Public Sector Duty
A positive duty in mainstreaming equality and human rights on a statutory basis in Ireland
On February 10th, Pavee Point Traveller and Roma Centre hosted a seminar on the introduction of a Positive Public Sector Duty for Ireland. The seminar was held in UNITE, the Union House and attended by over 80 people from a range of organisations, both public sector and NGO.
Speakers included Judy Walsh, Director of the UCD Equality Studies Centre, Niall Crowley, former CEO of the Equality Authority, Seamus Taylor, lecturer in the Department of Applied Social Studies at Maynooth University and formerly of the Crown Prosecution Service in the United Kingdom, Martin Collins, Joint Director of Pavee Point Traveller and Roma Centre and Emily Logan, Chief Commissioner at the Irish Human Rights and Equality Commission.
Judy Walsh from the UCD Equality Studies Centre spoke about the legal perspective of the public sector duty and said the duty should be seen in the overall context of human rights law in Ireland. There are two ways of enforcing human rights law- one is a reactive and responsive element, focusing on command, coercion and sanction. The second is a proactive element, aiming to embed a culture of respect for human right and equality. The IHREC Act 2014 introduced a modest, proactive public sector duty. Now, all public bodies have to try to embed equality and human rights considerations in their policies.
Proactive duties generally attempt to end human rights violations in the first instance. It shifts the responsibility to implement law to duty bearers and is therefore no longer driven by individual cases. Proactive duties are the best placed to tackle institutional racism, where a single case can’t shine a light.
Public bodies must have regard to the need to eliminate discrimination, promote equality of opportunity and protect human rights. This is a very broad coverage of a very broad amount of functions.
Public bodies are supposed to give effect to the duty through a form of self- assessment, with guidance from IHREC, which is fed into strategic plans and annual reports. This requires public bodies to generate policies where there are gaps, refine policies where needed and report on steps taken. An organisation’s strategic plan must include an assessment of equality issues, as well as the purpose of policies plans and actions in place. Annual reports are supposed to report achievements and developments.
There is no particular outcome required. A public body isn’t given direction or told what to do in terms of addressing what issues might be uncovered. If a public body doesn’t have regard to what they should, there is no court or tribunal. IHREC can invite the public body to carry out a review and prepare and implement an action plan.
There is added value in terms of accountability and transparency. The process should ensure that some attention is paid to all nine grounds under discrimination law. Up to now, the human rights strand has been neglected to some extent.
Walsh also noted that the public sector duty is not revolutionary, because public bodies are already supposed to proactively consider compliance under the 2003 European Convention on Human Rights Act.
The definition section in the Act is broad, including bodies that are private but carry out public functions, or are funded wholly or partly by funds from the Oireachtas, but there is no current definitive listing of bodies. The nine grounds in the Equal Status Acts don’t include employment grounds or socio economic status, which are considered in other countries. Where there is an opening for these in Ireland isn’t yet certain.
A lot of organisations provide gap services for government and were provided funds to provide that service. Some civil society organisations will therefore also be required to fulfil the public sector duty. According to Emily Logan of the IHREC, Direct Provision is a prime example of this.
Niall Crowley, former CEO of the Equality Authority spoke about how public bodies can realise the potential of the public sector duty and felt stakeholders should expect an ambitious response that ideally seeks better for everyone. The duty will only work to the extent that civil society engages with it. It should drive cultural change in public bodies. This is a realistic expectation- these outcomes have happened elsewhere.
Pre Planning is necessary- senior management groups should be established in organisations and skills should be built up for all key staff involved in implementation. There should be a plan. It’s about fundamentally changing the way business is done.
There is a need to gather information and data on the relevant experiences and situations and needs of people in groups across the nine grounds and to take socio economic status into account. There needs to be a core examination of how business is conducted and how work impacts people across all ten grounds. Representative organisations need to be engaged. It’s not a consultation exercise, but about testing the information gathered.
An equality and human rights review and impact assessment are key tools. Impact assessments are common in the equality field but not the human rights field. The core challenge and opportunity is that it’s not just an equality duty- it’s a human rights duty too. The Irish duty is the first in the EU in that regard and it’s radically different. There are pitfalls and potential. Human rights and equality don’t always go well together.
