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

I am pleased to present this Bill to the House. It is now 15 years since the Equality Authority was established and 14 years since the establishment of the Human Rights Commission. In that time, the demographic, social and economic fabric of the State has changed profoundly. In particular, public expectations of the high standards of visibility, transparency and accountability to be achieved by our public bodies has increased significantly. The commitment and professionalism of the members and staff of the Equality Authority and Human Rights Commission during this time are to be commended. There is no question about that. However, these bodies have overlapping roles and it has become increasingly obvious that there is a compelling need for a more comprehensive approach to the protection of human rights and equality and to institutional arrangements in that regard.

Drawing together in a single, leaner and more streamlined body the main strands of the vital equality and human rights agendas will positively strengthen the ability of the new commission to effectively, efficiently, and cohesively promote a culture that respects the human rights and equal status of everyone in our society. The new commission will be positioned to maintain and build upon the reputations for excellence of the current Equality Authority and the Human Rights Commission.

The promotion and protection of human rights is at the heart of Ireland's domestic and foreign policies. Ireland has been and continues to be active in this regard in Europe and further afield. During our Presidency of the Council of the European Union last year, my predecessor put questions about the rule of law and protection of fundamental rights on the agenda of EU Ministers for Justice. Ireland was concerned, in particular, at the apparent rise in xenophobia, including anti-Semitism and other extreme forms of intolerance, including racism and homophobia, within the European Union and the failure in some cases to respond adequately. We were also concerned that justice institutions, the courts and police in particular, should function effectively so that fundamental rights are protected.

On 11 March last, as its response to the debate on fundamental rights and the rule of law initiated during our Presidency, the Commission published a communication on the rule of law. The proposed three-stage framework is a very solid response to the issues that we, and others, including the European Parliament, raised and will be considered in detail by our partners in the Council. Ireland continues to be proactive in this area. Along with several other member states and the EU Agency for Fundamental Rights, Ireland is involved in a co-operative project to identify a methodology which will enable us to measure adherence to the rule of law and our shared EU values across all member states. I believe that this work has a vital role to play in protecting the fundamental rights of all EU residents and in tackling extreme intolerance across the European Union.

I mention our Presidency initiative on the rule of law and fundamental rights because it is directly relevant to the subject matter of this Bill. Just as coherence as between the internal and external dimension of EU human rights policy is important, and just as it is of critical importance to our credibility in the EU that we are seen to practice what we preach, so too must Ireland's active support for human rights in the wider world be supported by the existence of a credible national human rights infrastructure and robust legislation in this field. Extreme intolerance and flagrant abuse of human rights is also evident on the wider international stage. As Ireland prepares for a constitutional referendum on equal marriage for same-sex couples in 2015, in contrast, certain states are working hard to restrict the rights and fundamental freedoms of gay people. Our contributions to the protection of human rights in Europe and internationally would carry little weight without robust protection of human rights and equality here at home. The new commission has a key role in reminding us of our obligations and in offering independent and principled advice to our Government and indeed to Irish society generally in respect of issues that need attention.

I firmly believe that our society will benefit from having a strong and effective human rights and equality body. I also believe that this Bill gives the new commission a very strong mandate to carry out this vital work. The levelling up of powers and functions, the introduction of a new role in supporting public bodies to have due regard to equality and human rights issues in their work and the creation of a sliding scale of possible interventions and powers, which can be exercised in a nuanced way commensurate to the nature of the problem, including, as a last resort, an effective power of inquiry and powers to initiate court action, will all serve to make this a more effective body with stronger powers than its two predecessors combined.

