Mick Wallace (Wexford, Independent) | Oireachtas source

I have not had as much time as I would have liked to go through the Bill. The merging of the two bodies was cited last week in the Government’s amendment to the motion of no confidence in the Minister. This disappointing Bill could have been more progressive and reforming. Improvements have been made to the first draft provided in 2012.

The Bill lacks substance if it is to provide properly for the protection and strengthening of human rights structures within the State.

The independence of the proposed statutory body from the Government is questionable, particularly in view of the procedures set out in sections 13 and 14 regarding the appointment of the commissioners. Section 13 provides that the Government will hold a veto on the appointment of those selected for the position of commissioner by the Public Appointments Service. Section 14 allows the Government to remove a member of the commission under a broad range of circumstances. These provisions compromise the independence of these appointments and run contrary to the spirit of the UN Paris Principles. Under those principles, autonomy from Government is strong, particularly in regard to funding and appointment of commissioners.

Section 26 sets out how funding will be allocated by the Oireachtas and leaves this decision entirely to the discretion of the Minister, subject to input from the Minister for Public Expenditure and Reform. The Irish Human Rights Commission's submission notes that in order for the commission to be properly independent, in accordance with the UN Paris Principles, it should have autonomous control over its budget and the amount allocated to it should be what is reasonably sufficient in the eyes of the commission, rather than as set out in section 26 currently - what is reasonably sufficient in the eyes of the Minister.

Section 42 introduces a positive duty for public bodies to have due regard to human rights and equality, and the commission is to assist public bodies to comply with this positive duty by producing guidelines and codes of practice and by review and the making of recommendations. In light of this new and additional task for the proposed commission and the range of public bodies that would be covered, it would seem an increase in resources will be necessary. I would appreciate it if the Minister would commit to this in the House as a demonstration of a real, meaningful and measurable commitment to the new commission and to the importance and priority of human rights within the Administration. It should also be noted that the Irish Human Rights Commission believes that section 42 should be reviewed and strengthened. This may be a legal obligation, in accordance with the principle of equivalence in the Good Friday Agreement. For example, there are no provisions to enforce compliance with this duty.

I have looked at the Irish Human Rights Commission's notes on this Bill. It points out that section 35 provides for inquiries to be conducted at the discretion of the commission or by direction of the Minister for Justice and Equality, with complex procedures prescribed for the holding of an inquiry set out in Schedule 2 of the Bill. The explanatory memorandum states that the inquiry function has been redesigned and modelled on that contained in the Commissions of Investigation Act 2004 to ensure it is robust and effective in practice. It is recalled that the Paris Principles call for national human rights institutions, NHRIs, to have functional independence from government. In this regard, the IHRC, or IHREC designate, recommends that its inquiry function should not be the subject of direction from a Minister, despite the fact that the IHREC would be independent in the conduct of any inquiry thereafter.

Section 35 also sets a high threshold for the decision to conduct an inquiry in so far as there must be evidence of either a serious violation of human rights or equality of treatment obligations or a systemic failure to comply with human rights or equality of treatment obligations, the matter must be of grave public concern, and it must be, in the circumstances, necessary and appropriate so to do. The IHRC recommends that the threshold for the holding of an inquiry be lowered and brought into line with the agreement, under the Commissions of Investigation Act 2004, which requires only that the matter to be investigated be of significant public concern. It may be expected that inquiries conducted by the commission will not be routine, in light of the resource implications of such an undertaking.

The requirement that there must already be evidence of a serious violation of human rights or equality of treatment obligations before the inquiry commences begs the question of the purpose of the inquiry. The requirement that a matter be of grave public concern could preclude an inquiry into a hidden violation - for example, the Magdalen laundries, a confidential communication from a whistleblower not already in the public domain or a matter than affects only a limited group of people but none the less has significant implications for human rights and equality compliance. Furthermore, the commission recommends that it should not be precluded from considering broader human rights standards than those obtaining under domestic law when conducting inquiries. In this regard, I point out that the three inquiries undertaken by the IHRC to date examined international human rights law standards and were not the subject of any judicial review or other legal proceedings.

A clear distinction should be made in this Bill between the narrative value of an inquiry report to document any failure to uphold human rights and equality standards by a public body or Department and any enforcement proceedings resulting from an inquiry which, by necessity, could only refer to human rights and equality standards with force of law. The application of a narrow definition of human rights to inquiries fails to distinguish between the value of an inquiry to prompt a change in law and practice for the future and those aspects of an inquiry which could possibly lead to enforcement action. At a minimum, it is recommended that a clause be inserted in the Bill that the IHREC is not precluded from referring to the definition of human rights under Part 2 of the Bill in the course of conducting and preparing a report on an inquiry, even if it is considered necessary to provide that the narrower definition applies in regard to any enforcement action arising therefrom.

I want to raise an issue we raised before. We hoped the terms of reference introduced yesterday, which are welcome and are strong regarding the taping issue, would have included whatever recommendations arise from the Judge Cooke and Seán Guerin reports, so that we can be confident of getting to the truth of the issues involved. Likewise, we raised the issue of racial profiling within the Garda force with the Minister previously. He said that he was content with the Garda Commissioner's guarantee that this did not happen, but this is an issue the Minister should consider further. He says he wants things to be done better within the force and that some areas need to be examined. This is definitely one area the Minister should consider looking at, because it is important for the force that the people are satisfied on this issue. If racial profiling is taking place, we need to address this problem, and if we want to find out for sure whether it is taking place, we must investigate the issue properly. It would be good to include this in the latest investigation.

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