IHRC Human Rights E-Bulletin

IHRC Human Rights E-Bulletin

Irish Human Rights Commission - Promoting and Protecting Human Rights in Ireland

Issue 1 July 2008

Introduction

Welcome to the first issue of the Irish Human Rights Commission’s IHRC Human Rights E-Bulletin!

The IHRC has a statutory remit under the Human Rights Commission Act 2000 to ensure that the human rights of all people in Ireland are promoted and protected in law, policy and practice. The purpose of this monthly news bulletin is to provide a brief update on the work of the IHRC and to flag upcoming events. As this is the first issue, the work of the IHRC over the past 6 months is highlighted.

Contents

The Commission – In Focus
Monitoring Ireland’s International Human Rights Obligations - IHRC Report on Ireland and the International Covenant on Civil and Political Rights (ICCPR)
Human Rights Not Fully Protected In Immigration, Residence and Protection Bill 2008
More Protections and Provisions for Victims of Human Trafficking
‘Best Interest of The Child’ Central to Constitutional Amendment on Children
Human Rights in Definition of a Charity - Charities Bill 2007
Women’s Rights in Ireland and the Convention on the Elimination of Discrimination Against Women (CEDAW)
Racial Discrimination in Ireland and the Convention on the Elimination of All Forms of Racial Discrimination (CERD)
Council of Europe Report on Human Rights in Ireland
Rights of Transgendered People - Foy v. An T-Ard Chláraitheoir, Ireland and the Attorney General[[1]]
Housing and Accommodation Rights - Donegan v. Dublin City Council
Criminal Trespass Legislation - Lawrence & Others v. Ballina Town Council & Others
One to Watch! Hearing Before UN Human Rights Committee on Ireland’s 3rd Report under ICCPR , 14-15 July 2008
Recent IHRC Publications
Upcoming Events
Issue 1 – Feedback on the First Issue
Contacting the IHRC

The Commission

The IHRC seeks to ensure that Ireland meets standards of best international practice:

by reviewing the adequacy and effectiveness of law and policy in the State relating to the promotion and protection of human rights, and;
by making recommendations to the Government as it deems appropriate concerning the measures that should be taken to strengthen, protect and uphold human rights in Ireland;
by promoting understanding and awareness of human rights including through human rights education;
by conducting enquiries into relevant human rights matters on request or to initiate such enquiries at its own volition;

by providing assistance in connection with legal proceedings involving human rights law or practice;

by offering its expertise in human rights law to the superior courts, in suitable cases involving human rights issues, as amicus curiae or ‘friend of the court’;

by instituting proceedings in its own name to vindicate the human rights of persons in the State.

In addition, the IHRC monitors proceedings notified to it pursuant to section 6(1) of the European Convention on Human Rights Act 2003 (“ECHRA”). This edition sets out two recent cases the IHRC either monitored or participated in.

The Commission consists of a President and 14 Commissioners, seven of whom are women and seven of whom are men, who are appointed by the Government. Commissioners contribute a range of expertise in relation to the promotion and protection of human rights.

1. The Commission – In Focus

Dr Maurice Manning is the President of the Irish Human Rights Commission. Dr Manning was first appointed as President in August 2002 and re-appointed in August 2007. He previously lectured in politics in University College Dublin and was a member of the Oireachtas for twenty one years, serving in both the Dáil and Seanad.

As President of the IHRC, Dr Manning leads the Commission in its pursuit to promote and protect human rights in Ireland. Dr Manning represents the IHRC in a wide range of fora including conferences, seminars, advisory bodies and in its interaction with Ministers, public officials and the Oireachtas.

On behalf of the IHRC, Dr Manning currently chairs the European Group of National Human Rights Institutions (NHRIs) and is a member of the International Coordinating Committee of National Human Rights Institutions. The influence and profile of the IHRC with its international partners has grown through its work to strengthen emerging national human rights institutions as well as on key international human rights issues such as the drafting of the UN Convention on the Rights of Persons with Disabilities.

