Examination of Witnesses (Questions 266
- 279)
WEDNESDAY 3 FEBRUARY 1999
MR MICHAEL
LAVERY QC,
MR PAUL
DONAGHY and MR
DOMINIC MCGORAN
Chairman
266. A very warm welcome to you. We do not,
I fear, have one of these nameplates for your further colleague,
so you will need to introduce him to us. I will say one or two
preliminary things, besides welcoming you. I do not know whether
you want to say anything to us before we start. We are, of course,
extremely grateful to you for coming, because of your highly central
part in recent developments; and we are particularly appreciative
of your coming at a moment when the demise of the Commission is
imminent. We will endeavour to follow a logical order of questions,
in terms of what we ask you, but that may mean that questions
will come from unexpected quarters of the horseshoe, as we go
round. If, subsequent to having given us an answer, you want to
gloss something you said, including in writing afterwards, please
do not hesitate to do so, and we will take the liberty of following
up with perhaps some supplementary questions, if it occurs to
us that there is something which we failed to cover. I do not
know whether you would like to say anything, before we start;
it would be helpful to know the identity of your colleague?
(Mr Lavery) Yes. My name, for the record, is Michael
Lavery. I am Chairman of the Standing Advisory Commission on Human
Rights, part-time Chairman. And this is Paul Donaghy, he is also
a member of the Standing Advisory Commission on Human Rights,
and he is an Education Officer with UNISON; and I was hoping that,
in the course of answering your questions, I might be at liberty
to refer to him.
267. Please do not hesitate to do so.
(Mr Lavery) And on my right is Dominic McGoran.
He is Secretary to the Standing Advisory Commission on Human Rights.
He and I came to the Commission around the same time, in October
1995. Perhaps I could just say a very brief word about the Commission,
which I am sure the members are familiar with. We were set up
in 1973 to advise the Secretary of State. Our remit was a fairly
narrow one, we were confined by the statute to matters relating
to discrimination, but, in practice, over the years, our activities
ranged over a wide number of aspects involving human rights, with
the tacit, at least tacit, consent and acquiescence of successive
Governments. And, as you know, we are about to be replaced by
a new body.
268. Thank you very much indeed, and you
have helpfully saved me asking the first question I was going
to ask, myself. However, it would be helpful, in the light of
the more recent contribution you have made and of your presence
here today, if you could say a bit about when you first became
involved with fair employment, and, in particular, in the period
leading up to the 1989 Act?
(Mr Lavery) I think it is fair to say that the
1989 Act was based, largely but not exclusively, on a report that
the Standing Advisory Commission did in those times, and the members,
or some of you, at least, I am sure, will be familiar with the
background to that and with the recommendations they made at that
time, a significant number of which were, of course, accepted
and enacted. There was an undertaking given at that time that
the legislation would be reviewed within five years, I think it
was, and the initial review was proposed to be carried out by
the CCRU, but the Standing Advisory Commission—this was
before I came into it—felt it appropriate that they should
carry out the review, and, as I am sure you know, we did conduct
an extensive review into the workings of the Act, and our report
has been considered by the Government. And, of course, in that
review, we carried out a lot of research, not only into the legal
position but also into—we tried to ascertain—what
the public attitudes were to discrimination legislation. And I
also think it is perhaps fair to say that our report ranged fairly
widely over a number of social issues and economic issues, but
we took the view that the effect, of the impacts of discrimination,
or lack of it, on unemployment, could not be isolated from a number
of other social and economic factors, and what we endeavoured
to present was a package which would address discrimination in
the social and economic context of Northern Ireland.
269. Disarmingly, the answer you have just
given has taken me into questions I was going to be asking immediately
thereafter, and, indeed, with considerable prescience, has taken
both of us into questions I was going to ask beyond that. But
can I just dwell, for a moment, on the earlier part of your answer,
where you described how, originally, the five-year review was
to be undertaken by the CCRU, and I cannot remember the precise
words you used but you implied that it had been suggested by yourselves
that you should take over the review. Could you say a bit about
that particular process?
