ANALYSIS:The report of the working group on a merged human rights and equality commission provides the basis for a fresh start in a crucial area
WHEN THE report of the Working Group on the Irish Human Rights and Equality Commission was published earlier last month it was barely noticed. Yet it formed one of the final chapters in a story that has generated numerous headlines in the past decade and more.
Its proposals on the formation of a new body come at a time when the rights of the marginalised – including migrants, Travellers, the poor, those with disabilities – are not high on the political agenda.
Having a body with teeth whose task is to combat discrimination and human rights violations could make a real difference in how we deal with the austerity programme and reconstitute our society.
The body will replace the Equality Authority and the Human Rights Commission. The former was established in 1999 under the Employment Equality Act 1998 to ensure compliance with that Act, which outlawed discrimination in employment on nine grounds. In 2000 the Equal Status Act outlawed discrimination in the provision of goods and services on the same nine grounds, and the remit of the authority was extended to ensure compliance with this Act also. An Equality Tribunal was also established to hear and adjudicate on complaints of discrimination under both Acts.
Over the succeeding years the authority was often in the news as it supported people taking complaints about discrimination on various grounds. As a result, findings were made in favour of Travellers refused service in pubs, pregnant women sacked when their pregnancy became known, people with disabilities whose needs were not catered for by their employers, older people denied car insurance . . . the list is long.
As a result, public awareness of the meaning of the legislation grew.
It is no secret, however, that it was not popular in government and Civil Service circles, especially as more than half the cases it took were against government bodies.
The Human Rights Commission was set up in 2000 under the Belfast Agreement. It had a wide remit, including reviewing government policy from a human rights perspective, the taking of cases where it considered human rights had been violated, the conducting of inquiries and the promotion of human rights.
It too evoked the ire of government when it produced a report criticising the use of Shannon airport by US aircraft involved in rendition, a stance subsequently vindicated by the European Parliament, among others.
Both bodies suffered disproportionate cuts to their budgets in 2008, and have since limped along until the expiry of their mandates last year.
The recommendations of the working group provide the basis for a fresh start. They stress the importance of the independence of the new body, and lay down a method of appointment of its members – through open competition adjudicated by an independent group – at an arm’s length from the government of the day. The chief commissioner, who will chair the commission, should be appointed in the same way, and should be part-time, they say.
Its independence will be further underlined by the recommendation that the new commission reports to an Oireachtas committee, rather than a government department.
The group recommends that the new commission should take cases of a strategic nature, rather than deserving individual cases, pointing out that it is not a legal aid body. This makes sense, as the taking of cases should have an educational and policy-formation impact. The group also recommends that the new commission should have effective powers of inquiry, based on the framework in the Commissions of Investigation Act 2004.
The new legislation should include a positive duty on public bodies to have regard to human rights and equality, according to the group, although it is not clear what enforcement provisions, other than a formal government review after three years, are envisaged.
The seriousness with which the group approached its task is evident from the section of its report on performance evaluation, when it states: “The focus in setting objectives and measurement of performance should be on assessing the impact of the IHREC on improving people’s lives, rather than on how good the organisation appears to be.” It sets out a number of concrete questions that will need to be answered in any such evaluation.
If this is incorporated into the structure and constitution of the new body, it could be an effective bulwark against discrimination and human rights violations, which could increase as the economic crisis worsens.
One could quibble with aspects of the report: the references to “new and emerging human rights” and “dignity” are woolly and imprecise; the pending absorption of the Equality Tribunal into a new Workplace Relations Commission, which is unlikely to take on cases under the Equal Status Act, could undermine much of the equality dimension of the new body; and there is a need for clarity about how a positive duty on public bodies to promote human rights and equality can be enforced.
Overall, however, if the legislation follows its recommendations, it will provide a blueprint for an effective human rights and equality commission.
Carol Coulter is Legal Affairs Editor