Working Structure of the IHRC

The work of the IHRC is delivered through two divisions: Research, Policy and Promotion, and Enquiry and Legal Services. Work carried out by both Divisions is outlined below.

Work of the Research, Policy and Promotion Division

The Research, Policy and Promotion Division carries out the work of the IHRC in research, policy, legislative review, awareness, human rights education and international relations. The Research and Policy section of the Division carries out specific pieces of research on human rights issues, as well as working on IHRC policy papers and statements. The section also carries out the IHRC’s mandate to review legislation for compliance with international standards. The Awareness and Education section promotes awareness of both the work of the IHRC and of human rights through communications and public affairs outreach to statutory and community and voluntary organisations. The section is also developing the IHRC’s human rights education work which it implements in co-operation with other sections.

The Research, Policy and Promotion Division also oversees the international work of the IHRC. The IHRC, as Ireland’s national human rights institution is a member of the European Group of National Human Rights Institutions. Since 2006, the IHRC has been chair of the European Group of National Human Rights Institutions. In this role, the IHRC engages with different international bodies such as the UN and the Council of Europe on a regular basis, co-ordinating the work of the European Group with these international bodies and within the International Coordinating Committee of National Human Rights Institutions.

2. Monitoring Ireland’s International Human Rights Obligations - IHRC Report on Ireland and the International Covenant on Civil and Political Rights (ICCPR)

In June 2008, the Irish Human Rights Commission (IHRC) published its report to the United Nations (UN) Human Rights Committee on the Examination of Ireland’s 3rd Report on implementation of the International Covenant on Civil and Political Rights (ICCPR). The IHRC’s report provides the UN Human Rights Committee with focused and critical information on the situation of civil and political rights in Ireland since the State last reported in 1999. In making its submission, the IHRC assessed the State’s performance against the recommendations made by the UN Human Rights Committee in 2000 following its examination of Ireland’s 2nd State Report. The Irish Government will orally present its report to the UN Human Rights Committee on 14 and 15 of July 2008. The IHRC will be present at the Hearing.

Report

Press Release

3. Human Rights not Fully Protected in Immigration, Residence and Protection Bill 2008

IHRC Observations on the Bill

In March 2008, the Irish Human Rights Commission (IHRC) published observations of over 100 pages on the Immigration, Protection and Residence Bill 2008 (2008 Bill), covering 24 areas and making 59 key recommendations.

Particular areas of concern are:

Removal from the State
Detention
Human Trafficking
Family Reunification
Protection of Children
Access to public services
The right to marry

Observations

Press Release

Oireachtas Joint Committee Hearing on 2008 Bill, 16 April 2008

In April 2008, the IHRC presented its Observations on the 2008 Bill to the Oireachtas Joint Committee on Justice, Equality, Defence and Women’s Rights.

Presentation

Press Release

4. Protecting Victims of Human Trafficking

IHRC and Immigrant Council of Ireland Roundtable on Human Trafficking, 9 April 2008

In April, 2008, the IHRC and the Immigrant Council of Ireland brought together national and international expertise to discuss how to progress Ireland towards ratification of the Council of Europe Convention on Action against Trafficking of Human Beings. The Immigration, Protection and Residence Bill 2008 provides an important opportunity for the Government to bring Irish legislation into line with the Council of Europe’s minimum standards. To progress towards meeting those minimum standards, the IHRC said that the Bill would need to be amended to acknowledge that human trafficking affects people who are EU citizens as well as people who are foreign nationals. The Bill also needs to provide for adequate and appropriate health care, secure accommodation, material assistance, and legal advice for both adult and child victims of human trafficking.

Presentation

National Action Plan on the Prevention and Combating of Human Trafficking

In January 2008, the IHRC made a submission on the development of Ireland’s National Action Plan on the Prevention and Combating of Human Trafficking. In it, the IHRC highlighted the urgent need for comprehensive legislation and policy on the issue to be set out in a human rights framework. The IHRC stressed that policy responses need to differentiate between different forms of trafficking in human beings.

