Dear colleagues and friends,
I was honoured and delighted to accept the Equality Authority’s invitation to launch this important publication. I would like to thank in particular your Chief Executive, Renee Dempsey, for asking me to be with you all today.
Comments on the publication
I would like to start off by welcoming the initiative of the Equality Authority, under its previous Board, to commission this study.
I acknowledge with appreciation the contribution made by European Union funding, through the PROGRESS programme, to this work. This EU dimension to the Equality Authority’s work on combating discrimination is very important. Funding, while welcome, is not perhaps the most valuable contribution. In the longer term, the opportunities offered by such programmes for the sharing of experiences and pooling of knowledge, leading to solutions to common problems, enhance the capabilities of national equality bodies and human rights institutions across the EU.
The report itself, "Selected issues in Irish Equality caselaw", is concise, carefully-researched, well-reasoned, unbiased and thought-provoking. In other words, it is in the best tradition of Equality Authority publications. I would like to congratulate Mr Fennelly on a fine piece of work.
Its publication comes after a year that has been particularly rich in academic commentaries on Irish equality legislation. The focus of this review is on application of the law, following well-chosen themes - the jurisdiction of the Equality Tribunal, sharing of the burden of proof, important recent developments in the caselaw, interpretation of the exemptions in the legislation, and finally interpretation by the Irish courts of the legislation. This approach, conscious of the future use of this legislation by legal practitioners, potential complainants and those supporting them, gives it a practical dimension which is particularly welcome. The publication is also of substantial value for policymakers and with regard to any possible beneficial statutory reforms that may be considered.
I do not underestimate the scale of the task which was undertaken. Over one thousand written decisions were issued by the Equality Tribunal alone during the four years covered by this study. While the far-sighted decision of the Oireachtas to establish a statutory requirement for the Tribunal to publish its decisions has delivered an accessible and detailed corpus of case-law, there were also decisions of the Labour Courts, the Irish courts and the Court of Justice of the EU to source and analyse.
I find much to consider in the conclusions Mr Fennelly has reached, not least in regard to the long reach and radical nature of the Employment Equality Acts and the Equal Status Acts.
As a legal practitioner myself, and a member of Dáil Éireann since 1981, I find his summary of the phases of development of Irish equality law particularly striking.
A first phase driven by Irish accession to the European Communities produced gender equality law on pay and social security. A second phase saw significant innovation and ambition, resulting in the Employment Equality Acts and the Equal Status Acts and establishment of our current equality infrastructure. As Mr Fennelly describes it, domestic equality law has been for some time in a third phase, where advances are progressing principally at EU level driven by the Lisbon Treaty and the new legal status of the EU Charter on Fundamental Rights.
I don’t disagree with the suggestion that a future fourth phase of innovation, possibly moving towards greater convergence and coherence in the different strands of equality law, now appears far more likely to emerge at the EU level rather than at domestic level in Ireland itself.
I don’t feel this is necessarily a bad thing. It is simply acknowledges that there is an opportunity cost to the Irish legislature in producing new regulation, whether at domestic or EU level. Moreover, the effort we put into developing initiatives to combat discrimination and to promote equality at European level has the additional advantage of benefiting our citizens when they work and travel throughout the EU – not just at home.
I would like to take a few moments to set out some thoughts on how such a fourth phase could develop.
Relevant developments in the EU
I want to mention a few of the initiatives that are most relevant. You will be aware of the proposal for a horizontal anti-discrimination directive which has been around for some time. We regard this as an important file and will give it priority during the Irish Presidency. A new Commission proposal which aims at supporting EU migrant workers and members of their families in the exercise of their Treaty free movement rights is also due to be published during this session.
Above and beyond specific instruments, I should mention the increasing focus at EU level on respect for the rule of law. In the context of the Irish Presidency of the EU, I have asked EU Justice and Home Affairs Ministers how we can tackle this issue and fashion a holistic means by which Member States can share best practice, monitor standards and formulate appropriate recommendations and guidelines for action. My European colleagues supported my suggestion to ask the Commission to initiate a broad public debate with governments, civil society and citizens. The Commission has agreed to come back during the course of 2014 with the results of this process and with a package of recommendations on a mechanism to promote the Rule of Law, as well as specific suggestions about what needs to be done next to improve protection of fundamental rights across Europe.
Domestic initiatives
That said, there are a number of aspects I feel can be addressed at domestic level. As Mr Fennelly concludes in his report, "the case law which has developed over the last decade or so will lay the foundations for the future development of Irish equality law". It highlights, yet again, the hallmarks of impartiality and quality of the decisions issued by the Equality Tribunal in particular, established under its first Director, Melanie Pine and which continues under its current Director, Niall McCutcheon.
