Anne Ferris (Wicklow, Labour)
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The purpose of the meeting is to have an engagement with Dr. Eilionóir Flynn, from the National University of Ireland, Galway on the ratification of UN conventions. A briefing has been circulated to members. On behalf of the committee I welcome Dr. Flynn and thank her for her attendance today. I will invite her to make an opening statement of five minutes which will be followed by a question and answer session with the members.

I advise the witness that 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 the committee to cease giving evidence on a particular matter and they continue to so do, they are entitled thereafter only to a 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 they are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable. Members should be aware that under the salient ruling of the Chair they should not comment on, criticise or make charges against a person outside the House or an official either by name or in such a way as to make him or her identifiable.

I invite Dr. Flynn to make her opening statement.

Katherine Zappone (Independent)
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Will the committee agree that Dr. Flynn may speak for ten minutes, as she is our first expert on this issue?

Anne Ferris (Wicklow, Labour)
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She can take as long as it takes.

Dr. Eilionóir Flynn:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Ivana Bacik (Independent)
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I thank Dr. Flynn for her clear overview of the process. It was very helpful to the sub-committee in its consideration. Dr. Flynn pointed out that the role of the Oireachtas is crucial and that other countries have demonstrated how parliaments can engage in the ratification process to strengthen it and so forth. What sorts of examples does Dr. Flynn have of practices in other countries where parliaments have done this work? How can we assist here in this regard? Dr. Flynn stated the Department of Foreign Affairs and Trade is committed to publishing a roadmap for ratification. Should we await the publication of the roadmap before we take on hearings with civil society stakeholders, for example? Alternatively, should we begin to engage now in advance of publication? What would be the most effective way for this sub-committee to engage? Has Dr. Flynn any lessons for us from other countries? I hope those questions are not too difficult.

Dr. Eilionóir Flynn:

No. I have some examples of work that has been done in other countries. I suppose the best examples are from civil law countries where parliaments are usually formally involved in the ratification process because of their different legal systems. For example, in Spain, Hungary, Croatia and many other countries, the parliament actually debated whether the convention should be ratified. It is not a decision of the Executive in those countries but a decision of the Legislature. That is due to the different legal systems so there is not much that can be done about that. In New Zealand and Australia, for example, the parliaments were involved, although not formally, in making the decision on whether those countries should ratify. Joint parliamentary committees held hearings, received submissions from people with disabilities and their representative organisations and debated the merits of speedy ratification in those two countries. They were both in favour of ratifying quite quickly to show leadership in that area.

With regard to what could be done here, I certainly do not believe there is any disadvantage to beginning now to open discussion on these issues. I know from dialogue with many organisations representing people with disabilities that there is increasing frustration over the fact that the process of determining the obstacles to ratification is not one into which they can be seen to have an input. While they might have some solutions or suggestions on how we can overcome the reasonable accommodation question, there is simply no forum for them in which to present their views, apart from making submissions privately to the Department of Foreign Affairs and Trade, the Department of Justice and Equality or wherever else these issues are being debated. However, they are not formally involved in the work of the interdepartmental committee in respect of each of the Departments that is reviewing legislation and policy under the convention.

Another step that could be taken would be to better integrate the work that is ongoing on monitoring Ireland's national disability strategy and to join that work up with that of the interdepartmental working committee on the UN Convention on the Rights of Persons with Disabilities. Right now, there are two separate processes although they involve many of the same actors. However, civil society has the opportunity to have a formal input into the disability strategy monitoring process whereas, to date, it has not had the opportunity to have a formal input into questions on whether Ireland should ratify the convention.

Ivana Bacik (Independent)
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Does Dr. Flynn know any more about the question of reasonable accommodation? I believe the Supreme Court decision on the employment equality and equal status legislation put forward a particular view. Is that the difficulty?

Dr. Eilionóir Flynn:

That is the issue.

Katherine Zappone (Independent)
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Could I be brought up to speed? What is the issue?

