Oireachtas Joint and Select Committees

Tuesday, 6 May 2014

Select Committee on Justice, Defence and Equality

Irish Human Rights and Equality Commission Bill 2014: Committee Stage

3:00 pm

Photo of David StantonDavid Stanton (Cork East, Fine Gael)
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Apologies have been received from Deputies Finian McGrath and Anne Ferris. I welcome the Minister and his officials to the meeting. I request that all mobile phones are switched off. For information it may very well be that in the not too distant future mobile phones will be banned in committee rooms and the Chamber because they seriously interfere with the transmission of proceedings.

Photo of Niall CollinsNiall Collins (Limerick, Fianna Fail)
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I must go at 3.15 p.m. because the family of former Deputy Peadar Clohessy will be in the Chamber to hear expressions of sympathy and I am involved in the arrangements.

Section 1 agreed to.

SECTION 2

Photo of Thomas PringleThomas Pringle (Donegal South West, Independent)
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I move amendment No. 1:


In page 6, between lines 28 and 29, to insert the following:" "functions" are defined as the functions contained in the Human Rights Commission Act 2000 and the Employment Equality Act 1998;".
The amendment seeks to define the functions mentioned in the legislation as those contained in the Human Rights Commission Act 2000 and the Employment Equality Act 1998. The Bill refers at a later stage to functions vested in the organisations which will be combined under the legislation but it is important that the functions are defined in the definitions section.

Photo of Alan ShatterAlan Shatter (Minister, Department of Justice, Equality and Defence; Dublin South, Fine Gael)
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The Bill does not need a definition of functions because such a definition is contained in the Interpretation Act 2005 which serves therefore for all individual Acts enacted since then. Prior to that year each individual Act which contained a reference to functions also contained a standard definition of functions. This was repetitive and therefore a decision was made to include this definition along with many other standard definitions in a revised Interpretation Act. The Interpretation Act definition of "functions" is found in Part 2 of the Schedule and includes "powers and duties, and references to the performance of functions include, with respect to powers and duties, references to the exercise of the powers and the carrying out of the duties".

In any event the proposed amendment is problematic in that it refers to the Human Rights Commission Act, which will be repealed, and to the Employment Equality Act, the relevant parts of which will be repealed. It does not refer to the Equal Status Act, but most importantly it does not refer to the Bill which we have before us. Therefore, if we accepted the Deputy's amendment we would have a definition of functions which did not cover any of the very many functions being given to the human rights and equality commission under the Bill. I am sure this is not what is intended. I hope this explanation satisfies the Deputy and that the amendment will not be pressed.

Amendment, by leave, withdrawn.

Photo of David StantonDavid Stanton (Cork East, Fine Gael)
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Amendments Nos. 2 and 7 are related and will be discussed together.

Photo of Thomas PringleThomas Pringle (Donegal South West, Independent)
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I move amendment No. 2:


In page 6, line 29, to delete "Part 3" and substitute "sections 36to 39inclusive and section 41".

Section 2 contains necessary interpretations of the key terms in the section. Amendment No. 2 proposes to amend line 29 which deals with human rights. There is a difference in the interpretation of the definition between the enforcement role of the human rights commission and I think the narrower interpretation should be confined to sections 36 to 39, inclusive, and section 41 to allow for as wide a role as possible for the work of the human rights commission as defined in Part 3 of the Bill.

