General Scheme of the Irish Human Rights and Equality Commission Bill

Transcription

1 General Scheme of the Irish Human Rights and Equality Commission Bill Comments by the Department of Justice and Equality, in response to the General Observations of the Human Rights Commission The paramount purpose of the General Scheme of the Irish Human Rights and Equality Commission Bill 2012 is plain: to create an independent National Human Rights Institution with the powers and functions of promoting and protecting human rights and equality. The intention is to carry this purpose through the entire Bill. There is a Paris-Principles line of thought, reinforced by the General Observations of the Sub-Committee on Accreditation of the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights (ICC) behind the architecture of the General Scheme. Combining the strengths of the Irish Human Rights Commission (HRC) and the Equality Authority The new Irish Human Rights and Equality Commission (IHREC) will possess enhanced powers and independence. The Department welcomes the HRC s publication of its Observations on the Heads of the Irish Human Rights and Equality Commission Bill 2012, and is grateful to the HRC for raising issues of importance to it. The Department also values the role of the Oireachtas Committee on Justice, Defence and Equality, to which the Minister has referred the Heads, in raising public awareness and focusing public scrutiny of the General Scheme of the Bill, and in suggesting ways in which it can be improved. Of course, the objective of publishing the General Scheme of the Bill is to expose it to wider scrutiny so that the Bill can be improved. In this regard, we have fully considered the HRC s submissions in relation to the General Scheme 1. The HRC has also provided a number of helpful drafting suggestions; these and other comments received, including the views expressed by the Oireachtas Committee on Justice, Defence and Equality, will be taken into account in the ongoing development of the Bill. A number of issues raised in the HRC submission call for brief comment. 1 The independence of the IHREC The HRC questions whether the General Scheme provides for an independent, transparent and consultative appointment process for members of the IHREC. 2 The Department acknowledges that General Observation 2.2 on Selection and appointment of the governing body in the General Observations of the 1 On 21 June 2012, the Department had a very productive meeting with the HRC and with colleagues from the Department of Foreign Affairs and Trade to clear up some misunderstanding and clarify important issues. 2 HRC Submission, pp

2 Sub-Committee on Accreditation of the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights (ICC) 3 provides guidance in this matter. The General Observation notes the critical importance of the selection and appointment process of the governing body in ensuring the pluralism and independence of the National Institution. It then emphasises the following factors: a transparent process; broad consultation throughout the selection and appointment process; advertising vacancies broadly; maximising the number of potential candidates from a wide range of societal groups; and selecting members to serve in their own individual capacity rather than on behalf of the organization they represent. Some specific comments warrant a response. [1] The HRC would prefer the Oireachtas to control the selection process. 4 The Department considers that the selection of the Selection Panel is an executive, rather than a legislative, function. Ultimately, the Government chosen by the electorate cannot divest itself of all responsibility for the overall process of ensuring a fit-for purpose NHRI is selected. The calibre and independence of the members of the Selection Panel can be judged by the public once they are in place. The Department favours the idea that the Joint Oireachtas Committee on Justice, Defence and Equality has an opportunity to assure itself (i) that the Selection Panel is independent and fit for the task of selecting members of the IHREC, and (ii) that the slate of persons nominated by the Selection Panel is sufficiently pluralistic and that the nominees are suitably qualified. [2] The selection criteria and the process to be used by the Selection Panel will be published when applications are invited. The criteria will be transparent and will be binding on the Selection Panel. 5 The Department is committed to setting out objective authoritative criteria for the selection of a pluralistic slate of nominees comprising persons with proven expertise, abilities, knowledge and expertise in promoting and protecting human rights and equality. [3] As to the HRC s concern about the absence of a provision prohibiting government representation on the board of the IHREC, it is implicit in Head 13 that there will be no Government nominee or representative on the IHREC. The independent nature of the selection process proposed will ensure that the Government cannot appoint commissions or secure representation on the board. To put the point beyond doubt, this can be made explicit in the Bill. 6 [4] The Bill does not expressly provide that members of the IHREC serve in their individual capacity. Even though the manifest intention of the Heads is that the members of the IHREC enjoy independence (See Head 8(2) & (3)), the Department agrees that an explicit requirement that the commissioners each act in his or her own independent capacity would be a beneficial addition HRC Submission, para HRC Submission, para General Observation 2.3 assumes that government representatives can be appointed to the boards of NHRIs but requires that they do not have decision-making or voting capacity. 2