Crowley proposed a value based approach, with five key values, to create a workable duty. If it’s too doable it might
implementation and reporting, an integrated approach will develop.be tokenistic, but it also can’t be a tick box exercise. Freedom, Dignity, Democracy, Solidarity and Equality should frame the implementation of the duty. Bringing that value based approach into the model of pre planning,
Data collection is problematic even where the nine grounds proscribe good quality data. Nothing in the legislation prompts any particular direction on data. Data isn’t just empirical; most successful duties use ground up data and experiential knowledge of what works and doesn’t, especially in service delivery and employee consultation. There is a huge resistance to that kind of data in government programmes. The ‘fetish of evidence’ needs to be changed if the duty is to be successful on those grounds. Some data collection is not hard and can be done from the ground up. Equally, there will be a need to prioritise, given lacking resources and high demand levels.
Civil society groups have a key role to play, deciding as civil society organisations what standard to demand and how the duty should progress. There has been no gearing up and NGOs are in a good position to outline demands. It’s not the same as campaign, but about the insertion of demands into the process as a whole.
To overcome the invisibility of certain groups, an ethnic identifier is necessary to examine the impact of policies and procedures. Some organisations have started to take on this burden but it needs to be more widespread to measure and monitor on a wide basis. Crowley felt that the public sector duty is about much more than a data issue- the agenda needs to be lifted much higher if it’s to be used as a lever for change.
Seamus Taylor from the University of Maynooth presented on his experience of implementing the public sector duty in the Crown Prosecution Service in England and Wales.
After the Lawrence Enquiry, the Government in the UK accepted the challenge that the public sector institutionalized discrimination and sought to change that. Duties were implemented over a period of time. The general duty wasn’t that dissimilar to what has been introduced in Ireland.
In England and Wales, the equality duty revolved around identifying key equality issues, engaging with affected groups, publishing objectives, addressing impacts, monitoring and reporting.
The Crown Prosecution Service is a single public prosecution service. It’s different to the DPP, which subcontracts locally. The number of people acquiring the label of ‘criminal’ is enormous. Impartial decision-making is bedrock for a public prosecution service. The CPS was set up post Birmingham Six and Guildford Four cases, when the extremely high level of flawed decision making in the police became evident.
The initial culture of the service was one ill at ease with community engagement. The CPS was equality blind- they just wanted the facts of the case before them. Questions came up internally and externally. Were decisions potentially biased in like for like offences? Who was being appointed to more senior jobs? Women’s groups also spoke about appalling outcomes in domestic violence cases and low rates of successful convictions.
There was a threat of formal investigation of the CPS, which kicked off an inquiry. In the early 2000s, the public duties started to arrive into the public sector and as a result, the CPS began to consolidate changes in practice and policy.
Not all data was empirical. Quantitative and qualitative evidence was gathered. A broad direction was agreed after the data collection and groups were engaged. The CPS implemented a four year equality scheme with specific actions. The entire process has stood the test of time.
Performance improvement had to be driven in the mainstream service in a number of areas- violence against women, monitoring lawyer’s charges, LGBT crime, racist and religious crimes, workforce experiences, community engagement improvements. There were further arguments for outcomes relating to each area because performance was so poor in them. At the time, racist and religious crimes were 20% less successful in court. Cases would often collapse. New agendas needed to be set on crimes against older and disabled people.
The CPS had a performance review system to evaluate development. 15 top indicators were selected to be tracked every quarter by the Director, in each of 42 areas in the UK. Each area had to account for performance. If equality was to be a main issue, it had to be in that performance review system.
Equality was treated as a business issue and the focus has been maintained over eight years. It has enabled improvements in the outcomes of hate crime (15% +) and violence against women cases. Workforce representation has been transformed- 12-13% of prosecutors were ethnic minorities before this was implemented, now it’s 35% and majority of those are women.
Beneath all the quantitative elements was a unique programme in each area. Training was needed- special domestic violence courts were set up, with specific expertise allocated. It was felt that hate crimes weren’t taken seriously by the public or the police. In each area, a panel was set up of community reps, an independent lawyer and chair. Files were anonymised and given to the panel in accordance with the Human Rights Act. Feedback is given each quarter on these files and new avenues are opened and discussed.
Assessments were undertaken by the Criminal Justice Inspectorate. HIQA in Ireland should have to mainstream equality measures in their procedures in a similar vein.
The IHREC can produce codes and guidance- and they should do that on the duty, creating good practice guidance to raise awareness and concretise the equality standards. A code was created in the CPS and people took it as gospel and used it. Done well, a code would be extremely helpful. A major challenge was that lawyers felt they couldn’t engage with communities. A certain amount of that may be attributed to fear and lack of competence/confidence to engage with communities. The public duty was a hugely important lever to prioritise equality.
