Select Committee on Northern Ireland Affairs Minutes of Evidence

Examination of Witnesses (Questions 440 - 458)



Mr Donaldson

  440. Turning, gentlemen, to the issue of the proposals or indeed the provision included within the legislation for the land sales in terms of the whole, I am not sure whether we would call it the fair employment issue but you know what I mean I suppose in the wider realm of discrimination, do you consider that the exemption of land sales which are not advertised is compatible with our international human rights obligations?

  (Mr Fitzpatrick) It is certainly the case that property rights are at the highest level of the hierarchy of human rights in the sense of civil and political rights, but they are there in the wider issues of economic and social and cultural rights. The European Convention on Human Rights in its first Protocol does provide that an individual shall not be deprived of his possessions without it being in the national interest. The European Commission and Court can take quite wide views of these things but to begin with the starting point might be that depriving somebody of selling their land to anyone they wanted to is more of a human rights question rather than the question of whether they should be allowed to sell it irrespective of a particular factor. That said, this issue as far as I am aware has not been before the Court of Human Rights, and the Court of Human Rights has been known to take a wide view. The Universal Declaration of Human Rights is a bit wider. It says everyone has a right to own property which would be more in line with the right of a person to buy. The only point we would make is to the extent that either the Convention or the Declaration might come within the scope or might include the question of the right to purchase, which is what this effectively is, the fact that the other regimes include land sales within them and that this regime does not would call into question the extent to which it was in the United Kingdom's national interest to have this exemption and why this regime should be treated differently to other regimes. You would first have to construct an argument that a person's right to buy property was a human right which was being contravened.

  441. Did it not surprise you that the Government included this provision in this particular piece of legislation? It did not strike me that there was an enormous pressure building within the community for this kind of provision. Does it not strike you a little odd that this provision was brought forward? Clearly you are not comfortable with the idea that it is necessary to meet our international obligations. It seems to be a grey area at the very least and, secondly, that not only that they should bring forward this provision but that they should include it in this particular legislation?

  (Mr Fitzpatrick) I would have to remember precisely but certainly from the White Paper in response to SACHR's proposals on goods and the provision of services there were a number of areas where there were concerns expressed. If I remember correctly, land sales was one of them. The only point I would make is—and this goes back to parliamentary scrutiny of the Fair Employment Order—at the end of the day, at the end of nearly four years of consultation, a number of issues were included there which simply were quite unexpected. Perhaps if the same scrutiny that the Northern Ireland Bill obtained was given to the Fair Employment Order then we would have a better answer to that question.

  Chairman: My recollection in terms of the question Mr Donaldson asked is I put this to Mr Ingram two days before the Order was taken before the House and he confessed that he assumed that what was being done was compatible but he would in fact investigate to make sure it was. I am paraphrasing and it may well be I am misquoting him, but it suggests the issue was not absolutely at the forefront of the Government's mind in bringing the Order forward. Mr Robinson?

Mr Robinson

  442. I would like to deal with some of the issues arising from the 1998 Act and the new arrangements and structures in relation to the Equality Commission. I assume that, because it was one of your own tribe that got into the chair of it, you are reasonably happy with the structure?

