Select Committee on Northern Ireland Affairs Minutes of Evidence

Memorandum from the Committee on the Administration of Justice

  Further to our brief phone call this morning, I would like to confirm that the Committee on the Administration of Justice (CAJ) would be interested in due course in making a fomal submission to the NI Affairs Committee in connection with its work around fair employment.

  CAJ is known to the Committee because of its previous submissions in the context of policing, but we have a broad human rights remit, and have also worked extensively around issues of discrimination (of all kinds). Earlier this year we were awarded the Council of Europe's prestigious Human Rights Prize in recognition of our work on human rights and the peace process in Northern Ireland.

  CAJ was actively involved in every stage of the recent review carried out by SACHR into employment equality, and I enclose a selection of the materials we issued over the period of the review[1]. Also enclosed is a list of basic documentation that we feel the Committee should have available to it. Of more immediate interest perhaps is a summarised note on the key issues that we believe need to be raised immediately with the Government in the debate around the Fair Employment and Treatment (NI) Order 1998.

  In the hope that the attatched material is of use to the Committee in its work.


  A fuller note on CAJ's concerns in relation to fair employment—drawing on material submitted in response to the White Paper and to SACHR's review—is in preparation. The following comments draw attention to four of the key aspects of the fair employment debate that are particularly relevant for the immediate discussions the Committee can be expected to hold with Government in the context of the Fair Employment and Treatment (NI) Order 1998.


  As early as 1987, the Standing Advisory Commission on Human Rights (SACHR) recommended that "Government should now establish the goal which they would wish to see achieved in five years. . . . An interim target to aim for would be the reduction in differential between the Catholic unemployment rate and the male Protestant unemployment rate from two and a half times to one and a half times within five years. The Commission knows of no evidence which demonstrates that this is an impossible goal to achieve".

  Ten years later, in 1997, SACHR again noted "Targets, already required of employers, should be equally appropriate to government policy. The Commission recommends that the Government should publicly adopt realistic targets for the reduction of long term unemployment and unemployment differentials in respect of both males and females."

  Despite these repeated recommendations, no reference is made in the Fair Employment and Treatment (NI) Order 1998 to the Government setting such timetables or goals for the reduction of differentials.

  The Committee may want to discuss with the Government why it appears unwilling to set realistic goals and timetables for change, despite consistent advice to the contrary.


  Another measure which has frequently been urged on Government to ensure greater equality in the workplace is that of affirmative action. As early as 1973, the van Straubenzee report argued against quotas and benign discrimination, but argued for programmes which would consciously and systematically rectify inequalities. The 1987 SACHR report reiterated similar issues when it argued that "significant progress can be made towards equality of opportunity if affirmative action by employers and others is vigorously implemented". SACHR in 1997 reiterated a number of detailed recommendations, but these were not accepted by Government. SACHR in commenting on the White Paper (which provided the basis for the current Order) said that "the reasons advanced by the Government for refusing to accept a number of SACHR's recommendations on affirmative action are not convincing."

  The Committee may want to explore with Government why it was not thought necessary to define, still less broaden, the definition of affirmative action in the legislation currently being laid before Parliament.


  A third initiative, which has proved its effectiveness in other arenas and in other jurisdictions, is the option of using contract compliance in order to encourage good employment practices. In 1987, SACHR concluded that "previous attempts to promote equality of opportunity through the award of contracts and grants have proved ineffective. What has been lacking to date is an adequate mechanism to ensure that those who have received contracts have actually fulfilled their commitment to refrain from discrimination and to provide equality of opportunity." In 1997, SACHR were again urging the Government to develop a series of initiatives which would ensure "that public contracts are awarded to companies which have proper anti-discrimination policies, practices and procedures and which promote and secure for their employees a working environment free from harassment". The Government has steadfastly refused to consider thisoption seriously and has—mistakenly—suggested that European directives limit their freedom of action in this matter.

  The Committee may want to discuss with Government why it refuses to countenance the use of contract compliance as a positive incentive to employers in their attempts to improve fair participation in the workforce.


