Ireland

Updated4 July 2021

Irish Human Rights and Equality Commission (IHREC)

International accreditation status and SCA recommendations

The Irish NHRI was accredited with A status in November 2015. In its recommendations, the SCA encouraged the NHRI to advocate for adequate funding while safeguarding its financial independence. The Irish NHRI will be reviewed by the SCA in June 2021.

Independence and effectiveness of the NHRI

Changes in the regulatory framework applicable to the Institution

The Commission has been designated as Ireland’s Independent National Rapporteur on the Trafficking of Human Beings. To bring this change into effect, a Statutory Instrument has been signed by the Minister for Justice confirming the Commission in this new additional role.

Developments relevant for the independent and effective fulfilment of the NHRIs’ mandate

There has been no significant development affecting the IHREC’s independent functioning. The Commission accounts directly to the Oireachtas (Irish Parliament) for its statutory functions and the provisions contained within the Irish Human Rights and Equality Act 2014 ensure its structural and financial independence.

The Government has committed to ratifying OPCAT before the end of 2021, and is currently drafting the General Scheme of the Inspection of Places of Detention Bill. The Commission will be assigned the National Preventative Mechanism coordinator role under OPCAT, pending ratification. The Commission has emphasised the importance of appropriate funding, staffing and data access for the effective function of this co-ordinating body.

The Commission has been designated as Ireland’s Independent National Rapporteur on the Trafficking of Human Beings. As National Rapporteur, the Commission will prepare and publish monitoring reports and thematic reports evaluating Ireland’s overall performance against the State’s international obligations such as the EU’s Anti-Trafficking Directive, the Council of Europe’s Convention on Action against Trafficking (2005) and the Palermo Protocol to the UN Convention against Organised Crime (2000). The Commission has been allocated additional resources for 2021 to service the requirements of this Rapporteur function, including additional staff and operational resources.

IHREC, Submission to the United Nations Human Rights Committee on the List of Issues for the Fifth Periodic Examination of Ireland (August 2020)
IHREC, Commission Takes on New Role as Ireland’s National Rapporteur on the Trafficking of Human Beings (press release, 22 October 2020)
IHREC, Submission to the Third Universal Periodic Review Cycle for Ireland (March 2021)

Human rights defenders and civil society space

In the 2020 ENNHRI Rule of law Report, the Commission outlined its concerns that the definition of the terms ‘political purposes’ and ‘third party’ in the relevant legislation are overly broad and include a range of Irish civil society organisations (CSOs), and therefore put constraints on the advocacy functions of CSOs. They may be required to comply with the strict requirements of the legislation, which impacts on their ability to carry out their work and seek funding.

As the recently published General Scheme of the Electoral Reform Bill does not address these issues, the Commission continues to have concerns about undue restrictions on civil society activity in Ireland.

The Commission has engaged with the Oireachtas (Irish Parliament) and international monitoring mechanisms in support of civil society. In a February 2021 submission to the Committee on Housing, Local Government and Heritage on the General Scheme of the Electoral Reform Bill, the Commission repeated its view that the work of civil society organisations in Ireland, and their sources of funding, should continue to be clearly regulated and subject to high standards of scrutiny, transparency and accountability. However, such regulatory measures should avoid placing undue restrictions on wider civil society activity engaging in legitimate advocacy aiming to influence political decision making and policy making, including with regard to human rights and equality issues. The Commission recommended consideration of whether further reforms of the Electoral Acts are required in order to avoid placing undue restrictions on civil society.

In August 2020, the Commission recommended that the Human Rights Committee asks the State to ensure that the planned review of the Electoral Acts considers whether the provisions are proportionate and do not unduly restrict the right to freedom of association and the ability of civil society organisations to freely carry out their activities.

In its submission to the United Nations Committee on the Elimination of Discrimination Against Women in August 2020, the Commission highlighted the repeated calls for funding to be restored to pre-austerity levels for civil society organisations and community-based groups working to promote women’s rights, including to ensure their ongoing sustainability. It recommended that the State adopt measures to ensure that the resources allocated for organisations working in the field of human rights and equality, including women’s rights, are protected in future situations of economic recession and budgetary cuts.

The Commission has hosted a number of Civil Society Forums, to create a space for it to discuss human rights and equality issues with civil society in a structured way. It hosted a Forum on combatting racism and promoting intercultural understanding in May 2019, on the housing and accommodation crisis in October 2019 and on COVID-19 in October 2020.

