Ms Sinéad Gibney:

I thank the Chairman and members for the invitation to be here. While this marks the commission’s second appearance before the committee, it is my first opportunity, since being appointed as chief commissioner in July, to engage directly with Oireachtas Members. I am joined today by my fellow commission member, Sunniva McDonagh.

I am conscious of time. I will not cover the commission’s powers and role, except to say that it has a statutory mandate to keep under review the adequacy and effectiveness of law and practice in the State relating to the protection of human rights and equality. On behalf of the commission, I will make three specific points today relating to the Covid-19 legislative framework, human rights and equality on emergency powers, legislative vulnerabilities and tools to safeguard rights.

I shall first address the emergency powers relating to Covid-19. The key message we want to communicate to the members of the committee, as legislators, is that emergency legislation should be the exception, not the norm. Where emergency legislation is used, it must meet international human rights requirements of legality, necessity, proportionality and non-discrimination. It is also essential that, once introduced, there is effective oversight of how new powers are implemented to ensure that they continue to meet these standards.

The recent emergency legislation was introduced under the State’s ordinary constitutional structure rather than any formal emergency status. While not recommending the need to declare any formal state of emergency, we do need clarity on what emergency legislation means in terms of legislative practice, monitoring of implementation and its active oversight. The commission has consistently raised the need for more detailed, disaggregated data on the implementation of emergency powers afforded to An Garda Síochána in the course of this pandemic. After all, how can Members of the Oireachtas, as lawmakers, know if emergency powers are being enforced in line with human rights and equality principles if they do not have access to information about the people most affected by them? This could include, at a minimum, information about ethnicity, age, gender, disability and geographical location.

The second point is that the pandemic has exposed problems in our existing legislative framework when it comes to the ability of all people to assert their rights. For those among us who have disabilities, for example, a pandemic, with its restrictions on movement and personal liberty, raises the spectre of a return to a more institutionalised past. It is critical that legislation is enacted without delay that will strengthen human rights protections for this group, such as the Disability (Miscellaneous Provisions) Bill.

It is also essential that legislation which protects people rendered more vulnerable by their circumstances and which shines a light on places of detention is prioritised, including the commencement of the Assisted Decision-Making (Capacity) Act 2015 and the reform of the Mental Health Act 2001.

A glaring legislative gap is the ratification of the Optional Protocol to the Convention against Torture, OPCAT, which Ireland signed in 2007, and which is achievable by passing the inspection of places of detention Bill. This would also formally establish Ireland’s national preventative mechanism. This mechanism provides a structure through which public bodies that inspect places of detention and institutions can come together to identify human rights concerns and propose ways in which potential human rights violations can be avoided and prevented. The United Nations Subcommittee on the Prevention of Torture says that an effective national preventative mechanism is the most significant single measure a state can take to prevent ill-treatment in places of detention occurring over time. These legislative gaps are not cost free, and the reason they are not is because they deliver real and meaningful impact to people’s lives. We recommend that they be resolved by the Government and the Oireachtas as a matter of urgency.

We must look at what legislative tools we already have to safeguard rights during this crisis and in the future. Since 2014, all public bodies have a statutory obligation to implement the public sector equality and human rights duty. If a public body provides a public service, from delivering healthcare to shaping new laws, it has an obligation to identify how what it does might impact on the equality and human rights of its service users, the people affected by its policies, and its staff, and to take positive steps to protect human rights and prevent discrimination. We recognise that public bodies are innovating in the delivery of their services and developing new services to address the challenges of Covid-19. By implementing this duty, they can proactively avoid new and possibly unforeseen discrimination and raise institutional consciousness of the rights and equality of the people who use public services and those who deliver them.

The pandemic has exposed underlying rights and equality issues that have made it a much more challenging experience for some groups and communities. It also has exposed a solidarity and an appetite to improve opportunities and outcomes for those people. The public sector duty and the other legislative improvements that I mentioned can help us to build that just and compassionate Ireland so that for future crises, and indeed simply for the future, we take better care of all members of our society.

I pay tribute to the work of this committee. It has provided critical democratic oversight of the impact of and response to this pandemic. The Irish Human Rights and Equality Commission remains, as ever, ready to offer any assistance we can to the Oireachtas.