EQUALITY COMMISSION FOR NORTHERN IRELAND EC/14/06/2 Addressing socio-economic disadvantage: Review and update Purpose June 2014 The purpose of this paper is to provide Commissioners with an update on the current position of socio - economic status as a protected ground under equality law, drawing on previous Commission positions regarding legislative reform and updated national and European developments. It also asks Commissioners to consider and approve the proposed approach to be taken by the Commission in this area. Background In November 2004, the Commission was clear that it did not support the inclusion of socio-economic status as a separate antidiscrimination ground in single equality legislation. In 2008, as part of the review of the effectiveness of the Section 75 duties, Commissioners agreed with the vast majority of consultees that Section 75 should not be amended to extend the duty to pay due regard to the need to promote equality of opportunity to other categories than those covered in the Northern Ireland Act 1998.. Since then there have been a number of developments in Great Britain and other jurisdictions, as well as in the context of a Bill of Rights for Northern Ireland. For example, a socio-economic duty was placed on certain public bodies in Great Britain by the Equality Act 2010 however, this was subsequently not implemented and the Coalition Government indicated its intention to repeal these provisions in 2012. This paper summarises these developments as well as setting out a proposed approach for consideration.. In particular, it is proposed that the Commission continues to proactively highlight the clear link between poverty and inequalities faced by individuals protected under the equality legislation and stress the need for urgent action to address poverty and social exclusion experienced by a number of equality groups. It is also proposed that the Commission retains its current policy position and continues to keep this position under review; for example, in the context of any review of the effectiveness of Section 75 and/or
any review associated with new duties resulting from the move to an Equality and Good Relations Commission or other review. Action by Commissioners Commissioners are asked to note the above update and to consider and approve the proposed approach.
EQUALITY COMMISSION FOR NORTHERN IRELAND EC/14/06/2 Addressing socio-economic disadvantage: Review and update 1 Executive Summary June 2014 1.1 This paper provides Commissioners with an update on the current position of socio - economic status as a protected ground under equality law, drawing on previous Commission positions regarding legislative reform and updated national and European developments. It also seeks approval of the proposed approach to be taken by the Commission in this area. 1.2 The Commission has not to date supported the extension of either anti-discrimination legislation (2004) or the statutory equality and good relations duties (2008) to cover socioeconomic status. 1.3 Whilst it has not called for equality legislation to be changed to incorporate the additional ground of socio-economic status, it has consistently highlighted the fact that there is a clear link between poverty and inequalities faced by individuals protected under the equality legislation. It has also consistently called for key stakeholders, including Government Departments, to take action to address poverty and social exclusion experienced by a number of equality groups. 1.4 There have been developments in Great Britain in terms of the changes to equality law aimed at addressing socio-economic disadvantage. 1.5 In particular, in 2010, the Equality Act in Great Britain sought to place a new duty on certain public bodies when making decisions of a strategic nature, to have due regard to the desirability of exercising them in a way that is designed to reduce inequalities of outcome which result from socioeconomic disadvantage. However, following the outcome of the UK Government s Equalities Red Tape Challenge 1, the duty was never implemented and the Coalition Government indicated its intention to repeal these provisions in 2012. 1 http://www.redtapechallenge.cabinetoffice.gov.uk/themehome/equalities-act/ Page 1