The new body will also in due course seek accreditation with the UN as Ireland's national human rights Institution. This is of crucial importance to ensure it achieves the highest domestic credibility and international standing in respect to its independence and remit. The explicit intention of this Bill is to strengthen the new commission and ensure that it complies unequivocally with the Paris Principles. I am confident that the new body will maintain the high standard and the high standing and reputation the Human Rights Commission has achieved internationally and that this legislation stands comparison with the legislation underpinning national human rights institutions anywhere in the world. The commission will take over from the Equality Authority as Ireland's designated equality body under the EU anti­discrimination directives.
The legislation will also amend the European Convention of Human Rights Act 2003, most importantly to give effect to the judgment of the European Court of Human Rights in the DG case by providing for an enforceable right of compensation in the case of unlawful deprivation of liberty due to judicial error in contravention of Article 5 of the convention.
I will outline the main features of the Bill. Sections 1 to 7, inclusive, are mainly technical provisions. Section 2 contains the necessary definitions, including a broad definition of "human rights", which ensures the commission is not limited to human rights recognised in existing Irish legislation in its promotion and awareness-raising work but can undertake work to promote human rights in the broadest sense. We had a detailed debate on that in the Dáil.
Part 2 comprises sections 8 to 28, inclusive. Section 8 is a standard provision which provides for an establishment day for the new commission, replacing the Equality Authority and Human Rights Commission.
Section 9 contains a number of provisions regarding the establishment of the commission as a body corporate with perpetual succession. It also sets out that the commission will be independent and be guided by best international practice in the area of human rights and equality. Most notably, these standards include the Paris Principles, as the set of informal rules relating to establishment and functioning of national human rights institutions are known.
Section 10 lists the detailed functions of the commission. These include providing information to the public on human rights and equality, keeping under review the adequacy and effectiveness of law in this area, practical assistance, including legal assistance to an individual under equality or equal status legislation and carrying out equality reviews, which are essential, and action plans. It also provides for the commission to appear before the High Court and Supreme Court as amicus curiaein proceedings before either court that concern the human rights or equality rights of a person. The section provides for continued participation with the Northern Ireland Human Rights Commission in the joint committee as provided for under the British-Irish Agreement Act 1999. The section is also a principles section and sets out the principles that underpin the functions of the commission in encouraging and supporting the development of a society that respect and protects each person's dignity and human rights.
Section 11 is a technical provision allows for the Minister with the consent of the Minister for Public Expenditure and Reform and with the agreement of the commission to confer additional functions on the commission. It will be important as time progresses that such a section will allow this to happen.
Section 12 contains the provisions in relating to terms of membership of the commission. Members shall hold office for a term not exceeding five years, which can be renewed. The commission shall comprise not more than 15 and not fewer than 12 members, one of whom shall be chief commissioner. We had some discussion in the Dáil on that position as well. The section provides that the members designate who were appointed on 19 April 2013 shall become the first commission, with each member being appointed for a term of either three or five years to ensure continuity of expertise and experience for future commissions by avoiding a scenario where the term of all members expires at the same time.
Section 13 outlines the selection and appointment process for membership of the commission. Members of the commission will be appointed by the President, on the advice of the Government following the passing of a resolution by each House of the Oireachtas. The commission is being established with the intention of being recognised, as the Human Rights Commission currently is, by the UN as Ireland's national human rights institution. Such institutions are accredited for UN purposes in accordance with the provisions of the Paris Principles, which are the internationally-recognised standards that apply to such institutions. The persons to be appointed will be selected by the Public Appointments Service following a Paris Principles compliant selection process to be undertaken by the service. To underpin the independence of the selection process, the section provides that the Government shall accept the persons recommended for appointment by the service, save in exceptional circumstances and for stated and substantial reasons.
Section 14 lists the conditions of membership including the circumstances in which the Government may remove a member of the commission. These circumstances are failure without reasonable excuse to discharge the duties of the office, incapacity to perform those duties or stated misbehaviour. A member may only be removed from office with the agreement of both Houses of the Oireachtas.
Section 15 provides for filling of casual vacancies on the Commission and section 16 outlines how the commission shall organise its meetings. The commission shall meet not less than once every three months. Subject to the Act, the commission regulates its own procedures.
Section 17 provides for the commission to appoint from its membership Ireland's representative on the management board of the EU Fundamental Rights Agency as is provided for under Council Regulation No 168/2004. This is a new provision because, previously, the Government made this appointment. However, this new approach better reflects the requirements of the Council regulation and is designed to establish a structured relationship between the commission and the agency in the promotion of fundamental rights within the EU context.
Section 18 allows for the establishment of advisory committees and other formal methods of consultation with civil society. Such committees will allow for the commission to establish and maintain contact and co-operation with relevant agencies and with NGOs and other civil society interests. There is no doubt the commission would want to do this anyway but it will be spelled out in statute.
Section 19 is a standard provision providing that members of the commission will cease be members when elected to either House of the Oireachtas or to the European Parliament.
Sections 20 and 21 provide for the appointment of a director for the commission and outline his or her functions. The director will be the Accounting Officer for the commission, which will have a separate Vote.
Sections 22 and 23 provide for the accountability of the director to both the Committee of Public Accounts and other Oireachtas committees. These are standard provisions.
Section 24 provides for staff of the commission and their remuneration. This section should be read in conjunction with section 45, which provides for the transfer to the commission of the existing staff of the Equality Authority and Human Rights Commission. The Bill provides for the commission to undertake its own recruitment in accordance with the standards set out in the procedures and codes of practice applicable to civil service recruitment generally. This section also provides that staff of the commission on transfer from the Equality Authority and Human Rights Commission shall become civil servants of the State and that the commission will be the appropriate authority within the meaning of the Civil Service Commissioners Act 1956 and the Civil Service Regulation Acts, 1956 to 2005, in respect of its officers. This is in line with the staffing arrangements of other independent organisations of a constitutional nature such as such as the Ombudsman, Garda Síochána Ombudsman Commission, Director of Public Prosecutions and including the Oireachtas. As civil servants of the State, the staff of the commission are not amenable to instruction by Government or by any Minister. These arrangements are designed to ensure the independence of the commission in full compliance with the Paris Principles, which require that the national human rights institution be legislatively empowered to determine its staffing structure and to select its staff in accordance with national law.
Section 25 requires the commission to prepare a strategy statement not later than six months after the commencement of this section. This statement will be for a period of 3 years. The commission will be directly accountable to the Oireachtas regarding its strategy statement. There will, therefore, be opportunities for discussion on this. The section also provides for the renewal of the statement every three years.
Section 26 outlines how funding will be made available, section 27 sets out how the commission shall prepare its accounts and section 28 requires the commission to prepare an annual report.

