Alan Shatter (Dublin South, Fine Gael)
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Section 42 introduces a new positive duty on public bodies to have due regard to human rights and equality and reflects a commitment in the Government's programme for national recovery 2011-2016 which states: "We will require all public bodies to take due note of equality and human rights in carrying out their functions." The commission will assist public bodies to comply with the positive duty, including by producing guidelines and codes of practice as outlined in section 31.

With regard to the suggestion that section 42 should be amended to include an enforcement mechanism, I think this approach is misdirected.

I have been asked why we cannot have an enforcement mechanism in a situation where a public body refuses to reflect human rights and equality duties in its strategic plan and annual report. I remain to be convinced that we need a new enforcement regime or recourse to the courts here. I think this recommendation downplays considerably the importance of our national Parliament. Annual reports and strategic plans of public bodies are laid before the Houses of the Oireachtas. That being so, the commission is well placed, once it has developed a good working relationship with Oireachtas committees, to address any such instances. No Minister or indeed CEO would want to be in the position of explaining to the Oireachtas why a particular public body took a stand against complying with its statutory obligations. For a CEO to be in here explaining why the body refused to reference its human rights and equality rights obligations in its strategic plan would be a very uncomfortable and unlikely position in which to put oneself. Instead of focusing on thinking about taking a mechanistic, legal approach to compliance, it would be much more fruitful to see this provision as a positive opportunity to bring about real reform within the public sector by adopting the approach of active engagement successfully pursued by the Equality Authority in its workplace relations work with social partners. There is potential to use the positive duty function to persuade and promote best practice by highlighting good examples to which other bodies could aspire.

The working group that I established to advise me on practical issues relating to the merger recommended this specific approach to the creation of a positive duty on public bodies. It went on to recommend that a formal review of the operation of this section be undertaken by Government in consultation with the human rights and equality commission after a period of three or five years. I am happy that such a review should take place. The review should assess the effectiveness of the public sector duty in securing improved human rights and equality outcomes and in assisting public bodies to pre-empt problems on an evidential basis. The evidence could be gathered by way of an independent evaluation commissioned jointly by the Irish human rights and equality commission and the Department of Justice and Equality. The review should also assess whether there is a need to modify or develop these recommended arrangements, including whether there is a need to institute a formal review and monitoring mechanism and the question of integration with other regulatory assessment procedures on the basis of the evidence.