1.6 In general terms, the duty would have required certain public bodies in Great Britain, when making strategic decisions, such as those relating to spending or delivering public services, to consider the impact those decisions may have on narrowing the gaps in outcomes experienced by different socio-economic groups. It was envisaged that public bodies implementing the duty would be monitored by inspectorates rather than, for example, the Equality and Human Rights Commission. 1.7 In addition, to developments in Great Britain, there have been developments both in other European countries and at European Commission level in terms of changes to legislation and policy designed to tackle socio-economic disadvantage. 1.8 The inclusion of socio-economic status as a protected equality ground and the creation of additional economic and social rights were also considered in the debates relating to the development of a Bill of Rights for Northern Ireland and a UK Bill of Rights. 1.9 Having regard to the developments that have taken place both nationally and at a European level, it is proposed that the Commission continues to proactively highlight the clear link between poverty and inequalities faced by individuals protected under the equality legislation and stress the need for urgent action to address poverty and social exclusion experienced by a number of equality groups. 1.10 It is also proposed that the Commission retains its current policy position and does not seek to include socio-economic status as a separate anti-discrimination ground in single equality legislation or as an additional ground under Section 75. 1.11 It is also proposed that the Commission continues to keep this position under review; for example, in the context of a review of the effectiveness of Section 75 and/or any review associated with new duties resulting from the move to an Equality and Good Relations Commission or other review. Page 2
2 Background EC/14/06/2 2.1 Commissioners will recall that, in addition to areas which were already being progressed in relation to the outworkings of the Together: Building a United Community Strategy, a number of additional Commission work streams were identified following the Commission s Strategic Away Day held in January 2014. 2.2 In particular, it was identified that a paper reviewing the current position of socio- economic status as a protected ground under equality law, drawing on previous positions regarding legislative reform and updated national and European developments, would be prepared for Commissioners consideration prior to the summer. Current Commission policy position Inclusion as a ground under anti-discrimination legislation 2.3 Commissioners will be aware that neither the antidiscrimination legislation in Northern Ireland nor in Great Britain prohibits discrimination against individuals on the ground of socio-economic status. Nor is it a ground covered in any of the EU equality Directives, which have been the source of much legislative change in recent times. 2.4 In 2004, the Commission set out that it did not support the inclusion of socio-economic status as a separate equality ground in single equality legislation. 2.5 This position was adopted following detailed consideration by Commissioners in September 2004 of its draft response to the OFMDFM consultation on a Northern Ireland Single Equality Bill. 2 2.6 It was agreed then that the Commission would not recommend the inclusion of a number of additional grounds in the Single Equality Bill (SEB), in particular, the grounds of socioeconomic status, past convictions, victims, and language. It was agreed that the Commission would recommend that these additional grounds should be the subject to Government attention outside a Single Equality Bill, in order to find the most appropriate means of addressing the issues. The Commission 2 OFMDFM consultation on a single equality act, November 2004, www.ofmdfmni.gov.uk Page 3
also agreed to keep under review the issue of including additional grounds under anti-discrimination legislation. EC/14/06/2 2.7 The Commission s response in November 2004 to the OFMDFM consultation on a Northern Ireland Single Equality Bill 3 made it clear that the Commission did not consider that the inclusion of socio-economic status in the NI SEB as a separate ground would be appropriate. 2.8 We stated that it is arguable that the inclusion of socioeconomic status, even on an asymmetrical basis 4, would place too much of a burden on the Single Equality Act ( SEA ) by carrying the approach towards disadvantaged groups to a generalised level towards disadvantage per se. 2.9 We also stated that there would be a consequent danger that the SEA would become a general constraint on policy-making rather than be focused on the promotion of equality of opportunity for identifiable disadvantaged groups. We highlighted that the repercussions of applying even direct discrimination, let alone indirect discrimination, to socioeconomic status are difficult to calculate. 2.10 In our response, we made it clear that we were nonetheless fully supportive of Government moves towards an anti-poverty strategy and that we were of the view that the measures that the Commission had recommended in its response to the consultation on The New Targeting Social Need: The Way Forward Towards an Anti-Poverty Strategy in 2004 would contribute towards many of the issues surrounding inequalities relating to socio-economic status. 