Comments on Proposal to merge the Irish Human Rights Commission

The Equality Authority and other Agencies

Michael Farrell, member of the IHRC

As an individual member of the Irish Human Rights Commission (IHRC) and speaking in my personal capacity, I am seriously concerned at the proposal to merge the IHRC with the Equality Authority and several other bodies.

I am concerned because I believe this proposal could undermine an important commitment contained in the Good Friday Agreement; it could undermine confidence in the independence of the IHRC as the public’s human rights watchdog; it could weaken the Commission and lessen its effectiveness; it could weaken the effectiveness of the other bodies involved as well; and it would not lead to any significant savings.

The Good Friday Agreement

The establishment of two Human Rights Commissions, north and South, was a key component of the human rights provisions of the Good Friday Agreement, as was the commitment to establish a Joint Committee of the two Commissions “as a forum for consideration of human rights issues in the island of Ireland”.

The Agreement contained a pledge by the British government to set up the Northern Ireland Human Rights Commission in addition to but separate from the Equality Commission for Northern Ireland and with a mandate to deal with wider human rights issues. The Irish government pledged to “establish a Human Rights Commission with a mandate and remit equivalent to that within Northern Ireland”.

Symmetry and equivalence between the Commissions was and is very important. Radical change in the structure of the IHRC would also undermine the Joint Committee of the two Commissions as it would no longer be drawn from two bodies with precisely similar mandates and priorities.

I suggest that any significant change in the human rights mechanisms set up under the Good Friday Agreement should require the consent of all the parties to that Agreement and I am concerned that if the Irish government begins to unpick important provisions of the Agreement for purely domestic reasons, that would leave it open to other parties to the Agreement to try to do likewise.

The Independence of the IHRC

The independence of the IHRC is crucial to public confidence in it as an effective human rights watchdog. The UN Human Rights Committee in its review of Ireland’s human rights record in July last actually called for a strengthening of the Commission’s independence.

If the government can radically change the structure and mandate of the IHRC without any meaningful consultation with the Commission itself, the international human rights mechanisms like the UN High Commissioner for Human Rights or the Council of Europe Human Rights commissioner, or the human rights community in this country, the public will have very little confidence in the Commission’s ability to stand up to government and say uncomfortable things when necessary.

Weakening the effectiveness of the IHRC and the other bodies

The IHRC has a mandate to scrutinise and review government policy from a human rights point of view across a very broad range of issues which are not covered by the other agencies suggested for merging. The Commission has developed experience and expertise in those areas. There is a danger that merging it with other bodies with different and more specialised mandates would blunt its impact in the wider areas.

It has taken the Commission some time to begin to develop expertise in a number of areas. A merger now would be likely to lead to confusion and lack of focus for several years as a new institution found its feet - and without any identifiable benefit in the protection of human rights at the end of the day.

The same arguments would apply to the other agencies as well, resulting in a loss of focus for them all for a period, while the new “super” agency worked out its priorities and allocation of resources.

No significant savings

There were no consultations with the IHRC before this proposal was announced and no studies were commissioned about it. No case has been made as to how or what savings would result from a merger, other than vague references to payroll and communications savings.

The IHRC has operated on a very modest budget and with a quite small staff to date and the other agencies are the same. It is hard to see how a merger could lead to any significant savings that could not be effected by the individual agencies or by cooperation between them. On the contrary, a merger of a number of bodies with existing premises and staffing structures and with distinctive mandates seems more likely to cause confusion, reduce efficiency and, if anything, increase costs, at least in the short term.

There has been some reference to the fact that a new Equality and Human Rights Commission has recently been established for England and Wales as setting a possible example. On the other hand, both Northern Ireland and Scotland have the same system as here, i.e. Human Rights Commissions that are distinct from the equality and data protection bodies,- and the establishment of the single Commission for England and Wales has been a slow and long drawn out process.

The Equality Authority

Of the other agencies that have been suggested for merger, the one with which I and probably most IHRC members are most familiar is the Equality Authority. When this issue was discussed by the IHRC, its members were united in the view that the Equality Authority had played a uniquely valuable role in raising awareness of issues of equality and discrimination and had developed great expertise in enabling and empowering vulnerable groups to combat discrimination.

It is essential that the Equality Authority’s expertise, commitment and clarity of focus be fully preserved. There is a serious danger that the proposed merger would lessen the effectiveness of the Equality Authority as well as the IHRC.

Conclusion

The reason given for proposing this merger was the difficult economic situation we find ourselves in at the moment. However, difficult economic circumstances can lead to increased tensions in society and a growth in prejudice and hostility towards vulnerable groups. In such times it is more than ever necessary to have strong human rights and anti-discrimination protections. This is not the time to weaken or undermine our existing human rights and equality institutions or to cause confusion or disruption by what appear to be rushed and poorly thought out proposals.

Michael Farrell

8th September 2008

Tags: IHRC, Irish Human Rights Commission, Michael Farrell, The Good Friday Agreement
Posted in Articles, Uncategorized

The High Cost of a Job Well Done

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 about the government’s proposal to merge human rights and equality agencies.

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 costs and achieve ‘delivery simplification’ 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 (IHRC), 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 Government Department entirely. Despite appearances it is important to recognise that each of these bodies exist and operate 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 – given the limited functional overlap between them – 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 this merger proposal is not a minimalist and, arguably, sensible proposal for shared corporate services between different but compatible statutory bodies. Such a move could achieve efficiencies and administrative integration but that is not what is being proposed. Instead, a dangerous undermining of an already fragile equality and human rights architecture is being passed off on spurious cost-saving grounds wrapped up in a disingenuous promise of greater efficiency. 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 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. It also engages in research and development work on its own and with other public and private sector bodies.

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 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 the 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. In other words, that the more awkward enforcement and promotion powers possessed by some of the bodies will become advisory powers of a less annoying and more muted kind.

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. In fact, Ireland gets quite an amount of credit for this all of which contributes to its standing in the international community and on all merit-based indices of state ranking.

It might seem strange to sceptics or indeed futile to idealists for the state to establish ‘independent’ bodies to monitor and even challenge its own conduct. Nowadays, however, such bodies are taken for granted as hallmarks of a confident and mature democracy. To ‘re-arrange’ 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.

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