  (Mr O'Brien) The Equality Commission has not yet been—

  443. It is the Human Rights Commission—

  (Mr O'Brien)—Has not yet been established. We were extremely concerned about the proposals to establish a unified Equality Commission. In part this relates to the last point. This was not something which arose out of the SACHR report. The idea to amalgamate the existing Commissions was not an idea which was put forward by SACHR, nor was it in response to the White Paper consultation document, nor was it something which enjoyed any support from the constituencies which equality legislation is designed to benefit—women, ethnic minorities, disabled people, Catholics and Protestants. It did not come from those constituencies and we were quite concerned by the proposals and, in particular, were concerned that they were ill-considered, that they could lead to a hierarchy of discrimination and that they could lead to other constituencies like the disabled and ethnic minorities becoming even lower in the heap, as it were. So we were not opposed in principle to the idea that there could be an amalgamation but we felt that that should be part of a longer process of consideration. In particular, we felt that it should coincide with discussions about harmonisation of legislation. One of the ways in which this was proposed was that it would be a one-stop shop, as it were, for employers. We were concerned that, given the difference in legislation, it would not actually deliver that. Now the decision has been taken, however, to go down this road, the challenge facing the new Equality Commission will be to restore confidence in the constituencies that the existing agencies were serving. It is up to everybody now to try to work out how best that can be done. The actual structure for the Commission, and how it is going to work, still seems to be up in the air to some extent. A working party was established which has either just reported to the Minister or is about to report to the Minister. We have not yet seen that working party's report and, as I say, we would be concerned that whatever new structure is there, it serves the needs of all of the constituencies that equality legislation is designed to protect.
  (Mr Cunningham) Some of the suggestions, for example, around the existence of separate Directorates, we were not sure whether this was more a reflection of existing arrangements than it was actually a coherent way of thinking whether this is the best way forward. We had come up with a number of ideas which we submitted to the Equality Commission Working Group, one of them being, for example, that ultimately we would like to see a harmonisation of the legislation and harmonisation upwards and harmonisation within the Commission itself. We had suggested, for example, that there could be an initial clearing house arrangement whereby the expertise of the different constituencies could be amalgamated, so there was an initial contact point and, effectively, if a complainant turns up who because of their religion, gender or ethnic group, they may be facing an discrimination case, we felt there could be a way to draw on expertise to ensure that whatever they were making a complaint about, it was adequately addressed. One of the points we made, for example, was if there was going to be a central body, then it would need to ensure it was accessible to all the groups it was supposed to cover and again, as Martin said, it is going to have to be a central body that is accessible to a person who may be disabled, for example, or indeed someone who may not speak English as their first language. Those are the initial views we would have. The key thing we would say is there must be sufficient resources being devoted to it to ensure there is harmonisation ultimately towards discrimination.

  444. I want to come back to the Human Rights Commission issue, but continuing with the equality issue. For someone who is outside the equality industry, it seems to me it would be a perfectly natural move for the Secretary of State to have one body dealing with equality and all of its ramifications and the issue of whether various interests get sidelined or go down the pecking order is dealt with largely by the membership and the various interests being represented in terms of the membership. Outside of some concern you might have about the pruning of the equality industry, surely from the point of view of actually doing the job it is much better to have everything in the one basket?

  (Mr Cunningham) As Martin said, we are not opposed to the idea of a single Commission in principle. We actually think there is a lot of merit there, but the key thing is that it should come about through a process of adequate consultation and adequate review. The point is that this came out of a review of fair employment that had absolutely nothing whatever to do with examining issues of gender discrimination, racial discrimination or disability discrimination. It did not even feature in the fair employment review. It appeared to be plucked from nowhere and appeared in the White Paper. The scheme was rushed through. There were 123 submissions made in response to the White Paper on this issue and 16 were actually in favour of steam-rollering ahead, as it were. There is nothing wrong in principle with a single Commission, provided it is something that is carried out in a way that is properly thought through with proper consultation and sufficient checks and balances to ensure that it does not result in the marginalisation of those groups which already have less protection under legislation. There was another suggestion that the reason this has been pushed through is the feeling that, if there were a single Commission, it would be able to create savings which could be used to police the statutory duty. As we have said, there is an under-estimation of the resources needed to do that. In relation to your point, there is nothing wrong in principle but it is necessary to have a proper process to ensure it happens effectively.

  445. Were you disappointed that there is not to be an Equality Department?

  (Mr O'Brien) I think this goes back to the question earlier about the CCRU. Our original preference in relation to all of this was that there should be a strong focus at the heart of Government on equality considerations. We did not have a particular view on and had not got to the point where we were advocating, for example, an Equality Department, but to the extent that would have provided this strong unit at the heart of Government, then we would probably have welcomed it. But the arrangements at the moment, as I understand it, if things progress, would be that equality would be dealt with in the offices of the First and Deputy First Ministers. How that gets operationalised in practice, what the role of that unit is and what its contact with other elements of government is, would be the kind things that interest us. I do not really feel that we know enough about how the Government, both in terms of the new Assembly and the Northern Ireland Office, actually intend to ensure that the new statutory duty is brought to bear on their work in addition to the way in which it would be brought to bear on the work of public authorities and other Next Step agencies. I do not feel we know enough about the proposals in relation to these matters yet. That is obviously something that would be of particular interest to us.

  446. As a general principle, I would have been surprised if you had not been more towards the Sinn Fein view that if there is a department, it clearly gives the issue a higher profile and has a Minister directly responsible for that matter answerable in the Assembly as well, whereas if it is sidelined into the central department under a unit with a junior Minister it clearly has been demoted to that extent.