Submission

5. ‘Best Interests of the Child’ Central to Constitutional Amendment on Children

In January 2008, the IHRC made a submission to the Joint Committee on the Constitutional Amendment on Children. As the Ombudsman for Children provided detailed submissions, the IHRC confined itself to the following issues: express guarantee of children’s rights; the UN Convention on the Rights of the Child and best practice in international law; the right to participation; the prohibition against discrimination.

The IHRC recommends that:

Proposed Article 42 (A)(1) be revised to include an express recognition that in all actions concerning children the best interests of the child shall be a primary consideration

The language of the then proposed 28th amendment to the Constitution should be amended so that it expressly incorporates the principle set out in Article 12 of the CRC, to bring the amendment into line with Ireland’s international obligations with regard to children’s right to participation.

The IHRC asked the Government to clarify the relationship between the proposed Article 42(A), and the current Articles 41 and 42 of the Constitution.

The IHRC requested the Joint Committee to give consideration to including an express guarantee of children’s rights in the 28th amendment to the Constitution

View full submission

6. Human rights in definition of charities - Charities Bill 2007

In January 2008, the IHRC wrote to Mr Pat Carey TD, Minister of State at the Department of Community, Rural and Gaeltacht Affairs expressing a number of concerns about the Charities Bill 2007.

While broadly welcoming the Charities Bill as part of necessary reform in the area of charities regulation, the IHRC expressed its concern that any proposed legislation be drafted in such a way as to reflect the reality of modern charitable organisations.

The definition of “excluded body” in Section 2 of the Bill includes a body the principle object of which is to “promote a political party, candidate or cause”. The IHRC has concerns about the inclusion in this definition of a body whose principle object is a ‘political cause’. While the IHRC recognised that there is a need to keep bodies which have the object of promotion of a political party or candidate outside of the definition of a charity, it is concerned that the new legislation be drafted in such a way as to include bodies in this definition whose work focuses on advocacy for social change.

The IHRC was also concerned about the exclusion of bodies promoting human rights from the definition of “charitable purpose” provided for under Section 3. As formulated in the Bill, bodies that promote human rights would be required to demonstrate that their work fulfils the requirement of “benefit to the community” within the meaning of Section 3 in order to be eligible to be placed upon the Register of Charities. The IHRC proposed that the advancement of human rights should be expressly included within the definition of charitable purpose.

7. Women’s Rights in Ireland and the Convention on the Elimination of Discrimination Against Women (CEDAW)

In January, 2008, the IHRC made a submission to the Irish Government to inform the drafting of Ireland’s sixth periodic report to the UN Committee which monitors Ireland’s compliance with the human rights standards set out in the Convention on the Elimination of Discrimination against Women (CEDAW).

Issues highlighted in that report include: incorporation of the Convention into domestic law; raising awareness of the Convention; gender stereotyping; monitoring progress; violence against women; trafficking in women and girls; women in decision-making roles; women and poverty; women’s full and equal protection in employment; migrant women; older women; reproductive rights; millennium development goals.

Submission

8. Racial Discrimination in Ireland and the Convention on the Elimination of All Forms of Racial Discrimination (CERD)

In January 2008, the IHRC made a submission to the Irish government to inform the drafting of Ireland’s combined 3rd and 4th periodic reports to the UN Committee which monitors Ireland’s compliance with the human rights standards set out in the Convention on the Elimination of all Forms of Racial Discrimination (CERD)

Issues highlighted in the submission include: Incorporation of the Convention into Irish law; discriminatory treatment; migration concerns; funding and asylum seekers; the Traveller community; women; education and support for human rights institutions and NGOs.

Submission

9. Council of Europe Report on Human Rights in Ireland, April 2008

April, 2008, saw the report of the Council of Europe’s Commissioner for Human Rights, Thomas Hammarberg, following his visit to Ireland in November 2007. The report highlights concerns about the criminal justice system, as well as about the rights of many vulnerable groups including women, children, Travellers and immigrants. The IHRC also met with the Commissioner during his visit to Ireland.

