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Égalité… March 10, 2011

Posted by WorldbyStorm in Irish Politics.
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Addendum: The following was sent to me which corrects an error made in the text below. Many thanks to the person who did so for taking the time to point this out. It doesn’t change the substance but it is important in regards to our understanding of the Equality process and how it works.

….the findings were not made by the Equality Authority. There are two separate bodies: the Equality Authority and the Equality Tribunal. One is a sort of DPP for discrimination, the other is the district court. (The latter anology is reasonable, since the monetary compensation the Tribunal can award is tied to the maximum the District Court can award in a civil case, and an appeal is allowed to the Circuit Court).

The Equality Authority in practice is more like a firm of solicitors, waiting for people to come to them and it then becomes their legal representative. It does differ from a solicitors’ firm in that it can take cases in its own right (Portmarnock is the most famous of those, but also Ryanair for discriminatory job advertising a decade ago). In the case of illegal advertising, the Authority is the only body that can take a case. It can also take cases where it would not be reasonable to expect the person to do so themselves.

The Phoenix late last year referenced a piece by Eamon Delaney about the Irish Human Rights Commission in the Sunday Independent.

So what did Delaney say?

The IHRC received almost €10m in taxpayers’ money between 2005 to the end of 2009 — but more interesting was the substantial if not staggering €133,000 it spent on international travel, from 2003 to June 2010. Staff and members visited human rights ‘hot spots’ such as San Francisco, New York, South Africa, New Delhi, Bolivia, Lesotho, Nairobi and Swansea, presumably in the pursuit of IHRC business.

These expenses put former Ceann Comhairle John O’Donoghue in the halfpenny place. Flights for one member travelling to Lesotho in 2007 cost a whopping €6,324 while another member’s flight to New York cost €3,718 and another flight to Boston cost €2,676 in the same year. What airline were these people flying on? Private jets?

In my own time in the civil service, you were always obliged to find value for money, precisely because it was public money, but in the Celtic Tiger years it seemed to be the very opposite impulse. But then, who was checking? The list of IHRC travel expenses goes on: such as the flights that cost €3,294 for two people to New Delhi in May 2006. Or a New York hotel bill for one member that cost €3,568 in January 2006, or almost a grand in expenses for a 2004 trip to Geneva.

As the Phoenix noted – and this was before the Budget, that ‘long passage… may have obscured the fact that this took place over a seven year period’. Certainly a little over €19,000 per annum doesn’t seem outrageous in the context of a human rights body, and as the Phoenix notes acerbically ‘A single county councillor from the West of Ireland could spend that much in expenses in seven years’. Nor does €10million across four to five years. Indeed all things considered that seems pretty damn good value.

Of course the point here is to delegitimise the very notion that human rights and equality form part of the function of the state except in the most residual fashion. And this is hardly surprising. Such agencies – and the Phoenix references the not insignificant fact that the Equality Authority was cut by 43% – point up some of the more egregious dislocations and contradictions in the contemporary state of affairs. There is an appetite abroad, best exemplified by McCarthy and the Sunday Independent, but reaching into the last government itself and perhaps this new one, that would much rather that such matters were ignored. And of course add to that their utter aversion of anything that might smack of the state. That and any opportunity to have a go at the ‘Left’. Note Delaney’s most interesting comment in the following paragraph.

And, of course, this is happening without ordinary people noticing; or else, when they do, they shrug their shoulders, because who could possibly be against ‘human rights’? But it is also a way for the old Left to get some of its unfulfilled goals realised. Unable to gain any traction with the electorate, they can instead use the bureaucracy of the human rights industry. After all, most of the ideology totally reflects this political model. Hence, when it comes to freedom of thought, conscience and religion, it is much more about freedom from religion than freedom of religion.

Does he give an example of that? He doesn’t. Indeed what’s amazing is that a former Irish diplomat can be so dismissive of the very concept of human rights throughout the piece. Does he believe that there are no such things, or perhaps that they’re not applicable – or are simply redundant – in the Irish context. Again, he doesn’t bother to inform us. Worse, when one sees a hardly more varnished argument than that which appears in Alive! as regards the ‘left’ and its supposed aims you know we’re some way distant from Kansas.