  As a result of the critical findings of the European Court of Human Rights in the Tinnelly and McElduff cases (in July of this year), the Government was obliged to listen to its many critics who had argued that the procedures governing national security exemptions were fundamentally unfair. The Government has, however, decided to take the most minimalist stance possible in order to try and comply with the European Court of Human Rights' decision. The Northern Ireland Act provides (for the first time) an appeal mechanism for those made the subject of a national security certificate. However, the mechanism has serious deficiencies. The special tribunal established to hear the case may sit in secret and exclude the victim and the victim will have no right to have his or her own lawyer represent them. Instead the Government (which is, after all, the defendant) may itself appoint a lawyer for those who complain and any such government-appointed lawyers will have no responsibilities to their "clients".

  The Committee may want to discuss with Government how these provisions meet standards of natural justice.



  In response to Government's request for comments on its White Paper "Partnership for Equality", a total of 123 submissions were received. The range of respondents—CBI, ICTU, District Councils, statutory bodies, and an extremely wide range of community and voluntary groups—testifies to the importance people place in the debate around equality. Having had a chance to study all these submissions, and recognising the importance of feed-back to people who have given time and energy to this process, CAJ thought it would be useful to prepare some initial analysis of the responses. It is of course, in a short note, impossible to do justice to the complexity of 123 very different submissions on the broad issue of equality, but the following will at least give people a flavour of the main points of agreement and disagreement[2].

  What is immediately apparent is that the Government has no mandate as a result of this consultative process for the approach they have adopted so far in putting the equality aspects of the Agreement into law. Rather than endorsing the Government proposals to create a single Equality Commission, the vast majority of respondents urged caution, raised queries, or made important amendments to the model on offer. Yet despite this fact, and the fact that the Agreement explicitly renders the creation of such a Commission "subject to public consultation", the Northern Ireland Bill currently going through Parliament includes the creation of an Equality Commission on the lines proposed in the White Paper. Moreover, despite explicit reference in the Agreement to policy appraisal, impact assessment and public consultation, these terms are not fully reflected in the Bill. It is difficult to avoid the conclusion that this Commission was a fait accompli, and the public consultative process was little more than an unfortunate delay which had to be endured. Those interested in the progress of the Northern Ireland Bill through the House of Lords in coming weeks may find some of the following material of use in lobbying efforts.

  However, the following analysis goes much further than the single issue of the Equality Commission and concerns around the new statutory duty to promote equality of opportunity. This White Paper arose from an initiative to review the operation of the fair employment legislation and institutions. However important the broad equality agenda, it is also vital that the Government not overlook the specific initiatives which SACHR proposed to ensure that the fair employment legislation of 1976 and 1989 be given more effect with a series of measures such as affirmative action, contract compliance, judicial oversight of section 42 (national security exemptions), goals and timetables. Again, people interested in pursuing these issues will find a wealth of useful material in the individual submissions[3].


  Roughly categorised, the 123 responses came from eight District Councils; nine trade unions or professional bodies; 27 statutory bodies; and 56 (ie nearly 50 per cent of the responses) were from the community and voluntary sector. A more miscellaneous category comprised submissions from seven individuals, six research bodies, three political parties, one church group, and six submissions were from outside NI. While some responses were individual, others spoke on behalf of a large number of affiliate groups, and one organisation (the Womens Forum NI) represents as many as 100,000 women across Northern Ireland.

  A number of the submissions (particularly from the community and voluntary sector) raised concerns about the nature of the consultative process. Several referred to the prohibitive cost of the document, or emphasised the need to prepare such materials in different formats to facilitate the visually impaired, or called for a more transparent process and/or a longer consultative period. A number argued that, in many senses, the consultative process had been superseded by the Agreement.