Photo of Alan ShatterAlan Shatter (Minister, Department of Justice, Equality and Defence; Dublin South, Fine Gael)
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The proposed amendments Nos. 2 and 7 relate to the definitions of human rights in the Bill, as the Deputy states. The definition in section 2 gives the Commission a mandate to promote human rights in the widest sense, not limited to Irish law, or to conventions that we have ratified or to any existing international convention. The Commission can seek to develop and promote new human rights standards and its discretion in that regard is unfettered.
The definitions in section 29 deal with legal and enforcement powers and accordingly it is appropriate that it refers exclusively to human rights that are recognised in Irish law. I should mention that my departmental officials met with the Office of the Deputy High Commissioner for Human Rights, ODHCHR, in October 2012 as part of the consultative process with that office, following publication of the general scheme of the Bill. At that meeting the officials explained that the rationale of having two separate definitions was to give the new body every possible freedom to work towards the enhancement of the human rights environment in Ireland.
Were the legislation to include a single definition of human rights, there would be little option but to limit it to the narrower definition. The model chosen for the legislation seeks to give the Commission the freedom to promote human rights on as broad a basis as possible and reflect new and normative developments at an international level in its work. We are also giving it a mandate to monitor compliance with specific human rights standards enshrined in Ireland's legislative framework in accordance with the rule of law. The intention was to allow the Commission to be creative in its promotion of human rights principles as broadly understood, but to observe the rule of law in the area of enforcement of standards. The ODHCHR noted that this approach seemed very close to how the High Commissioner of Human Rights sought to describe her own role, relating to the protection of clearly defined rights and the promotion of broad human rights principles. The ODHCHR states that the "two definitions" approach is a new best practice model, which it would encourage other member states to adopt. We are going further than other member states in their comparative legislation.
On a philosophical level, this rationale for two definitions of human rights in the Bill turns on a key distinction between two conceptions of human rights and equality, the first being the broader conception is rooted in the law of human rights as it ought to be. The IHREC can invoke principles of political morality to advocate what the law ought to be in the State. Those principles may find expression in different sources including proposals advanced by international organisations or civil society groups. The important thing is that the IHREC exercises its own independent critical reasoned principled judgment. The intention of the Bill is to set in motion a potentially constructive dynamic to promote the development of creative human rights and equality thinking on new challenges in the field. This conception of human rights and equality has the potential to take the State beyond the confines of the law as it is on the basis of a reasoned argument about what the law ought to be. This wider conception of human rights would allow the Irish Human Rights and Equality Commission to act as an architect, coming up with plans to construct new human rights protections.
Second, the narrow conception of human rights serves a different function under the Bill. Here the Irish human rights and equality commission is not an architect but a builder which applies existing standards. It applies the law as it is, that is, as it has been planned and enacted by the legislative architect. As a law-applier, it can use various powers to enforce the law and promote compliance. It applies the law that actually exists. This is important because the Bill cannot vest discretion in the IHREC to "legislate" novel obligations that have no basis in existing law, or to conduct enforcement actions that would involve the unfair retrospective application of ad hocnorms, which citizens have not been given fair notice of and which Deputies as members of our national Parliament have not legislated for.
However, the idea of human rights in the Bill does not restrict what the commission can do. The Irish human rights and equality commission can seek to develop and promote new human rights concepts, it can encourage the State to sign and ratify specific international agreements but it cannot seek to enforce rights that have not been incorporate in Irish law.
There have been calls for one unified definition of human rights in the Bill. Human rights are of course indivisible and inviolable, but the technical devise of having two definitions does not challenge that principle in any way. If we had to have just one definition, as I said earlier, it would have to be a narrow definition and be confined to Irish law and to those rights that are recognised under Irish law as human rights. I think this would be a retrograde step and the commission would lose much of its ability to be creative in the promotion and advocacy of human rights.

Photo of Thomas PringleThomas Pringle (Donegal South West, Independent)
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There is quite a bit to digest. We ratify a great many international treaties but we do not legislate for them, can the human rights commission handle them under Irish law?

Photo of Alan ShatterAlan Shatter (Minister, Department of Justice, Equality and Defence; Dublin South, Fine Gael)
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That is an example of where the human rights commission can play an advocacy role. The human rights commission cannot override the Constitution by effectively legislating for something that the Houses of the Oireachtas have not legislated for. An international convention may give voice to or detail what are perceived to be new human rights that states are not obliged to sign up. It would be open to the human rights commission to advocate that the State be a signatory and that domestic legislation be enacted to incorporate within domestic law those human rights. The human rights commission could not regard a body in this State as violating those human rights in the context of domestic law in circumstances where they were not part of it.

Amendment, by leave, withdrawn.

Section 2 agreed to.

Sections 3 to 7, inclusive, agreed to.

