Human Rights Commission

Table of Contents

2014 Act; New Commission

The main purposes of this 2014 Act are to:

provide for the establishment of the Irish Human Rights and Equality Commission;
to provide for the dissolution of the Human Rights Commission and the Equality Authority and the transfer of their functions to the new Commission;
strengthen and enhance the powers of the new Commission;
introduce a positive duty on public bodies to have due regard to human rights and equality. This reflects a commitment in the Government’s Programme for National Recovery 2011 to 2016. The Commission will assist public bodies to comply with the positive duty, including by producing guidelines and codes of practice;
amend the European Convention of Human Rights Act 2003 to provide 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; and
provide for consequential repeal of the Human Rights Commission Act 2000 and of certain provisions of the Employment Equality Act 1998 and the Equal Status Act 2000.

The Commission was 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 (1993, as augmented by the 2009 General Observations of the International Coordinating Committee of National Human Rights Institutions for the Promotion and Protection of Human Rights (ICC) Subcommittee on Accreditation).

The Principles are a set of informal rules and best practice standards which set out minimum standards that must be complied with to ensure independent and effective National Human Rights Institutions (NHRIs). The point of the standards is to ensure that NHRIs can operate independently from Government and have the mandate and resources to do their work effectively.

Key Concepts

‘‘dignity’’ means, in relation to a person, the inviolable intrinsic value, equal to other persons, that the person has and includes the recognition by other persons of such value with respect of that person.

‘‘discriminate’’, in respect of matters to which either the Employment Equality Act 1998 or the Equal Status Act 2000 apply, has the same meaning as it has under the relevant Act.

‘‘discriminatory grounds’’, in respect of matters to which either the Employment Equality Act 1998 or the Equal Status Act 2000 apply, are the same as those set out under the relevant Act.

‘‘human rights’’, other than in Part 3, is defined in a very broad way to include not just human rights recognised in Irish law such as the rights, liberties and freedoms conferred on or guaranteed to persons by the Constitution, or by any agreement, treaty or convention to which the State is a party, but also the rights, liberties and freedoms that may reasonably be inferred as being inherent in persons as human beings and necessary to enable each person to live with dignity and participate in the economic, social or cultural life in the State. This gives the Commission a strong mandate to promote human rights in the broadest possible sense.

‘‘public body’’ includes a Department of State, a local authority, the Health Service Executive, a university or institute of technology, an education and training board, any other person, body or organisation established under statute, or under any scheme administered by a Government Minister, but excludes the Defence Forces. For the purpose of this Act, public body also includes, companies wholly or partly financed by or on behalf of a Government Minister or the majority of whose shares are held by or on behalf of a Government Minister, and, , any other person, body, organisation or group financed wholly or partly out of moneys provided by the Oireachtas, as may in the public interest be prescribed following consultation with the Commission.

Irish Human Rights and Equality Commission

The 2014 Act provides for establishment of the Irish Human Rights and Equality Commission. The Commission is independent and guided by best international practice in the area of human rights and equality. ‘Best international practice’ includes the Paris Principles.

The functions of the Commission include providing information to the public on human rights and equality, keeping under review the adequacy and effectiveness of law and practice in the State relating to the protection of human rights and equality, providing practical assistance including legal assistance to an individual under employment equality or equal status legislation, and carrying out equality reviews and action plans.

The Commission may appear before the High Court and Supreme Court as amicus curiae in proceedings before either court that concern the human rights or equality rights of a person.

The Commission has authority to conduct inquiries and 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 2014 Act sets out the principles that underpin the functions of the Commission in encouraging and supporting the development of a society that respects and protects each person’s dignity and human rights.

The Minister with the consent of the Minister for Public Expenditure and Reform and with the agreement of the Commission may confer additional functions on the Commission.

Membership

Members of the Commission hold office for a term not exceeding 5 years, which can be renewed subject to not more than two consecutive terms being served. The Commission consists of not more than 15 and not fewer than 12 members, one of whom shall be Chief Commissioner.

Members of the Commission will be appointed by the President, on the advice of the Government following passing of a resolution by each House of the Oireachtas. The Commission was 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.

The Act provides that, members of the Commission are to be appointed will be selected by the Public Appointments Service following a Paris Principles-compliant selection process. To underpin the independence of the selection process, the Government shall accept the persons recommended for appointment by the Service, save in exceptional circumstances and for stated and substantial reasons.

The 2014 Act 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.

Proceedings

There are circumstances in which a member automatically ceases to hold office. It provides that the terms and conditions of office must be determined at the time of appointment.Vacancies must be filled in the same way as the original appointment, subject to such practical modifications in the application as may be necessary.

