OPINION:A dangerous undermining of an already fragile equality and human rights architecture is being passed off on spurious cost-saving grounds, writes DONNCHA O'CONNELL
IN MOST advanced democracies the state establishes a range of bodies governed by statute to monitor its own conduct in the broad areas of equality and human rights. These bodies differ in composition and purpose but are usually marked by qualities of independence and expertise.
Some have quite explicit mandates - grounded in law - to change society, whether through enforcement of particular laws or, more broadly, through the promotion of certain values. Others might better be described as regulatory, working within a defined domain to counter the perceived adverse effects of non-regulation.
As part of an ostensible effort to save money, the Government has proposed to merge a number of superficially similar statutory bodies coming within the rather massive ambit of the Department of Justice, Equality Law Reform.
The bodies covered by the proposal are the Equality Authority, the Equality Tribunal, the Irish Human Rights Commission, the Office of the Data Protection Commissioner, and the National Disability Authority (NDA), although the latter body may have the option of being subsumed into another department entirely.
Despite appearances, it is important to recognise that each of these bodies operates under very different statutory mandates, discharging distinctive powers and functions.
Furthermore, they do so at a rather good price for the State. Their combined total budgets amount to less than €20 million, a fraction of the overall budget for the Department of Justice, Equality Law Reform. It is by no means clear that the creation of a single agency to do all of the work done by each of the bodies covered by the merger proposal will achieve any of the anticipated cost savings. In fact, it may well be the case that a larger body doing the same work will cost more.
But, the reality is that the proposal is not a sensible proposal for shared corporate services between different but compatible statutory bodies. Such a move could achieve efficiencies, but that is not what is being proposed. Instead, a dangerous undermining of an equality and human rights architecture is being passed off on spurious cost-saving grounds. The temptation to fiddle with mandates in legislating for structural change is all too obvious and there will be a need for legislation to underpin such change.
Look at what these bodies do, and do well, despite already existing challenges.
The Irish Human Rights Commission has been at its most effective exercising its advisory functions through credible and compelling observations on legislation and occasional reports. Despite some third-party or amicus curiae (provision of advice) interventions in important cases, its extensive powers in the areas of litigation and inquiry remain somewhat under-utilised for a variety of reasons, not least of which is lack of resources. The Equality Authority has been active in assisting claimants before the Equality Tribunal and the courts although, according to the ESRI, its cases reflect only a fraction of instances of discrimination experienced by people in the workplace and in gaining access to services and other opportunities.
The Equality Tribunal is a quasi-judicial adjudicative body not unlike the Employment Appeals Tribunal or the Labour Court, although with a remit beyond pure employment disputes.
The Data Protection Commissioner is a regulatory body closer in scope and functions to the office of the Freedom of Information Commissioner than any of the other bodies with which it is to be merged. In fact, some of those bodies come under supervision of the Data Protection Commissioner as far as data protection is concerned! The NDA is a purely advisory body, chaired, as it happens, by the same person who chairs the Equality Authority.
Even the most skilled designer of bureaucratic systems would admit that it is difficult to achieve "delivery simplification" in the merger of bodies that deliver different things. One cannot but fear that delivery simplification will really mean a reduction in that which is delivered.
When appearing before international human rights bodies, the State is never shy in drawing attention to its wonderful infrastructure for the protection and promotion of human rights and equality.
To rearrange this carefully developed architecture will reduce what we have to a prophylactic superstructure that facilitates an elaborate game of mere creative compliance.
• Donncha O'Connell is the former dean of law at NUI Galway where he teaches constitutional law, European human rights and equality law