Maltese public debates have a striking quality: they’re capable of hotly contesting the best way to be European but in a way that displays just how cut off we are from the continent. Take how we are discussing the setting up of a new equality commission to safeguard the provisions of the Equality Bill.
Once passed, this draft law will see us catch up with laws that, in the rest of Europe, began to be passed almost 15 years ago. That’s a good thing, which most people participating in the public debate explicitly recognise. It’s two or three important points that are responsible for the controversy, though, today, I have space only for the one over the planned Human Rights and Equality Commission.
The government and the current draft’s supporters insist that the bill as it stands is necessary in all its details. The opponents say some details are dangerous for the rule of law and safeguarding of all anti-discrimination measures. You’d think that, given the disagreement, the obvious step to take would be to refer to what other member states have done before us and what their experience is.
Yet, the obvious has not been done. We talk about Europeanising our equality law but discuss the process as though we are the pioneers.
The new commission shall include an equality board with the power to investigate cases relating to alleged breaches. Here’s the point of contention: the new body’s decisions shall be legally binding.
This new power is in itself contested. The critics say legally binding powers should be the preserve of the courts.
But the draconian nature of the power is protested too. The commission will be able to impose fines up to a maximum of €10,000. As the critics point out, that hefty sum is currently the preserve of judges, not even magistrates.
The bill’s supporters say such powers are needed. Decisions that are not legally binding are not meaningful. (Under the current dispensation, decisions by the equality commission are legally binding only if all the parties agree before an investigation begins.)
And this has been the state of the debate for months, one of constant retrenchment by both sides. But what does European experience and practice say?
The EU has a wide range of bodies that champion equality and anti-discrimination. The forms vary from the very French ‘Defender of Rights’ to an Equality Ombudsman to variants of equality commissions. On the whole, the bodies in Western Europe are more successful (at least, in the eyes of the people they’re particularly meant to defend) than those in Eastern Europe.
Why do we need to ramp up the powers of the new equality commission beyond the European norm?- Ranier Fsadni
With one exception, no Western European equality body has legally binding powers. That includes some of the most successful ones, like Ireland, Germany, Luxembourg, the Netherlands and Sweden. All these bodies were established between 2006 and 2014. They are hardly labouring under out-of-date laws.
The exception is Denmark’s Board of Equal Treatment, established in 2009. I have not been able to find out if its powers are as draconian as what is planned for ours but its decisions on complaints are legally binding.
The decisions can, however, be challenged in court. And they have been, with the courts confirming the board’s decisions in most cases, though not all. Case law has changed as a result of these appeals.
European experience, therefore, should inform the Maltese debate in two ways.
Our draft bill sets up the new equality commission along lines similar to that of Denmark’s: Maltese litigants would have recourse to the appeals court if they don’t like a decision. The idea that the commission would be outside the legal system is therefore inaccurate.
What we’ll have, rather, is a further hybridisation of our (already hybrid) legal system. Contested commission decisions will end up developing case law, if the Danish experience is anything to go by. The critics need to refine their criticism. They need to say whether the Danish experience has been perverse or why transplantation to Malta would not work.
Having said that, it is striking that Denmark is the outlier. Other member states have refrained from giving their equality bodies legally binding powers, let alone draconian ones.
The absence of legally binding decisions doesn’t mean no teeth. Equality bodies do have powers of representation before courts, to intervene before them and to begin proceedings in their own name. Our draft bill awards the new equality commission similar powers.
Surely, the government owes us an explanation why it believes Malta needs the additional powers of legally binding decisions. The explanation can’t just be intuitive. We need to have a real concrete sense for why the usual set-up won’t work.
The truth is that this government has been very successful in eroding discrimination against at least one group of people, the LGBTI community. That’s not me talking. It’s the EU Agency for Fundamental Rights, which last year surveyed LGBTI communities for how they reckon their lives have improved.
Many countries have recorded little progress since 2012. Denmark scored well on government efforts but not better than others like Sweden, Ireland and the Netherlands – all with watchdogs that have no legally binding decision-making powers. The top country on this score was Malta – also a top scorer on various other issues (like not needing to hide your identity at school, not needing to avoid certain places and rate of decrease in intolerance).
We’re not doing badly, at least on this one score. So why do we need to ramp up the powers of the new equality commission beyond the European norm? Especially since it seems that Denmark’s special arrangements do not put its results in a class of their own.
Maybe there are good reasons. But we deserve to be given them. Why must we be like Denmark, not Sweden or Ireland? If the reply is that only wayward bigots would ask for reasons, we can conclude there are none.