(Mr Lavery) I am slightly hazy about that, because
I arrived, I became Chairman, when the review had already been
handed over to SACHR, but I understand that Mr Hill, my predecessor,
pressed very strongly for that; whether there was any great resistance
or not I am not sure. I do not know if you know.
(Mr Donaghy) I think what happened was that there
was a commitment in the discussions around the 1989 Act that there
would be a review; it was vague as to who was going to carry out
that review. It was initially started by the CCRU, and I think
there was some concern by a number of groups in Northern Ireland
that if this review was going to be fully independent, it was
strange that an arm of Government was going to carry the review
out. And I suspect it seemed quite sensible and reasonable that
the Standing Advisory Commission be asked to carry out the review,
bearing in mind particularly the work that SACHR had been involved
in, in the lead-up to the changes that were brought about by the
1989 Act.
270. That is very helpful. If we could just
get one or two, what I would call, `housekeeping' details about
the review which you yourselves conducted, and Mr Donaghy may
want to reply, if you could remind us how long it took, what research
was specifically and particularly done into the working of the
legislation, how much it cost, and a general flavour of how you
conducted it?
(Mr Lavery) We set up an organisation, really,
within an organisation, and there were two Vice-Chairpersons at
that time, one was Mrs Harbison and the other was Professor Mclaughlin,
and they were responsible, basically, for organising and carrying
out the review. They had separate premises, when I say "they",
we did, we engaged research staff, which changed, and there were
logistical problems that we had during the review and they changed
in the course of that, but we published, I am not sure if the
Committee has the three books, which they may find useful, we
did publish three books indicating the research that we had done
into the various aspects, into consultation, into attitudes, and
into the legal background. And we held meetings throughout Northern
Ireland and we held seminars, and we commissioned papers from
various experts in this field, and we invited and received a wide
number of submissions from a wide variety of bodies, the Confederation
of British Industry, the Institute of Directors, the Fair Employment
Commission itself, the list is very extensive and I am sure will
be familiar to most of the members of the Committee.
(Mr Donaghy) I think what was interesting about
the process of the research and consultation was it was deliberately
designed to be a very open process and to engage with, in all
walks of life in Northern Ireland and beyond, those who had an
interest in the whole issue of fair employment and equality. And
I think the three research books that have been published are
testimony to the length of time that SACHR took over the review,
but also the wide-ranging representations, both from employers'
and workers' interests. And I think one of the interesting things
that came about, as a result of that, was an engagement with all
communities, and communities from disadvantaged areas. And I think
one of the successes, certainly, of the 1989 Act, and the research
shows this, is that there was a reluctance, particularly in the
Unionist community, to accept that fair employment and equality
were for everyone, and certainly there was resistance after the
1976 Act to the Fair Employment Agency, but the research that
was carried out, as part of SACHR's review, showed clearly that
employers had accepted the need for fair employment and equality.
And I think it was part of the process of a wider acceptance that
if equality means anything, it does mean equality for all, and
ending discrimination, whether you are discriminated against because
you are a Catholic or a Protestant.
271. And the approximate cost?
(Mr Donaghy) I do not have a figure on the cost.
(Mr McGoran) Chairman, I would say it cost about
£700,000 and took two and a half to three years, depending
on where you start. I think it was about £700,000, that includes
the books.
Chairman: That is
fine. I just wanted an approximate figure. Mr Salter has to leave
us earlier than the conclusion of the proceedings, and has a question
which could either come right at the end or could come very logically
at this moment. Mr Salter.
Mr Salter
272. Good afternoon, gentlemen. Very shortly,
you are about to be dissolved and your work subsumed into the
work of the Northern Ireland Human Rights Commission. Looking
back over the life of SACHR, what would you say had been its successes,
its failures, what remains to be done, and to what extent have
successive Governments been prepared to heed SACHR's advice?
(Mr Lavery) I think we could point, with a certain
amount of justification, to the work that we have done on employment
issues and to the very significant effect that we believe that
that has had upon the legislation. We are gratified to note, recently,
that a considerable number of our recommendations has been accepted
by the Government, so we like to feel that we have had a considerable
amount of influence in this very important area in Northern Ireland.
