting to CERD, in explicitly denying that Travellers should be recognised as an ethnic group in the international human rights context, was surprising to say the least. The basis for this denial was far from clear but at least in part was based on a claim that the argument that Travellers are an ethnic group was “controversial within academic research”. Our report, therefore, specifically addressed this issue through a detailed analysis of the principal academic literature on Travellers' ethnicity. This demonstrates that in fact, academic work overwhelmingly supports the recognition of Travellers as an ethnic group.
In conclusion, the Equality Authority believes that the case in support of recognising Traveller ethnicity is comprehensive and compelling. It is recommended that the Government should now recognise Travellers as an ethnic group and that this recognition should be reflected in all policies, programmes and institutional practices that affect the Traveller community.
I thank both witnesses for their presentations, which will be of considerable assistance in the compilation of the report the joint committee will draw up shortly with recommendations for the Government. The position of both bodies is clear and has been on the public record in the past. However, I now wish to go through some of the implications of what appears to be ongoing ethnicity denial within this State. As was pointed out in the presentations, in England, Wales and Scotland, on foot of a court decision, the ethnicity of the Irish Traveller community essentially has been recognised. Through the equality legislation in Northern Ireland, there clearly is a definition of Irish Travellers as an ethnic minority. Are there are legal implications for the State because the Government has refused to recognise ethnicity? Are there possible legal implications for the State at a European level in the future if it persists in sustaining this position? I am mindful the witnesses are not attending as legal experts but I seek their thoughts on this point.
Can I stop the Deputy there to get an answer to this very interesting question? We can then return to further questioning. Are there particular reasons, legal or otherwise, in respect of European regulations or whatever, that directives for this cannot happen? What are the implications if it can?
Ms Sinéad Lucey:
The Commission's view on this would be that most protections from discrimination in terms of the Committee for the Elimination of Racial Discrimination, CERD, are linked to ethnicity. Therefore, if one does not recognise Travellers as an ethnic group, one does not recognise that they are automatically entitled to the protections under CERD, the framework convention or any similar instruments. In that regard, the State has been saying that it confers the same protection on Travellers anyway and, therefore, it does not make a difference. However, it actually makes a significant difference in terms of how the State brings back what those committees are saying to it, how it discusses those issues with Travellers and how it seeks to resolve them. If the State is having a dual relationship, stating at an international level it is affording them those protections but at a domestic level stating they are not entitled to those protections, that must have legal implications in terms of recognition of ethnicity.
More specifically, a more obvious example that has been raised quite consistently is that under EU law, protection from discrimination for minorities is based on race and ethnicity. It is far from clear whether Travellers can automatically rely on those protections, and that could come up in the context of domestic proceedings before the Equality Tribunal if a question arises regarding the interpretation of the EU race directive. If it happens in the context of a case that is based on a race ground, there is no question that directive will apply but if it happens in a case of somebody claiming discrimination on the Traveller ground, it is far from clear whether the directive applies, and that merely creates an anomalous situation for Travellers.
The question was whether there is any reason it cannot happen. Is there a legal reason or are there other implications? Why is the State not going along with the recommendation of the Irish Human Rights Commission? I think that is the gist of Deputy Mac Lochlainn's question.
I will clarify. I appreciate every state has its own laws and framework, but the English, Welsh and Scottish law clearly recognises, following a court decision, that the Irish Traveller community is an ethnic community within that jurisdiction. They have made a legal judgment and it has been published. Would Ms Lucey see that as also applying to Ireland, if we looked at it in the same way? Are there legal implications for the State that it is not fulfilling its international obligations?
I have looked through the judgment but I have not had a chance in the past 24 hours to go back over it in advance of the meeting today. One presumes the judge or judges who made that decision were mindful of the international obligations of England, Scotland and Wales as jurisdictions and that they made the decision based on the evidence presented to them. Is the Government exposing us to legal consequences because of its ongoing denial of ethnicity? This position of the Irish Human Rights Commission and the Equality Authority is not new. They have had this position for a number of years. They have given detailed evidence-based submissions and the denial is ongoing. Could there be legal implications for the State, such as challenges, because of this?
