Oireachtas Joint and Select Committees
Tuesday, 6 May 2014
Seanad Public Consultation Committee
Irish Compliance with International Covenant on Civil and Political Rights: Discussion
The purpose of today's meeting is to discuss the key priorities and challenges facing Ireland in complying with its obligations under the International Covenant on Civil and Political Rights with the organisations that made written submissions on the topic. The Clerk of the Seanad has supplied all organisations with a list of the key points from the various submissions which Members wish to discuss.
The format for today's meeting is as set out in the programme supplied to witnesses and Members. The first three groups will each have a ten minute slot to be followed by a question and answer session for approximately 30 minutes. Some groups propose to share their ten minute slot, so to be helpful, I will remind the first speaker when he or she has one minute remaining.
By virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of their evidence to the committee. However, if they are directed by it to cease giving evidence on a particular matter and continue to do so, 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 asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against a person or an entity by name or in such a way as to make him, her or it identifiable.
The first person I call to make a presentation is Dr. Liam Thornton. He has approximately ten minutes and I shall remind him of his time at the nine minute mark. I ask him to proceed and he is most welcome.
Dr. Liam Thornton:
I thank the Chairman and the committee members. I am a lecturer in law at UCD Sutherland School of Law. I thank the committee for inviting me here and giving me the opportunity to discuss Ireland's obligations under the International Covenant on Civil and Political Rights and the system of direct provision for asylum seekers in Ireland.
The UN Human Rights Committee has made clear, in its general comment No. 15 on the rights of aliens and general comment No. 31 on the nature of state obligations, that asylum seekers enjoy all the same rights under the ICCPR as nationals. As members have had the benefit of my full submission I shall speak briefly on some of the points. Before outlining some of my key concerns it might be useful if I briefly summarise what direct provision is for the committee.
Direct provision is the system utilised in Ireland to provide meals and accommodation to those seeking refugee status, subsidiary protection or leave to remain in Ireland. Asylum seekers are only entitled to a direct provision allowance of €19.10 per adult and €9.60 per child per week and the rates have remained the same since 2000. Asylum seekers are legislatively prohibited from working on pain of criminal conviction and possible imprisonment. Asylum seekers are entitled to a medical card. Children of asylum seekers and asylum seeking children are entitled to education up to leaving certificate level. There is no compulsion on asylum seekers to remain in direct provision accommodation but if they leave, their direct provision payments of €19.10 or €9.60 per week will be withdrawn.
The committee has asked me to look at the right to equality, the right to private and family life, the prohibition of inhuman and degrading treatment and the system of direct provision. All human rights are interdependent and indivisible in nature. A violation of economic, social or cultural rights can lead to violations of civil and political rights, in particular rights under the ICCPR. Asylum seekers in Ireland live in a system of near cashlessness for years on end. Generally, asylum seekers are unable to cook their own food or decide what children should have for breakfast, lunch or dinner. Children must share rooms with adult relatives. The house rules provide accommodation centre managers with significant levels of control over everyday aspects of the lives of asylum seekers. I argue that the level of social control that asylum seekers are subjected to goes beyond any other type of institution whose purpose is the social care of asylum seekers.
The numbers in direct provision and the length of time people remain in direct provision continues to be a matter of concern. Over 86% of all asylum seekers have been in direct provision for 12 months or longer, over 15% of all individuals in direct provision have been there for over seven years, 43% of individuals in direct provision have been in such accommodation for five years. Some 1,666 people, or just over 38% of all those in direct provision centres, are children. I ask the committee members to consider the extent to which prolonged cashlessness, coupled with significant intrusion in private and family life, could be seen as significant violations of the right to equality, the right to respect for private and family life and inhuman and degrading treatment under the ICCPR. I must also point out that there is no legislative basis for direct provision, rather it is run on an administrative basis. From freedom of information documentation that I have had access to I am concerned that the system does not comply with the rule of law.
The human rights committee is responsible for assessing Ireland's obligations under the International Covenant on Civil and Political Rights. It will also be aware of Ireland's other obligations, in particular under the international Covenant on Economic, Social and Cultural Rights. The Committee on Economic, Social and Cultural Rights has made clear in general comment No. 19 on the right to social security which states: "asylum-seekers, and other disadvantaged and marginalized individuals and groups, should enjoy equal treatment in access to non-contributory social security schemes". There are now more people in direct provision in Ireland than in prison here. The system of direct provision is inhuman and degrading and violates the right to private and family life. Any system that replaces direct provision must ensure that human dignity and human rights are of central importance and that the rights of all of those who seek asylum are respected, protected and vindicated.
The final point that I shall address is the complaints mechanism. The human rights committee has raised issues with the mechanism in its list of issues. The complaints mechanism in place lack independence and there is no form of independent review or oversight of this internal complaints mechanism. Part 4 of the house rules and procedures for asylum seekers in direct provision outlines the complaints procedure in place, and also issues relating to standards of the accommodation that asylum seekers can expect and what the appropriate behaviour of residents should be.
The Government has insisted that the internal complaints mechanism is adequate. Due to sustained media coverage, inspection reports for direct provision accommodation centres have been released for all to access.Despite recommendations by Dr Geoffrey Shannon, the Free Legal Advice Centres, the Irish Refugee Council, NASC, the Irish Immigrant Support Centre that is based in Cork, that HIQA be responsible for independent inspections and complaints mechanisms, they have not been followed. A transparent complaints mechanism, independent of the Reception and Integration Agency, needs to be established. The issue has been highlighted in the list of issues and is something that the State needs to be aware of and have a response to for the human rights committee.
In summation, I believe that the system of direct provision violates a number of core rights, in particular the right to private and family life. I believe, in certain circumstances, the standard of accommodation and longevity of an asylum seeker's stay in direct provision could potentially be inhuman and degrading. Also, it fundamentally violates the right to equality under the International Covenant on Civil and Political Rights. That is my core message that I ask the committee to consider. I am happy to answer any questions members have on direct provision and Ireland's obligations under the ICCPR.
We have seen a big decrease in the amount of people who seek asylum. The waiting lists have decreased significantly. Has there been a subsequent decrease in the number of people in direct provision? Can Dr. Thornton identify a mechanism that would bring Ireland closer to its treaty obligations in the short term?
I noted the point made about HIQA. It would, possibly, be a good body to examine whether everything is in good and proper order in direct provision centres. I ask the witness to comment.
Mr. David Joyce:
I am pleased to have been invited to speak in the Seanad today, on behalf of the Irish human rights and equality commission designate, on the issue of strengthening co-operation between national human rights institutions and parliaments, and addressing human rights and equality issues, particularly as this arises under Article 2 of the International Covenant on Civil and Political Rights. I am joined by the acting chief executive officer of the Irish Human Rights Commission, Mr. Des Hogan. Both of us are happy to take questions, at the appropriate time, following a few short introductory remarks.
The opportunity to speak to the committee is timely as the draft legislation to merge the Irish Human Rights Commission and the Equality Authority into the new Irish human rights and equality commission is before the Houses of the Oireachtas. In our observations on the draft legislation we called for a strong liaison with the Oireachtas to be a concrete feature of the legislation. I shall outline why such a move is important.
The new Irish human rights and equality commission, as the independent statutory body charged with promoting and protecting human rights and equality, is a natural partner for the Oireachtas in supporting the role of Members a legislators. In addition, it can act as a check and balance on the Executive and its power. This derives from a range of functions which we carry out from public engagement, development, education and training, litigation and compliance to our research policy and practice work.
One of our functions is to engage regularly with the Oireachtas by commenting on draft legislation from an equality and human rights perspective and this has been a feature of both the Irish Human Rights Commission and the Equality Authority's work to date.
Currently, the Irish Human Rights Commission is recognised by the UN as Ireland's national human rights institution with "A" status under the UN Paris Principles, bridging the international and national human rights framework recognised by the United Nations, the Council of Europe and the European Union as a key actor. It is important that the Irish Human Rights and Equality Commission, IHREC, Bill 2014 and the budget and resourcing that underpins it ensures that the new commission continues to receive this recognition. This is equally so under EU law in so far as the Equality Authority is Ireland's specialised body under EU equality directives.
As the committee may be aware, the Irish Human Rights Commission, as Ireland's national human rights institution, is entitled, and indeed expected, to provide a shadow report under the International Convention on Civil and Political Rights and will appear before the Human Rights Committee in Geneva in July of this year. Our shadow report is not yet finalised and I am speaking today about our structural role rather than about the content of our concerns on the State's compliance, although we can address some of those questions, if necessary, in the question and answer session.
The committee will be aware that in 2008 Ireland was criticised by the Human Rights Committee for not properly resourcing the Irish Human Rights Commission and it recommended that the State should strengthen the independence and capacity of the Irish Human Rights Commission to fulfil its mandate effectively under the UN Paris Principles. It is important that in this current review in July the State can unequivocally demonstrate its support for the new human rights and equality infrastructure in the State.
In this regard there are some elements of the draft legislation which we hope can be improved on by the Seanad during its passage through the Oireachtas - we are aware it is currently before the Seanad. While a strong commitment to the proper funding of the body in the years to come will be important, when we consider how co-operation between the Irish Human Rights Commission and the Oireachtas can improve we need to consider what has worked and what has not worked, and how the statutory body responsible for equality and human rights can assist the Senators, as parliamentarians, in upholding human rights and holding the Executive to account. Here we are fortunate in so far as it is increasingly recognised, under a number of international benchmarks, in particular the UN Paris Principles, the Council of Europe Parliamentary Assembly, PACE, and the Belgrade Principles, and the upcoming report of PACE through the work of their colleague on the committee, Senator Katherine Zappone, that parliaments and the NHRIs must work together if we, as a society, are to properly uphold the rule of law and human rights and equality standards.
For our part, the Irish Human Rights and Equality Commission is keen to build stronger links with the Oireachtas. We have recommended that on the parliamentary side a dedicated committee be established to examine equality and human rights matters with structural linkages to other committees. We have also recommended that section 23 of the IHREC Bill should be strengthened to add references to the Irish Human Rights and Equality Commission regularly meeting with parliamentary committees under procedures to be agreed and to promote law and practice relating to the protection of equality and human rights by respecting the independence of the commission and noting any capacity constraints. One other area we can offer to parliamentarians is in training to State bodies and parliamentarians on human rights and equality.
I am happy to take questions. Dr. Hogan and I are at the committee's disposal.
That is fine. We will take the Irish Penal Reform Trust, IPRT, now as well. Ms Deirdre Malone has ten minutes, if she wishes to use it, to synopsise the submission the committee received already and highlight the issues.
Ms Deirdre Malone:
I am the executive director of the Irish Penal Reform Trust. I have been asked to comment on the State's reply to the Human Rights Committee list of issues that it is "not possible" to remove the reservation on Article 10(2) of the ICCPR and on the implications of such inaction for younger persons on remand or in detention. As Senators will be aware, Article 10(2) contains two important provisions. It is about the segregation of the accused from the convicted and about the separation of juveniles from adults.
It is important to look at why we have this principle and why it is so important to separate juveniles from adults because that goes some way to eliminating the implications of inaction when it comes to this article. The first point is the nature of children's needs. Children are different. The general comment of the Committee on the Rights of the Child states:
Children differ from adults in their physical and psychological development, and their emotional and educational needs. Such differences constitute the basis for the lesser culpability of children in conflict with the law. These and other differences are the reasons for a separate juvenile justice system and require a different treatment for children.The second issue is protection from harm. Children are particularly vulnerable and it is for that reason that the European Prison Rules provide that, "young prisoners shall be detained under conditions which as far as possible protect them from harmful influences and which take account of the needs peculiar to their age". Indeed, the Committee on the Prevention of Torture has also found that: "regardless of the reason for which they may have been deprived of their liberty - juveniles are inherently more vulnerable than adults. In consequence, particular vigilance is required to ensure that their physical and mental well-being is adequately protected", and further: "to accommodate juveniles and unrelated adults together inevitably brings with it the possibility of domination and exploitation".
The third reason for separation of juveniles and adults is the potential criminogenic effect, and also the fact that children are particularly amenable to rehabilitative treatment, and segregation from adults provides the optimum situation to rehabilitate and, ultimately, for children to reintegrate successfully.
It can be stated why it is so important to separate the accused from the convicted. It is a founding principle of the criminal justice system that one is seen and treated as innocent until proven guilty. That principle is recognised in the different regimes in place for both convicted and unconvicted criminals, and it goes without saying that children on demand should never be housed with those who have been convicted under sentence.
Having looked at why this article is so important, the next matter is to look at what has been Ireland's position in regard to the article. Ireland's reservation to the article was entered in 1989. We are one of only 15 state parties out of 168 who have entered a reservation in respect of Article 10. The wording of Ireland's reservation is important. What Ireland stated was:
Ireland accepts the principles referred to in paragraph 2 of article 10 and implements them as far as practically possible. It reserves the right to regard full implementation of these principles as objectives to be achieved progressively.Ireland stated categorically that the value and validity of those principles is not in question. The only reservation Ireland entered is the pace at which such change can be achieved. That was in 1989. In 2014, there are still children detained in Wheatfield, albeit in specialised units. It is an adult prison. There are two remand prisoners remaining in St. Patrick's Institution, an institution which has been described in the past as an obscenity.
Looking at the list of issues for the fourth periodic review, the Human Rights Committee asked the State to clarify whether it will review the reservation and, if not, indicate why and identify the remaining obstacles. In Ireland's reply, while the State confirmed that all reservations are kept under review and it remains committed to the implementation, it reiterated that it is "not possible" to withdraw the reservation but, unfortunately, it did not provide a statement of the obstacles to the withdrawal of that reservation.
I have been asked to consider the possibility of the withdrawal of the reservation. There are two points to make in regard to that. It goes without saying, and Senators will be aware, that legally, it is, of course, possible to remove any reservation from an international treaty. It is provided for in Article 22. Indeed, Ireland has withdrawn other reservations.
The second, and more important, issue is whether Ireland can realistically meet the requirements of Article 10. It is also clear that with ongoing political will and adequate resources it is certainly possible to meet them. We know it is possible because after many years of campaigning from organisations such as the Children's Rights Alliance and the IPRT, we are well on our way to doing so. There has been capital investment in Oberstown and an important decision to close St. Patrick's Institution. That was a significant step towards guaranteeing the separation of juveniles and adults. Equally, there has been some movement in the separation of remand and convicted prisoners.
Although a significant minority continue to be kept in non-segregated facilities, the majority of remand prisoners are confined to segregated facilities in two prison sites.
Our submission is that it is both legally and practically possible. I make the point that when one considers fundamental human rights principles and when one talks about what is possible or impossible, it is rarely a reflection of true capacity. The difference between possible and impossible often is really a product of political will, of the availability of resources and of the decision to allocate resources to those who are considered to be the most deserving and the most important. I noted that in the very beginning of the just-published national policy document for children, Better Outcomes Brighter Futures, Nelson Mandela was quoted. It repeated his statement "there can be no keener revelation of a society's soul than the way in which it treats its children". My point is that to maintain the reservation in effect provides an open-ended timetable to the State regarding the fulfilment of these principles. If there can be no greater revelation of a society's soul than the way in which it treats its children, the maintenance of this reservation to a key human rights provision, which is not only about children but about children who are imprisoned - the most vulnerable in society - this is not at all a positive reflection on Ireland. While it should be frankly acknowledged that much progress has been made in this area, we are not there yet. Consequently, the position is still that the formal withdrawal of this reservation would demonstrate concrete commitment to ending this practice of combining juveniles and adults together. Moreover, it would ensure the continuing progress in the protection of fundamental human rights for the juveniles in the criminal justice system.
I thank Ms Malone. At this point, a question raised by Senator Cummins remains outstanding. Having mulled over in his mind what I am sure is an appropriate answer for him, I will allow Dr. Thornton to respond first.
Dr. Liam Thornton:
I thank the Chairman and thank Senator Cummins for the question. There has been some progress. At one point, more than 8,000 people were in direct provision centres, while at present, slightly more than 4,000 people are in these centres. There were approximately 6,000 people in 2010, which has now fallen to 4,000. The main mechanism to ensure that people do not have a prolonged stay within direct provision centres is an excellent process to determine whether a person is entitled to refugee subsidiary protection or some other leave to remain. The Minister for Justice and Equality, Deputy Shatter, has been attempting to bring into force the Immigration, Residence and Protection Bill, which hopefully will ensure that the time spent in direct provision centres will be as minimal as possible. Even allowing for that, there still are significant questions and concerns regarding the warehousing of individuals applying for protection within one centre for many months and years on end in circumstances in which family life cannot be enjoyed, where parents cannot determine what food their children will eat or at what time they will eat it and where children may not have school friends over. The key process needed is a reform to a more rights-based status determination process.
However, I believe this must be coupled with a system that respects the fundamental rights of asylum seekers. As to whether there is anything in place that can make reference to best practice, I refer to the European Union's recast reception conditions directive, which is not applicable on the State. It provides asylum seekers with a right to work, if a decision has not been reached in the first instance on an asylum decision, within six months. It also provides certain other rights that asylum seekers currently do not have in Ireland. I also welcome the Senator's comments on HIQA, if there is anything to those comments that I can add.
