Further Memorandum from the Committee
on the Administration of Justice
BACKGROUND
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.
GOALS AND
TIMETABLES
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.
AFFIRMATIVE
ACTION
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.
CONTRACT COMPLIANCE
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.
EDUCATION
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.
TARGETING SOCIAL
NEED (TSN)
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.
POLICY APPRAISAL
AND FAIR
TREATMENT (PAFT)
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.
FAIR EMPLOYMENT
LEGISLATION
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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