5 2.11 In our response 6, we therefore made it clear that, as regards the inclusion of possible additional grounds, the significant rights and responsibilities associated with some of these grounds may be better articulated and protected through specific legislation directed at the particular issues which these 3 ECNI response to the OFMDFM consultation on a single equality act, November 2004 www.equalityni.org 4 i.e. only applicable to lower, rather than higher, socio-economic status 5 See ECNI response to the consultation on The New Targeting Social Need: The Way Forward Towards an Anti-Poverty Strategy, 2004, www.equalityni.org 6 See ECNI response to OFMDFM consultation on a Northern Ireland Single Equality Bill, 2004, www.equalityni.org Page 4
grounds raise rather than through inclusion in an equality law statute. Inclusion as a ground within S75 duties 2.12 In November 2008, the Commission published its report on its review of the effectiveness of the Section 75 duties 7. In that review, the Commission sought the views of stakeholders as to whether or not there should be an extension of grounds covered by Section 75. 2.13 The associated research did not identify the need for expansion of the equality of opportunity or good relations categories at that time. Indeed, while some felt that expansion of the categories to include socio-economic categories and rurality should be considered in the coming period, the vast majority of consultees agreed that Section 75 should not be amended to extend the duty to other categories. 2.14 In particular, as regards the inclusion of socio-economic categories, some respondents were concerned that it would dilute the duty and be an excessive change too early in the lifetime of the S75 duties. Others favoured it, but said it would require a fundamental shift in government policy. 2.15 A research report 8 published as part of NIO commissioned review into the Section 75 duties in 2004 highlighted that the proposal to extend the Section 75 categories to incorporate a socio-economic ground was deeply problematic, and that a major revision of Section 75 at that time was likely to be severely disruptive, provide an opportunity to weaken legislation and overburden an already intensive process. It mentioned that Section 75 emphasises the disadvantage of those specifically protected by Section 75 and that an antipoverty strategy was needed; not one that replaces Section 75, but complements it. 7 ECNI, Section 75: Keeping it Effective, final report, 2008, www.equalityni.org 8 Mainstreaming Equality in Northern Ireland 1998-2004:A Review of Issues Concerning the Operation of the Equality Duty in Section 75 of the Northern Ireland Act 1998, Christopher McCrudden, included as part of The S75 Equality Duties: An operational review, commissioned by NIO, McLaughlin and Ferris, 2004, www.qub.ac.uk Page 5
2.16 In the final report on the effectiveness of the Section 75 duties 9, the Commission made it clear that although it had made a series of recommendations for change to redirect energies to the duties, those changes should be allowed to have effect before consideration is given - as part of its ongoing duty to keep the effectiveness of the legislation under review - to amending a relatively new piece of legislation. 3 Policy context in Northern Ireland ECNI work -Link between poverty and inequalities 3.1 The Equality Commission has consistently highlighted the fact that there is a clear link between poverty and inequalities faced by individuals protected under the equality legislation. 3.2 The Commission, for example, raised awareness in its Statement on Key Inequalities in Northern Ireland in 2007 of the effect of poverty on life chances; as well as making it clear that socio-economic disadvantage can reinforce and increase inequalities associated with equality grounds. 10 The impact of poverty or deprivation on educational attainment was also raised by the Commission in Every Child an Equal Child. 11 Inequalities faced by Protestant working class boys were also highlighted by Commission research on educational migration in Northern Ireland. 12 3.3 The Commission had also highlighted the link between poverty and inequalities faced by individuals protected under the equality legislation in its responses to consultations on draft Departmental strategies, actions plans or other policy proposals aimed at tackling poverty and disadvantage 13. 9 Ditto 10 See Statement on Key Inequalities in Northern Ireland, ECNI, 2007, www.equalityni.org. For example, it highlighted in its Key Inequalities Statement in 2007 the fact that Protestant boys from disadvantaged backgrounds were most likely to be non-progressors within the education system in Northern Ireland.. 11 Every Child an Equal Child, ECNI, 2009, www.equalityni.org 12 Educational Migration and non-return in Northern Ireland, 2008, ECNI, www.equalityni.org 13 See, for example, ECNI response to OFMDFM consultation on The New Targeting Social Need: The Way Forward Towards an Anti-Poverty Strategy 2004 and more recently ECNI response to NIO consultation on a Bill of Rights for NI, 2010, ECNI response to the OFMDFM consultation on the Social Investment Fund in 2011, and ECNI response to DSD consultation on EQIA on welfare reform in December 2011, available at www.equalityni.org. Page 6