IHREC, Submission to the Committee on Housing, Local Government and Heritage on the General Scheme of the Electoral Reform Bill (January 2021)
IHREC, Submission to the United Nations Human Rights Committee on the List of Issues for the Fifth Periodic Examination of Ireland (August 2020)
IHREC, Submission to the United Nations Committee on the Elimination of Discrimination Against Women on the follow-up procedure to Ireland’s combined sixth and seventh periodic report (August 2020)

Checks and balances

The Commission has identified concerns over the system of checks and balances in particular in connection with the state’s handling of the COVID-19 pandemic.

In particular, a new research published in February 2021 by the Commission has found that the Government has persistently blurred the boundary between legal requirements and public health guidance in its COVID-19 response, generating widespread confusion about the extent of people’s legal obligations. While the report considers the public health threat is sufficient to provide a justification for some restrictions, it finds that: parliamentary oversight of Ireland’s emergency legislation has been lacking; shifting relations between the National Public Health Emergency Team (NPHET) and Government makes it difficult to ascertain where, if at all, human rights and equality concerns are being addressed; there has been limited or no consultation with those groups most likely to be affected in respect of the public health framework; and the Government’s making and presentation of Regulations raises serious rule of law concerns. In particular, the Regulations have applied retroactively, are frequently not published for several days after they are made, are misleadingly described in official communications, and are inadequately distinguished from public health advice.

The report makes a number of core recommendations, including the establishment of a parliamentary Committee on Equality, Human Rights and Diversity to scrutinise emergency legislation and ministerial regulations; the use of sunset clauses for all emergency powers; an expert sub-group within NPHET on human rights, equality and ethical concerns; and a published human rights and equality analysis of each emergency regulation within 48 hours of their being made.

The Commission has also raised its concerns about the very limited participation of persons with disabilities and Disabled Persons Organisations in the development and oversight of the COVID-19 response. The COVID-19 emergency has highlighted in sharp relief that if a standard of equal dignity and equal participation is not met in ‘normal’ times, it can rapidly become a casualty in times of crisis. The Commission has recommended that an explicit human rights and equality-based approach be taken to build a transition out of COVID-19 that is fully inclusive of people with disabilities.

As part of the system of checks and balances, the Commission engages in analysis of key draft legislation with a view to submitting observations to government and parliament. For example, it is now analysing of a bill that would introduce changes to modernise the process for the appointment of judges (see below under the section on justice system).

As part of its oversight of the State’s activities, the Commission also:

made a submission to the Special Committee on COVID-19 Response regarding the adequacy of the State’s legislative framework to respond to the COVID-19 pandemic and potential future national emergencies in September 2020, calling for an effective mechanism to provide close parliamentary oversight of the implementation of emergency legislation and more detailed, disaggregated data on the implementation of emergency powers;
engages with regional actors and international monitoring mechanisms, including through submissions on the European Semester 2020 and the National Reform Programme, the implementation of the Revised European Social Charter and the implementation of the International Covenant on Civil and Political Rights in 2020.
called for disaggregated data to be provided by the government. Concerns have been repeatedly raised by treaty monitoring bodies, including the Committee on the Elimination of Racial Discrimination, the Committee on the Elimination of Discrimination against Women, the Committee on the Rights of the Child, and the Committee on Economic, Social and Cultural Rights that Ireland does not have sufficient disaggregated data to allow an adequate and regular assessment of the extent to which it is meeting its obligations under international law. For example, the recent report published by the Commission on Ireland’s use of emergency powers during the Covid-19 pandemic highlights that An Garda Síochána (Irish police force) does not maintain disaggregated data tracking how enforcement powers are exercised against particular groups
exercised its amicus curiae powers in the Supreme Court case, Ali Charaf Damache v the Minister for Justice and Equality on the procedures for the revocation of citizenship, as highlighted below (see the section on other challenges to rule of law and human rights protection).