May I move on to the submission of the Irish Penal Reform Trust, IPRT? Ms Malone spoke of the separation of prisoners and the IPRT is particularly concerned by the number of children who are in Wheatfield Prison. I must confess that I am not familiar with the different prisons but does the trust require the State to go on a prison-building campaign? Is there not different segregation within prisons anyway to take care of the different categories of prisoners?
Ms Deirdre Malone:
The first point to make is our position always is that prison always should be a last resort. Moreover, penal expansion has not proved itself to be particularly effective where that policy has been pursued. It is quite clear that it always assists, when one is in a position in which prisons are needed, to have an allocated prison for remand prisoners who have not yet been convicted. As for children, however, it has been shown time and time again, through research of the Irish Penal Reform Trust and others, that for children the focus must be on a therapeutic environment. The plans for Oberstown potentially will go a long way towards achieving that. When the plans for Oberstown were revealed, it was hoped this would be a real opportunity to provide a state-of-the-art facility for children where the focus was on therapy, education and rehabilitation. The key point is that children are very different from adults and require substantially more support. Hopefully, Oberstown will achieve this but at present, children still are being detained in Wheatfield, which is an adult prison. While it is correct to state that this is in a dedicated unit within Wheatfield, none the less the Ombudsman for Children, Emily Logan, has made a clear point that it simply is not appropriate for children to be detained in an adult institution, albeit within a specialised unit. We want all children to be detained in an appropriate therapeutic facility.
I agree with Ms Malone about the rehabilitation and education where children are concerned, particularly those of a young age. Unfortunately, however, our society has more and more juvenile criminals who aim to become gangsters and who are following on lines no one would wish them to follow. While I accept what Ms Malone is saying, I refer to children of different ages. Where should children be, other than in Wheatfield? Should they be in Oberstown?
Ms Deirdre Malone:
In respect of the numbers, in fact it is a commonly-held myth that the numbers of children being detained or being involved in the criminal justice system are increasing. In fact, it was necessary to reduce the provision at Oberstown because there was not as much need as had been expected. The Irish Penal Reform Trust hopes this will continue, that is, where alternatives to imprisonment are used, where imprisonment is used as a last resort and where diversion is used. The latter in fact is the answer because as far as I can see, it does no one any good to end up in the criminal justice system. The answer is to deal with the issues as they arise. Prevention and early intervention is the most cost effective and successful way to ensure that children stay outside the criminal justice system and achieve as much as they can and contribute to society.
At the outset, I am delighted that some members of my committee, as well as other Members of the Seanad who are not part it, are in attendance, in light of the interest in the issues under discussion today. With this report, members of the Council of Europe Committee on Equality and Non-Discrimination are trying to add value to this treaty body process as lawmakers. It is new territory for them to an extent and they are delighted to have the witnesses help them with that issue, as they try to think about what are some of the things they wish to say to the United Nations Human Rights Committee about what is the most urgent priority, in terms of response to the Government's report on these issues.
I have two questions for Dr. Thornton. He ended his contribution by calling for the advocacy of an independent complaints mechanism in regard to the direct provision process. I note, as he did, that the Government in its response to the issue of an independent complaints mechanism, which was raised by the UN Human Rights Committee, stated that in the Reception and Integration Agency's view there is no clear model that is being cited as to what an independent complaints mechanism would look like and, consequently, from reading further on what the Government said, effectively, it is not going to proceed on that matter. I want to hear what Dr. Thornton has to say in that regard.
My second question is in terms of Dr. Thornton's more general report, and he referred to this in his presentation, where he argues that the direct provision system that is in place is legally suspect. Could he say a little more about that, as that is a strong statement and accusation to make?
I will be brief. I thank the three speakers for their contributions which were very interesting. I totally agree with Ms Deirdre Malone that prison should be a last resort, but it is a fact that it is necessary from time to time for people who are classified as children to be detained for their own and for society's protection. That said, I agree that should not be in a normal prison. While I welcome the provision of the new facilities in Oberstown, I would like the capacity of the facilities to match the need, which is not the case at present. Young people should not find themselves in an adult prison. Anybody who has occasion to visit a prison knows what a traumatic effect it has on people visiting a prison and one can imagine the effect it has on a person who finds himself or herself incarcerated there. Hopefully, we will never find that out.
Under Article 13 of the International Covenant on Civil and Political Rights, does Dr. Thornton believe that aliens have the same rights as residents and citizens? Could he enlighten us as to how many people currently are in the direct provision system and what that costs the State in monetary terms? I thank the delegates for their contributions.
Dr. Liam Thornton:
I thank the members of the committee for their questions. First, in regard to Senator Zappone's question on having an independent complaints mechanism, several groups have said that the Health Information and Quality Authority could be the body that would address complaints asylum seekers may have about the quality of accommodation, food or the behaviour of managers at accommodation centres. The structure is in place that would permit HIQA to investigate those types of complaints. It should be done independently of the Reception and Integration Agency because, as Senator Zappone noted, the Government's reply to the list of issues seems to have discounted any possibility of any independent oversight mechanism for complaints within the direct provision system. I imagine the UN Human Rights Committee, by placing this matter on its list of issues, may be very concerned that if an independent complaints mechanism is not in place, a variety of rights under the ICCPR could be violated, such as issues related to access to justice and a fair hearing, and that may impact substantively on the rights to private and family life. Conditions may also be inhuman and degrading and go against the right to equality.
I mentioned in my full report that the direct provision system is legally suspect. I must be careful as there is a case before the High Court on the constitutionality of the direct provision system. Therefore, I will speak in general terms and not with reference to anything that is going on at present. Section 246 of the Social Welfare Consolidation Act, as amended, prohibits asylum seekers from being habitually resident. Therefore, they are not entitled to any social welfare payments except for emergency needs payments. From freedom of information documentation to which I had access, in 2006 and 2007, the then Secretary General of what was then the Department of Social and Family Affairs stated in a letter that the payment of €19.10 per week to asylum seekers was ultra vires- outside the powers - of what is now the Department of Social Protection. That letter was sent to the then Secretary General of the then Department of Justice, Equality and Law Reform who refuted that allegation, but the Secretary General of what was then the Department of Social Family Affairs stated there was no grounds for paying the €19.10 per week because asylum seekers had been prohibited by the Oireachtas from being entitled to any welfare payments whatsoever. It is on that basis I make the charge that the system of direct provision is legally suspect, that payments are being made without any legal authority by the Department of the Social Protection.
Senator Wilson mentioned the costs of the system. Speaking from memory, I believe the cost of direct provision accommodation last year or possibly in 2012 was €62 million. I do not have a recent figure for the amount paid in direct provision allowance but I have seen figures from 2007, 2008 and 2009 that were in or about €3 million, if my memory serves me correctly.
Regarding Senator Wilson's second question, the UN Human Rights Committee, in its general comment No. 15 on the rights of aliens and its general comment No. 31 on nature of state obligations, stated quite categorically that asylum seekers enjoy all rights under the ICCPR as nationals.
Looking back to 1995 and 1996, the level of inward migration to this country was 100 to 150 people per annum, and in the period following that, there was a huge increase in the number of economic migrants and refugees to this country seeking asylum due to our economic boom. I recall at the time that there was a strong squeeze put on the then Government to provide services and there were queues in Dublin to access services. What progress has been made since the late 1990s or in the last decade to provide better facilities in terms of accommodation and resources to deal with asylum seekers? We have a history in Ireland of our people emigrating all over the world, but when there was a sea-change in the mid-1990s of people migrating here, we were not prepared for it and we found it difficult to deal with and to accept. Can Dr. Thornton elaborate briefly on the progress that has been made? Obviously, significant progress has been made but there is still a long way to go.
Dr. Liam Thornton:
As I mentioned, direct provision is 14 years old last month, having been introduced formally in April 2000. As the Chairman mentioned, that was in response to a perceived large number of people claiming asylum and the then Minister for Justice, Equality and Law Reform stating what his European Union partners were telling him, that he would have to act and would have to ensure asylum seekers did not have any access to the welfare state. That was coupled with significant pressure on housing in the country, which is also occurring as we speak.
There was significant pressure on housing when the direct provision system was introduced. There were approximately 10,000 asylum applications in 2000 but the figure for last year was fewer than 1,000. It is somewhat understandable why the system developed as it did. Over the 14 year period since 2000, the weekly payments of €19.10, and €9.60 in respect of children, have not changed. For 14 years, there has been no change to the rate of payment for those who seek asylum under the direct provision system.
I must give credit where credit is due in that some progress has been made on facilities. Generally, no asylum seeker will be without a roof over his or her head. However, I wonder what the quality of accommodation and the standard of living made available, such as being forced to eat in a canteen every day, might do to individuals' mental health. I know one individual who has been in direct provision for almost ten years. Dr. Carol Coulter, in her family law review project, pointed out that the Child and Family Agency has had to become involved in a number of cases. Mothers, in particular, are suffering significant mental health problems partly due to what they suffered in their countries of origin but also due to the isolation and desolation they experience in direct provision. While it is positive that people have roofs over their heads we must examine the extent to which these provisions meet our obligations under the Constitution, the European Convention on Human Rights and the International Covenant on Civil and Political Rights.
On the issue of children in remand, is it the Irish Penal Reform Trust's opinion that in an ideal world remand centres for children should not exist, particularly in respect of those of a tender age? Perhaps that is an utopian view but Ms Malone may wish to comment.
Ms Deirdre Malone:
Currently the key issue in respect of the standard set out in Article 10 is that there would be separation, at least, between children on remand and children who have been convicted. We have not yet even achieved that baseline, however. The Children's Rights Alliance has argued that we should examine closely the frequency with which we place children on remand. When we use the world "remand" we sometimes forget this means that a child who has not been convicted of any crime is separated from family, school and friends while awaiting a trial. He or she will be experiencing all the difficulties one inevitably experiences when one is detained. Our first aspiration should be to meet the basic standard because were are not even at that point. The second aspiration is to examine the frequency with which we are using remand and whether we are using it for the right reasons. Are we using remand as a welfare alternative or only where it is absolutely necessary? We need to investigate how necessary it is in the context of particular cases.
I was interested to hear that the numbers and demand in Oberstown have decreased. I suggest that the current and previous Governments have put considerable effort into developing the juvenile justice system. We investigated the models in New South Wales and New Zealand and copied them. Significant progress has been made in using remand as a last resort for young children. Are these efforts reaping a reward in terms of keeping numbers down?
Ms Deirdre Malone:
I fully agree with the Chairman's point and I hope I reflected it in my submission. We acknowledge that significant progress has been made in the last several years. The decision to close St. Patrick's represented a huge step forward which we welcome warmly. However, we must recall that the initial recommendation to close St. Patrick's was made by the Whitaker report of the 1980s. We have had plenty of time to move forward and, while I welcome the progress that has been made, we are not yet there.
Is Ms Malone arguing that the State should take away that reservation even though it is not yet in a position to follow through on the practical implications? Would removing the reservation formally be a good thing in terms of helping to generate momentum to do what is required to achieve separation between children and adults?
Ms Deirdre Malone:
We have to be careful with that issue. I note from the report by the Children's Rights Alliance that the Department of Children and Youth Affairs has stated it will consider withdrawing the reservation following the transfer of all 17 year olds to Oberstown in the third quarter of 2014. Clearly it is important that we do not remove a reservation without taking the practical steps to fulfil our obligation but maintaining the reservation indefinitely provides a timetable with no end in terms of meeting the obligations under the article. It is now time, 24 years later, to bring it to an end.
The Irish Human Rights Commission clearly addressed the question of how to strengthen the links between the Oireachtas and the national human rights institution. Particular opportunities to make the changes have been identified in the context of the Bill that is coming before the Houses. If the commission's representatives wish to say more in that regard, I invite them to do so.
Mr. Joyce spoke about the structural role of the commission and the issues of proper resourcing and independence. I understand that during the preparation of the Bill, the commission was told to make a business case for an appropriate budget that would ensure its independence. I assume the commission prepared such a business case. Is Mr. Joyce happy with that and can he identify any other measures in the Bill that should be changed in order to ensure independence and compliance with the Paris principles?
Dr. Des Hogan:
This is a very welcome hearing insofar as this Seanad committee is considering the State's response to the ICCPR. It is a significant step forward for parliamentarians in terms of calling the Executive to account. The UN Human Rights Committee has given concluding observations on Ireland in 2008 and a list of issues last year. The Government has given its response and the question arises of whether it meets all of the committee's concerns. This is because Ireland has signed and ratified the ICCPR, one of the founding international treaties to which most states have signed up. These are real questions and it would be interesting for us to learn the nature of Senators' interaction with the Executive in terms of the delegation that will go to Geneva, what it will bring there and what it will bring back.
On the question of the commission, as the acting chairperson, Mr. Joyce, has noted, we are Ireland's A status human rights institution and we hope that when we are up for re-accreditation in over the next we will retain that status subsequent to our merger with our colleagues in the Equality Authority. We have highlighted section 23 of the Bill in regard to proper resourcing of the commission. This was a concern expressed by the UN Human Rights Committee in 2008 and the State will have to show how it is meeting that commitment. There are two ways of meeting a commitment of this nature. One could provide adequate on a year-on-year basis, underpinned by protocols or legislation. We accept that it is not possible to set out the budget one wants in legislation but we have asked that the Bill be strengthened slightly so that it is reasonable.
If it is subject to two Ministers having a kind of subjective view on what is reasonable and what is not, one may go in the direction of what we had in the past, namely, the budget cuts which are difficult to oppose when one is administratively linked to the Department imposing the cut and something which is not, in terms of best practice, in the Belgrade Principles and the UN Paris Principles. From our perspective, we have very much welcomed the increase in budget we received this year. The question will be whether that can be sustained. Also, as we are going through a process of merger and amalgamation, by definition, we are not able to give the outputs we normally do in a normal budgeting year. Our staff is much reduced so we would not be able to meet the pay and non-pay sides in this particular given year. That should not be the baseline for future years but it should be a reasonable, stated and argued case which has the backing of Parliament so that we are either Ireland's A status national human rights institution or we are not. That is the question and the one the UN will ask us over the next few months as well.
We are coming to the close of this session. Dr. Hogan posed a question for us. I suppose what we are doing - members may support me in this view - is shining a light on the issues. We are not here to take on the Government. We will present our report, which we hope to conclude in two or three weeks, to the Government following the work we are doing and the witnesses' submissions. We hope the Government will take cognisance of the views expressed and that when it responds, some of the work we have done will be helpful to it. That is the tenet of our work, namely, to shine a light. When we issue our report, it will be sent to Government and it will be helpful rather than confrontational. I thank Dr. Hogan. If he wishes to stay for the next session, he is quite welcome to do so.
We will now move on to the next session in our public hearing. I welcome Ms Brigid Quilligan and Ms Susan Fay from the Irish Traveller Movement. We will allow ten minutes for their submission. We have already received their written submission, which has been studied and dealt with. It is just a question of highlighting the issues they would like to emphasise and synopsise for the committee so we can move them forward. There will be questions and answers following the submission.
Ms Brigid Quilligan:
I thank the committee for taking the initiative to hold these hearings and, in particular, for inviting the Irish Traveller Movement to discuss the issue of the State's failure to recognise Travellers as an ethnic group and the implications in the context of the State's compliance or otherwise with the ICCPR.
I am a Minceir Beoir or Traveller woman from Killarney and I am the director of the Irish Traveller Movement. The Irish Traveller Movement is a national membership organisation representing Travellers and Traveller organisations. It was founded in 1990. One of our core principles and one of the issues on which we were founded is to challenge the racism that we, as Travellers, face in Ireland and to promote integration and equality in Irish society. One of the means by which it is necessary to achieve our objectives is for the State to formally recognise my people's distinct ethnicity.
Our presentation is divided into five broad sections: we will examine the relevant concluding observations of the UN Human Rights Committee under the ICCPR in 2008; we will examine the status of Irish Travellers in the British Isles; we will note the comments of the Office of the UN High Commissioner for Human Rights on the State's failure to recognise my community's ethnicity; the managing solicitor of the Irish Traveller Movement, Susan Fay, will discuss the difficulties that she has encountered as a direct result of ethnicity denial; and we will examine recent developments, namely, the Joint Committee on Justice, Equality and Defence recommendation that my people be recognised as an ethnic minority group.
The first aspect I propose to examine relates to the concluding observations of the UN Human Rights Committee of Ireland's compliance under the ICCPR in 2008. The committee stated that, "The State party should take steps to recognize Travellers as an ethnic minority group." Despite the 2008 recommendation of the committee the State continues its denial of my ethnicity. Four years' later, in 2012, paragraph 793 of the fourth periodic report on Ireland's compliance under the ICCPR, states, "Irish Travellers do not constitute a distinct group from the population as a whole, in terms of race, colour, descent or national or ethnic origin." The State provides no rationale for this assertion. Flat denial of ethnicity is not consistent with the ICCPR. It runs contrary to Article 27 of the ICCPR which sets out that in determining whether an ethnic minority exists objective criteria should be used.
The second implication involves a situation of Travellers across the British Isles and the inconsistency of our ethnicity recognition. It is widely accepted that my community satisfies the standard legal and sociological criteria for recognition as an ethnic group and it is recognised as such by the British and Northern Irish authorities, as being separate from non-Traveller Irish people. The State's two statutory human rights and equality bodies, the soon to be merged Irish Human Rights Commission and the Equality Authority, have analysed the sociological and legal criteria and both have consistently concluded that we are an ethnic group and should be recognised as such.