I was recently talking to a friend about the so-called “equality agenda”, this was on foot of a scathing review in The Village, again last year, of the then recent book by Niall Crowley, former chief executive of the Equality Authority. My friend argued that this agenda was a bad thing, that its manifestation in the PIAB and Equality Authority (he was casting his net wide) prodded people forward to make complaints about items that were really quite trivial and consequently diminished a sense of personal responsibility on the part of the individual. In such instances I’ve always felt that while there’s some truth in that notion there’s arguably a greater truth in the idea that those with money are generally better able to exercise that personal responsibility, and those without… less so (I generalise – I’ve also encountered, as have we all no doubt, people from all backgrounds who would have the PIAB tearing its hair out).

He quoted a few references from the review which sought to highlight apparently egregious examples of the Authority over-reaching itself.

My suggestion was that we should take a look in greater detail at what the Authority actually does before coming to any hard and fast solution. So in the meantime when I’ve had an odd moment here or there I’ve been reading some of the casework activity of the Authority.

To me there’s a lot that’s familiar having been through many companies. Often the cases seem to reduce to simple matters of unfair or summary dismissals which perhaps one might argue should be pursued through a different Authority, and yet which seem quite appropriate for the EA to be dealing with. Consider the following case, available in their Casework doc, 1998-2008.

A woman was employed by a hotel. She wore black trousers the first day to work but was instructed that she would have to wear a black skirt. She wasn’t happy with that – wanting to wear trousers – so she wrote to the EA seeking advice. Soon after the EA wrote to the hotel seeking clarification. Within a period of time her shifts were cut and then she was sent a P45 with no covering letter and no verbal explanation as to what had happened. The hotel when challenged by the EA claimed that they were unhappy with the woman as an employee and that their handbook for employees allowed for either skirts or trousers to be worn.

The EA found in favour of the woman, not so much because of the trousers/skirt issue, it quoted a Labour Court Determination which seems on the face of it to allow for the use of either on the instruction of an employer, but over the process, that …’no operational reason was given why she was instructed to wear a skirt and therefore discriminatory treatment had taken place’.

That’s quite interesting because it doesn’t seem to push, necessarily, towards a situation where she would as of a right be able to choose to wear trousers.

Indeed what it seems to point to is where processes are mismanaged either willfully or not. One could certainly point to the company involved handling this in a particularly poor, almost bizarre given the fact a third party was peripherally involved, fashion.

An awful lot of this seems to be about autonomy. How much do individuals in the workplace have? Are they in a position to query the terms, often unstated, of employment? And what we can see is that under that sort of pressure companies or institutions can react.

Given that we spend so much time in workplaces the lack of reflectivity about what that entails is in some respects quite staggering. I’m always struck by the curios fact that on a political level there’s been so little effort to change relationships within the workplace and shift them away from traditional modes – this isn’t to say that change hasn’t happened here and there, but it’s passing slow in many places – and all too often it’s cosmetic, for all the supposed informality of this age bosses are, after all, still bosses and employees are still employees and that’s a power relationship that few seem keen to consider. Indeed given the aversion to the intrusion of the state, let alone command economies, the fact that most workplaces run on not dissimilar lines is a remarkable contradiction.

But sometimes the EA doesn’t succeed. There’s a fascinating case where a Polish woman in a company that was winding down its manufacturing operation went to an interview but did not furnish the required two referees. Subsequently colleagues of hers were employed but she was told she wasn’t because she could only one referee. The EA found that the complainant had not managed to establish a case of discrimination in terms of race and gender, but found that there was indirect discrimination. A subsequent Labour Court hearing found she had not established a case on any grounds. And to be honest that would be my view reading the report too. If she hadn’t fulfilled the criteria then it’s hard to see how issues of discrimination on grounds race or gender would enter into it. This isn’t to say they don’t exist, but rather that the sort of investigations the Labour Court or any Authority can bring to bear are simply insufficiently forensic – and that I think is a limitation that has to be accepted.

There are other examples. Situations where people were dissuaded from going forward for interviews on the basis that certain qualifications were necessary only to discover subsequently that a position was awarded to people without those qualifications. This is all such simple stuff really and a company that can’t deal with these in an easy and equitable way really does deserve a day down at the Equality Authority.

