Northern Ireland Affairs Committee - Minutes of EvidenceHC 51

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Oral Evidence

Taken before the Northern Ireland Affairs Committee

on Wednesday 5 June 2013

Members present:

Mr Laurence Robertson (Chair)

Mr David Anderson

Mr Joe Benton

Oliver Colvile

Mr Stephen Hepburn

Lady Hermon

Kate Hoey

Dr Alasdair McDonnell

Nigel Mills

Andrew Percy

David Simpson


Examination of Witnesses

Witnesses: Brian Gormally, Director, and Daniel Holder, Deputy Director, Committee on the Administration of Justice, gave evidence.

Q369 Chair: You are very welcome, gentlemen. Thank you for joining us. As you know, we are looking at the application of the Armed Forces Covenant, with particular reference to Northern Ireland. We are well on with our inquiry. We are very grateful to you for joining us. Would you like to make a very brief opening statement and perhaps introduce yourselves as well?

Brian Gormally: Yes, I have just a couple of words, Chairman. First of all, thanks very much for the invitation. It is a privilege to give oral evidence to the Committee. We have made a written submission, as you know, so I will not repeat that now. Let me just say a couple of things about the nature of our organisation. We are a human rights NGO and we are therefore interested in protecting the rights of all individual human beings, including members of the Armed Forces. The stance of a human rights organisation in Northern Ireland means that we are very committed to the human rights and equality framework, which underpins the whole peace process and was a fundamental part of the Belfast Good Friday Agreement. We, like the House of Lords, have said that the Northern Ireland Act is, in many ways, a constitutional document as far as Northern Ireland is concerned, and that includes Section 75. As an organisation, we would be very concerned to protect the framework of human rights and equality in Northern Ireland, and we really believe that we should not interfere with that framework without extremely good reason. That is the direction we are coming from in this matter.

Daniel Holder: I am Daniel Holder. I am also from CAJ and am Brian’s deputy. As Brian said, our starting point is the international human rights framework, including the rights to health and housing, and taking reasonable steps to address needs there. In essence, in terms of the issue around the legal framework and equalities issues, we do not think there is any real major conflict between dealing appropriately with the welfare, housing and health needs of service personnel with the current equalities framework, including most of the types of measures that would be envisaged under applying this particular Covenant. What would concern us, in relation to NHS waiting lists or social housing lists, is any move away from the concept of making decisions on the basis of objective need. I certainly would not want to see a shift towards placing a value judgement on the role of the forces, or service to the state being part of a criterion for those sorts of things. We would see as problematic any move away from objective social need, but the concept of objective social need itself is a way of ensuring that some of the health and housing issues of service personnel are dealt with and most of the measures of the Covenant do not appear to conflict with that.

Q370 Oliver Colvile: Section 75 creates a statutory duty for public authorities in Northern Ireland to have "due regard to the need to promote equality of opportunity" between certain groups. Does giving "due regard" to promoting equality thereby actually prevent a public authority from introducing a policy that gives special consideration to a particular group, such as the Armed Forces community?

Daniel Holder: In terms of dealing with this directly, it depends what you mean by "special consideration". Certainly, the framework of the Covenant and the step of dealing with disadvantage faced would not conflict; in fact, there would be positive duties to deal with elements of disadvantage faced by service personnel and others in relation to that. In relation to special consideration, you can divide that into two things. One thing would essentially be where you are looking at the particular needs of service personnel that are not actually shared by other groups in society. Equality of opportunity and equality of treatment are not about treating everyone the same when there are clear differences in their actual needs. There have been many measures brought in that are tailored to the specific needs of groups, which certainly would not conflict with either the human rights framework or the section 75 framework.

I know that section 75 has been singled out quite a lot in this debate, but in reality any problems would be with the broader framework of equalities and other legislation. The only area where there would be potential problems would be if special measures afforded more favourable treatment to a particular group on a basis other than objective need and if members of that group, say members of the forces, were predominantly from one or other of the equality categories-such as gender or religion-and a result of that more favourable treatment was then less favourable treatment to other groups within those categories. That is when you start to enter into the realm of potential indirect discrimination, and you could be vulnerable to challenges in relation to the policy. Clearly, the make-up of the Armed Forces within some of our equality legislation is different in Northern Ireland from Great Britain, but if the Armed Forces were predominantly male, equally those types of challenges could be brought in Great Britain under sex discrimination legislation.

Q371 Oliver Colvile: Have you any specific examples of where this might have happened?

Daniel Holder: In terms of challenges being brought?

Oliver Colvile: No, in terms of consideration of specialist groups.

Daniel Holder: To be honest with you, I could list section 75 examples and equality impact assessments where there have been. There are quite a lot of them, but they generally tend to be dependent on whether there is objective need. You could look at all sorts of policies, such as the Department of Agriculture and Rural Development’s antipoverty strategy, where you are not targeting the whole population, but are targeting rural populations. Now, while that may impact on some section 75 groups more than others, that is because they are in greater need and there is certainly no conflict with the duties there. We were examining, of late, some of the Department for Education’s policies. Some of their school admissions policies, a number of years ago, were up for debate, and there was talk of using free school meals as a criterion so that you would target less-well-off children as a category. Certainly, there should not be any conflict with section 75 in doing that. To give you an example of where the duties have been misconstrued, I do remember quite a lot of debate, initially, when the duties came out, in the name of section 75. For example, now that there is an equality of opportunity duty, should health trusts and others cease to fund women’s groups when they do not fund men’s groups? The answer to that, of course, is no, because there is an easily identified objective need and different needs within those groups. Therefore, it is perfectly consistent with the section 75 framework that you continue to provide particular and specialist support to those types of groups.

Q372 Mr Benton: The main thrust of this Committee’s inquiry is looking at the disparity in terms of the way the Covenant is applied to the exArmed Services in Northern Ireland, as opposed to what goes on elsewhere in the United Kingdom. That is the main thrust of the inquiry here. If I understood the last contribution by Mr Holder correctly, there should not be any reason why members of the Armed Services in Northern Ireland should be treated any differently, despite section 75. Let me give you an example. I do not know how housing is allocated by social housing providers in Northern Ireland. However, in England, Scotland and Wales there is a points system. The simple point I am trying to make is that, to be consistent with the challenge of the conflict between the two things, you could even interpret that as being in conflict: if you have a situation where you give priority to housing. Following on from your response, I was wondering what you see as the problems. What is the conflict in terms of human rights, as far as you are concerned?

