'Quiet coup' threatens to trample all over our rights
'It defies logic to place five different statutory entities, each with a specific role prescribed by particular legislation, within one umbrella grouping'
A quiet coup has been taking place over the past few months. With the Dail and Seanad on vacation, a recession looming, and everybody desperately seeking sunshine abroad, the Government has been discreetly making plans to neuter a number of agencies carrying out vital functions in upholding human rights standards.
Reports began to surface in late July of a proposal emanating from the Department of Justice to amalgamate different authorities currently operating under its aegis.
At first, it appeared that the Equality Authority, the Irish Human Rights Commission and the Office of the Data Protection Commissioner might all be merged into one hybrid organisation. Then, it was indicated that the Equality Tribunal and the National Disability Authority might also be included in this extraordinary super-quango. It now seems that a final Cabinet decision might be taken within a month -- before any of the disadvantaged individuals or communities most likely to be affected have even become aware that it is happening. A very quiet coup, indeed.
The ostensible reason for the proposed merger is the need to make public spending cutbacks. However, the cuts to be made by merging five small bodies with low overheads are minimal. Any objective assessment would have to conclude that the real reason behind this proposal is to silence these particular agencies. While they are apparently randomly selected, they may have been chosen in a desire to curb their criticisms of Government failures to observe human rights standards.
There can be no other rational explanation for this bizarre proposal. It defies logic to place five different statutory entities, each with a specific role prescribed by particular legislation, within one umbrella grouping. Yet the public reaction to date has been muted. The opposition parties, the Law Society and others have expressed concern at any weakening of human rights protections, but no legal critiques have been published assessing the implications of any amalgamation. This is surprising, because this merger would be highly problematic legally. The fact is that all five bodies were established with very precise separate statutory functions, and these are simply not compatible.
Take the Equality Authority, created under the equality legislation, which must work to develop and promote equality and to support those experiencing discrimination on nine different grounds. Thus it takes sides in protecting the rights of, for example, older people encountering ageism in the workplace, by supporting them in making legal claims.
The Equality Tribunal, by complete contrast, is effectively a court, also created under the equality legislation, but with the specific purpose of adjudicating on discrimination claims. Unlike the authority, it must always be impartial in fulfilling its quasi-judicial function.
The third entity, the Human Rights Commission, was established to fulfil our obligations under the Good Friday Agreement, in parallel with a similar Commission in Northern Ireland. Its role is to defend human rights generally, but it does not represent individual complainants in any legal hearings.
The National Disability Authority does not represent claimants, either. It was set up in 1999 to advise the Government on how best to protect the rights of persons with disabilities.
Finally, the Data Protection Commissioner was established under the 1988 Data Protection Act with the function of regulating the use of data and protecting the privacy rights of citizens -- its primary role is to act as a watchdog over other State agencies, including the four potentially to be merged with it.
Among these five bodies, there may be some overlap on a superficial level, but it is clear that the functions and work practices of each are quite incompatible in practice.
Indeed, any careful legal analysis suggests that there would be potential for serious legal conflict if they were amalgamated. In particular, because the Equality Authority currently supports claimants in taking cases before the Equality Tribunal, the tribunal would lose its impartial status if it became merged with the authority, with a resultant breach of the constitutional principles of natural justice.
The most significant impact of any merger, however, would be on those experiencing discrimination, whose rights would inevitably be diminished by the neutering of the support and enforcement rights bodies.
But there would also be serious legal problems for the Government if any merger were instituted. It is difficult even to see how coherent legislation merging the bodies could be drafted without reducing rights protections. Not only this, but any watering-down of human rights protections would breach the Good Friday Agreement, which requires an equivalence of rights protection North and South.
Finally, it is ironic that this proposal is being made at a time when the Government has been taking credit at international level for the existence of strong mechanisms for the protection of human rights. Any weakening of rights protections could seriously undermine our compliance with international human rights law under UN conventions. At many levels, therefore, it is important this quiet coup is met with some loud political and legal resistance.
Ivana Bacik is an Independent Senator, a barrister and Reid Professor of Criminal Law at Trinity College Dublin
