Select Committee on Northern Ireland Affairs Minutes of Evidence

Examination of Witnesses (Questions 415 - 419)




  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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