Select Committee on Northern Ireland Affairs Minutes of Evidence

Further Memorandum from the Committee on the Administration of Justice


  The Committee on the Administration of Justice (CAJ) is a cross-community group working for a just and peaceful society in Northern Ireland where the human rights of all are protected. We were awarded the Council of Europe Human Rights Prize for our work. CAJ's remit covers a broad range of civil liberties issues including concerns around disability, gender and juvenile justice, as well as more directly conflict-related issues such as emergency law, prisoners and policing. This latter expertise led to us making a submission to the Northern Ireland Affairs Committee in 1997, and we provided both oral and written evidence at that time.

  CAJ has been very actively involved in the major review of fair employment institutions and legislation which was conducted by the Standing Advisory Commission on Human Rights (SACHR), and has previously made available to the Northern Ireland Affairs Committee various documents including:

    —  Two CAJ bulletins which report on a range of fair employment literature;

    —  our published submission to the SACHR review: Fair Employment For All (1996);

    —  submission commenting on the research commissioned by SACHR (1996);

    —  submission to the Government on the White Paper "Partnership for Equality" (the official response to the Employment Equality review)—1998;

    —  Preliminary analysis by CAJ of 123 responses to the White Paper.

  In the course of this work, CAJ became increasingly convinced of the importance of Targeting Social Need and Policy Appraisal and Fair Treatment in promoting a broad and effective equality agenda. Both policies extended beyond the field of religious and political discrimination, though clearly they have great significance for these issues also. Accordingly, a broad rainbow coalition of groups was mobilised to work for effective implementation of these policies. CAJ was instrumental in pursuing this agenda by convening a series of consultative seminars involving representatives of working class Nationalist and Unionist areas, people with disabilities, women, people of differing sexual orientation, elderly and young people, representatives of the ethnic minority communities etc. We will also have sent you previously:

    —  CAJ discussion paper on Mainstreaming Fairness (November 1996);

    —  Summary of the consultative process on Mainstreaming Fairness (June 1997);

    —  Benchmarks for Change (February 1998)—new legislative proposal;

    —  Equality Provisions: Good Friday Agreement and the NI Act (March 1999).

  The Northern Ireland Affairs Committee will of course have already available to it SACHR's three volumes of research and the final report on the Employment Equality Review (June 1997), the White Paper entitled "Partnership for Equality" (March 1998), and subsequent legislative texts. The legislation largely reflects the thinking of the White Paper, despite the fact that several reservations were expressed at the time about those proposals, and the fact that many of the recommendations made by SACHR to strengthen fair employment provisions had been rejected or ignored. The rest of this submission will focus on the fair employment issues which SACHR's major study addresses, but which Government failed to pursue adequately in its White Paper proposals, and in later legislation.


  SACHR's research into unemployment for the Employment Equality Review shows that[7]:

    —  the rate of long term unemployment in NI is four times higher than in Britain;

    —  nearly 20 per cent of long term unemployed people have been out of work for more than five years, which is nearly three times higher than the British average;

    —  despite their smaller proportion of the overall population, Catholics make up 64 per cent of those who have been unemployed for more than a year;

    —  the female partners of long term unemployed men are less likely than other women to work, which in turn makes the household more benefit-dependant;

    —  the research data challenges the assumption that unemployment benefits or participation in the informal economy applies disproportionately to either community or reduces the incentive to seek or take up jobs; the key factors working to the disadvantage of the long-term unemployed are likely to be the attitudes of employers who are risk-adverse to recruiting from this pool;

    —  a key barrier specific to Northern Ireland is the "chill factor" which means that 55 per cent of the unemployed in a study indicated that they would not take on employment in a place worked in by those predominantly of another religion.

  All of these findings, and many others, led SACHR to conclude that a whole series of measures needed to be pursued. Perhaps most importantly of all, the Commission reiterated a long-standing SACHR recommendation to the effect that Government should publicly adopt realistic targets for the reduction of long term unemployment and unemployment differentials in respect to both males and females over a five, 10 and 15 year period (2.29).