NEW SECTION

Photo of Pádraig Mac LochlainnPádraig Mac Lochlainn (Donegal North East, Sinn Fein)
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I move amendment No. 3:


In page 9, between lines 18 and 19, to insert the following:
“8. Pursuant to the Good Friday Agreement, an international agreement, of which this Government is a co-guarantor the Irish Government will take steps to further strengthen the protection of human rights in its jurisdiction. The Government will, bring forward measures to strengthen and underpin the constitutional protection of human rights. These proposals will draw on the European Convention on Human Rights and other international legal instruments in the field of human rights and the question of the incorporation of the ECHR will be further examined in this context. The measures brought forward would ensure at least an equivalent level of protection of human rights as will pertain in Northern Ireland. In addition, the Irish Government will—(a) maintain and promote a Human Rights Commission with a mandate and remit equivalent to that within the North of Ireland, and
(b) continue to take further active steps to demonstrate its respect for the different traditions in the island of Ireland.”
As I stated on Second Stage, there is considerable concern about the impact of the proposed amalgamation of the Irish human rights and equality commission in terms of the Good Friday Agreement. The Minister is aware of the opposition within Unionism to the human rights and equality agenda. There is a responsibility on the Minister and the Government to ensure equivalence so that all citizens on the island of Ireland who voted for the Good Friday Agreement benefit from what it promised. The proposed amalgamation is clearly not in line with that Agreement. There is a human rights commission in the North, but this proposed new commission will not have the full range of powers in the North. There is a view that this is about resources and cost savings. It is certainly not about empowerment of the citizens. When it comes to human rights and equality and the Good Friday Agreement, there needs to be equivalence across the island of Ireland.
This amendment reflects our core objection to the legislation. If our concern is not addressed in the way we suggest we must oppose the Bill.

3:10 pm

Photo of Alan ShatterAlan Shatter (Minister, Department of Justice, Equality and Defence; Dublin South, Fine Gael)
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The Deputy raised these issues on Second Stage and he is mistaken in the presentation he makes. The intended effect of the amendments he is proposing is to bring the merger of the Equality Authority and the Irish Human Rights Commission to an end. It will not surprise Deputies when I say that I am opposing these amendments.

The text in amendment No. 3 is technically inappropriate for legislation. If the Government were to take forward actions on the lines suggested, these would either be matters for policy and allocation of resources or otherwise issues that would need to be addressed in legislation. One does not put into legislation that the Government should bring forward proposals that may require legislation. Instead, one just gets on with implementing the policy programme of the Government of the day and, where this requires legislation, such legislation is brought forward in the ordinary course of events when it is ready.

In this case we are merging the Equality Authority and the Irish Human Rights Commission. I consulted the then Northern Ireland Secretary of State at around the time this proposal was announced. I assure the committee there are no adverse implications for our commitments under the Good Friday Agreement or for our relationship with Northern Ireland.

The equivalence of protection relates to substantive human rights law and not to questions of institutional structures which will always operate differently in different jurisdictions. Our body of human rights law, under our Constitution, is at least equivalent to that which exists in Northern Ireland. The amendment proposed in that regard is devoid of substance.

The merger will create a body that is, as I have said on previous occasions, greater than the sum of its parts and that will be better equipped by this Bill, once enacted, and with the additional staff and financial resources that I have been able to secure in 2014, to protect both human rights and equality rights in a cohesive way.

Photo of Pádraig Mac LochlainnPádraig Mac Lochlainn (Donegal North East, Sinn Fein)
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I wish to press my amendment.

Amendment put and declared lost.

Question, "That section 8 stand part of the Bill", put and declared carried.

Question, "That section 9 stand part of the Bill", put and declared carried.

SECTION 10

Photo of David StantonDavid Stanton (Cork East, Fine Gael)
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Amendment No. 4 is in the name of Deputy Finian McGrath but will be moved by Deputy Pringle.

Photo of Thomas PringleThomas Pringle (Donegal South West, Independent)
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I move amendment No. 4:


In page 10, lines 19 and 20, to delete ", while respecting diversity and the freedom and dignity of each person".
Section 10(1)(e) provides that the human rights commission will "work towards the elimination of human rights abuses, discrimination and prohibited conduct, while respecting diversity and the freedom and dignity of each person". The intention of the amendment is to delete the words "while respecting diversity and the freedom of each person" from the subsection. The reason for doing so is to save us from potential discrimination because it could hamper the work of the commission in terms of looking at discrimination issues that may arise. For example, it could include the freedom to discriminate as part of "the freedom and dignity" of the persons involved. If they felt that there was a freedom, the provision could be used as a defence, under the legislation, in terms of any investigation that takes place. Therefore, the Bill will be strengthened by the removal of the provision. The provision could be used as a defence in the case of a cultural issue, for example, within a certain community. It would allow whatever practice being investigated to be continued even though it may not be acceptable to the wider community within the State.