I also acknowledge the essential truth of Mr Fennelly’s conclusion that, even now, a decade after enactment of the Employment Equality Act and Equal Status Act, the process of familiarisation and acculturation with the Acts of lawyers, judges and others in the Irish legal system is still very much a work-in-progress. I am sure both the judiciary and the Authority, with due regard to their respective independent roles, will take note of this particular finding. Indeed I should mention here the Equality Authority's role in supporting the Committee for Judicial Studies to develop a Bench Book on "The Equal Treatment of Persons in Court", itself funded under a previous PROGRESS initiative.
My colleagues in Government and I recognise the delicate balance between developing a body of specialised and increasingly complex decision-making and keeping the redress infrastructure approachable and accessible, particularly for those persons who are representing themselves.
This very accessibility as a key feature of the State’s equality legislation results from the intention of the Oireachtas to establish a robust, impartial and user-friendly means by which individuals could take legal action to address and seek to remedy complaints of unequal treatment related to discriminatory grounds.
Workplace Relations Service
The Government is anxious to enhance this accessibility in the major reform currently underway of the State’s Workplace Relations Services, which will draw in the Equality Tribunal. The system that developed over the last sixty years had expanded from simple beginnings to cover issues from industrial relations to enforcement of employment rights and non-discrimination for individuals. It had become unwieldy and complex; it lacked consistency, involved long delays and in some cases proved expensive for users. In short the system as a whole was no longer fit for purpose. It was for this reason that my colleague, Richard Bruton, the Minister for Jobs, Enterprise and Innovation commenced a root-and-branch reform, with the objective of establishing a world-class Workplace Relations Service.
A two-tier structure is proposed, with two statutorily independent bodies replacing the current five. We will have a new single body of first instance to be called the Workplace Relations Commission. This will incorporate the activities of the Equality Tribunal, the Labour Relations Commission, the National Employment Rights Authority and the first instance functions of the Employment Appeals Tribunal and the Labour Court. The effect will be to position the promotion of equality as a mainstream objective of this new integrated Service.
A separate appeals body, which will effectively be an expanded Labour Court, will include the appellate functions of the Employment Appeals Tribunal.
Since the reform proposals were announced, two public consultation processes have taken place, two policy documents were published, a new website has been set up, a single complaint form and single point of contact have been introduced, and an Early Resolution Service has been commenced. The significant progress to date means complaints are now acknowledged, on average, within a week of receipt. This was previously taking up to eight months in some cases.
In addition, work has commenced on the legislative programme and detailed design to deliver the reform. Government approval for the priority drafting of the Workplace Relations Bill has been secured. It is expected that publication of the Bill will take place shortly. In the meantime, it is intended to continue to progress the reform on an administrative basis in advance of the enabling legislation.
Establishing IHREC
Hand in hand with reform of the infrastructure for seeking redress, is the merger underway of the State’s equality and human rights institutions. The new Irish Human Rights and Equality Commission, to be established on the merger of the Equality Authority and the Human Rights Commission, will continue to provide advice and assistance to persons wishing to pursue complaints of discrimination, a role currently fulfilled by the Authority.
The new Commission will have enhanced powers and functions and will be able to provide advice and assistance on both equality and human rights issues in an integrated way. These arrangements will make it easier for people to vindicate their rights by making our institutional arrangements clearer, thereby making it easier to navigate one’s way around the system.
For my colleagues in the Oireachtas and myself, the immediate priority before us is to enact the legislation to establish the Irish Human Rights and Equality Commission.
I expect the independent Selection Panel, set up to select the members of the new Commission, will complete its the selection shortly. Once the selection panel have made a decision on their recommendation and communicated that decision to me, the intention is that the successful applicants will meet with the Joint Committee on Justice, Defence and Equality. Pending enactment of the necessary legislation to effect the merger, they will be appointed to the two existing bodies, the Equality Authority and the Human Rights Commission.
In the medium term, I aim to consolidate the body of equality legislation that has developed in the main Acts and amending legislation over the past 15 years. This present publication, and others like it from the Authority, will make an important contribution to this work.
Finally, I hope you will join me in congratulating Mr Fennelly on his significant achievement with this publication, in expressing my thanks again to the Equality Authority for their hospitality today, and in looking forward together with optimism to a new phase in the development of equality law in Ireland.
Thank you and good afternoon.