  The White Paper "Partnership for Equality" indirectly rejected this proposal from SACHR by emphasising that Government cannot alone reduce the differential and arguing (the relatively self-evident truth) that practical action and attitudinal change by many others is required. It says: "To assess the rate of progress, the Government proposes to commission the FEC (or a new Equality Commission, if the proposals elsewhere are accepted) to agree with the representatives of employers, employees, political parties and other interests, benchmark measures for the future reduction of the unemployment differential, informed by up-to-date professional analysis". This formulation confirms that Government alone is not responsible for change in the differential, but goes further and excludes Government completely from the list of interested parties! It is CAJ's belief that the setting of such goals is a key function of Government, albeit in co-operation with and assisted by many other social groups. We also see no response to the five, 10 and 15 year timescales SACHR proposed, Instead, the White Paper proposes an undefined "substantial" reduction by the time of 2011 Census (35 years after the introduction of the first fair employment legislation).

  CAJ recommends that the Committee urge government to set ambitious but also realistic and achievable goals and timetables for reductions in the unemployment differentials and for progress in the employment sphere.


  As we pointed out in our submission to the Employment Equality Review, given the emotiveness that can often surround the issue of affirmative action, it is important to be clear about definitions if we are to avoid serious misunderstandings. In the United States, for example, affirmative action can include measures such as the use of "quotas", set-aside grant provisions for minority businesses, and steps taken to eliminate a possible disparate impact on different sections of the community. Equally, under affirmative action measures contained in sex and race discrimination legislation throughout the UK, training schemes may be established exclusively for the benefit of women or minority groups where they are under-represented in a particular area of employment.

  Within the context of fair employment, however, the concept of affirmative action was accepted in the 1989 Act. However the measures contained were much more restrictive than any of those identified above. Significantly, SACHR made a whole series of recommendations about the need for greater clarity regarding affirmative action measures that could be adopted. In particular, identifying a series of recommendations in relation to the unemployed and the long-term unemployed, SACHR proposed that affirmative action be encouraged by a mixture of legislative change and by introducing financial and other incentives for employers/employees (SACHR 2.30-2.34; 2.44-2.48). The Government however rejected most of SACHR's recommendations in this regard—"the Government is not proposing radical changes to the scope of affirmative action as currently understood" (para 5.29). Indeed, in explaining its decision to introduce measures allowing for active recruitment from amongst the long-term unemployed, Government explicitly distinguishes this from affirmative action. It is particularly disappointing that SACHR's attempt to clarify the position for employers wanting to adopt positive action measures has been effectively undermined.

  Beyond the legislation, the White Paper offers little by way of financial incentives to employers, apart from some encouragement to locate in areas of very high unemployment. Yet, UK research has suggested that the attitudes of, and stereotyping by, employers are key factors working to the disadvantage of certain groups of job-seekers. This was clearly confirmed in the Northern Ireland research. Although SACHR studies highlight the inaccuracy of such stereotypes, it is still the case that "many employers appear to believe that long term unemployed applicants are less likely to be suitable for jobs and have doubts about their motivation and ability" (2.18). Without additional incentives, it is difficult to see why risk-averse employers would recruit from the long-term unemployed, or ex-prisoners, yet there are many communities in Northern Ireland with high percentages of both. It is disappointing to note that, yet again, proposals which suggest that affirmative action is of vital importance in promoting equality are to be largely ignored. As early as 1973, for example, van Straubenzee identified the importance of affirmative action, and the 1997 SACHR report largely reiterates its 1987 predecessor in this regard. The problem appears to lie therefore not with analysis, nor with the elaboration of detailed recommendations, but with the unwillingness of successive Governments to act on those recommendations which experts regularly proffer as the most effective way to tackle the problem of inequality.

  CAJ recommends that the Committee urge Government to reconsider its negative response to SACHR's important recommendations on affirmative action. In particular, CAJ urges that the definition of affirmative action in the legislation be amended, that any bona fide affirmative action measure taken in furtherance of an affirmative action plan designed to ensure fair participation in a particular workplace be protected from suits of direct and indirect discrimination, and that the Code of Conduct be amended to reflect the need for affirmative action measures to be broad in scope. It is clear that if employers have done everything possible and are still failing to eradicate unfair practices, they should be entitled to undertake positive inclusionary measures, short of quotas and reverse discrimination, subject to approval by the FEC.