Photo of Alan ShatterAlan Shatter (Minister, Department of Justice, Equality and Defence; Dublin South, Fine Gael)
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As the Deputy says, the intention of the amendment is to delete the reference to "while respecting diversity and the freedom and dignity of each person" from the function of the commission at section 10(1)(e) which reads: "to work towards the elimination of human rights abuses, discrimination and prohibited conduct, while respecting diversity and the freedom and dignity of each person". I think that respect for diversity and respect for the freedom and dignity of each person is of fundamental importance to the work of a national human rights institution. This is not, I can assure the Deputy and members of the committee, some kind of deep code for allowing certain types of discrimination or human rights abuses to continue. I think that should be clear from the very strong functions we have vested in the commission, as well as from our substantive equality legislation and human rights protections. Simply, it is language that recognises that we exist in a diverse and increasingly diverse society where acceptance of difference and of the rights and freedoms of other people is a cornerstone of the liberties and democracy we all enjoy. As I frequently have said on other occasions in other contexts, we should celebrate difference and embrace it, not fear it. This is a crucial and important point and is very relevant to this particular provision.

I will, however, take a look again at the wording to see if these two important ideas might be expressed in a different way and, if so, I may bring a Report Stage amendment to this paragraph, arising out of the issues the Deputy has raised. I suggest that the Deputy might agree perhaps to hold the amendment back for Report Stage where we can revisit the point. I am certainly happy to reflect on it but I think the approach we are taking accords with the appropriate intent and principles that should be applied by a human rights institution.

The Deputy made the point that it might allow certain individuals to behave in a particular way a majority does not necessarily applaud or approve of or a majority may fear. On occasions, majorities fear difference and they fear people doing things differently or conducting their lives differently when in real terms their so doing poses no threat to the wider community. If anything, while human rights is about protecting the wider community, it is also about protecting individuals and minorities within the global community to ensure that because they are different, they are not oppressed. I think this particular principle sets that out well. As I say, I am happy to reflect on it to see if there is some different phraseology. I should say to the Deputy that this phraseology has been put together with great care based on advice from the Attorney General's office. Having regard to what we are seeking to achieve, it would be quite odd if a body that is not merely a human rights commission but also an equality commission were to interpret this in a manner that would produce the consequences the Deputy suggested.

Photo of David StantonDavid Stanton (Cork East, Fine Gael)
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Does Deputy Mac Lochlainn wish to comment?

Photo of Pádraig Mac LochlainnPádraig Mac Lochlainn (Donegal North East, Sinn Fein)
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No, I will let Deputy Pringle talk through his amendments and, if the Chairman does not mind, I will comment afterwards. I apologise for indicating earlier but I should have said then that I will comment afterwards.

Photo of David StantonDavid Stanton (Cork East, Fine Gael)
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That is no problem. I call Deputy Pringle.

Photo of Thomas PringleThomas Pringle (Donegal South West, Independent)
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I take on board exactly what the Minister is saying and know exactly what the intentions are. However, there can be unintended consequences as well and that is the reason the amendment was put forward. I accept that the Minister will look at it again and, therefore, I will hold off until Report Stage.

Amendment, by leave, withdrawn.

Photo of David StantonDavid Stanton (Cork East, Fine Gael)
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Amendment No. 5 is in the name of Deputy Finian McGrath but will be moved by Deputy Pringle.

Photo of Thomas PringleThomas Pringle (Donegal South West, Independent)
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I move amendment No. 5:


In page 10, line 36, after “to” where it firstly occurs to insert "the Equality Tribunal, the Labour Court, the District Court, the Circuit Court,".
The amendment is on the amicus curiaeprovision of the human rights commission. Given that the majority of cases under the Equality Acts and the Equality Tribunal are appealed to the Circuit Court, the amendment seeks to broaden the number of bodies or courts to which the commission can apply to have the amicus curiae provision recognised. The amendment seeks to include the Equality Tribunal, the Labour Court, the District Court and the Circuit Court.