Brian Gormally: As Daniel said, there is no conflict, so long as any social benefit in that sense is contributed on the basis of objective social need. If there is some advantage given to a particular group that has no connection with social need and is, in some sense, a value judgement on their profession or whatever, then that could be in conflict, in England as well as in Northern Ireland, with equality principles and legislation. In the example of housing allocation, yes, there is a points system in Northern Ireland, which is based on a whole raft of criteria in terms of objective social need. Looking at it, we cannot see any difficulty with answering the particular housing needs of exservicemen. Certainly, the necessity for a connection with Northern Ireland is answered by either service in or past residence in Northern Ireland. In terms of the allocation of points, for example, if somebody had to move out of service accommodation then they would be homeless and would get 50 or 70 points, which would see them fairly high up the housing waiting list, so there should not be any difficulty at all with meeting social needs.

The other point to make is that you have heard evidence from the charities working with servicemen saying that they do not see any gaps in Northern Ireland provision compared to British provision.

Q373 Nigel Mills: I may already have the answer, but, just to be clear, do you think that, when the Armed Forces Covenant says that there should be special consideration for the injured or the bereaved, not only does that conflict with section 75, it conflicts with basic equality rules across the UK, so there should not be any special consideration?

Brian Gormally: Do you mean special consideration about the bereavement and injury, or about the fact that they are a member of the Armed Forces?

Nigel Mills: I was quoting the phrase in the Armed Forces Covenant, which is, "Special consideration is appropriate in some cases, especially for those who have given most such as the injured and the bereaved."

Daniel Holder: In terms of objective need, there already is specific consideration of people who have disabilities and injuries, and there should be specific consideration in general of those who are bereaved, even in issues such as welfare reforms. We are not advocating for the bedroom tax in general, but the impact of that might be an issue that would negatively impact on the bereaved. There is a big difference between an objective measure, such as someone who is injured or bereaved, and just the fact that they are a member of the Armed Services being taken into account as a criterion for social housing. That would be when we get into problems with the equalities framework.

Q374 Nigel Mills: So you think that giving someone special consideration just because they were themselves, or are a relative of, a current or former member of the Armed Services would conflict with section 75?

Brian Gormally: It depends in what context you mean. For example, if the Ministry of Defence wishes to give special services to servicemen or exservicemen, there is no problem about that at all. It is just like saying, "We will increase the pensions of exservice personnel." Nobody could have any problem with that on equality grounds. However, if you say that somebody who has an injury that has been sustained in action, because they were a member of the Armed Services, should be treated, visàvis somebody with a similar injury, in a differential fashion on a basis other than clinical need, then I think you are conflicting with a whole lot of principles.

Nigel Mills: That is what I was trying to clarify.

Daniel Holder: It is where it would constitute less favourable treatment to someone else through the priority given to the individual.

Q375 Nigel Mills: So there are two key parts to the Armed Forces Covenant. One is that they should face no disadvantage compared to others. Do you think that is utterly redundant, seeing as that is covered by the law anyway?

Daniel Holder: I would say so.

Q376 Nigel Mills: And the second half, which suggests special consideration, you think is wrong because-

Brian Gormally: It depends how you interpret it. If you wish to interpret it as taking a decision, for example, whereby you are going to disadvantage somebody else with an injury by putting a member of the Armed Forces higher up the waiting list for an operation on some basis other than clinical need, then I do think you have a problem. I am not sure that it was the intention of the Armed Forces Covenant to discriminate against injured people.

Q377 David Simpson: I just really have a point of clarification. You will discover, gentlemen, that some of the questions may overlap. Forgive us for that, but section 75 is a major issue and has been raised a number of times. We have received conflicting evidence about the extent to which, if at all, section 75 is in conflict with the principles outlined in the Armed Forces Covenant. Can you give us a straight yes or no: is it in conflict?

Daniel Holder: I would go back to my first answer: I am sorry, but it is more complicated than that. It depends how you interpret this question of special consideration. If you interpret it as meeting the specific needs of Armed Forces personnel that are not shared by others, or specific programmes from them, then no. There are a lot of ifs and stages to go through. If it was interpreted in a manner whereby, effectively, more favourable treatment was given to Armed Services personnel on a basis that was not on objective need, that that then resulted in less favourable treatment of other persons, then there would be a case to answer in terms of indirect discrimination.

Q378 David Simpson: I am sorry for cutting across you. For a person coming home from Afghanistan or Iraq, who has lost two legs and an arm, are we saying to those people, "You do not deserve special treatment"?

Daniel Holder: It is not a question of special treatment.

Brian Gormally: The issue is what you say to the person who has lost their legs and arms in a car accident, if you say, "You deserve less favourable treatment." That is what is against the law. If you are not saying that, if you are saying that the Ministry of Defence is going to give special hospital care, as I understand it does, to people who have lost limbs in Afghanistan, then there is no difficulty with that because nobody is put at a disadvantage. But if you require the National Health Service, in its ordinary operations, to give a premium to people who have served in the forces, and some kind of favourable treatment, then you are, by that act, disfavouring somebody else. That is as clear as can be. There is no difficulty if service people’s employer or the Government, through the Ministry of Defence or whatever is relevant, wishes to give particular care and support to service people. The Aftercare Service in Northern Ireland for exmembers of the Royal Irish Rangers, for example, is a particularly funded aftercare service that other people do not have. There is no problem with that because you are not disadvantaging anybody by that.

Q379 Kate Hoey: So are you saying that the Military Covenant is not really worth it in Northern Ireland?

Brian Gormally: It is not for us to say how the Military Covenant is applied or not. All we are doing is saying that, on what I think is a common-sense interpretation of it in terms of meeting the special needs service people might have, there is no conflict with an equality and human rights framework, so long as it is based on objective need.

Daniel Holder: It is important to stress that most of the-

Kate Hoey: Is it okay in the way it is being implemented in Scotland and England?

Daniel Holder: This is an important issue because section 75 has been singled out a lot, and I am not quite sure why it has been section 75 rather than some of the other equality legislation in this issue. In terms of what section 75 is, it is very rare-in fact, I am not sure that it has ever been found that there has been a substantive violation of section 75, or that a policy has been found to be de facto incompatible with it. The enforcement mechanism would be an investigation by the Equality Commission and potential direction from them and the Secretary of State. It is different from something that could be found to be discriminatory in court.

Mostly, the section 75 duty is a policy appraisal tool. It involves conducting an equality impact assessment that will identify potential adverse impacts on groups. That is, essentially, its purpose. Most of the provisions envisaged under the Covenant are very unlikely at all to conflict and flag up the idea of an adverse impact. The provisions in relation to removing disadvantage impacts are something that could be positively encouraged under the section 75 framework. The provisions are for very special measures to meet the particular needs of service personnel that others do not share, such as postconflict trauma, although obviously there are other people in society who are victims of postconflict trauma beyond service personnel. It is only this issue in relation to more favourable treatment for service personnel on a basis that is not objective need that could impact on others and which could come into conflict and could come into the realm of indirect discrimination in general.

