The Minister for Justice, Equality and Defence is today publishing the General Scheme (Heads) of a Bill to replace the Equality Authority and the Human Rights Commission with a new Irish Human Rights and Equality Commission. The Government agreed this in principle last October and the Minister for Justice and Equality subsequently set up a Working Group to advise him on practical issues, including on powers and functions and other issues for the legislation. The Group reported on 19 April and the Minister is glad to announce that the Government has been able to accept all their recommendations relating to the legislation that is needed to give effect to the merger.
The Minister took the opportunity to thank again the members of the Working Group and all the members, including the outgoing members, of the Human Rights Commission and the board of the Equality Authority that had served down through the years for their personal commitment and contribution to the work of these two organisations.
The General Scheme provides for
· an independent selection process to nominate people for appointment to the new Commission, and appointment by the President following passing of a resolution by both Houses of the Oireachtas;
· strengthened powers and functions for the new Commission, including an effective power of inquiry; and
· an express duty on public bodies to have due regard to human rights and equality. This reflects the commitment in the Government’s Programme for National Recovery 2011-2016 as follows:
‘We will require all public bodies to take due note of equality and human rights in carrying out their functions.’ Programme for National Recovery 2011-2016, p 54.
This specific provision has been drafted on the basis of obliging a public body to formally consider human rights and equality issues relevant to its work, to set out its consideration of relevant issues in its Strategic Plan and to report on relevant issues and events in its annual report. Support and guidance will be available from IHREC.
The General Scheme reflects the strong commitment of the Irish Government to its obligations under the Good Friday Agreement, and provides for continued cooperation on human rights on an all-island basis.
In publishing the General Scheme the Minister said “Our society will benefit from having a strong and effective human rights and equality body. Sunlight is the best antiseptic. The two existing bodies have their strengths, and I intend that the new Commission will combine the best of both. By pulling both together we are aiming to keep the strengths of each and build something new that will be more effective than the sum of the two existing bodies in pursuing its mandate. 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 than its two predecessors combined”.
As part of the process of preparing their Report, the Working Group undertook a consultation process with NGOs and other interested parties. The Group received 69 submissions and these informed its recommendations to a considerable degree. Notwithstanding that this prior consultation process took place last year, the Minister considers that it would be of benefit in raising public awareness of the merger proposal and the detail of what is involved, as well as of the broader human rights and equality agenda in our society, to facilitate a further public engagement with the issues and therefore he has asked the Oireachtas Committee on Justice, Defence and Equality to examine the Heads and undertake a further focussed consultation process with civil society and other interested parties on the content of the General Scheme. The Minister welcomes the opportunity the referral will create for wider public engagement and discussion on the Working Group’s report, the General Scheme of the Bill and indeed on the entire range of important issues which relate to the establishment of this new Commission.
While he has asked the Committee to complete its consideration on the General Scheme and on consultation with stakeholders within as short a period of time as possible, the Minister has particularly asked for views on Head 13 – which provides for the process by which the new Commission will be selected and appointed – as soon as possible. The intention, subject to any appropriate modifications in the procedure envisaged in the Head in the light of the Committee’s views, is to put the proposed independent Selection Panel in place to invite applications from persons interested in serving on the new Commission, run a selection process and make a recommendation to the Government on a slate of candidates for appointment by the President in due course.
The intention is to ensure that it will be possible to identify as early as possible the persons for appointment to the Commission and arrange for their appointment to both existing bodies (the Human Rights Commission and the Equality Authority) in the interim. This will ensure that the two organisations can start to operate as a cohesive whole, with a transition programme being prepared and put in place, so that the two boards operating as one unit can commence preparing a Strategic Plan for the new body and that work can be taken forward rapidly on the staffing review and other preparatory work envisaged in the Working Group report.
The new Irish Human Rights and Equality Commission will in due course seek accreditation with the UN as Ireland’s National Human Rights Institution (NHRI). The Minister said “This is of crucial importance to ensure that the new body achieves the highest international standing and domestic credibility to its independence and remit. I have made strengthening the new Commission and ensuring that it complies unequivocally with the ‘Paris Principles’ a personal commitment in the preparation of this Bill and in the merger process. I am confident that the new body will maintain the high standing and reputation the Human Rights Commission has achieved internationally.”
5 June 2012
Note for editors
It is not possible to state an exact date when the Bill in legislative form will be available, but it has been approved by Government for priority drafting in the Office of the Parliamentary Counsel.
Background and principles features of the Heads
Subsequent to obtaining Government approval in principle to bring forward legislation to merge the Human Rights Commission and Equality Authority, the Minister established a Working Group – drawn primarily from members of the board of the Equality Authority and of the Human Rights Commission – to advise him on practical arrangements in relation to setting up the new organisation. The Working Group also had representatives of the Minister’s Department and an independent chair. The Group presented its Report to the Minister on 19 April 2012 and it was published on 20 April. A copy of the Group’s report is available at www.justice.ie and www.upr.ie
The Working Group made recommendations on 42 different sets of issues, including issues relating to the drafting of the legislation to effect the merger, the staffing and other resourcing of the new Commission, the initial organisational configuration of the new body and the selection and appointment of members of the new Commission. The General Scheme has been finalised in the light of the Working Group’s recommendations.