Photo of Alan ShatterAlan Shatter (Minister, Department of Justice, Equality and Defence; Dublin South, Fine Gael)
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As the Deputy says, the amendment seeks to extend the commission's amicus curiaefunction to include the Circuit Court, District Court, Labour Court and the Equality Tribunal. This is unnecessary.The commission has the power to assist parties appearing before the Circuit or District Court, or the Labour Court, or the Equality Tribunal. The concept of amicus curiaerelates to the superior courts where issues of constitutional interpretation or importance may arise and it is not relevant to these other courts and tribunals. For that reason, the amendment is opposed.

Amendment, by leave, withdrawn.

Question proposed: "That section 10 stand part of the Bill."

3:20 pm

Photo of Pádraig Mac LochlainnPádraig Mac Lochlainn (Donegal North East, Sinn Fein)
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As there are concerns that the standards of tolerance and acceptance are too low in respect of what is defined in the section, I reserve the right to come back on Report Stage with some amendments.

Question put and agreed to.

SECTION 11

Question proposed: "That section 11 stand part of the Bill."

Photo of Pádraig Mac LochlainnPádraig Mac Lochlainn (Donegal North East, Sinn Fein)
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To save time, I have already indicated in respect of a range of sections that I want it noted, as submitted, that we are opposed to them but that I am not going to call for a vote on every section. This will allow for the efficiency of the meeting.

Photo of David StantonDavid Stanton (Cork East, Fine Gael)
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It would be helpful if the Deputy just said that he reserves the right to bring forward amendments on Report Stage on this section. That would cover the Deputy.

Photo of Pádraig Mac LochlainnPádraig Mac Lochlainn (Donegal North East, Sinn Fein)
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I will indicate in respect of some of the sections but not on all of them.

Question put and agreed to.

Sections 12 and 13 agreed to.

SECTION 14

Question proposed: That section 14 stand part of the Bill."

Photo of Pádraig Mac LochlainnPádraig Mac Lochlainn (Donegal North East, Sinn Fein)
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I wish to indicate that I reserve the right to make amendments to this section. A suggestion is coming from some human rights NGOs that the word "indictable" be included in terms of the offences listed on page 15 of the Bill.

Photo of David StantonDavid Stanton (Cork East, Fine Gael)
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That is noted.

Question put and agreed to.

Sections 15 to 23, inclusive, agreed to.

SECTION 24

Question proposed: "That section 24 stand part of the Bill."

Photo of Pádraig Mac LochlainnPádraig Mac Lochlainn (Donegal North East, Sinn Fein)
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Again, I indicate that I reserve the right to table an amendment on Report Stage. I wish to highlight a concern for the Minister's attention. A number of NGOs are concerned that the number of staff seconded from the Department of Justice and Equality would not exceed 25%. As there are issues around staffing to ensure the independence of the new body, I will table amendments on Report Stage.

Question put and agreed to.

Section 25 agreed to.

SECTION 26

Photo of David StantonDavid Stanton (Cork East, Fine Gael)
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Amendment No. 6 in the name of Deputy Finian McGrath is out of order.

Photo of Thomas PringleThomas Pringle (Donegal South West, Independent)
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May I speak?

Photo of David StantonDavid Stanton (Cork East, Fine Gael)
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No. That is not allowed. The amendment is out of order so it cannot be discussed.

Photo of Thomas PringleThomas Pringle (Donegal South West, Independent)
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I would like to know who decides.

Photo of David StantonDavid Stanton (Cork East, Fine Gael)
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The Deputy can take the matter up with the Bills Office. I am informed that as it involves a potential charge on the Exchequer, it cannot therefore be moved. That is a long-standing tradition as long as I am a Member and longer.

Photo of Thomas PringleThomas Pringle (Donegal South West, Independent)
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I understand that. I would like some clarity on how the decision is arrived at.

Photo of David StantonDavid Stanton (Cork East, Fine Gael)
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The advice I have is that it seeks to obviate the requirement from the Minister for Justice and Equality to get the consent of the Minister for Public Expenditure and Reform prior to advancing moneys to the commission. Moving this requirement could potentially increase spending by the Department of its allocation to the commission. This could involve a charge on the Exchequer and, therefore, this amendment must be ruled out of order in accordance with Standing Order 156(3).