The Commission is required to meet not less than once every 3 months. Subject to the Act, the Commission regulates its own procedures.

The Commission mayappoint from its membership Ireland’s representative on the Management Board of the EU Agency for Fundamental Rights, provided for under Council Regulation No. 168/2007.

There is an advisory Committees and other methods of consultation with relevant agencies and with NGOs and other civil society interests.

Director & Staff

The Act provides for the appointment of a Director of the Commission and outline his or her functions. In addition to the functions set out in the Bill, which are standard for a post of this nature, it is intended that the Director will be the Accounting Officer for the Commission and that the Commission will have a separate Vote.

The Director is accountable to both the Public Accounts Committee and to other Oireachtas Committees. These are standard provisions.

The 2014 Act also makes provision for temporary employment of persons for specialist purposes by the Commission. Such persons can be experts on a particular topic or project on which the Commission is working, who would be released by their public, private or NGO sector employer to work with the Commission for the duration of such a project.

So as to ensure compliance with the Paris Principles, the Act makes it clear that all staff employed by the Commission, both full time and temporary, will be under the control and direction of the Commission during any period of such employment and accordingly makes no provision for secondment arrangements.

Powers & Reports

The Commission is to prepare a strategy statement not later than 6 months after the commencement of this section. This statement will be for a period of 3 years. The Commission is directly accountable to the Oireachtas in relation to its strategy statement. The section also provides for the renewal of the strategy statement every 3 years.

The Commission is to prepare an Annual Report each year which will be laid before each House of the Oireachtas. It also details certain information which must be contained in the Report. Again, the Commission will be directly accountable to the Oireachtas in relation to its report.

Human rights are defined in the 2014 Act , for the sole purpose of the Commission’s legal and enforcement powers, as comprising only such rights as are guaranteed by the Constitution or otherwise given force of law within the State, including under the European Convention on Human Rights and Fundamental Freedoms and other international instruments that are ratified by the State.

The Commission is 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. In particular, it has specific functions with regard to the Employment Equality Acts 1998 to 2011, the Equal Status Acts 2000 to 2012, section 19 of the Intoxicating Liquor Act 2003 and the Pensions Act 1990. Any such review may include recommendations to amend relevant legislation.

Codes

The Commission, at the request of the Minister, may prepare draft codes of practice. Such codes shall address issues such as the protection of human rights, elimination of discrimination, promotion of equality of opportunity in employment and the promotion of equality of opportunity in relation to matters covered by the Equal Status Act 2000. The Commission is 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, a code of practice is admissible in evidence in proceedings before a Court or Tribunal. A Code of Practice on Sexual Harassment and Harassment at Work was given statutory effect by the Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2002 (S.I. No. 78/2002) and revised under the Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012 (S.I. No. 208/2012).

Equality Action Plan

The Commission may invite an undertaking to carry out an equality review and following such a review, to prepare and implement an equality action plan. The Commission may also carry out a review or prepare an action plan of 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.

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. Such a notice may also be served if an undertaking fails to implement the requirements of an equality action plan. There is an opportunity for an undertaking to appeal such a notice.

Inquiry

The Commission may, of its own volition or at the request of the Minister, conduct an inquiry. The 2014 Act continues the existing powers of the Equality Authority and of the Human Rights Commission to conduct inquiries. The inquiry power was re-designed, modelled on that contain Noticeed in the Commissions of Investigation Act 2004 to ensure that it is robust and effective in practice.

The detailed procedural and other rules in relation to an inquiry are set out in Schedule 2. 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, or of a systemic failure to comply with such obligations, 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.

Compliance Notice

An equality and human rights compliance notice may be issued following or in the course of an inquiry. Such notices will specify the nature of the discrimination or violation of rights concerned and will require the persons on whom they are served to act on the notice. The notice also outlines the steps to be taken to address the violation and specify the timeframe which applies.

There is an appeal mechanism for persons served with an equality and human rights compliance notice. All equality and human rights compliance notices to be kept in a register. 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.

The Commission is to provide legal and other assistance. Such assistance may include the provision of legal advice and the provision of legal representation. Prior to granting any assistance, the Commission should consider if such assistance could be obtained by the applicant under the Civil Legal Aid Act 1995 or the Criminal Justice (Legal Aid) Act 1962.

The Commission may institute proceedings in its own name seeking relief of a declaratory or other nature in respect of any matter involving the human rights of any person or class of persons. This is a continuation of the power of the Human Rights Commission granted in the Human Rights Commission Act 2000.

Public Bodies Duties

There is a positive duty on public bodies to have due regard to human rights and equality . The Commission will assist public bodies to comply with the positive duty, including by producing guidelines, and codes of practice.