  (Mr O'Brien) I suppose it is a question as to the spin that is put on each of those options. Our concern would be on the mechanisms which either of those options would actually ultimately put in place. For example, if there was a Department of Equality, to what extent would it be involved in the day-to-day operation and scrutinising the work of other departments? Equally, if there is this unit in the Office of the First and Deputy First Ministers to what extent will it actually be able to influence and improve the overall equality framework in Northern Ireland?

Mr Robinson

  447. I still have not forgotten about the Human Rights Commission question, but all that we have been talking about comes down really to forced fairness, and having to force it through legislation does not indicate that an awful lot has changed within society. If it was not all there, would we have an improved situation or is it simply because it is legislatively required that people behave the way that they are behaving?

  (Mr Fitzpatrick) That is the ultimate hypothetical question. At the end of the day, we would say that efficient employers try and manage diversity in such a way that they recruit into their organisation people from as diverse a background as possible to maximise the return of that organisation, to maximise the view that the outside public take of that organisation, so it seems to make sense for employers in this particular context to seek to not just avoid discrimination on other grounds, but to actively promote policies to make themselves as inclusive as possible. In one sense legislation and certainly litigation is a very onerous way of trying to achieve public policy objectives. It is certainly better to have an efficient Equality Agency, such as the FEC has been to deal with that. They should only be dealing with recalcitrant employers. In a sense, some of our submissions today have been that employers should be free to go further down the path of affirmative action and it is actually the law that is holding them back. It is the ultimate hypothetical question as to whether the legislative structure has made any difference. It has created an environment within which the values that legislation encapsulate have been accepted by employers, and SACHR research makes clear that employers in Northern Ireland have basically accepted the values of the legislation and to that extent they have been a success. To the extent that the Fair Employment Commission has pursued certain matters with vigour, it has been a success and to the extent some cases have been brought before the fair employment tribunal and have been successfully negotiated there, suggests some progress has been made on that score as well, but it is impossible to say what might have happened if the legislation had not been there.

  448. Thank you. One of the principles that underlies fair employment is the hope that the community itself will feel that there is innate fairness about what is going on. That must be an essential ingredient when it comes to an Equality Commission, a Human Rights Commission, or indeed any other body that is expected to look at issues of fairness and equality. You do not live in purdah. You are aware of the controversy there has been over the last number of weeks concerning the composition of the Human Rights Commission. Is it not damaging to the future of the Human Rights Commission and even, if the Secretary of State persists with this pattern, of the Equality Commission, if it is not seen by the community to be set up in a fair and impartial and balanced way?

  (Mr O'Brien) I would agree entirely with you as to the centrality of people feeling that things are fair if you are actually going to move forward, and particularly in relation to these matters. My own view would be that it is extremely unfortunate if people feel that they have in some way been discriminated against or that their particular community has not been represented in particular bodies, and that is obviously something which should be of concern to everybody. It seems to me that the task of the Human Rights Commission will be to display by its work the extent to which it is fair, given that the question of appointments is a matter which is in the hands of the Secretary of State. I would say as well if there are individuals who applied to be appointed to the Human Rights Commission and those individuals feel that they have the necessary qualifications or whatever to serve on the body and they feel they were in some way discriminated against, then they should pursue that matter and certainly against an NGO we would be keen to support people in that respect.

  449. Could I ask you to reflect on that answer. If, for example, the Secretary of State were to appoint an Equality Commission that had no one at all representing the Nationalist point of view, just as the Human Rights Commission has no one at all to represent what is now majority Unionist opinion, would you be saying that it is up to the body that has no representative of the Nationalist viewpoint to show itself to be fair and balanced in the way it behaves and does its duty?

  (Mr O'Brien) I am not sure that I would fully accept that there is no one on the Human Rights Commission who reflects the Unionist view on that.

  450. That is not what I said.

  (Mr O'Brien) I am not sure—

  451. Can I just put on record again what I said: represents what is now majority Unionist opinion. It has minority Unionist opinion on it, a very small number, and Unionists are in the minority on it, but there is no one from what is effectively the anti-Agreement camp which is the majority Unionist opinion.