Yet underneath it all is a sense of desperation in some of these cases. A desperation to keep jobs, a desperation to right some wrong perceived or otherwise. I couldn’t read it without feeling a massive sympathy for many, although not all, of those concerned. Years ago I worked in an establishment where going through files one day I came across the CVs of those who had applied for the same job I was there doing. It was a curious experience trying to determine why they didn’t make it either to interview or to the job itself. And there’s something of that here, that there but for the grace of God…

To be honest while a significant amount of the work appears employment related I can see the utility of a stand-alone Authority that keeps a watching brief on such matters. Sure, there’s some cross-over with the Labour Court, but those of us who’ve encountered that in operation know that it’s a different beast again.

In truth I like living in a society where someone, somewhere, thinks about these issues. The EA may well fail on occasion, may well provide odd outcomes on others, but that it exists seems to me to be a small triumph. And the most curious aspect about it? The fact that rather than providing one size fits all solutions it seems to me to be, for something so supposedly collectivist in the near parodic views expressed about it, fairly individualistic. This isn’t about collectives at all. It seems to me to be much more about individuals, and none the worse for it. Indeed, a strong argument could be made that in the concentration on individual autonomy it is actually paving the way for something radically different to previous visions of the left. Whether that is as challenging, and indeed disturbing, for a much broader range of suspects than those on the right remains to be seen.

As for the near future, the programme agreed between Fine Gael and the Labour Party doesn’t mention the EA by name. But here’s what it says about ‘Equality’:

Equality
Equality is at the heart of what it means to be a citizen in our democracy. This Government believes that everyone has the right to be free from discrimination and that we all benefit from living in a more equal society.
We are committed to ensuring that the rights of women and men to equality of treatment and to participate fully in society are upheld.
We will take steps to ensure that all State boards have at least 40% of each gender.
We will promote greater co-ordination and integration of delivery of services to the Traveller community across Government, using available resources more effectively to deliver on principles of social inclusion, particularly in the area of Traveller education.
We will encourage schools to develop anti-bullying policies and in particular, strategies to combat homophobic bullying.

We will ensure that trans-gender people will have legal recognition and extend the protections of the equality legislation to them.
We will require all public bodies to take due note of equality and human rights in carrying out their functions.
We will reform the current law on employees’ right to engage in collective bargaining (the Industrial Relations (Amendment) Act 2001), so as to ensure compliance by the State with recent judgements of the European Court of Human Rights.
We will promote policies which integrate minority ethnic groups in Ireland, and which promote social inclusion, equality, diversity and the participation of immigrants in the economic, social, political and cultural life of their communities.

The issue of collective bargaining has already raised the ire of employers bodies, but that’s the work of another day.

More interesting is to contemplate the question as to whether the above list of aspirations will be implemented, and if so precisely how they will be implemented.

Comments»

1. Crocodile - March 10, 2011

Delaney and the Sindo can’t be expected to care much about human rights – unless it’s Barry Egan’s right to jump the queue at Lillie’s.
The article, though, is only incidentally about human rights. It’s part of the ongoing torrent of ‘exposés’ with headlines like ‘Quango spent 10,000 euro on paperclips’. These imply – and theres’s a columnist on the same page to spell it out for you – that what happened in Social Partnership was that politicians got together with beardy union types and promised the latter the finest paper clips money could buy. Thus proving that anyone represented by a union was among the beneficiaries of the Celtic Tiger, preying on the taxpayer, thus proving that the real cause of the slump was, well, that guy who delivers your post and that woman who works in the welfare office and who’s allowed to arrange her flexitime hours around her childcare needs.The banks? Bit of bad luck, really, but a bracing wake-up call to deal with the ‘bloated public sector.’ Simples.

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2. Terry McDermott - March 10, 2011

I told you before, Eamo’s main claim to fame is fooling a veteran of the Tan War into giving him a reference and then boasting about it.

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3. prettyinpink - March 10, 2011

What I find interesting in Delaney’s article is the reference to the Irish Council for Civil Liberties. From the context in which they are named, one could be forgiven for thinking that they are receiving extensive state funding. In fact they’re major funder is private, Chuck Feeney’s Atlantic Philanthropies, and they don’t seem to receive any money from the state at all. At least none is mentioned in their most recent annual report.

Whilst not adequately informed to have a position regarding the Equality Commission, I am pretty sceptical about the IHRC, which does look like something of a beano. The appointment of a former FG senator as its head senta clear message from the beginning. I recall that the other candidates mooted for the post came with a civil rights background, and the choice was not without its symbolism. Although it probably wouldn’t have made much difference.

