Select Committee on Northern Ireland Affairs Minutes of Evidence


Memorandum submitted by the Standing Advisory Commission on Human Rights

PAFT AND PROMOTING EQUALITY OF OPPORTUNITY

Paragraphs 4.2-4.11 White Paper

Introduction

  It is the White Paper's response to SACHR's recommendations on the future of the Policy Appraisal and Fair Treatment Guidelines which has engendered the widest debate and attracted greatest criticism. SACHR does welcome, in principle, the commitment to place a statutory duty regarding equality on public bodies, District Councils and United Kingdom Departments operating in Northern Ireland. It is SACHR's view however, that the White Paper omits the majority of the key features recommended by the Commission to ensure that equality be an integral part of the decision-making process.

Internal Mechanism

  The White Paper is silent on the crucial issue of an internal mechanism to ensure that equality considerations are mainstreamed at the heart of government. SACHR recommended that an internal unit, such as CCRU, be established with the powers, functions, status, staffing and other resources needed to allow it to meet the new statutory duty and, crucially, to help departments to develop policies and systems to operate PAFT effectively (paragraphs 5.36 and 5.38 SACHR). The White Paper provides for no such internal mechanism but rather proposes the "collapsing" of the existing statutory equality bodies as an external mechanism for the monitoring of the new statutory duty. SACHR disagrees fundamentally with the Government's conclusion in the White Paper that "this as an effective means of injecting equality considerations into the mainstream of public sector activities" (paragraph 4.14 White Paper).

  SACHR accepts that there is a role for an external mechanism but that this should complement a robust internal mechanism underpinned by effective political control.

  In this regard, SACHR would lend its support to the creation of a Department of Equality in Northern Ireland, whose Minister would be the Deputy First Minister of the new Northern Ireland Assembly. In SACHR's view, the possibility of establishing such a Department of Equality (see paragraph 7, p.17 of the Multi-Party Agreement) substantially alters the landscape as regards the mechanisms to monitor and enforce the new statutory duty. The importance of effective political control to ensure that proper weight is given to the mainstreaming of equality cannot be under-estimated. The role of the Secretary of State needs further consideration in this regard.

Other Key Elements

  The other elements which must be present to ensure effective mainstreaming of equality into Government decision-making were identified by SACHR as follows:

To improve transparency and accountability

    —  PAFT appraisals, or at least a non-technical summary, should be routinely available for public consultation;


    —  public consultation to enhance the decision-making process;

    —  adequate monitoring of both the direct and indirect effects of policy;

    —  full consideration of alternative policies which might give effect to Government objectives but reduce or avoid unwelcome effects on equality generally.

Enforcement

    —  Legislation should have a mechanism which ensures enforcement, preferably speedily and inexpensively.

Draft Legislation

    —  Each new piece of legislation should contain a summary of the results of the associated PAFT analysis and a statement indicating what implications, if any, it has for the new statutory duty.

  

  In its report of June 1997, SACHR drew the Government's attention to work in progress by Dr Christopher McCrudden in respect of PAFT. His final paper was published in February 1998 outlining a detailed proposal for placing PAFT on a statutory basis (see "Benchmarks For Change: Mainstreaming Fairness in the Government of Northern Ireland", February 1998, CAJ Belfast). SACHR considers that the paper provides a coherent and comprehensive model and urges the Government to ensure that the key elements for effective mainstreaming, outlined therein are enshrined in the new statutory equality duty, namely:

    (1)  Fairness and openness must be brought into the mainstream of decision-making in all parts of the public sector in Northern Ireland, and put on a statutory basis;

    (2)  Public authorities should be put under a duty to create arrangements to ensure that their various functions and responsibilities are carried out with due regard to the need to comply with equality and non-discrimination;

    (3)  Within three years, and once every five years after that, it should be the duty of every public authority to review the extent to which its various functions and responsibilities are carried out in a way which furthers non-discrimination and equality;

    (4)  Public authorities should be required to prepare an impact assessment of any significant impact that any proposed action by it may have on its ability to fulfil these human rights duties;

    (5)  Public authorities should be required to enable effective participation by all in Northern Ireland in the formulation and application of policy decisions by public authorities, and should encourage and facilitate such participation by those directly affected by these decisions;

    (6)  Public authorities should be required to ensure that such impact statements are made available to the public in good time to enable effective consultation to take place by the public authority with those directly affected by the proposed decision and the relevant statutory equality agencies;

    (7)  The impact statement and the results of any consultation on it must be taken into account by the public body in any subsequent decision whether to proceed with the proposed action, and the public body should be required to give its reasons for doing so.

  The Report concludes that in order for the PAFT system to be made effective, it should be put on a statutory basis and become:

    " . . . an anticipatory, participatory and integrative tool for identifying where proposed actions are likely to advance or retard the achievement of the greater equality of particular groups in Northern Ireland".

