Irish Centre for Human Rights Blog

This post is written by Emily Logan. Emily Logan is Adjunct Professor of Human Rights Practice at the Irish Centre for Human Rights, and Adjunct Professor at UCD School of Law. Professor Logan was also Chief Commissioner of IHREC from 2014-2019, and the first Ombudsperson for Children from 2003-2014.

In a recent Dáil statement, the Taoiseach said “as we re-open our country and rebuild our economy, we have the opportunity to reshape our society in ways that will benefit our citizens for generations to come”.

 

Human Rights 2020

For a number of reasons, 2020 is a significant year for Ireland in terms of its international reputation on human rights. In June, the vote at the UN headquarters in New York to elect non-permanent members of the UN Security Council will take place, with Ireland one of three countries seeking election.

Meanwhile, in Geneva, the home of the United Nations Treaty Bodies, preparations are underway for the examination of the Irish state in accordance with two of the nine core international human rights treaties.  The first is the International Covenant on Economic, Social and Cultural Rights and the second is the UN Convention Against Torture.

From its last examination in 2015, the Committee on Economic, Social and Cultural Rights identified one of its principal subjects of concern to be the persistent institutionalisation of persons with disabilities.¹ The committee recommended, amongst other things, that the State provide alternatives including community-based care programmes.

Preparations are also underway for Ireland’s third report under the UN Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.

The convention introduces a prohibition on torture, a provision from which states parties cannot derogate. Article 16 elaborates on the prevention of other acts of cruel, inhuman or degrading treatment or punishment, when such acts are committed by or are at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. Critical to the upcoming examination is Ireland’s failure, thirteen years later, to ratify the supplementary instrument to the convention, its optional protocol (OPCAT). The objective of OPCAT is to establish a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty to prevent such treatment. The international mechanism is referred to as the Subcommittee on Prevention of Torture (SPT) and the National Preventive Mechanisms (NPM).

 

Subcommittee on Prevention of Torture and National Preventive Mechanisms

There are key components to both mechanisms that will transform the concept of oversight of institutions in Ireland. Professor Malcolm Evans, Chair of the SPT, explains NPM’s as the frontline to the prevention of torture or ill treatment. He has described the powers as remarkable, with the right of access, without notice, to any place or person deprived of their liberty. He emphasises that preventive visiting is not the same as inspection, that it is a different conceptual technique, with the indispensable power of being able to speak in confidence and in private, to anyone, staff or residents, the SPT or NPM wishes to speak to. Where inspection and regulation offer an important but somewhat mechanistic system of oversight, preventive visiting assists in understanding the broader picture, including the culture, beyond the official version.

I’m reminded of trying to creatively get around legislative constraints to elicit the lived experience of children in detention in St. Patrick’s Institution.  Malcolm Evans recounts how the approach internationally is for governments to deny, defend or undermine those who dare to speak up. Ireland is no different. Every effort was made to discredit the reports of the children who said they were subject to ill treatment and it was some years later before they conceded.

Latterly, when I visited eight Direct Provision centres around the country, it was clear that I was never going to hear an honest appraisal of the experience of living in Direct Provision when I was accompanied by either a government or centre official. Additional off site discussions made possible by local NGO’s who had trusted relationships with the community, were a useful alternative.

 

Progress and obstacles

Professor Malcolm Evans, in his role as Chair of the SPT, has been very generous with the Irish state by visiting and making himself available to anyone interested in establishing the National Preventive Mechanism in Ireland. The campaign to establish an NPM has been led for some years by the Irish Council for Civil Liberties and the Irish Penal Reform Trust. In a previous submission to the UN Committee Against Torture, the Irish Human Rights and Equality Commission offered to co-ordinate a new model of collaboration of multiple, relevant bodies, both statutory and non-governmental, as opposed to setting up a new body. A response by the Department of Justice to a Parliamentary Question (PQ) on the subject this week by Green Party TD Roderic O’Gorman, indicated that the general scheme of the legislation should be with the Office of the Parliamentary Counsel before the end of 2020.² But why should it take so long, especially when, unusually in Ireland, there is such agreement between multiple organisations?

Apart from the predictable reluctance of the Irish state to give the kind of remarkable independent powers of oversight that Evans describes, what lies at the crux of the matter, is the broader definition the convention brings to deprivation of liberty. Where traditionally this was understood to mean criminal detention, the new definition goes beyond a judicial order to that of an order by any administrative or other authority.

As a result, deprivation of liberty now includes any form of detention, imprisonment or the placement of a person in a public or private custodial setting, which that person is not permitted to leave. This opens up for scrutiny, health and social care settings, psychiatric institutions, immigration detention, care and nursing homes, congregated settings, residential settings for people with disabilities, children’s detention facilities, among others.

 

Conclusion

The UN ICESCR Committee is correct, we need to stop the persistent institutionalisation of persons with disabilities. But there is also a constant need for honesty if ill-treatment of people in residential institutions is going to be tackled in this country.

It is clear that we still struggle with the contemporary realities of residential and institutional care that will ultimately keep us in this recurring cycle of abuse and inquiry.

Our history of ill treatment of people in multiple institutions, chronicled in well-known eponymous inquiries, makes it hard to comprehend why we persist with institutionalising people, without oversight beyond inspection and regulation.

We must break the pattern of post hoc inquiries, open our communities to preventive visiting, and ensure there is respect for the dignity of all.

 

¹ Concluding observations on the third periodic report of Ireland, 2015, E/C.12/IRL/CO/3,

available at https://documents-dds-ny.un.org/doc/UNDOC/GEN/G15/150/67/PDF/G1515067.pdf?OpenElement

² Written answers, Department of Justice and Equality, UN Conventions, 13 May 2020 available at https://www.kildarestreet.com/wrans/?id=2020-05-13a.1047