Equality Bill 2004 may undermine existing non-discrimination protections
The Human Rights Commission forwarded on 2nd June 2004 its observations on the Equality Bill 2004 to Mr. Michael McDowell, Minister for Justice, Equality and Law Reform.
The Equality Bill 2004 is being introduced against a legislative backdrop of significant achievement at the national level in recent years. The enactment of the Employment Equality Act 1998 and the Equal Status Act 2000 and the establishment of specialist national institutions, the Equality Authority and the Equality Tribunal, placed Ireland at the forefront of international anti-discrimination efforts.
The Explanatory Memorandum to the present Bill expresses the Government’s intention to preserve the nine ground approach to equality reflected in the two existing Acts, which would suggest that the Bill is intended to significantly extend the scope of anti-discrimination protection under Irish law across all nine grounds and produce a ‘levelling up’ of Irish anti-discrimination legislation to the highest European standards. These are welcome commitments.
However, the Commission expresses concern that in a number of significant respects the Bill, as presently drafted, does not go far enough in transposing the three EU Directives, thereby leaving Irish anti-discrimination law at variance with EU standards. More significantly, some of the measures included may have the effect of undermining existing non-discrimination protections, by creating new categories of exemptions and retracting on decisions of the Equality Tribunal.
The President of the Human Rights Commission, Dr. Maurice Manning, stated "We urge the Government to ensure that Ireland’s transposition of the three Directives will serve to retain Ireland’s place at the forefront of international best practice in combating all forms of discrimination and not, as we fear from the present Equality Bill, lead to a diminution of the present level of protection".
The relevance of the equality and human rights provisions of the Belfast Agreement are also highlighted in the Commission’s Observations, particularly the commitment entered into by the Irish Government to enact legislation in this jurisdiction to "…ensure at least an equivalent level of protection of human rights [in Ireland] as will pertain in Northern Ireland." The Commission notes the continuing failure of the Government to introduce a statutory duty on public authorities to enable mainstreaming of equality of opportunity and good relations into their work, as has been effected with considerable success in Northern Ireland under section 75 of the Northern Ireland Act 1998.
The Bill also raises issues of relevance to the human rights standards set out in a number of international human rights treaties to which Ireland is a party, particularly the provisions in the Bill for differential treatment of non-EU nationals in access to education and to a number of state services, and discrimination on the basis of nationality in the area of immigration and residency.
The main points of the Commission’s analysis of the Bill are:
– The Bill fails to provide for a legal role for trade unions or non-governmental organisations (NGOs) in ensuring compliance with the provisions of the Directives. In the view of the Commission, there can be no justification for this failure to transpose explicit provisions of the Directives.
– The Bill retains the two month period for written notification under the Equal Status Act. In the view of the Commission the retention of this period is anomalous in relation to the corresponding period under the Employment Equality Act and represents a barrier to potential claimants. The Commission is also concerned that the retention of the existing statutory ceilings on compensation will have the effect of restricting the capacity of the Irish courts to keep up to date with evolving European standards on appropriate levels of compensation in discrimination cases.
– The Commission does not accept that the continuing exemption of recruitment of domestic workers from the protection of the Employment Equality Act can be justified. No such exemption is contained in the EU Directives and the Commission does not believe that considerations of the "private and family life" of persons employed in this vulnerable sector of the work force can be used to justify discrimination against domestic workers on the basis of nationality, race or other grounds.
– The Commission calls on the Irish Government to take the opportunity presented by the introduction of the present Bill to consider the introduction of a scheme of positive duties on public bodies to mainstream the promotion and protection of equality and to bring Irish law in line with the existing system of positive duties existing in Northern Ireland.
– The Commission recommends that the Bill should extend the application of the Equal Status Act to the provision of social security, in line with the requirements of the Race Directive, and that the proposed exemption of third level educational grants be deleted, as it represents an unjustified erosion of existing equality protections in the area of access to education.
– The Commission recommends that the proposed exemption of immigration and asylum regulation from the protection of the Equal Status Act is unjustified and may have the potential to infringe on the right of asylum seekers in Ireland to a fair consideration of their claim to asylum and may lead to discrimination in the wider area of immigration policy and administration.
– The retention of provisions allowing discrimination in pay towards persons with disability is a matter of concern to the Commission as the Commission believes this measure may have the effect of undermining the positive anti-discrimination provisions of the Bill for persons with disability.
Copy of the Human Rights Commission’s submission is attached for your information.
A spokesperson from the Commission is available for comment.
For further information, please contact:
Mary Ruddy,
Senior Human Rights Awareness Officer
Human Rights Commission
Tel. 01 8589601
E-mail: info@ihrc.ie
Click here to download Observations on the Equality Bill (85 KB)