Speech to CAJ Conference on 11 June 2013 Evelyn Collins, Chief Executive Equality Commission for Northern Ireland Thanks for the opportunity to respond today. The Commission welcomes engagement on the effective application of the statutory duties enacted in Section 75 of the Northern Ireland Act 1998. Any considered contribution on the implementation of the duties is valuable to us, given the central importance of these duties to the Commission, our statutory remit in respect of the duties and our continuing commitment to their effective enforcement. Let me address the question posed in the report s title first Unequal Relations? Policy, the Section 75 duties and Equality Commission advice: has good relations been allowed to undermine equality? The answer to this is no, and this report does not provide evidence that equality has been undermined by good relations. It is however timely, coincidentally since the CAJ commenced this work some time ago, to consider policy and practice on good relations given the recent publication of Together: Building a United Community strategy by OFMDFM. It will be interesting to hear responses of others to the report and to the Executive s strategy in the coming period, including representatives of public authorities as well as representative organisations and members of the Equality Coalition. The overall finding of the report that a combination of factors, including decisions and advice by the ECNI, have led to a situation whereby equality initiatives, and the purpose of the Section 75 and Equality 1
Impact Assessments (EQIAs), are being undermined by the present interpretation and application of the good relations duty is not supported by the evidence presented. The Commission considers that much of the report is concerned with opinion rather than fact and that, while people and organisations are entitled to their opinions, it does not mean that such opinions should be accepted as accurate research findings. There has indeed been long-standing debate about the relationship between the two duties, from prior to the introduction of the Northern Ireland Act 1998. The relative priority to be given to the duties is clear on the face of the legislation clearly and consistently expresses this distinction. The concerns outlined in the report about the Commission s interpretation of good relations; about the recommendation in our 2007 Good Relations Guide that it may be useful for policies to be subject to EQIA to consider whether and how they might have an impact on good relations; and about our advice in particular instances have not been a particular subject of discussion with CAJ or the Equality Coalition over the period since the publication of the Commission s Good Relations Guide in 2007, although we have had many exchanges about the application of the statutory duties. Nor indeed have such concerns been raised by public authorities. I wanted to say a word about the methodology for the research. We had asked for the Terms of Reference for the research when we were first contacted about it, and received some general objectives from CAJ. These were departed from subsequently and we asked for a copy of revised Terms of Reference in order to enable us to better tailor our responses to requests for comment. The results of the scoping exercise mentioned on page 1 of the report were not shared with us nor did we 2
receive adequate responses to our request for clarification on the Terms of Reference. It was clear that the questions being posed to us in respect of the section 75(2) duty were not neutral ones and we did make the point to CAJ that fixed terms of reference is a strong point for research compared to floating terms of reference. We had also suggested at one point that the paper might be better entitled a position paper rather than research. That said, the Commission has sought to engage with the author to provide information and commentary, and signpost to relevant information. We are disappointed that in the end the report relies, in relation to the Commission, on a narrow set of information and ignores other information such as our policy positions in key areas, for example, the Irish language. The Commission has been allocated a limited time this morning and thus I aim to set out an outline of our concerns. We received the final text on 7 June which introduced some further changes to a draft we had been sent the previous week. The first concern we have relates to the report s assertion about how the s75(2) duty can or should be interpreted. There is much interesting material about the background and meaning of parity of esteem in the Agreement, including the advice in 2008 by the Northern Ireland Human Rights Commission on the formulation of a right in this area. There is also an interesting discourse in the chapter on legislating for and interpreting good relations. While all of this is of general interest, the paper overstates what may be read into the definition of good relations as provided for in the 1998 Act. The statute provides that public authorities are obliged to pay regard to 3
the desirability of promoting good relations between persons of different religious belief, political opinion or racial group and the Commission s advice must be based on the remit with which we operate The views expressed in the report as to what the parameters of good relations should be stretch beyond what we believe could be inferred from the legislation itself, which is what the Commission is required to provide advice on. Of course, we recognise that the UK courts should interpret domestic legislation compatibly with international obligations; this, however, is less relevant in the face of clear words in an Act of Parliament. The report s reference to the current GB duties, established by the Equality Act 2010, and the definition of the duty to foster good relations to mean paying particular regard to the need to tackle prejudice and promote understanding, offers some food for thought in relation to a definition of good relations in any forthcoming legislation arising from the Together Building a United Community strategy. Of course, in GB there is no distinction in priority terms between the three limbs of the public duty, which is not mentioned in the report. Nor does the report make clear that the definition of good relations that we cite in our guidance is one which includes the concept of equity, which specifically addresses the need to ensure that all sections of society have equal opportunities to participate in economic, political and social life through redressing inequalities arising independently from people s choices. 1 As regards the recommendation to the Commission that we consider the interpretation and definition of the concept of good relations in our 1 ECNI, Promoting Good Relations: A Guide for Public Authorities, 2007, page 13, definition cited from Future Ways, Equity, Diversity and Interdependence Framework, p21 4