Ms Sinéad Lucey:
The legal implications happen at an international and a domestic level. There are quite different consequences, depending on the context. The legal implications at an international level are being played out in the sense that we are being increasingly criticised by expert international bodies for not taking the step of recognising Traveller ethnicity. Those observations are on the record and they do not do the State credit at this stage.
At a domestic level, it depends on the type of case that arises and the exposure. Ethnicity has arisen in the context of domestic proceedings, and while in general they have not gone to a full court hearing, there are certainly implications for the State. It would be difficult to imagine a situation where the United Kingdom precedent would not be followed in Ireland. The same evidence would be adduced before the court, and the same experts and the same arguments. It would be almost impossible for the State to defend its position in that regard, and undesirable to be doing so as well.
Ms Lucey dealt with the issue of this requirement for consensus among the Traveller community. That goes against the principle of self-identification. It is internationally recognised. That is dealt with.
Perhaps Ms Lucey would elaborate on this matter she touched on in her earlier comments and in her response initially to my first question. In terms of the international human rights treaties, what are the implications for the Traveller community of ethnicity denial and what protections under those treaties are being denied that would change if ethnicity were granted? That is my final question.
Ms Sinéad Lucey:
In terms of the implications for the Traveller community, I am happy to have had an opportunity to read the transcripts. Traveller organisations and Traveller representatives have set out some of the implications they perceive and it is difficult to expand further than that. It is the fact that the State is patently in breach of its international obligations. It is the way that, first, Traveller ethnicity has become something of a distraction and these committees are taken up with considering issues around ethnicity that should not arise when they should be focusing on the issues Travellers experience.
Second, many of the recommendations of the committees tend to be linked to the ethnicity question and if the State continues to deny ethnicity, there is no need for the State to consider issues around nomadism. There are implications beyond that.
I thank the witnesses for the helpful presentations. Many of us hold a strong view on this issue of ethnicity, and Deputy Mac Lochlainn's questions go to the heart of the ongoing impact of denial of ethnicity.
I am interested in focusing on an aspect of the presentation about the process of recognition. If the committee is to recommend recognition of ethnicity, how does the Government go about implementing that? I note the suggestion that it may not require legislation. Perhaps I, as a lawyer, have been prejudiced and assumed legislation would be required, but I note the witnesses point out, rightly, that a statement of recognition could be made in the Dáil and Seanad and the State, at an international level, could affirm ethnicity without necessitating legislation, although the witnesses state it would be useful. Could Ms Lucey elaborate on that? Would it be enough to make that sort of statement and to take that position as a State without explicitly setting it out in statutory format?
Ms Sinéad Lucey:
From the point of view of the international community and the international bodies, what they want to receive from the State are reports stating it accepts Travellers are an ethnic minority, these are the issues that arise and these are how we are addressing them. They will not be overly concerned about whether we have that in legislation unless there is a specific implication where Travellers are not able to access the range of protections against discrimination available to any other ethnic group. It is only if it had a practical implication that they would become particularly concerned. If it does not, I am sure they would be satisfied with a statement that cannot later be resiled from. If it were on the record of the Dáil, it would difficult for the State or the Government, having stated that in the Dáil, to argue in any other context on a legal point that Travellers are not an ethnic group. A statement in the Dáil would be a positive first step.
It is interesting that the international bodies have spoken less about recognising Travellers as an ethnic group and more about taking steps to recognise or moving in a concrete way towards recognition. I would interpret that as meaning a series of engagements with the Traveller community to identify and discuss the issues in a meaningful way. It would involve asking how have we not recognised Traveller ethnicity and what elements of our law and policy do not validate Traveller culture and way of life.