As I indicated at the start, our activities ranged across, considerably
beyond our statutory remit, and we got ourselves involved in almost
every human rights issue. Our experiences were that, as far as
security matters are concerned, we made very little impact upon
successive Governments, and I have to say that we had a not dissimilar
experience after the unfortunate Omagh bombing, in that our advice
on the new legislation was not accepted by this Government; so,
in that area, we were listened to very politely, we felt, however,
that we did not have a great deal of impact in changing, either,
the course of the Government's attitude. Having said that, of
course, the position is not all bleak, we did make representations
in respect of various matters, and in respect of various matters
in relation to security; eventually, some of these have been accepted,
a large number of them have been accepted, in fact. And the other
area, I think, in which we would like to claim some success, is
in the area of raising the awareness of human rights. I am sure
most of you will appreciate that human rights is not necessarily
a very popular subject I am not sure that one could describe it
as a vote-winner, and attitudes to human rights organisations
sometimes vary. Some people think that they are just meddling
fools who really do not know what they are talking about, and
others think that they are worse than that, they are more sinister,
that they are either subversive or, unconsciously or otherwise,
they lend comfort to subversives. We like to think that, in that
area, we have succeeded in persuading a lot more people that human
rights are very important and that they are for the benefit of
anyone and they are not just to defend enemies of the State and
to intervene between enemies of the State and the State.
(Mr Donaghy) I think it is also fair to say that
the statutory remit of the Standing Advisory Committee, and it
has been difficult, we have no powers of enforcement, our power
is a power of persuasion. I think it is also the case that, as
an appointed body of Government, we are also at least semi-part
of the Government machine, we are inside the tent, if you like,
rather than outside the tent. And I think one of the interesting
questions for the new Human Rights Commission is just going to
be how that different position impacts upon their work. But, I
think, even within the Government machine, we have been a voice
of challenge, I think, certainly, equality and the fair employment
issue has been a major issue for SACHR, and I think SACHR can
take some comfort from the work that it has done there. I think,
also, the work that SACHR has been involved in around Policy Appraisal
and Fair Treatment, Targeting Social Need, social inclusion, not
only as SACHR but alongside other players, that has been important
and has been influential, in many respects.
273. Two points, following up from that.
How confident are you that the new Northern Ireland Human Rights
Commission will pursue this agenda with the same sort of vigour,
what judgement do you give, or balance of probability, for success?
(Mr Lavery) If I can descend to perhaps a personal
level, I think that we are very fortunate in the appointment of
the first Chief Commissioner, Brice Dickson, who, I have no doubt,
will pursue these matters with great enthusiasm and with great
skill. Probably, you will be aware that we had considerable discussions
about the form of this new Commission and that a number of things
in the Government's response concerned us. Perhaps if I mention
one of them. One was that we were disappointed that the new Commission
was not going to be given powers to compel the production of documents
or the examination of witnesses; these were powers that the other
agencies had. They have not, in fact, been used with great frequency
by any of these agencies, but we felt that the existence of these
powers would give an important weapon to the new Human Rights
Commission in carrying out any investigation that it considered
appropriate. We are gratified to see that it has got the power
to assist people in bringing cases and can itself, in circumstances,
bring cases. We are also concerned about the funding for the new
Commission, and that remains a matter to be seen; it is still
not completely clear how it is going to be organised or what staff
it will have, or whether, presumably, there will not be a Chief
Executive, since the new Commissioner is full-time. And one of
the important things, of course, is that its remit is much wider
than ours ever was, and it will be, we hope, very active in the
field of education and in the field of vigilance, which is important,
in being on the look-out for human rights infringements and in
pursuing them, and with a full-time Chairman and a Commission,
properly equipped and funded, we would hope that it will be, indeed,
effective. But we note, also, of course, that the new Human Rights
Commission will also report to Westminster, and, of course, there
will be an important function for the Assembly to play, certainly
in the questions of equality, which is an Assembly function. But
the Human Rights Commission will have a complete range of freedom
of action over the entire area of human rights.
