Senator Zappone calls for greater co-operation between the new Human Rights body and the Oireachtas

08.07.2014

The Irish Human Rights and Equality Commission Bill 2014 was debated at the  Committee Stage in the Seanad on July 3rd.  Amendments tabled by Senator Katherine Zappone and Senator Jillian van Turnhout  were debated with Minister Frances Fitzgerald.

Read Senator Zappone’s remarks and the Minister’s responses here. 

Senator Katherine Zappone: I move amendment No. 3:
In page 21, line 15, after “appropriate” to insert the following:
"and referred for consideration to the Joint Oireachtas Committee with particular responsibility for human rights and equality".

The objective of both amendments is to seek to encourage closer co-operation between the new body and the Oireachtas.
There are international, European and Irish elements in the background to our recommendation of these amendments. Internationally, in February 2012 the United Nations Office of the High Commissioner for Human Rights organised an international gathering to develop principles to guide the interaction between national human rights institutions and parliaments. Its rationale for the gathering was rooted in its desire to assist implementation of the Paris Principles, which are foundational principles for the establishment of effective national human rights institutions. The Paris Principles state national human rights institutions shall establish effective co-operation with parliament. The document published subsequent to that 2012 gathering is entitled the Belgrade Principles. That is the short title and sufficient for now. Principle 21 states: "Parliaments should identify or establish an appropriate parliamentary committee which will be the NHRI’s main point of contact within Parliament".
 

At European level, on Second Stage I mentioned that the Parliamentary Assembly of the Council of Europe had produced a report in May on a similar topic of improving co-operation between national human rights institutions and parliaments. I am pleased that the Bill includes many of the elements included in the report's resolution, which was adopted unanimously by the Parliamentary assembly. Section 6 of the resolution states the assembly calls on national parliaments of Council of Europe member states to "set up, where it does not yet exist, a parliamentary committee responsible for human rights [and] equality". It is this committee with which the national human rights institutions has a formal relationship.
 

The Irish background to the proposals on foot of the Belgrade Principles and other international initiatives is that the Oireachtas Joint Committee on Justice, Defence and Equality met members of the IHREC designate in March to consider ways to ensure deeper engagement between the committee and the IHREC. One of the items we agreed to was to see whether there was a legislative basis for the engagement of the IHREC with committees, including a committee with specific responsibility for human rights oversight. Both amendments seek to ensure closer co-operation between our committee system and national human rights institutions to support parliamentary involvement in the oversight of human rights and proper integration of human rights obligations in law-making.rights and proper integration of human rights obligations in law-making.

Senator Ivana Bacik: I have spoken with Senator Katherine Zappone and the Minister about this issue. We must encourage greater co-operation between Oireachtas joint committees and the new institution, but I am not sure if the best way to do it is through legislation. We have had that debate and I look forward to the Minister's response. In spirit, we agree with the principle that there be co-operation. Senator Katherine Zappone has spoken eloquently about our record in the Joint Committee on Justice, Defence and Equality in meeting the members designate of the commission.


Deputy Frances Fitzgerald: I agree with the sentiments expressed by Senator Katherine Zappone and note that the amendment is also supported by Senator Jillian van Turnhout. My advice is that it is not appropriate to impose obligations such as these on the Oireachtas in primary legislation. Under Article 15.10 of the Constitution, the Houses of the Oireachtas regulate their internal affairs and this is done under Standing Orders. I recognise and appreciate some of the points made by Senator Katherine Zappone on this legislation. It is included in the legislation that a strategy statement and an annual report will be submitted directly to the Houses. It is being set up under the Paris Principles which call for strong engagement between the body and national parliaments. I would like to see the Oireachtas responding actively when these reports are received. It can be arbitrary as to which annual report is discussed by the committee and as such, it is not built into legislation. Generally, it is left to the discretion of the committee to call in the body after an annual report is presented. It varies depending on the committee's priorities and how important it thinks it is. Clearly, one wants reports and strategy statements coming from the commission to be discussed by the committee. The committee with responsibility for human rights and equality is the place where we expect the reports to be discussed.


I am happy to support the Senator in putting this request to the Committee on Procedure and Privileges. On that basis, perhaps we might try to progress the issue under Standing Orders. I cannot guarantee that it will be accepted, but it is the appropriate way to move forward, rather than by an amendment to the Bill. Given the differentiation between the work of the Houses of the Oireachtas and what we can include in legislation, I am advised it would not be the best way to deal with the amendment. I am happy to pursue the issue raised by Senator Katherine Zappone with the Committee on Procedure and Privileges and take the recommendation forward. Perhaps it is an innovative way in the Houses ensuring particular Bills, about which Members feel strongly, have substance in respect of Standing Orders.
 

