Rachel Mullen: New public sector equality and human rights duty marks an important evolution in our legislative framework

Published: Wednesday, July 01, 2015

The enactment of the Irish Human Rights and Equality Commission Act 2014, as well as establishing the merged Irish Human Rights and Equality Commission, also included an important provision that will strengthen our legislative framework to promote equality, prohibit discrimination and protect human rights. Section 42 of the Act introduced a new public sector equality and human rights duty. There have been calls for the introduction of such a duty for many years, by the Equality and Rights Alliance, the Equality Authority and many NGOs working to address discrimination and inequality. The new duty represents the first combined equality and human rights public sector duty to be introduced in domestic legislation in an EU Member State. It is surprising, therefore, that its introduction has passed almost without notice.

Public bodies, particularly those charged with the delivery of key social goods, have enormous potential to reduce inequalities and protect and fulfil human rights. Public sector equality duties have been in operation in the UK and Northern Ireland for over a decade. Independent reviews of these duties point to a range of tangible outcomes, including: improved access to health and education, and increased access to employment in the public sector  for people with disabilities; improved access to a range of public services for people from minority ethnic groups; increased representation of women in a number of NI District Councils; increased childcare provision in target rural areas ; improved access to public sector employment for older people; improved facilities in a number of public services for women attending with children ; extension of paternity leave entitlements to lesbian and gay employees in a number of health and social service trusts; reductions in early school leaving; and reductions in domestic violence homicide rates.

The S42 duty requires that public bodies “have regard to the need to; (a) eliminate discrimination, (b) promote equality of opportunity and treatment of its staff and the persons to whom it provides services, and (c) protect the human rights of its members, staff and the persons to whom it provides services.”  In giving effect to the duty, public bodies must consider their obligations under the Employment Equality Acts 1998-2012 and the Equal Status Acts 2000-2011; and those human rights guaranteed by the Constitution and in domestic legislation. The duty covers the totality of the body’s functions as an employer, policy maker, service provider, and procurer of services. The duty will apply to all public bodies and government departments, with the exception of the Department of Defence and the Defence Forces which have been specifically exempt.

The duty requires a public body to make an assessment of the equality and human rights concerns of relevance to all of its role and functions and to publicly set out, in its strategic plans and annual reports, how those identified issues are to be addressed in its plans, policies and procedures. A particular benefit of the duty is that it is aimed at going beyond simply avoiding potentially discriminatory acts against employees and service users, to a more proactive consideration of how the organisation will prevent discriminatory acts, promote equality and protected human rights.

The provisions of the duty also outline the role of the Irish Human Rights and Equality Commission (IHREC) in enforcing the duty. The IHREC may issue guidance materials and codes of practice on the operation of the duty. In addition, the Act provides that where the IHREC considers that “there is evidence of failure by a public body to perform its functions in a manner consistent with” the duty, the IHREC may “invite” the public body to carry out a review in relation to the performance of its functions under the duty, or prepare and implement an action plan in relation to the performance of its functions under the duty, or both. The IHREC can ask for this review or action plan to focus on a specific area where they believe the body is failing, or a more general review and/or action plan can be sought.   This is an area where judicial review could be used to good effect as a type of enforcement mechanism. Where a public body fails to respond to the IHREC invitation to complete a review or action plan and no reason is provided, then judicial review proceedings could usefully be initiated.

The IHREC will play a key role in developing guidance and codes of practice to set the highest standard for public bodies in implementing the duty. Civil society organisations will also play a key role in encouraging public bodies to work to a high level of ambition in meeting the requirements of the duty and in collaborating with public bodies to ensure tangible outcomes for the groups they represent.
The Equality and Rights Alliance has published a paper on the duty which includes a suggested framework for its roll out within public bodies. We are working with our member organisations to develop an understanding and competence regarding the duty and we invite you to contact us for more information at: rachel@eracampaign.org  .

Rachel Mullen is the Coordinator of the Equality and Rights Alliance www.eracampaign.org , a coalition of over 170 civil society organisations working for a strengthened equality and human rights infrastructure. Rachel has previously worked with the Equality Authority where her role included supporting statutory health providers to bring an equality focus into their policies and plans. Rachel worked with Women’s Aid for twelve years where she held a number of key posts including: Head of Policy and Research and Head of Training.

The views expressed in NWCI's blog are not necessarily the views of NWCI