Now, challenges under equality legislation could come, but all section 75 would require the public authority to do would be to consider alternative policies and consider all mitigating measures in relation to the policy. We do not always see a very diligent implementation of section 75. Some of the discussions that have singled out section 75 as some sort of block to the Covenant being implemented are perhaps a little overdoing it.

Q380 David Simpson: Daniel, just listening to what you have said, I think it is a complete minefield. There is no straight answer to this really. When I listen to the legal terminology and jargon that you are coming out with-and I am not degrading it when I say that, by the way, because I have not a clue what you are talking about-it sounds to me like it is a minefield and therefore there is no straight answer here.

Brian Gormally: We are not experts in this, being based in Northern Ireland, but in some respects equality legislation in England and Wales has overtaken equality legislation in Northern Ireland. I would expect that, if the Armed Forces Covenant was being interpreted in a discriminatory manner in England and Wales, there would be legal challenges. I think it is wrong to single out section 75 as being something so peculiar to Northern Ireland that it is going to provide a particular block. Section 75, as I said at the very beginning, is very important; putting an equality duty on public authorities is one of the important elements of our peace settlement. However, I do not think that, in general terms, our equality legislation now is any more rigorous than it is in England and Wales.

Chair: We have a number of people queuing up to ask questions and we are very time-limited, so brevity on all sides please.

Q381 Oliver Colvile: I represent a naval garrison city, as you probably have read in your briefings. I am also the Vice-Chairman of the AllParty Parliamentary Group for the Armed Forces, with special responsibility for the Royal Marines. So, surprisingly, I actually want to stand up for the military and those people who have ended up potentially putting their lives at risk on the front line in defence of the United Kingdom and our country. I therefore want to make sure that we recognise that the military have done a brilliant job defending our country’s future and defending us as well. Do you think there is a case where the Northern Ireland Executive should be able to say, "This is a far too sensitive issue for us to deal with and we therefore need to refer it back to the Ministry of Defence for them to make provision," or do you think that that would be, frankly, unacceptable?

Brian Gormally: It is not a question of the Northern Ireland Executive saying that this is a very sensitive issue. Of course issues to do with the Armed Forces have a certain sensitivity in Northern Ireland. It is different and you do not need me to tell you about that. In terms of what is being proposed, I do not see that there is any reason for the Northern Ireland Executive to have any qualms about meeting the objective needs of service people. I am sure that you are not implying that the service people who have given service to the country would want to have particular advantage over other people who were suffering misfortune-physical or mental injury, or any other misfortune in life-as that would be contrary to the ethos of service.

Daniel Holder: Plus, it seems that most provisions under the Covenant can be and already are being implemented in relation to health, housing and removing barriers, so they are already being implemented in a way that appears satisfactory from the evidence this Committee has received to date.

Q382 Lady Hermon: Actually, the question I was set to ask has been overtaken by events, so this is an unscripted question. I actually find the evidence very enlightening, and this is prompted by your reply, Mr Holder, about section 75 itself and your surprise, which was very genuinely conveyed, that so much of the evidence given to this Committee in the past has actually focused on section 75 as being some huge hurdle or problem to implementation of the Military Covenant. You are saying, quite clearly, that if it were better understood, section 75 does not do that at all. Am I correct?

Daniel Holder: Yes, in terms of most of the application of the Covenant, particularly removing barriers, and also specific consideration. If we defer, as we already do, to the international human rights framework, the UK is a signatory to the United Nations covenant on economic and social rights, which has provisions for a right to health and housing of all persons, and obliges the state to take reasonable steps to meet the identified housing and health needs of different groups in society. That is not justiciable at the moment. We have argued it should be through a Bill of Rights, but that is already the treatybased commitment of the state. If there is evidence that that was not being realised and that particular groups, such as the Armed Forces, were facing significant disadvantage, and it was not remedying that, then perhaps that is an issue that would have to be dealt with. At the moment, it seems that the provisions, in terms of removing disadvantage and addressing the particular needs of groups, can be met through the framework and through section 75. In fact, some of them would be positively encouraged. Any measure that is aimed at targeting objective need would be positively encouraged under the equalities framework.

Q383 Lady Hermon: Why do you think it is that there seems to be a misunderstanding or lack of understanding about section 75-I am not just pointing the finger at the Northern Ireland Executive here-within Departments in the Northern Ireland Assembly? Why do you think that is?

Daniel Holder: I have read some of the evidence where it says that civil servants have said that this cannot be implemented, but I have not actually seen an equality impact assessment that has taken place that has then led to a policy change that has restricted the application of the Covenant. I am yet to actually see that, so I am not sure to what extent it has taken place. Reading the evidence of the Northern Ireland Health and Housing Ministers, who gave evidence to the Committee, they seemed to be under the impression that the issue around ensuring there were no unnecessary barriers to health and housing provision was being dealt with in a satisfactory way. Again, the issue of section 75 was only raised in relation to preferential treatment outside of objective need, which is only one potential interpretation of the Covenant.

Q384 Lady Hermon: I have a very quick question. As a matter of curiosity, is CAJ often or ever invited to give briefings to the Executive or the Assembly?

Daniel Holder: On section 75, we most recently gave a submission to the Ad Hoc Committee on Conformity with Equality Requirements in relation to the Welfare Reform Bill, which actually sets out in detail the jurisprudence around what "due regard" means and what type of obligation section 75 entails.

Q385 Dr McDonnell: Thank you very much, gentlemen. We have already covered a lot of the ground, and you are very welcome. There are just a couple of very simple points I want to tease out, because a lot of the ground has been covered. Two issues jumped out of a lot of the evidence. No. 1 was housing and access to housing. While, Mr Gormally, I respect the advice you gave us, the evidence we were getting was saying that somebody who was being demobbed, retiring or withdrawing from the Armed Forces in England and wanted to go back to live in Northern Ireland was at a significant disadvantage in terms of housing access. Yes, they could make themselves homeless, but if you have a wife and three children, that is a bit more complicated. That was the one point that has been put to us.

The second point was on health issues. While there would be support, and it would appear to me from the outside that there are a lot more health issues-stress, mental breakdown or whatever-while there was reasonable primary care and preprimary care, once it got to the point that somebody needed psychiatric care, they had to be shipped out of the country as there was no proper, adequate secondary level of care. In that context, your written evidence made the suggestion of conducting an assessment of the housing and health needs of service personnel. What would you like, hope or expect to emerge out of that assessment?