  Most submissions welcomed the Government's stated intention of examining the broad equality agenda (ie ranging beyond SACHR's fair employment brief). At the same time, most criticised the fact that the White Paper in reality only examined employment, unemployment, training, education, etc in terms of the religious and political divide. Not surprisingly, this point was made most strongly by those groups working on issues around gender, race, sexual orientation, disability, etc. MENCAP said that "some of the proposals, in failing to take account of the different and specific needs, circumstances and experiences of people with a learning disability, and their families, will copper-fasten their exclusion".

  Several submissions cited specific kinds of measures which should be addressed by government in any broad equality agenda, and yet which were absent from the White Paper. For example, policy-makers looking for an agenda of issues relevant to children and equality would do well to study the Youth Council (YCNI) submission; for gender, see Womens Support Network, Falls Community Council, and others; for sexual orientation, see Queer Space Collective; for culture, see West Belfast Festival; for ex-prisoners, see NIACRO; for disability, see Disability Action; for Travellers, see the Belfast Travellers' Education and Devleopment Group (BTEDG) and others; and so on.

  Apart from exploring a number of equality issues which were often entirely missing from the White Paper, several submissions also asked why recommendations about monitoring, setting goals and timetables etc were not to be applied to gender, disability, race, etc as well as to the political/religious dimension of Northern Irish society.

  While not necessarily disagreeing with the need to address a broad equality agenda, a number of submissions also expressed serious concern that the White Paper had failed to address sufficiently trenchantly the legacy of discrimination faced by the nationalist/Catholic community.

  An interesting comment about the concepts of equality and equity (which seem to be used interchangeably in some Government documents) was made in one submission (Falls Community Council): "the suggestion that equity and fairness should be guiding principles of any equality apparatus is a recipe for sustaining inequality . . . . Those who have been disadvantaged must be deliberately and successfully uplifted, which means in practice, resources and activities have to be skewed towards those who experience the greatest inequality. Once the outcome of equality has been achieved then, and only then, should the equity approach be considered".


  The Government decision to place equality of opportunity on a statutory basis was endorsed almost unanimously[4]. At the same time, there was extensive disagreement about whether the Government proposals would achieve their objective. The reasons for this can be largely separated into two categories.

  On the one hand, a large number of submissions were concerned about the ability of the model to deliver equality of opportunity. Many of the 80 or so organisations which expressed reservations about the creation of a special Equality Commission along the lines proposed (see on for more specific discussion of this issue), did so because they feared this mechanism would not be effective in ensuring equality of opportunity. Contributors had concerns about, for example the need for internal as well as external mechanisms for control; the need for active involvement in the decision-making process by those most affected; the need for effective enforcement mechanisms and public accountability; and the need for measures to prevent discrimination and differential treatment rather than merely remedial action afterwards. To cite the Womens Resource & Development Agency with regard to this latter point: " . . . retrospective action tends towards an oppositional culture in which those who have invested time and energy in developing proposals quite naturally feel the need to defend them against criticism."

  From a very different perspective, a number of submissions (largely from the agencies expected to comply with this new duty) raised concerns about the administrative burden that might be created by putting equality of opportunity on a statutory basis. The Housing Executive, for example, wanted any statutory scheme to "be framed so as to ensure that the Executive can be implement it without disproportionate adverse effects upon the Executive's ability to discharge its housing functions on an economical and efficient basis". LEDU thought that detailed appraisals "which may have to include an element of consultation . . .will considerably increase the burden on Public Bodies" and queried whether giving the role of equality scheme validation to a statutory body might not "give executive powers of veto to a body not directly involved in the day-to-day business of the organisation". Some submissions (for example the South Eastern Education and Library Board—SEELB) argued for additional resources to assist public bodies develop the necessary databases and effective staff training programmes. Ironically, these reactions give further confirmation to the SACHR finding that equality is not currently a central consideration of public bodies and will have to be placed in a statutory framework if the necessary energies are to be put to it.