IHREC, Submission to the Oireachtas Joint Committee on Justice, COVID-19 and Civil Liberties (May 2021)
IHREC, State COVID Planning Must Not Discriminate Against People with Disabilities (press release, 14 January 2021)

Functioning of the justice system

Some measures are currently underway in Ireland to modernise the process for the appointment of judges. Proposed legislation envisages the establishment of a nine-member Judicial Appointments Commission, made up of both lay and legal members. The proposed Commission would develop upgraded procedures and requirements for office selection, including selection procedures, interviews, judicial skills and attributed having regard to several criteria – including such matters as diversity.

IHREC is currently conducting an analysis of the draft legislation with a view to submitting observations to government and parliament.

The Commission has repeatedly highlighted the State’s failure to ensure independent, thorough and effective investigations, in line with international standards, into allegations of human rights abuses in respect of Magdalene Laundries, Mother and Baby Homes, reformatory and industrial schools, and the practice of Symphysiotomy. The Mother and Baby Homes Commission of Investigation’s Final Report was published by the Government in January 2020. Concerns had been raised regarding the narrowness of the investigation’s remit in terms of the institutions, types of abuses, and persons under investigation.

The report, and the actions stemming from it, further illustrate the ongoing need for a systemic change in how the State approaches and treats survivors seeking justice and redress for human rights abuses, to ensure full accountability and avoid inflicting further and ongoing trauma. The Retention of Records Bill 2019, referenced in the 2020 ENNHRI Rule of law Report, lapsed due to the dissolution of the Parliament in January 2020. Due to the concerns raised, the Government has recently indicated that it will delay and re-examine the planned legislation. With regard to the O’Keeffe v Ireland case, the Commission continues to call on the State to overhaul its ex gratia scheme to ensure effective remedy to those who are being denied justice by State inaction.

In its 2020 submission to the Human Rights Committee, the Commission raised a number of issues relating to fair trial rights and equal access before the law in Ireland, including the following: chronic delays in the Courts system; repeated delays in progressing the planned legislation to reform the system of criminal legal aid; and the continued operation of the Special Criminal Court despite repeated calls for its abolition. The Commission noted that the move towards remote hearings during the pandemic has given rise to concerns on the right to a fair trial, including the ability to fully participate in proceedings, access to legal assistance, access to information, and access to translation and interpretation services. The Commission also raised its concerns about the civil legal aid system, as set out in the 2020 ENNHRI Rule of law Report. The Department of Justice has recently committed to reviewing the civil legal aid scheme and bringing forward proposals for reform in 2021.

As an update to its previous comments on wardship, the Commission has been granted liberty by the High Court to exercise its amicus curiae function in a case that raises important questions about the human rights and equality of persons with disabilities and wards of court. This case challenges the constitutionality and compatibility with the European Convention of Human Rights of the wardship jurisdiction of the High Court and the Marriage of Lunatics Act 1811.

As highlighted above, the Commission, in its capacity as an “A” Status National Human Rights Institution, engages with United Nations Treaty Monitoring mechanisms on Ireland’s adherence to its international Human Rights obligations, including in the area of access to justice.

The legal work of the Commission includes amicus curiae interventions, legal assistance to individuals, own name proceedings and equality reviews.

In addition to the case set out above, recent examples of amicus curiae interventions by the Commission include:

In the Matter of JJ (Supreme Court): admission into wardship of an 11-year-old boy for medical treatment reasons.
Christina Faulkner and Bridget McDonagh v. Ireland (European Court of Human Rights): access to housing and legal aid for members of the Traveller community.

Recent examples of the Commission’s Legal Assistance cases include:

Robert Cunningham v. The Irish Prison Service: this High Court case examined whether the Irish Prison Service must provide reasonable accommodation under the EEA to prison officers with disabilities.
An Asylum Seeker v. A Statutory Agency: the Commission provided legal representation to a woman who is an asylum seeker. The Workplace Relations Commission found the statutory agency in refusing her a driving licence had discriminated against the woman, on race grounds. The WRC decision was subsequently appealed to the Circuit Court. The Circuit Court overturned the decision of the WRC. The Commission is providing legal representation to the woman in proceedings before the High Court, appealing the Circuit Court decision.