Incidentally some of the problems with regard to establishment rights could be addressed by expanding the standing rights of third parties to take litigation (on which some progress has been made in recent years, and enabling class actions.

Ultimately human rights reports impose nothing, litigation does and IMHO, thats the way to go.

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Wednesday - March 11, 2011

Incidentally some of the problems with regard to establishment rights could be addressed by expanding the standing rights of third parties to take litigation (on which some progress has been made in recent years

Ironically the IHRC was just given the right to do this in relation to the effective deportation of Irish citizen children. Which may be a moot point now anyway after the ECJ’s Zambrano judgment.

I have some qualms about the IHRC too, not least the fact that William Binchy sits on their board. But I can’t see exactly how the cause of human rights would be better off without them. They’ve called for themselves to be made accountable to the Oireachtas which, in addition to putting a greater focus on the importance of their work, would no doubt also ensure they paid more attention to their expenses.

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WorldbyStorm - March 11, 2011

Addendum: The following was sent to me which corrects an error made in the text above, I’ve also added it in as a preface to the original post. Many thanks to the person who did so for taking the time to point this out. It doesn’t change the substance but it is important in regards to our understanding of the Equality process and how it works.

….the findings were not made by the Equality Authority. There are two separate bodies: the Equality Authority and the Equality Tribunal. One is a sort of DPP for discrimination, the other is the district court. (The latter anology is reasonable, since the monetary compensation the Tribunal can award is tied to the maximum the District Court can award in a civil case, and an appeal is allowed to the Circuit Court).

The Equality Authority in practice is more like a firm of solicitors, waiting for people to come to them and it then becomes their legal representative. It does differ from a solicitors’ firm in that it can take cases in its own right (Portmarnock is the most famous of those, but also Ryanair for discriminatory job advertising a decade ago). In the case of illegal advertising, the Authority is the only body that can take a case. It can also take cases where it would not be reasonable to expect the person to do so themselves.

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4. WorldbyStorm - March 10, 2011

I’m not entirely sure I agree with your last point, though I think you’re correct that – if I read you correctly – it requires a lot more. Reports can be useful, even if only to generate mood music for changes (and get up the noses of the right).

Very interesting point you make re the ICCL. But of course to Delaney distinctions are superfluous. He’s agin it anyway.

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prettyinpink - March 16, 2011

WorldbyStorm: Binchy is a pro-life zealot, without question, but on other issues he would have pretty good instincts. I guess you know that he was once involved in the labour party (in Dun Laoghaire) but, irrespective of any interpretation of that, I have heard him speak on a lot of subjects and he’s actually quite decent. And as regards those he was politically at odds with, he always made a point of being a gent.

As regards reports, I would have said that the way to hell is paved with them, so I’m curious: what disposes you towards them?

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Wednesday - March 16, 2011

Binchy is a pro-life zealot, without question, but on other issues he would have pretty good instincts.

He was also one of the main figures in the anti-divorce campaign. (I’d actually consider that part of the same broad “issue” as abortion, but others may not.)

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5. Tomboktu - March 10, 2011

We will take steps to ensure that all State boards have at least 40% of each gender.

It looks that in the rush to get the Programme typed up and printed for the Labour conference on Sunday, they forgot the special exemption they’d agreed for the most important state board of them all: the cabinet.

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6. Mark P - March 10, 2011

Two interesting things :

Maman Poulet reports that Ruairi Quinn, new Labour Minister for education cuts, was questioned about the lack of women in the cabinet on RTE radio today. The interviewer asked him about the stereotypically “feminine” nature of the briefs given to the two women cabinet members. Here’s his reported response:

“This is one of those kind of questions that you can’t win either way. Women know more about children because they spend more time with them.”

http://www.mamanpoulet.com/when-you-are-in-a-hole-stop-digging/

And here’s Sam Smyth’s report on the Labour squabble over whose arses went in the Mercs yesterday:

http://www.independent.ie/opinion/analysis/sam-smyth-first-row-in-coalition-sets-labour-at-war-over-burton-2573618.html

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7. Mark P - March 10, 2011

Am I being caught in a spam trap, or is there a problem at my end? I’ve just tried to post in two different threads and the comment hasn’t appeared.

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Mark P - March 10, 2011

Nope, it disappeared again. I wonder is it a problem with posting links?