The implications of the failure of the State to recognise us as an ethnic group is highlighted by the ridiculous situation whereby if I take the Enterprise train to Belfast and I pass through Dundalk, I am not a member of an ethnic group but then minutes later when the train pulls into Newry, I am. This ridiculous situation also highlights the fact that denial of ethnicity runs contrary to the principles of equivalence contained in the Good Friday Agreement.
The Irish Government has never satisfied the burden of proof in its failure to recognise my community's right to self-identity or to identify it as an ethnic minority group. This ongoing denial of an indigenous ethnic minority creates key challenges for the State's international reputation and seriously undermines its position as a member of the UN Human Rights Council.
As set out in our written submission, the Irish Traveller Movement's concerns in October 2012 were noted by the UN High Commissioner for Human Rights, Ms Pillay. The chief of the indigenous and minority section of the Office of the UN High Commissioner for Human Rights, responded in writing to our concerns. Her comments are worthy of inclusion on the record of this House. She states:
While there is no universally accepted definition of what constitutes a minority under international law, there are certain criteria that should be taken into account when discussing this issue, including the self-identification of people belonging to a specific group such as the Irish Travellers. At the same time it is important to note that an existence of a minority is a matter of fact, not of law, as it was affirmed already in 1930 in the Greco-Bulgarian communities case before the Permanent Court of Justice. Furthermore, the applicability of Article 27 of the International Covenant on Civil and Political Rights, as well as the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, inspired by this article, is not subject to official recognition of a minority by a state. The official recognition by a state of a minority group, however, can be instrumental in securing all human rights to its members. It can also contribute to the stability of a state. OHCHR supports all efforts that would result in a higher protection of the human rights of Irish Travellers in Ireland and wider.I will ask the managing solicitor of the Irish Traveller Movement, Susan Fay, to outline some of her experiences in advising clients on their legal rights and the difficulties she faces with regard to ethnicity denial.
Ms Susan Fay:
I wish to commend the Seanad on taking the initiative in holding these hearings. As part of my role in the Irish Traveller Movement law centre and in the ICCL steering group which is examining Ireland's compliance or otherwise with the ICCPR, it is wonderful to see the Seanad taking leadership in this matter.
I will speak as a solicitor in the Irish Traveller Movement law centre, about the advice I give people and the issues created as a result of the failure on the part of the State to recognise Travellers as an ethnic minority group. Following on from what was set out in the written submission, ethnicity denial effectively creates, ironically, a two-tier equality system. This means that in reality, there are ethnic and racial groups who are automatically protected by international human rights and equality directives and then there are ethnic groups such as the Irish Traveller community which are not protected. This was clearly demonstrated by the fact that Travellers were not included in the Bill that became the Equal Status Act 2000. As a result of significant lobbying on the part of the Irish Traveller Movement and other NGOs, Travellers were included but initially they were excluded from that legislation. Similarly, Travellers were not included in the first incitement to hatred Bill 1989 but as a result of lobbying, Travellers were subsequently included. Significant resources were used by NGOs in ensuring that Travellers were included in that legislation when, in our opinion, Travellers should be automatically included in human rights and equality legislation.
The failure to recognise Travellers as an ethnic minority group, despite the fact that it is widely accepted that Travellers are a de factoethnic minority group, renders Travellers' human rights and equality as prescribed by international treaties subject to domestic political whim. If history has taught us anything, it has taught us that such a position is dangerous and inconsistent with good human rights practice.
I note in the State's 2012 report under ICCPR at paragraph 794 that the State attempts to justify ethnicity denial by pointing to the fact that membership of the Traveller community is already considered a separate ground for the purposes of equality legislation. It is worth noting that in the law centre we encounter significant difficulties when we are attempting to advise clients on the effect of a particular provision or provisions in equality legislation. As many Senators will know, equality legislation was introduced in Ireland to comply with EU directives. In advising clients on the terminology used in domestic legislation which is implementing those European directives, it can often be necessary to rely on European jurisprudence. However, as Travellers are not recognised as an ethnic minority group, the rights of Travellers to rely directly upon the race directive or jurisprudence under the directive, can and has been challenged. While I note we have been asked to comment specifically on Articles 1 and 27, while we are discussing equality, compliance with Article 26 of the ICCPR - this provision relates to equality - it is important to note that this article is crucial in respect of the protection it provides to Travellers. The article is very broad. It states:
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.I note that there is domestic equality legislation in place - the amended Equal Status Act.
Section 14 of the Equal Status Act 2000 is problematic in that it allows other legislation to override the effect of equality legislation, thus diluting the effectiveness of the legislation and leaving the protections under equality legislation subject to political whim.
Ms Brigid Quilligan:
I will make one final point in support of Ms Fay's comment on automatic protections. When the office of the Minister of State with responsibility for integration was being established, Travellers, despite being one of the groups that has experienced most discrimination over the years, were not included within the remit of the new office. As many Senators will be aware, the Irish Traveller Movement and other non-governmental organisations made a presentation to the Joint Committee on Justice, Defence and Equality last year. The committee's final report, which was published two weeks ago, recommended that Travellers be recognised as an ethnic minority group. The committee's support for our proposal was unanimous.
Members of the Joint Committee on Justice, Defence and Equality took the initiative by taking time to visit Travellers on the ground and engaging with all those involved in this issue as part of a thorough consultation on Traveller ethnicity. It was one of the proudest moments of my working life to be able to tell my 91 year old grandfather that elected public representatives had recommended that our people be finally recognised. We are confident that the Government will do so. It has never explained to my community and people, using objective criteria and international standards, the reason it denies Traveller ethnicity. Six years after a United Nations Human Rights Committee issued a strong recommendation under the International Covenant on Civil and Political Rights, the Government has not made any clear policy statement or commitment on this issue. It has not set a timetable or published draft legislation. Under the universal periodic review, UPR, process, the Minister for Justice and Equality indicated he was giving the matter serious consideration. If the State takes seriously its human rights obligations, the time to act is now because promises do not mean anything until they are implemented. Travellers need stronger protection and recognition.
I am a member of the Joint Committee on Justice, Defence and Equality, which is chaired by Deputy David Stanton. Its unanimous recommendation on recognising Traveller ethnicity was a significant step. This was the first time in my political career that the committee made such a forceful recommendation. That is a very important development.
The recommendation by the Joint Committee on Justice, Defence and Equality that Traveller ethnicity be recognised was issued in its report of 17 April. The conclusion of the report states that it was inappropriate for the State to reject the ethnicity of Travellers. That statement says a great deal.
What immediate steps does the Irish Traveller Movement recommend the State take to address the issue of Traveller ethnicity under its Article 27 obligations? Some weeks ago, a committee of the British-Irish Parliamentary Association met representatives of Travellers, including members of Pavee Point, and it plans to meet Travellers in the United Kingdom, Northern Ireland and Scotland. The committee will draft a report in the autumn. I ask Ms Quilligan to indicate what can be done under Article 27 obligations. What does the Irish Traveller Movement recommend the State should do to address the issue?
Ms Quilligan is very welcome. I thought there was one Quilligan in Killarney or Tralee.
I agree with the recommendation of the joint committee, of which I am not a member. Like Senator Cummins, I am interested in hearing what Ms Quilligan envisages should be the next step.
On the wider issue, while I accept that Travellers are an ethnic minority, did this concept develop from practice and custom? Given that we are all Irish, where did the idea begin or where does it have its root?
I welcome the witnesses. I have a bread and butter question. Will the witnesses provide four examples of how Travellers are discriminated against? I ask for real examples, as opposed to philosophical, sociological or linguistic examples.
I had not planned to contribute at this point. I apologise to our guests for being late, which was due to being held up on the way from Galway. I am sure Professor O'Flaherty will be familiar with that problem. I welcome the debate and support the call made by the witnesses on Traveller rights. This is an important occasion in that representatives of Travellers are present in the Seanad Chamber to bear witness to some of the issues that arise on the ground. Given the number of issues facing Traveller communities, I am curious to find out what will be the four issues the witnesses will choose in response to Senator Marie-Louise O'Donnell's question. Tá fáilte roimh aris agus tús an mhaith.
As Senator Ó Clochartaigh noted, this is an important meeting. I am concerned that recognising the Traveller community as an ethnic minority would be a backward step given the integration that has taken place over the years. I worked previously in the personnel department of a business where I hired members of the Travelling community who integrated very well into the workforce. They made such a fine contribution that most colleagues did not even realise they were from the Traveller community. If we recognise Travellers as an ethnic minority, will we not further polarise matters? Will people view Travellers as different and want to treat them differently?
Ms Brigid Quilligan:
I will respond first, after which my colleague, Ms Fay, will, if necessary, provide information of a more legal nature. Senators may wish to ask further questions if they require more information.
On Senator Cummins's question as to what would be our recommendations, the Joint Committee on Justice, Defence and Equality has made concrete recommendations with which we concur. This would only require the Taoiseach or Minister for Justice and Equality to make a statement in the Dáil formally recognising the ethnicity of Travellers. There is nothing to prevent either of them from making such a statement tomorrow if they so wished as no legislative change would be required. We strongly encourage either the Taoiseach or the Minister to make such a statement.
Our second recommendation would be to consult the national Traveller organisations, Travellers and relevant stakeholders on how to progress and roll out the recognition of Traveller ethnicity, identify what would be the implications and ascertain how best we could use available resources to make a strong impact.
The third step would be to inform international human rights bodies that Ireland had taken this step. This would give a strong statement abroad that Ireland values its human rights track record and the human rights of one of its oldest indigenous minority groups.
Senator Paul Coghlan asked about the origins of Travellers and the idea of Traveller ethnicity.
As far back as we can recall, we have been people who were nomadic with no literacy skills, so our history, like that of many indigenous and nomadic peoples, was an oral history and is an oral history. Our history is passed down from generation to generation. We think any recollection of our history was done maybe by monks or other religious people. Like a lot of Irish history, that history was destroyed and very little of that before maybe the 1700s exists today. However, we know that passed down from generation to generation is a story that is contrary to the popular belief that we are people who were made homeless during the Famine times, which is not true. We were people who were nomadic for centuries. We have our own language. We have our own customs and way of life, which while similar to those of the Irish people of the time were still different. Some of our names are very different from other Irish people's names. Our history within our own families is very different.
There is evidence from different programmes that were done, for instance, blood of the Travellers, to show that Travellers have different DNA, at least tracing back for 1,500 years. More research needs to be done into that in terms of identifying where we originated. However, we know at least 1,500 years ago we were still a distinct separate group.
We have many real examples of racism. I will speak about some discrimination I have encountered myself in terms of access to goods and services. I live in Killarney and if I walk down Killarney town, I am instantly known as a Traveller. If I seek to get a cup of coffee in some establishments or go for a drink - even though I am a teetotaller - in some establishments, I could be refused access to those pubs, clubs or cafés. They could simply tell me: "Regulars only or nobody here tonight."
If I want to book a children's party for my son and if they hear my name, they will tell me the venue is booked. If I want to get my son into a particular summer camp and if they do not like my surname, they could tell me it is booked, and yet my friend with a different surname can go back afterwards and book a place for her son in it. In terms of access to accommodation, Travellers throughout the country are finding it increasingly difficult to get private rented accommodation when they are known as Travellers. Landlords will not rent to them. That is just based on maybe some landlords' experiences with some Travellers, but not with all.
In terms of the education system, going back many years Travellers, colleagues of mine, when they went into school - even my own experience of my very early education, although I have to put on record that I had a very good experience in school - were put into segregated education. Some Travellers were taken from their homes in the morning in buses, brought into school, showered, changed in communal baths regardless of whether they were boys or girls and put into a segregated classroom. That was their experience of education.
Looking online shows how we are discriminated against. A simple Google search of "Travellers" will show people talking about Travellers as if we are all criminals, people calling for us to be killed, calling for women to be raped and calling for children to be shot. I encourage those present when they go home today to do a Google search of "Travellers" and see what comes up.
Even being on a train or wherever, one will hear many derogatory comments about Travellers and we constantly have to justify ourselves. We do not enjoy the same rights as anybody else in Ireland. This gentleman over here spoke about the jobs market. If I went with my surname with all my qualifications and skills and applied for even a job in Dunnes Stores or any kind of mid-level job, I would probably not get past the interview process because people would see my name and I would be discriminated against. That is an experience I can speak to of myself.
Ms Brigid Quilligan:
I will wrap it up in terms of the backward step for integration. I would just say to the Senator that at the moment my people are slowly dying. If one looks at the suicide rate, it is seven times the rate for settled people. If one looks at the high level of unemployment and the low level of attainment in education, the Travellers the Senator spoke about more than likely, and no more than I had to do in the past, probably had to conceal their identity. Maybe that is not so. Maybe I am speaking out of turn, but I know that many Travellers throughout the country, to secure employment in the first place, have to hide their identity and pretend they are not Travellers. We have supported people in employment cases around this in that when they are in employment they have to pretend they are not Travellers, much as somebody from the LGBT community would have had to do a few years ago and in some circumstances still has to do. One almost hides one's identity.
Things are so bad for us at the moment that we have to ask ourselves if they can get any worse. We want recognition of our people. We think that with recognition comes respect in order that we can write our own history and people can learn who we really are rather than being told who we are and set the record straight and start to change things.
I thank the witnesses and we appreciate their being here. They are quite welcome to remain where they are or move into the seats behind while we move on to the next part of our public hearings.
I call Professor Michael O'Flaherty from the Irish Centre for Human Rights who has ten minutes, after which we might have brief questions and answers.
Professor Michael O'Flaherty:
I thank the Chairman for the invitation. It is a great honour to be here. I am professor of human rights law at NUI Galway and also director of the Irish Centre for Human Rights. I was a member and vice-chair of the United Nations Human Rights Committee, which is the monitoring body we are discussing and which will review Ireland's report in July.
Before coming to the topic on which I have been invited to speak, I join the other speakers in applauding this initiative by the Seanad, which is really international good practice. We all recognise that Parliament plays a critical role in the protection of human rights and in the implementation of international human rights treaty standards, but it is more often acknowledged in rhetoric than in reality. This initiative is a demonstration of a manner in which the Seanad is really developing good strategies around the role of Parliament from which other countries can learn.
The initiative the committee has taken in convening these hearings and deciding to adopt a report is strongly supported by high level international policy documents. For example, in 2011, the leaders of all the United Nations human rights treaty monitoring bodies met in Dublin and adopted the Dublin Outcome Document, which contains numerous references to the critical role of Parliament for the operation of the system. Much more recently, 27 Irish human rights groups met in Galway to adopt the Galway Platform on Human Rights in Irish Foreign Policy, which again made strong reference to the role Parliament needs to play.
Turning to what I was asked to speak about, I was asked to speak not so much about human rights issues in Ireland but rather on the broad process of what the human rights committee will do in the context of the report Ireland has submitted. First, what is the human rights committee? It is a body of independent experts elected by the states, including Ireland, that are parties to the International Covenant on Civil and Political Rights. It is a body that is elected periodically and on which all the members serve in an independent expert capacity - so they are human rights specialists and do not represent states.
The committee carries out many functions, some of which were referred to. The one of most interest for us today is the periodic review of reports submitted by states that are parties to the covenant.
As I mentioned, Ireland submitted a report approximately two years ago and it will finally be reviewed by the committee in proceedings in July.
It is important to recall that the report by Ireland under the covenant is not a general human rights report. It only covers issues of civil and political rights such as: the prohibition on torture; freedom from slavery; the freedoms of expression, movement and assembly; the rights of non-discrimination and equality; prison conditions; and so forth. The first step was the submission of the Irish report two years ago. A year ago the UN Human Rights Committee, based on what it read in the Irish report, developed the document that was mentioned this morning, the list of issues. In essence, it is 26 or 27 questions that the UN puts to Ireland regarding issues it considers to be of particular concern. The list of issues is, in a sense, an early indication of where the UN Human Rights Committee sees the existence of problems. That list was responded to by the Irish Government in February this year in a lengthy written document in which it sought to allay concerns and provide the additional information that had been sought by the UN Human Rights Committee.
Side by side with this formal process, from when the Irish report was submitted and continuing up to now, there are submissions and interventions by non-governmental organisations, NGOs, and by the Irish Human Rights Commission. There is no restraint on the number of submissions that can be made. They will continue to be made to the UN Human Rights Committee up to the review in July.
It is on the basis of all of these materials - the State report, the NGO submissions, the response to the list of issues and, indeed, the report the Seanad Public Consultation Committee will adopt, which I hope and expect to be tabled at the UN Human Rights Committee, that the UN Human Rights Committee will engage in a dialogue over six hours with a delegation from Dublin appointed by the Government. I have no idea who will be on the Irish delegation but, typically, these delegations are headed by Ministers or very senior civil servants. There is no rule book, but they are senior serious delegations that include public officials from across the areas which are likely to be subject to discussion. The six hour review in Geneva will be webcast, so it will be accessible and watched worldwide. Side by side with that dialogue, there will be a number of sideline events organised by civil society and, if it so chooses, by Ireland's national human rights institution, the Irish Human Rights Commission.
