Alan Shatter (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.