Examination of Witnesses (Questions 280
- 299)
WEDNESDAY 3 FEBRUARY 1999
MR MICHAEL
LAVERY QC,
MR PAUL
DONAGHY and MR
DOMINIC MCGORAN
280. Do you accept that, in providing equal
opportunity to compete, you cannot guarantee equal outcome, if,
in fact, employers have a right to appoint on merit?
(Mr Lavery) Absolutely. One can never guarantee
any outcome, and the whole process of fairness of selection, and
so on, is that you should not guarantee an outcome. And that is
why we have resisted, and, indeed, why nobody seriously argues
for quotas or for positive discrimination, but, in the nature
of things, and assuming that one has a reasonably homogeneous
population, some of whom are good, some of whom are bad, some
of whom are able, some of whom are not so able, that if you apply
principles of equality, eventually, the mix will come right. If
you remove from it the artificial factors, or the improper factors,
like discrimination, which would distort the process of selection,
then—but I think you have a very fair point, and I think
it is also right to say we have to face the facts, too, that one
would hope that a burgeoning economy will remove a lot of our
problems by creating jobs; but the attainment of equality and
the elimination of these differentials will be difficult in a
society where the economy is declining.
Mr Barnes
281. It is very interesting to hear discussion
about equality, as I am a Labour Party member and we do not always
get that much opportunity nowadays in order to discuss it, so
I will pursue an item about that. In general, what progress has
been made since the 1989 legislation in meeting the equality goals
that you think are appropriate?
(Mr Donaghy) I think, as I said previously, the
1989 Fair Employment Act has largely worked for those who are
in employment; we need to accelerate that change, for those who
do not have access to employment; I think more needs to be done
there. And I think that was the thrust of the Employment Equality
review report of the Standing Advisory Commission; what we said
was that what now needed to be done was that Government, as a
major player, had to tackle the root causes of inequality. We
said that Government has to tackle the issue of unemployment,
and particularly long-term unemployment, and long-term unemployment
in East Belfast, or in Rathcoole, every bit as much as unemployment
in West Belfast, because even though we talk about 60 per cent
of those who are unemployed being Catholic, that masks the fact
that there are areas of high levels of unemployment, particularly
long-term unemployment, in the Protestant communities as well.
So that is why we said unemployment has to be tackled, that Targeting
Social Need, as it is now called, must be a central feature of
Government policy; Policy Appraisal and Fair Treatment which,
in the White Paper, has become a statutory equality duty, that
those are central considerations to bring about equality in a
fair and more just society. I think that there certainly has been
change, but I think there is still a long way to go.
282. Presumably, therefore, the major continuing
problem that you see is this long-term unemployment and a means
of trying to tackle that. You have mentioned Targeting Social
Need, and in the Standing Advisory Commission's report on Employment
Equality: Building for the Future, it deals with more than just
the immediate employment issues, it deals with numbers of the
human rights issues that were being raised earlier, especially
in areas such as education and training. So do you feel that there
are matters that can be tackled in these areas that have a spill-over
in terms of tackling this long-term unemployment problem?
(Mr Donaghy) I think they are central, and I think
that what the 1989 Fair Employment Act was primarily about was
hiring and firing, it was about selection of those into the world
of work. I think, what SACHR said, and many other players interested
in human rights and equality issues also said, was that we now
need to tackle what is now known as social exclusion, we need
to tackle social need, and we made a number of very specific recommendations
to Government on these issues. Targeting Social Need had been
a policy of the previous Government and had been in existence
for quite some considerable time, but the research that SACHR
carried out showed clearly that the policy of Targeting Social
Need was not being operationalised within the Civil Service machine,
and I think it said something about it was a nice idea, in the
margins, and what SACHR recommended was that Targeting Social
Need needed to be brought from the margins and into the centre,
it needed to be mainstreamed, as a major priority of Government.
Not only that but the Policy Appraisal and Fair Treatment guidelines
in very much the same thrust, that equality must be a central
consideration of all Government expenditure and all Government
policy, that if you are going to tackle those root causes of inequality
that is what is needed, it needs to be mainstreamed and it needs
to be given the commitment within Government to create the change
that is needed.
283. In a commitment to human rights issues,
engaged in by Government, has attention also got to be paid to
human rights problems that exist elsewhere in Northern Ireland
that come from paramilitary activity? Because we have just been
discussing, in Prime Minister's Question Time, the issue of intimidation,
and would it be relevant for a body such as yours, or successor
bodies, to be paying attention to those issues as a means of establishing
people's human rights, as distinct from any shortcomings that
might be seen, as far as the State is concerned?