Amendment No. 6 not moved.

Question proposed: "That section 26 stand part of the Bill."

Photo of Pádraig Mac LochlainnPádraig Mac Lochlainn (Donegal North East, Sinn Fein)
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I indicate that I reserve the right to table amendments on Report Stage. Concerns have been expressed by the human rights sector on the need to strengthen the independence of the new amalgamated body which will be accountable not to the Minister but to the Oireachtas.

Question put agreed to.

Sections 27 and 28 agreed to.

SECTION 29

Photo of Thomas PringleThomas Pringle (Donegal South West, Independent)
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I move amendment No. 7:


In page 23, line 1, after "rights"" to insert ", for the purpose of sections 36to 39inclusive and section 41,".

Photo of David StantonDavid Stanton (Cork East, Fine Gael)
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How stands the amendment?

Photo of Thomas PringleThomas Pringle (Donegal South West, Independent)
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I have already indicated that it was withdrawn. We will come back to it on Report Stage.

Amendment, by leave, withdrawn.

Section 29 agreed to.

Sections 30 and 31 agreed to.

SECTION 32

Question proposed: "That section 32 stand part of the Bill."

Photo of Pádraig Mac LochlainnPádraig Mac Lochlainn (Donegal North East, Sinn Fein)
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My apologies, I wish to indicate that I reserve the right to make amendments to section 29 at a later stage.

Photo of David StantonDavid Stanton (Cork East, Fine Gael)
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The Deputy has opposed the section. Will the Deputy please try to come in at the appropriate time?

Photo of Pádraig Mac LochlainnPádraig Mac Lochlainn (Donegal North East, Sinn Fein)
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I am sorry.

Photo of David StantonDavid Stanton (Cork East, Fine Gael)
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I am trying to take it as well as I can.

Question put and agreed to.

Sections 33 and 34 agreed to.

SECTION 35

Photo of David StantonDavid Stanton (Cork East, Fine Gael)
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Amendment No. 8 in the name of Deputy Finian McGrath is ruled out of order. I am advised that it involves a potential charge on the Exchequer.

Photo of Thomas PringleThomas Pringle (Donegal South West, Independent)
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I would like to know the reason.

Photo of David StantonDavid Stanton (Cork East, Fine Gael)
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The advice is that it seeks to broaden the parameters under which the commission may run an inquiry by removing one of the conditions for the conduct of inquiries currently provided for in the Bill. This amendment could involve a charge on the Exchequer and must, therefore, be ruled out of order according to Standing Order 156(3).

Photo of Thomas PringleThomas Pringle (Donegal South West, Independent)
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Surely the whole action of an inquiry involves a charge on the Exchequer. It is ridiculous.

Photo of David StantonDavid Stanton (Cork East, Fine Gael)
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It is a potential charge on the Exchequer. That is the ruling from the Bills Office.

Photo of Thomas PringleThomas Pringle (Donegal South West, Independent)
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Every amendment involves a potential charge on the Exchequer. It has to be printed.

Photo of David StantonDavid Stanton (Cork East, Fine Gael)
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No. As I understand it, under the Constitution, governments of the day can propose amendments that involve a charge on the Exchequer because they raise taxes.

Photo of Thomas PringleThomas Pringle (Donegal South West, Independent)
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I just want to know who decides.

Photo of David StantonDavid Stanton (Cork East, Fine Gael)
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The Deputy may get advice from elsewhere on the issue but I have to go by the advice I am given.

Amendment No. 8 not moved.

Question proposed: "That section 35 stand part of the Bill."

Photo of Pádraig Mac LochlainnPádraig Mac Lochlainn (Donegal North East, Sinn Fein)
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I indicate that I reserve the right to table amendments on Report Stage. There is significant public concern that the scope of the commission to conduct inquiries should be extended in line with the Commission of Investigations Act. I will revisit the issue on Report Stage.

Photo of David StantonDavid Stanton (Cork East, Fine Gael)
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That is noted.

Question put and agreed to.

Sections 36 to 39, inclusive, agreed to.