[1]

  Moreover, SACHR recommended that the legislation enshrining the duty "should apply equally to all potential areas of discrimination" (paragraph 5.41 SACHR). However, the White Paper states that "obligations in respect of categories where there is current legislation on discrimination may be stronger in character than for other categories" (White Paper 4.90). This is clearly at odds, not only with SACHR's recommendation, but also with the central ethos of mainstreaming equality. It reinforces and extends the hierarchy of discriminations enshrined in the four existing anti-discrimination statutes. SACHR urges that this approach, which is fundamentally unacceptable from a human rights perspective, be abandoned.

  In the absence of an acceptance of so many of the key elements recommended by SACHR, the Commission finds it very difficult to agree with the White Paper assertion that its proposal for consultation "In many ways, go beyond SACHR's recommendations" (paragraph 4.2 White Paper). The White Paper states that "The Government believes that a more radical approach than that proposed by SACHR is needed" (paragraph 4.8). SACHR does not view the White Paper proposals as "a more radical approach" than its own, but rather, as an ill-defined and inadequate proposal in response to its recommendations.

  A key issue is that of timing. SACHR considers that both the new legislation relating to any statutory equality duty and the amendments to existing legislation, as required by the White Paper, should be introduced at Westminster as soon as possible. SACHR has one caveat in this regard which relates to the establishment of the proposed Equality Commission as outlined below.

EQUALITY COMMISSION

Paragraph 4.12-4.14 White Paper

  The proposal to create a unified Equality Commission appears expedient to the need for external monitoring and policing of the new statutory duty to promote equality of opportunity. Account has not been taken of the wider considerations as to whether amalgamation is intrinsically beneficial to the promotion of equality. SACHR views with concern the fact that the current Commissions have no advance warning of Government thinking on this issue and, consequently, no opportunity to provide the benefit of their experience is shaping proposals contained in the White Paper.

  SACHR can see arguments in favour as well as against amalgamation. Arguments in favour include the strengthening of the equality agenda by being brought under one agency, economies of scale, a greater degree of liaison and stronger focus on common issues of discrimination and the strengthening of the case for harmonising rights and entitlements upwards across discrimination legislation. Conversely, arguments against include a loss of identity and priority for specific groups served by individual Commissions, the development of an agenda driven by the statutory duty at the expense of other valuable work and the substantial administrative and financial upheaval which may outweigh any long-term benefits.

  The case in favour or against an Equality Commission will also be influenced by developments following the Good Friday agreement, including the role of the new Human Rights Commission and whether a Department of Equality emerges from a new Assembly. SACHR's view is that further urgent research and urgent consultation should now be undertaken into the merits of creating an Equality Commission. Such a review and research should look beyond White Paper considerations and also take into account the impact of local political developments, the commitment to the new Human Rights Commission and the Institute for Public Policy Research's forthcoming paper on the creation of a unified Human Rights Commission in the United Kingdom.

  This is not proposed as a recipe for delay or inaction, rather as a way of ensuring that the most effective decision is taken for the right policy reasons. An early fixed time frame could be put on the research and review to ensure progress. The review could be conducted by Government by way of an urgent consultation document. This will also help address the recruitment difficulties for the separate Commissions created by the current uncertainty. In the interim, the separate and existing Commissions could be involved in closer liaison and begin to prepare, in consultation, the Code of Practice relating to the new equality duty. They could also have an investigatory role and examine ways of enhancing existing liaison and co-operation arrangements. A further advantage to this recommendation is that the interim period would give the Commission for Racial Equality, set up 21 years after the Racial Equality Commission in the rest of the United Kingdom, an opportunity to heighten awareness of race discrimination issues and forge an identity which would be less readily lost should an Equality Commission be established. Government should also examine ways of ensuring that, during this period, the need to promote disability discrimination issues as effectively as possible is addressed. This could, for example, include increasing the budget of the Disability Council to further the work it undertakes within its existing statutory remit. SACHR is therefore open to the creation of an Equality Commission, but wishes to see a fuller debate and appraisal to ensure that such a step is the best policy option for promoting and enforcing equality and human rights in Northern Ireland.

TSN

Paragraphs 4.15-4.29 White Paper

  The White Paper recommitment of Government to TSN is welcome. However certain questions arise as to the co-ordination and implementation of the TSN strategy. The White Paper suggests that the Secretary of State will take responsibility, but it would appear that this will now fall within the ambit of the Assembly. It is likely therefore that a requirement to implement TSN needs to be written into the Assembly legislation. The cross-departmental mechanism for co-ordinating and implementing TSN is through the Social Steering Group and CCRU. It is not clear what the demarcation is between the two bodies, but they will apparently have a responsibility for assisting departments in developing strategic/action plans. Much the same functions e.g., advice, training, annual report etc., were attributed to CCRU in its central supervision of PAFT but it had insufficient power to influence the Government machine. As SACHR's research showed, it did not "greatly enhance the public accountability of Government". Clearly some steps, perhaps of a legislative nature, need to be taken to underpin the political direction of TSN. In a new Assembly, this would presumably also be appropriate to the role of the Deputy First Minister.

