Examination of Witnesses (Questions 620
- 639)
TUESDAY 30 MARCH 2004
MR ANTHONY
ROBINSON, DAME
JOAN HARBISON
AND MR
DON LEESON
Q620 Lord Addington: Surely the reasonableness
test should always be based on real knowledge.
Mr Leeson: Absolutely, but that
is what the law allowed.
Q621 Lord Addington: You are saying
that the law has to be strengthened to make a better defence than
that.
Mr Leeson: Absolutely, yes.
Dame Joan Harbison: There must
be some level of objectivity.
Q622 Lord Addington: I have known
of cases in Britain where people have based it on the fact that
they think they know what it means and they have not looked any
further into it and they have failed. It sounds a very odd case.
The fact that the court could take that decision is mind blowing.
So you think it should be different.
Mr Leeson: That highlights the
risk of relying on subjective opinions which I think if we go
down a reasonable opinion approach is risky.
Q623 Lord Addington: It seems very
odd to me because I would have thought the reasonable opinion
has to be informed opinion, that would have been the answer I
would have given you and in many cases of the law here it is based
on the fact that reasonable opinion is informed opinion. We may
be going off at a tangent to the bill here. What would be your
choice of words to remove that problem?
Mr Leeson: I would remove the
opinion. I would be looking for something that is linked to some
independent level of objectivity.
Q624 Lord Addington: So a definition
of reasonableness might be something which you are identifying
here.
Mr Leeson: Yes.
Dame Joan Harbison: In that particular
case it would be my view that the reasonableness of it was from
the point of view of the gentleman who would not let the flat
to the person with the guide dog, but in actual fact there was
no reference at all made to how fit and able the person with the
visual impairment was when he was manoeuvring steps. This is one
of the things that I think we have got to be very careful of,
the need to protect the individual and what he or she cannot do.
I know legislation cannot protect every individual, but there
is a level where things like this take the control away from a
disabled person in terms of what they can or cannot do.
Mr Robinson: The Commission has
seen the submissions made by the DRC and also the ECNI and we
endorse those entirely. It is very difficult to look behind the
reasons that are expressed and so we would agree that that should
be removed. I have not got a formulation that I could suggest,
but I certainly share the comments made here.
Q625 Lord Swinfen: With public authorities
who have a duty to promote equality of opportunity under the draft
bill, in the evidence we have had there has been quite a lot of
confusion as to what is or is not a public authority. On balance,
do you think that it is more useful to define a public authority
that is subject to the duty to promote equality of opportunity
by way of a general definition or a closed list?
Dame Joan Harbison: In the previous
one when we were talking about the powers of functions that could
be included or excluded I mentioned this. I think to have an open
list is going to make it very difficult. I think what you need
is something that is going to be effective in terms of a public
sector duty and therefore a closed list that can be added to by
the Secretary of State, as it is in Northern Ireland, in our view
would be the best way forward because that is more controlled.
Q626 Lord Swinfen: Would you like
to give some examples?
Dame Joan Harbison: In Northern
Ireland we have been pressing for some bodies that are not designated
to be designated. The Northern Ireland Transport Holding Company
is one such one because obviously it has considerable implications
for transport and so we want it designated. We have also been
pressing for the BBC to be designated, which is an interesting
debate.
Chairman: There is a division in the
Lords.
In the absence of the Chairman, Mr Roger Berry
was called to the Chair.
Q627 Mr Berry: Please continue.
Dame Joan Harbison: In Northern
Ireland obviously all the government departments would be designated
and then they would roll out from that, such as education and
health. One of the issues that we are grappling with at the moment
is schools. It is at what level is the decision-making going to
have an impact on equality, whether it is equality in relation
to the nine grounds that we have or specifically in disability
or as already exists in race, to keep it to those public bodies
that very obviously and directly have within their roles and functions
a remit in relation to equality matters, that will make a difference
to different people's lives at any time. Realistically, if we
go down that road of a closed list then other people are gradually
included. In Northern Ireland, for example, we are actually beginning
to roll out the equality duty into the private sector through
the public sector seeking the provision of services from private
bodies but requiring them then to adhere to the public sector
duty of equality and I think that is a very important thing to
do and I think there is a snowball effect. I would start quite
tight and roll it out from there. We were talking earlier about
changing attitudes. In Northern Ireland we had Policy Appraisal
and Fair Treatment which was a policy that was designed to be
inclusive and to create equality but it did not because no one
knew what to do. You need the statutory power and then it can
gradually change attitudes and those attitudes, when the good
things are seen, roll out to other areas as well.
