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.