There was variance in how the duties were taken up in the United Kingdom. Some organisations were seen as leaders who embraced it and secondly, those that went with minimum legal compliance. Some of the ones who resisted were challenged. The majority went for compliance. Something similar would be likely here surely. Threat and embarrassment of enforcement can be a real deterrent. A few examples should be made of the willful neglect cases.
Martin Collins, Joint Director of Pavee Point Traveller and Roma Centrespoke about how community organisations can engage with the public sector duty. Public institutions need to be held to account for their policies, actions and programmes which could have negative outcomes.
Discrimination, whether intentional or not, is quite different to reading a racist article or experiencing LGBT hate on the street. Public bodies have huge influence and power, affecting life opportunities and access to opportunities.
Key to the evolution of the public sector duty was the Lawrence inquiry. Nobody sets out to design a service that excludes. It occurs by way of institutional creep. A service can be designed for a dominant group that excludes all others. In recent times, we have seen incidences of individuals who do the right thing and find themselves shunned. Transparent, effective procedures are needed to address that reality.
Every public institution has the potential for discrimination. The positive duty is unlike other elements of the structure because it’s a positive obligation; it’s a prevention instead of a cure.
There must be a bottom up, needs based approach to deliver positive outcomes for service provision. A structured, participatory approach to the implementation of the public sector duty is required, engaging public authorities and civil society groups, taking account of power dynamics and competencies.
The process needs to be brought right through communities, using literature, social media, engagement tools that have become popular. We need to be creative in how we engage with civil society orgs, many of which are at different levels of organisation and capacity.
Civil society orgs should have an access point in the pre-stage of organisation, to define how engagement should work. What might work for one community may not work for others. Flexibility and responsiveness are needed.
If we can achieve engagement and collaboration, there would be a more inclusive, appropriate, accountable and cost effective service across the board. It should also build trust and confidence within communities. Trust and confidence will be further heightened if public bodies can demonstrate how civil society views were considered. Equally, this should prevent tokenistic gestures because groups would know where their advice has not been taken and could ask why.
Mutual capacity building is necessary. We have to appreciate that not all agencies are going to be as well funded or get their voices heard. From a consultation perspective, that work has to happen. Consistency across the process is a requirement.
The public sector duty should be considered as part of the LCDC to engage local government on it. There should be some agreement and clarity as to who should represent- the whole thing shouldn’t be lumped into PPNs.
People should be ambitious but realistic in what the PSD can achieve and deliver. We have seen this type of consideration before in the Equal Status Acts.
Developing a code of practice requires a consultation- and that’s the consultation that should be used as a model of good practice for the consultations that have to come by each public body.
Emily Logan, Chief Commissioner at the Irish Human Rights and Equality Commission, spoke following the panel discussions and indicated her belief that the public sector duty gives everyone an opportunity to make human rights tangible for everyone.
Michael D Higgins says that human rights are seen as the preserve of the academics and the courts. This public sector duty gives us a chance to make human rights real for people. People feel that human rights is abstract as a notion.
IHREC has a power that can and will be used in the future relating to the PSD. The burden placed on an individual family who need to interact more often with the state than others isn’t helpful- but now the state is the primary duty bearer. The goal is to close the gap.
Advocacy isn’t the preserve of civil society. The PSD allows those advocates to come from the public sector themselves. In instances where problems emerge, there may indeed be a problem of competence and confidence- like in Waterford, in Athlone, in Tallaght. We need to understand the power differentials. There isn’t one code for everyone- but strand specific experiences may be worthwhile.
Nobody has a monopoly on wisdom. There may be core principles but there must also be subjectivity. Knowledge on these can come from a few different places. We shouldn’t underestimate the ability of individuals to engage- their narrative can be incredibly powerful.
Irish civil society is active and lively; there is already incredible talent. We need to try to encourage people to see that they can do more to make better decisions and improve outcomes.
Please click below to view the presentations delivered by the speakers on the 10th of February.
1. Judy Walsh- A Legal Perspective on the Public Sector Duty
2. Niall Crowley- What should Public Authorities do to realise the potential of the Positive Duty?
3. Seamus Taylor- Implementing public sector equality duties- sharing experience from the public prosecution service in England and Wales
4. Martin Collins- Community Organisations Engaging with the Positive Duty