Legal structure exists to protect our rights but it is up to all of us

Emily Logan says if we use existing legal structures and treat individuals around us as human beings, we won’t need to go on air to have our rights upheld.

There has been much criticism and frustration expressed about new politics in Ireland and how, above all, it has resulted in legislative inertia and the slow passage of legislation through the Oireachtas.

Political inclinations and legislative inertia aside, there are encouraging signs, however incremental, that our politicians are increasingly open to the concepts of human rights and equality.

As the body with responsibility to promote and protect human rights and equality in Ireland, in the Irish Human Rights and Equality Commission we observe and hear more frequent references lately to human rights and equality standards by the legislature in political debates taking place in both Houses of the Oireachtas.

Most recently we observed this in the context of Leaders’ Questions in the Dáil and the debate on the treatment of Michael and Kathleen Devereaux, separated after 63 years of marriage by the administration of the Fair Deal scheme, an action that was described by the Taoiseach as devoid of humanity.

The debate developed into concern expressed by Sinn Féin deputy leader Mary Lou McDonald about why any individual felt compelled to turn to the airwaves to secure their most basic and fundamental rights.

Their experience was quite rightly framed as a matter of human rights. Central to the concern was the simple question of guaranteeing human dignity.

The idea of human dignity is part of the contemporary international model of human rights which emerged in the form of the Universal Declaration of Human Rights, after World War II had demonstrated our propensity as human beings to harm each other.

Human rights are a particular view of the world rooted in the idea that we are equally worthy of esteem. The idea of esteem is now manifested in most jurisdictions through the prohibition on unjustifiable discrimination. There was nothing justifiable about the way Michael and Kathleen Deveraux were treated by the State.

But are we to believe that our only protection from the inhumanity of such administrative action is the relentless and valiant efforts of public service by Joe Duffy? The answer is no.

Emily Logan

This year marks the 80th anniversary of the Constitution. Recently, we heard the Chief Justice pay tribute to the “real architect” of the Constitution, John Hearne, describing the document as a prescient Constitution.

An example of the prescience of this document is the spirit of Article 45 which sets out guiding principles for legislators “to safeguard with especial care the economic interests of the weaker sections of the community, and, where necessary, to contribute to the support of the infirm, the widow, the orphan, and the aged”.

Following the Deveraux’s experience, I have written to the Minister for Health Simon Harris to draw his attention to the legislation introduced in November 2014 that creates a framework for public bodies to help ensure that decision-making of the kind described by the Taoiseach can be avoided in the future.

The Irish Human Rights and Equality Commission Act was introduced to establish our organisation with a mandate to protect and promote human rights and equality.

Traditionally in legislation, human rights and equality come in the form of “negative obligations”, where the state is prohibited from certain actions to ensure the principle of non-discrimination.

In this case the Oireachtas introduced a “positive obligation”, a law that places a legal obligation, called the public sector duty, on all publicly funded bodies to proactively do three things; to eliminate discrimination, to promote equality of opportunity and treatment, and to protect the human rights of the persons to whom it provides services.

Public sector duty envisages three core steps to be taken by public bodies:

  • Firstly, in preparing strategic plans, they must assess and identify the human rights and equality issues that are relevant to their functions, including service providers.
  • Secondly, public bodies must then identify the policies and practices that address these issues.
  • Thirdly, public bodies must report annually in a manner accessible to the public on their developments in that regard.

Of significance is that the definition of a public body, which includes any organisation either partially or fully funded by the State.

While there has been an increase in the outsourcing of health and social care to what are described as “non-state actors”, this does not mean the State outsources its responsibility for the treatment and respect for older people.

The commission continues to call on the Government to ensure that public procurement should demand that bidders demonstrate how they are to apply the public sector duty principles of human rights and equality of treatment by any service provider.

When we first set up the commission, we surveyed over 1,000 people to understand attitudes to human rights and equality. There was an overwhelming response to Ireland being a more socially just country.

Thinking of the many older people for whom the State holds responsibility to ensure they are treated with esteem, requires all of us to see individuals as first and foremost human beings.

Human rights in this sense has been described as a visibility project: its motivation is to get us to see the people around us, particularly those whom we might not see or groups of people that it might be easier to ignore. The 2016 Census data indicate the continuing rise in the average age of the Irish population.

We cannot ignore this fact and our responsibility to safeguard the human dignity of everyone living in Ireland.

Emily Logan is the chief commissioner with the Irish Human Rights and Equality Commission.



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