  (Mr O'Brien) Obviously the debate about what constitutes majority opinion in particular communities is not one I could enter into. What I would repeat is that I think it is extremely important that these bodies, regardless of whichever they be, maintain and retain the confidence of the entire community regardless of whatever its particular perspective would be. If the Secretary of State makes appointments to a public body and if there is public concern about those, it is up to the Secretary of State to decide what he or she is going to do about that. In the absence of a decision in relation to those matters the only thing open to those bodies is to seek to display by their work whether or not they truly are operating in a fair fashion.

  Mr Robinson: Can I put it on the record that Mr O'Brien would have been able to have reached a conclusion about what is majority Unionist opinion because we had Assembly elections and the majority of those members elected from the Unionist tradition were against the Agreement and the majority of votes cast were against the Agreement.


  452. I do have one or two questions I am going to follow up with at the end but I want to ask one supplementary arising out of the dialogue with Mr Robinson about the Equality Commission. You referred to the working party. Are you confident that, if there is proper consultation, that that will actually resolve the issue? I ask against the background that in the Financial Services Authority legislation, which although obviously macro-cosmic in economic terms by comparison with what we are talking about at the moment, the legislation is bringing together regulation in a number of different areas and a joint Committee of both Houses has been set up to look at the legislation before it actually comes forward. Do you see any virtue at all in there being parliamentary scrutiny in a sense post hoc on the setting up of the Equality Commission, given the somewhat heterogenous elements that go to make it up, or are you confident that the consultation in Northern Ireland will in fact deliver the required result?

  (Mr O'Brien) I suppose we will be in a better position to answer that question when we have seen the report of the working party, and as yet we have not. Certainly we were concerned because when the Secretary of State announced her intention to establish a working party, she stated that the working party would include within its membership, in addition to the existing equality agencies, representatives of the PAFT constituencies, the ones which were not covered by the legislation in particular—the gay community, people working in relation to age, and those bodies were not included in the working party ultimately. And there has been concern about the extent to which their concerns have been reflected and that has added further controversy in a sense to the point we were raising and further concerns about the process which has been adopted to date in relation to this decision. As I say, we would be in a better position to answer that when we see the report of the working party. In particular, we would be concerned because many aspects of the consultation which was held in relation to the White Paper have been ignored by Government, and we would be concerned to ensure that the views and concerns of the constituencies whom equality legislation and the statutory duty are designed in particular to protect are fully reflected. If that were not the case then we would be trying to seek what other measures were possible.

Mr McCabe

  453. What in your view is the relationship between fair employment issues and the wider question of the Peace Process itself?

  (Mr Cunningham) It has always been our very clear view that if there is going to be a lasting peace and if we are going to build peace then it has to be within a society that respects the rights of everyone and includes everyone. We would envisage an inclusive peace as one that addresses all issues of deprivation, marginalisation and exclusion. Certainly we would see that as being complemented by fair employment legislation, but also things like a Bill of Rights for example. Recently we held a conference in Belfast attended by the UN Human Rights Commissioner, and she very much endorsed our view when she said a society where equality is central is one that is enriched by the diversity of the different groups within it and only when there is equal respect and equality between these groups can we move forward together as a society. We would see fair employment as being one of the necessary tools. Our view is certainly that a peace process is one that is inclusive and addresses all aspects of diversity and provides legislative safeguards for those who feel they are being excluded from the process.
  (Mr O'Brien) Clearly the issue of religious discrimination and concerns people have within the community about religious discrimination are at the heart of the conflict. If people feel, regardless of the part of the community they come from, that there is a risk they are going to be discriminated against in some way, that is going to undermine the peace. I think this is one of the central issues and one of the issues that must be addressed to the satisfaction of the entire community.

  Mr McCabe: Thank you.


  454. You have now been giving evidence for almost two hours and I am therefore loathe to add further questions at the end of the day, but I hope you will treat it as a compliment that the evidence you have given has been thoroughly useful to us and therefore we want to make absolutely certain that we have total understanding. I have got one last substantive question which I will come to at the end which I feel again slightly loathe to ask because of what we have already subjected you to. I do have three supplementaries. First, when Mr Salter was asking you quite early on about affirmative action he said that affirmative action would contravene the merit principle. Do you agree with that?