SECTION 40

Photo of David StantonDavid Stanton (Cork East, Fine Gael)
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Amendment No. 9 in the name of Deputy Finian McGrath is ruled out of order as it involves a potential charge on the Exchequer.

Amendment No. 9 not moved.

Section 40 agreed to.

Section 41 agreed to.

SECTION 42

Photo of Thomas PringleThomas Pringle (Donegal South West, Independent)
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I move amendment No. 10:


In page 33, after line 38, to insert the following:"(c) carry out an equality and human rights impact assessment on all new policies, programmes and proposals in relation to budgeting and resource allocation.".
This amendment seeks to add a new paragraph to section 42(2). I cannot understand the reason this amendment was not ruled out of order as it actually imposes a charge on public bodies. All public bodies should carry out a human rights assessment on new policies and programmes to ensure they comply with the human rights laws of the State. It should be incumbent on all public bodies to reflect the ethos of human rights and should proof their policies and projects before they commence.

Photo of Alan ShatterAlan Shatter (Minister, Department of Justice, Equality and Defence; Dublin South, Fine Gael)
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Section 42 introduces a new 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 2011-2016 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.

With regard to the suggestion that section 42 should be amended to include an enforcement mechanism, I think this approach is misdirected.

I have been asked why we cannot have an enforcement mechanism in a situation where a public body refuses to reflect human rights and equality duties in its strategic plan and annual report. I remain to be convinced that we need a new enforcement regime or recourse to the courts here. I think this recommendation downplays considerably the importance of our national Parliament. Annual reports and strategic plans of public bodies are laid before the Houses of the Oireachtas. That being so, the commission is well placed, once it has developed a good working relationship with Oireachtas committees, to address any such instances. No Minister or indeed CEO would want to be in the position of explaining to the Oireachtas why a particular public body took a stand against complying with its statutory obligations. For a CEO to be in here explaining why the body refused to reference its human rights and equality rights obligations in its strategic plan would be a very uncomfortable and unlikely position in which to put oneself. Instead of focusing on thinking about taking a mechanistic, legal approach to compliance, it would be much more fruitful to see this provision as a positive opportunity to bring about real reform within the public sector by adopting the approach of active engagement successfully pursued by the Equality Authority in its workplace relations work with social partners. There is potential to use the positive duty function to persuade and promote best practice by highlighting good examples to which other bodies could aspire.

The working group that I established to advise me on practical issues relating to the merger recommended this specific approach to the creation of a positive duty on public bodies. It went on to recommend that a formal review of the operation of this section be undertaken by Government in consultation with the human rights and equality commission after a period of three or five years. I am happy that such a review should take place. The review should assess the effectiveness of the public sector duty in securing improved human rights and equality outcomes and in assisting public bodies to pre-empt problems on an evidential basis. The evidence could be gathered by way of an independent evaluation commissioned jointly by the Irish human rights and equality commission and the Department of Justice and Equality. The review should also assess whether there is a need to modify or develop these recommended arrangements, including whether there is a need to institute a formal review and monitoring mechanism and the question of integration with other regulatory assessment procedures on the basis of the evidence.

3:30 pm

Photo of Thomas PringleThomas Pringle (Donegal South West, Independent)
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I understand what the Minister has said but we would probably have thought, six or seven years ago, that it would be rather embarrassing for the CEOs of banks to have to come before an Oireachtas committee to explain how they destroyed the country but they do it quite happily and pay scant regard to the process. I believe it is important to strengthen the positive duty to ensure that public bodies carry out human rights-proofing on their policies. I believe this should be included in the legislation and will, therefore, be pressing the amendment

Amendment put and declared lost.

Photo of Thomas PringleThomas Pringle (Donegal South West, Independent)
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I move amendment No. 11:


In page 34, between lines 22 and 23, to insert the following:
“(9) Where a public body has failed to comply with section 42(1) and (2), the Commission shall issue a notice requiring that the public body shall—(a) comply with the duty, and
(b) supply the Commission, within 30 days from receipt of the notice, with a submission detailing progress to be made for the purpose of compliance with section 42(1) and (2).”.
This amendment relates again to public bodies and the positive duty on them. It seeks to insert a compelling rather than an enforcement mechanism to ensure that public bodies comply with sections 42(1) and 42(2) of the Act. It seeks to ensure that public bodies human rights-proof the work they carry out.