(Mr Lavery) One of the criticisms that has been
levelled, from time to time, is that when SACHR, or bodies like
that, appear to be exerting themselves on behalf of somebody who
in the eyes of the general public is not a very worthy person,
they say "What about the victims, what about their human
rights?". And SACHR, of course, like every group of decent
people, has recognised the appalling infringements of human rights
that are carried out, daily by terrorists, and that are still,
regrettably, going on. But there is a difference. In a sense,
there is no issue about those human rights, everybody knows that
they are wrong, everybody condemns them, and nobody attempts to
defend them. On the other hand, when one finds an organisation,
or a body, or a Government, which is responsible for the protection
of human rights being in violation, or possibly in violation,
then that is a completely different matter, and, however nasty
and evil the other thing is, the infringements by authorities
and by Governments and by States is far more sinister and likely
to cause far more damage in the end. So, to come to your question,
what would our role be, then, with regard to the role of a human
rights body, with regard to punishment beatings, we can condemn
them, as we do, we can exhort those who are responsible for them
not to do it, but we are such a body which has no influence or
control over those people. The only influence or control that
we could exercise would be upon the Government. Now it may be
that there is a situation where the Government, by neglecting
these issues, by permitting flagrant breaches of human rights
to go on, by failing to take proper steps to prevent them, that
may very well be an area that a human rights body should look
at and should consider. But it would be in the context, and I
think we have to remember that our primary role must be in attempting
to influence those who rule us, those who govern us, those who
affect our lives, and it would be in that area then that there
might be a role for human rights activity; but, directly, by involvement
with the people who are doing that, the role must be limited.
There may well be, of course, an educational role that a human
rights body could carry out, a method of persuading the people
who might be prepared to tolerate those infringements, people
who are otherwise, ordinary, decent people, but who want to turn
a blind eye to things like punishment beatings, there may be a
role that a human rights body would have in persuading those people
that, while that might appear superficially to give them some
short relief, it is totally wrong and that, in the end, that is
going to be totally destructive of the State and of the quality
of their lives.
284. Some of these areas of interest might
be drawn together, with the development of the Assembly and the
Executive, depending who is involved in it?
(Mr Lavery) Yes, I am sure.
285. But I will move on to a more specific
question about unemployment. Can you tell us what the controversy
over unemployment differentials between Catholics and Protestants
involves? I know there are all sorts of different presentations,
different views, that are there, but there are, at both ends of
the spectrum, some sort of clear arguments and distinctions as
to what is occurring and what the rights and wrongs are of everything
that is taking place?
(Mr Lavery) Yes, there has been a considerable
amount of debate, and I am sure you will have seen some of the
observations by Mr Nesbitt, who wrote a note on this subject.
And, certainly, there is a school of thought which says that the
present differential has nothing to do with discrimination and
is related to social and structural factors. On the other hand,
there are people who say, well, if there was discrimination, and
they say that there was discrimination, it just does not disappear
overnight and that it must have played some role in arriving at
this situation, and that may, indeed, be playing a current role.
But the attitude that we took was this. As you will see in our
report, we addressed briefly, or we recited briefly, the various
contentions, but we took the view that the problem was there,
there was long-term unemployment, of a chronic nature, there was
a serious social problem, now, whatever the origins of it, that
it should be addressed and it should be addressed by social and
economic measures, as well as by continuing and strengthening
the anti-discrimination legislation.
Mr McCabe
286. I would like to turn to a couple of
specific points about the Fair Employment Order, and SACHR made
some fairly clear comments and recommendations about affirmative
action, and I wondered if I could simply ask you how far you consider
the new Fair Employment Order goes, in terms of implementing your
recommendations on affirmative action?
(Mr Lavery) I think one would have to accept that
it has made a significant difference. It has not come into operation
yet, but ever since the 1989 Order, there was a considerable amount
of debate and controversy as to what exactly an employer could
do by way of affirmative action. If, on the one hand, it was too
anodyne then it would have no impact on the problem; if, on the
other hand, it focused too keenly or too closely on the issues,
then the danger is of falling foul of the prohibition on, particularly,
indirect discrimination, which was introduced in the 1989 Order.