  There was much more uncertainty about the suggestion to impose responsibilities on employers for promoting good relations. Some submissions wondered why such good relations should only be promoted between different racial groups and people of different religious or political beliefs, and wanted to extend this to gender and other social groups. A few of the statutory groups seemed concerned about how this requirement would work in practice. For example, the Causeway HSS Trust said "the Trust would not accept that employers should have a responsibility to promote good relations other than with their own staff", a view also shared by the Equal Opportunities Network. The Equality Forum raised concerns about the strain on employers this might create. The Future Ways Project at UU dealt with the issue at some length and focused on the need to ensure that "the equality legislation should not stand in the way of attempts to encourage tolerance and develop cultures where diversity and difference (are) valued". The Irish Government challenged such concerns when it argued that: "The concept of promoting good community relations should not be used as a defensive mechanism to prevent effective action on equality matters. In fact, there is no contradiction between equality and good community relations since the perception that members of one community were discriminated against in the past was a force in promoting instability and communal conflict".


  The approach taken to Targeting Social Need was welcomed almost unanimously by those who commented upon this section of the White Paper.

  Several submissions did, however, refer to the problems which might be created if the focus was too narrowly either on the employment sphere, or geographic parameters, given that this would not reach many excluded and disadvantaged groups in society.

  Several submissions criticised the fact that additional resources were not to be put into this work, though one submission seemed to challenge the very basis of TSN by arguing that "the concept of skewing resources should only become operative when there is an adequate spread overall of resources" (Transferors Representatives Council). An argument was also made by several commentators for clear targets and timetables to facilitate greater accountability than had been possible previously.


  Most submissions endorsed the approach to social inclusion outlined in the White Paper but several asked for more detail. Save the Children Fund and others wanted to be reassured that the PSI initiative would have sufficient authority to implement real and meaningful changes. A few submissions commented critically on the failure of Government policy to date to commit core funding to marginalised groups such as ethnic minority groups.


  Recruitment from the long-term unemployed: The SEELB seemed to be the only organisation that expressed clear opposition to this proposal, suggesting it would be a violation of the merit principle. A few submissions from employer-linked groups did however express the fear that the measure might be considered discriminatory and therefore actionable under existing legislation, and wanted clarification from Government on the legal ramifications. A few submissions expressed concern about the impact of this measure on women and the somewhat cavalier reference to the differential gender impact in the White Paper (para 2.12). The great majority of those who commented, however, on the recommendation welcomed the move.

  Goals and timetables: Several submissions which commented critically on the Government's unwillingness to accept responsibility for setting goals and timetables, and other commented negatively on the (limited) goals and timetables which were proposed. Several submissions indicated their willingness to collaborate in the process of setting appropriate benchmarks.

  Affirmative Action: Of those submissions which referred to affirmative action, most expressed unhappiness at the failure of Government to pursue SACHR's proposals to extend affirmative action. The Equality Forum (NI) were however not alone in being happy with the "limited changes" of the White Paper.

  Public Procurement/Contract Compliance: A number of submissions challenged the assumption in the White Paper that European law, or other public procurement restrictions, prevented Government accepting SACHR's recommendations about contract compliance. The Post Office, the University of Ulster, and some others, welcomed the decision not to extend contract compliance, though detailed reasons for this stance were not given. However, NICVA and the great majority of people commenting on this issue were unhappy at the failure of Government to exploit this opportunity to redress inequalities, and urged the Government to re-think its position.


  Section 42/National Security Exemptions: A number of submissions (mainly from the community and voluntary sector) criticised the reluctance of government to take any action on this issue pending court cases in Europe. However, since issuing the White Paper, the European Court of Human Rights has found against the Government, so one assumes that the legislation will have to be amended at least along the lines recommended by SACHR, and hopefully the exemption will be lifted altogether.

  Goods and Services: Most submissions which referred to the extension of fair employment legislation to goods and services welcomed the initiative. The SEELB however queried the FEC's expertise to advise in this much broader sphere; the Foyle Health and Social Services Trust noted that there might be implications for Trusts if members of the public requested a service in the Irish language; and the CBI wondered if there needed to be some flexibility built in to reflect the potential security problems of including political opinion within the definition of discrimination. While the CCMS emphasised the importance of retaining the exemption from the FEA applying to schools, the NAS/UWT urged the Government to reconsider the fair employment exemption for teachers.