274. One very specific question. How far
do you consider that the new Fair Employment Order implements
your recommendations on monitoring?
(Mr Lavery) Perhaps if I could ask Paul to deal
with that.
(Mr Donaghy) I think we have had a number of criticisms
over the Government's response to the report in general. I think,
in relation to monitoring, there certainly was a suggestion that
those working under, I think it was, 18 hours per week would also
be monitored. And one of the criticisms that we made was that
what that could do was to skew the employers' returns, that what
you could find is, you have a lot of part-time workers from the
under-represented group and that masks a problem in the workforce
as a whole. I am glad to say the Government accepted our criticism
of that point and have now agreed to ask employers to monitor
part-time employees separately from people who work over 18 hours.
I think, certainly in terms of monitoring, the 1989 Act and the
statutory duty to monitor really created a fundamental shift in
attitudes and taking the whole issue of fair employment seriously.
And I think one of the decisions that the Fair Employment Commission
made early on, and one that is to be welcomed, was that the monitoring
reports would be made public, and I think that, certainly, I was
on the Fair Employment Commission at that time, and there was
a lot of discussion about whether that information should be made
public or not. I think they were right to make it public and I
think the issue of fair employment is an issue that needs to be
in the ownership not of the Fair Employment Commission solely,
or SACHR, or any other body, but needs to be in the ownership
of the public as a whole. So I do not think that monitoring would
be one of our major criticisms of the changes that have been made.
Chairman: I will say,
before I turn to Mr Beggs, in the light of the earlier answers
you gave to Mr Salter, that I did have occasion, periodically,
to have what I will not describe as confrontations but I had lengthy
sessions with SACHR, and, speaking personally, I found them both
challenging and, periodically, uncomfortable occasions.
Mr Beggs
275. Good afternoon, gentlemen. Would you
like to tell the Committee, how is the membership of the Commission
determined, and who has responsibility for it?
(Mr Lavery) Do you mean the existing Commission?
276. Yes?
(Mr Lavery) We were appointed—initially,
when I was appointed, there was no Nolan process. There was no
process of interview. I was invited to become Chairman by someone
on behalf of the Secretary of State, and I agreed. My name, as
I understand it, then, had subsequently to be approved by the
Prime Minister, and that is how I came to be appointed. I think
the members at that particular time were probably appointed in
much the same way, but recently Nolan came into operation, with
regard to quite a large number of the members who were on the
Commission when I joined it, their terms of office were up. One
way and another, their warrants were up, or they had ceased to
occupy the positions that gave them a seat on the Commission.
And there was an open advertisement for applications for SACHR.
Interviews were conducted, in which I, certainly, had no involvement,
and then, as a result of those interviews, a number of new members
were appointed. And that was on 1 January 1998, so the new Commission
lasted really only a year and a bit. So that was the process.
Of course, I should add, just for the sake of completeness, that
there were two ex officio members of the Standing Advisory
Commission, that was the Ombudsman and the Chairman of the Fair
Employment Commission. The Chairperson of the Equal Opportunities
Commission also, although not statutorily ex officio, I
think, ever since the Commission came into existence, the Chairperson
of that was appointed to SACHR.
277. But, Chairman, do you regard the Commission
as broadly representative of the different communities in Northern
Ireland?
(Mr Lavery) That is a complex question, because
one can divide and sub-divide the communities in Northern Ireland
almost whichever way you want. There are Catholics who are not
Nationalists, there are Nationalists, I suppose, who are not Catholics,
there are Protestants who are not Unionists, there are various
degrees of Nationalism, there are various degrees of Unionism,
and I think it would be right to say that one would not find,
on the Standing Advisory Commission on Human Rights, the complete
spectrum of opinion in Northern Ireland, but I hesitate and I
certainly shall refrain from saying what that spectrum is, lest
I be accused of being in some way partisan. Each of us, as far
as I am concerned, each member, my experience was that members
of the Commission did their best to do what they thought was the
right thing, and I would be a fool if I did not recognise that
there were some reservations in the community about the composition
of SACHR and whether it did, in fact, fairly represent the entire
community. All I can say is that, from my experience, there were
certainly people of different religions. I can say that I do not
know in detail the politics of all of the members; at one stage,
there were active members of political parties, and, obviously,
one knew what their politics were. But my experience was, as so
often happens in Northern Ireland, when you get a group of people
of different religions, different interests, together, that they
worked together, and I think worked well, in the interests of
the community as a whole, but I accept that there were reservations,
certainly, in some sections of the community, about the composition
and the actions of SACHR.