IHREC, Taoiseach’s Mother and Baby Homes Apology Must Mark Start of Human Rights Compliant Redress and Restitution Process (press release, 12 January 2021)
IHREC, Submission to the United Nations Committee on the Elimination of Discrimination Against Women on the follow-up procedure to Ireland’s combined sixth and seventh periodic report (August 2020)
IHREC, Submission to the United Nations Human Rights Committee on the List of Issues for the Fifth Periodic Examination of Ireland (August 2020)
Department of Justice, Action Plan 2021
IHREC, Human Rights and Equality Commission Granted Leave to Appear as Amicus Curiae in Disability Rights Case (press release, 18 November 2020).
IHREC, Annual Report 2019
IHREC, Submission to the Minister for Justice on the General Scheme of the Judicial Appointments Commission Bill (April 2021)
IHREC, High Court Decision Against Asylum Seeker Builds Pressure on Government for Driver Licence Solution (press release, 28 March 2021)
IHREC, Supreme Court Ruling ‘Very Significant’ For the Rights of Parents and their Children under the Constitution (press release, 22 January 2021)

Media pluralism and freedom of expression

The Commission has highlighted, including in its recent submission to the Committee on the Elimination of Racial Discrimination, that a strong link can be observed between editorial decisions and the emergence of online and real-world hate speech and incidents. It has recommended that the State encourage the media to update their codes of professional ethics and press codes and provide appropriate training for editors and journalists, to reflect the challenges of the modern media environment where the circulation of prejudicial and discriminatory content and hate speech are concerned.

The Commission recently submitted observations to the Joint Committee on Media, Tourism, Arts, Culture, Sport and the Gaeltacht on the General Scheme of the Online Safety and Media Regulation Bill, which will transpose the revised Audiovisual Media Services Directive into Irish law. The Bill also provides for the establishment of a multi-person Media Commission, including an Online Safety Commissioner, with appropriate compliance and sanction powers. The Commission expressed concern that the current approach in the draft law to defining harmful online content is vague and open-ended, and lacks legal certainty. The Commission recommended the definition of harmful content be revised to include online hate speech and content inciting violence or hatred against groups protected under Article 21 of the Charter of Fundamental Rights of the European Union. The Commission also recommended terms that relate to hate speech, including racism, sexism and ableism be defined in new law. The Commission also noted its concern that the bill had no detail on the role or functions of the Online Safety Commissioner. Considering the significant and far reaching powers being proposed for a new Media Commission, and the Online Safety Commissioner, in regulating speech in broadcasting and online in Ireland, the Commission recommended that the bill be strengthened through stronger and more consistent reference to human rights and equality standards.

IHREC, Submission to the Joint Committee on Media, Tourism, Arts, Culture, Sport and the Gaeltacht on the General Scheme of the Online Safety and Media Regulation Bill (March 2021)
IHREC, Submission to the United Nations Committee on the Elimination of Racial Discrimination on Ireland’s Combined 5th to 9th Report (October 2019).
Department of Tourism, Culture, Arts, Gaeltacht, Sport and Media, Online Safety and Media Regulation Bill (January 2020)

Other relevant developments or issues having an impact on the national rule of law environment

In February 2021, the Minister for Children, Equality, Disability, Integration and Youth published a ‘White Paper to End Direct Provision and to Establish a new International Protection Support Service’ (1). It sets out a new Government policy to replace Direct Provision by 2024 and establish a new system for accommodation and supports for applicants for International Protection, grounded in the principles of human rights, respect for diversity and respect for privacy and family.

The Commission exercised its amicus curiae powers in the Supreme Court case, Ali Charaf Damache v the Minister for Justice and Equality. The case examined the lawfulness of the existing procedure under the Irish Nationality and Citizenship Act 1956, which provides for a power to revoke Irish citizenship from people who acquire Irish nationality. The Court held that the relevant legislative provisions do not meet the high standards of natural justice required due to the absence of necessary procedural safeguards and are therefore unconstitutional. It has ordered that these provisions are replaced by the Minister with the approval of the Oireachtas.

(1) https://www.gov.ie/pdf/124757/?page=0

Impact of measures taken in response to COVID-19 on the national rule of law environment

Most significant impacts of measures taken in response to the COVID-19 outbreak on the rule of law and human rights protection

As highlighted above, the Commission has a number of significant concerns regarding the impact of the COVID-19 pandemic and related measures on human rights and equality in Ireland, including that:

