Examination of Witnesses (Questions 300
- 313)
WEDNESDAY 3 FEBRUARY 1999
MR MICHAEL
LAVERY QC,
MR PAUL
DONAGHY and MR
DOMINIC MCGORAN
300. Can I turn to the paper which you have
drawn up on PAFT and promoting equality of opportunity, which
is a response to the White Paper, and the section dealing with
TSN, Targeting Social Need. In your paper, you indicate that some
steps, perhaps of a legislative nature, need to be taken to underpin
the political direction of TSN, and you make the point that in
a new Assembly this would, presumably, also be appropriate to
the role of Deputy First Minister. What do you see as being the
need to underpin the political direction of TSN, what gives rise
to that statement?
(Mr Donaghy) As I said earlier, Targeting Social
Need, as an initiative, has been inside the Government machine
for many years. The research that SACHR carried out showed that
it was a nice idea waiting in the wings. What clearly is needed
is that Government take the issue of Targeting Social Need and
the issue of equality seriously, it has to be at the centre of
the Government machine. It will have an impact, or should have
an impact, if it is working properly, on virtually every function
that is carried out within Government, so that when the Department
of Finance and Personnel consider the amount of money that is
going to be spent in Northern Ireland, Targeting Social Need and
equality considerations must be part of the consideration to determine
how much of that money, how much of that resource, goes to different
areas of Government. But it needs to go beyond that; each individual
Department or arm of Government has to ensure that resources are
skewed to Targeting Social Need. It certainly seemed to us that,
if it was going to be a central imperative of Government, the
best mechanism to try to ensure that that would happen would be
to have it at the heart of Government and the role of the First
Minister and the Deputy First Minister in the new Assembly.
301. Are you suggesting that TSN, as it
has been practised to date by Government, under direct rule, has
not been implemented as fully as you would like, and that, at
a political level, whilst there have been various programmes,
Making Belfast Work being one example, and the identification
of wards where TSN criteria apply, for example, in the allocation
of grants to companies who are investing in Northern Ireland,
there are higher levels of grant available for companies investing
in TSN wards than there are in other areas; or are you suggesting
that that has been inadequate and, therefore, that that needs
to be somehow enhanced? Is that what you mean by the political
direction, because we are talking here, it seems, about financial
considerations, but when you say underpinning political direction,
are you saying that, to date, whilst TSN has been there, there
has not been sufficient political motivation or drive behind it
to spread its influence throughout the structures of Government?
(Mr Donaghy) That is certainly what our research,
that was carried out as part of the Employment Equality Review,
said, that there was this policy of Targeting Social Need, but
that it needed to be given more direction and it needed to be
operationalised. The new administration have certainly relaunched
Targeting Social Need, and certainly what I see is much more of
a commitment to the whole policy of Targeting Social Need, but
I think it is important how that is operationalised, and, I think,
whether Targeting Social Need is mainstreamed or not, the jury
is still out. I think, in relation to Policy Appraisal and Fair
Treatment, which is another part of this issue, the statutory
equality duty may be a useful vehicle to ensure that equality
is mainstreamed, is at the heart not only of Government but of
all public service agencies and public service provision. Whether
that, in effect, is how the statutory equality duty is operationalised,
or not, again, I think the jury is still out.
302. Finally, Chairman, to what extent do
you view TSN as a blunt instrument, in terms of getting to those
areas where there are higher levels of unemployment, or whatever?
I think there is evidence to suggest that, on the basis of the
criteria presently used, whilst wards are identified, there are
significant pockets of social deprivation which are not caught
under the umbrella of TSN because of the kind of criteria that
are used. And would you not take the view that, as well as the
need to give this greater political momentum and direction, there
is a need also to look at the way in which the criteria are drawn
up and it is targeted so that it is actually sharper, in terms
of its focus?
(Mr Donaghy) I think it has been used as quite
a blunt instrument. I think that what TSN needs is additional
resources, it also needs a skewing of existing resources. But
it would have been tempting for the Standing Advisory Commission,
in its report, to try to suggest to Government, in a detailed
way, how that would be done. But Government, quite rightly, I
think, said that the only way that this can be done is if the
people who operate the public services, who are making decisions
that affect communities, daily, that they have to ensure that
TSN and equality are central considerations. Because I could not
say, nor could SACHR, I suspect, what is the best way to skew
resources, in the water service, road service, planning service,
Department of Agriculture, Department of Health and Social Services,
all of those areas of Government expenditure and Government service,
and I do not think that we could be expected to say how it could
be done. But I think what we can do is say to Government that
it is important, that these are major policy issues and it is
important that they are given a high priority and they are operationalised
in such a way that TSN and equality are mainstreamed and are central.