About a week after the six-hour dialogue with the Irish delegation, the UN Human Rights Committee will produce the outcome document. It is a terribly important piece of paper with a very dull title, the Concluding Observations. In essence, it is the findings of the UN Human Rights Committee on the situation of these civil and political rights in Ireland. This is a very detailed document. Typically, it will be seven or eight pages in length and will raise 26 to 28 issues. It will, in the first place, acknowledge achievements, but that is always a short section for any country. It will then map out what it sees as the areas of concern and deliver to Ireland quite detailed and carefully crafted recommendations on how best to address them.
Ireland last went through this procedure in 2008 and I can give a flavour of the type of findings the committee adopted. I will outline the recommendation on one issue, the then situation of the Irish Human Rights Commission. Already in 2008 the first shadows were falling and it was clear that things were remiss. The committee made a reference to the commission and engaged the role of the Oireachtas when it adopted a recommendation stating that the state party, Ireland, should strengthen the independence and capacity of the Irish Human Rights Commission to fulfil its mandate effectively in accordance with the Paris Principles and that it should do so by endowing the commission with adequate and sufficient resources and by linking it to the Oireachtas. It is an interesting reference to the role of the Oireachtas and its relationship to the commission. It is an example of the findings that the UN Human Rights Committee typically adopts.
There will be 26 to 28 areas of concern addressed by the committee and there is an element of prioritisation within that list. The committee has a practice of identifying three issues which it sees as having particular urgency and with regard to which the UN will refer back to the Government time and again to seek information on what is being done to address the concerns and to implement the recommendations. Again, by way of illustration and to give Senators a sense of the type of things that interest the UN Human Rights Committee, the areas of particular urgency it identified in 2008 included: the legislative framework to combat terrorism in Ireland - there was some concern about the looseness of definitions which might lead to abuse; the issue of prisons, which was the second of the three areas and referred to issues such as those which members heard about this morning from the Irish Penal Reform Trust; and, third, the lack of access for those who wished to have access to secular primary education in some parts of the country.
The committee will therefore adopt its conclusions with some prioritisation, and I cannot predict what the priority issues will be. Then there will be what is by far the most important moment. The formal process will end, but the work will begin. It is then that the recommendations must be brought home and implemented. As much as possible must be done during the five or so years before the UN Human Rights Committee will again review Ireland's record of compliance.
I will conclude my comments by speaking to the issue of the role Parliament can and might play in this process. The first matter to stress is that Parliament has a legitimate role at every stage of the process, namely, in the period before the Irish report is submitted, in consultations as to its content and in commentary subsequent to and across each of the stages I have mapped out. With regard to what specifically I might suggest as to how Parliament or the Seanad might engage around the review procedure, it can do what this committee is doing, which is to draw attention to and promote awareness of these procedures. UN monitoring systems may be effective and significant, but they are also remarkably little understood and little known. The Seanad potentially has a really important role in that regard.
Second, I suggest that the Seanad has a role in giving a voice to the human rights actors. Some actors do not need its help to have a voice. The powerful organisations will grab the attention of The Irish Timeswhenever they so choose, but there are other voices that are heard less. Hearings such as these can play a role in that regard. I was terribly moved to hear our colleagues from the Irish Traveller Movement speaking earlier. I suspect that the situation of Travellers has probably never been put more eloquently in the Oireachtas than it was today. That is a moment of great significance.
A third function I would suggest is the one this committee will undertake through its report, which is that of making its own substantive contribution to the proceedings of the UN, by not just facilitating the voices of others but adding the voice of Parliament, which is and must be a separate voice to that of the Government.
Finally, and perhaps most important, there is the role of Parliament in holding the Government to account. There is nothing shameful in holding a government, no matter how good it is, to account on its commitments. That is, above all else, the role of a body such as the Seanad. It has numerous possibilities to do so in its engagement with Ministers and all elements of the Government at every stage of the process, including and most importantly after July next when the recommendations are brought home and there is an expectation that they will be implemented.
I will conclude with that. I have distributed a pack with some materials. It contains a copy of the Dublin II Outcome Document, which is the important policy statement adopted in Dublin in 2011 and contains at least three references to the role of Parliament. Second, there is a copy of the Galway Platform on Human Rights in Irish Foreign Policy, which was a submission for the foreign policy review of the Department of Foreign Affairs and Trade and which again reinforces the initiative the Seanad is taking. The pack also contains a copy of the Concluding Observations adopted by the UN Human Rights Committee on Ireland in 2008. The committee will be struck by the extent to which they remain of contemporary interest. Finally, I included a small two page article by the UN High Commissioner for Human Rights, Navanethem Pillay, in which she discusses elegantly and clearly why this system matters, why treaty bodies make a difference and why proceedings such as the review of the Irish report can make an impact on the strength of human rights protection on the ground.
I thank Professor O'Flaherty. Will the committee take into consideration other international agreements such as the Good Friday Agreement and its outstanding issues? Some people argue, for example, that the amalgamation of the Irish Human Rights Commission and the Equality Authority dilutes the responsibilities under agreements such as the Good Friday Agreement. Does the committee look only through the lens of its UN remit? Will the Aarhus Convention form a backdrop to its deliberations?
I was not here for the debate on direct provision but I have campaigned passionately on it. Some people might call it an Irish solution to an Irish problem and, many people would argue, not a particularly satisfactory one. What type of reading can the committee take of such an issue, or the Traveller issue in Ireland, both of which are specific to a member state? Can it make pertinent findings and recommendations to the Government although they would bear little relation to issues in other member states?
I thank Professor O’Flaherty for being here. His advice and views as a former member of the committee are very helpful. Towards the end of his contribution he said that it is important to add the voice of the Parliament to the process. We are used to hearing what the Government and NGOs say but we will struggle with how to make our contribution distinctive as law-makers. Much of that will have to do with the fact that we have a different type of experience to bring to bear as law-makers. Does Professor O’Flaherty have any other pointers or thoughts on how our report could be of most help and benefit to the committee? We intend to support the Government in its process of trying to establish how best to implement its obligations.
I thank Professor O’Flaherty for his contribution. How much should we concentrate on Ireland or where do we start to connect with our membership of the European Union and our responsibility as Europeans? How do we express that or help in it? Is that the role of this committee and, if so, where does it begin and end?
Professor Michael O'Flaherty:
The UN Human Rights Committee will focus primarily on the International Covenant on Civil and Political Rights because that is its mandate. If it were to stray all over the place with other treaties, it would go beyond its remit. Using the covenant as a filter allows it to engage with any number of issues. I understand that the Aarhus Convention deals with the environment, which has an obvious impact on civil and political rights. To that extent, the committee would be extremely interested in environmental issues. Other examples were given and the same would apply to them.
The protection of civil and political rights provides a very broad canvas on which to review any number of issues that apply in Ireland, even where they formally exist as separate commitments under separate treaties. Senators will recall that one of the first speakers this morning spoke of how the socio-economic situation can have an impact on the enjoyment of civil and political rights. Through that prism, even issues concerning people’s socio-economic status are of interest to the committee.
Direct provision was considered in some detail this morning. It raises so many human rights issues that I suspect it will be a prominent element of the dialogue in Geneva with the human rights committee. It is a very disturbing practice, which is particularly bad in the context of developed states. There are not many European states that operate a system as dehumanising as direct provision. I expect that it will receive attention from the committee and attract critical commentary, not least because this is not the first time that the UN human rights committee has criticised the direct provision system in Ireland.
In response to the question as to what is the distinct parliamentary voice, I can only venture some thoughts. Parliament will have to decide what its voice should be but it seems to me that Parliament does not have to defend the institutions of Government with the same vigour as Government does. It is entirely natural and appropriate for Government to support its institutions and to present them in the best possible light. That is not Parliament’s business. Parliament has the space to be a more critical friend of the institutions of State.
Parliament is perhaps very well placed to examine the underlying and structural issues that impede human rights protection. That is why the status of the Irish Human Rights Commission seems very pertinent and meet to the business of Parliament, not least given the formal nexus the UN believes there should be between a human rights commission and a nation’s parliament. That was adopted in the Belgrade declaration last year.
A parliamentary intervention might want to consider the protection of political space because if political space is not protected, many of the key human rights covered in the covenant are not guaranteed. It is of interest to Parliament to examine the extent to which it is possible for any citizen to put him or herself forward for election and serve in Parliament in an effective fashion. That links very closely with general issues of the protection of the freedom of expression, which some of us consider as almost the primordial human right. Without expression, we have so little. The Oireachtas might wish to examine that, considering that UN bodies have criticised Ireland for an excessively enthusiastic constitutional provision on blasphemy.
The complexity of Ireland’s engagement with the EU and its European commitments will not be the primary focus of attention of the UN Human Rights Committee’s proceedings because Ireland is the state party under review, not Europe. The committee would go beyond its remit if it moved beyond the shores of Ireland. There will be no discussion of any country except Ireland in the six-hour review.
Where the issues of Ireland, Europe and human rights become terribly important and, much more broadly, the role Ireland can and must play as a champion of human rights within the European Union, are beyond the narrow remit of the review in July. I will shamelessly draw attention again to the Galway Platform on Human Rights in Irish Foreign Policy which speaks at length on how Ireland in its foreign policy must not only honour its own human rights commitments, but also those which have been taken on board by Europe, and notes that Ireland has great potential to play a role as a human rights champion within the European community.
As a nation and in comparison with other European countries, do we follow what others do rather than being proactive? In other words, are we sort of dragged, kicking and screaming, into line, or is our performance equal to that of other European nations? Are we lagging and where do we stand in that regard?
Professor Michael O'Flaherty:
It is necessary to distinguish between procedural compliance and implementation of findings. Ireland is fine with regard to procedural compliance, and it is as good as any of its fellow European states in delivering good and detailed reports and responding to the various requirements of the procedures. I pay credit in that regard to the Department of Foreign Affairs and Trade, which does a fine job in marshalling Ireland's engagement across human rights procedures.
With regard to formal substantive compliance, like any other country, Ireland is not uniquely bad or good. It has problems, and they are the subject of these hearings. We have heard about some very serious matters this morning. I tend not to rank countries, as I do not find it helpful to say a country is more good or less good. I spent eight years as a member of the UN Human Rights Committee and I reviewed the reports of approximately 85 countries. One would be struck by the extent to which problems emerge in any country on earth, so it is probably not helpful to get into a comparative discussion but rather to acknowledge that, as is the case for any other country in the world, Ireland needs the help and support of review procedures like this.
Professor Michael O'Flaherty:
The sanctions are essentially diplomatic measures. No country wants to be embarrassed on an international platform, and the UN is getting very good at embarrassing countries which are egregious in non-compliance. The issue will arise in forum after forum. This is the review of the UN Human Rights Committee but there is also a review of a committee against torture and on the rights of the child, and it will repeatedly return to the same problems in a manner that most governments find, at best, embarrassing. Egregious non-compliance would also be subject to review in a political body of the United Nations, the Human Rights Council, which also examines the Irish record on a periodic basis. For example, other parts of the UN that would be very interested in issues of serious non-compliance would be the High Commissioner for Human Rights, who would make these issues her talking points on visiting Dublin. There are also experts overseeing thematic issues of human rights in the UN - the so-called special rapporteurs - which deal with freedom of expression, adequate housing and extreme poverty. There is no formal policing power but there is a capacity to embarrass, which democratic states like ours take seriously.
I thank all the witnesses for their presentations today and if they wish to return after lunch to listen to the proceedings for the rest of the afternoon, they are more than welcome. I thank my colleagues because we started almost ten minutes late but it is only 1.04 p.m. now, so we are almost bang on schedule.
As a matter of course I reiterate the reminder on privilege to some of the new groups. I wish to draw the attention of witnesses to the issue of privilege. Witnesses are protected by absolute privilege in respect of their evidence to the committee. However, if they are directed by it to cease giving evidence on a particular matter and continue to do so, 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 asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against a person or an entity by name or in such a way as to make him, her or it identifiable.
The first group in this tranche of our hearings is Amnesty International. Following the presentation of Amnesty International we will hear from the Children's Rights Alliance, Educate Together and Rehab. All speakers will have ten minutes to outline their case. We have already received the written submissions of the groups so there is an opportunity to synopsise and to highlight certain aspects of the submissions. A question and answer session will follow. I invite the speaker for Amnesty International to proceed. She has ten minutes. The time can be shared or one person can use it all.
Ms Fiona Crowley:
I thank the committee for the kind invitation to come before it today to discuss Ireland's upcoming review by the UN Human Rights Committee. As the committee will know, in November, the UN Human Rights Committee published its list of issues, seeking further information from the Government on key areas in Ireland's periodic report. The Government submitted its response on 24 February 2014. In our submission to the committee, we highlighted some areas in the Government's reply which we believe the committee might usefully examine with a view to seeking further information and-or clarification from the Government in advance of the review. Ireland's past involvement in extraordinary renditions is one of those issues.
While there may be no direct evidence that victims of renditions physically transited Irish territory, it is beyond question that Shannon Airport has been used as a stop-over point by the US intelligence services in rendition circuits. We presented flight logs to the Government in 2005 showing that in at least five instances involving four known individuals, US aircraft used Ireland as a refuelling stop en routeto or returning from rendition missions.
A 2007 diplomatic cable from the US embassy in Dublin was released by WikiLeaks in 2010 describing a December 2007 meeting between the then US ambassador to Ireland and the then Minister for Foreign Affairs, which stated that the Minister "seemed quite convinced that at least three flights involving renditions had refuelled at Shannon Airport before or after conducting renditions elsewhere". We also know that the so-called assurances Ireland received from the US Government applied only to aircraft physically carrying rendition victims - no assurance has ever been given that the USA would not use Ireland as a staging post for rendition circuits. The Government in its reply to the UN Human Rights Committee's list of issues says that "no consent would be granted by the Irish authorities for the transit of an aircraft for the purposes of extraordinary rendition under any circumstances". But it is quite clear that the US aircraft that used Ireland did not seek such consent, so that is of very limited value.
It is also beyond question that, under international human rights law, Ireland has an obligation to investigate what happened, and to take measures to prevent the further use of its territory or airspace for such purposes. Victims of renditions have a right to truth and justice. This has been communicated to Ireland by the UN Human Rights Committee, the UN Committee against Torture, the Council of Europe, the European Parliament and the Irish Human Rights Commission.
The committee has asked us today to "expand on what precise measures the State should put in place to ensure that aircraft suspected of involvement in 'extraordinary rendition' do not pass through the State's territory, and to investigate the previously alleged offences regarding Article 7 ICCPR obligations". I must reply that the answer to the first part of the question lies in the second part. The precise measures the State should put in place to ensure that aircraft linked to rendition do not transit Ireland can only be determined through the State's effectively investigating how this happened in the first place.
The precise gaps in Irish law, policy and practice that enabled those aircraft to circumvent Irish law can only be revealed by an investigation with full powers and resources to compel data and information that might otherwise be considered sensitive or be hidden. Amnesty International Ireland corresponded with previous Governments over a number of years. We asked them to put in place adequate measures to ensure this would not be repeated, but to no avail. In 2009, we published a briefing, Breaking the Chain, in which we set out a range of measures that might be considered. Copies of this briefing have been circulated to the members of the committee. Even though the briefing was published five years ago, it remains quite relevant, sadly. In the briefing, we paid particular regard to loopholes or gaps that potentially exist in Ireland's civil aviation law.
The Air Navigation (Foreign Military Aircraft) Order 1952 prohibits foreign "military" aircraft from flying over or landing in the State without express permission from the Irish Government. It is not clear whether the section of the order that relates to aircraft engaging in "military service" covers aircraft owned, operated or commanded by foreign secret services, such as the CIA. If this order does not include secret services, such services may freely abuse the automatic overflight and landing clearances available to civilian aircraft. The USA's extraordinary renditions programme has used civilian overflight and landing procedures across the world by masquerading as civilian flights. In many countries, the law provides that aircraft controlled by foreign secret services are viewed as state aircraft and are not entitled to use civilian procedures. We still do not know what is covered in the law in Ireland.
It is made clear in Article 3 of the Chicago Convention on International Civil Aviation that the automatic overflight and landing permissions required under that convention are limited to "civilian aircraft". It might be assumed that if our law in this regard were clarified, it would facilitate the Irish aviation authorities to demand from civilian aircraft making unscheduled stopovers the sort of information that would trigger suspicion of illegal activity. This sort of information would include full details of past and future itineraries, or of the crew and passengers. When we drew up our briefing, we were conscious that there may be domestic and international constraints on the sorts of measures we proposed. That is why we submitted it to the then Ministers for Justice, Equality and Law Reform and Transport and asked for considered responses to our recommendations. We received no substantive response from either Minister. The Department of Transport referred us to the Department of Foreign Affairs, even though the regulation of civilian aircraft is within its remit. It is fair to say that the then Government had no appetite to engage with any of our suggestions.
As the committee is aware, the human rights committee in its list of issues has also sought information from Ireland on the "specific and concrete steps taken, beyond official assurances, to ensure that aircrafts used for the purpose of extraordinary rendition, whether they carry prisoners on board or not, do not pass through the territory of the State party". It is disappointing that the Government's response merely refers to the possibility that "anyone with evidence which suggests that any person has transited an Irish airport as part of an extraordinary rendition operation [can] make this evidence available to An Garda Síochána, so that an investigation can take place". At least this response reveals that the State evidently has nothing further to report on this.
