Examination of Witnesses (Questions 415
- 419)
TUESDAY 20 APRIL 1999
MR MARTIN
O'BRIEN, MR
BARRY FITZPATRICK
AND MR
TIM CUNNINGHAM
Chairman
415. You are most welcome. Thank you very much
indeed for coming to see us. The message about Christine Bell
had in fact reached us so we have produced a handwritten welcome
to Tim Cunningham. Thank you also for the fact that you not only
sent us a memorandum when we embarked on this task earlier but
also an update in the context of this particular session. The
Committee kindly gave evidence to us at the time of our inquiry
into policing and therefore in that respect I am simply repeating
what I said on that earlier occasion, that we will endeavour to
make sure our questions follow a logical order, but it means the
geography round the horseshoe from which the questions come will
not necessarily be logical. Should you wish to gloss any answers
you give us now, either orally because a further thought strikes
you after you have concluded answering a question or you wish
to gloss them in writing afterwards, that will be perfectly all
right and, equally, we will reserve the right to ask any supplementary
questions in writing thereafter. For the benefit of our Committee
and also yours, I think I should say it will be self-evident to
everybody that Christopher McCrudden is acting as a Specialist
Adviser to the Committee and we are of course conscious of his
prior association with your Committee. He has reminded us of his
non-pecuniary interest and involvement and of the work he has
done and I should of course perhaps remind everybody on the Committee
that he has played no part in the presentation of your material
to us given the role that he is fulfilling on our account. Are
there any opening remarks you wanted to make yourselves over and
above the memoranda before we move to asking questions?
(Mr O'Brien) Maybe I could just say a
few words by way of introduction. May I make apologies for Christine
Bell who is unable to attend due to the death of her grandmother
whose funeral is this morning. We are very grateful for the opportunity
to come and talk with you again today. I think we are particularly
grateful because we were concerned that the Fair Employment and
Treatment Order was passed with little, if any, effective parliamentary
scrutiny, so this I think is a very good opportunity to discuss
some of these matters and it is something which we value very
much. Maybe if I could just introduce first of all myself. I am
Martin O'Brien, Director of the CAJ. I am joined by Barry Fitzpatrick,
who is the Professor of European Law at the University of Ulster
and also a part-time chair of industrial tribunals in Northern
Ireland, and Tim Cunningham, who is a PhD student in criminology
and conflict resolution at the Law Faculty of Queen's University.
Both Tim and Barry are members of CAJ's Fair Employment and Economic
Justice Sub-Group. I think the Committee is probably aware by
virtue of our previous appearances before you of the CAJ, but
if I can say a little bit about that briefly. The Committee is
active on a very broad range of civil liberties concerns. It is
a cross-community organisation, with membership drawn in particular
from the legal profession, academia and community activists. The
Committee works to ensure that international human rights standards
are applied, and works on a very broad range of issues in the
field of equality. We have been particularly active in relation
to fair employment, but also the rights of disabled people, women,
minority ethnic communities, people of different sexual orientation
and a very broad range of concerns. In particular, we have been
very active in the whole field of the statutory duty to promote
equality of opportunity and have brought together a very broad
coalition of groups to develop those ideas. You have already referred
to the role played by Christopher McCrudden, particularly in relation
to that work on the statutory duty. Really that is all I would
say at this point. The Committee has also been very much involved
in the peace process in Northern Ireland and in particular in
trying to ensure that issues around human rights and equality
were placed at the heart of the peace process. We were also active
in relation to the Northern Ireland Bill and the Northern Ireland
Act and, in particular, the equality provisions in that regard,
again with a number of politicians, including some of those here.
We are very grateful to have the opportunity to discuss these
matters with you.
416. I am not sure how clear it was other than
within the Palace of Westminster, but in the context of the Order
to which you were referring and the fact that it had had fairly
sparse Parliamentary scrutiny, it is perhaps worth recalling that
the original timetable for the discharge of that Order had been
that Mr Ingram, the Minister, was going to have taken the Order
before he gave evidence to us and our interest was obviously primarily
at that stage in the Order. To the credit of the Government, they
did in fact move it from Tuesday to Thursday so that he would
give evidence to us before he actually took the Order through
the other Committee of the House. I think in the event he got
rather more scrutiny from us than he got from the Committee, so
it was just as well that that particular reordering of chronology
occurred. Thank you very much indeed for the other introductory
remarks. My first question would have been on your role generally.