(Mr Donaghy) Certainly, I welcome the fact that
it is clearly established that the new Human Rights Commission
will be broadly representative of the whole community, and I think
that is right and proper. I have been on SACHR for three years,
having been nominated by the Congress of Trades Unions a number
of years previously, and I would have to say that my experience
is that the people who have served on SACHR have been motivated
by the interest in human rights and trying to ensure that inequality
and inequity are tackled, no matter what community they felt that
they were representative of, or others felt they may be representative
of.
278. Thank you. How far do you consider
there is a problem of continuing discrimination in employment
on the grounds of religious belief or political opinion in Northern
Ireland?
(Mr Lavery) Our view, as we expressed in the report,
was that there is no evidence of continuing discrimination at
the point of recruitment, but there are still cases which come
before the Fair Employment Tribunal, from both Protestants and
Catholics, and it would be optimistic, unrealistic, to say that,
suddenly, overnight, in a community as divided as ours, fairness
was the keynote every time somebody employed somebody else. But
what I think we can say is that the legislation has been effective
in dealing with what I may call, if it ever existed, and I know
there is controversy, blatant or overt discrimination, and I think
the statistics would also show that, certainly as far as job recruitment
is concerned, it is not on the scale that it was claimed to be
many years ago.
(Mr Donaghy) Certainly, I think the research that
was carried out for SACHR during the Employment Equality review
showed clearly that, for those who were in the world of work,
significant change had taken place, and that what SACHR recommended
was that that change needed to be accelerated. There are, of course,
cases of discrimination going on, on the basis of people's religious
belief or political opinion, in Northern Ireland, and that that
is shown by the judgements of the Fair Employment Tribunal, which
find discrimination against Catholics and Protestants.
279. Both your report and the Government's
White Paper talk about "equality" and "equality
of opportunity", as well as discrimination. What is the difference,
and what implications should this have for Government policy,
in your view?
(Mr Lavery) You see, and I am giving, to a certain
extent, a personal assessment, some time ago everybody thought
that the problem was discrimination, that once you eliminated
discrimination then all would be well. But what we have tried
to propound in our report, and this is why I say we may have taken
a fairly generous view of it, is that there is a concept of equality,
whether it is sex, race, religion, or anything else, which should
prevail. If the society is to be at peace with itself and if people
are to be comfortable with the society, there should be this concept
of fairness and equality, and that you do not necessarily arrive
at that simply by abandoning or abolishing or getting rid of discrimination,
there are social and economic factors which contribute greatly
to inequality; and it is argued that these must be tackled as
well. So one just cannot state absence of discrimination with
equality that is not our view, and I do not think that is the
view of any significant band of opinion, nowadays.
(Mr Donaghy) Certainly, discrimination primarily
occurs at the point of selection, and, I think, as the Chairman
has already said, the evidence would suggest that change has taken
place, significantly, at that point. But I think equality is something
different, I think equality is saying that, if you have a catchment
area, a pool, of likely candidates for a particular post, and
they are made up of so many Catholics and Protestants, with similar
experiences, expertise, educational qualifications, one would
expect that, by and large, that is what you would find in the
area of employment, and I think the research of SACHR and the
Fair Employment Commission shows that that is not always the case.
I think it has improved and, as I said, the secret is to accelerate
that change. But, clearly, in the area of those who are not in
employment, or who do not access job opportunities, those who
are unemployed, 60 per cent of unemployed people are Catholic,
and I do not think that we can say that equality is being provided
when 60 per cent of the unemployed are Catholic, and 40 per cent
of the economically active population, or 42 per cent of the economically
active population, are Catholic.
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