Current action to tackle socio-economic disadvantage in NI 3.4 Public authorities in Northern Ireland, including at both central and local government level, are already taking a range of steps to tackle socio-economic disadvantage. 14 3.5 For example, there are a range of actions outlined in the Programme for Government 2011-15 in terms of tackling poverty and social inclusion. It includes a priority to address the challenges of disadvantage and inequality that afflict society, as well as to address the relatively poor health and long term shorter life expectancy of the Northern Ireland population. It also commits to stimulating interventions that break the cycle of deprivation, educational underachievement and to address health inequalities and poor health and wellbeing as well as economic disengagement. 3.6 There are commitments aimed at reducing fuel poverty, tackling systemic issues linked to deprivation through the Social Investment Fund, delivering a range of measures to tackling poverty and social exclusion through the Delivering Social Change delivery framework, fulfilling its commitments under the Child Poverty Act 15, as well as a package to tackle rural poverty and social and economic isolation. 3.7 It will be noted that a number of Government strategies have been brought forward in order to address poverty and social inclusion, including Lifetime Opportunities, the Northern Ireland Executive s Anti-poverty and Social Inclusion Strategy for Northern Ireland 16 and the Child Poverty Strategy: Improving Children s Life Chances. Both Strategies sit within the wider Delivering Social Change framework. 17 14 The MDM includes information measuring many aspects of social conditions, for example, income, employment, health, education, services, crime and living environment 15 The Child Poverty Act 2010 established four separate child poverty targets to be met by 2020/21 and requires Scottish and Northern Irish ministers to publish child poverty strategies. 16 www.ofmdfmni.gov.uk 17 It will be noted that all Executive departments use the NI Multiple Deprivation Measure (MDM) 2010 to identify areas of social need. Page 7
4 Approach taken in other jurisdictions Great Britain 4.1 There have been developments in Great Britain in terms of the changes to equality law aimed at addressing socio-economic disadvantage. 4.2 As noted earlier the anti-discrimination legislation in Great Britain, namely the Equality Act 2010, does not prohibit discrimination against individuals on the ground of socioeconomic status. 4.3 Commissioners will note that the Equality Act 2010 which received Royal Assent in April 2010, placed a new duty on public bodies when making decisions of a strategic nature about how to exercise their functions, to have due regard to the desirability of exercising them in a way that is designed to reduce inequalities of outcome which result from socioeconomic disadvantage. 4.4 Supporters of the duty heralded it as a ground-breaking and significant duty; though many raised concerns that it was undermined by the lack of a robust and tangible enforcement mechanism. 4.5 Whilst this duty was originally included in the Equality Act 2010, the provisions were however never implemented. 4.6 In May 2012, as part of the UK Government s Equalities Red Tape Challenge, designed to balance the need to provide important legal protection from discrimination, alongside the aim to reduce unnecessary or disproportionate burdens on businesses, it was announced by the Coalition Government that it would repeal the socio-economic duty. 4.7 A number of key arguments were raised as part of the debate in Great Britain both in support of, and against, the introduction of the duty. Arguments in favour centred on the clear link between socioeconomic disadvantage and inequalities faced by groups protected under the equality legislation; and the need for existing work on addressing socio-economic disadvantage to be underpinned by a statutory mainstreaming duty. Page 8