Report

Enquiry and Legal Services Division

The Enquiry, Legal Services and Administration Division conducts enquiries into issues that may have human rights implications, appears before the High Court or Supreme Court as amicus curiae or ‘friend of the court’ in cases concerning human rights issues. The Division provides legal or other assistance to people seeking to protect their human rights and may institute proceedings to vindicate the human rights of persons in the State. A more detailed account of the functions of the Enquiries, Legal Services and Administration Division will be provided in a future edition of this Bulletin.

10. Rights of Transgendered People - Foy v. An t-Ard Chláraitheoir, Ireland and the Attorney General[[2]]

This Judgment, which is currently being appealed to the Supreme Court, concerned the refusal by the Registrar of Births, Deaths and Marriages to provide the Plaintiff, a transgendered person, with a birth certificate in her female gender. The Plaintiff challenged this refusal on a number of grounds under the Constitution’s fundamental rights provisions[[3]] and the ECHRA. Similar arguments had previously been made in 2002 when the Plaintiff brought proceedings before the same High Court Judge. Since that decision the European Court of Human Rights (ECtHR) ruled in two applications brought against the United Kingdom Government that the lack of legal recognition for transgendered persons in that jurisdiction violated the ECHR. Both the High Court Judgement and the ECtHR judgements were delivered prior to the ECHRA coming into force.

In his more recent Judgment, Mr Justice McKechnie ruled that his findings in 2002 in relation to the Plaintiff’s challenges on administrative and constitutional law grounds did not need to be re-examined in light of the European Court of Human Rights rulings. However, he issued a declaration of incompatibility under Section 5 of the ECHRA, stating that the relevant Irish legislation was incompatible with Article 8 of the ECHR (the right to respect for private life). Since the Plaintiff was not in a position to marry, her divorce proceedings not being concluded, the Judge did not issue a declaration in respect of Article 12 ECHR (right to marry). However, he clarified that he might have issued such a declaration, had the facts been different.

The State subsequently indicated that it wished to appeal Mr Justice McKechnie’s declaration of incompatibility and consequently the Court placed a stay on the declaration pending the Supreme Court’s consideration of the appeal.

Notwithstanding the appeal, the circumstances of the parties outlined in the Foy Judgment highlights the importance of examining the position of transgendered people under Irish law, with a view to ensuring adequate protection of their rights. This broader issue may require legislative attention, regardless of the outcome of the Supreme Court appeal. There has been a growing trend towards the legal recognition of transgendered persons in the Council of Europe and beyond, as was noted by the European Court of Human Rights in Goodwin v. The United Kingdom (2002) and I. v. The United Kingdom(2002). The Court held in those cases that a United Kingdom law preventing transgendered persons from obtaining birth certificates or marrying in their chosen gender was in breach of Articles 8 and 12 of the ECHR. Those caseshave been endorsed by the ECJ in K.B. v National Health Service Pension Agency (2004).

This was the first declaration of incompatibility issued by the High Court since the introduction of the ECHRA. Pursuant to that Act, the IHRC is required to be notified of any proceedings where a declaration of incompatibility is being sought. This is an important aspect of the Commission’s functions as it alerts the IHRC to proceedings in relation to which its amicus curiae function (friend of the court) might be usefully utilised. More particularly, the IHRC has committed itself to monitoring the response of Government to declarations of incompatibility as such declarations do not affect the ongoing operation of the law under scrutiny. The IHRC would be concerned to ensure that such declarations are properly responded to as they are a clear statement from the Courts of the State’s obligations pursuant to the European Convention on Human Rights. In the Foy case, while noting the stay on the declaration of incompatibility, the IHRC will be monitoring the response of the legislature to the important issue of transgendered rights and in particular to the two European Court of Human Rights cases of Goodwin and I.