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

The first point to note about the legislation - I realise this is different to what Senator Zappone is suggesting - is that section 35 makes reference to the ability the commission has in respect of inquiries. It is worth considering this as one reference point in respect of the serious powers the commission will have. The commission, either of its own volition or, if requested by the Minister, may conduct an inquiry if it is considered by the commission that there is a body, public or otherwise, suspected of a serious violation of human rights or equality of treatment obligations, or where there is a violation of or systemic failure to comply with human rights or equality of treatment obligations. That is an important power already in the legislation and it should form part of the context when we reflect on the substance of Senator Zappone's amendment.

Section 42 introduces a positive duty on public bodies to have due regard to human rights and equality and reflects this commitment in Government for National Recovery 2011-2016 which states, "We will require all public bodies to take due note of equality and human rights in carrying out their functions". I understand the point Senator Zappone is making with the amendment. I am keen to work through my thinking on the matter and any suggestion that I make in respect of how to take this forward.

The commission will assist public bodies to comply with the positive duty by producing guidelines and codes of practice as outlined in section 31. This is an important interaction the commission can have with public bodies. I offer one example from the day before yesterday which was high-profile in nature. It relates to the absolute need for public bodies to develop the cultural competence to engage with the new communities who have come to Ireland in the past ten or 15 years, particularly those who have most difficulty in engaging with authority figures, perhaps, or who are otherwise vulnerable. I am referring to the report I published by Ms Emily Logan, under section 42 of the Garda Síochána Act, into the events surrounding the taking of two young Roma children from the care of their parents.

At the launch of the report on Tuesday I made the point that members of An Garda Síochána carry out important and difficult duties. Often, they have to make hard decisions in real-time, frequently without access to perfect information. The report has found that well-intentioned gardaí acting in what they believed to be the best interests of the children concerned made the wrong decision on the day. Unfortunately, these wrong decisions had a very distressing outcome for the families concerned. I apologised on behalf of the State and the Acting Garda Commissioner made her apology, as did the Taoiseach, for these events. The report found the fact that the families concerned were members of the Roma community played a part in the decision-making process. Specifically, the report found that while there may have been other factors which informed the Garda actions, the fact that the families were Roma was a significant factor in these events.

It is important to note that the report found no evidence, through the examination of these two cases, of ethnic profiling at a systemic level in the Garda. However, Ms Logan found that the actions of the gardaí involved in these cases on the day conformed to the definition of ethnic profiling. The report has not found that the gardaí involved were motivated by conscious racism. Indeed Ms Logan was at pains to point out that in respect of the Tallaght case the report highlights the Garda officer's extensive commitment and contact with the local community, his community policing work and his voluntary engagement with minority communities.

The report has found - this is where I am linking it to Senator Zappone's amendment - that wherever there is a possibility that decision-making in respect of a marginalised community, such as the Roma, may be affected by negative stereotyping, An Garda Síochána and other bodies would have a positive duty to be especially vigilant to ensure that these stereotypes are challenged, identified and corrected. Of course, this applies to all public bodies that must develop such cultural competence to interact effectively with minority communities. One of the points made following the publication of the report was the importance of training and that if we do not put the proactive training in place there is a risk of this happening, even unconsciously. Training is very important as is consultation with, for example, the Roma community and Traveller interests.

I am establishing an implementation group to take the work and the recommendations forward. It is a cross-departmental group, involving consultation with other organisations.

This brings me to the positive duty provision in the Bill and to the Senator's suggestion for its improvement. That is a very good example of the type of work that must be done. The idea in section 42, simply put, is to put the positive duty on public bodies to conduct their business in a manner that is consistent with individual human rights to reflect the commitment contained in the current programme for Government. I believe the commission will have a very important role in the development of this concept, so it is meaningful in terms of developing and promoting equality in human rights across the public sector. There is huge potential for this type of work to be integrated more systematically than it has been in the past.

As I said, training will be an important element. We should recognise the work the Irish Human Rights Commission already does in respect of training. The civil and public service has had tailored training. The members of An Garda Síochána have had some training, as have the Irish Prison Service, local authority officials and civil servants. This should be ongoing. Given that there are new recruits and changes of personnel, there is a need for ongoing training and the report that was published yesterday found that even though particular gardaí were doing a great deal of specific work with the communities, they may not have had that specific training.

There is potential in the legislation to use the positive duty function to persuade and promote best practice by highlighting good examples to which other bodies could aspire. The report yesterday made it clear that we must do this work. One of the points on which I wish to elaborate is how much work has been done. The potential here is to see the Irish Human Rights and Equality Commission working in partnership with Departments and other relevant statutory bodies to ensure that the potential contained in this provision is developed to the full.

I have given that long background context because I understand the Senator's thinking. I am concerned about part of the proposed amendment relating to the imposition of a review or action plan in subsection (7). What must happen more than anything for genuine reform to take place is that the senior management of the organisation must take ownership of the process. It is very much about persuasion and support. The commission is well placed, once it has developed a good working relationship with Oireachtas committees, to address any instances where a public body refuses a request or presents a review or action plan that is inadequate. I do not believe the CEO of any of the public bodies we are discussing would wish to have to appear before an Oireachtas committee to explain why he or she had not done this type of training or were not fulfilling the obligations that are envisaged under the legislation. They would not wish to be in that position.

Part of the amendment is also suggesting that the commission might work with a public body to identify deficiencies and to look at areas that might require more attention and support it in undertaking a review or putting an action plan in place. That is something I would like to consider. I do not believe it is a power that should be used routinely, but strategically to ensure there is learning and that work can be done in a collaborative way. For example, if there was an organisation or public body where problems were emerging in this area and it was not doing this work, the commission could work with it.

There is already the power of inquiries, and there is the routine work that must be done. The Senator appears to be suggesting something that is somewhere in between. Clearly, it cannot have the same power as the inquiries, which is dealt with in a different section. My suggestion is that we do further work on this amendment - there are some drafting issues with getting this right - so we do not move into the territory of inquiries. We can return to it on Report Stage and suggest a revised text, if that is possible and I hope it will be. I will see if I can return with a formulation that captures what the Senator is suggesting but is not moving into the territory surrounding inquiries, which is already dealt with.