  The financial dimension of TSN in the White Paper potentially makes the policy vulnerable. It appears to aim at lowering expectations " . . . there is a need for realism on the possibilities of future additional financial resources to the TSN initiative . . . major additions to the Northern Ireland Block, or fundamental resource shifts within the Block, are equally unlikely. Accordingly, the best opportunities for increasing funding for TSN objectives will be internal redistribution within programmes". While SACHR is realistic enough not to expect huge shifts in budgets, it does find this negative tone worrying. TSN should be a central consideration in allocating resources and in the provision of new resources and at the very least, SACHR would expect to see any resources from savings on Law and Order help meet TSN objectives.

  In brief, the refocusing of TSN is to be broadly welcomed. The key issues are the internal implementation mechanisms, and where political responsibility will be located and the strictures on finance, parity and universal services. Parity does not mean "parrotry" particularly on such central issues as Social Inclusion initiatives and TSN.

FAIR EMPLOYMENT LAW AND INSTITUTIONS

Paragraphs 5.1-5.56 White Paper

  In its introduction to Chapter 6 of its report, SACHR pointed up the desirability of harmonisation of the legislation between the various equality bodies. The Government decision (5.23) to confine religion-specific training to those who are not currently employees (unlike the race and gender legislation) will continue an anomaly between the treatment of people on the basis of gender and of religion. Again in regard to the monitoring of those working less than 16 hours a week as recommended by SACHR (6.63), the decision not to accept SACHR's further recommendation that the figures for above and below 16 hours employees should be recorded separately unnecessarily complicates and could even seriously distort the evaluation of monitoring information. SACHR is disappointed that these and most other of its recommendations on monitoring were not accepted. In SACHR's view this weakens the effectiveness of potential monitoring. It is all the more important therefore that SACHR's recommendation (6.62) that Trade Unions should have a statutory right to be consulted be accepted.

  SACHR regrets that the Government is not proposing to accept SACHR's recommended changes as regards affirmative action. The reasons advanced by Government for refusing to accept a number of SACHR'S recommendations on affirmative action are not convincing. In paragraph 5.24, the authors of the White Paper claim that such a practice would "in most instances amount to indirect discrimination in recruitment". Given that S37 of the existing fair employment legislation actually provides for just such a concept to be applied when selecting for redundancy, SACHR is of the view that such enabling powers should be widened in legislation with adequate safeguards built in.

  SACHR welcomes the fact that the provision of goods, facilities and services are being brought within the remit of fair employment legislation. But we are disappointed that the Government has not seen fit to place these adjudications in the Fair Employment Tribunal, with its specialist knowledge and training (SACHR paragraph 6.17).

  SACHR welcomes the Government's willingness to allow for compensation to be awarded for unintentional indirect discrimination. However we regret the Government's refusal to countenance a change in the legal definition of indirect discrimination, despite the fact that the law in this respect is shifting (see Marshall v Land Nordrhein-Westfalen (ECJ, 11 November 1997) and Falkirk Council and others v Whyte and others (1997, IRLR 560). It would be better to clarify the law for all than await further time consuming and costly legislation.

  SACHR particularly regrets that inadequacies in the existing definition are given as reasons for not amending the NI Constitution Act to include acts of indirect discrimination (White Paper paragraph 5.49). If a problem is indeed "uncertainties about what would constitute justification of the requirement or condition which resulted in disproportionate impact", surely the Government could include in any new draft legislation a new definition of indirect discrimination that would meet this difficulty. SACHR cannot agree with the government's conclusion that many of the objectives, including bringing indirect discrimination within the remit in the Constitution Act, will be met by their other proposals. We repeat our belief that there is no reason for prohibiting legislation or actions by public authorities that are directly discriminatory, but permitting them if they are indirectly discriminatory.

  We regret that the Government thinks there is no evidence of the need for the FEC to become involved as amicus curiae White Paper paragraphs 5.9. We repeat our recommendation, made in paragraph 6.21 of our report and express concern that the Government does not accept our findings. While the Government has not rejected SACHR's recommendations in regard to section 42 and 52 of the 1976 Act pending the outcome of cases before the European Convention of Human Rights, it is SACHR's strong view that the self-evident safeguards recommended by it should be acted upon immediately and do not require any further review.

OTHER

  There are two other important matters subject to consultation in the White Paper and SACHR would make the following points:

    (a)  Paragraph 2.22: SACHR considers that it is the Government's responsibility to set appropriate benchmark measures (after discussion with interested parties) and that responsibility should not be delegated. 2011 is much too distant a time frame for the measurement of change as this would be some 35 years after the enactment of the 1976 Fair Employment Act.

    (b)  Paragraph 5.45: SACHR's view on exemptions and exceptions to new legislation on goods, services and facilities is that, in principle, such exemptions should be drawn as narrowly as possible. In addition, a specific exemption in regard to the private letting of premises should not be included even though it is an exemption in the race relations legislation.


1   McCrudden, C (1998) at p2. Back


 
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