3 [5] The HRC has concerns about the references to Government agreement in Head 13 (5). 7 This provision reflects the fact that the Selection Panel will convey its recommendation to the Government and it is then the Government s responsibility to bring the necessary resolutions before the Houses of the Oireachtas. The appointment process cannot come before the Houses for approval without this step. Head 13 (6) makes it clear that the Government must accept the Selection Panel s recommendations save in very exceptional circumstances. [6] The HRC raises the issue of fees for commissioners. 8 Provision for payment of fees to members of the Commission is contained in Head 13 (8). [7] The HRC expresses its concern that Head 14, which provides for the power to dismiss commissioners in certain circumstances, is not precise enough. 9 It suggests that the power to dismiss a commissioner should rest with a majority of the IHREC. The Department s view is that dismissal of a member of the Commission (paragraphs 70 to 72) would arise in clearly difficult and wholly exceptional circumstances and it is on balance better not to place this burden on the other members of the Commission itself. A dismissal of a commissioner must be made in strict conformity with the substantive and procedural requirements set out in Head 14. This is consistent with General Observation 2.9 of the ICC s Sub-Committee on Accreditation. The terms unable or unfit must not be divorced from the phrase to carry out his or her function in Head 14 (2)(b)(iii). It requires that the commissioner in fact lack the capacity to carry out his functions. [8] The HRC objects to Head 26 dealing with Accounts and Audit on the ground that it signals a significant eroding of the administrative independence of the new body. 10 More specifically, it suggests that subjecting the IHREC to auditing by a Government Department is incompatible with the Paris Principles. Head 26 is but a routine application of the key public-interest principle of financial accountability on the part of public bodies, including independent, nondepartmental public bodies like the IHREC. [9] It will be noted that the Selection Panel is responsible for making a recommendation for appointment to all positions on the Commission, including that of Chief Commissioner. In the past the President of the Human Rights Commission was directly appointed by the Government of the day without a public selection process. On this basis alone, the General Scheme provides for a significant enhancement of the independence and transparency of the selection process as compared with what went before. There is a very clear distinction between independence on the one hand and financial and audit accountability on the other. The independence of the new Commission in the pursuit of its mandate is and will be sacrosanct. The 7 HRC Submission, para HRC Submission, para HRC Submission, para HRC Submission, para 87. 3

4 Heads in particular the text dealing with the selection of the new Commission, the enhanced range of powers and functions, direct reporting to the Oireachtas, the requirement for adequate funding, and the overt reference to the Paris Principles as the guiding inspiration - seek to establish this very clearly in law. The HRC s suggestion that this might be reinforced by an explicit statement that the Commission shall be independent in its role and by a more direct statement that individual Commissioners will be independent and not representative of any specific organisation or sector is sound. Seeking to inject authority into the Paris Principles in favour of this objection to Head 26 is misplaced. The Paris Principles in paragraph 2 under the heading Composition and guarantees of independence and pluralism - require that systems of financial control should not compromise the independence of the national human rights institution. General Observation 2.10 of the ICC s Sub-Committee on Accreditation assumes the propriety of Government having the power to regulate the administration and expenditure of public funds by an NHRI. Importantly, however, it states that such regulation must not compromise the NHRI s ability to perform its role independently and effectively. It adds: For this reason, it is important that the relationship between the Government and the NHRI be clearly defined. On this basis, the Government may provide for the application of the audit mechanisms that apply to public bodies generally to an NHRI. There is an inalienable obligation on all of us to ensure that the various systems in place are operated as they are intended to ensure that public money is well spent and accounted for and that all corporate governance obligations are fully adhered to. For public bodies, our system requires that the body have in place its own financial management and audit committee, be subject to periodic review of systems and processes by a departmental internal audit service and to annual audit by the Comptroller and Auditor General. These arrangements are not about control, but about demonstrating compliance with all good corporate-governance standards. The IHREC s position, reputation and credibility will be strengthened by showing that, as a body with enforcement powers, it itself complies fully and is publicly seen to comply fully - with all corporate governance obligations. The Department believes that the arrangements in the General Scheme in relation to funding, estimates and audit are fully compliant with the Paris Principles and will not diminish the independence of the IHREC in any way. 4

