Frances Fitzgerald (Dublin Mid West, Fine Gael) | Oireachtas source

These two proposed amendments relate to the definitions of human rights in the Bill and were discussed at length on Committee Stage. The definition in section 2 gives the commission a mandate to promote human rights in the widest sense, not limited to Irish law or to conventions that we have ratified, or, indeed, to any existing international convention. The commission can seek to develop and promote new human rights standards and its discretion in that regard is unfettered.

The definition in section 29 deals with legal or enforcement powers and, accordingly, it is appropriate that it refers exclusively to human rights that are recognised in Irish law. I should mention again that the Department met the Office of the Deputy High Commissioner for Human Rights, ODHCHR, in October 2012 as part of the consultative process with that office following publication of the general scheme of the Bill. At that meeting, the Department explained that the rationale of having two separate definitions was to give the new body every possible freedom to work towards the enhancement of the human rights environment in Ireland.

There have also been calls for one unified definition of human rights in the Bill. Of course, human rights are indivisible and inviolable but the technical device of having two definitions does not challenge that principle in any way. If we had to have just one definition, it would have to be a narrow definition and be confined to Irish law because we cannot give the commission or any other State agency legal or enforcement powers in respect of matters that are not part of Irish law. I believe one narrow definition would be a retrograde step because the commission would lose much of its ability to be creative in the promotion of human rights.

However, what we can do, as set out in the Bill, is give the commission the freedom to promote human rights on as broad a basis as possible, and reflect new normative developments at an international level in its work. In doing so, we have to be clear that its mandate in monitoring compliance with specific human rights standards is limited, as it must be, to those enshrined in Ireland's legislative framework in accordance with the rule of law. The intention is to allow the commission to be creative in its promotion of human rights principles as broadly understood, but to observe the rule of law in the area of enforcement of standards. The ODHCHR noted that this approach seemed very close to how the High Commissioner for Human Rights sought to describe her own role, relating to the protection of clearly defined rights and the promotion of broader human rights principles. The ODHCHR stated that the two definitions approach is a new best practice model which it will encourage other member states to adopt.

The effect of the Deputy's amendment would be to take sections 29 to 35, inclusive, and section 40 out of the enforcement and compliance definition - the narrower definition - of human rights we have in section 29 and into the broader definition in section 2 that relates to wider promotion of which spoke. I will take a number of the sections, if the Deputy will bear with me, and state what the impact would be of doing that. For example, section 29 contains the enforcement and compliance definition. Acceptance of the amendment would create a logical problem because we would be saying that the phrase "human rights" in section 29 means both. This would make for legal uncertainty and some confusion about what the Bill actually means.

Section 30 relates to provision of information about and keeping under review of Irish legislation on human rights and equality. Legislation on human rights falls logically within the narrower definition in section 29, but there is no restriction on the commission in how it keeps legislation under review or what recommendations it may make. Subsection (2) states that the commission may make such recommendations as it sees fit. Clearly, information to the public is information about what our domestic legislation contains, but there is nothing to stop the commission providing also an individual person or the public generally with information about relevant international instruments that are not part of our law or expressing the view that our legislation needs to be updated. The commission can provide information on the detail of legislation but, equally, is in a position to make the broader reference to what the international situation might be or where the law might go in the future. Indeed, subsection (2) makes it explicit that the commission has an entirely free hand in making recommendations for changes in the law.

On the impact of Deputy Pringle's amendment on section 31, when signed into law by the Minister a code of practice can be relied on in court proceedings and used in evidence. It would be ultra viresfor me or any other Minister to sign into law a statutory instrument that goes beyond what Irish law allows or requires. To do so would destroy the credibility of the idea of having statutory codes of practice that can be relied upon by both parties to a potential dispute.

We have one code of practice, for example, on sexual harassment, and I think there is room to use this mechanism more in the future. This only works, however, if we all understand that the commission is giving advice on best practice within our legal framework as it exists and the Minister is signing that advice into law. This is not a device that can be used to legislate by the back door for international legal instruments that have not been ratified by the national parliament. I think the Deputy will appreciate that.

Taking sections 32 to 34, inclusive, the words "human rights" are not found in any of these sections. The sections are in Part 3, because they relate to enforcement and compliance matters. They are covered by the narrower definition in section 29 simply as a matter of legal neatness. By that I mean, it is easier for anyone following the Bill if one definition applies to Part 3 and another applies to the rest of the Bill. However, in fact, the two definitions of human rights are not actually relevant to these particular sections.

Section 35 deals with inquiries. The power of inquiry set out in this section is a serious power, including the power to demand the attendance of witnesses and production of documents. It is based on the understanding that it could never be permissible to conduct an inquiry where there is no allegation or reasonable belief that a breach of statutory duty has occurred. That is why the narrower of the two definitions of human rights in the Bill applies here. It could not be permissible in law for the commission to conduct an inquiry without it having expressed any reasonable belief or made any credible accusation that standards demanded by Irish law had been breached.

The Irish Human Rights Commission has confirmed to my Department that the three inquiries undertaken by the commission were undertaken with the tacit agreement of the parties, probably could not have been undertaken without that tacit agreement and were in each case grounded, inter alia, on the European Convention on Human Rights which comes within the narrower definition.

In the course of the inquiry, however, and in its conclusions and recommendations, the commission may consider best practice and international standards, and in that regard is free, in this instance, as well, to draw from wider definitions of human rights and of equal treatment than are currently set out in domestic legislation. What it cannot do is launch an inquiry into something that it, as the commission, does not consider or allege is a breach of applicable Irish law.

Section 41, which would be impacted by the amendment, relates to the provision of legal assistance to a person who wishes to institute legal proceedings in a matter involving human rights law. I think the amendment would not really change this or achieve anything useful. The commission is free to offer such assistance if it thinks, and, of course, if the would-be plaintiff thinks, there is an arguable case involving law or practice relating to human rights. Neither has to prove the case. That is what the court hearing is for. The courts will not entertain a case which seeks to rely on something that is not part of Irish law and does not make any effort to ground the action in the Irish Constitution or the European Convention on Human Rights, to which we are a party and which is part of the narrower definition, or in our domestic legislation. Changing the definitions here will not change that reality.

There is, of course, nothing to stop the commission, once the threshold of having an arguable case has been crossed, from supporting an applicant in referring to other international standards and in drawing the court's attention to the State's wider international obligations, including in respect of international conventions we have signed but not ratified. However, the commission cannot legislate or take any action to enforce rights for which the Oireachtas has not legislated.

By dealing with each of those sections, I hope I have clarified why I am not accepting the proposed amendment. In places it could create possible legal uncertainty with the text and in others it would create substantial problems about the constitutionality of the Bill. I am opposing the amendment, therefore, and I hope the Deputy will understand the reasons I am doing so.

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