In Part 3, comprising sections 29 to 42, inclusive, the commission's legal and enforcement powers are set out. Section 29 contains a number of definitions relevant to this part of the Bill, again, including a definition of human rights that is appropriate to enforcement of rights guaranteed by the Constitution or otherwise given force of law within the State, including the European Convention on Human Rights and other international instruments that are ratified by the State.

Section 30 requires the commission to provide information to the public and keep under review the effectiveness of any legislation relating to the protection and promotion of human rights and equality.

Section 31 deals with a very important issue, namely, the preparation of codes of practice. These are a very important tool of the commission and can address issues such as the protection of human rights, elimination of discrimination, promotion of equality of opportunity in employment and promotion of equality of opportunity in regard to matters covered by the Equal Status Act 2000. Obviously, the commission would be required to consult widely, including with relevant Government Departments, prior to the submission of a code of practice. Once signed into law by the Minister of the day, a code of practice is admissible in evidence in proceedings before a court or tribunal. Therefore, the codes of practice are a very important power that will be available to the commission.

I regard this as a power that can be of crucial importance in improving standards of compliance with best human rights and equality practice. It is interesting to note that, to date, only one such code of practice has been prepared and approved, namely, that in regard to sexual harassment and harassment at work. I believe there is great potential for the commission to break new ground with these codes of practice. Instead of relying only on law and enforcement, it should not lose sight of the importance of organisational culture and the impact it can have on equality, and the contribution an appropriate code of practice can have is something we should encourage. I have no doubt the commission will use that power.

Sections 32 to 39, inclusive, are a continuation, with technical amendments, of provisions of existing equality legislation. Section 32 allows the commission to invite an undertaking to undertake an equality review and, following such a review, to prepare and implement an equality action plan. This is another important opportunity to have higher standards. The commission may also carry out a review or prepare an action plan on its own volition if it considers it appropriate to do so. To be subject to such a review and action plan, an organisation must have 50 or more employees.

Section 33 provides that, in connection with preparing either an equality review or an equality action plan, the commission may serve a substantive notice on a person to supply information with regard to an equality review or action plan. Again, this is a very useful and strong power to ensure equality is in place. Such a notice may also be served if an organisation fails to implement the requirements of an equality action plan as outlined in section 32. This section provides an opportunity for an organisation to appeal such a notice. Section 34 details how such a substantive notice might be appealed.

Section 35 introduces another important power. It outlines how the commission may, of its own volition or at the request of the Minister, conduct an inquiry. This section continues in force the existing powers of the Equality Authority and of the Human Rights Commission to conduct inquiries, which have not been used in practice in the precise manner set out in the existing Acts. In order to ensure that the power to be vested in the new commission is a real one which can in future be invoked in practice, the inquiry power has been redesigned, modelled on that contained in the Commissions of Investigation Act 2004. Hopefully, that will be used in the years ahead.

The detailed procedural and other rules in regard to an inquiry are set out in Schedule 2. In brief, it is intended that an inquiry may be carried out in respect of a public or private organisation, institution, sector of society or geographical area if there is evidence of a serious violation of human rights or equality of treatment obligations in respect of a person and the matter is of grave public concern. Prior to conducting such an inquiry, terms of reference must be drawn up and laid before each House of the Oireachtas and then published in the national media. This is a very serious initiative to take. The details on how it should be used are laid out very clearly in the legislation.

Section 36 provides for the publication of the equality and human rights compliance notice following or in the course of an inquiry, and goes into detail on how that would be addressed. Section 37 provides an appeal mechanism. Section 38 provides a register of all equality and human rights compliance notices.

Section 39 provides that, on the application of the commission, the Circuit Court may grant an injunction against a person who does not comply with a human rights and equality compliance notice. Again, there is recourse to the Circuit Court in that provision.