Concerns raised primarily related to weak enforcement powers associated with the duty and placing a disproportionate burden on public bodies. EC/14/06/2 4.8 The main reason advanced by Coalition Government as regards its decision to repeal the duty, related to the concerns that the duty would have resulted in bureaucratic tick boxing and that would have diverted the focus of public bodies from advancing policies that would make a real difference to peoples life chances. 18 4.9 In general terms, the duty would have required certain public bodies, when making strategic decisions, such as those relating to spending or delivering public services, to take account of the impact that those decisions may have on narrowing the gaps in outcomes experienced by different socio-economic groups. 4.10 UK Government guidance produced following the inclusion of the new duty in the Equality Act 2010, explained that socioeconomic disadvantage meant the state of being disadvantaged in life-in terms of getting on, getting educated, getting a job, etc,- by one or more of a range of external factors. 4.11 It is important to note that the duty only applied to decisions of a strategic nature. UK Government guidance indicates that decisions of a strategic nature are key, high-level decisions that determine how an organisation goes about its business. Further, the duty only applied to a limited number of public bodies. 19 4.12 The UK Government deliberately introduced a light touch approach to enforcement of the duty. It was envisaged that public bodies implementing the duty would be monitored by inspectorates, such as the Audit Commission and OFSTED, through existing mechanisms when assessing public bodies performances in line with their statutory duties. 18 In particular, Teresa May, the Equalities Minister, indicated that she had concerns that the duty would have been just another bureaucratic box to be ticked and would have meant more time filling in forms and less time focusing on policies that will make a real difference to peoples life chances. 19 Including a Minister of the Crown, Government Departments, local councils, Strategic Health Authorities, Primary Care Trusts, Regional Development Agencies and police authorities. Page 9
4.13 Critically, the Equality Human Rights Commission (EHRC) was not given specific enforcement powers relating to the duty; unlike the enforcement powers it was granted as regards the other public sector duties. 4.14 Commissioners will note that the use of inspectorates to monitor equality is a more common feature in Great Britain, than in Northern Ireland; and their enhanced role reflects the need for mechanisms that can deal with the large number of public bodies that are subject to the duties in Great Britain. It was also proposed that enforcement action could have taken through judicial review; as is the case under other GB equality duties. Other European countries 4.15 In addition, to developments in Great Britain, there have been developments both in other European countries and at European Commission level; in terms of highlighting the link between poverty and inequalities faced by individuals protected under the equality legislation and taking action to address these barriers. 4.16 For example, Commissioners will note that Equinet, the European network of equality bodies, published an opinion Addressing poverty and discrimination: Two sides of the one coin in 2010 20 which highlighted that whilst most European equality bodies did not have a mandate that included the ground of socio-economic status, in nine countries, national legislation did provide a mandate for equality bodies to promote equality and combat discrimination based on socio-economic status. 21 4.17 The survey on which the opinion was based also showed that poverty and the socio-economic status of people within the grounds that are covered by equality law can: act as a barrier to people coming forward with claims of discrimination; exacerbate the experience of discrimination; 20 http://equineteurope.org/addressing-poverty-and 21 Belgium, Bulgaria, Croatia, Czech Republic, Hungary, Latvia, Lithuania, Romania and Slovakia Page 10
increase the likelihood of discrimination happening; and form part of the structural causes of the inequality and discrimination they experience. EC/14/06/2 4.18 The Equinet opinion further highlighted the clear role for equality bodies to articulate the link between poverty and disadvantage. It suggested a range of initiatives that equality bodies could take to engage effectively with the challenges posed by this link. Such initiatives included, for example, greater dialogue with anti-poverty NGOs; making poverty and socio-economic status a visible factor in the work of the equality body; and ensuring a greater focus on poverty and socioeconomic status in public policy work. 4.19 It also made clear the key role of the European Commission in ensuring a focus on the link between poverty and discrimination through its Europe 2020 Strategy. 