I would like to come back to the need for an independent investigation. The human rights committee's list of issues also asks for details of any "measures .... taken to investigate past allegations". The Government's reply does not cite any form of investigation, other than Garda investigations of complaints of suspicious aircraft on a case-by-case basis. We can assume that no substantive or meaningful Government investigation has occurred. The precise form of the investigation we are seeking must be independent, comprehensive, effective and timely. The mechanism must have the resources and powers to compel the production of information. The question of whether the mechanism to be used should involve the Irish Human Rights and Equality Commission or an Oireachtas committee with the necessary guarantees of independence from the Government's political parties, or whether an entirely new mechanism should be used, is a matter for discussion.
One way or the other, this issue will not go away until and unless an investigation is conducted. The European Parliament's resolution of 11 September 2012 shows that this remains a live issue across Europe. We must continue to remind the Government that the US renditions involved the international transfer of individuals in a manner that breached international law and resulted in grave human rights violations, including enforced disappearances and torture. In the programme for Government, the current Government promised to "enforce the prohibition on the use of Irish airspace, airports and related facilities for purposes not in line with the dictates of international law". No concrete action has emerged from this commitment to date. Amnesty International asks this committee to consider the recommendations we made in 2009 and raise them with the Government. Such an initiative might yield further information that could be of use to the human rights committee.
Ms Edel Quinn:
I thank the Chairman and the members of the committee for inviting us to address today's meeting. We commend Senators on their engagement with the International Covenant on Civil and Political Rights and thank them for consulting us in this way. I am here to represent the Children's Rights Alliance, which unites almost 100 organisations that are working to improve the lives of children by ensuring their rights are protected in Irish law, policy and practice. I intend to share my time with Mr. Paul Rowe, who is the chief executive of Educate Together, which is one of the alliance's member organisations. In our submission to this committee, we raised a number of issues relating to children that are of relevance to various provisions of the International Covenant on Civil and Political Rights, including the issue of children in detention, which was discussed this morning.
We have been asked to focus our presentation on the issues of school admissions, patronage and pluralism. The work of the alliance would usually lead me to discuss these issues in the context of the UN Convention on the Rights of the Child, but today I will explore them in the context of the International Covenant on Civil and Political Rights. I will briefly explain what the human rights framework on this issue under the covenant says about religion and education. The covenant obliges states to protect against discrimination on a number of grounds, including a person's beliefs, under Articles 2 and 26. It goes on to specifically protect children against discrimination under Article 24. It provides under Article 18 that everyone has an absolute "right to freedom of thought, conscience and religion". The UN Human Rights Committee has interpreted this right as also including the right not to have a religion. Paragraph 4 of Article 18 provides that states must "have respect for the liberty of parents and .... guardians to ensure the religious and moral education of their children in conformity with their own convictions".
The UN committee also provides guidance on how religious instruction can be delivered. It is noted that public education that includes religious instruction must make provision for non-discriminatory exemptions or alternatives that would accommodate the wishes of parents and guardians. What has the committee said about Ireland, specifically, in this area? As Professor O'Flaherty noted this morning, the committee suggested in its last review - in 2008 - that this should be a priority issue for Ireland and for the committee. The committee suggested that because the vast majority of Ireland's primary schools are privately run and denominational, issues arise under Articles 2, 18, 24 and 26 for families that want their children to pursue a secular education. The committee recommended that Ireland should increase its efforts to ensure non-denominational primary education is widely available in all parts of the country. It is worth mentioning that the UN Committee on the Rights of the Child made similar recommendations in 2006, as did the UN Committee against Racial Discrimination in 2011. The State accepted recommendations on this issue under the UN universal periodic review mechanism in 2012. It is also on the list of issues for the committee's upcoming review session.
I wish to respond to the committee's question about the Children’s Rights Alliance's remaining concerns in this area. Parents and families of the majority religion in Ireland are well served by the school system. The available denominational schools enable them to vindicate their right to have their children educated in conformity with their own convictions. While this is to be commended, issues arise for children of minority or no faiths, whose families want them to be educated in a multidenominational or non-denominational environments. This is a particular problem for families in many parts of the country where parents have little or no choice regarding where to send their children. When this issue was last before the UN Human Rights Committee in 2008, well over 90% of primary schools were privately-run religious institutions in receipt of State funding. Today, six years later, the situation has changed very little. This does not reflect the dramatic demographic changes in the composition of Irish society, including in the area of religion, as identified in the censuses of 2006 and 2011. This further emphasises the urgent need for the State to accommodate the rights of these families to education in conformity with their own convictions.
The Children's Rights Alliance's annual report card series tracks the progress being made with the Government’s commitments to children. I hope all members have received a copy of our most recent report card, which relates to 2014. In that document, we praised the positive developments in this area, including the engagement of the Minister for Education and Skills and his Department, the work of the Forum on Patronage and Pluralism in the Primary Sector and the completion of parental surveys to establish demand for change in existing patronage. However, implementation of the divestment process has been slow. It will be some time before a significant real-life impact will be felt by children and their families on the ground. While we fully acknowledge the complexity of divestment for the institutions involved, we feel that the mechanisms being used to roll out divestment should be re-examined to identify the cause of the delay and to re-ignite the momentum to make progress with the process.
It is only when the impact of divestment yields tangible results for families and children of minority religions or none that the rights of families and children can be said to be met and that the State can then be said to have discharged its obligations under the International Covenant on Civil and Political Rights, ICCPR.
Mr. Paul Rowe:
I thank Senators for the opportunity to highlight the very real issues that continue to face families who do not have access to multidenominational schools. Ever since the 1970s, Educate Together has been at the cutting edge of the tension between the rights of children and families on the one hand and the predominance of religious control of the education system on the other. During this time, there has been a profound generational change of attitudes in the Irish population. This change in values and beliefs is not reflected in school provision, however. Accordingly, increasing numbers of parents are now compelled to send their children to faith-based schools against their conscience and lawful preference. Over many years now, successive Governments have ignored this infringement of rights.
There is ample evidence of the negative effects of the current imbalance. The current protection that children can opt-out of religious instruction in denominational schools has been shown to be inadequate and utterly unfair. Research has illustrated the issues that result from the practice. Schools and teachers with the best of intentions cannot overcome the difficulties posed by the obligation to instruct children in one faith, especially since the rules require that a religious ethos should permeate the school day. We need to listen closely to the voices of children from minority faith backgrounds. They feel excluded, left out and confused in this context, as evidenced in research from the Economic and Social Research Institute and the Forum on Patronage and Pluralism.
It is fundamental to our world that children do not choose their parents or their family background. It is, therefore, impermissible that they should be discriminated against on this ground in State-funded education. This is particularly important to a modern democracy that has recently passed a referendum on children's rights and has as one of its founding concepts the cherishing of the children of the nation equally.
We also need to listen to parents. Many Educate Together schools receive ten times as many applications than they have places to offer. A large part of our work is advocating on behalf of such families. They want their children to attend a school where their belief background will be equally respected, where their children can flourish in an atmosphere of equality with those of other backgrounds, where they can avail of a comprehensive ethical education curriculum and where, if they need faith formation, it can happily take place outside the compulsory school day.
Educate Together now comprises a network of 68 schools serving approximately 17,000 pupils. This network is growing at an average rate of just over four schools per year. This represents just 2% of the system, however. This is far from the size of network required to address the needs of our society. In 2012 and 2013, 44 areas were surveyed by the Department of Education and Skills to assess the need for change of school patronage. In 28 of these areas, sufficient demand was identified for the Department to judge that change was not only necessary but also viable. In 25 of the areas surveyed, the result favoured a transfer from Catholic patronage to Educate Together.
As an example, Killarney is one of the 25 areas identified for transfer. The report on the parental surveys shows that there are 12 primary schools under Catholic patronage in Killarney with no alternative provision whatsoever for those who do not wish to send their children to a Catholic school. Nearly half of parents who responded to the survey said they would like to see provision reconfigured but, so far, no way forward has been identified. In towns like Athlone, Cavan and Dundalk, parents have been campaigning for an Educate Together school for years. These are all large, diverse towns with no Educate Together option available. These towns have not yet even been surveyed, so we have a long way to go.
We have to report that, although we acknowledge the objectives set in the current programme for Government and the efforts made by the current Minister for Education and Skills, departmental officials and some church leaders, progress has been very slow - painfully slow for families living in areas where there continues to be no choice. These families cannot wait. Their parenting is like a train that has already left the station. They need resolution of this issue now before their children start school. Strong political leadership is required to move this process forward and to ensure the rights of parents who have clearly expressed their preference can be vindicated. We would call on everyone here to support parents, church leaders, the Department and schools to make lasting change happen in communities throughout the country.
The current programme needs adequate funding if it is to succeed. Educate Together has been working to establish its national network of schools for 35 years. Despite rising levels of popular demand, the funding we receive from the State to open a new school remains inadequate. We have to raise 90% of the funding we need to establish a new school in a community from private sources. While we have made considerable progress through leveraging voluntary and community initiatives, as well as through fund-raising, a realistic funding framework now needs to be put in place to advance this vital work.
We ask Senators to press the Government to fulfil the recommendations of the ICCPR and several other UN bodies such as the UN Committee on the Elimination of Racial Discrimination, the United Nations Convention on the Rights of the Child, the Universal Periodic Review and the Council of Europe Framework Convention for the Protection of National Minorities of the Council of Europe. These bodies have consistently advised the State to increase the availability of schools operating along the same guarantees of equality as are embodied in the Educate Together model. There is an opportunity to make real progress now in the context of the current divestment process. On behalf of families throughout the country, we ask Senators to show leadership and to lend their support to this process.
Ms Sonya Felton:
On behalf of the Rehab Group, I thank the committee for inviting us to today’s considerations of the ICCPR. We intend to focus on the challenges faced with the implementation of the Assisted Decision-Making (Capacity) Bill 2013 and the impact these will have on the State's obligations under Articles 14 and 16 of the ICCPR. Our submission was developed in consultation with members of the National RehabCare Advocacy Council, NRAC, a representative body of people using the services of RehabCare, the health and social care division of the Rehab Group. I am accompanied today by Mr. Aidan Hogan, chairperson of NRAC, and Mr. Francis Ducie, vice-chairperson.
Mr. Aidan Hogan:
I thank the committee for inviting us to speak here today. I am the chairperson of the NRAC national committee. NRAC is an organisation that gives a voice to people in RehabCare.
The new Assisted Decision-Making (Capacity) Bill 2013 is very important because it will make it easier for people with disabilities to make choices and have more control in their lives. NRAC’s members sometimes need support with many things like their money, their social welfare, voting and paying bills. Up to now it has been difficult for some people to get this help. It can be hard for people to find out about their rights because they are not told about them in a way they can easily understand. The Assisted Decision-Making (Capacity) Bill is a very big document. We think it is really important that when the Bill becomes law, people are told about it and given information which is accessible for them like Easy Read or Braille.
Their families and services such as RehabCare will be able to help them with this. The most important thing is that anyone who needs help making decisions will be able to find out what help there is. I thank the committee.
Mr. Francis Ducie:
I am the vice chairperson of the National RehabCare Advocacy Council, NRAC. No one makes decisions alone and everyone needs help sometimes. A few years ago, my mother passed away and I lived in the family home. I had always wanted to live independently but I needed help to find somewhere that suited my needs. We decided to sell the house and it was a very challenging time for me. I had to buy a new apartment, get new furniture and move in. I got a lot of assistance from my brother and sister. I also had an advocate who helped me to make sure that people knew what my wishes were. Now, I am delighted with my new life. Before I was just existing and now I am much more positive. My confidence has grown hugely.
I am very lucky to have the support of my family. When it is implementing the Assisted Decision-Making (Capacity) Bill, the Department of Justice and Equality needs to make sure that the new supports reach the people who need them most, particularly people who do not have family support. For a long time, decisions have been made for people with disabilities without helping them to understand. Many people with disabilities and their families will need to learn that they have a right to have the supports provided for in the legislation which will help them to make decisions about their lives. Advocacy is essential as it enables people to work out what they really want after they have weighed up all the options. As they learn more about making decisions, people with disabilities might also find out they are much more able than they think.
Ms Sonya Felton:
The Assisted Decision-Making (Capacity) Bill is an historic step forward for the rights of people with disabilities and people with mental health difficulties. Fundamentally, the legislation will remove the all or nothing situation which exists, whereby a person either has full capacity or is deemed not to have capacity and becomes a ward of court. Being a ward of court means one is no longer a person before the law, one loses one's self-determination and decisions about one's life are made by a court rather than with the support of family and those one interacts with every day. People, their families and service providers have often been loath to raise their heads above the capacity parapet, fearing the ward of court process. Instead they have muddled along, attempting to find a way around decisions, making decisions in a legal lacuna or simply not making decisions.
The Bill will therefore substantially improve the position of people with disabilities in Irish society and demonstrate Ireland's commitment to Article 16 by creating a system where all individuals are recognised equally as a person before the law. It is imperative that this is implemented fully and effectively. This will require active education and training of professionals, public information sessions, informative and easily accessible publications and guides and specific supports of individuals. There are some good models in use in other jurisdictions.
Organisations such as RehabCare and others have been campaigning on this issue for many years, and we will be happy to support people in our services to understand the new systems. There is considerable expertise in this sector and this should be utilised by the Department in overcoming some of the barriers to implementation.
Part of the difficulty in ensuring public understanding in the complex areas of decision-making is confusion about what is not included in the Bill. Section 106 specifically excludes important areas of people's lives including marriage, sexual relations, voting in an election or a referendum, participation on a jury, divorce, dissolution of a civil partnership, placing a child for adoption and guardianship issues. This will prevent people accessing the supports they need to make decisions in these areas. While law reform is planned it is unclear when this will happen, and it is inequitable that people with disabilities will have to wait even longer for clarification of their rights in these areas.
Two of these areas are relevant to Ireland's performance under Article 14 of the International Covenant on Civil and Political Rights, ICCPR, which requires that all persons shall be equal before the courts and tribunals. There are three distinct areas where reform could significantly improve Ireland's performance in this area. The Disability Act 2005 requires public service providers to deliver services and information which are accessible to people with disabilities. The Irish legal system does not always discharge this responsibility effectively for those whose capacity may be in question. In practice there have been instances where individuals with reduced capacity have not been given effective supports to give evidence at a trial and it has been found they do not have capacity to do so. In one well-reported case, a young woman with Down's syndrome was deemed incompetent to testify in a case of sexual assault and the case was dismissed. Effectively, the person against whom the accusation of assault was made did not undergo trial because the case involved the assault of a person with an intellectual disability. This is a very unfortunate situation which queries our society's ability to deter crimes against people with disabilities. Greater awareness and facilitation of the needs of people who have difficulty understanding is required within the legal system.
Another area where action is required is section 5 of the Criminal Law (Sexual Offences) Act 1993 which effectively criminalises two people who are defined as "mentally impaired" and who engage in sexual intercourse. As a society we absolutely need to protect people with disabilities and mental health difficulties from sexual exploitation but for a person to be guilty of a crime because of an action of theirs, which another person without a disability can take freely, and which for other people is part of their fundamental rights and freedoms but which for a person with a disability is a crime solely by virtue of having a disability, is unacceptable. The Law Reform Commission has published proposals for this area of law and these should be fast-tracked to complement the Assisted Decision-making (Capacity) Bill 2013.
The law on sexual relationships for people with disabilities has far-reaching impacts on attitudes and on the supports people receive regarding relationships, sexual and reproductive health and sex education. For example, we are aware of two women with intellectual disabilities who last year went to take part in the State's cancer screening programme, CervicalCheck, but were turned away on a presumption they were not sexually active without ever being asked whether this was the case. Ireland should not delay in its resolution of this issue as it is clearly at odds with our responsibilities under Article 14 and Article 23, which provides for the rights of the family, of the ICCPR.
Another area where action is required is with regard to jury participation. There is an opportunity to ensure greater representation of people with disabilities in the legal system through participation in juries. The Law Reform Commission has proposed reform in this area stating "a person with a disability should be eligible for jury service unless, taking account of permissible and practical assisted decision-making supports and accommodation that are consistent with the right to a trial in due course of law, the disability would mean that he or she could not perform the duties of a juror". The relevant legislative steps should now be taken to implement this recommendation.
I will briefly sum up our written submission to the committee. There are steps that the Government should take as soon as possible to ensure we are compliant with the ICCPR, but most importantly because they will improve the lives of and opportunities available to people. These include finalisation of the Assisted Decision-Making (Capacity) Bill 2013; reform of the law on sexual relations for people with disabilities; clarification of the legal position of people with intellectual disabilities voting in an election or a referendum; and enabling people with disabilities to participate in juries and take a greater part in public affairs. Many of these issues can be resolved by new legislation followed by cultural and attitudinal change which will significantly improve the opportunities that people with disabilities can experience in our communities.
A number of people are offering to ask questions, and to avoid overlapping and going back and forth I will call those who have questions for the first contributor, Ms Fiona Crowley, and Amnesty International Ireland.
I am not a committee member but I am delighted to attend the hearing this afternoon. Ms Crowley made a powerful argument on the need for an independent investigation into the rendition case. Over the weekend she may have heard the European Ombudsman, Emily O'Reilly, referring to this issue of rendition at a conference in the Burren in Ballyvaughan. Her speech at the Burren law school was the subject of a report in The Irish Timesyesterday by Ruadhán Mac Cormaic. Emily O'Reilly stated she felt it was an instance which showed the need for an office of guardian of the public interest to be established to prevent this type of issue from arising in the future. Her point was there is nobody who could pre-emptively challenge the Government of the day on the practice of extraordinary rendition or another practice where there is a view the Government is acting illegally. Does Amnesty International have a view on this question? It is a slightly different question and is not with regard to investigating what has gone on but on a mechanism which could be established to stop it happening in the future.
