Strategic meeting on standards for equality bodies – Summary

Equinet offices, Brussels, 3 May 2017 (afternoon)

Equinet organised a strategic meeting for its members to discuss further steps that could be taken to achieve the introduction and strengthening of standards for equality bodies.

The Objectives of the meeting were to:

Consider and review progress made since the publication of the Equinet Working Paper on Standards for Equality Bodies in 2016.

Discuss the follow-up at national levelfrom the Equinet Working Paper and the ‘Toolbox for Equinet Members’.

Identify opportunities, strategies and inputs to progress standards at national/European and international levels;

Consider next steps and concrete outputs for the short and medium term.

The meeting was attended by 21 equality body staff members (representing 19 equality bodies) from 17 jurisdictions.

Lunch meeting with European Commission representatives

Mr. Szabolcs Schmidt, Head of Unit for Non-Discrimination and Roma Coordination (European Commission DG Justice and Consumers) joined participants for a lunch meeting and informal exchanges on the issue of standards for equality bodies.

Mr. Schmidt underlined that equality bodies make an important contribution to implementing the EU directives, without them the legislation would not be much more than a piece of paper.He welcomed the diversity in how equality bodies are set up, organised, and operate. That said, he recognized that there were challenges, that standards for equality bodies was a crucial topic and that there is a need for certain minimum standards.

In reaction to Mr. Schmidt’s introduction equality body representatives shared some insights on their organisation’s situation and practical challenges such as political influencing, challenges to their independence, or disproportionate budget cuts suffered. They emphasized that as the setting up of equality bodies was a direct result of EU legislation in many jurisdictions, equality bodies look to the European Commission for cooperation, support and upholdingstandards not only in legislation and legal practice, but also concerning independence, and effectiveness of equality bodies.

In his response Mr. Szabolcs Schmidt encouraged equality bodies that encounter difficult situations to notify the European Commission which can also take political action, as happened lately in a case concerning a Romanian bill calling for the dissolution of the equality body. Mr. Schmidt underlined that the legislator opted for a Directive in order to leave space to Member States to decide exactly howthey implement their obligations. This shows that a one size fits all approach was and is not deemed to be the way forward. Furthermore, the legislation does not provide the European Commission with a specific mandate to work out legally binding standards, therefore they cannot enact or propose legislation. However, they could consider other measures, such as soft law.If and when doing so it would be important to define expectations and objectives, anda monitoring and measurement framework,rather thantaking positions on concrete processes and models. The European Commission should start thinking of the adequate legal basis for such standards and how to ‘put a European seal’ on the Equinet standards–which they value and hold in great esteem–in a way that can be supportedvis-à-vis the other EU institutions. Mr. Schmidt closed on the thought that the 10 year anniversary of Equinet could be a good occasion to move forward on this issue.

Session 1

The Session started with a report from Ms. Evelyn Collins, Equinet chair, recalling the state of affairs, Equinet activities and external developments since the publication of the Equinet Working Paper. Important milestones included:

  • Contacts with European Commissioner Jourová and the cabinet of First Vice-President of the European Commission Frans Timmermans.
  • Council conclusions on LGBTI and gender equality adopted in June 2016
  • Developments and mentions of standards (including in some instances the Equinet Working Paper) by Council of Europe and United Nations bodies.

Ms. Collins concluded that a lot of largely positive developments took place in the past two years and encouraged members to look at how we can move forward and capitalize on these.

Participants reported on the use they have made of the Equinet Working Paper at national level, including

  • translating it to their national language(s);
  • uploading it on their website;
  • mentioning it in their annual report;
  • issuing a press release;
  • using it in their reports to UN bodies
  • using it in evaluating their work;
  • requesting further powers from the national legislator;
  • and inviting academics and NGOs to respond to the Working Paper and support standards for equality bodies.

In the ensuing discussions participants agreed that the current political and economic atmosphere in Europe further increases the need for strong standards. However, the current hostile atmosphere also calls for caution.If we call for legislative change, we need to take into account that despite our intention and best efforts it might result in levelling down, worsening the situation, rather than improvements.

Following from Mr. Schmidt’s comments, participants discussed the need to define indicators for standards. Taking into account the subsidiarity and the level of discretion left for Member States, it might be difficult to define indicators for evaluating equality bodies as institutions, but it ought to be easier to define indicators for measuring the effectiveness of legislation and indicators for the conditions created for equality bodies in order to fulfill their potential and remit.

As a practical measure, participants agreed that the standards paper should be sent to all the experts of the European Commission network of experts on non-discrimination who have a role in monitoring the implementation of the Directives and informing the Commission.

Session 2

ECRI General Policy Recommendation No.2. (GPR)

Report from TenaŠimonović Einwalter, Croatian Deputy Ombud, Equinet Board member and ECRI member, chairing ECRI’s working group revising the GPR introduced the topic (in her capacity as Equinet Board member, not representing ECRI at this strategic meeting).