Brian Gormally: On the issue of housing disadvantage, as I understand it, there is not a difficulty with the criterion of an association with Northern Ireland regarding the Housing Executive, so the fact that soldiers and other service personnel may be mobile and sent about different places in the UK and abroad does not sever the link they have with Northern Ireland. I do not want to go into the Housing Executive points allocation system, and I do not have it in front of me, but, for example, the maximum number of points you can get over a period of five years for being on a waiting list is five. Being homeless, which the service person in your example would be, gives you 70. We would have to look at a specific example if someone was saying that they had been disadvantaged. I have not seen any specific examples referred to in the evidence, but I doubt it. It seems to me that the allocation system is sufficiently flexible to deal with exservice personnel.

Daniel Holder: In terms of the health care issue, there could be someone who has a very specific service need that is not being met for people with particular mental health or trauma issues related to conflict. That could be for service personnel, but also, in the context of the Northern Ireland conflict, for others who have suffered trauma throughout the conflict. We drew attention in our written evidence to the fact that there is already a provision in terms of residency requirements for health care within the health visitor regulations that exempt service personnel from meeting residency requirements, so that is there.

To go on to the needs assessment issue, because issues were being raised about what the objective need of service people was at the initiation of the inquiry, that seemed to be a sensible way of taking things forward. We have listened to the evidence the Committee has been given by others in the welfare organisations and it seemed to indicate that perhaps some of the issues we had anticipated were not as severe as we might have originally thought they were. For example, in terms of what the needs assessment could look at, if there was a need to look into this issue further, on top of the evidence that has already been given, the impacts of welfare reform might be something that will impact on service personnel as well as other groups in terms of mental health assessments and cuts in relation to disability benefits. That might be something that wants to be monitored and assessed over time to see if there is a specific impact on service personnel and others in other situations.

Q386 Mr Benton: Can I just refer to the Department of Health, Social Services and Public Safety in Northern Ireland? They have published a protocol, which you will be familiar with, ensuring equitable access to health and social care for the Armed Services. I would like to ask you three points on this. The first one is, do you support the measure as one that is designed to enhance equality of access to public services? Would you welcome similar action by other Departments in the Northern Ireland Executive? Finally, are there any other ways the Northern Ireland Executive could take action on this particular issue within the equality framework as it exists in Northern Ireland?

Daniel Holder: Yes, of course we welcome equality of access for all persons, including service personnel, on health services, and this is quite a sensible way to do it, set out within the DHSSPS protocol. There are concrete actions in there and results in health service waiting lists that may represent the specific issue of the mobility of service personnel from one area to another, so you do not end up at the back of the queue if you move to Northern Ireland from somewhere else. That seems eminently reasonable. Obviously, consideration would have to be given to other groups in a similar situation and whether that is also afforded to them. All Departments have duties under the equalities framework to afford equality of opportunity, under the human rights framework, and to take reasonable steps to ensure they meet the health and housing needs and so on of particular groups. You mentioned other issues and initiatives. We will go back to an issue that is very important to us in terms of the full implementation of the Belfast Agreement and its subsequent agreements, which is that the way to ensure that the rights to health and housing are set up on a permanent basis is to enshrine them within a justiciable Bill of Rights, which is not currently the case.

Brian Gormally: Can I just give an example? You are asking about other actions. This is not a prescriptive example, but it just shows how differential action can help redress inequalities. Somebody mentioned the lack of a residential trauma unit for exservice personnel within Northern Ireland. I think that people in Northern Ireland go to Scotland. Such a provision would be entirely reasonable because it is not always reasonable to say that trauma victims should go to a generalist service. Sometimes they need to go where they feel safe and welcome, which is why the Executive and the European Union fund a whole range of victims’ groups to provide services to different categories of victim from different sides of the community and some crosscommunity. We have the Disabled Police Officers Association, for example, and the Aftercare Service for the RIR, as I mentioned earlier. All of those are measures to redress particular aspects of need. As Daniel has indicated, they are not only reasonable under equality frameworks, but actually are positively promoted in order to redress actual disadvantage.

Q387 Mr Benton: I do not know about other Members of the Committee, but there is still some confusion in my mind as to how a conflict exists between section 75 and the Covenant. The allegation, whether founded or not, is that there is a differential between the treatment of exArmed Services people in Northern Ireland compared with other places in the UK. At the risk of repetition, I just want to make it perfectly clear in my own mind that, in your opinion, there should not be any room for confusion in terms of equality and rights as far as section 75 is concerned. If I am interpreting your responses correctly, I would like to ask either of you now, what, in your opinion, is causing the differential, if it exists?

Brian Gormally: The point is whether it exists. We need to see evidence that there is a differential in treatment in practice between exservice personnel or serving members of the Armed Services in England, Wales and Scotland, and in Northern Ireland. As I understood the evidence from the Armed Services charities, they said that there are no gaps that they can see. If somebody wants to do the process, which Daniel was talking about a few moments ago, of an objective assessment of the particular needs of service personnel in Northern Ireland and compare that to a similarly objective assessment in other parts of the UK, and can identify differentials, then that is an issue that could be looked at, but we cannot really speculate on what action might be needed to redress a speculative differential.

Daniel Holder: Can we just be clear with an example here? From the evidence we have seen, there is certainly no conflict at present between the way the Armed Forces Covenant is being implemented and section 75 and other equality duties. Now, there could hypothetically be circumstances where there was a conflict with equalities legislation. To give one very obvious example, if there was an amendment to the Housing Executive points scheme, where people were given points not just on the basis of objective need, including objective need that is linked to injuries or other things, but purely on the basis of their being a member of the Armed Forces, then there could be a conflict between the equalities legislation and that particular interpretation of the Covenant.

Now, in terms of section 75 being the main blockage to the implementation of the Covenant in that way, that is not really the case. Yes, it may be flagged up in policy appraisal, but you are more likely to get challenges under the general equalities legislation. Indeed, in reality, the main issue that would be a blockage to giving more favourable treatment in that way would be that, postSt Andrews Agreement, major decisions like that, or legislation, that are not within the Programme for Government, require a consensus by the Executive. That, in a sense, is where it could not be implemented. It is not the section 75 duties that would be the main vehicle in that type of mechanism. Again, if the Covenant sticks to alleviating disadvantage that service personnel face and providing special measures that relate to their particular circumstances, rather than providing more favourable treatment that does not relate to particular circumstances, then that conflict will not arise.

Q388 Mr Anderson: Part of the problem we have as Parliamentarians is that we can go to references of what local authorities have done, where they have Covenant champions, or we can go to the devolved Administrations, and we can pick up reports saying, "This is what we have done to fulfil our remit under the Armed Forces Covenant." We cannot do that in Northern Ireland because we are told by Northern Ireland people, "We cannot produce this for you because of section 75." Is that correct?