And that is why we also said, in our report, that consultation
with interested parties, in relation to impact and decisions,
must be a part of that process, and that is why we said that the
process itself has to be transparent, so that players can make
an impact on this and see whether Government are using TSN as
a blunt instrument, in your words, or a more finely-tuned instrument.
Chairman: I wholly
understand why Mr Donaldson used Making Belfast Work as an illustration,
in the question he asked, but I think, probably, for the record,
we ought to set out that Making Belfast Work anticipated Targeting
Social Need rather than followed it.
Mr Donaldson: Yes,
of course.
Mr McWalter
303. Good afternoon, gentlemen. Sorry I
had to pop out briefly, about an hour ago, for a few minutes.
I hope I did not miss anything that is now going to come back.
In reading your stuff, I am struck by how lively it all is, really,
and I am rather disappointed, in a way, you are being wound up,
but I have got some flavour from what you have said that you feel
that the function you have performed will be performed in the
new system; is that the general feeling?
(Mr Lavery) Yes, I think that is right. There
will be, of course, two bodies, there will be the Human Rights
Commission and there will be the Equality Commission, and the
Equality Commission will certainly be very important in promoting,
as I say, the concept of equality as we have endeavoured to expound
it, right across the board.
304. You are, obviously, critical of the
Government, particularly about this sort of lack of an internal
mechanism, and you say, in your paper, that 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. Given that, is it not the case that perhaps some of
the things that SACHR has been inclined to do, actually, in the
end, will not be done? You are effectively saying that the Government
has failed to avail itself of a mechanism which would have ensured
that equality considerations were systemic and that, in fact,
as a result, perhaps, equality considerations will be episodic?
(Mr Lavery) There are, of course, two aspects
to it. There is the internal mechanism and there is the external
policing, and both of them are important, but we are certainly
glad to see that there will be, at the very least, an external
policing mechanism, which did not exist before. And one would
hope that the Government will, in fact, even in the absence of
statutory provision, set up some sort of mechanism, or perhaps
the Assembly will, to ensure that there is proper monitoring and
proper appraisal, in fact, at an early stage, at a stage before
decisions are taken, which was one of the main weaknesses of the
old PAFT.
(Mr Donaghy) Can I say something on the need for
both internal and external policing. I was a civil servant for
21 years and——
305. Of all the crimes to admit to.
(Mr Donaghy) I enjoyed my time in the Civil Service
as well, and being actively involved in the trade union movement
in the Civil Service did give me some release. I am very conscious
of this argument about internal policing and external policing,
because one of the key things that really changed, in my view,
fair employment in Northern Ireland was whenever the Fair Employment
Agency of the day decided to investigate the practices of the
Northern Ireland Civil Service, and I think that was a sea change.
And, I think, if fair employment had been left to internal mechanisms
solely, I doubt if the Civil Service would have done as much as
they did do, as a result of the investigation of the Fair Employment
Agency. And I think that was quite a significant change in the
lead-up to the Fell Committee report in the late eighties and
also the SACHR report, which led to the changes in the 1989 Fair
Employment Act. So I think it is important to have external policing.
I think it is also important to have internal policing, because
any commission or agency cannot, and should not be expected to,
police every minutia of an employer's policies or Government policies,
and that is why the Section 31 system, in terms of fair employment,
has been a useful tool, because what it is saying is "The
ownership of fair employment is not with the Fair Employment Commission,
it is with you, as employers, and your workforce, and you need
to do something about it." I think there is always a problem,
in any bureaucracy, that there are a number of these considerations,
these priorities, and people then tend to prioritise the priorities,
and what we must ensure and what our report was addressing was
to ensure that equality and Targeting Social Need are a priority
amongst the priorities. And you say, is Government going to deliver;
well, I hope so, and they have made some serious moves in that
direction. But, I have to say, there have also been some worrying
emanations from Government. The unemployment differential; they
have said that 2011, 35 years after the enactment of the first
Fair Employment Act, is going to be when there is a judgement
made on that, so I have a difficulty in that. The last thing I
wanted to say was that we certainly made it clear that it was
important that the SACHR report, or the Fair Employment Act, or
the recent legislation, is not the end of the process, it is an
evolving process, and we have a commitment that there will be
a further review carried out in 2003, and I think that will be
important too, again, be another marker, another opportunity to
look at this whole issue and see if we are continuing to make
progress and whether that progress can be accelerated.