I think it would be quite helpful if you were to take us through
the narrative of your first involvement with the fair employment
issue and your continuing involvement thereafter. You touched
on it in terms of what you said on an introductory basis but I
think it would be helpful to have it on the record.
(Mr O'Brien) I suppose the Committee
first became involved in the fair employment debate prior to the
introduction of the 1989 Act and our work at that time would primarily
have involved the organisation of a number of seminars and conferences
and events in Northern Ireland designed to stimulate discussion
and awareness about the issues that the Act would have been addressing.
I think that at that time we also prepared some briefing material
for parliamentarians on the contents of the Act and on our views
on a number of the provisions contained within it. Our work really,
however, in this area took off, I think, about four years ago
and in particular focused around the preparation for the SACHR
review of fair employment legislation and also concerns which
we had about the adequacy of the implementation of Policy Appraisal
and Fair Treatment (PAFT) guidelines. That led us again to organise
a range of seminars. We invited a number of distinguished experts
on equality, both locally and internationally, to come to Northern
Ireland to speak on those matters. We began to prepare a detailed
submission to the SACHR review which I think we have already submitted
to the Committee, entitled "Fair Employment For All",
which outlined our views in relation to the review. We have published
a number of bulletins which summarise the very vast, as I am sure
members of the Committee will see, volume of material on this
issue. In particular, the bulk of our work has been on the whole
question of the statutory duty. We published three documents which
deal with that and organised a very extensive public consultation
on the adequacy of the existing implementation of PAFT and also
then on proposals for putting PAFT on a firmer footing which eventually
informed and helped to shape the provisions contained within the
Northern Ireland Bill and ultimately the Act. We have also been
involved internationally in speaking on this issue and we have
spoken at a number of events in New York organised by the City
Controller, Alan Hevesi, the most recent of those in March, to
bring the debate on these issues to a broader audience. As I said,
the Committee was very closely involved in the final stages of
the parliamentary process of the Northern Ireland Act and we had
regular meetings with civil servants and with the Minister, Paul
Murphy, to discuss our concerns about those provisions and, in
particular, our concern that the provisions in the Act should
fully reflect the provisions of the Good Friday Agreement. That
is a series of publications, a range of seminars and events and
a fairly long history of involvement on the issue. I should maybe
also add that our focus has not been exclusively on the fair employment
issue. We were also very much at the heart of the effort to secure
race relations legislation for Northern Ireland and have been
active in the debate on disability legislation here. So we see
these things very much as a broad package. That perhaps gives
you some idea of the range of interventions that we have made.
417. Thank you very much indeed for a very comprehensive
account. I have another ground-clearing question. I appreciate
that in responding to it you will to some degree be going over
material which you submitted in a memorandum to us. The memorandum,
rather like the helpful answer you have just given, was fairly
comprehensive and was dwelling quite substantially on areas where
you thought progress was not being made and where therefore you
thought further attention should be given and I may come on to
that in a moment. Could you say first, so that we look in a sense
at what is behind us, what progress you think has been made since
the 1989 legislation on measures which you wanted to see carried
out in order to achieve the equality objectives?
(Mr O'Brien) I suppose the principal
area of improvement which we would feel has been of particular
importance is in relation to the statutory duty and to have due
regard to the need to promote equality of opportunity which we
think is of immense importance to the broader creation of a more
equal society. We think that is particularly important because
a lot of the work to date on discrimination and tackling the question
of discrimination has focused on providing remedies after the
fact in a sense, and the whole approach which informs the statutory
duty is that we should anticipate problems which might arise and
try to prevent them occurring in the first place. We think this
is a very important area in that it adds a broader dimension to
equality and very much fits within the trend in Europe to mainstream
equality concerns and that, I think, is probably the thing which
we would feel is the most important achievement to date. Obviously
the tools in a sense to advance that now exist. It is really now
a focus on implementation. I suppose another area we would very
much welcome would be the extension of fair employment legislation
to the field of goods, facilities and services. I do not know,
Barry, if you would like to add any other opinions on that.