Daniel Holder: No. I think that what has happened, in reading through some of the other evidence- I presume what you are referring to is the fact that the devolved Administration has not input material that would then be in the annual report put before Parliament. That will not be because of section 75. That will be because there is not consensus within the Executive partners to producing the content of the report. We have come across this in our human rights work in many issues. There have been a number of treaty reports that the Foreign and Commonwealth Office has submitted to the Council of Europe and the United Nations that have had, metaphorically speaking, lots of blank pages in them, because of the Northern Ireland Executive. The most recent example is the report to the Committee of Experts of the Council of Europe on the European Charter for Regional or Minority Languages. There is no information in relation to devolved matters in Northern Ireland in that report. We have yet to be given a formal explanation for that, but on a previous occasion the explanation was that there was not consensus between the First Minister and the deputy First Minister as to what the content of that report to the Council of Europe would be. That, therefore, is the likely reason why there are missing pages and, hence, missing chapters in the report to Parliament. In that circumstance, because it engages treaty compliance, there is an argument that it is a default of international obligations. It is obviously more difficult to make that argument in terms of the Covenant, which is set out in legislation, rather than in an international treaty.

Q389 Mr Anderson: In your own evidence, you specifically raised concerns about the possibility of equality duties being misrepresented. Can you expand on that, or do you think that you have already covered it?

Daniel Holder: That does not actually relate to the debates in the Committee, as our written evidence predated all of that, but it relates to a debate that was in the House back in November 2012. There was exclusively a focus on section 75 as being a special problem that prevented the application of the Covenant. I think that the issue is somewhat more complex than that, as we have been through in detail already today.

Q390 Mr Anderson: So in terms of what we have heard as a Committee-this is a big question-by and large, have we been misled or misrepresented by other people or has it just been misunderstood?

Daniel Holder: No, in terms of the Health and Housing Ministers, I think there was a reasonable appraisal of what section 75 duties entail. There were some microissues among witnesses. I think there was a statement that 50:50 recruitment to the police would necessitate an exemption from section 75. I am not sure that that is technically correct; I think it would require an exemption from other fair employment legislation. It is more the focus that has been given to that particular legislative provision, rather than the broader equality framework and the broader context of power sharing, which requires Executive agreement for regulations and major policy changes that may be more relevant to this debate than purely looking at section 75, which is compatible with most of the things that would come out of the Covenant and most of the interpretation of the Covenant in relation to welfare issues.

Q391 Mr Anderson: Is it being used as a red herring?

Daniel Holder: I mustn’t speculate.

Brian Gormally: We do not think that it is a blockage to any sensible interpretation of the Armed Forces Covenant in that sense. The reporting issues-and it is only the report that is in legislation; the Covenant itself does not have any legislative power-are probably to do with, as Daniel intimated, lack of consensus at Stormont rather than any problems with section 75.

Daniel Holder: In terms of section 75, as Brian said in his opening remarks, we would be very much against the opening up and anything that would be regressive to what is quite a key cornerstone of the peace agreement. The first debate I mentioned followed the idea of a legislative exemption to section 75, which could undermine its purpose. Also, there has been a suggestion made that the Armed Forces should be added as a category. Clearly, no case has been made for that or for them being a disadvantaged group and it being a protected characteristic. Equally, that would not afford preferential treatment anyway, because it is a duty about equality of opportunity, so it would not serve that type of purpose, and it would risk giving undue weight to considerations where there is not objective need. We certainly would not want any regression in an equality duty that is very dear and very important to us.

Chair: We are out of time. Thank you very much indeed for joining us today and for your evidence. It has been very useful to us. Thank you very much.

Brian Gormally: Thank you for the opportunity.

Examination of Witnesses

Witnesses: Evelyn Collins CBE, Chief Executive, and Jacqueline McKee, Director of Advice and Compliance, Equality Commission for Northern Ireland, gave evidence.

Q392 Chair: I think you heard my introduction, so I will not go through it again. Thank you very much indeed for joining us. Would you like to make very brief opening statements and introduce yourselves?

Evelyn Collins: Thank you very much, Chairman, and thank you for the invite. We are very pleased to provide evidence for you this afternoon, in addition to the written submission we made. I am Evelyn Collins, Chief Executive of the Equality Commission, accompanied by Jacqueline McKee, who is Director of Advice and Compliance. Our submission, as you know, really does concern the application of equality laws in Northern Ireland and how they relate to the Armed Forces Covenant. I am happy to say a few words about section 75, by way of introduction. We in the Equality Commission have particular responsibilities for providing advice to public authorities in respect of the section 75 duties, agreeing schemes that public authorities have to have to fulfil their section 75 duties and, indeed, investigating potential breaches of the duties. Would it be helpful if I started off with a few minutes on that, or would you rather we go to questions?

Chair: Given the time shortage, it might be best if we get to the questions.

Evelyn Collins: We are in your hands.

Q393 Oliver Colvile: Do you think there are any areas of the Covenant that could be implemented without coming into conflict with equality legislation in Northern Ireland? Are there matters that are necessarily in conflict with the equality legislation?

Evelyn Collins: As we understand it, the central principle of the Armed Forces Covenant is that those who have served in the Armed Forces and their families should face no disadvantage compared to other citizens. There is no conflict with equalities legislation in relation to that. In respect of the legislation in the Northern Ireland Act, which sets out the section 75 duties, we do not see any conflict with the Armed Forces Covenant in respect of that. The section 75 duties are a duty for public authorities, including each Government Department, to, on the one hand, pay due regard to the need to promote equality of opportunity across a range of named categories, and also to pay regard to the desirability of promoting good relations across three categories, so it is a policy mainstreaming tool and public authorities are obliged to have an equality scheme. As I mentioned, we have a role in approving equality schemes. They are also obliged, when considering policies or introducing policies, to consider the impact that those policies will have on those groups. Therefore, we do not see any conflict with the section 75 duties in Northern Ireland with policies that relate to the Armed Forces.

We have also set out in our submission that, separately from the section 75 duties in Northern Ireland, there is an anti-discrimination legislation framework. That covers, separately, issues relating to discrimination on grounds of religion, political opinion, race, gender and so on. The majority of the aspects of the Covenant do not conflict with the provisions of the various anti-discrimination legislation either. It is only when the potential for preferential treatment comes into play for members of the Armed Forces that an issue about indirect discrimination may arise. It is a "may arise". In that case, whether it is a Government Department or indeed a private sector employer, issues of justification come into play, so there are examples where public authorities can justify different treatment for one of the protected categories under the anti-discrimination legislation.

Q394 Lady Hermon: It is very nice to see both of you here this afternoon. Could I just ask for a point of clarification? I believe that you were present when we received evidence from the previous witnesses. Could I just ask whether in fact you are confirming what the Committee on the Administration of Justice’s two representatives told us earlier: that section 75, which has been given in various evidence-taking sessions of this Committee as the reason why there is difficulty implementing the Armed Forces Covenant in Northern Ireland, is not the case.

