Litigators score 'dirty victories' on public bodies

Litigants up against the state are very likely to be out-resourced, as state doesn’t skimp on representing itself.

That’s the view of FLAC chief executive Eilis Barry, who spoke at its Morrison Hotel conference in Dublin this morning on the legal implications of the public sector duty in Irish law.

The well-attended conference examined section 42 of the Irish Human Rights and Equality Act 2014 which mainstreams human rights and equality across the public sector.

The Act established a mandatory obligation on a broad range of public bodies to have regard to non-discrimination, equality of opportunity and human rights in the delivery of their functions, and now mainstreams human rights and equality considerations across the work and employment practices of the public sector.

At the very minimum, the Act obliges public bodies to inform themselves of their responsibilities under the Act, and then give reasonable consideration to those duties, the FLAC boss told the conference.

Any developments or achievements in the human rights area must be flagged in each public body’s annual report, under the law. 

Unawares

Litigators can score “dirty victories” against public authorities by catching them unawares, but this can have long-term benefits in the “routine-isation” of equality rights legislation.

That’s according to Aileen McColgan, a Professor of Human Rights Law at King’s College London, who also spoke at the FLAC conference in Dublin this morning.

“In material terms, inequality is exponentially increasing,” she complained, but litigators now have a new tool in their toolkit by using the public sector equality duty.

However, the impact of human rights law is “profoundly limited” by an
appropriate judicial concern about not stepping into the shoes of publicly- elected representatives, she said.

Meaningful

If human rights legislation is properly integrated, it should mean ongoing meaningful interaction to promote equality of opportunity, the conference heard. 

This is a mandatory, pro-active, ongoing obligation, Eilis Barry said, and any public body that fails to carry this duty out may be liable to judicial review.

FLAC’s experience is that some public bodies have not taken the legal changes on board “to any meaningful extent”.

Eilis Barry also said there seems to be an impression that section 42 is not actually mandatory and that some public bodies  are “awaiting guidelines” from IHREC.

Confidentiality

Barry pointed out that strict confidentiality clauses on legal settlements may be illegal of themselves.

The courts can sometimes show an unwarranted reluctance to enforce some rights, Eilis Barry said, and some courts may believe that it is not their job to tell the state what to do.

This is a restrictive interpretation of equality, she said, because it allows the state a large degree of leeway in human rights.

FLAC is big fan of litigation and FLAC regularly engages in litigation in public interest, Eilis Barry said.

Diverse

In diverse and multi-cultural societies, public sector bodies must seriously and proactively engage with equality legislation, barrister Colm O Cinnéide told the conference.

O Cinnéide is Professor of Constitutional and Human Rights Law at King’s College London and gave the attendees an overview of equality and non-discrimination duties in Britain which he said had generated some “interesting confusion” in the past.

There has been a recent trend to water down some requirements and lighten the regulatory load on some public authorities in Britain, O Cinnéide said.

This was a political choice, he said, evidenced with the election of the David Cameron Conservative government of 2010 under prime minister David Cameron

Duties

These human rights duties are not designed to change the world, O Cinnéide pointed out.

They were never designed to include a mechanism for "wholesale transformation" since public bodies must have cognisance of other factors such as budgets, established case law, housing lists, legal standards and so forth.

Their effectiveness often depends of how well they resonate with the other duties of the public authority, he said.

“But they are a point of focus and pressure,” he said, but they can operate to empower 'internal actors' in public bodies who may have a particular agenda in terms of human rights.

Critical thinking

These laws also encourage a degree of reflexive, critical thinking and internal critique though there is always a danger of a tick-box exercise, he pointed out, calling this a “formal compliance culture”.

See more photos from the conference here