(Mr Fitzpatrick) I think it is still fair to say that
the fair employment regime in Northern Ireland is probably the
most advanced equality regime in Europe and so, to some extent,
it is an advantage that the Fair Employment Commission has stronger
powers than other equality agencies in terms of monitoring equality
in relation to religious composition, etcetera. It is also a benefit
that the Fair Employment Tribunal has gained the reputation for
being an effective tribunal within which religious equality legislation
has been interpreted and applied. Those are benefits which if
anything we would wish to see applied to other areas of equality.
The creation of a single Equality Commission has been extremely
controversial, but now that is happening, it is an opportunity
not only to look at the fair employment regime again to see if
it can be improved still further but also to examine the extent
to which other equality regimes may be harmonised with it. There
may be a particular disadvantage where people suffer a multitude
of inequalities and that is perhaps where the greater disadvantage
lies. Certainly the fair employment regime has had its benefits
and, if anything, those benefits need to be extended to other
areas of inequality as well.
418. On the first page of the memorandum you
sent us this month you set out a helpful aide memoire of
certain issues to which you thought we should address our own
attention. I realise that in answering my next question you may
in part be speaking to that particular page but what in your view
are the major continuing problems?
(Mr O'Brien) I think one of our principal
disappointments was the Government's response to SACHR's recommendations
on the unemployment differential and in particular the view of
Government that this matter should be looked at again in the year
2011 which we feel is quite inappropriate. We were also concerned
that Government appeared to remove itself from the list of actors
who had a role to play in relation to this, and in fact our view
would be that this is principally a matter of Government policy
and that Government should set realistic goals and timetables
to tackle the problem of the unemployment differential. That,
if you like, is one of the areas which has been most stubborn
in terms of actual progress being made, and we think that the
response of Government to date in relation to that has been insufficient.
We are also concerned that the response of Government in relation
to affirmative action was again insufficient. Maybe, Barry, you
would like to say a bit about that.
(Mr Fitzpatrick) I think the two points I would make
are, first of all, that to some extent there has perhaps been
almost an over-emphasis on questions of recruitment at the expense
of other aspects of employment. Certainly in the first ten years
of the regime you would expect questions of labour market composition
to be extremely important, and so they have proved to be, but
perhaps the emphasis needs to move on to some extent through what
will now be the Equality Commission and through employers' perceptions
that all aspects of employment are subject to participation questions
in terms of the composition of a particular workforce and who
is promoted and who is not promoted and who does overtime and
who does not do overtime time and why do people leave organisations.
To some extent, that agenda has to move on and a Commission to
monitor a wider range of issues in terms of unemployment policies
and practices is to be welcomed from that point of view. Perhaps
there should be encouragement for a greater number of indirect
discrimination cases before the Fair Employment Tribunals on those
sort of issues. However, there is a further issue, as Martin says,
on affirmative action because the danger is of creating goals
and timetables without the means of actually achieving the goals
and timetables, and to some extent, the Fair Employment Order
in allowing affirmative action in relation to the recruitment
of the long-term unemployed is starting to move in the direction
whereby an employer who is seeking conscientiously to achieve
fair participation and finding it impossible to reach these goals
and targets is allowed to take a very limited measure towards
trying to achieve fair employment objectives. However, we would
feel, as SACHR suggested and we ourselves suggest in our submissions,
that any employer who has established that they have done their
best to counter direct and indirect discrimination in their organisations
should be able to propose to the Fair Employment Commission a
bona fide affirmative action plan, which the Fair Employment
Commission would have to approve, and the employers who wish to
do so should not be prevented by the present legislation from
so doing. This would fall short of what might be called positive
direct discrimination in terms of actually choosing a person on
grounds of religion. For example, it may be that if an employer
is failing to recruit in certain geographical areas, to be able
to say that a certain number of jobs may be recruited from that
geographical area if suitably qualified applicants came forward
would be a way of trying to redress imbalances in a labour force
by way of what might be called a positive inclusionary measure
without the full stigma of positive discrimination. We feel employers
should be free from challenges of direct and indirect discrimination
to take those kind of measures in conjunction with Fair Employment
Commission approval.
(Mr Cunningham) Just one other matter in relation
to the SACHR report that we were disappointed with was the proposal
for the new TSN. We broadly welcomed the approach being adopted
in the report apart from a couple of reservations specifically
around the issue of resources because the broad principle was
one that we think was useful to adopt, but it was not clear where
this additional funding for the projects was going to come from
and how the resources were going to be skewed, and in addition
there was the whole question of consultation and participation
about to whom the resources should most effectively be directed.