Ms Fiona Crowley:
I could probably answer the two in one because it is something of a chicken and egg situation. Without the independent investigation or other forms of investigation, it is hard to reveal what is the most urgent action the Government could take to ensure not only truth and justice for those known victims of renditions in which Ireland was a staging post, but also non-repetition.
On the other hand, we came up with a fairly solid set of possible recommendations on which we got no engagement at all with the Departments or with the Government more generally. For example, the Cabinet committee established by the previous Government was meant to be a way for the Cabinet to engage collectively with the issues. It committed to reviewing the adequacy of the civil and Garda powers in respect of checking aircraft going through Ireland and it met only three times and reported nothing. Therefore, we are always a bit suspicious of anything that does not have the hallmarks of independence, adequate resources, particularly powers of compellability, guarantees of a comprehensive terms of reference and, most importantly, transparency.
There are many actions that the Government could take short of an independent investigation. We recognise that resources might always be an issue. If the Department of Transport, Tourism and Sport were to engage meaningfully in an assessment of the degree to which civil aviation law needs to be overhauled and the degree to which the powers of the Irish Aviation Authority and others can, and perhaps should, better request this sort of information from transiting aircraft, then that sort of transparency would work.
In terms of another public interest mechanism, however, we look to the Joint Oireachtas Committee Public Service Oversight and Petitions perhaps or other forms of mechanisms that might have this public interest mandate because it is a matter of public interest. If civilian aircraft were allowed to transit Irish territory en route to renditions, goodness knows what else they could have been up to. It is a matter of ongoing concern, and in the public interest.
In summary, we continue to call for an independent, effective and comprehensive investigation, but in the meantime we would very much welcome anything short of that which could compel this sort of information and interrogate the degree to which the Government has the resources already and needs further resources and laws in order to be able to ensure this sort of thing does not happen again.
I thank Ms Crowley. We will move on to the second presentation, that is, the Children's Rights Alliance-Educate Together. A couple of members, Senators Paul Coghlan and O'Donnell, wish to raise questions. Senator O'Donnell was first.
I want to ask Mr. Rowe a question. He spoke as though Catholic education and schooling was the road to the damned. I felt that was the inference of what he had to say. Is he saying that children of no religion or other religions who happen to be in Catholic schools cannot flourish within those schools? Knowledge - the arts, history, geography, music - supercedes what Mr. Rowe suggests is something that would close down children of different religions within the Catholic ethos. I would like him to answer that.
Mr. Rowe mentioned Killarney, where, as it happens, I am from. I am wondering whether what he says is based on a survey rather than the votes or voices of parents. I served on a board of management there some years ago. I am not aware of what Mr. Rowe seems to portray as a need and I am wondering on what it is based.
I am sure Mr. Rowe himself will respond but I would merely say this. He and Ms Quinn have put forward a strong argument about the lack of choice for parents currently. That is the issue. There are so many parents in Ireland who would like an alternative to a Catholic education for their children and for whom, as they stated, this is not available, with only 2% of primary schools currently under Educate Together. I am somebody who has a strong interest in this and has set up a local school which is being inundated with requests. As Mr. Rowe states, there is enormous demand for places in the small number of Educate Together schools nationally.
As for my question, they acknowledged the positive engagement by the Minister for Education and Skills with this issue and the process of dialogue and consultation that has gone on with the surveys of the 41 areas, the national forum, etc. What extra specifically should be done to speed up the process of divestment, the need for which, in fairness, the Catholic Church, particularly Archbishop Diarmuid Martin, has been cognisant of? They have been to the fore of acknowledging the need for greater parental choice in education. It is in everyone's interest that the process is speeded up and that we see more schools divesting and more parental choice. How does one actually do this? Given that there is a positive will within the Department for this, what are the practical steps we could recommend?
My first question follows on from Senator Bacik's on the patronage issue and speeding up divestment. In terms of the Government's responses to the issue around patronage and pluralism, it really provides us with answers in the legislation in terms of admissions and refers to a White Paper on patronage. I concur with Senator Bacik's point there.
In terms of the concerns around the admissions, patronage and pluralism, one of the questions that the UN asks of the Government has to do with whether we need an independent complaint handling mechanism to resolve disputes between parents and schools. Effectively, the State disregards the need for that. It appears as if the State feels there is not a need for that as part of this process of ensuring implementation of our obligations in relation to pluralism. I ask them to comment on that too.
Mr. Paul Rowe:
In answer to the first question, Educate Together has never had an agenda against Catholic education or the right of parents to access Catholic education. The problem is a situation where parents have no choice but to send their children to Catholic schools and this, universally, across the developed world, is recognised as a human rights violation. Nothing in my comments should be interpreted in any way as criticism of best practice in Catholic education or criticism of Catholic education in its own right whatsoever.
In answer to the second question, from Senator Paul Coghlan, the statistics that I quoted are from the Department and Education and Skills survey of parental preferences in the Killarney area and they are representative of that. I can speak from personal experience that Educate Together has had groups of parents in the Killarney and Kerry area seeking Educate Together places for their children for many years and they represent consistently the fact that there is no choice and no opportunity for an alternative. I stress that diversity, space for innovation, space for a change and space for independent initiative in the education system is a valuable attribute of any well developed education system. A situation where the State continues to ignore fundamental violations of human, religious and intellectual rights in significant areas of the country is something which we as a society must address, and addressing this human rights issue is to the benefit of all, not least to the future vitality and health of denominational education in the country.
To Senator Bacik's question as to what specifically needs to be done, we need to share with the Senators what really is the fundamental issue. The fundamental issue in Irish primary education is the ownership of the real estate and the fact that 98% of the primary schools are privately owned. The legal lien over property which the Department of Education and Skills should have is extremely weak despite the fact that in most cases the State has provided 85% of the building cost of infrastructure and over many years it has provided well over 90% of the running costs of all schools.
There is an issue here that must be addressed relating to the legal lien of a property and what rights the State has over its very high investment in that property over many years on behalf of the public.
On the fourth question, from Senator Zappone, Educate Together does not have a view that having an independent complaints mechanism in this area necessarily would move things forward. Our view is that this is a Government programme and we recognise that in its programme for Government, the current Government has finally recognised this issue after many years of it being raised with the United Nations by organisations such as Educate Together. We first brought this issue to the United Nations Committee on the Elimination of Racial Discrimination ten years ago. However, the current Administration has recognised this issue, it is in its programme for Government and we would like to credit the work of the Forum on Patronage and Pluralism in the Primary Sector. The fundamental problem with it is this is a Government programme with no resources. For example, the reform programme for the water supply industry has a significant investment of State funds in order to implement it. Unfortunately, the reassignment of patronage programme does not have a resource allocation towards it and the work done by independent bodies such as Educate Together or others is not resourced. We must do this entirely on the basis of fund-raising or voluntary and community-raised resources and that limits its effectiveness and its impact.
Ms Edel Quinn:
Briefly, in response to Senator Bacik's question, one practical thing that could be done is to look at conformity or uniformity in respect of opt-outs. At present, some schools come up with highly practical solutions and best practices to accommodate children whose families do not wish them to attend religious instruction classes. This is something that can be done and those classes could be held at different times for different class groups to allow those students to attend other classes. Consequently, there are some immediate steps that could be taken in the interim while the delay is ongoing.
Moreover, does he have to hand the date of the example he mentioned in Killarney because the issue has never been raised with me on the ground? However, I will check with the various schools in Killarney when I leave this meeting.
Mr. Paul Rowe:
I must note I am not an official of the Department of Education and Skills and the accurate communication of such data is the responsibility of the Minister and his officials. However, I can tell the Senator that the response to the surveys was low but the sheer numbers expressed of those seeking change were highly significant. In other words, those who expressed a desire for change and those who expressed the desire to avail of change were significant in 27 of the 28 areas of the review to give viability for at least one single stream of a primary school. This would mean a steady flow of at least 28 children coming in each year over a significant period. However, I must say to the Senators that while these are the figures expressed in these formal surveys, Educate Together's own figures indicate very much larger numbers than those expressed in the survey. The survey was an online survey and was the first time the State had ever elicited the views of parents of a school type in the entire history of the State, which itself indicates some significance to the importance the State has given this issue over a number of years. While there were learnings to be gathered by this survey process, I insist that in respect of what is Educate Together's knowledge of this particular issue, the results of the survey were a significant understatement of the extent of demand. To give a practical response to that, Educate Together is in the position whereby if it had the resources and access to accommodation to so do, it could open 50 new primary schools this year, whereas we will actually only open six primary schools this year.
I congratulate Mr. Aidan Hogan and Mr. Francis Ducie because they said one of the most important things to be said here today, which was about real communication and that it is absolutely imperative that people have a right to proper, understandable communication when so many laws and so much of our discourse is obfuscation and lack of clarity. They raised this point as something Senators themselves will take away. However, I congratulate them on it. They were entirely right and it was wonderful to hear what they had to say so simply, so purely and so correctly, as well as giving Members so much information. I thank them very much.
I certainly concur with everything Senator O'Donnell has said. I have been reading the documentation in respect of the Assisted Decision-Making (Capacity) Bill and agree it is unacceptable that people with hearing impairments who have considerable difficulty in a court situation do not have access to sufficient Irish Sign Language interpreters. As for jury service, which also is a particular issue, is this not a step too far? Is it not somewhat unrealistic to expect a person with profound hearing difficulties and an inability to read to be able to participate on a jury? I am aware this is a sensitive issue but I can envisage great difficulty in arriving at a satisfactory resolution to it.
Ms Sonya Felton:
On that issue, at present we have a blanket position where those who are deaf cannot serve on a jury. There are people who are deaf, can use Irish Sign Language and have no difficulty with literacy or anything like that. That blanket decision regarding people's ability to serve on a jury means it is not representing people within the panel of jurors. Obviously, there are limitations.
Ms Sonya Felton:
I believe consideration is being given to having an interpreter for people in the courtroom in order that they can understand what is going on. Obviously, there is a cost attached to this but it is one that would be valuable in providing greater equality in the legal system. Moreover, it is not just people who are deaf as often it would be stated automatically that a person with other kinds of disabilities did not need to come or they could telephone to say they do not wish to come. The culture has very much been that disability has excluded one or allowed one to get off jury duty.
I am not sure that is the culture we would want. Obviously, if people are unwell, sick or for whom it would be very difficult, we need a way for them to say "I cannot do this", but somebody should not be disregarded for jury duty simply on the basis of his or her disability.
I thank Ms Felton and all the delegates for attending and for making their valuable contributions. If they wish, they can stay on and listen to the last tranche of our public hearings which will start in a few minutes. The delegates from the other groups will take their seats shortly and the delegates present are welcome to stay on and move back a few seats. I thank them for their contributions.
We will resume with our final tranche of public hearings. As the delegates representing some of the groups were not present to hear the notice on privilege I read out earlier, it is important that I reiterate it. Before we begin I want to draw the attention of witnesses to the situation in regard to privilege. Witnesses are protected by absolute privilege in respect of their evidence to the committee. However, if they are directed by it to cease giving evidence on a particular matter and continue to do so, 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 or make charges against a person or an entity by name or in such a way as to make him, her or it identifiable.
The first group in this tranche is the Immigrant Council of Ireland, represented by Hilkka Becker, to be followed by the Irish Council for Civil Liberties and the Transgender Equality Network Ireland. Each speaker will have ten minutes to make a presentation. As we have already got their written submissions, I ask them to crystallise or synopsise the critical issues they wish to put before the Senators. On completion of their submissions, a question and answer session will follow. I invite Ms Becker to proceed.
Ms Hilkka Becker:
I thank the Seanad Public Consultation Committee for the invitation to present here today on the key priorities as we see them from the perspective of the Immigrant Council of Ireland in regard to Ireland's compliance with the International Covenant on Civil and Political Rights. We have been asked to focus on two issues in particular in light of Article 8 of the ICCPR, the issue of lack of access for asylum seeking victims of human trafficking to leave to remain status and coupled with that the situation of victims of trafficking in Ireland with regard to accessing free legal assistance.
As is set out in our written submission, the rights afforded to asylum seeking victims of trafficking versus other suspected victims of trafficking are not the same in that asylum seeking victims of trafficking have less access to safe and appropriate accommodation, education, training, employment and the possibility of acquiring longer-term status in the State. Victims of trafficking who are in the asylum process, who constitute 56% of identified victims according to the GRETA report - Council of Europe expert group's report, are precluded from the benefits of a formal identification by the competent authorities and from receiving any acknowledgement to the effect that they are suspected victims of trafficking under the administrative arrangements for the protection of victims of human trafficking that are Irish national arrangements, even when they co-operate fully with the competent authorities and the investigation and prosecution of the crimes committed against them.
The Immigrant Council of Ireland is most concerned that while under section 21 of the administrative arrangements, which relate to change of status and leave to remain for victims of trafficking, a person who has assisted the Garda and has held a temporary residence permit for three years or longer can apply for a change of status and be granted permission to remain in the State on humanitarian grounds, but asylum seeking victims will not be able to accumulate these three years as they will not receive a temporary residence permit until after their asylum application has been decided negatively. In its replies to the list of issues raised by the UN Human Rights Committee, the Government has stated in this regard that "the Administrative Immigration Arrangements for the Protection of Victims of Human Trafficking apply only to those who would not otherwise have permission to be in the State" and that "It is important to emphasise that an alleged victim of trafficking who applies for asylum under the Refugee Act ... has the equivalent residence rights and access to the same support services as a person in a Recovery and Reflection Period under the Administrative Immigration Arrangements".
This gives rise to two issues. First, the response ignores that, subsequent to the 60-day period for recovery and reflection allowed to a victim of trafficking, that is a victim who is not in the asylum process, the individual concerned will then be granted a temporary residence permit under the administrative arrangement and, with that, a stamp four residence permit which enables him or her to access private rented accommodation, social supports, training and employment. In contrast, victims of human trafficking who have exercised their rights to seek international protection are left in direct provision accommodation, which has been widely criticised, including by UN bodies such as the Committee on the Elimination of Racial Discrimination, CERD. In its concluding observations in March 2011, CERD expressed concern about the negative impact that the policy of direct provision could have on the welfare of asylum seekers who can suffer health and psychological problems that in some cases lead to serious mental illness. Particularly in regard to victims of sexual violence, direct provision should not be considered appropriate. This point has been echoed by the Council of Europe committee. Second, in the considered view of the Immigrant Council of Ireland, the Government's response that the administrative immigration arrangements for victims of human trafficking apply only to those who would not otherwise have permission to be in this State is the result of a misinterpretation of the requirement, at least, under the Council of Europe convention that resident permits are to be issued to victims who are either illegally present or are legally resident with a short-term residence permit. We argue that while victims of trafficking who are in the asylum process are not at immediate risk of deportation, they do not have the type of residence permit that would satisfy the requirements of the convention. We submit that as the permission to remain granted to asylum seekers under the Refugee Act will cease when they are transferred to another EU member state, when their applications are withdrawn or, most likely, when the Minister refuses to give them a declaration that they are refugees, this permission cannot be interpreted as anything other than short-term in nature. Our view is supported by the fact that for the purpose of social welfare and pensions legislation, asylum seekers and persons who have applied for subsidiary protections are persons who shall not be regarded as being habitually resident in the State. In the absence of a temporary residence permit being issued to a victim of trafficking, he or she will not be considered habitually resident in this State - I refer to an asylum seeking victim - and, therefore, will be excluded from social welfare services, including disability allowance, one-parent family payments, carer's allowance and child benefit. The Government stated in its response that a suspected victim of trafficking who has had his or her application for asylum rejected will be entitled to temporary residence permission under the administrative immigration arrangements at that stage. In such cases, suspected victims are notified of the refusal of their asylum claims and their eligibility for temporary residence permission. We are particularly concerned from practical experience that victims of trafficking who had been co-operating with the competent authorities throughout the processing of their asylum claims have received notification of intention to deport pursuant to section 3 of the Immigration Act 1999 following refusal of their asylum applications, rather than being issued with temporary residence permits under the administrative immigration arrangements. We submit this is not something that automatically happens. We submit that the treatment of asylum seeking victims, as set out above, is in breach of Article 14 of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Organised Crime, which states that nothing in the protocol shall affect the rights, obligations and responsibilities of states and individuals under international law, including in particular the 1951 convention and the 1967 protocol relating to the status of refugees, where applicable. Similarly, Article 14(5) of the Council of Europe Convention on Action against Trafficking in Human Beings requires that the granting of a temporary residence permit to a victim of human trafficking shall be without prejudice to the right to seek and enjoy asylum. In situations where asylum victims are clearly at a disadvantage compared with those who are not pursuing claims for refugee status, even where they are clearly in need of international protection, they are discouraged from pursuing such a claim. On that basis the current system in Ireland is in breach of the right to seek and enjoy asylum from persecution, as enshrined in Article 14 of the Universal Declaration of Human Rights. The second or ancillary issue that the Seanad committee raised with the Immigrant Council of Ireland is legal representation and access to justice for victims of human trafficking. We are of the view that immediate access to legal advice and intervention is critical to ensuring that all victims of trafficking are fully informed of their rights and obligations at the earliest possible opportunity and are able to make an informed choice regarding their immigration status, where relevant. Currently, and contrary to the information provided in the Government report, the Legal Aid Board's refugee legal service only provides legal services on certain matters to persons identified by the Garda National Immigration Bureau as potential victims of human trafficking under the Criminal Law (Human Trafficking) Act 2008. In other words, potential victims of trafficking are required to present to An Garda Síochána and provide at least basic details of their identity and situation before they are eligible for State funded legal assistance and information. This is not in line with international requirements. Furthermore, the services offered to potential victims of human trafficking are currently limited to information on the rights of a victim in a criminal trial, access to compensation and voluntary return to the victim's country of origin. While the legal services currently provided to victims of trafficking in Ireland seem to meet the minimum requirements of the UN protocol, they fall short of the requirements of Article 15(2) of the Council of Europe convention, which provides for the right to free legal assistance and legal aid for victims in regard to compensation and legal redress. Additionally, we wish to highlight that the response to the concluding observations of the UN Human Rights Committee currently contained in Ireland's draft fourth periodic report under the ICCPR fails to address certain matters raised by the committee which specifically affect migrant victims of human trafficking. The committee had requested,inter alia, that an independent appeals procedure be introduced to review all immigration related decisions and stated that engaging in such a procedure, as well as resorting to judicial review of adverse decisions, should have a suspensive effect in respect of such decisions. While it is acknowledged that work on a new immigration, residence and protection Bill is ongoing, the issues raised by the committee must be considered in the drafting of any such legislation in order to ensure full compliance with Article 13 of the covenant. In particular, the establishment of an independent appeals mechanism to deal with immigration decisions not falling within the remit of the Refugee Appeals Tribunal is the only way to ensure access to fair procedures and effective remedies for migrants and their family members, including victims of human trafficking. Bearing in mind the focus of this presentation, the Immigrant Council of Ireland also submits that a decision made by a member of the Garda not to identify a person as a suspected victim of human trafficking, as well as the subsequent and consequential decision by the Minister for Justice and Equality not to grant the person a recovery and reflection permit or temporary residence permit under the administrative immigration arrangements, must also be subject to independent judicial review. Currently, however, people seeking to challenge such decisions are required to resort to the High Court for judicial review instead of accessing a more efficient and cost-effective immigration appeals tribunal. Access to justice for migrants is already limited in that the High Court, as part of judicial review proceedings, is not in a position to review the merits of a case and cannot deal with questions of fact. Unlike an expert administrative tribunal, the High Court does not have the power to alter or vary an administrative decision and access to the court is severely limited by the 14-day time limit contained in the Illegal Immigrants (Trafficking) Act 2000, as well as by the high financial risk applicants are taking because, in case of an unsuccessful outcome of their application, they may have to pay the legal costs of the State.