  The White Paper quite inaccurately suggests that SACHR's recommendations to use contract compliance positively to tackle disadvantage and discrimination fly in the face of European Union law regarding public procurement. Reference is made to an EC 1989 Communication, but a number of key changes since then are ignored. For example, a Commission Communication dated March 1998 says that EC rules do not merely allow for the use of public procurement to promote social objectives, but positively encourage Member States to do so. Member States are encouraged to use such mainstreaming mechanisms in promoting the "employment of women or encouraging the protection of certain disadvantaged groups". It would seem therefore that it is the Government which is out of step with Europe, rather than SACHR, when the White Paper states that it has been consistent government policy that "public sector procurement should not be used as a means of achieving social policy objectives" (2.13).

  Indeed, in research carried out for SACHR, when employers were asked whether they could fulfil conditions such as having to hire a certain per cent of their workforce either from the local labour market and/or the long term unemployed if these were introduced in public grants, several noted that grants were already conditional upon fulfilling many requirements and that a "few more conditions" would not make a difference. Interestingly American-owned companies noted that these types of conditions were quite common and probably more rigorous in the US.

  CAJ recommends that SACHR's proposal to broaden the scope for contract compliance in legislation be accepted and that the excessively narrow interpretation by the Civil Service of EU Public Procurement Directives be widened to encourage a more pro-active policy in this area. In particular, CAJ feels that, given the new statutory duties on public bodies to promote equality of opportunity, it is important that the private sector be subject to similar requirements. One method through which this could be achieved is via the more rigorous use of contract compliance.


  SACHR made a very detailed study of the contribution education might make to employment equality. They felt clearly vindicated in this decision since they saw "the equitable provision of educational opportunity from nursery level upwards as a key pro-active means to target social need, demonstrate fair treatment and lay the foundations for future employment equality in Northern Ireland." It is all the more disappointing therefore that so many of the key recommendations (addressing the limited number of pre-school places in the Catholic maintained sector, the lower funding levels for Northern Ireland pre-school provision in comparison to English levels, the advantages of raising the school starting age, the need to engender a broad public debate on the selective educational system, the more effective targeting of limited resources on the most needy schools etc) were rejected.

  CAJ recommends that renewed consideration be given to SACHR's educational recommendations and the role that education could play in reducing serious social and economic inequalities in our society.


  The White Paper responded more constructively to SACHR's recommendations on TSN than to any other area studied. It recognises that TSN has not been applied "with the vigour and effectiveness which a policy of this importance should warrant (and) endorses the general thrust of SACHR's conclusions and recommendations (4.16). It launches a "new TSN" with a focus on unemployment and employability, recognising that these issues have a close correlation with other forms of social disadvantage (such as poor housing, health, education etc.). However, it also recognises that there are some types of disadvantage that would not be effectively addressed by too narrow a focus on employment issues.

  The Government agreed a whole series of measures to make new TSN more effective and to institutionalise consideration of social need at the heart of Government policy-making processes. At the same time, the government ignored other important SACHR recommendations. It refused to commit any extra resources to this major priority: it left vague the extent to which there will in practice be effective consultation with, and participation in, the process of targeting by those directly affected; and it is doubtful whether the system will be sufficiently open to allow for effective accountability. To take one example—SACHR in commenting on the Department of Education's TSN funding says "It is quite clear that the figure of five per cent is simply based on previous expenditure. TSN funding is money that would have been spent on analogous education projects, but with a new name" (para 3.13). The Government, nine months later in its response in the White Paper, appears to overlook these critical remarks entirely and instead lauds the fact that DENI "has for some years been focusing additional educational resources at those schools in greatest need. Some 5 per cent of the total schools budget is earmarked in this way" (para 3.10). Where is the close scrutiny and accountability that is required if we are to be sure that limited public resources are being targeted to greatest effect?

  CAJ recommends that the Committee urge Government to assign additional resources to TSN and to explain what mechanisms exist to ensure that the skewing of resources within departmental budgets to TSN areas is sufficiently transparent to allow for proper accountability.