Mr Berry: I am sorry, we now have a division
in the Commons. We will have to suspend the Committee until voting
is finished.
The Committee suspended for a division.
Lord Carter resumed the Chair.
Chairman: We are now quorate. I do not
know where we had got to.
Q628 Lord Swinfen: Mr Robson was
about to answer the question that I had put. Perhaps it would
help everyone if I put it again. It was to do with public authorities.
On balance, do you think that it is more useful to define a public
authority that is subject to the duty to promote equality of opportunity
by way of a general definition or a closed list? Could you give
some examples of the advantages and disadvantages of a closed
list, please?
Mr Robinson: The Commission's
position is that it prefers the closed list as there is clarity.
The difficulty with that is that you need to amend it from time
to time to deal with things like the reorganisation of the Health
Service. When those issues come up we need to amend it. There
are difficulties in getting the amendment as quickly as you would
want it. I can see that by having a definition you could deal
with bodies that were not immediately obvious to public authorities.
The Commission's preference would be for clarity and a closed
list.
Q629 Lord Swinfen: On the question
of disability, a number of charities are undertaking on behalf
of local authorities the duty of local authorities with respect
to people's disability and the question is whether or not they
then become public authorities with regard to those duties. If
the duty applies to public authorities as it would do in the Human
Rights Act, which functions of `hybrid' public authorities would
you expect to be subject to that duty?
Mr Robinson: The first thing I
would have to say is that we have just published a procurement
guide where we advise the public authorities and they should ensure
through the contract process that the contractors fulfil those
obligations on their behalf and have regard to it. However, if
you were going to have just a definition then there are quite
a number of different characteristics that have come out of the
cases that determine whether a body would be a public authority
or not. The sort of things that the courts have pulled out are
things like does the body perform or operate in the public domain
as an integral part of the statutory system which performs public
law duties, is the duty performed of public significance, are
the rights or obligations of individuals potentially or actually
affected by the performance of the duty, is the non-statutory
body established under the authority of government or local government
etcetera. There are at least eight or nine things. I can send
them in to save the Committee's time. There are quite a number
of characteristics that have come out of cases based on the Human
Rights Act.
Dame Joan Harbison: We can give
you some examples of where those from whom services are being
procured by health boards or education boards have had to comply
with the impact assessment of the policy that the public body
has had so that you can get at those bodies that are serving the
procurement function through the actual public body that is designated.
Lord Swinfen: That would be helpful.
Q630 Tom Levitt: First of all, today
has been a nice opportunity for me to reminisce about my one and
only day in Belfast which was 18 months ago when I visited the
Equality Commission and how impressed I was with the work that
you were doing then. We were then looking at the feasibility of
a single equality body for mainland Britain. I want to concentrate
on an area where disability legislation is significantly different
from that of race relations. Do you consider it necessary or appropriate
that a public authority must satisfy itself that "opportunities
for disabled persons are not as good as those for other persons"
before it is required to promote equality of opportunity for disabled
people?
Mr Robinson: The Commission's
position is that this should be a positive duty. The public authority
should not have to show that there is some disadvantage before
they have a duty to act. That is our formal position. We would
not agree with that statement.
Dame Joan Harbison: We would totally
agree that it has to be a positive duty. You do not wait until
people are discriminated against before you take action. We have
had some examples of public bodies not being aware of the negative
impacts of some of the things that they have actually been doing.
For instance, a consultation by the Arts Council on the Lottery
flat rate grant allocation revealed that disabled people were
negatively impacted on because of the access issues involved and
that meant greater costs and as a result of this additional grant
allocations were made to disabled groups. You cannot wait until
the discrimination has actually happened, you have to be proactive.
In that instance it was discovered through the process of consultation.
That is one of the strongest parts of section 75, the active engagement
of people with disabilities at every level of the policy making
and then ultimately the decisions through which those policies
are implemented.
Q631 Tom Levitt: I understand that
about 90 per cent of public authorities in Northern Ireland have
already submitted equal opportunity programmes. What do you do
to force the other ten per cent to come on board?