Mr. Stephen O'Hare:
Yes. I would like to express my gratitude to the committee for inviting myself and my colleague, Ms Deirdre Duffy, today. I echo the remarks made by others in congratulating the committee on taking this bold initiative to hold these hearings. We express sincere thanks.
The Irish Council for Civil Liberties is Ireland's independent human rights watchdog with a consistent track record as a leader in international human rights reporting, including under the ICCPR, other UN treaties and the universal periodic review. As the committee already heard, the ICCL co-ordinates a civil society coalition on the ICCPR comprising 11 organisations, some of which have appeared before the committee today. I also refer the committee to two publications we have produced on treaty reporting. One is our shadow reporting toolkit, giving organisations information for reporting on international treaties, and the other is our plain English guide to UPR, both of which are available to download from our website rightsnow.ie.
I will lead off on the first matter we have been asked to addressed today, which is the Article 26 implications for migrant victims of domestic violence. My colleague, Ms Deirdre Duffy, will cover the second point regarding the role of national implementation mechanisms, which could support the treaty body system. The response of Ireland to the list of issues refers to the immigration guidelines for victims of domestic violence produced by the Irish Naturalisation and Immigration Service, INMS. An initial difficulty presented in these guidelines, in particular for victims of domestic violence, is that they are not widely available and are only published in the news and events section of the INMS website and on the Cosc, the National Office for Prevention of Domestic, Sexual and Gender-based Violence website. However, on a broader scale, migrants who are victims of domestic violence do not receive the same protections under Irish law as an Irish victim of similar violence. For a start, the guidelines produced by INMS are just that - guidelines - whereas, as I set out in response to the list of issues, people in Ireland who experience violence have legal recourse and protections available under the 1996 and 2011 domestic violence legislation.
The reality for migrant people who are present in Ireland on the basis of a residency permit, which makes their legal residency conditional on being a family member, is that if they suffer violence at the hands of their partner, the current system provides an additional barrier to their seeking protection. Let us take the example of a woman in a violent relationship who has come to Ireland on a family visa and whose partner is abusive. If she and most likely her children leave the abusive situation, she is no longer complying with the terms of her residency permit. She must inform the Minister of her difficult circumstances and can apply for a change in status under the guidelines but there is no guarantee that her status will be changed, how long she will have to wait for a decision or what, if any, status might be afforded to her. The guidelines are a discretionary mechanism. For example, if she is given a stamp 3 status, she has no access to social welfare or many shelters assisting victims of domestic violence. Indeed, groups working on this issue report that migrant victims of domestic violence are turned away from these supports. In most cases, in order re-register, she will have to pay the €300 Garda Immigration Bureau registration fee even where she is left penniless as a result of her separation.
As the committee may know, victims of domestic violence and abusive family situations often find it difficult to extricate themselves from the grip of the abuser. For migrant victims this is compounded by a system which seeks to provide protection under the guidelines if they can be found rather than under legislation. A victim faces an additional fear of deportation should she attempt to leave. In our opinion this does not amount to equality before the law under article 26.
I will now hand over to my colleague, Ms Deirdre Duffy, to address the second issue raised by the committee.
Ms Deirdre Duffy:
With respect to Ireland and the UN system in general, the committee will be aware that Ireland has ratified six of the core UN treaties and the first universal periodic review by the UN Human Rights Council was conducted in 2011. Similar to all treaty body monitoring, the ICCPR is a cyclical process whereby the ongoing obligations of states under the treaty are examined on a periodic basis. As the committee will already have heard today, in particular from Professor O'Flaherty, Ireland signs up to these international obligations, agrees to be bound and periodically it submits reports and enters into dialogue with the committee in question. It then receives a series of recommendations on the gaps that exist in meeting its obligations under that particular treaty.
Civil society also has an important role to play in this regard in giving information to the State, in giving information to the committee and in engaging rights holders in this process. That description is the process in its simplest form. It is a cycle of human rights reporting and monitoring and no one piece will ever reach its full potential without the other components living up to theirs. Ireland's engagement with international human rights reporting is broadly positive. We had an excellent experience of the first UPR examination in 2011. However, there is one key aspect where we fall short time and again. The weak cog in the machine, as we see it, is the implementation of recommendations. In Ireland, this circle is rarely completed. We see this in the repetition of recommendations made by the UN Human Rights Committee and other UN committees over the years.
On foot of Ireland's success in being elected to the UN Human Rights Council in 2012, the ICCL developed the legacy project to highlight the systemic impediments to the full implementation of UN committee recommendations and international human rights standards in Ireland. We believe that implementation of UN recommendations at home is key to a country's capacity to promote and protect human rights abroad. The legacy project is tracking the process of seven key impact areas throughout the term of Ireland's membership of the council. These are issues which civil society groups and other human rights advocates have been progressing for many years. In our opinion, it is a serious concern that the recommendations of UN committees and the UN Council - this opinion is shared at international level - often have not given rise to any change whatsoever in law, practice or policy or appear to remain permanently immovable. For example, members will have heard reference today to the recognition of Traveller ethnicity. There are numerous recommendations over the years from UN bodies on this issue.
The rationale behind the legacy project is to track the progress of these specific issues which have already been spotlighted by the UN system to assist us in answering the following question. If the UN reporting mechanisms have highlighted these areas where change is needed to protection human rights in Ireland, why has this not happened? For example, Ireland signed, but has not yet ratified, the UN Convention on the Rights of Persons with Disabilities - the committee heard from the Rehab Group - and the Optional Protocol to the Convention against Torture, otherwise known OPCAT. Reference to OPCAT is all the more poignant given that last week saw the publication of the McMorrow report into the tragic death of Gary Douch in Mountjoy Jail and the attending failures on behalf of the State in this respect.
To explain briefly, OPCAT requires the establishment of a national preventative mechanism, NPM, which through its consistent inspection regime works to ensure places of detention meet international human rights standards and, therefore, deaths such as Gary's and other similar incidents could be prevented. Despite signalling its commitment to OPCAT and receiving numerous recommendations from UN bodies to move to ratification, the Government maintains that an NPM which meets the requirement of the treaty must be established before we can ratify. However, the situation we are in now is that there is no public information available as to the steps being undertaken by Ireland to progress the development of this mechanism. We know the draft places of detention Bill is languishing in the lower end of the legislative priorities and little else in regard to the Government's priorities on this issue. This leaves us in a highly unsatisfactory situation where ratification is not forthcoming due to a lack of domestic legislation and, as far as we are aware, there is no impetus to prioritise this legislation to comply with these international human rights standards.
Turning to consider how this system can be improved, unless systemic change occurs to institutional domestic structures, it is very difficult to envisage how international human rights standards will be fully implemented in Ireland. As such, the treaty monitoring cycle under ICCPR, which is the subject of today's discussion, will never really be completed. However, the ICCL believes that implementation could be significantly progressed by the establishment of an institutional oversight mechanism. We have in mind something akin to a multi-stakeholder platform which could monitor the realisation of treaty body and UPR recommendations at domestic level.
I refer to examples in other countries which have various mechanisms. Members will be aware of the joint committee on human rights in England and Wales. In France, a body which monitors French compliance with international recommendations from the UN sits within the office of the prime minister.
As part of the legacy project, the ICCL is in the process of developing further research on the use of these oversight bodies. What is clear from our initial soundings is that each country needs to devise its own mechanism suited to its particular legal and democratic structure. I referred to the ratification of OPCAT, Optional Protocol to the Convention against Torture. Ireland received a series of recommendations on this issue as part of its UPR examination. Ireland led the way internationally in its engagement in the UPR and this engagement was highly regarded. However, back in Ireland where the rights-holders are waiting for protection, to assist this process an interdepartmental working group was established to oversee Ireland's UPR reporting process. This initiative was broadly welcomed by civil society, including the ICCL. However, we have little or no information regarding the process of the implementation of UPR recommendations. No information is forthcoming from this group and we are not aware of the work being carried out.
If we mean to take human rights seriously, implementation of treaty body recommendations must be our goal. We believe that a multi-stakeholder implementation platform consisting of senior representatives from key operational Departments, civil society groups, the national human rights institution, perhaps Oireachtas Members and other relevant stakeholders could track and monitor the progress of these issues highlighted by the treaty monitoring bodies. We envisage a structure such as this would be best placed in the Office of the Taoiseach. Such a mechanism should be conducted in a transparent fashion.
We foresee the Oireachtas as an additional layer of accountability which would serve to copper-fasten the process. The implementation platform could be required to report annually to a relevant Oireachtas committee. This creature could take a form suitable to our own political and democratic systems but in order to move beyond the current lacuna, we need to think of an effective mechanism to make these recommendations count; otherwise, there is no point. Whatever form that takes - the discussion should be carried out in an inclusive fashion - the structure should be transparent, participatory and accountable to an external body. At the moment we do not know how these recommendations are being progressed. The legacy project will produce further materials on the concept of this implementation platform. We would wish to incorporate the views of public representatives on the concept.
I wish to briefly address an additional matter which was not included in our previous submissions or in the Government's response to the list of issues. The campaign group, Survivors of Symphysiotomy has recently joined the ICCPR steering group and we are happy to be working with the group to highlight its issues before the UN Human Rights Committee. The group's call to the committee will centre in the main around the lack of remedy in Ireland for the wrongs suffered by women who had symphysiotomies carried out on them in Irish hospitals, potentially breaching their rights to be free from inhumane or degrading treatment or punishment and their right to privacy. We have copies of the SOS submission to the human rights committee with us should Senators wish to have additional information. We are happy to answer any questions from Senators.
Mr. Broden Giambrone:
I wish to begin by thanking the Seanad for this opportunity to address the committee. TENI was invited here today to discuss how the lack of legal gender recognition negatively impacts transgender people under the age of 18, with reference to ICCP Article 16 obligations. For those who are not familiar with the organisation, TENI is Ireland's national, non-profit transgender organisation. We support transgender people and their families and we provide education and advocate for the rights and equality of this community.
TENI works specifically on the introduction of legal gender recognition. This is the process whereby trans people are seen as a true gender by the State and are issued with a new birth certificate. The Irish State has an obligation under the ICCPR to legally recognise gender identity. At the moment, Ireland is the only country in the EU that provides no such provision, despite the fact that Dr. Lydia Foy won her case to be legally recognised in her true gender in the High Court in 2007. Ireland was declared in breach of its positive obligations under Article 8 of the European Convention on Human Rights. In 2008, the human rights committee called on Ireland to recognise the right of transgender persons to a change of gender by permitting the issuance of a new birth certificate. Six years later, Dr. Lydia Foy and the entire trans community are still waiting for the right to be legally recognised.
The legal recognition of transgender people is integral to their health, safety and mental well-being. The lack of recognition runs counter to Article 16 of the convention which states that everyone shall have the right to recognition everywhere as a person before the law. The lack of legal recognition for trans people under the age of 18 can have a particularly negative impact. Research shows that most people develop a sense of their gender identity, that internal feeling of being either male or female or something else, between the ages of three and five years. Many transgender young people are aware of their gender identities at a very young age and increasingly they are expressing this and seeking support.
In 2013, TENI was contacted 233 times by families in such situations. These families often went through quite a difficult journey to get to that point where they were reaching out. It is clear that this is a growing issue. As one mother told me when speaking about her transgender son, "It is better to have a happy son than a dead daughter". Unfortunately, this is really the current situation for young trans people. TENI carried out a study last year in which we asked people about their mental health and well-being. We found that 40% of our respondents had attempted suicide. When we are talking about the mental health and well-being of the transgender community, particularly the young people, there is a very obvious link to legal recognition in being acknowledged for who one truly is.
We have found that when young trans people receive support they are able to thrive. The lack of legal recognition leaves people particularly vulnerable. For instance, transgender young people are at a heightened risk of peer bullying. The perpetuation of young trans persons' exclusion through the failure to legally recognise their gender identity reinforces stress and isolation. For instance, one young trans man with whom we work was bullied for two years in his State school. His mother eventually had to pull him out of the school and take out a loan to be able to send him to a school where he was able to live in his chosen gender, be referred to as Darren and be acknowledged for who he truly was. In another instance, a young trans man is going to a school and he is forced to wear a skirt every day as part of the school uniform. This is despite the fact that he is supported by his family and friends. Unfortunately, his principal is not required to support or acknowledge his gender identity.
In addition to these stories of people's day-to-day experiences, there is also a structural issue. The refusal of the State to issue new birth certificates creates significant difficulties for trans people when they are applying for university. Trans people often miss out on college placements because the CAO, the body responsible for assigning university places, is often unable to cope or to understand trans experiences. One student who transitioned subsequently decided to re-sit the leaving certificate examination but because the documents were different and his name and gender were different, the CAO lost this, assumed an error had occurred and he was subsequently denied a placement.
Unfortunately, we often hear these types of stories. This is particularly important in a country where 10% of students at third level are under the age of 18 years. The proposal under which persons under 18 years will not be able to secure legal recognition will leave such students in limbo, one which will have a negative impact on them for the rest of their lives.
It is clear from our work that transgender adults face barriers to employment. The study to which I referred showed that 49% of participants were not employed on either a full-time or part-time basis. For this reason, it is particularly important that young transgender people stay in school and we are able to support them to go through this process in order that they will have a better chance of gaining employment later in life. Unfortunately, this is often not the case. One parent of a six year old transgender girl told us that her child faced so many challenges in school because of her gender identity and lack of support that she had to withdraw the child from school. Her calls to the Department of Education and Skills went unanswered and she was forced to home school her child as she was not able to avail of the system. This experience left her with severe stress and resulted in the child feeling excluded and isolated. The absence of a directive, guidance, policy or legal protection is an explicit failure which must be remedied.
In July 2013, the Minister for Social Protection introduced a draft scheme of gender recognition. As such, the Government is seeking to remedy this matter and introduce legislation quickly, which is a positive and welcome development, albeit one that has been a long time coming. While we look forward to advancing this issue, unfortunately, the proposed legislation sets out criteria that include an age limit of 18 years. As I outlined, this would leave many young transgender people in limbo because they will not be able to access their legal gender recognition until they reach 18 years. The six year old child to whom I referred and young children in secondary school will have to wait for a long time and at each stop they will face significant barriers.
One positive development in recent months was the decision to refer the gender recognition scheme to the Joint Committee on Education and Social Protection. The joint committee recommended that the legal recognition age be reduced from 18 years to 16 years. This is a positive development which echoed the advice issued by the Ombudsman for Children who suggested that the age at which an individual could apply on his or her own be reduced to 16 years and that the parents or guardians of young people aged under 16 years would be able to apply for legal recognition on their behalf. We hope the legislation will proceed on that basis.