5 2 The definition of human rights: Head 3 and Head 30 The HRC objects to the two definitions of human rights in the General Scheme, one of which is in Head 3 and the other in Head It submits that the definition in Head 30 for the purposes of exercising powers and functions in relation to enforcement and compliance is too restrictive, and that it is likely to prejudice the ability of the IHREC to address itself to breaches of human rights or equality. In this connection, it mentions in particular the power of inquiry and the function of providing amicus curiae assistance to the courts by providing information and analysis of international human-rights law. In response the Department s view is that the distinction between the two definitions of human rights turns on a real difference between the types of functions or powers the IHREC may exercise, and that the narrower definition of human rights under Head 30 reflects genuine rule-of-law and constitutional considerations. The overarching objective is to strengthen and enhance the IHREC s powers and functions. The Department undertakes to seek legal advice on this question. There are three points. [1] The definition of human rights under Head 3 has the merit of elasticity for the purposes of promoting human rights. It does not confine the IHREC to advocating reform on the basis of specific rights that have been incorporated into the domestic law of the State. The elasticity of the definition of human rights will allow the IHREC to set its own tasks and become a real force for reform. Over time, the IHREC will be able to build up a valuable corpus of reasoned opinions on emerging human-rights issues. It can apply its reasoning appropriately to the particular issues arising from novel humanrights problems in their infinite variety. The HRC suggests that the definition of human rights in Head 3 is inapt because it may not reflect international standards binding on Ireland and instances the resolutions or declarations of the Council of Europe, Organisation for Cooperation and Security in Europe (OSCE) or the United Nations. 12 This comment appears to be premised on a misunderstanding of the legal effects of these measures. [2] This brings us to the second, narrower, definition of human rights. The definition of human rights under Head 30 is a different statutory creature from the wider concept of human rights. Under Heads 30, 31, 33, 34, 35 and 36, the focus of the IHREC s operations shifts to compliance with, and enforcement of, applicable human-rights standards in force in the domestic context. Before the IHREC decides to enforce human-rights or equality law, the subject of its enforcement action must be particularised. Thus, there must be first of all an allegation that someone has breached domestic human-rights or equality law. The IHREC must ask itself whether it knows enough to make it 11 The text of both definitions is set out in an Appendix for ease of reference) may inadvertently reduce the capacity of the Commission to take needed action. 12 HRC Submission, para

6 reasonable to exercise its enforcement power in the circumstances. What it needs to know is whether there is an allegation asserting a breach of domestic human-rights or equality law as a matter of fact that has a reasonable prospect of being proved correct. If there is such an allegation, then the intervention upon which the IHREC may reasonably embark is whether under existing domestic law, including incorporated international human-rights law, the person who is the object of the investigation is responsible for a violation. It is reasonable for the IHREC to exercise its powers only when it reasonably believes that there has been a breach of domestic law. It would be a particular injustice to find a person or entity responsible for a breach of international human-rights standards that have not been incorporated into domestic law. Moreover, making an adverse judgment like this would involve usurping the role of the Oireachtas, under Article 29 of the Constitution, in relation to international agreements. It would also offend the rule of law under which a person should be able to know in advance, without undue difficulty, what obligations he or she has under the law, and should not have legal obligations retroactively imposed upon him or her. [3] Turning to the HRC s concerns about the scope of the power of inquiry and the function of giving amicus curiae assistance to the courts, 13 the Department makes the following comments. Power of inquiry. In relation to the power of inquiry, the General Scheme is based on the Department s 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 (i.e. the narrower definition would have to be satisfied), but that the Commission could consider best practice and international standards in the course of the inquiry and in its conclusions and recommendations (i.e. could in that regard draw from the wider definition). That view is either right or wrong in law; it is clearly a point of substance for legal advice and if it is necessary, the approach in the Bill will be changed to ensure that the clearly desirable objective of creating a robust and effective power of inquiry is achieved. Amicus curiae. In amicus curiae cases, it is common ground that a case cannot come into being or be before a Court unless there is an allegation of breach of law or duty against some entity. So, there cannot be a case in which the IHREC might have an interest in assisting the Court unless the threshold of the narrower definition of human rights has been crossed by the parties. The question is whether the Commission, having crossed this threshold in the company of the parties involved, would be prevented during the case from offering assistance to the Court with legal arguments or analysis that draws on the wider definition of human rights. Indeed, it is the practice of the courts, in their interpretatory process, to consider developments in comparative and international human-rights law when doing so has the potential to illuminate the meaning of concepts in domestic law. On this foundation, the Department does not think that the definition of human rights in Head 30 would impair the IHREC s ability to assist the courts. The 13 HRC Submission, paras & paras