  The Government policy of Policy Appraisal and Fair Treatment (under both Conservative and Labour Administrations) sought to ensure non-discrimination and equality of opportunity regardless of political and religious belief, but also went beyond these divisions to talk of other inequalities in Northern Irish society (gender, disability, race etc). The Committee will be aware from the enclosures referred to in this submission, and from even a cursory study of the debate around fair employment, that the review sparked off a growing lobby for placing the PAFT guidelines onto a statutory basis. This lobby ensured in due course that the Good Friday Agreement, and subsequently the Northern Ireland Act 1998, imposed a statutory duty on public bodies to promote equality of opportunity.

  Northern Ireland, for all its other problems, has in principle the possibility to provide an excellent "good practice" model in the burgeoning international debate about "mainstreaming". In 1995, the Beijing Platform for Action decreed that "governments and other actors should promote an active and visible policy of mainstreaming a gender perspective in all policies and programmes so that before decisions are taken, an analysis is made of the effects on women and men, respectively". In 1997, the UN's Committee on Economic, Social and Cultural Rights, when examining the UK's record, recommended that: "consideration be given to the requirement that a human rights or impact statement be made an integral part of every proposed piece of legislation or policy initiative on a basis analogous to environmental impact assessments or statements". Within Europe, there is a growing interest in studying practical ways of ensuring that considerations of equality and non-discrimination are at the heart of the government decision-making process, alongsidevalue-for-money, and other important criteria. There seems little disagreement in principle that, if equality and non-discrimination are to mean anything, they must be centre-stage in public policy-making processes. The problem is more one of how this is actually done in practice. Accordingly, Northern Ireland may prove an interesting model for study by elsewhere in the UK and indeed on the world stage. We now have the legislative tools, but of course the real work starts now with civil servants, civil society and politicians ensuring that these tools are turned to good effect.

  At this point, it is worth pointing out the broad coalition that has coalesced around this measure designed to promote special inclusion. This coalition has included members of the Nationalist and Unionist communities, as well as women, ethnic minorities, disabled people, children's organisations, those representing the elderly, and members of the gay community. CAJ has been actively working with all these groups, both in relation to PAFT, and the new statutory duty. It should be pointed out, however, that the PAFT provisions remain in existence until such time as the equality schemes come into force.

  CAJ recommends that the Committee ask Government Departments what progress has been made to date in drafting equality schemes relevant to their areas of responsibility. In addition, since it is clear that the best way to prepare for the introduction of equality schemes is to effectively "PAFT", CAJ would request that the Committee examine how the existing PAFT arrangements are being operated.

  It is clear, however, that one cannot deal with these new arrangements without reference to the new Equality Commission since it will have responsibility for policing the new duty. In particular the Committee should examine closely the resources being provided for this function. Equally, the Committee should explore how the new Commission plans to seek harmonisation of the existing fragmented legislation, so as to ensure that the rights of all groups are equally protected.


  CAJ in its submission to SACHR's review argued that, while it recognised the positive contribution made by the Fair Employment Acts, there were a number of improvements that needed to be made. Of most importance were the need to define affirmative action clearly so that it could be actively encouraged; the repeal of section 42 (the national security exemption) with immediate effect; a strengthening of the powers under section 31; and a whole series of measures to make the Fair Employment Tribunal more effective (legal aid, possibility of awarding punitive damages, "standing" for the FEC etc).

  SACHR came to many similar conclusions regarding the legislation and the operation of the Tribunal. It is also worth noting in passing that they made a point of seeking employer reactions and "the Commission was encouraged by the fact that few employers considered that compliance with the legislation had adversely affected their competitiveness". SACHR recommended the extension of the legislation to goods, facilities and services, with cases being heard before the Fair Employment Tribunal; the FEC to have a statutory duty to oversee the legislation and make proposals for change as necessary; the potential for the FEC to act as "friend of the court"; the provision of legal aid; and the potential to apply for an injunction in the case of persistent discrimination. The Fair Employment Tribunal should be able to award compensation in cases of indirect discrimination and to award exemplary damages. While disagreeing with CAJ about the necessity to repeal section 42, SACHR did recommend that there be some form of independent judicial scrutiny of its operation. Many recommendations were also made about the monitoring powers of the FEC.

