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Submission on the European Race Directive (RD) 2000

Irish Traveller Movement Submission to the
Department of Justice, Equality and Law Reform
on the implementation of the European Race Directive (RD) 2000/43/EC

16^th of December, 2002

1. Introduction

The Irish Traveller Movement welcomes this opportunity to contribute to the discussion on the implementation of the Race Directive and its potential impact on the Equality Employment Act (EEA) 1998 and the Equal Status Act, 2000.

The Irish Traveller Movement was one of the many organisations that lobbied for the Equality legislation and other equality mechanisms and contributed to its development. The introduction of this Directive presents an opportunity to re-visit some outstanding issues.

2. Article 13- Race Directives (RD)

On the basis of Article 13 EC1 the EU has now developed an important initiative by way of the race directive, which prohibits discrimination on grounds of race ethnic origin in access to employment, vocational training, employment and working conditions, membership and involvement in unions and employer organisations, social protection, including social security and health care, ‘social advantage’, education, as well as goods and services, including housing.

This directive includes the following elements:

A definition of discrimination that encompasses both direct and indirect discrimination and harassment.
Exceptions to non-discrimination principle based on genuine occupational qualification
Provision for positive action;
Provides that the level of protection against discrimination by Member States may be greater than that provided in the Directives;
An administrative or judicial remedy be provided by Member States for the resolution of individual grievances;
Prohibition on victimization,
Allows for association and organisations to pursue claims for equal treatment;
Recognises the need for sanctions to be effective proportionate and dissuasive;
Provides for dialogue with non-government organisations in the context of the implementation of the Directives.

As set out in Article 8 of the Directive ‘Members States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not applied to them establish, before a court or other competent authority, facts from which it may be presumes that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment’.

Neither the EEA nor the ESA 2000 contain any provisions in relation to burden of proof. Ireland has implemented the Burden of Proof Directive in cases of discrimination based on sex by way of the European Communities Regulations, Article 3(1). The ODEI regularly apply this burden of proof to other grounds within the EEA and to cases brought under the ESA. This practice is currently the subject matter of appeal before the circuit court. Therefore, Irish legislation will need to be amended to implement Article 8 of the RD.

Recommendation: Irish Legislation should be amended to implement Article 8.

b. Representation by independent entities.

The RD requires Member States to ensure that legal entities with a legitimate interest in ensuring compliance with the provisions of the Directives, may engage in any judicial and/or administrative procedure provided for either on behalf or in support of the claimant (Articles 7(2) and 9(2) respectively. The Directive will allow for ‘representative actions’ to be taken on behalf of individuals by independent organisations such as NGO’s. In order to take an action, an organisation must have a legitimate interest the latter will be determined by national law. The ITM recommends that NGO’s who represent the nine grounds be deemed as having a legitimate interest for the purpose of initiating proceedings for the enforcement of rights. In order to carry out this work effectively it is vital that resources are made available to NGO’s engaging in this work. For example, the community advocacy programme currently being piloted by the ITM and the Equality Authority, which supports Travellers in accessing rights and information under the Equality legislation should be resourced and replicated with other groups under the nine grounds.

Recommendations:

NGO’s who represent the nine grounds should be deemed as having a legitimate interest for the purpose of initiating proceedings for the enforcement of rights.
A funding programme should be put in place by the government to resource and support Community Advocacy Programmes.

c. The ground of ‘race’ and Traveller Community

The implementation of the RD will have a significant impact on the Irish Equality legislation. The implementation of the RD is not without problems as the scope of provisions of the Directive are not completely clear. The Directive applies to ‘race and ethnic origin’ but fails to define either. It excludes difference of treatment based on nationality from its scope while including ethnic origin. The distinction between nationality and ethnic origin will be highly problematic. Another problem is that it may also be the case that nationality discrimination is indirect racial discrimination.

The nature of the discrimination and marginalisation facing Travellers is racist. Though Irish society has been slow to acknowledge this reality, implicit recognition has been given in a variety of ways. For example, Travellers and their representatives played an important role in the European Year Against Racism and its co-ordinating group; and the National Consultative Committee on Racism and Interculturalism.