Dame Joan Harbison: We do not
have to force the other ten per cent to come on board, the other
ten per cent are coming on board. The ten per cent that have not
yet produced their equality schemes are those that were designated
last by the Secretary of State and so, in fact, most of those
are really only into the discussion stage with the Equality Commission
about their equality scheme and those will come through over the
next year. It was the point at which they were designated that
has indicated the length of time. So they are designated, but
because they were designated only 18 months ago they have not
completed, but they will complete. They have only six months to
complete the equality scheme, but then there is the whole consultation,
there is a consultation with us, there is screening, there are
all sorts of other things that go on as well before the formal
scheme is submitted to us for approval. That is something I do
not think you can do with something like 40,000 quangos throughout
the United Kingdom.
Q632 Lord Rix: In written evidence
the CRE have recommended that the duty on public authorities should
include a duty to promote good relations between disabled persons
and other persons. What examples do you have of the impact of
this particular duty on race relations and community relations
in Northern Ireland?
Dame Joan Harbison: The section
on promoting good relations is beginning to bear very considerable
fruit in Northern Ireland both in terms of race relations and
community relations, so much so that we have recommended in our
recommendations on the single equality legislation, which we are
still hoping to get in Northern Ireland within the next few years,
that the good relations duty should be extended to all the grounds
under section 75 and that is nine different grounds, not just
disability. The reason for that is that, just as we have in race
and under religion and political opinion, we have very considerable
evidence of harassment and even, unfortunately, physical attack
in some instances. While it can be got at in other ways, we do
not have the hate crime legislation yet but we are hoping to get
it, there are things that one needs to do very positively through
the schools, through youth groups. One of the things that we are
looking at is using public authorities' financing groups to ensure
that they have good relations and equality of opportunity programmes
in place before they are given public money as grants and making
people think about the community and voluntary sector. In some
areas in Northern Ireland we have very active and very vibrant
voluntary and community sectors, it is very positive in our society,
but we have also some parts of it which are not so positive and
which are sectarian in nature and if those are applying for grants
then I think you can change that.
Q633 Chairman: When you get the Discrimination
and Disability Bill in the autumn, would you think it odd if that
bill in Northern Ireland did not have a duty to promote good relations
when you have already got it in the NIA? If you did have it in,
would it be equally odd if it was in the bill in Northern Ireland
and not in the bill we are looking at?
Dame Joan Harbison: I think it
would, yes. We would be very disappointed if we did not get it.
Q634 Lord Rix: Do you think that
the promotion of good relations is implied by the duty to promote
equality of opportunity, or is it important that it is specified
as a separate duty?
Dame Joan Harbison: I think it
is very important that it is specified as a separate duty. There
is no doubt that equality of opportunity underpins good relations,
but I do think good relations is that bit of the equality of opportunity
which encourages people to embrace diversity and difference, to
recognise that we all have something to contribute to our society.
It is a very important development of the concept of equality
of opportunity which ultimately and in the end I hope will make
a huge difference in the fabric of society in Northern Ireland.
Mr Robinson: I looked at our website
before I came here for examples of initiatives that have been
done recently on good relations. For instance, Leicester City
Council is doing some very good work around community cohesion
and cross-cultural initiatives and Stoke City Council are doing
work around asylum seekers and cross-cultural issues. I think
it is extremely important that it is different from the other
duties and it is about trying to get the different racial groups
to embrace one another and to work together. Much of the community
cohesion issues have been based on those strategies.
Mr Leeson: It was mentioned by
the evidence given in the previous session by Mind that equal
opportunity is about getting people to the door and through the
door. Good relations really is about making sure that people,
once they are through the door, are treated with respect and dignity
and that is where that extra dimension would come in.
Q635 Mr Goodman: The second part
of my question was about the duty to promote good relations. You
have both described what the respective bodies had done to try
and carry the duty out. What kind of resources do you think public
bodies need to carry out those duties?
Dame Joan Harbison: Our guidance
on section 75 says "necessary resources" in terms of
time, money and people and I do think you have to put the resources
in. The thing that is beginning to happen is the payback on those
resources is beginning to come through now, and some of the public
bodies are beginning to realise that the investment of both time
and money and people is actually bringing about better policy
making and better implementation through the decisions of those
policies. The key thing for us in terms of making section 75 work
has been commitment from the top. Through Policy Appraisal and
Fair Treatment we learnt the hard way in the 1990s, it always
resided somewhere about middle management and they neither were
able to get the messages up nor the messages down because they
were not in the right place within the organisation. Every equality
scheme has to be signed off by the chief executive, the chairman,
the chief commissioner or whoever it happens to be, the permanent
secretary of the department. That level of commitment means that
at a very high level people have signed up to something. They
do not want to be seen as falling behind any of their colleagues
in the public sector and so there is a pride in making section
75 work. So getting that top level commitment is extremely important.