It is also a matter of asking how we do not support Travellers in education and whether we do not recognise Traveller history in education. We must ask whether there are barriers to nomadism or certain laws that are inimical to nomadism that have suppressed the practice of travelling? The first step is a formal one that might include making a formal statement. It could be legislation but it could be just a statement in the Dáil. A process must flow from that. It should not be a case of making a statement of recognition and doing nothing further. There should be a meaningful process thereafter.
The way proposed is certainly an easier approach. As Ms Lucey said, Traveller status is recognised in anti-discrimination and equality legislation, including unfair dismissal law. Seeking a statement could be desirable at first, and then one could engage in a process of examining other forms of discrimination. This seems easier than beginning with legislation.
Ms Sinéad Lucey:
It would have considerable symbolic significance for the Traveller community. In this regard, I defer to the others present. The statement of the Taoiseach on the Magdalen laundries is noteworthy. This is an emotional matter associated with esteem and such issues. The symbolic effect of a statement would be very powerful.
Mr. Laurence Bond:
I wish to add to that It is undoubtedly the case that Ireland, in its presentations to international human rights bodies, accepts and recognises characteristics of the Traveller community, such as its history, different cultural identity and its experience of discrimination, that in themselves are sufficient criteria for recognition as an ethnic group. One of the difficulties associated with this issue and which probably causes some confusion internationally is our position that although we acknowledge and affirm in our reports all the characteristics that are taken in jurisprudence and anthropology as the characteristics that define a group as an ethnic group, and although we affirm these characteristics' importance and significance in determining how one thinks about policy on Travellers, we do not recognise Travellers as an ethnic group. It causes significant confusion simply because it begs the questions as to what exactly is required and what missing criteria are not being fulfilled.
A factor we addressed in our report was the suggestion that there is some academic reason for failing to grant recognition. We found this did not hold. A further issue that may have arisen is the idea that there must be universal consensus. This does not hold either. I have come across a suggestion that it is not so much an issue of principle but that there is a risk of significant costs. I cannot see where they come from.
In many ways, we have acknowledged Traveller ethnicity. With regard to the specific provision in the equal status legislation, there was a specific discussion on adopting a form of description or definition of the Traveller community that recognised its ethnicity. Having done so, we have done much of what is required. The Government has affirmed that. It seems to be counter-productive to achieve all this while holding back on actual recognition, especially with regard to respect and recognition of a people for who they are. With that in mind, it is undoubtedly the case that the approach suggested by my colleague, that is, to have clear political recognition at Government level in the first instance followed by reporting to international bodies, is a clear first step. The issue then arises in practice as to whether something further is required whereby particular issues may be identified. One would have the option at that stage of examining the potential for amendments to our equality legislation or other legislation. If one were to have political recognition and carry this over to the reporting to international bodies, it could be that one would have done most of what needs to be done. One could then deal with whatever additional formal recognition is required as particular issues are identified.
I have a couple of questions for my benefit. I am learning a lot. We have debated this issue before. I recognise the presence in the Public Gallery of some witnesses who were present on the previous day. I compliment Deputy Mac Lochlainn on the work he is doing in this area. We spoke on the last day about Traveller history, education, music and culture. We spoke about a potential visit to educate us on the tradition, culture and richness that exists. Deputy Naughten is going to work on this for us at some stage in the near future.
Ms Lucey's document refers to objective criteria and self-identification. It also refers to shared history, culture, way of life, the practice of nomadism, etc. I apologise if I am being a little crude but I seek clarification. Are we talking about what is almost a box-ticking exercise? Many Traveller families are not travelling anymore and do not practice nomadism. If they do not, does that mean they are not part of an ethnic group, for instance? Have we a set of criteria that must be fulfilled before somebody is recognised as part of an ethnic group? Could one be half in and half out? I apologise if I am being extremely crude. How does one know whether one is part of an ethnic group, including the one in question? Perhaps Ms Lucey could tease that out for us.