And an area, a grey area, at least, and one which I think SACHR
are very pleased to see addressed in the Order, was with regard
to the question of the unemployed, and we are pleased to see that
affirmative action directly addressed to redressing the problem
of the long-term unemployed shall not be unlawful, whether it
was unlawful or not before the Order might have been a matter
of debate, but, certainly, that puts the matter beyond doubt.
We also welcome the provisions in relation to training, in relation
to specific training, which, again, under the 1989 Order might
have fallen foul, because the fact of the matter is that these
differentials are there; if they are to be tackled in any meaningful
way, they can only be tackled by means of measures which the new
legislation clearly regards as appropriate and proper. That is
not to say that the fundamental principle of non-discrimination
and the rejection of positive discrimination is not maintained,
but I think affirmative action has become crisper and clearer,
or will be, as a result of this legislation.
287. Specifically in relation to the unemployed
and training, you are happy and you think the definition has become
crisper?
(Mr Lavery) Yes. They seem to have followed, I
think, fairly closely, in those regards, at any rate, the recommendations
that we made.
(Mr Donaghy) I think it will also be important
to reserve judgement on the detail of this until we see how the
Fair Employment Commission actually uses the new law. We have
certainly made a number of criticisms, particularly around long-term
unemployment, particularly around training, and those have been
taken on board. I think it also depends how you define affirmative
action; it certainly seems to me that affirmative action is the
action that is necessary to redress imbalance and bring about
equality within the workforce, short of reverse discrimination,
or quotas, and I think that the powers that the Fair Employment
Commission will have in the new Act need to be tested.
288. Are there aspects of your recommendations
that have not been taken up that you remain concerned about?
(Mr Lavery) Yes. One of the matters, of course,
was contract compliance; we felt that that, for some reason or
another, was resisted strongly, we felt that that should have
been included in the new legislation. With regard to the commitment
to equality, and this, of course, is more the Northern Ireland
Act than anything, we are pleased to see that PAFT, if you like,
has become statutory, but, we are wondering, will that make a
difference, in the absence of some fairly specific mechanism within
the Government to implement it. You see, one could see an official,
or a Minister, going into his, or her, room on a Monday morning,
five years ago, would say "Well, I'm obliged by PAFT, I take
PAFT down and I look at it", and, as we know, very little
happened. And does it make any difference by giving the policy
a statutory force, and it will only make a difference if one sets
up some mechanism externally and internally to ensure that, instead
of paying lip-service to, perhaps I should not say lip-service,
but instead of looking at the policy in question, and the Minister,
or civil servant, satisfying himself, or herself, that this was
done, there would be some mechanism to monitor this and some system
to ensure that, at the right stage, there would be proper input.
So, while we accept, in principle, at least, we are happy that
it is now put on a statutory basis, we would like to see how,
in practice, it will be policed and made effective.
(Mr Donaghy) Certainly, we take the view that
fair employment and equality is a threat to no-one. It seems to
us that if equality is mainstreamed, is at the heart of the Government
machine, well, that may well mean front-loading resources, there
may well be resources that are required to do that, but much better
to front-load resources rather than to have to pick up the pieces
of inequality and division, and that is certainly what Northern
Ireland has had to do over the past 30 years. I think that the
question around whether Government takes seriously Targeting Social
Need and the statutory equality duty, I think the jury is still
out on that, I think it is going to be very dependent upon how
particularly the statutory duty is operationalised within the
Government machine, and that is something that is still unclear.
In relation to other areas of concern that we raised, that Government
have not taken on board, I think there are the concerns around
PAFT and TSN; there was also some concern about education and
training. We said that, again, we needed to front-load resources,
there have been a few decisions that have given us some cause
for concern, education resources must be skewed to those areas
of need. And there is also the Section 42 certificates, which
is still unsatisfactory.
289. Thank you. While we are on this area,
Chairman, it occurs to me that another issue is probably contact
compliance, and the Government takes the view that that would
be a breach of European Community law. I just wondered whether
or not you agreed with that?
(Mr Lavery) That is a very complex question indeed,
and one that one would have to look at in some more detail. Generally,
in European law, there are, of course, the fundamental principles,
but also there are, on many occasions, exceptions that are available
to Member States in given circumstances, for example, of movement
of goods, and the exceptions that a Member State is entitled to
make to those on grounds of health. I would not begin to express
an opinion without a great deal more study.
290. You cannot be tempted then?
(Mr Lavery) And even in the absence of a fee.
Whether it is in conflict with European law or not.
