A. The Establishment of the Commission
C. Recommendations to the Human Rights Commission
A
The Establishment of
the Commission
Amnesty International warmly welcomes the establishment of the Irish Human Rights Commission and stands ready to assist its future work in whatever way it can. The organisation looks forward to working together with both the Irish Commission and the Northern Irish Commission to strengthen the protection and promotion of human rights throughout the island of Ireland.
The Irish Human Rights Commission (hereafter the Commission) has been endowed with a mandate lauded as the most robust of its kind anywhere in the world. Many of the powers conferred on the Commission by the Human Rights Commission Act 2000 go beyond the standards set by the Paris Principles[1] and place the Commission in a unique position to promote and ensure the effective implementation of the laws and regulations concerning the protection of human rights in Ireland. Amnesty International believes that the Commission has an important role to play in addressing the state of human rights protection in Ireland.
Amnesty International recommends that the Government allocate sufficient financial resources to the Human Rights Commission. In calculating what might constitute an adequate sum, the Government should bear in mind the following considerations:
·
The Northern Ireland Human Rights
Commission, which receives funding of Stg £750,000 considers
that it is under-funded and raises this matter with the Secretary of
State for Northern Ireland at every
meeting;[2]
· The Government should be guided by the call for adequate funding by the United Nations High Commissioner for Human Rights, Mrs Mary Robinson, whose office offers expert advice to governments concerning the establishment of national human rights institutions worldwide;[3]
· The Paris Principles state that “the purpose of (this) funding should be to enable it to have its own staff and premises, in order to be independent of the government and not be subject to financial control which might affect this independence”. On numerous occasions, the Government has stated that the powers of the Irish Human Rights Commission will exceed the provisions of the Paris Principles and set standards in this field.[4]
The Government should translate its stated policy into action and provide a level of funding commensurate with the role it has publicly envisaged for the Commission.
C
Recommendations to the
Human Rights Commission
Amnesty International recommends some first steps which the Commission should take during its “start up” phase. In a second set of recommendations focussed on the development of the Commission’s programme of work, Amnesty International identifies the potential “added value” of the Commission’s mandate and pinpoints some areas of concern which the organisation considers merit the Commission’s immediate or longer-term attention.
Much can be learned from the evolutionary experience of the Northern Ireland Human Rights Commission. Amnesty International recommends that the Commission adopt the following “start up initiatives” which are similar to those employed by the Northern Ireland Human Rights Commission.
a) Funding
The Commission will not be in a position to execute its mandate fully without adequate funding. It should insist on the allocation of the funds which will enable it to discharge its mandate to the fullest extent possible.
b)
Consultation
The Commission should publish a draft strategic plan at the earliest possible occasion and request submissions on its content from all interested parties. Consultations with NGOs, Intergovernmental organisations and the Government should be opened at the earliest possible opportunity.
c) Staff
Applications for positions in the Secretariat of the Commission should be sought by public advertisement. Knowledge and professional experience in the field of human rights law and practice should be a prerequisite for all job descriptions (with the exception of secretarial posts). The selection process itself should be independent, impartial and transparent.
d) “Fitting
in”
The Commission will need time to establish a niche for itself amongst the network of State, Statutory and non-governmental bodies operating under human rights-related mandates in Ireland. Amnesty International recommends that the Commission fully explore how its mandate will ‘fit’ in relation to Statutory bodies and social partners such as: the Equality Authority, the Refugee Applications Commissioner, the Refugee Advisory Board, the National Consultative Committee on Racism and Interculturalism, the National Women’s Council of Ireland and Development Education for Youth. Cultivating complementarity of action as between entities working for the protection of human rights in Ireland and Northern Ireland should be a priority for the Commission from the outset of its operational phase.
2 Developing a programme of work
The Commission’s remit includes the power to initiate inquiries into breaches of human rights, advise the Government on legislation and act in the courts on behalf of individuals and bodies who believe their rights have been infringed. The manner in which this extensive mandate should be exercised will be a matter for prudent consideration by the Commission.