Monitoring equality bodies has been part of the regular country monitoring of ECRI. According to Ms. Šimonović Einwalter, it has been clear for some years that the time is ripe for a revision of the GPR. The Equinet Working Paper has been used in the process of revision. GPRs are recommendations to Member States and ECRI will use them in their upcoming country visits, but equality bodies can also use them to advocate for stronger standards at national level. The ECRI Plenary has already seen the draft and is generally supportive of it. Equality bodies are invited to send written comments (possibly tracked changes), as the ECRI working group will be looking at all the comments before the ECRI seminar with equality bodies taking place on 23-24 May. After the ECRI seminar, the GPR will go to the plenary again for adoption either in June, or in December 2017.

Participants’ shared their views on the text of the GPR circulated for comments and while everyone welcomed the revision of the GPR, a diversity of views was apparent on the details.

Some participants pointed out the large number of useful recommendations, ensuring that all equality bodies can find something in it of assistance. However, there is probably no single institution that would fulfill all requirements (which might not necessarily be a problem), and some recommendations are not relevant for some bodies. This level of detail was interpreted by some as a welcome sign of ECRI’s ambition in the revision process, ensuring that the text is not only a list of vague principles and pointing out that the details can be useful to advocate vis-à-vis governments. Others felt that it might jeopardise clarity and interpretation, limit the discretion of governments, result in disagreements and fundamentally limit the GPR’s political impact, or result in unwanted changes. This latter group suggested to aim for a more concise text.

All participants welcomed the general focus on functions rather than institutional setup of equality bodies, although some suggested that the text could be amended to move further into this direction.Currently, the text addresses certain institutional issues inter alia related to leadership and the distribution of mandates.

Attention was drawn to the requirement of full-time leadership in paragraph 24, which might prove problematic to apply in practice where e.g. an institution operates with a part-time Chair of the Board next to a CEO or Director.

All participants welcomed the attention given to prevention of discrimination as an important complement to promotion of equality and suggested to emphasize and detail this preventive function further.

All participants agreed that implementation of the GPR will be of crucial significance and suggested that measures and processes for implementation and monitoring should be further strengthened.

Arguments for standards for equality bodies – better regulation agenda:

The Equinet Secretariat presented the paper drafted by Ms. Ingrid Thorsnes (Equinet’s Trainee) on the potential links between the European Commission’s Better Regulation Agenda on the one hand and standards for equality bodies on the other hand. Participants welcomed the draft paper as providing useful thinking and a good tool. Considering the political context, references to and linking with the Better Regulation Agenda could prove useful as we can argue that equality bodies ensure the enforcement of legal obligations and failing to do so due to limited independence, mandate, powers or resources weakens the law itself.

Participants agreed that the paper should be finalised, developing alsoa section with our key messages, and then circulated for comments.

Other arguments mentioned included:

  • Rule of law, equality bodies as important actors ensuring rule of law
  • Some equality bodies received new mandates recently (posted workers, free movement, etc.), we could advocate that this necessitates strong standards
  • Arguments from the European Pillar of Social Rights and Work-Life Balance initiative
  • Equality goes beyond human rights, therefore equality bodies are different and need specific standards
  • A narrative of (social) justice, European values, and a good story and be able to explain shortly why standards are important. Justice might be a useful focus and discourse.
  • Create sense of ownership and caring for EBs within the European Institutions
  • Use examples of negative experiences where standards could have protected the EB
  • Argument of social stability and discrimination threatening social cohesion.

Session 3

Potential FRA opinion on standards for equality bodies:

The FRA Director had proposed at the Equinet AGM in October 2016 that, if found useful by Equinet members and requested by the European Parliament and/or the Council, the FRA could prepare an opinion on standards for equality bodies.

Participants raised questions concerning the FRA’s attention to and expertise on equality bodies given that they appear not to be seen by FRA as an equal institution to ombuds and NHRIs. A specific question was also raised concerning FRA’s mandate and whether such a FRA opinion would also cover gender equality and equality bodies working on this ground.

Participants agreed that it is hard to know whether such an opinion would be beneficial for equality bodies or not in the absence of information on what it might cover. Given FRA’s strong focus on NHRIs there is a danger that the opinion would focus on the Paris Principles.On the other hand, a potential benefit could be that an Opinion from FRA might give more visibility to the issue.

At the end of the day there was a general consensus that it may be too early to make such a request. Equinet would need to cover more ground and promote its own Working Paper as an authoritative source on the issue before we ask for a FRA opinion and there was the possibility of encouraging the Commission or other European institution to seek such an opinion. Furthermore, Equinet should capitalize on the eventual adoption of the final ECRI GPR No. 2. as well as continue working with other international organisations.

Engagement with the Council of the EU:

Participants agreed that Equinet should also engage with the Council as currently the most influential EU decision-maker. This could be done using good contacts between Equinet members and national governments potentially open to the need for standards. Our ultimate goal could be a Council Recommendation or at least Council Conclusions on standards for equality bodies. In the absence of such opportunities, Equinet could aim at inserting equality body-specific points into Council Conclusions on general equality issues.

There might be an openness within theAustrian government (Austria holding the EU rotating presidency in the second half of 2018) that Equinet, via the Ombud for Equal Treatment,will try to capitalize on, given that there are some ministers that are open and supportive of the issue.

The Strategic meeting was closed at 17:45.