7 intention is that it would not be so restricted. From the Department s perspective, the options are either to clarify that the technical architecture of the General Scheme does not have that effect, or to fix the issue at drafting stage. That is a matter for legal advice. The HRC has also made the point to the Department that it is not at all clear, as Heads 30 to 35 are constituted, that the narrow definition only applies to the engagement of those functions, rather than their application and that the Department s understanding that the IHREC would have a broad human rights mandate when applying the functions is not expressly or implicitly reflected in the Heads of Bill. This is a good summary of the issue; the Department is happy to confirm its express intention that the narrow definition applies to the engagement of these functions only, and not to their application. As indicated above, the drafting issues are for legal advice in the production of the Bill so as to put it beyond doubt that the express intention has been achieved. 3 Other enforcement and compliance issues [1] Best practice guidelines On reflection B. ii on page 55 of the Heads: ii. To prepare, in consultation with relevant stakeholders, guidelines for promotion of best practice in human rights and equality for specific businesses, groups, sectors or geographical areas. is a promotional rather than an enforcement role and should be placed in Head 11. [2] Other enforcement powers In regard to the other enforcement powers (e.g. codes of practice, issue of reasoned opinions, taking of own name legal actions and provision of legal assistance), the narrower definition of human rights is the appropriate one as each of these mechanisms relates solely to enforceable rights. The suggestion of including human rights issues in the equality review and nondiscrimination notice mechanisms is a worthwhile one which will be examined further at drafting stage. 4 Other issues [1] Paragraph 6, OPCAT and CRPD The question of determining a national preventive mechanism for each of these two international instruments is not one for this Bill, but falls to be addressed elsewhere. It should be noted that the Working Group acknowledges that there are other options in relation to OPCAT and that it will be a matter for Government to decide in due course on the appropriate 7

8 structure to fulfil this role and that the Working Group did not make a recommendation in relation to CRPD. It is important to note that Ireland does not become party to treaties until it is first in a position to comply with the obligations imposed by the treaty in question, including amending domestic law as necessary. [2] Paragraph 50, Regulations The HRC expresses concern about the power to make regulations in Head 5. As the Department indicated at the meeting with the HRC, this concern is based on a misunderstanding of the text. This is a technical provision, which does not have the implications suggested. The power to make regulations and the word prescribed appear only in Head 36 (j) which allows for individual public bodies within the miscellaneous category covered by (j) to be prescribed for the purposes of the human rights and equality duty of public bodies. The text of this Head clearly does not allow the founding Act for IHREC to be amended by regulation and it is not reasonable to present it in this way. The constitutional position is that the Minister must confine his or her power to make delegated legislation within the four corners of an intelligible principle or policy stated in the parent statute. 14 The power to make regulations could not be used to dismantle the independent architecture of the IHREC. [3] Paragraph 52, Engagement with civil society The General Scheme makes specific in this regard in a number of Heads, including most importantly Head 12 (Strategic Plans) and Head 16 (Advisory Committees). [4] Paragraph 136, positive duty on public bodies This is a worthwhile reform to put a duty on public bodies to have due regard human rights and equality issues in their work. It means that public duties will have to consider such issues in formulating their strategic plans and report on significant issues and developments in their annual reports. It is separate from human rights and equality protections of individuals, which are and remain legally enforceable. [5] Paragraph 145: intercultural understanding The HRC s submission expresses the concern that the stated purpose of the IHREC in the Heads of the Bill may restrict the work of the IHREC to equality areas relating to intercultural issues. This is a misunderstanding. The purposes mandate in an inclusive way the IHREC to encourage the development of a culture of respect for human rights, equality and intercultural understanding in Ireland. The Bill will not restrict the IHREC s to equality 14 See Cityview Press Ltd v An Chomhairle Oiliuna [1980] IR 381 (SC). 8

