Examination of Witnesses (Questions 440
- 458)
TUESDAY 20 APRIL 1999
MR MARTIN
O'BRIEN, MR
BARRY FITZPATRICK
AND MR
TIM CUNNINGHAM
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.
Chairman
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.
Chairman
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.
| 