  (Mr Fitzpatrick) Merit is definable in a whole range of ways. In any employment situation, you need to have someone who is suitable to perform the task, but it is perfectly open to an employer to say that there are a wide range of priorities which that employer has and in achieving fair participation, which is a duty really under the legislation, it has to be part of that equation and therefore in some situations there may be only one obvious person for the job, but as any one who has ever been involved in recruitment will know, very often a number of people are appointable. However, it may well be looking at it from one organisational point of view one person may be better qualified than the other but from another organisational point of view of creating a diverse workforce the second person may be the more appropriate person to appoint. It is only if you take a very narrow perception of merit that those sort of issues arise. Once you take a rounded view of what an organisation needs at any point in time, then the question of merit within that organisation takes on a different perspective.

  455. Thank you. Mr Donaldson gave one example through Lord Molyneaux of potential misidentification. If we were to move to self-identification of religious affiliation is there a potential for mischief-making by groups or individuals intentionally misidentifying themselves in order to weaken or wreck monitoring?

  (Mr Fitzpatrick) It is back to the same dilemma again. Since we are not proposing positive direct discrimination, a person misnaming themselves would not get any positive benefit for themselves out of misnaming themselves. As you said, the most that could be done is mischief-making. The alternative to that is employers starting to examine the community affiliation of their employees and that is something at this moment in time which we would be loathe to see. If something does not work through to behaviour in the hearts of certain individuals, then you would have to reconsider whether employers should have the power to re-examine for themselves the affiliation of community individuals, but it is not something we would wish to see for the time being.

  456. Finally in terms of supplementaries, I am afraid I cannot remember whether it occurred when you were speaking about the issue earlier on or whether it was in response to Mr Beggs, but you mentioned the issue of when the equality duty would come into effect. I just wanted to get something clear both about what the issue was and whether there was any problem that related to the issue.

  (Mr O'Brien) I think in the consultation document which the working party published they suggested that it had been suggested to them by civil servants that the statutory duty would only come into effect when the Equality Commission had issued guidelines to public authorities on the way in which they should develop their equality schemes. We would be extremely concerned if that led to delay because obviously, if it takes three years to develop the guidelines then it will be three years or in excess of three years before we have the statutory duty in force. Clearly this is not an area which is new to the vast bulk of public authorities because they have already had to operate PAFT and should already have experience of these matters and they should already be preparing their draft schemes at this point in time. We would be extremely concerned if there were any delay in this process, because that would be counter to the intentions of the legislation in our view and that would be our principal concern.

  457. Before I ask my last question can I just verify whether any of my colleagues has a supplementary question they want to raise before we close. It sounds as though we are moving towards a conclusion. You may regard, as I say, my final question to be unkind given everything you have said already, but do you have any view of what criteria our Committee should use for assessing the legislation and whether it has been effective?

  (Mr Fitzpatrick) I suppose at the end of the day we are saying that ten years on from the Fair Employment Act, and now a few months into the Fair Employment Order, that the best judge is the willingness of employers to audit and monitor themselves. In a sense, statutory duties are requiring an equality impact assessment of public authority functions which we believe includes their employment functions and procurement functions, as we have already said, but that ethos of moving beyond trying to protect themselves from a fair employment case into a situation where employers are genuinely monitoring themselves for inequalities in what they do and seeking to address them and then having the freedom to go a bit further in addressing them, that perhaps is the best judge of what is working in employment to redress inequality. What you can use in terms of statistics to show what is working -some of our discussions today suggest that it is extremely hard to know how useful they are. Perhaps processes on the ground are the best judge of whether the legislation is working or not.

  458. Thank you very much indeed. I have got no possible grounds for making the assumption that any of you will have read any of the other evidence that will have been given to us during the course of this inquiry but our colleague, Mr Livingstone (who is on the Committee but not present today) did preface one of his questions in the context of the 1989 legislation by saying when it was brought in, in 1989, he thought it was only being brought in as a sop to principles which were being advanced on the other side of the Atlantic but he was agreeably surprised that it had had as much impact as it had. I know I speak on behalf of the whole Committee when I express appreciation not only for the thoughtfulness of the views you submitted to us in advance but also for your patience and stamina in dealing with our questions today. I am also conscious that Tuesday morning is very much a working morning and therefore we have taken you away from other things you might have been doing and I express appreciation on behalf of the whole of the Committee for the time and trouble you have taken.

  (Mr O'Brien) I would like to thank you for the invitation and for having taken the time and trouble to listen to us. Thank you very much.

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