It is imperative that the Commission clearly define its role - within the framework of other statutory bodies, governmental bodies, the judiciary and NGOs – and consider what “added value” it can offer. The Commission is uniquely placed to tackle non-compliance with international obligations and to take legal and other action to ensure the enforcement of human rights standards in the State.
Amnesty International has identified a number of areas of concern, which could benefit from action being undertaken by the Commission and which it considers merit the Commission’s immediate or longer-term attention.
a) Compliance with international obligations
Amnesty International is concerned that certain laws and practices in Ireland do not comply with the State’s obligations under international human rights law and recommends that the Commission take action to ensure that non-compliance is redressed in the following specific cases.
ii) The Offences Against the State Acts 1939 – 1998 (OAS Acts)
In its submission to the Committee to Review the Offences Against the State Acts and Related Matters (OASA Committee), and in this audit (see section II A 3 above), Amnesty International has put forward its reasoned view that the provisions and operation of the OAS Acts are not in compliance with Ireland’s international obligations.[5]
In respect of emergency legislation in Northern Ireland, the Northern Ireland Commission submitted its views to the UK Government within the first two months of its existence.[6] Amnesty International recommends that the Commission should similarly undertake immediate action under Section 8(a)&(d) of the Human Rights Commission Act[7] and call on the OASA Committee to publish its review without delay. It is imperative that the Commission competently address this matter, which has resonance beyond the domestic situation and about which the United Nations has voiced serious concerns.[8]
ii) Refugee law, policy and practice
Since 20 November 2000, a new statutory framework under the Refugee Act, 1996 as amended, has been in operation. Amnesty International welcomed the establishment of the asylum determination procedure on a statutory footing and the commencement of the work of the Refugee Applications Commissioner and the Refugee Appeals Tribunal. However, the organisation has expressed serious concerns regarding certain aspects of the current statutory framework, which it considers fail to meet the State’s obligations under international law.[9]
A vast number of entities are operational in this field including: the United Nations High Commissioner for Refugees (UNHCR), the Refugee Applications Commissioner, the Refugee Appeals Tribunal, Government Departments, the Irish Refugee Council and other NGOs. However, the Commission should not consider that current arrangements constitute a full house; it has the potential to offer “added value” in the following respects:
iii) Ill-treatment of persons deprived of
their liberty
In the course of two visits to Ireland (in 1993 and 1998), the European Committee for the Prevention of Torture (CPT) recorded detailed allegations of ill-treatment of persons deprived of their liberty, in certain cases, supported by clear medical evidence. The Government’s responses to these reports have not fully allayed Amnesty International’s concerns about this issue.
The organisation believes that there is a need to complete the set of domestic legal safeguards against ill-treatment, and to introduce effective accountability mechanisms designed to identify and sanction abuse when it does occur. As was emphasised at the recent international conference “Policing and Human Rights”,[15] there is a particularly pressing need to introduce a credible system of independent investigation of alleged police misconduct. In this connection, Amnesty International called for the establishment of an independent system of investigation of complaints against the police in its briefing to the United Nations Human Rights Committee on concerns in Ireland.[16]
Amnesty International recommends that, further to its functions described in Article 8 (a) and (d) of the Human Rights Commission Act,[17] the Commission carefully scrutinise the CPT’s 1993 and 1998 reports and the responses of the Government, with a view to identifying areas where further action is required to prevent ill-treatment of persons deprived of their liberty. In this connection, Amnesty International recommends that the Commission call for the establishment of a fully independent police complaints procedure on a statutory basis.
b) Human rights education
One of the key functions of the Commission is the promotion of awareness and understanding of the importance of human rights in the State.[18] Amnesty International attaches great importance to human rights education and believes that the Commission has a central role to play in ensuring that human rights values are mainstreamed across all areas of life in Ireland. Such action should be aimed at developing a culture of human rights protection in the State.
Amnesty International recommends that, when drawing up its “awareness raising” programme, the Commission consult widely with other entities active in the field including: the Department of Education, the Garda Human Rights Group, the UNHCR and NGOs. The Commission should also consult as broadly as possible with its target groups and should consider using the Internet to solicit as many views as possible.