  Merit Principle: While Ballymena Borough Council argued that merit must always be the dominant principle in employment practices", the legal firm of Jones and Cassidy, Solicitors, referred to the difficulty of relying on the principle whilst it remained undefined.

  Monitoring: The majority of submissions commenting on the monitoring of staff appeared to endorse, or at least accept, Government proposals regarding extensions to monitoring, though several queried the wisdom of the decision to conflate figures for full and part time employees which would make it difficult to assess trends.

  Section 31: Opinions about Government proposals regarding section 31 reviews varied quite extensively. Some felt that the Government had failed to exploit an important resource, others approved of the recommendations.

  Fair Employment Tribunal: Again, opinions varied quite a bit and there was no obvious consensus about the futue of the Tribunal. The proposal for an Employment Appeals Tribunal was again canvassed by the CBI and was raised by several submissions. Interestingly, several submissions commented critically on the Government's decision not to create a database or library of FET decisions, since several large employers thought that such a resource might help encourage good practice.


  A very high level of interest was displayed in the responses about this proposal, with nearly 99 out of a total of 123 submissions commenting positively or negatively on the proposed model. Since Government itself suggests that the establishment of a new Commission to replace the current statutory bodies is an important and fundamental change, it is appropriate to look at the responses to this issue in some detail. Moreover, the Good Friday Agreement noted that an Equality Commission would be established "subject to public consultation", so the feedback on this specific topic is clearly very significant, and a more detailed note is attached in appendix.[5]

  The Northern Ireland Bill recently introduced in Parliament establishes such a Commission (to replace the current equality statutory agencies) despite the fact that a very large proportion of the responses criticised the Government proposals, or asked for much more clarification. Of the 123 submissions, one can note that:

    —  Only 18 (approximately 15 per cent of the total) could be said to be unambiguously positive about the government proposals for an Equality Commission;

    —  81 (or 82 per cent of those commenting on the Commission) raised a variety of issues/concerns requiring Government response. Clearly, the spectrum of response was broad, so that while some reactions were positive in theory but raised important reservations, others were highly critical of the model proposed and argued cogently against such a move in the near future;

    —  24 of the submissions did not comment at all, whether positively or negatively, on the principle of creating a single Equality Commission.

  Looking at the responses by sector, we can note that while District Councils split fairly evenly (four concurring, two raising issues for discussion and two not commenting specifically on the principle of a single Commission), statutory groups were more critical (five, 15 and six respectively), and the most consistent sector was the community and voluntary sector. In this latter group, 41 criticised the model, only three concurred with it (and some 14 groups made no comment).

  Leaving aside the debate about a statutory duty to promote equality of opportunity (discussed previously), people expressing concern about the model proposed by government (both within the statutory and voluntary sectors) feared that a single commission would create a hierachy of discrimination. Many specifically indicated their concern that fair employment might get disproportionate attention, though one or two submissions also noted the risk of "watering down" of all the discrimination agendas (including fair employment). Many wrote of the risk of losing expertise accumulated over many years in the field of fair employment and gender discrimination, and the risk that relatively new initiatives in the field of race and disability rights would be seriously undermined. Several expressed reservations about the ability of one agency to both validate schemes and pursue complaints. Most of the same submissions commented critically on the absence of consultation with the constituencies concerned, and felt it quite inappropriate for the Government to propose broad measures to promote equality for women, ethnic minorities, people with disabilities and others, soley on the basis of a study on religious and political discrimination in the area of employment/unemployment.