Section 40 provides for the provision of legal and other assistance by the commission. That can include the provision of legal advice and powers of the Equality Authority and the Human Rights Commission to conduct inquiries.

I have a lot of detail on many other sections. Senators will be clear that there are quite a number of examples of initiatives that have been taken already in terms of human rights, for example, in regard to the Garda Racial, Intercultural and Diversity Office and the human rights conference in Dublin in December, where we discussed best practice in human rights education and training for civil and public servants. There has also been the Irish Prison Service initiative, the human rights training programme, which has received a lot of international acclaim and led to many international visitors coming here to see the work being done in that area.

The point I want to draw out here is that the work already undertaken by the commission with its human rights education and training project across the civil and public service is an excellent example of the "soft" and "persuasive" powers which I believe will be influential, along with the strict enforcement powers, in the development of this positive duty. This will ensure our front-line public servants are sensitive to the specific difficulties that arise in various situations, for example, in dealing with migrants to our shores. This can be very important in ensuring fair treatment of people who may have been marginalised in their country of origin. Many types of training can be undertaken by the commission which are very helpful in terms of the development of a key understanding of human rights and the international challenges in that regard.

Moving on to Part 4, sections 43 to 51, inclusive, make provision for a range of technical and transitional issues consequential on the dissolution of the existing bodies and to ensure continuity as between these bodies and the new commission which replaces them. These are all standard provisions.

Part 5 comprises sections 52 to 55, inclusive. Section 52 is a technical section, to provide a definition of the European Convention on Human Rights Act 2003. Section 53 includes references to Protocols Nos. 11 and 14 in the definition of the convention in our domestic legislation. Protocols Nos. 11 and 14 both relate to the workings of the European Court of Human Rights. The reforms in Protocol No. 14 are designed to address the problem created by the large number of inadmissible or repeat cases so as to enable the court to concentrate on the most important cases. Protocol No. 14 also made new rules concerning the terms of office of judges of the European Court of Human Rights. The definition of "convention provisions" is also amended by including reference to Protocol No. 13, which relates to abolition of the death penalty.

Section 54 provides for a new section in the principal Act which will allow an enforceable right to compensation for a person whose detention is found to be in breach of Article 5 of the European Convention of Human Rights and where the detention was as a result of judicial error. This is a requirement of Article 5(5) of the convention. There is a background to this, with which I am sure Senators are familiar.

In 1997 it was decided that D.G., then a minor, who was considered to have a personality disorder and be a danger to himself and others should be placed in a high support therapeutic unit for 16 to 18 year olds. However, in June 1997 the High Court decided, as there were no secure educational facilities available, that he should be detained in St. Patrick's Institution. His detention was appealed to the Supreme Court which held that a child could be detained in a penal institution for a temporary period until secure detention was arranged for the child outside the jurisdiction. The Supreme Court's decision was appealed to the European Court of Human Rights which found that Ireland was in breach of the convention in that the detention was not for the purposes of educational supervision in accordance with Article 5(1)(d) and that there was a further violation of the convention as there was no enforceable right to compensation in accordance with Article 5(5) in the case of unlawful deprivation of liberty on foot of a judicial error.

Ireland is required to execute this judgment. This means ensuring persons who are detained in contravention of the provisions of Article 5, no matter what the circumstances are, including judicial error, have an enforceable right to compensation. The amendment is the only one remaining for implementation in regard to the judgment. Currently there is no enforceable right to compensation where the detention was brought about by a judge because there is judicial immunity in Irish law. Section 55 provides for the inclusion of the up-to-date version of the convention and Protocol 13 as Schedules to the Bill.

The Dáil completed its examination of the Bill on 4 June and, as Senators will know, there were some amendments. They will arise during the discussion, but I will mention some of them briefly.

In section 10(2)(d) and (e) we separated the wording to give greater clarity to the provisions on human rights. This suggestion was made on Committee Stage by a number of Deputies.

In section 21 we made an amendment arising from discussions on Committee Stage to make the director the Accounting Officer for the Vote of the commission.

In section 25, following an input by non-governmental organisations and other bodies, with Deputies in the House, we included an amendment to provide that the chief commissioner should set out his or her personal key priorities and objectives for his or her term of office. This amendment was made in response to points on the need for clarity on the objectives. It was considered useful that they be spelled out.

I emphasise the importance of the Bill in the context of the Government's commitment to strengthening the State's human rights and equality infrastructure. I am looking forward to our discussion and hearing the contributions of Senators. I am very keen to see the Bill enacted at an early date in order that the commissioners designate can be formally appointed to the new body. Senators will agree that the merger has been a long time in the making and I know that the commissioners designate are as keen as we are to have a reformed and solid legislative base in place for their important work on human rights. I commend the Bill to the House.