Amnesty International has a wealth of experience in this field and stands ready to assist the Commission in this regard in whatever way it can.
c) Ratification and incorporation of
international instruments
In accordance with its function under Article 8(d) of the Human Rights Commission Act,[19] the Commission should make recommendations to the Government concerning the ratification and incorporation of international instruments aimed at strengthening the protection of human rights in the State. In particular, the Commission should advise the Government to proceed immediately with the long-awaited ratification of the United Nations Convention against Torture.
The Commission should closely monitor steps taken toward the incorporation of the European Convention on Human Rights and should advocate the selection of a strong mode of incorporation which recognises the primacy of international human rights instruments.
[1] Principles relating to the status and functioning of national institutions for the protection and promotion of human rights (otherwise known as the Paris Principles), endorsed by the General Assembly of the United Nations in its Resolution A/RES/48/134 of 20 December 1993, Section B, paragraph 2.
[2] The First Annual Report of the Northern Ireland Human Rights Commission, 1999-2000 at page 7.
[3] “Robinson to warn on funds need”, Irish Times, October 13, 2000.
[4] Statement of An Taoiseach to mark the 50th anniversary of the UDHR on 10 December 1998: “We are determined to go further than the requirements of the Agreement and establish a national institution that will be a model of its kind in Europe. We are taking as our point of departure the guidelines laid down by the United Nations, the Paris Principles, and we will endeavour to set, not follow, standards for international best practice in this field”.
[5]Amnesty International, “Republic of Ireland, Submission to the Committee to Review the Offences Against the State Acts and Related Matters”, 1 October 1999, EUR 29/001/1999.
[6] Northern Ireland Commission Response to the United Kingdom Government’s White Paper on “Legislation Against Terrorism” (1998).
[7] Human Rights Commission Act, 2000 Section 8: “The functions of the Commission shall be…
(a) to keep under review the adequacy and effectiveness of law and practice in the State relating to the protection of human rights
(d) either of its own volition or on being requested to do so by the Government, to make such recommendations to the Government as it deems appropriate in relation to the measures which the Commission considers should be taken to strengthen, protect and uphold human rights in the State”
[8] United Nations Human Rights Committee, Comments on Ireland, U.N. Doc. CCPR/C/79/Add.21 (1993).
[9] Ursula Fraser: Asylum Law and Policy in Ireland – A Critical Guide, published by Amnesty International Irish Section, December 2000.
[10] This definition includes rights guaranteed in the Constitution and agreements, treaties or conventions to which the State is a Party.
[12] The fundamental principle of non-refoulement is binding on all states and prohibits the return of a person to a country where he or she may face serious human rights violations.
[13] Human Rights Commission Act, 2000, Section 11: “The Commission may institute proceedings in any court of competent jurisdiction for the purpose of obtaining relief of a declaratory or other nature in respect of any matter concerning the human rights of any person of class of persons.”
[14] Furthermore, the organisation considers the detention of asylum-seekers or immigration detainees alongside ordinary prisoners to be contrary to international standards established by, inter alia, the European Committee for the Prevention of Torture (CPT).
[15] Held at Dublin Castle on 3&4 November 2000, in the presence of the President of the Human Rights Commission. Speakers including Michael Farrell of the Irish Council for Civil Liberties, Mark Kelly of HumanRightsConsultants.Org and Professor Dermott Walsh of the Centre for Criminal Justice, University of Limerick, criticised the current Garda Síochána Complaints Board and called for it to be replaced by a fully independent system of investigating complaints against the Garda Síochána.
[16] Amnesty International “Ireland, Briefing to the UN Human Rights Committee on Human Rights Concerns”, EUR 29/001/2000, August 2000.
[18]Human Rights Commission Act, 2000, Section 8 (e) “The functions of the Commission shall be ….to promote understanding and awareness of the importance of human rights in the State and, for those purposes, to undertake, sponsor or commission, or provide financial or other assistance for, research and educational activities”.