OPINION:It is strange that little more than occasional intervention has resulted from thousands of approaches made to the current commission
THE IRISH Human Rights Commission is the State’s statutory watchdog for human rights and has been the subject of both negative and positive comment on these pages in recent days.
Legal affairs editor Carol Coulter, writing here a week ago about the need for a transparent appointments process for the next commission (Opinion and Analysis, July 4th), raised important questions about the effectiveness of the commission to date. Responding on Thursday, current commission president Maurice Manning focused on his view of the commission’s record of achievement – without commenting in detail on the appointments process, except to say there were legitimate differing views.
It is important not to blame statutory bodies or quangos for the failings of the State. A human rights commission will never fully satisfy the expectations of human rights activists, nor will it ever fully please the state whose human rights compliance it monitors. It should not, of course, seek to do either of these things.
While the independence required of any effective human rights commission may leave it unloved by many, it should nevertheless be taken seriously by state and non-state sectors alike.
It would be hard to say that the commission enjoys such status. For example, its comments on the 2004 citizenship referendum were dismissed (unfairly, as it happens) by the then minister for justice, Michael McDowell, as “weak, tendentious and fanciful”.
Most non-governmental organisations pay little regard to it in its day-to-day work.
It might be asked, cynically, what state in its right mind would establish a body to monitor – and even enforce – its own compliance with human rights obligations? When a state sets up a human rights commission or equivalent, it has, essentially, two options: lots of powers with minimal resources or minimal powers with lots of resources.
The Irish government went for the former option in establishing the Irish Human Rights Commission in 2000, although the degree to which it was under-resourced in its early years was probably overstated.
Although the commission took some time to become fully operational, it has exercised certain of its statutory powers admirably. Its submissions and observations on legislative proposals were a useful mechanism for proofing human rights draft legislation in a transparent manner, even if it has been harder to demonstrate the impact of such submissions.
More recently, the commission has undertaken – with the support of private philanthropic funding – a programme of human rights training for civil and public servants, the impact of which has yet to be realised.
Interventions in court cases – as an amicus curiae, or friend of court – are important, but it is surely more noteworthy that in its 10-year existence, the commission has not taken a single case in its own right despite having the clear statutory power to do so.
Dr Manning asserts that the commission has dealt with more than 3,000 queries. But what has this assistance amounted to in concrete terms for those who approached the commission? Even allowing for the high number of ill-founded complaints that human rights bodies receive, it is surely strange that little more than the occasional amicusintervention resulted from the thousands of approaches made to the commission.
Despite the fact its founding statute confers on the commission a significant power of inquiry, it has, to date, conducted only 2½ such inquiries. Its first was on the human rights implications of private pension schemes. Its second, which took five years to complete and has had negligible impact, was on institutional care provided by the Brothers of Charity.
In relation to the Magdalene Laundries controversy, the commission recommended that a full inquiry be carried out by some other body. This led to a rather curt dismissal by the then attorney general, Paul Gallagher.
The functional connection between the commission and the Department of Justice undoubtedly lies at the root of many of the commission’s problems, real and perceived. The commission itself has expressed dissatisfaction with this, calling for a clearer line of reporting directly to the Oireachtas.
That said, other comparable bodies – such as the Ombudsman for Children – have managed similarly difficult relationships better by asserting and defending their independence regardless of the real or imagined political consequences.
One academic commentator, Fiona de Londras of UCD, said the commission had been too pragmatic when it might have been “more muscular in its statements and interactions”.
The appointment of the next commission, however reconfigured, presents an opportunity for renewal. A renewed commission will be as good as its individual members led by a president with the expertise, credibility and independence to authoritatively and authentically champion human rights – not just to institutions of power but to a wider audience. The next commission will not get its own way on everything, nor should it. It might, however, become a resource whose views can be neither ignored nor dismissed. It might more comfortably occupy that hazardous space between State and non-State.
Donncha O’Connell lectures in constitutional law and European human rights in NUI, Galway. He is the editor of the Irish Human Rights Law Review.
Ursula Kilkelly is a senior lecturer in law at University College Cork and director of the child law clinic there