Ivana Bacik (Independent)
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Mr. Conor Power wrote at the time that the rights of employers have trumped the right of equality.

Dr. Eilionóir Flynn:

In that case the Supreme Court was concerned that the requirement of employers to reasonably accommodate potential employees with disabilities could constitute an attack on the constitutional right to private property because employers might be required to do more to accommodate employees with a disability. However, that does not really address the reasonableness criterion associated with the concept of reasonable accommodation, so in my view, it does not constitute an attack on the right to private property because one is not required to accommodate a person as one's employee in all circumstances. Consider the circumstances of an employer who runs a very small business where an employee needs some very sophisticated type of technology or complete revamp of the office space that is not feasible. It was never intended to apply to this. In that case, the Supreme Court rejected the standard that had been suggested in the employment equality legislation regarding reasonable accommodation. The definition included the criterion that one had to reasonably accommodate a person unless doing so represented a disproportionate or undue burden. In response, when the Parliament legislated again, it came up with the much less stringent criterion whereby one had to reasonably accommodate a person with a disability unless it cost more than a nominal cost. Most costs are higher than a nominal cost.

However, since that time, of course, the EU has legislated on this with its framework directive on employment. The EU has reimposed the standard of the disproportionate or undue burden. Notwithstanding the Supreme Court's decision, Ireland has changed its laws to reflect the EU position. However, that applies only to employment, of course, and not to goods and services. In the UN Convention on the Rights of Persons with Disabilities, the standard of reasonable accommodation is the same. It is a matter of a disproportionate or undue burden, regardless of whether one is an employer or a provider of goods and services. The concern is that we could have a constitutional barrier. Does it require an amendment to the Constitution for Ireland to be able to ratify the UN Convention on the Rights of Persons with Disabilities? I hope it does not because that would delay the ratification process quite significantly. Perhaps we would not be in a position to ratify at the end of that process.

Ivana Bacik (Independent)
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I thank Dr. Flynn

Katherine Zappone (Independent)
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I thank Dr. Flynn for her submission and for travelling to present it to us. As Senator Bacik said, it represents such a comprehensive beginning to help us with our initial investigation of this issue. I have a number of questions. We had an intuition that what we are doing is an important step at this time, but it now seems very timely to consider the process of ratification in general. Dr. Flynn ended with a reference to the Department of Foreign Affairs developing a roadmap. Is that specifically for this convention-----

Dr. Eilionóir Flynn:

Yes.

Katherine Zappone (Independent)
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-----as distinct from other optional protocols or treaties? I refer to one or two that are currently in force in addition to those that might be in force in the future.

When Senator Bacik asked about what we should now do, I was wondering whether it was about the process of the ratification of the treaty for people with disabilities or, more generally-----

Ivana Bacik (Independent)
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I meant disability.

Katherine Zappone (Independent)
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-----the issue of how we go through a process of ratification. However, we have always felt that it is best to examine this issue in the context of a concrete example. That is why this process is so helpful.

Dr. Flynn initially presented us with guidance, both from the Council of Europe and the United Nations, on how countries might go about ratification. It was suggested parliaments could be, or ought to be, involved in the process. The OHCHR requirement is not necessarily that the state be compliant with all the provisions but that it be able to demonstrate it is in conformity with the object and purpose of the convention. Dr. Flynn presented us with the Council of Europe and UN standards or guidelines for going through the ratification process. I presume our Government is influenced by these. Has this ever been examined publicly in any way, or has there been any explication of how we actually go through the process of ratifying a treaty, apart from the convention about which Dr. Flynn is speaking?

Dr. Eilionóir Flynn:

I looked into that in preparing for today's meeting to see if there had been public consultations on other conventions prior to Ireland's ratification of those treaties but I was not able to find much other than certain parliamentary questions to various Ministers about when we would ratify various conventions. Those questions are still being asked not only in respect of the UN Convention on the Rights of Persons with Disabilities but on the optional protocol to the convention against torture and other issues. Those questions are still coming up but the same approach has been taken in the responses, which is that it is the decision of the Executive, that the Government agrees that it is important to ratify human rights conventions but it takes the position that it should not do it too lightly and so on. I did not find there was any great exploration of the issues but perhaps I am not aware of that and there were more extensive public consultations on UN Convention on the Elimination of All Forms of Discrimination against Women. Certainly it is not easy to find information about that in the public sphere.