Senator Katherine Zappone: I thank the Minister for her response and the incorporation into the Bill of the requirement that the strategy and annual report be laid before the Houses of the Oireachtas. This is a progression from the last Irish Human Rights Commission and a positive development. We were attempting to make it more interactive and dynamic. I hear the response of the Minister that it is not possible to do what we ask in the Bill. Perhaps it might be done under Standing Orders and I appreciate the willingness of the Minister to support us. Senator Ivana Bacik knows, being part of the Joint Committee on Justice, Defence and Equality, that we are looking at the possibility of doing this as a committee. If we make a move to specify our human rights obligations which may have something to do with the Irish Human Rights and Equality Commission, we would appreciate the support of the Minister. I accept what she says and thank her for her support in a different way.
 

Senator Katherine Zappone: I move amendment No. 6:

In page 34, between lines 19 and 20, to insert the following:
“(5) Where the Commission considers that in any public body there is evidence of a systematic failure to comply with human rights or equality of treatment obligations, the Commission may invite the public body to⁠—
(a)carry out an equality and human rights review in relation to that public body, or
(b)prepare and implement an equality and human rights action plan in respect of that body, or both.
(6) The Commission may, if it thinks it appropriate, itself⁠—
(a)carry out an equality and human rights review,
(b)prepare an equality and human rights action plan.
(7) An equality and human rights review or equality and human rights action plan may relate to⁠—
(a)equality of opportunity or human rights generally, or
(b)a particular aspect of human rights or discrimination, within a public body.
(8) Where an equality and human rights review or equality and human rights action plan relates to matters that are covered by⁠—
(a)the Act of 1998,
(b)the Act of 2000, and
(c)human rights as defined under section 29,
the review or action plan, as the case may be, shall deal separately with those matters and each part of the review or plan, as the case may be, shall be treated as a separate equality and human rights review plan or equality and human rights action plan, as the case may be.”.


I will begin by outlining the importance of equality reviews of organisations and the potential impact of integrating these with a human rights review of the same organisations. Then I will outline our rationale for placing the amendment within section 42, which deals with public bodies, rather than the more obvious section 32, which deals with equality reviews and equality action plans.

Equality reviews are a potentially significant tool for embedding good practice in organisations. They go beyond strict compliance with the law to securing or even coaxing equality of opportunity. We believe that combined with a human rights review, the mechanism could provide a means of building good practice, particularly in respect of proposed public sector duty, as covered in section 42. More generally, it would enable the commission to develop an integrated approach to the human rights and equality strands of its mandate. I referred to the importance of this on Second Stage. Equinet, the European Network for Equality Bodies, has published research on mergers between equality and human rights bodies. The network noted in its research that in some instances mergers of equality and human rights bodies have resulted in a near invisibility of work in one area. The network concludes that equality and human rights mandates must be clear and linked and that a merged body should have the capacity and powers to undertake a multidimensional approach to issues and initiatives.

The Bill affords us an opportunity to secure an integrated approach to the human rights and equality strands of the commission's work. The Minister is aware, as are all of us, that the Equality Authority has built up a considerable body of good practice and guidance on the equality reviews and action plans. Again, as we are aware, reviews are a feasible alternative to the more protracted option of undertaking an inquiry. This good practice can be drawn on and integrated with a human rights review. That is the general rationale in respect of incorporating a human rights review with an equality review.

I will outline the reasoning for the placement of the amendment. Since human rights, as defined in section 29, does not for the most part impose direct obligation on private entities, it would not be possible, although it might be desirable, in the context of how human rights are defined under section 29, which applies to section 32, to suggest that a human rights review is conducted along with an equality review, as outlined in section 32, because that section applies to the private sphere. Instead, we are proposing that section 42, relating to the public duty function of the Irish Human Rights Commission, is amended to include the practice of carrying out an equality and human rights review in respect of a public body. It is fantastic and a progressive move that this element is in the Bill. We suggest the trigger for such an integrated review should be set at the level, to use the language of the amendment, of evidence of a systemic failure of the public body to comply with human rights or equality of treatment obligations. In this case, evidence would refer to the commission having a reasonable basis for believing that there is a systems failure with regard to human rights and equality obligations. If the commission has reason to believe this is the case, it may invite the public body to carry out an equality and human rights review and prepare and implement an equality and human rights action plan. It would be terrific to see the new body developing this new practice and we believe it is an excellent opportunity to integrate the two strands.
The amendment proposes that the commission may, if it deems it appropriate, carry out the review and prepare an action plan. The amendment describes what such a review and action plan relates to and adopts the same language as section 32 with regard to equality reviews for private entities.

Deputy Frances Fitzgerald: 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.
 

Senator Katherine Zappone: I thank the Minister for her fulsome response. It was very helpful and necessary. The report the Minister published provides a brilliant example of the type of practice we are suggesting. A similar type of practice could be developed. The Minister referred to the report and I commend her on its publication, the way she responded to it, the public apology and the swiftness with which she dealt with it. It is very heartening and many other people felt that way too.
The Minister's response to the amendment is very much in tune with what we were trying to do, which is to pitch it somewhere in between. If there are some technical difficulties in that regard, it would be wonderful if the Minister took the opportunity to look at those and return with a suggestion of something better from a technical perspective that would still incorporate the substance of what we are suggesting. I appreciate her recommendation.

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