The definition of Travellers included in the Equal Status Act and now applicable to the Employment Equality Act is the same as the definition used in the Northern Ireland Race Relations Order. This definition in the NIRRO is contained in their definition of racial group and is based on the definition of ‘ethnic group’, which has evolved within the British legal system. This definition says “An ethnic group as an involuntary group which shares a common ancestry, culture, history, tradition, and sense of belonging or peoplehood and that is a political and economic interest group. Ethnicity is a way of categorising people on the basis of self-identification and ascription by others.” Travellers are identified both by themselves and others as a separate community, minority ethnic group.

Under the International Covenant on Civil and Political Rights, Article 27 “In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with other members of their group, to enjoy their own culture, to profess and practise their own religion, or use to their own language.” Ireland has reported on the issues facing Travellers and the progress made by the State in addressing these issues. Other commentators have interpreted this as an official recognition of Travellers as a minority ethnic group. Therefore the Race Directive is applicable to all those who experience racism within Irish society because of the colour of their skin and/or their ethnic status.

Recommendation: The ITM recommends that Travellers are included in the race ground for the purposes of the implementation of the Race Directive.

d. Indirect discrimination

The two sections in the Employment Equality Act (EEA), which deal with indirect discrimination, are Sections 22 (gender) and Section 31 (all other grounds). The wording is different between these two sections. At the time the EEA was drawn up many groups, including the National Economic and Social Forum, advised that the gender and non-gender parts of the Act should be harmonised upwards. To this end the definition of indirect discrimination used in Section 31should be changed to be in keeping with the stronger and clearer language of Sn 22.

At the very least Sn 31 (1) (d) and (2) (d) should be changed to Sn 22 (1) (c) and read, “cannot be justified by objective factors unrelated to C’s ground”. Such a change would be in keeping with the definition contained in the Directive.

Recommendation: The ITM recommends that Sn 31 (1) (d) and (2) (d) of the EEA should be changed to Sn 22 (1) (c) of the EEA and read, “cannot be justified by objective factors unrelated to C’s ground”.

e. Self employment

For Travellers, in particular Traveller men, there is a preference for self-employment within what is termed the Traveller economy. The Traveller economy refers not to the activities that Travellers initiate themselves but to the method of work organisation which underpins these activities. Its key features are:

Nomadism: where mobility makes marginal activity viable;
An emphasis on income generation rather than the creation of a job;
The family, in particular the extended family, as the basic economic unit;
Home space and work space as one and the same space;
Flexibility in response to changing market conditions;
Self-employment.

A preference for self-employment is a logical choice in a society that denies one access to a wide range of services and opportunities including employment and where discrimination is a daily and managed reality.

It is extremely important that any extension of the EEA to cover the issue of self-employment has the capacity to support cultural diversity within work practices. Such support should be spelt out in terms of positive action measures that would secure the development of the Traveller economy and the initiatives of other minority ethnic groups as they seek to respond to their own economic needs and contribute to Ireland’s economic development.

Recommendation: The ITM recommends that positive action measures are established in the area of self employment to support the development of the Traveller economy and initiatives of other minority groups developing responses to their own economic needs.

4. Summary of recommendations:

The ITM recommends the following:

The directives should be implemented by way of primary legislation rather than by way of regulation.
NGO’s who represent the nine grounds should be deemed as having a legitimate interest for the purpose of initiating proceedings for the enforcement of rights.
A funding programme should be put in place by the government to resource and support Community Advocacy Programmes
Irish legislation should be amended to implement Article 8 regarding the burden of proof.
The ITM recommends that Travellers are included in the race ground for the purposes of the implementation of the Race Directive.
The ITM recommends that the definition of indirect discrimination used in Section 31EEA should be changed to be in keeping with the stronger and clearer language of Sn 22 of the EEA.
The ITM recommends that positive action measures be put in place that would secure the development of the Traveller economy and the initiatives of other minority ethnic groups

5. Irish Traveller Movement

The ITM Established in 1990, the ITM has over ninety Traveller member organisations and consists of a partnership between Travellers and settled people committed to seeking full equality for Travellers in Irish society. The Irish Traveller Movement aims to:

Provide a national platform for Travellers and Traveller organisations to debate ideas and bring forward proposals aimed at addressing the issues faced by members of the Traveller community.

Support the recognition of Travellers as a distinct ethnic group in Irish society with its own culture and traditions of which nomadism is an important part.

Ensure that appropriate mechanisms and adequate resources are in place to address the needs of Travellers.

Key activities of the Irish Traveller Movement include supporting the work of Traveller organisations, developing a Traveller input into policy arenas, representing Traveller interests on national advisory committees and policy fora and developing joint work with other community and voluntary organisations.