Katherine Zappone (Independent)
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On the quote from the Minister of State, Deputy Lynch, that Dr. Flynn provided in terms of saying that to ratify we must comply, including amending domestic law, as necessary, does that pretty much capture the heart of the answers of other questions about the Government's approach to ratification?

Dr. Eilionóir Flynn:

That phrase has tended to emerge more strongly since questions started to be asked about the UN Convention on the Rights of Persons with Disabilities. That was probably always the approach but various Ministers in successive Governments at different times interpreted whether we were in a position to comply differently. I do not believe anyone would have suggested that in 1986 there were no issues about discrimination against women in Ireland. It is not that we were perfect. With respect to human rights conventions, it is not expected that states will have reached a point where there are no issues for compliance. There are always emerging issues that states must address. It is more a question of a subjective value judgment as to whether we are compliant or ready to ratify a convention but for this specific convention, a very strict approach has been taken to that, which perhaps was not always the approach taken with previous conventions.

Katherine Zappone (Independent)
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I thank Dr. Flynn for that response. The Acting Chairman can interrupt me if I am going on too long.

Anne Ferris (Wicklow, Labour)
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No, Senator, that is fine.

Katherine Zappone (Independent)
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I was surprised to hear Dr. Flynn say that with respect to the Department of Foreign Affairs when it published the information about the work of the environmental committee that it was stated relatively recently that there are a number of other areas that may need to be sorted before we ratify the convention. That sets off alarm bells for me, as I sure it does for people who have been active in the sector, as to what ultimately it means and what must be done to ratify the convention. In light of what is happening in this process, one would wonder when it would come to an end. Does Dr. Flynn understand it to be a dual process with the roadmap being one element and identifying key issues that have to be addressed being another element? It is a twin-track process in which the committee is involved.

Dr. Eilionóir Flynn:

To take the Senator's second question first, they are still identifying the areas but once they have identified all the areas and got agreement from Government that those are the areas where action is required, those areas become the roadmap. That is my understanding of the process. We now have more detail and the discussion about reasonable accommodation was in background for a long time but now it is explicitly named as one of the issues.

In terms of the other main issues they have identified, which are sexual offences legislation and mental health law, I would be reasonably confident about what they mean with regard to what needs to be done there. Work has been done on this area, and the Senator produced a Private Members' Bill on the reform of sexual offences legislation. There is a sense that our current sexual offences legislation discriminates against certain people with disabilities and that needs to be addressed. I am speaking in regard to section 5 of the 1993 Act which makes it an offence for a person to have sexual intercourse with a person with a mental impairment. That is an issue and consent is not a defence to that offence, as we know, which is problematic.

In terms of mental health law, the UN convention requires that disability should never be a justification for a deprivation of liberty. For example, the fact that a person can be involuntarily detained and treated against one's will without one's consent under Ireland's Mental Health Act would be viewed, certainly by the UN Committee on the Rights of Persons with Disabilities, as a problem with respect to article 14 of the convention. That is certainly an issue and perhaps that is what it means when it states that mental health law is in need of reform. However, those kinds of reforms take time and our experience with the Assisted Decision-Making (Capacity) Bill has shown how long that process had taken and it is still not concluded but it is important to get it right. We would want to reform those areas of law. The question is whether the issues are of such significance that they require reform now prior to ratification, or whether they are issues that could be addressed post-ratification in the implementation of the convention. That is a judgment call and it is the Executive's role to make it but it would be valuable to inform that view with the experiences and voices of people with disabilities.

