What is it about Irish legislation? We set up this complicated institutional apparatus to enact it. We elect all sorts to devise and deliberate on it. Much of the time of civil society is diverted to lobbying for it. Legislation doesn’t come cheap or easy. However, while we are entitled to have some minimum expectations, it would be foolish to expect anything much.
The last session of the Dáil passed hardly any new legislation. The scandals in Console and St John of God’s revealed that the Department of Justice and Equality had failed to commence large portions of the Charities Act 2009. The Irish Human Rights and Equality Commission Act 2014 included a duty on public bodies to have regard to the need to eliminate discrimination, promote equality and protect human rights in carrying out their functions. Not only is this piece of the legislation not being implemented, public bodies don’t even seem to know it is in place.
The big test for this duty on public bodies is now. The duty specifically requires public bodies, when they are preparing strategic plans, to assess the equality and human rights issues relevant to their functions and to identify policies, plans and programmes they are deploying or will deploy in response to these. Under the Public Service Management Act 1997 Government Departments are required to produce a strategy statement within six months of the appointment of a new Minister. These statements are currently being prepared by all Government Departments.
The Equality and Rights Alliance has been doing some investigating.
The strategy statement process is being led by the Department of the Taoiseach. It has not included in its guidance any reference to the public-sector duty being one of the obligations each Department should be mindful of in preparing their strategy statement. The personnel in Government Departments responsible for the preparation of the Departmental statement are not aware of their obligations under the 2014 Act.
The Department of Justice and Equality, which was responsible for the 2014 Act in the first place, has taken no action to secure implementation of the duty. The Irish Human Rights and Equality Commission which has a mandate to encourage implementation of the duty does not appear to have raised the issue anywhere, in any way.
Civil society campaigned for the introduction of such a duty for over two decades. The former Equality Authority published research in 2005 that suggested Ireland was in breach of the Belfast Agreement in failing to introduce the duty. The Belfast Agreement commits the Government to ensuring an equivalence of rights with Northern Ireland. Public bodies in Northern Ireland have been subject to a duty to have due regard to the need to promote equality and good relations in carrying out their functions since 1998. The difference is that there they actually implement it. In short, its inclusion in the 2014 Act was a huge success for a weary campaign.
The Equality and Rights Alliance have informed all Government Departments that they are subject to this public sector duty. They have asked that the strategy statement of each would be developed in compliance with the duty. This would firstly require Government Departments to carry out and document an assessment of the human rights and equality issues relevant to their functions as policy-maker, service-provider, employer and/or procurer of goods and services. It would then require Government Departments to identify and set out the policies, plans and actions they already have in place or propose to put in place to address these issues.
The strategy statement should be published in late October. The extent to which Irish legislation dealing with progressive and important social issues holds any sway in Government Departments will be suggested by whether or not these strategy statements include such an assessment with accompanying commitments.
The Equality and Rights Alliance recommended that Government Departments should include commitments in their strategy statement to secure ongoing implementation of the public sector duty. This would include: establishing a working group to drive implementation; training staff to be able to implement the duty; developing indicators and data-gathering systems to identify and track equality and human rights issues; and putting in place an equality and human rights impact assessment methodology that would be used for draft legislation, policies and plans.
They can’t say they don’t know. The challenge has been promulgated. We will know in a month where the public sector is to stand on equality.
By Niall Crowley