Memorandum from the Committee on the Administration
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.
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.
PRELIMINARY LISTING OF ISSUES TO BE ADDRESSED
BY THE NORTHERN IRELAND AFFAIRS COMMITTEE IN RELATION TO FAIR
A fuller note on CAJ's concerns in relation
to fair employmentdrawing on material submitted in response
to the White Paper and to SACHR's reviewis 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.
1. GOALS AND
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
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
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.
3. CONTRACT COMPLIANCE
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 hasmistakenlysuggested
that European directives limit their freedom of action in this
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.
4. NATIONAL SECURITY
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.
PRELIMINARY ANALYSIS BY THE COMMITTEE ON
THE ADMINISTRATION OF JUSTICE OF RESPONSES TO THE WHITE PAPER
"PARTNERSHIP FOR EQUALITY"
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 respondentsCBI,
ICTU, District Councils, statutory bodies, and an extremely wide
range of community and voluntary groupstestifies 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
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
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.
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
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
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
The Government decision to place equality of
opportunity on a statutory basis was endorsed almost unanimously.
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 BoardSEELB) 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
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
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.
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 submissionsparticularly
from the statutory sector and from the business worldconsidered
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.
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
1 Not printed Back
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
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
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
Not printed. Back