Evelyn Collins: We do not see that there is a conflict between the Armed Forces Covenant and the application of the section 75 duties, so that is right.

Q395 Lady Hermon: So you are confirming that you agree with the evidence of CAJ?

Evelyn Collins: Yes. Section 75 itself is a policy mainstreaming tool. It obliges public authorities to pay due regard to the need to promote equality of opportunity and regard for the desirability of promoting good relations. It does not dictate, mandate or prohibit any particular policy provision or policy on the part of any public authority. There is a set of procedures that public authorities need to go through to ensure they are in compliance with their section 75 duties, but it does not dictate one particular policy outcome compared to another. It is a policy mainstreaming tool.

It is different from the anti-discrimination legislation, which I was trying to explain, which creates a set of rights for individuals not to be discriminated against, whether directly or indirectly, and where there is a potential, if preferential treatment is given, for an indirect issues claim to arise, considerations of justification can come into play. One of the difficulties on reading the evidence and the application of the consideration you are giving to this with the anti-discrimination legislation, or indeed the section 75 legislation, is that being a member of the Armed Forces, or a former member of the Armed Forces, is not a protected category for the purposes of the legislation itself.

Let me take an example under gender discrimination legislation. Provisions for positive action to encourage more women into senior management are perfectly lawful, because they are a protected category under the anti-discrimination legislation and positive action provisions are permitted under the gender equality legislation. Because the Armed Forces are not a protected category under the anti-discrimination legislation, but may operate to advantage people with one characteristic more than another-maybe men over women-then the potential for justification arises. It is at that point that public authorities can have justification arguments brought into the equation. As an example: there are plenty of differential provisions for people who are unemployed, whether it is concessionary access to leisure centres, special training measures or special encouragement of employability measures. There is an argument that those who comprise unemployed people might be more from one community than another, or more men than women, but there is a broad social policy justification that comes into play. The social policy justification is legitimate and proportionate to meet an end of encouraging more unemployed people to seek work or find work. Does that help in explaining the separation between the section 75 duties, which are a mainstreaming tool, and the anti-discrimination legislation framework?

Lady Hermon: That is very helpful, thank you.

Chair: Just before I bring Nigel in, it might be that the Chairman is getting old or that the room is very large, but I cannot necessarily hear. I am sat furthest away, as well.

Oliver Colvile: It is my age, too.

Q396 Nigel Mills: These are interesting issues to tease out, because they strike me as being two parts to the Armed Forces Covenant. One is saying that you cannot give worse treatment to people in the Armed Forces. Are you saying that that is redundant or are you saying that, because the Armed Forces are not a protected group in existing equalities law, that if we did not have that provision, in theory, you could discriminate against people just because they are in the Armed Forces?

Evelyn Collins: I said they are not a specific group protected under equality laws. I do not think that anybody has suggested that to you, and certainly we would not be suggesting that to you. Certainly, Army personnel and exArmy personnel have exactly the same protections of all the provisions of existing equality law in Northern Ireland. If there was a concern that they were being discriminated against on the ground of gender, race or religion in Northern Ireland, they would have the same access to equality laws as everybody else in Northern Ireland.

Q397 Nigel Mills: If they were being discriminated against just because they were or had been a member of the Armed Forces, would that be-

Evelyn Collins: It is not a protected category in terms of anti-discrimination law, nor is it in Britain.

Q398 Nigel Mills: So the Armed Forces Covenant, to the extent it is legally enforceable, which is dubious, actually does give a protection that might be necessary and is not already there in equality law?

Evelyn Collins: It certainly provides a policy framework, which sets out the clear intent of Government that people who have served or are serving deserve recognition and deserve not to be treated any differently because of their service. That is a very important provision, obviously.

Q399 Nigel Mills: You mentioned giving the unemployed discounted access to a leisure centre. If a leisure centre in Northern Ireland gave discounted access to a member of the Armed Forces, and I challenged that, saying, "That is unfair on me because they are a fit adult, so why am I paying more than them?" do you think I would have a case?

Evelyn Collins: You would have to frame the case, saying it was indirect discrimination on the basis of one of the grounds that is protected by anti-discrimination legislation. There are more men serving in the Army than women, so someone could say that that is indirectly discriminatory because, as a woman, they are less likely to serve in the Armed Services and therefore there is an indirect discrimination claim. The leisure centre or public authority that funds the leisure centre would be saying that, as with the unemployed example, there is a broad justification in the interest of the country as a whole that we give special treatment to this particular category, even if it has balance one way or the other that is differential.

Q400 Mr Benton: Welcome. I think you might have answered the question I was going to ask. I am fascinated by this phrase, "due regard". I think you might have covered it in your previous answer, but I wanted to ask, in terms of equality and your organisation, can you elaborate a bit further on what you mean by "due regard"? I heard your response before, but let me pose a supplementary to you, in terms of equality. Supposing it was proven that a member or exmember of the services in Northern Ireland was discriminated against compared with his fellow soldiers and ex-soldiers in England, Scotland and Wales. What would "due regard" mean then, in terms of your Commission?

Evelyn Collins: The "due regard" is applicable in relation to the section 75 duties, where public authorities have to give due regard. As I said earlier, it is not a duty to achieve a particular result. Where we look for guidance on what "due regard" means, it is case law, primarily from Britain and around the British duties, which are formulated slightly differently from the duties in Northern Ireland, although the general principles apply: that they are a mainstreaming tool. It is a duty to take certain factors into account. Due regard means giving the issue the level and depth of consideration that is appropriate in the circumstances, and public authorities are of course entitled to take other factors into account in reaching any decision. The duties themselves and the due regard do not necessarily apply to the act of discrimination that you are talking about. That would have to come under the anti-discrimination legislation.

Q401 Mr Benton: Would your organisation take action if it became-

Evelyn Collins: If it was an issue that was uncovered through a public authority looking at an equality impact assessment, for example, we would obviously be advising the public authority on how to conduct their equality impact assessment properly to ensure that those categories listed in the section 75 duties are properly considered. For an individual action, simply by being a member of the Armed Forces, there is no provision under the anti-discrimination legislation to mount such a case. So it would be, as I was saying, an indirect discrimination claim based on there being proportionately more or less of a particular category engaged.

Q402 Mr Benton: It is the anxiety that is created through this conflict that this Committee is concerned about. At the end of the day, fundamentally, where we are all coming from is that we cannot understand why an ex-serviceman in Northern Ireland-if it is substantiated-is being treated differently from other United Kingdom citizens. I am still not very much clearer about this conflict and how it is coming about. The evidence we have heard so far, to me, is conflicting. On the one hand, we are being told that there should not be any difficulty about it, yet we have evidence from other sources to say that it is different and they have found sources, so in trying to search for a solution and get equality for every UK citizen, it is a bit problematic. I am not being critical of anyone, but having due regard is not fair and not substantive enough. It is not solid enough. It just means that they will give it regard and do nothing about it.