(Mr Donaghy) Certainly, I am not an expert in
European law, but it would seem strange to me, if European law
said that Government had no control in saying that if taxpayers'
money is being used to prop up employers who are flagrantly discriminating
against any section of the community, it would seem strange to
me if European law debarred Government from tackling that and
remedying it.
291. Thank you. I think maybe I had better
leave that there, Chairman. If I can turn to one other aspect
of the Order: the Order, obviously, attempts to address the question
of discrimination complaints in the area of goods and facilities
and services, and I wondered how appropriate you thought the mechanisms
adopted in the Order are for adjudicating on discrimination complaints
in these areas?
(Mr Lavery) That is Article 11. Certainly, as
a Commission, we have not had an opportunity to consider the Order,
and I can say, for my own part, I have looked at it, looked at
it in some detail, but we have not had an opportunity yet to study
it in detail, and, for my own part, I just have not addressed
that question that you are asking. I do not know if Paul has any
views on it or not.
(Mr Donaghy) I think, two comments on that. One
is that, and I probably should have made it earlier, we did say,
in our review, that there should be a statutory right of consultation
on Section 31 reviews for trades unions, and that is one that
Government has resisted, and it comes out in that consultation
period that led to the Order, so maybe we want to put the record
straight on that. In terms of goods, facilities and services,
there is a concern around the selling of land and that being an
exemption; what we said was any exemptions should be minimal,
and that was certainly one of the concerns we had.
292. Can I ask a specific point on that.
I take your comment that you have not considered this in great
detail at the moment, but, I wondered, do you think it would have
been preferable to allocate cases, where there are complaints
in that area, to a specialist discrimination tribunal, rather
than to the, I believe it is the county court, certainly the normal
court system?
(Mr Lavery) No; the Fair Employment Tribunal has
got a great deal of experience in dealing with discrimination
and with discrimination complaints. The ordinary industrial tribunal,
under the present law, deals with complaints in the area of sex
discrimination, and so on. But I think that these tribunals would
have sufficient expertise. May I ask if that was the point that
you were making?
293. The point I was actually trying to
ascertain was that, as I understand it, the way it will work at
the moment is that where there is a complaint of that order it
will actually be referred to the courts, rather than to a specialist
tribunal, and I was really wondering whether you thought it would
make more sense to refer it to a specialist tribunal?
(Mr Lavery) I am afraid I had not picked up that
point, in fact, that there were special provisions for referring
these matters to the courts. The county court, of course, under
the old legislation, was the body from which appeals went from
the actions, or from the findings of the Fair Employment Agency.
I think that the courts, particularly against the background of
incorporation of the Convention on Human Rights, will be properly
equipped to deal with matters like that. I see the force in your
point about having a specialist tribunal, but I think that the
specialisation, I think the advantage of the industrial tribunals
is that they have representatives from employers and employees.
This may not be, it obviously is not, directly an employment issue,
so there may not be a need for this type of specialist tribunal.
(Mr McGoran) Mr Chairman, may I address, on a
point of information. I have to say that, as Secretary to the
Body, this piece of legislation came in just around Christmas,
you will recall, SACHR was supposed to be closing down, so it
has not been subjected to the usual scrutiny that would have happened.
We are still here, as it happens, but we were not intended to
be here at this time, so, hence, it has not gone out to the members.
Chairman
294. We have considerable sympathy with
you. Under the Government's original plans, and this is not intended
in any way as a provocative remark, the Order was going to have
been taken in before we had the opportunity of examining the Minister;
the Government very kindly shifted it so that they took the Order
after we had examined the Minister. But we totally understand
your position and, indeed, have some sympathy with it.
(Mr Lavery) Thank you very much, Mr Chairman.
Mr Donaldson
295. Gentlemen, you had recommended that
there should be a reform of the legal definition of indirect discrimination.
What are the problems that you see in terms of the existing definition
of indirect discrimination, and would it not be possible for these
problems to be resolved in litigation rather than needing a new
definition in legislation?
(Mr Lavery) The problems with the definition of
indirect discrimination are that they might have prevented or
prohibited actions which I think most people would agree were
appropriate, and one of these would have been targeting the unemployed.