22 This Strategy for example, emphasised the importance of dovetailing social inclusion polices with effective anti-discrimination policies and the need for closer integration between social and anti-discrimination polices to address the specific disadvantages affecting large segments of the European population. 4.20 It is of note that the European Commission communication 23 mentions, in particular, discrimination experienced by women, disabled people, including those with mental health problems, and certain ethnic groups such as Roma, as a main factor increasing the risk of poverty. 5 NI Bill of Rights debate 5.1 The inclusion of socio-economic status as a protected equality ground and the creation of additional economic and social rights, were also considered in the context of developing a Bill of Rights for Northern Ireland. 5.2 Commissioners will note that the Northern Ireland Human Rights Commission (NIHRC) in its advice to the Secretary of 22 In the context of the Europe 2020 Strategy, the European Commission adopted in December 2010 a Communication on The European Platform against poverty and social exclusion. A European framework for social and territorial cohesion, 2010 23 Communication on The European Platform against poverty and social exclusion. A European framework for social and territorial cohesion, 2010 Page 11
State on a Bill of Rights for Northern Ireland in 2009 24 recommended that the Bill of Rights should contain a free standing right to equality that made it unlawful for a public authority to discriminate on a range of grounds including economic status. 5.3 In our response to the Northern Ireland Office (NIO) consultation on a Bill of Rights for Northern Ireland in 2010 25, we supported the inclusion of a right to equality within a Bill of Rights. We also highlighted that at the root of many inequalities are persistent poverty and/or socio-economic disadvantage and that such considerations must be taken into account in the framing of public policy and the decision making of public authorities. 5.4 Further, in our response we drew attention to the Joint Committee on Human Rights call for the inclusion in a UK Bill of Rights of a duty on the Government to achieve the progressive realisation of economic and social rights by legislative or other measures within available resources and highlighted our view that this may be a fruitful avenue for consideration. 5.5 Commissioners will further note that we reiterated our call for a freestanding right to equality to be included in a Bill of Rights in our response to the UK Commission on a Bill of Rights Discussion Paper: Do we need a UK Bill of Rights in 2011. 26 5.6 In its subsequent report 27 in 2012, the UK Commission on a Bill of Rights indicated that the majority of the members of the Commission believed that, on balance, there was a strong argument in favour of a UK Bill of Rights. It also highlighted that the most obvious candidate for inclusion would be the right to equality and non-discrimination currently enshrined in the Equality Act 2010, and in Protocol 12 of the European Convention on Human Rights which had not yet been ratified by the United Kingdom. 24 http://www.nihrc.org/uploads/publications/bill-of-rights-for-northern-ireland-advice-to-secretarystate-summary-2009.pdf 25 ECNI response to Bill of Rights, ECNI, 2010 26 http://www.equalityni.org/ecni/media/ecni/consultation%20responses/2011/ukbill_of_rightscons-response.pdf?ext=.pdf 27 http://www.justice.gov.uk/downloads/about/cbr/uk-bill-rights-vol-1.pdf Page 12
6 Proposed approach 6.1 It is proposed that the Commission continues to proactively highlight the clear link between poverty and inequalities faced by individuals protected under the equality legislation and stress the need for urgent action to address poverty and social exclusion experienced by a number of equality groups. 6.2 This would mean, for example, highlighting the link and the need for action in its planned policy work in updating its Key Inequalities Statements. It would also mean engaging with Government Departments and other key stakeholders to ensure that proposed strategies and plans have a greater focus on addressing poverty and social exclusion of vulnerable equality groups. 6.3 It is also proposed that the Commission retains its current policy position, and does not seek to include socioeconomic status as a separate anti-discrimination ground in single equality legislation nor as an additional ground under Section 75. 6.4 It is further proposed that the Commission keeps this policy position under review; for example, in the context of a review of the effectiveness of Section 75 and/or any review associated with new duties resulting from the move to an Equality & Good Relations Commission. 7 Action by Commissioners 7.1 Commissioners are asked to note the above update and to consider and approve the proposed approach. Policy and Research team June 2014 Page 13