Evelyn Collins: As I was saying, the section 75 duties, which oblige public authorities to give due regard, do not dictate, prohibit or mandate any particular policy position. I read an answer to a parliamentary question from a few weeks ago in the House of Lords, where the Ministry of Defence representative said that, as far as they were concerned, 90% of the Covenant was being fully applied in Northern Ireland. It may be formulated slightly differently or articulated slightly differently, because of the particular sensitivities in Northern Ireland, but as you heard in the previous evidence there is not much evidence of differential treatment for those from the exservice personnel in Northern Ireland and some specific measures are also in place there.

Q403 Oliver Colvile: As my colleague has said, we have had very conflicting messages during the course of this inquiry. Do you think that current legislation is clear enough to ensure that there will not be some form of judicial review? It seems to my mind that if this carries on-having these conflicting views-then there may be a judicial review where someone feels they have not actually been treated in accord with the Armed Forces Covenant?

Evelyn Collins: I had not thought about the avenue of judicial review before in relation to this. There is a job of work to be done to make sure that all public authorities are fully clear about the obligations they have under section 75 and how they apply to all policies. That is an important point. I am not sure whether I have sufficiently thought through whether someone has access under a judicial review to give a proper answer to that. The grounds for judicial review in terms of being reasonable, proportionate and so on would need to be considered.

Q404 Mr Anderson: What we are basically saying is that your remit is to make sure that nobody is disadvantaged, but also that nobody is possibly advantaged.

Evelyn Collins: Our remit is, in respect of section 75, to provide advice to public authorities and others on the duties. Our remit under the anti-discrimination legislation, of which there are several main pieces in Northern Ireland, is to both provide advice and assistance to those who have responsibilities under legislation, and advice, and sometimes legal assistance, to those who want to take cases under discrimination legislation.

Q405 Mr Anderson: Are you aware of any cases where public authorities have given special advantage to certain groups and, if so, how were they justified?

Evelyn Collins: I mentioned that provisions for the unemployed were not uncommon.

Q406 Mr Anderson: Would that happen over the whole of the United Kingdom?

Evelyn Collins: Yes.

Q407 Mr Anderson: Specifically in Northern Ireland, are there any particular groups that have been given special advantage?

Evelyn Collins: That is the main one I can think of. There are also positive action provisions under each of the anti-discrimination pieces of legislation, as I mentioned, which would allow special provision to be made for protected groups under the anti-discrimination legislation. The unemployed is the one I think is most relevant.

Q408 Mr Anderson: If there was a policy proposal that sought to implement a particular aspect of the Covenant, what would your role be in doing that?

Evelyn Collins: It would be to advise the individual public authority that was thinking about it, whether it was the Department of Health or the Department for Social Development. I see in the Department for Social Development’s evidence to you, it talked not so much about section 75, but about the provisions of the Fair Employment and Treatment Order as being an important consideration for it in respect of how it manages housing allocation. Our job would be to advise the individual public authorities around how they comply with their duties.

Q409 Mr Anderson: Would it be your role to go to them or would they have to come to you?

Evelyn Collins: It can and does work both ways.

Q410 David Simpson: You are very welcome, ladies. So far it has been very agreeable in relation to the evidence, but body language talks a lot. When we were receiving evidence from the previous gentlemen, we saw shaking of the heads and disagreement. We have not reached that point yet, so we may reach it before the end.

Evelyn Collins: Me shaking my head?

David Simpson: Yes, it seemed to be in disagreement with some of the evidence that had been given. We may get to that point within the questions.

Chair: I think we can only refer to those taking part in the meeting.

Evelyn Collins: I shall have to watch my body language.

David Simpson: We may get to that, because we like a bit of spontaneous activity. My question again could overlap on some of the issues. The Armed Forces Covenant calls primarily for promoting equality of opportunity for members of the Armed Forces community as compared to other citizens. I presume you would agree with that legitimate claim, with no difficulty at all?

Evelyn Collins: Yes.

Q411 David Simpson: Special treatment is called for only in cases where service personnel are injured or bereaved as proper return for their sacrifice. Is there a case to be made that this is a legitimate aim that merits special consideration?

Evelyn Collins: That is what I was saying earlier about the issue of legitimate aim. I am sorry if I sound laborious on this.

David Simpson: It is good to get clarification.

Evelyn Collins: Going to the anti-discrimination legislation, as I have explained, being in the Army or formerly in the Army is not a protected category for the purposes of the anti-discrimination legislation. Where it might bite is if there is differential, such as more Catholics than Protestants, or more Protestants than Catholics, or more men than women. Then a potential indirect discrimination case might arise in respect of that preferential treatment being given or offered. The case then becomes whether that can be justified. The test for justification is, is it a proportionate means of achieving a legitimate aim? There is case law about what that might look like in terms of gender or whatever. I am unaware of any case law where service in the Armed Forces has been considered. In a broader social policy context, as I said in relation to unemployment, where there is a general social policy aim to encourage more people to get employability and jobs, you could certainly imagine that a case could be made that having special treatment because you were in the Armed Services was a legitimate aim. As far as I am aware, it has been untested under the anti-discrimination legislation as an indirect discrimination provision.

Q412 Lady Hermon: This is just on the foot of your reply to my colleague, Mr Simpson, and also to Mr Anderson’s reply. It is very clear from the evidence we have received this afternoon that this is a complex area of law. It is general equality provisions and it is, on top of that, section 75. Forgive me if I have misquoted or taken down the phrase incorrectly, but I think it was said that there is an important job of work to be done-not just a job of work, but an important job of work-in relation to public authorities and public bodies understanding their obligations under section 75. Then, in reply to Mr Anderson, having made that point-which we have all accepted and been persuaded that there is a large job of work to be done-you said that it works in both directions-sometimes the public authority goes to you and sometimes you give advice. Surely, in light of the confusion that has been highlighted to this Committee in session after session about the impact of section 75, would it not be enormously useful for the Equality Commission to raise its profile? There is an enormous amount of good work that is done silently, without a song and dance, promoting equality. Would it not be useful if that important job of work was actually taken back to the Equality Commission and that work began now, explaining what the implementation of the Military Covenant means to all public authorities?

Evelyn Collins: Certainly in our preparations for this, in the written evidence and so on, we thought that there is work to be done with particular people. We have had initial discussions with those to seek to explain that our view is that section 75 is not a barrier to the introduction or implementation of the Armed Forces Covenant.