  The White Paper seemed unwilling to accept many of these proposals. There is some suggestion (see 5.2 and 5.12), that this position was dictated by a determination not to impose, unnecessarily, additional burdens on employers. Yet SACHR alluded to its concern to bear in mind the needs of employers, and indeed many of the rejected proposals were intended to be helpful to employers, in that they would have simplified and streamlined procedures. Regarding the specific proposals, section 31 reviews are an attempt to assist employers in a qualitative way to develop fair participation. Various SACHR proposals to improve upon and streamline these reviews were rejected, and the proposal that relevant trade unions be involved in the section 31 review process was made a matter for further consultation. It is disappointing that this mechanism within the legislation, which would allow the FEC, employers and others, to move beyond procedural to more substantive discussions of equality of opportunity, has been side-lined.

  CAJ recommends that the series of changes that SACHR proposed with regard to the practice of self-review by employers (Section 31) be put in place.

  Regarding the Fair Employment Tribunal, there was widespread surprise that the new Fair Treatment Order introduced an arbitration clause for dealing with complaints. No mention was made of this proposal during the SACHR review, nor was it included in the White Paper. CAJ has concerns about this proposal, which it feels could undermine the right of those suffering discrimination to receive adequate redress.

  CAJ is concerned that the Government appears anxious in para 5.31 in the White Paper to harmonise as much as possible the workings of the FET and the industrial tribunals. Yet the proceedings before the FET are inevitably more formal and "court like" than proceedings before industrial tribunals, reflecting the frequent legal and evidential complexities of the case. There could well be a case for developing an Equal Treatment Tribunal in Northern Ireland to adjudicate upon these more complex questions of equality law. Certainly, CAJ believes that many of SACHR's recommendations, particularly on exemplary damages, reflect an appreciation of the special nature of equality litigation and it is disappointing that so few have been adopted: no legal aid is to be provided; no exemplary damages or continuing financial payments are to be made; and no resource centre with Tribunal decisions is to be established. It is particularly unsatisfactory that there is no system whereby FET decisions can be accessed by ordinary citizens. Indeed many seasoned practitioners are unaware of important developments, and several of the business and statutory submissions to Government commented critically on the decision not to make such decisions more easily accessible.

  The failure of the Government to respond sympathetically to a whole series of proposals in this area compares starkly to their sympathy with employers, even ones found guilty of discrimination. For example, "the concept of exemplary damages would also mark a shift in the ethos of the legislation away from compensation of the complainant towards punishment of the respondent. Accordingly, SACHR's proposal in this regard is not accepted". With regard to employers identified by the Tribunal as discriminatory, the Government has rejected SACHR's proposals on the grounds that "the potential effects on the respondent in terms of access to public sector contracts and grants are very serious".

  CAJ recommends that in any further review of the harmonisation of equality legislation, consideration be given to the idea of an Equality Treatment Tribunal. In the interim, we urge the Committee to consider SACHR's many helpful and considered recommendations aimed at improving the work of the Fair Employment Tribunal.

  In relation to national security exemptions (sections 42 and 52), the legislation allows for religious or political discrimination on the grounds of national security, public safety or public order. SACHR recommended that there at least be judicial scrutiny of this procedure (many—including the CAJ—argued for its repeal), but the Government chose not to accept the recommendation because cases were at that time pending before the European Court of Human Rights. This was a manifestly unfair practice and the Government did not even attempt to justify their failure to provide effective scrutiny or (ideally) to eliminate the exemptions. Indeed, even while awaiting this ruling from the European Court, the government's Northern Ireland Bill proposed extending these provisions beyond the realm of religious and political discrimination to the spheres of race and gender. When, in July 1998, the Court held unanimously that the UK was in violation of the European Convention by not providing judicial remedy in such cases, some amendments were entered into the draft legislation. CAJ doubts very much that the changes made will meet with the standards set by the European Court, since basic rules of natural justice are still not being met.

  CAJ recommends that this situation be rectified without delay and that the national security exemption be dropped entirely.

  On a different issue of exemptions—CAJ queries whether the continuing exemption from fair employment law is appropriate for teachers. While recognising that this is a complex issue, we were surprised that this issue was not addressed either by SACHR, in the White Paper, or in the subsequent legislation.

13 April 1999

7   For details of following see SACHR, 2.2; 2.5; 2.17; 2.18 and 2.20. Back

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