306. Are you a bit worried, really, it sounds
like you are, that the mechanisms that Governments use—today
we have had somebody, you might say, sacked for his religious
beliefs, and it is interesting, if we took equality not in, say,
the standard terms in which we take it in Northern Ireland but,
say, you should not discriminate against people who believe in
astrology, large numbers of people do, I think? I think the England
football manager could easily have been sacked for, say, taking
astrology very seriously and saying, when he was asked why he
selected a certain player, "Well, you know, he was an Aquarius",
and people say, "Well, this is daft, it is crazy, it is irrational";
it would not have been offensive but it would have rattled people's
confidence. To what extent do you think that politicians can protect
people who may have rather aberrant beliefs but who somehow manage
to carry out their job without bringing those beliefs too much
to the fore in the conduct of their normal business? And, in particular,
do you actually think that, for instance, the fact that the Northern
Ireland Agreement now puts much of the responsibility for these
things in the Deputy First Minister's office, where the winds
of political change are likely to howl rather strongly, that does
not seem to me as sensible as putting it, say, in the Department
of Equality, in which you have got perhaps some more systemic
approach to protecting people's rights in these sorts of areas?
So, really, I am asking, I think, whether, in general, you think
that the right place for this is in, as it were, the offices of
those who may well blow hot and cold, because public opinion can
suddenly get outraged about something, rather than having a more
settled kind of view about how these things are done?
(Mr Lavery) I suppose the hallmark of a liberal
and tolerant society is that they can tolerate and protect eccentrics
and people who have got curious beliefs, some of which, indeed,
might even be repugnant to other people. But somebody has got
to be responsible for equality, and somebody has got to set the
standards for our society and to ensure that our society is and
becomes a fair and equal society, and the people that we have
entrusted with this role are, of course, the politicians. But
the politicians will be guided, and those who administer equality
will be guided, by the principles, which while they may not be
perfectly laid out certainly would give clear guidance as to what
to be done in a given situation and provide protection in cases
where it is appropriate to do that. And we also, I think, can
derive some comfort that, for the first time, there will be something
approaching a written constitution, which politicians will not
be able to override just depending on the particular whims or
the particular cry in the market-place at any given time. No system
will be perfect, but we think that it is appropriate that the
Assembly should, of course, have control over matters like this,
which make up the day-to-day existence, the day-to-day lives of
people, and that the statutory framework that is in place, backed
up by the Convention on Human Rights, should assist them, or enable
them to reach the goal that everybody is aiming for, a fair and
equal society where bitterness and rancour have been removed;
it may be a utopia, but it is something, I am sure, that everybody
would strive for.
307. I suppose, as an elected politician,
I am rather gratified you believe that elected politicians are
so principled. You were critical of the Northern Ireland Bill's
provisions on the statutory duty to promote equality of opportunity;
do you feel that the Act has actually gone significantly beyond
the Bill, I think I got the feeling you probably did but I would
just like that for the record, really?
(Mr Lavery) Yes, certainly changes were made in
the Bill, as it went through Parliament, and some matters—I
think we have already expressed our views and our reservations
on the equality provisions, and I am not sure that we have a great
deal to add. As I say, we welcome the fact that equality is now
on a statutory basis, we welcome the fact that there are bodies
that are set up which will have the duty of promoting and ensuring
that these provisions are complied with. There are the points
that we mentioned earlier on, and particularly the question of
internal mechanisms, and so on; but we are by no means despondent.
Mr Hesford
308. Dealing with the future, gentlemen,
which is not directly your responsibility, as you lay down your
tools, can I ask, first of all, just briefly, what opportunity
have you had to liaise with Professor Brice Dickson, in the sort
of handover?
(Mr Lavery) Professor Dickson has only just been
appointed, and we have had, I may say, a very cordial exchange
of correspondence, and, of course, our services, as individuals,
would no longer, as it is collectively, be at his disposal. But
there are not any formal—you see, the Government took the
view that there should not be what I may call a transitional period,
when the two bodies were in existence at the same time, so that
there might have been a gradual transfer of responsibilities,
or perhaps some sort of learning process for the new body. So
when the new body becomes operational we will cease to operate,
completely, and so there is no overlapping; that may or may not
be unfortunate, but it means that there is really no formal mechanism
for the new body to draw upon the expertise and experience of
the old body, but I am sure that it will be done in an informal
way, and they will, of course, have available to the papers, research
papers, and reports in the fields that we have worked.
309. It is clearly a potential problem,
is it going to be any sort of a problem in reality that there
was not such a structure?
(Mr Lavery) I would hope not. Professor Dickson
has got enormous experience in this field; he, in fact, has contributed,
as I am sure most of you know, he has made very many significant
contributions, not only in the area of human rights generally,
but specifically, in assisting and carrying out work on behalf
of SACHR. I have no doubt that he has got a complete feel for
the whole, and I think it would be presumptuous on my part to
think that any of us could really teach him anything. So I am
quite confident that he certainly has got the equipment, by experience
and every other way, to ensure that the new body will be effective.
310. Thinking about the principal functions
of the new Northern Ireland Human Rights Commission regarding
fair employment issues in the future, do you have any comment
on the, say, adequacy of those functions?