Again, that raises the whole question of transparency and accountability
around TSN. Going back to the SACHR report, it is worthwhile looking
at their position. They sent numerous examples. For example, one
they referred to was the Department of Education for Northern
Ireland, which said five per cent of its money was being spent
on TSN projects. It was a Northern Ireland Affairs Committee Report
in 1997 that pointed out this five per cent was money that would
have gone into those areas anyway. It is just that it happened
to be labelled as Targeting Social Need money. We would like to,
one, ensure the resources are there to adequately fund these projects
and two, as I say, there is transparency and openness and accountability
around this money so that there is clarification that it is going
to areas of greatest social need.
(Mr O'Brien) I think an additional area is in relation
to the whole response to the question of Section 42 and national
security exemptions. I think we were very disappointed at the
measures proposed by Government in relation to this matter which,
in our view, may well encounter further problems if additional
challenges were taken at the European Court level. In particular,
the concern which we would have is that it is still possible that
someone will not know the case against them under the new measures
and, equally, we are concerned that people could well have a lawyer
appointed for them who actually has no professional responsibility
to them and that is something which the Bar Council here has expressed
concerns about, about the potential incompatibility of this with
their professional code of ethics. We were disappointed to see
the very minimalist approach which the Government took to this
whole question of Section 42 certificates and are not convinced
that this will respond fully to the concerns of the ECHR. Only
time will tell if that is correct, of course.
(Mr Fitzpatrick) Finally, I would say a word about
the question of contract compliance, which CAJ proposed quite
firmly in their submissions. The new statutory duty on public
authorities will include the question of undertaking equality
impact assessments on their procurement policies. Therefore, public
authorities are going to have to examine the contractors with
whom they are contracting. Those contractors have, in turn, to
obey existing laws on fair employment and other aspects of equality.
It would seem only fair and reasonable that public authorities
should be free to examine how contractors are fulfilling their
legal obligations under the existing legislation before deciding
whether or not they may be breaching their statutory duty. They
have to consider these matters in terms of fulfilling their statutory
duty. We therefore feel that the statutory duty pushes the compliance
contract argument a little further along. We are unconvinced by
the Government's arguments on the restrictions that European law
places on public procurement questions in relation to social clauses.
We feel that the European Commission at the present time is mainstreaming
many aspects of equality into public decision-making, and although
the Procurement Directives do, on a very rigorous reading, seek
to restrict the scope for social clauses, we do not believe that
the European Commission would pursue a Member State that sought
to include social clauses in their contracts, and we would doubt
whether a challenge to those clauses would be successful before
the Court of Justice.
Chairman: It may well be that we will re-visit
on an individual basis some of the things which you have highlighted
and of which you have provided a harbinger in terms of the page
to which I referred earlier. Mr McCabe?
Mr McCabe
419. Thank you, Chairman. Good morning. You
have already mentioned the unemployment differential. The Committee
heard from an earlier witness who argued quite strongly that the
focus on the unemployment differential was a mistake. Could you
tell us what the significance of the unemployment differential
is as far as you are concerned?
(Mr O'Brien) Certainly this has been
the most stubborn statistic to move and, whilst there has been,
progress at other levels in the debate, the whole question of
who is unemployed and who are the long-term unemployed remains
a particular problem. Obviously it would be our view that a society
which is interested in being equal and in being fair needs to
look at a question like that and then come up with creative measures
to work out how you actually shift those figures and discover
what are the kinds of factors which contribute to that sort of
problem. So, from our point of view, this is a major blight on
the, landscape in a sense and is something which needs to be addressed
and has persistently been raised as something which needs to be
addressed. I am not actually sure there is anyone saying it is
not something that should be addressed. I think there are some
people arguing about the cause of it. I think our concern is that
it should be addressed and it should analysed and there is a very
wide volume of research which exists on this issue which shows
clearly that it remains a major problem. I think what we areconcerned
about is, for example, that the Government's approach to this
has been less than satisfactory in putting it off and in our view
stepping back from its own responsibilities in relation to such
a significant aspect of the world of work here.
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