There may be additional resources necessary initially. This is
all about getting it right and if we get it right then ultimately
that is good value for money. The initial investment has got to
be looked at in terms of the long-term gain.
Mr Robinson: Some additional resources
are necessary, but I think there is also an issue about how resources
are used. Some local authorities have used their PVR duties and
the work there to consult with their stakeholders to find out
what the stakeholders' and the local community's views are about
local services and in that exercise they did not need to duplicate
surveys, in that case they used the PVR process to get information
about the local community and they then determined how the services
could be delivered. I do not think it necessarily has to mean
more resources are required because some resources can be used
in a different way.
Mr Leeson: In terms of political
opinion and the sectarian divide in Northern Ireland, we have
seen that the criteria on which grants are made now actually look
at cross-community projects and that has now been brought in and
I think you can link that back to the good relations duty. Again
it is a mainstream issue, that is not at no cost but it is doing
things differently.
Q636 Mr Berry: Have you experienced
any problems in monitoring and ensuring compliance with the duty
of public authorities to promote equal opportunities? You have
given examples of where there is evidence that they are doing
it, but you have got powers under existing legislation to enforce
and monitor.
Dame Joan Harbison: We have had
difficulties in some areas and it would not be very hard to define
them in Northern Ireland. In terms of equality issues in relation
to political opinion and sexual orientation for that matter, we
have had councils who were very begrudging in terms of their equality
schemes in relation to those two areas and we have had real difficulties
with them. Every local council now in Northern Ireland has an
equality scheme approved which complies with our guidelines and
no one had to be referred to the Secretary of State and I think
that is a very considerable achievement. The standards set by
the guidelines were not low, they were high and they were equally
high for all nine grounds. It can be time-consuming in terms of
persuasion and the learning process. We have had a little bit
of dragging of feet and falling behind in terms of some of the
equality impact assessments that should have rolled out from the
equality schemes. Some of that is because the public bodies are
struggling to know how to do these things. It has been a huge
learning curve for everybody. I think that has been easing as
more and more examples have come on-stream and there has been
more and more sharing among public bodies. One of the big areas
where we think there is still a long way to go is training. Some
people have done a lot of awareness training. One of the areas
that was just defined yesterday in our Second Report on the implication
of section 75—and if any members of the Committee would
like to, we would be very happy to let them see it—is that
the training is being done by consultants and not always by the
affected groups or people within the affected groups and we would
like to see much more of an engagement with effective groups in
terms of training and awareness within the public bodies. We have
had a lot of gains, but there is some dragging of feet. We have
not felt it necessary yet to refer anybody on to the Secretary
of State and we hope we will not have to.
Q637 Mr Berry: You refer in your
written submission to the powers to name and shame or threaten
sanctions. Have you had to do any of that?
Dame Joan Harbison: We have done
it in this report, we have actually said that some bodies have
not lived up to the expectations that they should have.
Q638 Chairman: You named them?
Dame Joan Harbison: Yes.
Mr Robinson: In our case there
are 44,000 public authorities so it is difficult for us to monitor
all of them. I am tempted to put in a bid for resources for ourselves!
Also, there is a problem with it in that the general duty does
not provide a mechanism for us to enforce that very easily, you
have to enforce that through judicial review. Where we can enforce
issues is to do with the specific and additional duties through
compliance notice procedures. We had a survey carried out by Schneider-Ross
and there was something like an 84 per cent compliance rate, I
have not looked at the report recently, I can send it to you.
That compliance rate in some senses was quite good because it
was fairly shortly after the introduction of the Act. We would
anticipate that most authorities will now have complied with those
duties.
Q639 Lord Rix: All 44,000?
Mr Robinson: Yes. That survey
was sent to organisations and it was 84 per cent that indicated
they had complied.
Dame Joan Harbison: One of the
things that we do have, which we think is very valuable, is a
complaints mechanism and we have two forms of complaint: complaints
by an individual and what would be called class complaints. The
complaints by an individual is if they have gone back to a public
authority and said you are not living up to your equality scheme
and they still have not come up with the goods. Then they can
come to us and ask us to look into this and we will take it to
our Investigations Committee and we would certainly try and do
something about it. Class actions are different, it is where we
have been become aware that we do not think that a public body
is living up to its obligations under section 75 and we decide
to do an investigation ourselves. I think those are very important
parts and if we are going down the public sector duty then you
need to have those powers of complaint and investigation. Those
will be the strengths of the legislation.
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