Now the concept of indirect discrimination means that you can
discriminate without intending to, and if certain objective facts
exist you may find yourself in the position of having committed
discrimination because of the varying impact that the measures
that you are taking may have on one group or another. And it was
concern of that nature that led SACHR to recommend the changes
that it did recommend, in fact, and it was to enable affirmative
action to go beyond the stage of, if one likes, pious aspiration
and actually to do something in practical terms and to enable
employers and the Fair Employment Commission to do something in
practical terms, without the fear of being challenged in the courts
on the question. If I turn to the report, Section 6.52 recommends
that the statutory definition of indirect discrimination should
be amended so that practices and policies which have an adverse
impact on one community do not constitute discrimination. And
then our research has shown us, too, that discrimination, sex
discrimination, decisions from the European Court have led to
a broader interpretation of the equivalent position. We wanted
to bring ourselves into line, that indirect discrimination should
not be used in such a way as to inhibit what most people would
regard as sensible and appropriate action.
(Mr Donaghy) Certainly, if appointment on merit
means anything, surely it means that an employer should be able
to show that any decision they make is consistent with business
necessity, it should not be for reasons that have no relevance
to the job. And, in that context, it seemed to us that the concept
of indirect discrimination needed to be widened to ensure that
that did not happen. You raised the point, will that not be sorted
out in litigation. I suspect that that is exactly how it will
be defined now, as a result of the Government's action, I think
litigation will determine the definition of indirect discrimination.
296. You mentioned earlier the Section 42
certificates as being one of the outstanding issues that the Government
had failed to pick up on. How far do the new provisions regarding
ministerial national security certificates implement your recommendations,
and what concerns do you have, if any, about the new procedures?
(Mr Lavery) It certainly is an improvement, but
I think the concerns that we have are, firstly, there is the possibility
that a person involved may not have any effective way of challenging
the material, or the information, upon which a certificate is
to be based. One of the provisions in the new legislation provides
for a barrister to be appointed by the Attorney General to represent
that person's interests, but he shall not be—I have forgotten
what the exact wording is—responsible to that client. Now
whether barristers will take instructions on such a basis, because
the relationship between a lawyer and his client is that, although
his primary duty is to the administration of justice, he also
has a particular, special duty to the individual, so we are concerned
that individuals who are affected by these certificates may not
be happy at the end of the day that they have been fully and independently
and properly represented by the tribunal. Having said that, of
course, we realise the sensitivities, and did, I think, in our
report, realise the sensitivities of these situations and the
paramount importance of national security, but we are just concerned
that it may be used as too ready an excuse to justify something
that cannot be justified. And we feel that these provisions, while
enabling some sort of independent scrutiny, do not go far enough,
certainly with regard to winning the confidence of the person
who is affected by them that he has been properly dealt with.
297. Do you consider that the provisions
regarding the ministerial national security certificates conform
with the European Convention on Human Rights?
(Mr Lavery) Again, that is an interesting question,
and one that I would not like to venture an opinion on; it remains
to be seen. I think there must be some reservations about it,
as far as the Convention on Human Rights is concerned, because
of the obligation of fairness of process, and so on, but I would
not like to say, categorically, at this stage, that such a provision
would be struck down. But one must have doubts about it.
298. If I might ask you to wear your other
hat, for a moment, as a learned and respected QC, has the Northern
Ireland Bar Council considered this issue and its relationship
to professional ethics?
(Mr Lavery) Yes. I know that they have expressed
concern, when we are talking about the appointment of the barrister,
that certainly has been considered by them. I cannot tell you—I
am no longer involved with the Bar Council, directly—at
the moment whether they have reached any conclusion on it or not.
I do know, on an anecdotal basis, that a number of members of
the Bar have expressed concern and have indicated that they would
not be prepared to accept instructions on that basis. But, I am
sorry, I cannot tell you whether—the Bar Council certainly
has not issued any edict, I assume I would have heard of that,
or any prohibition upon members taking this, nor am I sure that
it would be right for them to do that.
299. In terms of the European Convention,
as you will be aware, one of the aspects arising out of the Belfast
Agreement, and, indeed, the policy of the present Government,
is the incorporation of the European Convention into domestic
law. And, therefore, from your knowledge of this situation, is
it likely that this is an issue that the new Human Rights Commission
are likely to address, in terms of the greater relevance of the
European Convention to this whole issue of the certificates?
(Mr Lavery) Yes. I am sure that this is something
that they will address, indeed. It was regarded, as you will have
seen from our report, as being of considerable importance by the
Commission, and I have no doubt that the new Commission will look
at the new provisions and assess that against the Human Rights
Convention, and reach a much more informed view than I am able
to give you at the moment on these matters.
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