Katherine Zappone (Independent)
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Yes. That is the position, as Dr. Flynn has clearly laid out. She pointed out that the impact of the lack of ratification means we are not in a process of being monitored or supported by an international body that would examine how we are meeting our obligations under the treaty. That is a key impact of the lack of ratification. Dr. Flynn's response to those various issues demonstrates the importance of ultimately being much clearer and perhaps even having a policy or an overall roadmap of how we would go about ratifying conventions. It seems the process could take for ever, depending on the judgment calls along the way.

It also strikes me, and Dr. Flynn will be aware of this, that, more generally, the rationale for the setting up of the sub-committee was to find a way to begin to have Oireachtas involvement and oversight of human rights issues, and this is a key one for us, but we are doing it within the context of the mandate of the Committee on Justice, Defence and Equality. It further strikes me that in this regard the Department of Foreign Affairs and Trade is the Department that has overall responsibility for ratification but it may be useful, as we examine how to proceed and move forward on this, that if the issue concerns a treaty related to the mandate of a particular committee that it could be involved with the Department of Foreign Affairs and Trade in that process of ratification and the roadmap.

Senator Bacik already asked about comparative jurisdictions. It would help us to examine that in more detail in terms of how other jurisdictions that are aligned to our process have gone through ratification of treaties, even, for example, the treaty on people with disabilities. Does Dr. Flynn have any suggestions, which she can indicate now or later, as to who we might contact to help us with that? Could she also suggest how the committee might proceed with the issue we are discussing?

Dr. Eilionóir Flynn:

To address the issue of comparative countries and how they have approached this, the UN Office of the High Commissioner for Human Rights produced a report, which I cited in my opening remarks, which studied the ratification process in a number of countries that had ratified at the time. I believe the report was published in 2009 which was quite early in the process of the UN Convention on the Rights of Persons with Disabilities, but none the less at that point they were able to point to a number of different approaches. They sent survey questions to all the countries that had ratified at that point asking them about their process, what they found beneficial and how they went about it. In that process also many of those countries, including Australia and New Zealand, produced national interest analysis of the impact of the convention on national law and also its financial impact and the impact it might have on the lives of people with disabilities. That is quite a good exercise and one in which the Oireachtas and this sub-committee could play a role. The Senator's suggestion of involving the Committee on Justice, Defence and Equality or this sub-committee in working with the Department of Foreign Affairs and Trade in whatever process it engages in would be a valuable one and that would reflect approaches that have been taken in other jurisdictions.

Katherine Zappone (Independent)
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I thank Dr. Flynn for that. I also thank the Acting Chairman for her indulgence.

Anne Ferris (Wicklow, Labour)
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The Committee on Justice, Defence and Equality always had the system of pre-legislative scrutiny in place but all committees now have to do that. Perhaps some type of similar system could be set up, either under the auspices of the Committee on Justice, Defence and Equality or the Joint Committee on Foreign Affairs and Trade.

That would enable all members of the Oireachtas, including members of civil society, to contribute and have a full debate because there will be members of both Houses who will not have an opportunity to give their input. Perhaps we could look at setting something up and sending a report to the Taoiseach about it. That could be useful.

Dr. Eilionóir Flynn:

That is a very practical suggestion and it follows the process of pre-legislative scrutiny which is already well established, so that is very valuable.

Anne Ferris (Wicklow, Labour)
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I will ask the clerk to have a think about that and report back to our next sub-committee meeting.

Dr. Eilionóir Flynn:

Thank you.

Anne Ferris (Wicklow, Labour)
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Is Senator Zappone happy with that?

Katherine Zappone (Independent)
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Yes.

Anne Ferris (Wicklow, Labour)
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Has Senator Zappone finished asking her questions?

Katherine Zappone (Independent)
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I think Dr. Eilionóir Flynn has fully answered them and provided us with a great start on this examination of the issues.

Anne Ferris (Wicklow, Labour)
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On behalf of the committee I thank Dr. Eilionóir Flynn for attending the committee and making an interesting presentation which has given us much food for thought. We will continue to work on the issues raised and are eager to do so.