guidance, we are already doing so in light of potential changes signalled by the strategy. Our second broad concern relates to the treatment of the Commission s recommendation in our 2007 Guide on Promoting Good Relations that it may be useful for policies to be subject to EQIA to consider whether and how they might have an impact on good relations. The report states that this marked a radical shift in policy, which is simply not the case. Many of you will recall that the screening questions in successive Guides to the Statutory Duties always included a question on the potential impact on good relations of a policy the 2005 screening questions include is there an opportunity to better promote equality of opportunity or good relations by altering the policy or working with others in government or in the larger community? ; the 2002 version was similar but used phrase community relations. If the answer to the question was a yes, this led to consideration of whether to proceed with an EQIA. The 2007 Guide on Promoting Good Relations also points out that some public authorities were already making significant efforts to progress good relations through this process and gave specific examples, at local council level and in Government Departments. Many of you will also be aware that the seven step EQIA process was one developed by the Commission it is not provided for in the Agreement or in the legislation contrary to the assertion in the report. What is required by the legislation is that public authorities have arrangements for assessing and consulting on the likely impact of their policies, and we recommend the EQIA process as the means to do this. The report notes that our Effectiveness Review did not identify a need for a change to the legislation formally to require public authorities to 5
engage in impact assessment regarding good relations as they currently do on equality of opportunity. It omits to mention that our Review also reported commentary from independent research which accepted that public authorities are not expected to assess impact in this area this does not necessarily mean that impact assessments are inappropriate in the context of good relations. The CAJ report also fails to consider that there is nothing in the statutory language that precludes public authorities from including specific arrangements in their Scheme for fulfilling the good relations duty - the Scheme is required to show how the public authority proposes to fulfil the duties imposed by Section 75. Many of you will recall that in the Review of the Effectiveness of the Duties carried out by the Commission in 2005 2008, one of the findings was that progress on implementing the duty on equality of opportunity had not been matched in terms of the good relations duty and that there was an inconsistency of approach across public authorities. The Promoting Good Relations Guide was designed to encourage a focus also on the good relations duty and it is very clear about the relative priority of the duties and the importance of positive action. We sought to encourage public authorities to look beyond the 3 categories that the law covers and to seek to promote good relations in respect of the other categories defined in legislation and more generally. We made specific mention in particular of the statutory disability duties introduced by the 2006 DDO, encouraging alignment with any s75(2) initiatives. 6
You will all know that recommendations from our Effectiveness Review on EQIAs were given particular effect through the revised guidance. Consultation on screening questions proposed at the time were considered in detail by an Advisory Group including public authorities and the Equality Coalition. Concerns that the EQIA methodology should not be applied to good relations matters were not raised through this period. Further, there is no evidence, contrary to one of the specific findings, that EQIAs on good relations have had a retrogressive impact. As regards the recommendation to the Commission on this, that we review our decision to recommend the addition of good relations to EQIAs, we have already made the commitment to review the Promoting Good Relations: A Guide for Public Authorities in our Effectiveness Review. We will want to look at objective evidence of how it has been implemented generally, including the recommendation on impact assessments. The third main concern relates to treatment of adverse impact in the CAJ report it is scoped very much in terms of discriminatory impact and concludes that there is a threshold at which the impact should be considered adverse. Looking at the guidance on assessing impacts contained in the 2005 Guidance, we clearly advise that considering adverse impact through an EQIA is not merely about the identification of either direct or indirect discrimination, it is about considering a wide range of relevant information. This assumption of a threshold to be met features at different stages of the report and is a conclusion reached on a number of occasions in relation to the partial reading of our advice. The report also criticises the 7
Commission for saying that we do not necessarily take a position on impact. The advice the Commission gives on the assessment of impacts in an EQIA will tend to relate to what is presented, to comment on the process and to comment on the systematic appraisal of the accumulated information as is outlined in our guidance. The section in the CAJ report which deals with this refers to risks associated with applying the EQIA process to good relations that simple negative perceptions, impacts or tensions could be elevated to be considered adverse impacts and it goes on to consider the potential impact on positive action measures. Posited as a risk, and in specific findings the report presents this as an issue which has had a detrimental impact on positive action policies but there is no evidence to support this in the report. It is timely perhaps then to turn to the case studies, since one assumes that this may be the source of evidence for such the assertions made in the report about the influence of the Commission s advice. The first and most obvious point is that one cannot generalise from case studies. We had made the point in discussion and in writing to the author that our advice, in EQIAs or elsewhere, will draw on a number of sources to recommend what should be considered by an authority, identify the risks to that authority of a particular course of actions or comment on the process undertaken. The Commission s advice will be context and situation specific and generally we advise on the information presented. Much of the advice will deal with the substantive issues in accordance with case law, with the Commission s agreed public policy positions or draw upon previous advice provided in similar circumstances or in response to specific issues raised by a public authority. 8