The Government has persistently blurred the boundary between legal requirements and public health guidance in its COVID-19 response;
Parliamentary oversight of Ireland’s emergency legislation and the use of appropriate sunset clauses has been lacking;
There is a lack of human rights and equality expertise in the decision-making structures put in place to tackle the pandemic, and in the systems that implement and scrutinise these decisions;
The introduction of restrictions by the Minister for Health through regulations makes it difficult to maintain effective democratic oversight;
There is a lack of published disaggregated data to confirm indications that the Garda enforcement of emergency COVID powers has disproportionately affected young people, ethnic and racial minorities, Travellers and Roma;
There has been limited or no consultation with those groups most likely to be affected in respect of the public health framework;
The significant gaps and vulnerabilities in existing policy and services have resulted in a disproportionate impact of COVID-19 on people with disabilities and Travellers;
The procedural safeguards for detention on mental health grounds have been relaxed;
There have been a number of COVID-19 clusters in Direct Provision, and concerns are being raised by residents and civil society organisations about the inability of those in shared accommodation to effectively self-isolate.

The lessons learned thus far during this crisis regarding how we can enhance protections of human rights, equality and the rule of law when adopting and implementing emergency powers must be brought to bear on how we continue to address the pandemic, as well as on how we meet the challenges of any potential future national emergency. Such lessons include:

The need to establish a parliamentary committee on diversity, human rights and equality to provide oversight of rights concerns in the law-making process;
A series of specific oversight measures, such as rigorous sunsetting and parliamentary validation of all core emergency regulations;
New structures to ensure rights are robustly considered in the making of these regulations.

COVID-19 has both exposed and exacerbated existing inequality in Ireland. Over the course of the pandemic, this inequality is evidenced in the sharp divergence in the experience of different groups in our society and, at times, a divergence in rights. Such groups include people with disabilities, older people, people living in congregated settings and overcrowded accommodation, including Direct Provision, Travellers and Roma, and people in precarious employment. In response to this magnification of our most fundamental societal challenges, an explicit human rights and equality-based approach must be taken to the transition from COVID-19. Such an inclusive recovery programme requires long-term lessons to be learned regarding institutional models of care and congregated settings, the delivery of State functions through private, non-State actors, the strengthening of data collection systems and addressing delays in legislative reform and policy implementation processes. In particular, positive measures must be taken across a range of areas to ensure that all groups of people with disabilities transition out of the emergency phase on an equal basis with each other and the rest of the population.

The Commission has taken various measures to address the issues exposed above, and more generally to promote and protect rule of law and human rights in the crisis context. It notably:

Published research evaluating Ireland’s use of pandemic related emergency powers in February 2021;
Made submissions in June and September 2020 to the Oireachtas Special Committee on COVID-19 Response regarding the adequacy of the State’s legislative framework to respond to the pandemic and potential future national emergencies and on the impact of COVID-19 on people with disabilities;
Made a submission to the Joint Committee on Justice in May 2021 regarding whether the appropriate balance between the fundamental rights of members of Irish society and the State’s duty to protect public health was struck during the COVID-19 pandemic;
Highlighted the impact of COVID-19 on the protection of civil and political rights and children’s rights in Ireland in its 2020 submissions to the Human Rights Committee and the Committee on the Rights of the Child;
Highlighted the disproportionate impact of COVID-19 on Travellers and people living in social housing in its 2020 submission to the European Committee of Social Rights;
Held a Civil Society Forum on COVID-19 and human rights and equality in October 2020, including discussions on emergency legislation and regulations and the impact on people in congregated settings.

IHREC, Submission to the Oireachtas Joint Committee on Justice, COVID-19 and Civil Liberties (May 2021)
IHREC, Submission to the Special Committee on COVID-19 Response Regarding the Adequacy of the State’s Legislative Framework to Respond to COVID-19 Pandemic and Potential Future National Emergencies (September 2020).
IHREC, State COVID Planning Must Not Discriminate Against People with Disabilities (press release, 14 January 2021)
IHREC, The Impact of COVID-19 on People with Disabilities: Submission by the Irish Human Rights and Equality Commission to the Oireachtas Special Committee on COVID-19 Response (June 2020)
IHREC, Emergency Legislation Around COVID Must be the Exception Not the Norm (press release, 9 September 2020)
IHREC, Statement from the Irish Human Rights and Equality Commission In Respect of Direct Provision (press release, 19 August 2020)
Conor Casey, Oran Doyle, David Kenny and Donna Lyons, Ireland’s Emergency Powers During the Covid-19 Pandemic (IHREC, 2021)