9 areas involving intercultural issues; rather, it will explicitly connect intercultural understanding to a commitment to respect for equality and human rights. [6] Paragraph 163: superannuation The HRC submission makes the point that the Commission has a superannuation scheme in place on an administrative basis and that the creation of a new scheme (as provided for in the Head) may be viewed as an additional liability. This is a misunderstanding of the requirements that arise when framing legislation relating to superannuation schemes. If the Commission s administrative scheme is finalised (i.e. made into a statutory instrument as required by section 20 of the Human Rights Commission Act 2000) before the IHREC Bill is enacted, then it becomes a scheme for the purposes of section 20, and needs to be carried forward by Head 24 as a scheme for the purpose of the Bill. There are standard drafting approaches to such situations to ensure legal certainty which will be used by the AG s Office. If the scheme is not finalised, it is not a scheme for the purposes of section 20 and a different approach (providing that service with the HRC will be deemed as service for the purposes of the IHREC scheme that then requires to be made seems the obvious solution) needs to be adopted. This is a drafting issue and in either eventuality, the accrued pension rights of the former HRC staff will be protected under the new IHREC Act. August

10 Appendix Definitions of human rights Essentially, the General Scheme is composed on the basis of two different definitions of human rights. The first definition is broader. It is contained in Head 3 and reads as follows: In this Act (other than in Heads 30, 31, 33, 34, 35 and 36 [i.e. the sections dealing with enforcement/compliance powers and with human rights and equality duty of public bodies]) human rights means (a) the rights, liberties and freedoms conferred on, or guaranteed to, persons by the Constitution; and (b) the rights, liberties or freedoms conferred on, or guaranteed to, persons by any agreement, treaty or convention to which the state is a party or in any agreement, treaty or instruments binding on the state by virtue of membership of the European Union; (c) the rights, liberties or freedoms that may reasonably be inferred as being inherent in persons in contemporary society and necessary to enable them to live their lives with dignity and develop their personal potential in political, social, cultural and economic life to the fullest possible extent. equality means that all persons are equal in dignity, rights and responsibilities without regard to gender, civil status, family status, sexual orientation, religion or ultimate beliefs, age, disability, race (including colour, nationality, ethnic or national origin or membership of the Traveller community. dignity means that each person has (i) equal intrinsic value and a fundamental interest in living a worthwhile life; and (ii) a special entitlement to realise a life that is worthwhile and authentic consistent with others having a similar entitlement. Essentially, the objective is to ensure that the definition of human rights for the Commission s role in promoting best practice in human rights, commenting on legislation, participating in public debate and working with social partners and particular sectors to raise awareness of human rights and of best practice in that regard, is not limited to those human rights that have the force of law in the State. The second definition reads as follows: human rights means 10

11 (a) the rights, liberties and freedoms conferred on, or guaranteed to, persons by the Constitution; (b) the rights, liberties or freedoms conferred on, or guaranteed to, persons by any agreement, treaty or convention to which the State is a party and which has been given the force of law in the State or by a provision of any such agreement, treaty or convention which has been given such force; and (c) the rights, liberties and freedoms conferred on, or guaranteed to, persons by the Convention provisions within the meaning of the European Convention on Human Rights Act 2003; It is a narrower definition (and it is the narrower definition found in the 2000 Act) and the intention is that it will apply to situations where the Commission is exercising enforcement or legal powers of one type or another. These enforcement powers are set out as a sliding scale (see Heads 30 to 36). 11