Ms Sinéad Lucey:
The principle of self-identification is quite separate from the question of how one recognises an ethnic group. The main point of our submission was to argue that they are different. With regard to ethnicity, it was stated at a meeting of this committee in the past that various legal tests have been set down in UK case law, most famously in the case Mandla v. Dowell-Lee. It establishes the legal test that has been set out in terms of the criteria. Certain criteria are essential and others are optional. Irish Travellers have been found to fulfil the necessary criteria and also certain of the optional criteria. In strict legal terms, it is an objective test as to whether an ethnic minority exists in the state.
Self-identification, as the commission understands it, is in essence a protection that has been put in place for ethnic minorities for reasons related to historical events in which ethnic minorities were targeted in a particular way. There are examples in the Irish context where Travellers were segregated in services. This was because the principle of self-identification was not properly applied to them. It would allow them to say they are not subscribing to a particular service in a particular way just because they are Travellers. They could say they do not have to identify in a particular way to gain access to the service available to the community in general.
It is probably more appropriate for Traveller organisations to address the question as to whether somebody is half in or half out. There have been discussions on Travellers who may conceal their identity in certain contexts for reasons associated with negativity and the perception of Travellers in society, but I do not believe I could elaborate on it much more than the Traveller representatives have done.
I apologise as I had to leave for a few minutes, resulting in my missing some of the contributions. I read the opening submissions. What does the conferring of ethnic status on the Traveller community mean in layman's terms for Travellers or society in general?
Mr. Laurence Bond:
My colleague has outlined the modalities of how that would happen. In terms of the practical implications, I would see the starting point as recognising people for who they are and affirming that. A key starting point in the history of public policy thinking about Travellers was in the 1960s when the Commission on Itinerancy published its report, 50 years ago this year. This was the first time the State had tried to collectively reflect on the position of Travellers in Irish society. I quoted some of that in our main report and it is well known that there was a specific suggestion that it was essential not to recognise Travellers for who they were. The report said it would call them itinerants even though they refer to themselves as Travellers and want to be referred to as Travellers. That was partly related to saying it was important not to recognise Travellers but rather to insist that they be absorbed into the general community and become like us.
The core message of that report was that Travellers are a problem, and that problem is solved by absorbing them into the community. The whole argument about recognition of ethnicity is fundamentally related to that. This debate has been going on since the 1970s. Not long after that report was published, many Travellers were saying this is not just about absorption into the community. They said Travellers have a history, culture and identity and recognising who they are is core to treating them equally and on a basis of mutual respect between Travellers and the settled community. Public policy has moved a certain way along that road but, clearly, has found it difficult to take the final step in terms of that recognition.
One can think of many parallels. The current argument about access to marriage for gay people is partly about saying one recognises people as not different or a lesser but as of equal value. One recognises that by recognising people for who they are, not insisting they be like oneself. That is our fundamental starting point for the significance of recognition of ethnicity. If one takes that as factor at a symbolic and personal level, it clearly has implications for public policy. If one is to take that seriously and apply it to issues such as development of housing and education policy, one thinks about what this means for how one teaches about Traveller children, teachers Traveller children, how Travellers are engaged in the classroom, etc. We do a lot about Traveller education and housing, but it is about doing them better by taking this into account.
On a matter that Mr. Bond raised earlier and about which Deputy Collins may have asked, Mr. Bond implied he was not sure whether there would be a significant cost to the State as a result of this proposed recognition of ethnicity. Has he any points to make on that?
Mr. Laurence Bond:
I have heard it suggested that to recognise ethnicity would expose the State to significant additional costs above what is already spent on Traveller policy, which is significant. I can clearly see how recognition of ethnicity may have implications for rethinking how some of the money we currently spend is used, what is prioritised and what is not. However I have tried to think about what significant additional costs there could be and I cannot see what they would be.