(Mr Lavery) It is possible that there may be,
to some extent, an overlap, because equality and employment and
discrimination are, of course, human rights issues, and they will
have their own Commission dealing with those, and it remains to
be seen what form of liaison or what form of co-operation there
will be between the two bodies. There is, of course, still, a
considerable residue, indeed, more than a residue, in the area
of human rights, which will, I am sure, provide work for the new
Commission and provide opportunities for the new Commission to
improve the system of human rights. And, of course, as I have
noted before, one of the important functions that they are specifically
empowered to do is in the field of education and awareness of
human rights; that is a vastly important area, in our view, at
any rate.
(Mr Donaghy) Certainly, the role and remit of
the Human Rights Commission is different from the role and remit
of SACHR. SACHR had a very specific role in relation to fair employment
and equality between the two main traditions in Northern Ireland,
and that is not a major part of the remit of the new Human Rights
Commission. I think the other thing that will obviously impact
on that is the new Equality Commission and how the collapsing
of the existing equality commissions actually is operationalised.
And I suspect there will need to be some memorandum of understanding
between the new Equality Commission and the new Human Rights Commission.
(Mr McGoran) On a point of information, Chairman,
again, as a civil servant attached to the Commission, as Secretary,
I would be there for some little time, or a short time anyway,
to see Professor Dickson on the premises, and I will be able to
brief him, if he so wishes, on the ongoing issues, the outstanding
issues, for example policing, that are ongoing, that are likely
to come up during the year. So, although, as the Chairman said,
he is very au fait with the situation, he will not be left
completely stark naked for the first couple of days, we will be
there and will be able to hand him over what we call, unfortunately,
a "baton", you see, of ongoing business, purely administratively
of course.
Mr Hesford: Mr Donaghy
has answered my next question, to some extent, and I am pleased
because I was a little chary about asking the next question, but
I will go ahead.
Chairman: Unusual
for you, Mr Hesford.
Mr Hesford
311. I did say "a little". The
Human Rights Commission and the Equality Commission, which Mr
Donaghy has introduced, will both oversee the development of governmental
policy. You have already indicated that there will be an overlap
in that, and that there might be a memorandum of understanding
about how this might co-operate. Because there will be such an
overlap, how, if it all, will it be problematical, what are the
areas of tension?
(Mr Donaghy) I think that equality is a central
human rights issue, and I think it will be difficult for the new
Human Rights Commission to carry out its role without making comment
on the Targeting Social Need initiative. Certainly, the question
of the statutory equality duty rests with the new Equality Commission,
but they have an overlap with the whole concept of human rights,
and how far there is a conflict, if any, I think will be determined
largely by the make-up of the new Equality Commission and the
new Human Rights Commission and any memorandum of understanding
that will be drawn up between those two bodies. Certainly, the
Human Rights Commission will have plenty of work to be going on
with, the whole idea of a Bill of Rights, which I think is very
important, and I think SACHR was certainly one of the first to
call for a Bill of Rights for Northern Ireland, I think that will
take up a major chunk of the new Human Rights Commission's role
and remit, as well as the educational function, as well as a number
of the other duties that were set for the Human Rights Commission.
So I hope it is not problematic, and I am confident that there
will be sufficient commonsense on both Commissions to try to make
sure it is not a problem.
312. When you said "make-up",
it may depend on the make-up, if I may ask you, what did you mean
by that?
(Mr Donaghy) I mean the make-up in the sense of
new Commissioners in the Human Rights Commission and new Commissioners
in the Equality Commission, and also the staffing of the new Human
Rights Commission and the Equality Commission.
Chairman
313. When Mr McWalter asked you his first
question, I was temporarily deluded into thinking his question
about you being wound up was a mechanical one rather than a constitutional
one, and I thought it was actually an unreasonable comment on
the manner in which you have been treated by fellow members of
the Committee; but I am glad to say I was obviously wrong in my
interpretation, and, speaking for myself, I think the quality
of the session has been enhanced both by the tone of voice in
which the questions have been asked, from our side, and the opportunity
that that has given you to give the answers that you have. I said
at the beginning that we were very appreciative that you should
come to see us so near to the winding-up of the Commission, but
I hope that it has given you some small satisfaction to be able
to put on record the achievements of the Commission over recent
years, and, in particular, in the context of the inquiry in which
we are ourselves engaged. So, on behalf of the whole Committee,
we always aim, if we can, to finish by 6 o'clock, we are conscious
it is a long session, for the witnesses, anyway, but we have managed
to achieve that, we are very appreciative indeed, not only of
your coming but of the way in which you have provided us with
answers.
(Mr Lavery) Thank you very much indeed, Mr Chairman.
May I express our appreciation of your courtesy and obvious deep
interest in these topics, and our pleasure and satisfaction that,
indeed, we were given, even at this stage in the life of the Commission,
an opportunity to express these views. And we hope, possibly,
in some small way, to have assisted the Committee.
Chairman: Thank you.
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