Q413 Lady Hermon: You have started that job of work?

Evelyn Collins: Yes.

Q414 Lady Hermon: Have you started with the Executive? I would suggest that first.

Evelyn Collins: No, we have not yet had a direct conversation with the Executive as a whole. We have been speaking initially to individual Departments.

Q415 Dr McDonnell: Thank you very much. You are very welcome. Thank you for the evidence so far. There were a number of specific interventions that were mentioned in earlier evidence in our inquiry that would improve the quality of life for the Armed Forces community in Northern Ireland. These included, for instance-and these are not comprehensive-the establishment of a onestop shop for exservice personnel to access advice and support when they were in difficulties and improved priority for social housing. There was also mention of a need for improved access to IVF treatment for those who may have been injured and might have difficulty conceiving normally. Do you have any views on this? Would you like to comment on some of those points?

Evelyn Collins: We cannot see that a onestop shop would have any difficulty in the Northern Ireland context. It makes sense to have a place where people can go to get advice and assistance about what provision there is in Northern Ireland, so I cannot see how that would conflict with the anti-discrimination legislation or section 75. In respect of housing, I understood from the evidence given by the DSD to you that they are looking at what can be done. We have obviously looked ourselves at where issues in relation to homelessness for former serving personnel might come into play. I understand that there is a review going on and that requests have been made that that will look at what special provision can be made. We would be happy to make a comment to that review.

In respect of IVF, it was interesting to me, when preparing for this, that there was a difference in Northern Ireland generally compared to GB about the number of treatments you can have. That is something of interest to us. Certainly, where there is a legitimate reason, a legitimate aim can be put forward for a particular treatment. I do not see that there is any difficulty.

Q416 Dr McDonnell: Have you yourselves ever undertaken any investigation relating to services for Armed Forces in Northern Ireland, either independently, autonomously or at the request of the Northern Ireland Executive?

Evelyn Collins: No, we have not.

Q417 Andrew Percy: The previous witnesses seemed to be suggesting, implying or in fact explicitly saying that there was an overemphasis on section 75. They actually drew out the broader equalities legislation applying to the UK generally. I am just wondering what your view is on whether or not section 75 places any stricter requirements or burdens on Northern Ireland than the Equality Act 2010 does to the rest of the UK.

Evelyn Collins: The GB duties are slightly differently formulated, as I said. I will not repeat the section 75 duties; you have heard those on a number of occasions this afternoon. In GB, the duties are on public authorities to eliminate discrimination, to advance equality of opportunity and to foster good relations, so they are more broadly formulated. The provisions that apply in schedule 9 of the Northern Ireland Act, which relate to equality schemes and our role in that, do not apply in Britain. The general principles are the same. Public authorities need to pay due regard or regard to it, so I do not see any particular differences in relation to that. What I and the Equality Commission feel very strongly about is that the Equality Act 2010 makes a provision in relation to a number of areas, which improve the standard of rights for people in Great Britain compared to Northern Ireland, in particular in respect of disability, age, in the provision of goods and services, and aspects of the race legislation and the gender legislation. It is, and I would hope it would be, a matter of some interest to the Committee that there is now quite a differential set of rights for people in Northern Ireland as a result of not having a similar single Equality Act or enhancements to the anti-discrimination legislative framework enacted in 2010 in the Equality Act in Great Britain.

Q418 Andrew Percy: Do you have a view as to which is potentially more problematic to the implementation of the Covenant: section 75 or a UK Equality Act? In a sense, which is the strictest of the regimes, so far as our concerns are?

Evelyn Collins: The regimes, in terms of the mainstreaming duties on both sides of the Irish Sea, are to pay due regard. Although there has been more case law on what due regard means in GB, it is unlikely that, if cases were to come before the courts in Northern Ireland, they would differ significantly in their interpretation of the statutory language. I do not think that there is more or less strictness. The fact is that the duties have been in place in Northern Ireland since 2000, and there is a great deal of familiarity, despite what I said earlier, around the application to this particular issue around the duties, possibly more so than in Great Britain. There is a greater use of the language of section 75 generally in discussions about policy issues. That may be where you have seen it come through in some of the evidence; whether at district council level or Government Department level, people are used to talking about section 75 duties.

Chair: There will be a vote at 4 o’clock and we will have to finish before then. Forgive us for all disappearing in a rush.

Q419 Nigel Mills: We have got to a situation where the Armed Forces Covenant has been effectively brought into force in England, Scotland and Wales, but clearly not in Northern Ireland. Do you have any concerns that that has created nonequivalency, so, in theory, a member of the Armed Forces could be at a disadvantage in Northern Ireland compared with in GB?

Evelyn Collins: As I said earlier, the answer to the parliamentary question that we saw, broadly the provision is the same. There are issues in Northern Ireland that signal some caution, partly around the potential for indirect discrimination and partly because of the sensitivities involved in dealing with issues likely the Armed Services, which may have closer associations with one community than the other. We referenced that in our written submission: we recognise that employers and others feel more cautious around those issues that may have more associations with one community than the other.

Q420 Nigel Mills: Can I ask you a tricky question? Feel free to dodge this.

Evelyn Collins: The others have not been tricky, then?

Nigel Mills: You have not heard this one. Under the current law, could the Assembly ban former members of the Armed Forces from being special advisers?

Chair: We did not have this one programmed.

Evelyn Collins: We were discussing on the way over that I have not seen the final version of the legislation that was passed on Monday, so I should exercise caution and not answer that.

Nigel Mills: I am not asking you about that. Presumably, as you have said that Armed Forces are not a special group in equalities law, in theory they would not be protected.

Evelyn Collins: As I understood, the legislation is designed to deal, amongst other things, with those who have had convictions.

Nigel Mills: I was not asking about that legislation.

Evelyn Collins: Yes, in general terms, as they are not a specific protected category for the purposes of equality legislation, an individual claim of discrimination on the basis simply of being in the Armed Services has nowhere to go in the anti-discrimination legislation framework in Northern Ireland, in Britain or indeed in Europe. The European Union, which governs much of our equality law, does not have service in the Army as a protected category.

Q421 Nigel Mills: However, passing the Armed Forces Covenant in the way it has been done in the rest of GB may give some protection?

Evelyn Collins: As I read it, it is a set of aspirations and a set of principles. It is not a law as such. It has value in terms of declaratory intent, but, as I read it, it does not provide any new rights or different rights for members of the Armed Services. It is about the way society wants to treat people who have served.

Nigel Mills: The law requires a report on implementation of the Covenant, rather than requiring implementation?

Evelyn Collins: Yes, I did not see it as a new legal framework.

Chair: Any final questions? I think you have answered everything. Thank you very much indeed for coming. This has been a very useful session. Thank you.

Prepared 16th July 2013