I have spent much of my contribution speaking for young transgender people because we rarely hear their voices or those of their parents. Given that transgender issues are generally invisible, it is important to speak of rights and how Article 16 affects transgender people but also in terms of day-to-day issues. If legislation is introduced and the State advances the issue in a manner that protects the rights, dignity and privacy of young transgender people, we will have an opportunity to make significant advances. We will also be able to provide these young people with an opportunity to move forward and have the best chance of becoming engaging and vibrant members of society.
To sum up, the legal recognition of transgender persons is integral to their safety, health and well-being. The recognition of transgender people under 18 years is vital in promoting rights, dignity, privacy and access to education and the failure to provide for such recognition runs counter to Article 16. Ireland can protect these young people. There is an opportunity to introduce legislation that sets a precedent and truly respects the rights and privacy of these young people.
I thank Senators for affording me an opportunity to discuss this issue. I will be pleased to discuss in greater detail how this works in terms of the International Covenant on Political and Civil Rights and the other ramifications of legal recognition.
I thank Ms Becker for expanding on some of the points she raised earlier. It is extraordinary that victims of trafficking who are in the asylum process have fewer rights than alleged victims of trafficking who are not in the asylum process. Ms Becker set out clearly the reasons this is currently the case. Would this anomaly be best fixed by applying the administrative immigration arrangements to victims of trafficking who are in the asylum process? Is that a straightforward approach that would enable such persons to be issued with temporary resident permits once they had been identified as trafficking victims? Is that the best way to resolve the problem? It is not clear if this is simply an administrative anomaly or if there is a policy reason behind it. Are the witnesses aware of the reason the system developed in this manner? From what Ms Becker said, it appears to have developed somewhat inadvertently, although I am not sure if that is the case.
I thank the witnesses for their presentations. If we needed further reasons to review direct provision, Ms Becker has provided them, specifically in respect of victims of trafficking who are seeking asylum. The figures Ms Becker provided are alarming. I ask her to elaborate on the reasons for her statement that direct provision is not appropriate for victims of sexual violence. While I have an idea as to what they may be, it would be useful to have them stated on the record.
Another issue related to the direct provision system of serious concern to me is the children who are born stateless, as it were. In some cases, children are born into the asylum system whose parents have been in the system for ten, 11 or 12 years. Such children do not have Irish citizenship and I am not sure what is the position as regards citizenship of the countries of origin of their parents. Is this a violation of their human rights? I know the law was changed here to provide that such persons would no longer be entitled to Irish citizenship. Is this process fair under the United Nations conventions?
Ms Hilkke Becker:
Senator Bacik asked if the solution to the anomaly in the system lay in the current administrative arrangements and whether the current position amounts to deliberate exclusion. I will respond to her questions in reverse order. A concern has been expressed that bogus claims could be made concerning trafficking if we treated the victims of trafficking too favourably. The Immigrant Council of Ireland does not share this concern as we have in place an administrative system that can deal with claims. People would not put themselves through this process lightly. Becoming or being recognised as a suspected victim of trafficking involves an excruciating and detailed process of interviews, as is appropriate, which forms part of a potential police investigation. Where prosecutions follow, the victims of trafficking may present themselves as witnesses. I do not agree that someone would lightly claim to be trafficked if he or she had not been trafficked.
We do not necessarily believe that every victim of trafficking is in need of international protection in that not every victim of trafficking would qualify for refugee status. Our concern is that those who are clearly in need of international protection are discouraged from accessing the mechanism that would otherwise be open to them. The solution is for the administrative immigration arrangements to simply acknowledge that the permit granted under the Refugee Act does not live up to the standard required by international law. As is done in other European Union member state jurisdictions, including the United Kingdom, these arrangements should allow a parallel system under which full stamp 4 resident permits would be provided to suspected victims of trafficking while they are assisting with the investigation and prosecution of a claim. They should be allowed, in parallel and where necessary, to apply for asylum and go through that process.
On direct provision, we are echoing what we hear from clients. For example, some of those being accommodated in mixed accommodation may be known to have been involved involuntarily in prostitution and might, therefore, be even more vulnerable to sexual advances and harassment within mixed hostels.
Again it is something that has been echoed internationally and something that has been highlighted by the Council of Europe GRETA committee.
Given that this is the work of the Immigrant Council of Ireland, I am focusing on victims of trafficking for sexual exploitation. The people - predominantly women - we deal with would all be victims of sexual violence. We should also not forget that there are, of course, victims of trafficking who are victims of labour exploitation. When we concentrate on victims of sexual violence, clearly there must be women-only accommodation and organisations such as Women's Aid and Ruhama would echo this. We need accommodation that provides more protection where women can recover in peace.
The question of statelessness is an entirely different issue. Just not becoming an Irish citizen through birth, as we had until 2004, does not necessarily leave children stateless - they would ordinarily acquire the nationality of their parent. This is an area in which the Immigrant Council also works. We are concerned about children being left stateless where they cannot claim citizenship of their parents for one reason or the other. That would be something that would fall under the right to private life basically - the right to recognition as a person - similar to being recognised as a transgender person. That is the angle from which we would view the issue of statelessness.
I thank the witnesses for their useful presentations. I will paraphrase what they might have meant to us but were too polite to say - when it comes to our international obligations, we talk the talk but do not walk the walk in many cases. They mentioned the monitoring role. The Public Service Oversight and Petitions Committee was given responsibility for that because the Office of the Ombudsman found itself in a similar position in that it was laying reports before these Houses and nothing was happening with them. The witnesses mentioned the Department of the Taoiseach. Where do they believe that responsibility should sit? When we made proposals to change the mechanisms of the Houses, we recommended establishing a committee that would basically mark the Department of the Taoiseach and be chaired by an Opposition Deputy or Senator. Could such an Oireachtas committee be useful in checking that these obligations have been lived up to? Could the Seanad take that legislative role of overseeing these international obligations on an organised basis and debate whether we are living up to that when the deadlines approach?
I welcome that the survivors of symphysiotomy have become part of this group. They have full support in the Seanad for their issues.
On the issue of talking the talk and not walking the walk, we get frustrated when we raise issues relating to asylum, immigration, etc., and are told a Bill is in the offing or that the heads of Bill have been prepared. There have been heads of an IRP Bill since 2010, but it has been stalled - we are told it is coming forward. In an international scenario, if the UNHRC comes back and advises we need to move on this and the Government responds that legislation is in the offing, is that enough to kick to touch from a legal perspective and is it good enough?
My question is on the witnesses' recommendation for an institutional oversight mechanism. It sounds like a complicated issue and it could be a multi-stakeholder implementation platform, etc. The in-trays of the Department of the Taoiseach could become very full if all the various independent oversight, etc.,that we recommended were placed there. I am not saying it should not be there. Have the witnesses considered any existing structure that could be adapted to perform this kind of function?
In the context of the report we will prepare, if we were to comment on this, is it something the witnesses believe should be studied and implemented by the time the next round happens; is it something that could be done relatively quickly or should a working group be set up to ensure this happens? I would welcome a few practical suggestions on this aspect.
Ms Deirdre Duffy:
Very good. I will try to answer together the questions raised by both Senators. In many respects the implementation of recommendations is very difficult for the Departments here because the way the portfolios are set out, responsibilities lie in different areas. For example the Department of Foreign Affairs and Trade is responsible for international engagement, but implementation largely falls to Departments with greater engagement in domestic issues. Without wanting to complicate the system or create another structure, there has to be a way to get the internal structures talking to one another. That is why we suggest bringing them together in some form of platform. As we know, resources are very tight in terms of priorities - not even money but workload and official responsibility. To be fair to the officials already there, I do not believe it is a case of not walking the walk, in many respects nobody really knows who is in charge of what and it just has not been organised.
The Senator asked about this happening on an organised basis and if we were to present our argument in a nutshell, which perhaps we should have done, that is exactly what we are getting at. It just needs to be organised, but it also needs to be transparent. We need to bear in mind that we are talking about human rights. The rights holders need to sit at the centre of any human rights discussion. We need their empowerment and participation. That is why we are struggling and coming up against a system where we cannot seem to get through it. We do not know what is happening. We do not know who is moving where or how things are moving.
I take the Senator's point about possible overload in the Department of the Taoiseach. That may be seen as the Holy Grail these days whereby people feel if responsibility were moved in there, things might change. There could well be a very important role for any aspect of the Oireachtas - for the Seanad, for a committee. We are here today largely to inform the committee that our years of experience of working in this area have shown us that this is where we need to go.
This is not something that can be solved overnight. It should not be put on the long finger either because we will be in the same situation in four years unless we move it ahead. While it is not something that needs to be expedited for this particular report, it would be excellent to hear a Government representative tell the UN committee in July that this was something it was considering. That would show a major commitment on its part to implementation.
In terms of an existing institution, we have our new national human rights and equality institution coming on board. We have experts such as Professor O'Flaherty in this country. I believe we can work through this and come up with something that is suitable to everyone and achieves our aims. How we go about that needs to be very participatory, particularly in terms of the groups the committee has taken the time to listen to today. Ultimately, people such as Ms Becker and Mr. Giambrone represent the rights holders whose rights are being affected when these recommendations are not implemented.
Mr. Stephen O'Hare:
Senator Ó Clochartaigh mentioned the IRP Bill. It is my understanding that two Bills were introduced, one in 2007, which fell, and the second in 2010. The committee made reference to this in its previous concluding observations. It is fair to say that the committee would take a dim view if the only response the State provides was to state that more legislation was in the offing or the same legislation was in the offing again. Although slightly amended, we now effectively have legislation straddling two Administrations.
I think the committee will seek a timeline and it will express its disappointment that Ireland has not managed to bring that forward.
I wish to make a brief observation on the issue of the victims of symphysiotomy. This issue has been recognised by the Oireachtas and we have received their written submissions, which will be incorporated in our report. I do not wish to make a political point but is it not the case that it is a political decision to move that forward with a view to compensation and so forth? Even though we are incorporating it in our report, it might be appropriate for them also to engage with the Government and the responsible Ministers.
Ms Deirdre Duffy:
Obviously, I do not wish to speak on behalf of SoS, Survivors of Symphysiotomy, but I believe it has been engaging quite extensively with officials and Ministers as well as parliamentarians. It is obviously a political decision to move this on, but it is political as well as legal in the sense that these women have rights under the ICCPR to an effective remedy. By signing up to that treaty the State has a duty and obligation to provide that remedy. My understanding is that, at present, the redress schemes that are being suggested do not meet the requirements under ICCPR in terms of independent valuation and other matters.
I thank TENI for the comprehensive submission. My question is about the Joint Committee on Education and Social Protection, which has reviewed the provisions in the general scheme that the Minister, Deputy Burton, published last year. I understand that Mr. Giambrone is happy with the recommendation made by the committee that the age would be reduced to 16 years. Rather than duplicating the work of the committee, would he endorse or agree with the recommendation the committee made more generally on the scheme of the Bill? Should this committee also refer to the joint committee recommendations, as that committee conducted a very thorough examination?
I refer to the phrase that was used, that a happy son is better than a dead daughter. That is very powerful. With regard to the recommendations of the committee on the Bill, I understand that a Bill is almost ready and awaiting publication. We are still waiting. Even though Mr. Giambrone has outlined very clearly to the committee the implications of that on a daily basis for many young people, does he have any update on whether it is coming forward or what the difficulty is in terms of getting it ready for publication?
I compliment Mr. Giambrone on a very fine presentation. It highlights the huge effects that the lack of legal gender recognition presents for young people under 18 years of age. The Government is expressing its willingness to consider lowering the age of legal recognition to 16 years with parental consent. Would he still have a concern regarding people under the age of 16 years and how might that be addressed?
I concur with some of the previous contributions on this. I hope this committee would support the recommendation of the education committee on lowering the age of recognition. I attended some of the debate on that and it was a full and vibrant debate. It is a recommendation from the Oireachtas committee as opposed to the Government's policy, so there is some work to be done in that regard. However, I hope that this committee will unequivocally support that recommendation and try to have it moved forward as quickly as possible.
You mention in your submission that you know of people as young as six years of age. It is a question of making ground on these issues. Twenty years ago I doubt that any Member of the Oireachtas or an Oireachtas committee would have engaged on this, so some progress has been made. Personally, I believe six years of age is a very tender young age. If the legislation could be brought forward and provided for the age of 16 years rather than 18 years, as the education committee has recommended, you would be achieving a tremendous amount. In my experience as a solicitor, I recall that in one instance in which I was involved offices such the Registrar of Births, Marriages and Deaths were extremely facilitating, as was the Passport Office. I am not saying there are no difficulties as I am aware that bullying is an issue, although I am not sure if legislation will resolve that. I accept your comment that approximately 40% are in danger of committing suicide. I have seen those figures and I believe they are correct, but I am not sure if legislation in itself will address that. I believe there has to be a change in attitude by society in Ireland. I found your presentation very accurate.
Some progress is being made. The big move for us is that the legislation as proposed could be put on the agenda and instead of being planned be brought before the Oireachtas. We would very much like to have it brought before the Seanad, if that can happen in the lifetime of this Government. I am not sure where it stands at present.
With those observations I invite you to respond to the questions that were asked.
Mr. Broden Giambrone:
There were a number of questions and I will try to respond to all of them. First, I will address your observation about a young person six years old, or even younger in certain cases, being so aware of their gender identity and how that is a tender age. In these situations these tend to be young people who are articulating their gender identity over and over again. They are young people who, in certain instances, if they are not able to be the gender they truly are, occasionally self-harm and threaten suicide. These are children. The issue is, of course, that it can be quite difficult to discuss. Parents often have a great deal of difficulty supporting their children, because children are young and they articulate a variety of thoughts and feelings. However, it is a very specific situation when a young person is saying it over and over again, often over the course of many years. It is not a situation where these parents say, "My child has said they are a little boy, so therefore they are a little boy. We will go through the whole process of changing documents". It is a journey that the family goes through and when they are able to receive support, it becomes a much healthier process.
We are very conscious that young people are in a vulnerable situation, but what we are talking about in terms of legal recognition is very much about supporting that young person to be who they are. A legal recognition process can be an important piece of that. It is not for every young person and certainly not for every family and for that reason I acknowledge there must be a process to ensure one is protecting the young people. We often talk about protecting them in terms of not allowing them to do something whereas what we are talking about is protecting them with regard to their mental health and well-being and one can see how much better that gets when they are supported. I believe legal recognition would be a big part of that, particularly in the cases where parents and guardians support their young child. They know best what their child's needs are. That is to give a little background in that regard.
I agree that legal recognition will not change all the attitudes, but I believe it is very significant in the sense that it shows the State acknowledges that trans people exist.
There is the political motivation and there are the practical issues I have discussed. This will go a long way. I am delighted to be able to sit here and speak about these issues because, as the Senator said, I do not think we would have been able to have this conversation five or even three years ago. I am very grateful for the opportunity to address this committee and to have such a comprehensive discussion.
We are very happy with what the committee has recommended. It went through a very robust process. We and many civil society organisations, legal and medical experts, were involved. The recommendations that came out of the process are quite strong. I hope they will be seriously considered and taken on board.
While we are in favour of lowering the age to 16 it leaves people under the age of 16 in a vulnerable situation. We advocated that between the ages of 16 and 18 individuals could apply for legal recognition on their own. This is in line with other legislation in Ireland. At the moment a transgender person can seek medical transition at the age of 16 without parental consent so it only makes sense to bring the legislation in line with that. Otherwise, someone could physically change their body but is not legally recognised. For those individuals under the age of 16 such as the six year old I spoke of, or others whom we know aged 12 or 13, waiting until they are 16 to be recognised is a long time too. We urge the conversation to continue about how to support people under the age of 16.
The committee also suggested that guidelines be introduced in schools. This is one of the most significant areas where young people face barriers and challenges such as peer bullying, exclusion, isolation or not being able to access education. Having that in place to support young transgender people would be a way to deal with this if it is not possible to consider the recognition of people under the age of 16 with the support of parents or guardians. I hope we can have this conversation in greater detail.
We are aware that the report on the general scheme of a Gender Recognition Bill 2013 from the Oireachtas Joint Committee on Education and Social Protection will go before the Dáil this Friday at noon for discussion. I am not aware of much beyond that or how far along the legislation is. This is an opportunity to discuss these issues, to tease out some of the difficulties and to address the ways this may challenge people and to provide additional information. I am optimistic that this is a positive step forward. The committee’s report was very good and hopefully this will have an impact on how the legislation is drafted and a Bill will come forward very soon.
I thank the witnesses for their presentations. It was a very worthwhile exercise. I feel I learned a lot today, as I am sure my colleagues did. I can assure the witnesses on behalf of the Seanad Public Consultation Committee, which was the brainchild of our Leader, Senator Maurice Cummins, when this Seanad was formed-----
That is true of this particular issue. We will prepare a report. The issue will not gather dust. We hope to present that report to Government by the end of May, well in advance of the July meeting in Geneva.
I thank the witnesses again. We will reflect on what they have told us and will hopefully encompass some of the oral discussion with the written reports in a meaningful and worthwhile document. I thank my colleagues for attending.