The Irish Human Rights and Equality Commission (IHREC) has just launched its first Strategy Statement. This sets out an aspiration to be “aligned to an ambitious and courageous approach to equality and human rights”. There is much that is positive and promising, however, there are some indications that ambition and courage might not be sufficiently to the fore.
One of the five strategic goals is the “proactive implementation of our legal powers, in particular public duty”. Actions committed to include ensuring that duty-bearers are more effectively held to account. This must surely promise ambition and courage.
But any sense of ambition is tempered by the limited aim of duty-bearers: “being measurably more aware of their obligations”. It is one thing to be aware of obligations, another to act on them. Any sense of the imperative of courage is tempered because the clarification and further development of human rights and equality law is identified as the indicator of success. This indicator suggests the IHREC will prioritise its support for cases deemed strategic for its capacity to achieve new legal interpretations of the law in the Courts. A more courageous approach would have been to support a critical number of cases, sufficient to develop and sustain a culture of compliance with the law among policy makers, employers and service-providers.
The IHREC launch was accompanied by an extraordinary press release from Inclusion Ireland, the civil society organisation promoting the rights of people with intellectual disabilities. On the back of the Áras Attracta scandal and various HIQA reports highlighting human rights abuses against people with disabilities in residential settings, it had requested IHREC to conduct an inquiry into the continued use of such congregated settings and the inadequate pace of de-institutionalisation of people with disabilities. It noted an Inquiry had been requested a year ago in February 2015 without response. This raises serious questions of ambition and courage on the part of IHREC.
The emphasis on the public duty in the IHREC Strategy reflects important ambition. The legislation that established the IHREC in 2014 included a new duty on public-sector bodies “to have regard to” eliminating discrimination, promoting equality of opportunity and protecting human rights in carrying out their functions. This was a dramatic development in our human rights and equality legislation.
However, this public-sector duty has yet to be implemented to any extent. Public sector organisations have argued that they await guidance from IHREC before fulfilling what is still an obligation on them. The development of guidance, supports and action by IHREC to promote and enforce the public-sector duty will be key to realising the potential in this new duty.
IHREC launch its Strategy in a context of growing levels of economic inequality, poverty and deprivation. It is courageous that the Strategy places particular emphasis on social and economic rights. Actions committed to include: human rights and equality proofing budgetary processes, “enhanced support for expanded protection measures for socio-economic rights”, and ensuring public awareness, understanding and support for socio-economic rights. This activity will be central to any ambition to contribute to fulfilling human rights and achieving equality.
The Strategy includes a goal of “promoting understanding of the indivisibility of equality and human rights”. Human rights are indivisible insofar as you cannot cherry-pick which human rights you wish to respect, protect and fulfil. However, the goal appears to misunderstand the difference between equality and human rights, and to put at risk the challenge of integrating these two mandates in a manner that is beneficial to both.
The experience of integrating these two mandates in a single body has not been promising, across the European Union. There is a growing practice of merging equality bodies and national human rights institutions. The language, tradition, and approach of human rights has tended to dominate in these merged bodies to the exclusion of some of the concerns and ambitions for equality. The language of human rights is already over-used in the IHREC Strategy and this does not bode well.
The Strategy establishes a concern for “implementing and monitoring equality and human rights standards”. Human rights are minimum internationally-set standards. Non-discrimination is one of these standards. Equality is, sadly, not recognised as such a minimum standard. Equating equality and human rights in this manner risks reducing the ambition for equality to the minimum standard of non-discrimination. Equality should, however, be about seeking more substantive outcomes of economic, political, cultural and affective equality for individuals, groups and society itself.
There is work to be done by IHREC in integrating its mandates for equality and human rights. Otherwise the ambition for human rights will compromise the ambition for equality that must accompany it.