EU standards for national equality bodies have come a step closer but there is work for the European Parliament to do.
Across the European Union, national equality bodies are key statutory institutions with much-needed potential to advance equality, contributing to change at the individual, institutional and societal levels. On the island of Ireland, for instance, are the Equality Commission for Northern Ireland (ECNI) and the Irish Human Rights and Equality Commission (IHREC). Yet such bodies face challenges in realising their potential, with barriers placed in their way as to their independence and effectiveness.
Continuing with the Irish case, the ECNI and the Equality Authority (predecessor of the IHREC) have suffered disproportionate funding cutbacks—43 per cent for the Equality Authority in 2008 and, for the ECNI, a downward trend from 2008 shedding almost a third of its original budget by 2022. Both have championed the need for common EU standards for equality bodies, through their work within Equinet, the European network of such bodies.
The European Commission initially responded to this undermining of the potential of equality bodies in 2018, with a non-binding recommendation on the standards that should apply. In a 2021 report, however, the commission noted that ‘a limited and unequal level of implementation of the Recommendation continues to hinder some equality bodies in effectively exercising their role’.
As a result, the commission proposed last December two directives on standards for equality bodies, addressing the conditions required for their independence and effectiveness. The directives are identical but follow different legislative procedures—one addressing the gender ground in employment, the other the wider range of grounds and fields applicable.
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The focus then shifted to the Council of the EU, where a former equality-related directive has languished for decades. There was much talk about member-state hostility and possible veto.
In a significant achievement last month, however, the Swedish presidency announced agreement by employment and social-affairs ministers on a general approach to the next phase of negotiation of the proposed directives. This allows Spain, having taken over the presidential baton, to begin negotiations with the European Parliament on one of the directives and to seek the consent of the parliament on the second.
While this agreement has retained some key provisions in the proposed directives, a price has been paid. The provision that an equality body must have independent legal status—not forming part of a government entity—has been removed. Freedom from external influence does remain, with its important link to accountability, but it would have been useful to clarify that independence requires such accountability not to be to a government department.
The provision in relation to transparency in appointments to leadership in equality bodies is retained and usefully linked to the competence and independence of that leadership. Again, however, it could have been stipulated that such appointments be made by parliament, rather than government, and via a competency-based process.
In relation to effectiveness, also kept is the requirement that the necessary human, technical and financial resources are made available to equality bodies to implement all their functions. This is vital where inadequate resources are identified by most equality bodies as their most significant hindrance. But waters are muddied by a reference to this being ‘in accordance with their national budgetary processes’, to ‘allow sufficient flexibility to accommodate the different national contexts and systems in place’.
Concerns about effectiveness further emerge in relation to envisaged limits on the competences to be afforded to equality bodies, in particular on litigation. The proposed directives included powers to represent victims of discrimination in cases of discrimination, to take own-initiative cases and to act as an amicus curiae (‘friend of the court’). The council is not clear that such a range should be provided, setting out conflicting possibilities while signalling ominously ‘that the legal systems of the Member States vary greatly’.
Of relevance to the IHREC are provisions on multi-mandate bodies, stemming from concern that the equality mandate loses visibility and lacks resources when located in a body alongside other mandates, such as human rights. The provisions in the proposed directives are here largely retained: an internal structure in a multi-mandate body that guarantees effective exercise of the equality mandate and adequate resources directed to perform the equality functions.
Monitoring and indicators
The proposed directives provide a monitoring role for the commission, including via common indicators on the themes addressed. The council disappointingly specifies that such indicators cannot be used to issue specific recommendations to individual member states. More usefully, it says equality bodies should be included in indicator development and in reporting on implementation of the proposed directives, through their European networks.
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Attention now turns to the European Parliament, where the FEMM (women’s rights) committee is addressing the proposed directives, with support from LIBE (civil liberties) and EMPL (employment and social affairs). Rapporteurs have been appointed, background documentation commissioned and initial debates begun. This offers potential to strengthen the provisions in an arena traditionally more favourably disposed to equality legislation.
Niall Crowley is an independent consultant on equality and human rights, at a European level and in Ireland, where he was chief executive of the Equality Authority for ten years from its establishment in 1999.