Photo of Alan ShatterAlan Shatter (Minister, Department of Justice, Equality and Defence; Dublin South, Fine Gael)
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On amendment No. 11, I am unconvinced that the creation of yet another formalistic impact assessment process can add any value. Such a process cannot substitute for the ongoing responsibility of any public body to manage its functions effectively or for the ultimate responsibility of the Government and this House in our democratic system to make political choices - sometimes hard choices - on the allocation of resources within the parameters required by considerations of prudence, Ireland's EU obligations, the budgetary decisions as between levels of expenditure and taxation and as between retention of income by those who earn it versus redistribution to those in need via the social welfare system and other measures of the democratically elected Government of the day and to the approval of the national Parliament. The reality is that resources are limited and additional expenditure demands or costs arising, for whatever reason, would have to be paid for through expenditure reductions elsewhere or through the raising of additional revenue. Nothing in this amendment can change that reality or be of any help to Government in making the difficult decisions that it was elected to make on behalf of the people as we work to restore our economic sovereignty. I am opposing the amendment.

Amendment put and declared lost

Section 42 agreed to.

Sections 43 to 55, inclusive, agreed to.

SCHEDULE 1

Photo of David StantonDavid Stanton (Cork East, Fine Gael)
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Amendment Nos. 12 and 13 to Schedule 1 have been ruled out of order as they are in conflict with the principle that the Bill is read a Second Time.

Amendments Nos. 12 and 13 not moved.

Schedule 1 agreed to.

Schedules 2 to 4, inclusive, agreed to.

TITLE Question proposed: "That the Title be the Title to the Bill."

Photo of Alan ShatterAlan Shatter (Minister, Department of Justice, Equality and Defence; Dublin South, Fine Gael)
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I thank the members of the committee for their contributions, both in the Dáil and at this committee. I wish to acknowledge all of the assistance we have been given and the work undertaken by members of the new human rights commission and the Equality Authority and by those who were on the working group which assisted in the creation of this legislation and addressed various issues which we touched on today. I wish to mention that I will be bringing forward an amendment on Report Stage to make the director the Accounting Officer for the commission's Vote. This had already been agreed with the Minister for Public Expenditure and Reform, as has the creation of a separate Vote for the commission which is important because that will make it clear how much money is being allocated to the human rights and equality commission annually, rather than it being subsumed within other allocations that go to the Department of Justice and Equality. This amendment will further underpin the commission's independence. I would also like to give formal notice that I may bring forward several other amendments. There may be an amendment to section 10(1) following our debate on amendment No. 4 relating to paragraph (e) of that subsection. In section 29 on page 22, "equality remuneration term" should read "equal remuneration term" but there is a typographical error.

I will bring forward an amendment on Report Stage to correct this. I also thank the Irish Council for Civil Liberties for bringing to my attention this particular point. The ICCL also has suggested that the title of Part 3 be changed from "Enforcement" to "Enforcement and Compliance", as better reflecting the substance of Part 3. This also is a suggestion I will take on board on Report Stage. While I am informed it does not need a formal amendment, I will take it on board. Amendments also may be brought forward to sections 34 and 36 in respect of the periods of time referred to, following and subject to further consultation my Department is undertaking with the Equality Tribunal. I am anxious to ensure that any concerns that have arisen in that context will be met.

I wished formally to put members on notice and again will conclude by thanking them. I apologise to the Chairman for being late on the previous day. I was meeting an individual with an issue, of whom some members are aware, who has experienced difficult and stressful circumstances in life. It started later than anticipated because I was delayed in the House on a Topical Issue matter and I wished to give it as much time as was appropriate and not to cut it short. I apologise for being late for that meeting and I thank the Chairman and members for agreeing to reschedule the meeting so rapidly to this afternoon.

3:40 pm

Photo of David StantonDavid Stanton (Cork East, Fine Gael)
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I thank the Minister. That was understandable, I believe members understood the situation, and that is fine. On behalf of members, I wish to say they were pleased to be involved in the pre-legislative scrutiny of this legislation, which they found to be highly productive and interesting. I again thank members and the Minister for their co-operation today on Committee Stage and thank the Minister and his officials for their attendance.

Question put and agreed to.

Bill reported without amendment.