Here’s Sam Smyth’s report on the Labour squabble over whose arses went in the Mercs yesterday:

http://www.independent.ie/opinion/analysis

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Mark P - March 10, 2011

And yet that bit showed up, now that I’ve hived it off. The vagaries of wordpress…

The other thing I was trying to post was Maman Poulet’s report of Ruairi Quinn’s remarks on RTE Radio One this afternoon. The new Labour Minister for Education Cuts was asked about the stereotypically “feminine” roles assigned to the two women in cabinet and, according to MP, had the following to say in response:

“This is one of those kind of questions that you can’t win either way. Women know more about children because they spend more time with them.”

[Link added by Tonboktu]

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Mark P - March 10, 2011

Here’s the Maman Poulet link (and sorry about the four posts to say stuff that really belonged in just one):

http://www.mamanpoulet.com/when-you-are-in-a-hole-stop-digging/

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WorldbyStorm - March 11, 2011

Fucks sake… Disgraceful on any level

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8. Mark P - March 10, 2011

Hmm, that one appeared. Maybe if I divide my other post in two it will show up…

Maman Poulet reports that Ruairi Quinn, new Labour Minister for education cuts, was questioned about the lack of women in the cabinet on RTE radio today. The interviewer asked him about the stereotypically “feminine” nature of the briefs given to the two women cabinet members. Here’s his reported response:

“This is one of those kind of questions that you can’t win either way. Women know more about children because they spend more time with them.”

http://www.mamanpoulet.com/when-you-are-in-a-hole-stop-digging/

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9. WorldbyStorm - March 11, 2011

By the way sorry Mark P and many thanks Tombuktu.

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10. tomasoflatharta - March 11, 2011

There is more on the Labour Mercs and Perks Row Here :

http://www.herald.ie/national-news/devastated-burton-in-last-minute-cabinet-demotion-2573913.html

Clare Daly predicted the new Fine Gael / Labour government would have a very short honeymoon, and the Dublin North ULA TD has already been proven right.

Fine Gael is used to very long spells in opposition, and knows it has never held office for longer than one term. The last Fine Gael taoiseach John Bruton left office in 1997, nearly 14 years ago.

That means lots of loyal party backers who believe they were overlooked because they were not part of the Fianna Fáil patronage network now expect a place in the sun. Scandals are inevitable.

Fianna Fáil can afford to take the longer view – naturally it is a corrupt party, but will look lily-white after Fine Gael and Labour start handing out favours to expectant friends.

Looking back, the Brian Cowen decision to trim the number of Junior Ministers to 12 was a very shrewd move. The Offaly man knew Fianna Fáil were going to lose the election badly, and that Kenny and Gilmore would be under pressure to reward ambitious deputies – therefore we have an increase to 15 mini-ministers.

Secondly Fianna Fáil encouraged many state board members to step down early, so that new Soldiers-of-Destiny friendly nominees could be put in place for five years.

The new government finds itself surrounded by nests of Fianna Fáilers in the state boards, waiting for the inevitable Kenny-Gilmore slide downwards in the opinion polls.

A little history lesson :

Shortly after a Fine Gael / Labour coalition knocked out Fianna Fáil in February 1973 the new government expected Tom O’Higgins would win the Presidential election a few months later – he lost to Erskine Childers.

http://electionsireland.org/result.cfm?election=1973P&cons=194

What happened next?

Any sensible political party might have concluded O’Higgins was unsuitable for public office – then Fine Gael leader Liam Cosgrave thought different.

The Dún Laoghaire TD was not going to be put off by alarmed legal experts who knew very well why the beaten Fine Gael presidential candidate was fondly nicknamed “G and T O’Higgins”.

O’Higgins was promoted to the Supreme Court, later climbing all the way up the ladder to the post of Chief Justice – during his spell at the top of the Irish Court system he became infamous for lots of reactionary nonsense : for example : “in the Norris case on homosexuality that he would not accept that the Constitution nullified laws “prohibiting unnatural sexual conduct which Christian teaching held to be gravely sinful”

http://www.tribune.ie/archive/article/2001/dec/23/supreme-beings/

O’Higgins pioneered a grim 1970’s judicial attack on civil liberties, usually justified by hysterical attacks on militant armed republicanism – this was the inglorious era of the heavy gang and Justice “Sleeping in the Special Criminal Court”.

With Enda Kenny and Eamonn Gilmore in charge, we ain’t seen nothing yet.

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Tomboktu - March 11, 2011

Do you know where the Herald story was originally published?

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