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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