Scope of proposed Bill
For the purpose of this Bill, it is useful to see the existing legislation as being in three parts:
· The substantive law on equal status and employment equality;
· The legislation on resolution of equality complaints and the operation of the Equality Tribunal; and
· The legislation relating to the establishment, corporate governance, management and operation and the powers and functions of the Equality Authority and the Human Rights Commission.
The Acts concerned are primarily the Employment Equality Acts 1998 to 2011, the Equal Status Acts 2000 to 2011 and the Human Rights Commission Acts 2000 and 2001.
The General Scheme has been drafted to cover the establishment, corporate governance, management and operation and the powers and functions of the new Irish Human Rights and Equality Commission. The proposed new Act will restate or replace with amendments the provisions of the following existing Acts as amended:
· Employment Equality Act 1998 (PART V, Equality Authority (General, Inquiries by Authority), PART VI (Equality Reviews and Action Plans and Review of Legislation)
· Equal Status Act 2000 PART IV (Equality Authority)
· Human Rights Commission Acts 2000 and 2001
Draft Heads – establishment and administrative provisions
4.1 Head 1 (short title and commencement), Head 2 (interpretation), Head 5 (regulations), Head 6 (expenses) and Head 7 (repeals etc.) are standard, technical provisions. Head 3 provides for a definition of human rights for the purposes of the
Commission’s work of promoting human rights. It clarifies that the Commission will be in a position to take account of new and emerging issues in this promotional aspect of its work. Head 4 (establishment day) and Head 8 (establishment of new body) provide together for the establishment of the new Commission – and dissolution of the two existing bodies – on an establishment day to be fixed by SI.
Head 9 provides for a statement of purpose for the new body as follows:
the purpose of the Commission is to protect and promote human rights and equality, to encourage the development of a culture of respect for human rights, equality and intercultural understanding in Ireland, to work towards the elimination of human rights abuses and discrimination and other prohibited conduct, while respecting diversity and the freedom and dignity of the individual and, in that regard, to provide practical assistance to persons to help them vindicate their rights.
Head 10 sets out the principles that should guide the Commission in its work and Head 11 provides for its functions. These are largely based on the existing powers and functions of the two bodies being merged, with some important additions as recommended by the Working Group. These additions are (in this Head) inclusion of a reference to promotion of awareness of the multicultural character of Irish society and of integration of minorities, and (in Head 30 and subsequent Heads, which are addressed below) an enhancement and development of the Commission’s enforcement and compliance powers.
Head 12 provides for the Commission to prepare a strategic plan and present it directly to the Oireachtas. Heads 13 and 14 provide for membership of the Commission, including provisions that set out the circumstances in which a Commissioner may be dismissed or cease to hold office. The Commission will consist of 12 persons, one of whom will be appointed as Chief Commissioner (chair). The draft provides for appointment by Government of a Selection Panel of 5 eminent persons to invite applications for membership of the Commission and to make a recommendation to Government in this regard. Appointments will be made by the President on the advice of the Government following the passing of resolutions by both Houses of the Oireachtas.
Heads 15 and 16 are technical provisions relating to the conduct of business at meetings of the Commission and establishment of advisory committees. The purpose of advisory committees is to give the Commission a mechanism for structured participation in its work and consultation with representatives of civil society and social partners, given that Commissioners – while being drawn from a range of backgrounds representative of wider society and of groups covered by equality legislation – will be independent and not appointed as representatives of any particular sector or organisation.
Heads 17 to 20 relate to the appointment and functions of the Director (CEO) and the accountability of the Director to the Public Accounts Committee and other Oireachtas Committees. Heads 21 to 24 relate to staffing, including appointment, remuneration and superannuation. The staff of the existing Human Rights Commission and the Equality Authority will transfer to the new Commission as from the establishment day (Head 21). The staff to transfer include civil and public servants, reflecting the different staffing basis of the two existing bodies. For the future, the Commission will be free to recruit its own staff, rather than having civil service staff of the Department of Justice and Equality assigned to it. This is an important feature in ensuring that the Commission is seen to be independent and will achieve ‘A’ status accreditation in line with the ‘Paris Principles’ that apply to the recognition of National Human Rights Institutions. However, provision is also made for an ongoing relationship with the staffing pool of the Department by which junior staff can be released by the Department to the Commission for a defined period and rotated back. It is considered that such an arrangement will be in the interests both of the staff members concerned and of IHREC.