  A large number of submissions—particularly from the statutory sector and from the business world—considered the extent to which the new Equality Commission could provide a "one-stop shop". Several of those submissions which unambiguously supported the Government proposals clearly did so on the basis that they would result in such an arrangement. Homefirst Community Trust is fairly typical: "We would welcome the concept of a new statutory authority. Such a body should provide employers with clear and unambiguous guidance on equality issues". However, the Confederation of British Industry, sharing the commitment to the "one-stop shop" model, confirmed that they had reservations about the model on offer: "CBI-NI is on record as supporting an integrated guidance service on equality . . . Consolidation and clarification of all the relevant legislation should be the long-term goal. Without this, there could be some difficulties in relation to a single Commission. " The Employers Forum on Disability is even more direct, and expresses its concern that: "whilst there continue to be four different pieces of legislation, such a commission will not be workable". Yet, the model being advanced explicity affirms that separate legislation will be retained, thereby apparently undermining the possibilty of a "one-stop shop" in any real sense.



  Several submissions emphasised that the key to addressing problems of employment and unemployment lay in policies to create jobs. Fermanagh District Council referred to the "current inequity in terms of job location" and others welcomed the IDB review, with one submission emphasising the need to "gender proof" the review.


  A number of submissions made extensive comments on the education chapter of the White Paper, particularly as it affects future training and employment possibilities, the social exclusion of people with disabilities and ethnic minorities, and the needs of women. This preliminary analysis has not been able to explore all of this material, but the responses provide a wealth of useful data.

Regional and rural issues

  The North West Community Network urged Government to consider locating some of the existing equality agencies in the north west. NIVT drew attention to the fact that MBW and the Londonderry Initiative needed to be complemented by programmes with District Towns who have lost out in wider context of rural regeneration initiatives. The Rural Community Network raised many issues around the problems created by rural isolation and under-investment.

Civil Service

  An issue which was not referred to in any detail in the White Paper was the religious and political composition of the Civil Service. A few submissions did, however, comment on this point, and particularly on the relatively recent introduction of nationality requirements, which could disproportionately deter Catholics. The Diocesan Commission on Social Affairs devoted a large part of its submission to the need to address the serous imbalance in the composition of the senior grades, and associated feeder grades, in the Civil Service.


  Despite the suggestion that the consultative process may have been little more than a "write-in campaign", the vast majority of submissions appear to have been carefully considered and individually prepared. Contributions varied in length from two paragraphs by the Probation Board to 43 pages from the Fair Employment Commission; some submissions restricted themselves to the few issues of direct interest to their group, others commented on all the issues Government had asked for reactions to, and yet others ranged across an even broader agenda of equality issues relevant to the White Paper. Some submissions were written by individuals, others by large organisations, others arose from a process of wide membership debate and consultation. It is therefore all the more disappointing that the initial response of the Government to this enormous effort appears so dismissive.

  One awaits news of the follow-up to be given to many of SACHR's recommendations regarding goals and timetables, contract compliance, affirmative action and the fair employment legislation. However, the Northern Ireland Bill now going through Parliament gives us some insight into Government's intention in the equality realm and it is noteworthy that the draft legislation ignores important equality issues that were negotiated and voted upon in the Agreement. Moreover, the Agreement makes explicit reference to the need to consider an Equality Commission in the light of the public consultation exercise then underway; but this analysis shows that Government is proceeding apace despite, rather than in response to, public opinion.

  CAJ believes that it is vital that relevant legislation must clearly and unambiguously define not only a statutory duty to promote equality of opportunity, but also the need for effective participation and impact assessments. Only in this way does one really mainstream equality considerations at the heart of Government alongside other important policy imperatives. CAJ also urges that Government urgently address SACHR's specific recommendations for ending religious and political differentials in employment terms.

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2   The following is a preliminary assessment. CAJ would appreciate hearing from anyone who thinks we may have inadvertently distorted or misunderstood their stance, so that errors can be rectified in any follow-up initiatives. Back

3   CAJ has a full set of the submissions on file (supplied from the House of Commons Library); access can be arranged upon request, subject to space and financial constraints. Back

4   The submission from the Post Office was the only one which emphasised its fears about the new statutory duty in such a way as to suggest that it might not welcome the measure: "We would express concern that any statutory obligation on public bodies should not be unduly bureaucratic and therefore onerous or represent a significant cost factor. We would welcome clarifiaction . . . as (the proposals) do constitute a fundamental change in the equality obligations placed on the public sector". Back

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