In view of time constraints, I will address only a few points in relation to the case studies at this stage. Case Study 1: The good relations duty and flag flying the report indicates that this was selected because it provides a barometer to measure how the duty has fared in relation to the Belfast/Good Friday Agreement relating to equality of treatment for the identity of the two main communities. But the duty in the legislation is concerned with paying regard to the desirability of promoting good relations, not equality of treatment for the identity of the two main communities. The conclusion to this case study seems to be that if the interpretation of good relations related to parity of esteem or equality of treatment, the Commission s advice would likely be different and lead to recommending policy options on flag flying moving towards options of a two flags policy, a no flags policy or a civic flags policy. The reality is that good relations is not defined as such, and that Commission advice must be based on the legislative provisions. The case study seems to conclude that the Commission advice is consistent and based on equality considerations, rather than good relations considerations although it references our responses to the specific queries raised. This of course has all been in the public domain for some considerable time. Case study 2: The good relations duty and the Irish Language There are various opinions and information provided in the background to this case study. In reality, the following should be borne in mind: 9
First, the Commission policy position is quite clear and has been for many years, however it might have been framed or interpreted in the early days - our position is that a specific language statute is an appropriate mechanism of protection for the Irish language. We have made the point that the notion that providing equality or protection for one group limits their availability for another is both unfounded in itself and acts to the detriment of all who seek to live in a society that is fair and equitable and should be avoided in the drafting of public policy. Secondly, as previously stated, the Commission must base its advice on its legislative remit. The European Charter for Regional and Minority Languages does not oblige the Commission and/or Public Authorities to promote any rights that derive from unincorporated international agreements; and language of course is not a category specified in the public duties. Finally, the whole case study seems to ignore community divisions over the language issue in NI. This is somewhat surprising, given that CAJ recognised these divisions in its 2007 input to the DCAL consultation on proposals for an Ulster Scots Academy. CAJ responded at that time that it would be more appropriate to recognise that nationalists, Catholics and young people will be adversely impacted. We have particular difficulties with the coverage of some of the specific examples referenced in this section the issue considered in Limavady Council had particular relevance to fair employment legislation and protection of staff; in relation to Derry City Council and name change, this was not an Irish language issue; and our advice to the Department for Regional Development did not recommend undertaking an EQIA for every potential road sign. 10
Case study 3 the good relations duty and socio-economic inequality Significant weight is given in the conclusions to the interpretation of the Commission s advice on the Department for Education s Transfer 2010 EQIA and the suggestion that the Commission did not support the receipt of free school meals (FSM) as a criteria to be used for school transfers. The CAJ report explicitly states that the ECNI cautions against using the proposed criterion of FSM... for schools admittance 2. This is simply wrong. The commentary in respect of housing, for example on the consultation on Girdwood, confirms the Commission stating clearly saying that the primary duty on public authorities is to pay due regard to the need to promote equality of opportunity. The report speculates that the change in form of words used in 2010 Guide may serve to undermine the distinction between the 2 duties yet also accepts that the plain words say that the discharge of the good relations duty cannot be an alternative to or cannot set aside the equality of opportunity duty. It is difficult to see how this can be interpreted as undermining of equality and/or the Section 75 duties. The main concern in this section appears to be that the focus in our Key Inequalities publication is on segregation on housing, and this has been used by some public authorities to avoid addressing housing need. It also points out, however, that we address this in respect of particular EQIAs with public authorities when commenting on related consultations. 2 Page 59 of CAJ report 11
In respect of the recommendation to us that we review our statement on Key Inequalities, this is an area we will look at in the updating of this publication that we have already committed in our Corporate Plan 2012 2015. Generally in respect of the case studies, there is no evidence that reminding a public authority of its good relations duty is tantamount to advising the authority to de-prioritise its equality duty. Much of the treatment of our advice in the case studies is partial and some not accurate. The most important point in relation to the case studies is that it is entirely unclear whether the author has looked at the outcome of the EQIA consultations he has referred to and tracked the influence of our advice on such outcomes. There is certainly no evidence presented in this report that such consideration has been done and that it supports the overall finding in relation to the report that equality initiatives and the purpose of s75 and Equality Impact Assessments are being undermined by the present interpretation and application of the good relations duty. In summary, we cannot agree on the basis of this report that there is evidence that the equality duty is being undermined by the good relations duty. We also have concerns about a number of inaccuracies in the report, for example in respect of the commentary around the Joint Declaration 2003. Going forward, as I said earlier, the Commission is genuinely keen to engage with all stakeholders including public authorities to gauge their views on current duties and how we can best take this forward in the 12
new era on good relations currently being mapped by the Executive. It is important to consider definitions and processes and how we can all work collaboratively to ensure positive outcomes in terms of both equality and good relations. The Equality Commission is committed to playing a full and effective role as the equality body in Northern Ireland, in line with our statutory remit, in working towards a more equal society. 13