Head 25 provides for a seal and Head 26 provides for accounts and audit. Head 27 provides for an annual report, to be submitted directly to the Oireachtas. Head 28 provides for an exchequer grant to the Commission. The question of moneys being granted directly by the Oireachtas to the Commission has also been raised in public commentary. This is not possible for constitutional reasons. While expenditure and taxation must be voted on by the Dáil, the care and management of the Exchequer is the responsibility of the Government. Even the Houses of the Oireachtas themselves are funded via the executive arm on foot of estimates proposed by the Government, with expenditure overseen by the Department of Public Expenditure and Reform. Accordingly, this Head reflects the need for the reporting arrangement on financial matters by the existing bodies to the Department of Justice and Equality to be continued.
Oireachtas oversight
The establishment of the merged body affords an opportunity to improve Oireachtas oversight of agencies in the equality and human rights sector and of State actions in this area. In that context Heads 12 and 27 provide for the Commission to present its strategic plan and its annual report directly to the Oireachtas. This is of symbolic importance in terms of underpinning the independence of the new Commission. It reflects a specific recommendation (No. 38) of the Working Group in that regard.
Draft Heads – enforcement and compliance and related functions
Head 29 continues the existing functions of the Equality Authority in relation to keeping specified enactments under review. Heads 30 to 35 bring together the proposed functions of IHREC in relation to enforcement and compliance. These are presented on a ‘sliding scale’ as recommended by the Working Group, ranging from the provision of information and assistance to individuals who consider their rights have been infringed and to individuals and bodies on their obligations under human rights and equality law, to taking of legal action, intervention in court cases and holding of inquiries. Some of these enforcement and compliance powers are presented as separate Heads. Head 31 deals with Codes of Practice. This is a continuation (and extension to cover human rights issues) of an existing function of the Equality Authority under which the Authority can prepare draft codes for approval by the Minister; once approved and signed into law, a code can be relied on in court proceedings. Only one such code – in relation to sexual harassment and harassment at work – has been made to date and the Minister considers that this is a mechanism that could receive greater attention from the new Commission.
Head 32 restates the provisions in existing legislation in relation to equality reviews and action plans. Head 33 is based on the existing provisions in section 10 of the Human Rights Commission Act 2000 for provision of assistance, including legal assistance, by the Commission at its discretion to qualifying applicants who request such assistance in such cases involving human rights. The Commission is not a legal aid provider and the focus here is on cases that are precedent-setting in that they, for example, raise an important point of principle. The new Commission will have comparable powers on the equality side, but because these powers are contained in sections of the Equality Acts that are outside the scope of this Bill, they will be transferred to the new Commission by means of technical amendments to those Acts to substitute the Commission for the Equality Authority, rather than being re-enacted in this Bill.
Both the Human Rights Commission and the Equality Authority have powers of inquiry. The Equality Authority has never used these powers. While the Human Rights Commission has conducted inquiries, it has done so in a less formal way than envisaged in the legislation and with the co-operation of the parties. The HRC is of the view that the power of inquiry in the legislation as it stands would be problematic in circumstances where the parties were not co-operative. It is considered that a power of inquiry along the lines created in the Commissions of Investigation Act 2004 would be more appropriate to the new Irish Human Rights and Equality Commission. Head 34 is based on recommendation 11 of the Working Group in that regard. Head 35 restates existing provisions in the Employment Equality Acts in relation to non-discrimination notices and extends these to human rights issues. These are a follow up mechanism open to the Authority following an inquiry (which has not been used) requiring a person who has been found following an inquiry to be discriminating to cease doing so.
Head 36 provides for a positive duty on public bodies to have due regard to human rights and equality. This Head is a response to the commitment in the Government’s Programme for National Recovery 2011-2016 as follows:
‘We will require all public bodies to take due note of equality and human rights in carrying out their functions.’ Programme for National Recovery 2011-2016, p 54.
Recommendation 17 of the Working Group refers. The Head has been drafted on the basis of obliging a public body to formally consider human rights and equality issues relevant to its work, to set out its consideration of relevant issues in its Strategic Plan and to report on relevant issues and events in its annual report. Support and guidance will be available from IHREC. Essentially what is required is that public bodies would consider the human rights and equality environment in which they
operate and take steps on the basis of this analysis to resolve existing problem areas and address potential difficulties before they arise.
The IHREC’s role is one of provision of support. The Working Group report recommends that a formal review be undertaken by Government in consultation with IHREC after a period of three or five years. The review should assess the effectiveness of the public sector duty in securing improved human rights and equality outcomes and in assisting public bodies to pre-empt problems on an evidential basis. The evidence could be gathered by way of an independent evaluation commissioned jointly by IHREC and the Department of Justice and Equality. The review should also assess whether there is a need to modify or develop these recommended arrangements - including whether there is a need to institute a formal review and monitoring mechanism and the question of integration with other regulatory assessment procedures – on the basis of the evidence.