Issue 3-2023-200dpi

28 August 2003 Edition

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Delivering on the Equality Agenda?

BY UNA GILLESPIE

While the last 30 years of anti-discrimination legislation failed to eradicate the inequalities nationalists experienced in the north of Ireland, the Good Friday Agreement represented a new optimism. Nationalists were optimistic that the internationally binding agreement would begin to see those inequalities and discrimination that were at the root of the conflict here being tackled and consigned to the annals of history. New legislation and new Equality Commission were created to address inequality and discrimination.

Section 75 of the NI Act 1998 states that each public authority is required in carrying out its functions to have due regard to the need to promote equality of opportunity between certain constituencies and groups. The categories between which equality of opportunity is to be promoted are;

  • Between persons of different religious belief
  • Political opinion
  • Racial group
  • Age,
  • Marital status
  • Sexual orientation
  • Between men and women generally
  • Between persons with a disability and persons without
  • Between persons with dependents and persons without.

While this legislation extended the categories of people who suffered discrimination and inequality, there were certain notable omissions, such as on the basis of class or socio-economic status, former political prisoners and the Irish language community. While drowning groups and organisations in paperwork, section 75 did have the effect of mainstreaming equality issues at the heart of policy and decision-making. Now, all government departments and public bodies are required to publish equality schemes, ensure equality training for staff and subject all new policies and functions to equality impact assessment.

Section 75 has been the focus for ministerial and civil service antipathy in a number of cases. Some bodies try to hide behind the fact that statistical evidence may not be available to make an adequate assessment. They then state if there is no available evidence that there will be no negative impact on the grounds of equality, then that in itself means there is no negative impact and therefore nothing else needs to be done.

Others say that the need to promote equality of opportunity between specific categories means that each must be treated in a balanced way. It is a rather disingenuous way in which to avoid taking steps to address the inequalities and maintain the status quo. Others try to state, such as the Department of Employment and Learning, that all their policies were about eliminating inequalities and therefore should not be subject to equality impact assessment.

Perhaps the most worrying of all was the manner in which the Department of Social Development (once under the ministerial responsibility of the DUP) approached the issue. In many funding decisions that ministers have taken, they apply the top 50 most deprived wards (70% of which are Catholic) then eliminate them by population, applying a criteria of wards that have no fewer than 500 population and no greater than 5,000. A cursory glance at the religious breakdown will show that the majority of the wards that are then eliminated (80%) are Catholic. Then the criteria of interface areas is added, eliminating most wards outside of Belfast and Derry, and they also apply the criteria of including wards that have high levels of internecine violence, (translate for that feuding loyalist areas). Also added to areas eligible for financial assistance are areas of weak community infrastructure, roughly translated again as loyalist areas, and the outcome is discrimination against nationalist areas and added injections of finance into loyalist areas.

While departments and funders state that funding has to go to areas of greatest objective need, this is not happening here as a sectarian agenda is pursued.

Equality versus good relations

With the implementation of Section 75, the political debate about equality versus community relations has been raging anew. The promotion of good relations does not carry the equivalent legal weight as the promotion of equality of opportunity but that has not stopped departments, public bodies and indeed political parties giving added weight to the community relation's agenda. They adhere to the failed community relations paradigm, which has been about the pacification of communities and not about ending the inequalities that gave rise to the conflict. This flawed analysis instead blames the victim for the sectarianism that is rife in this state and allows the middle classes to abdicate responsibility for sectarianism and discrimination and to shake their heads in bewilderment that people just cannot live together as all 'right thinking people' should!

This debate raged during the peace negotiations, with some parties wanting community relations to have equivalent legal status as equality. They did not succeed but this does not prevent a whole plethora of bodies and civil servants behaving as though it is.

The most startling manifestation of this is the consultation document on the new good relations policy, titled a 'Shared Future'. This document openly admits that despite hundreds of millions of pounds being spent on community relations by public bodies over the years, the policy has failed. The evidence has shown that communities have become more polarised, housing has become more segregated and employment has become increasingly polarised, yet there is no analysis as to why this policy failed. Instead, there is a grim determination to ignore the equality duty both in spirit and letter and to pursue a failed policy based on a false analysis of inequalities in this state and the nature of the conflict. Good relations can only be based on the achievement of equality and not vice versa.

Section 75 is ultimately supposed to be about the redistribution of resources to those suffering inequalities and in greatest need. It remains to be seen in the long term whether this will be the case.

For all its problems it does place equality at the heart of decision making, but the battle is still far from over.

Guardianship of the Equality Agenda

Post Good Friday Agreement guardianship of the equality agenda was handed to the Equality Commission. They remain the only body with the powers to monitor and act as a watchdog and champion of equality.

Despite the best efforts of parties to have an Equality Department established, both the SDLP and the UUP colluded to ensure that this did not happen. Instead, equality was given to the Office of the First and Deputy First Minister (OFMDFM). This responsibility ultimately wound up with Denis Haughey and Dermott Nesbitt, both of whom publicly stated that they had come to an agreement on how to proceed with the issue. The only problem was that their strategy was never made public. This is the same department that has overseen the expenditure of millions of pounds on community relations and then complains about government departments spending £2 million on consultation on the equality duty (which is, after all, a statutory requirement).

The Equality Commission has been given responsibility for all the equality constituencies and has encountered a number of problems similar to those of the Human Rights Commission:

•Appointments to the Commission are made by the NIO. This is not an independence appointment procedure and has resulted in very strange appointments, not least of which is the appointment of Daphne Trimble, not previously renowned as an advocate of equality. Mirroring the appointment of Chris McGimpsey of the UUP, the Equality Commission has now been handed a severe blow to its credibility and political independence.

Unlike the Human Rights Commission, the Equality Commission has 18 commissioners and with about three notable exceptions, can any of them be named, indeed has anybody ever seen any of these people? The other issue about the appointment of Commissioners is that they do not have to have any experience of equality issues. Despite the vast number of Commission nonentities, the NIO still could not manage to find any Commissioner from an ethnic minority community or among people with disabilities.

This probably comes from a lack of effort in the NIO to positively discriminate in favour of people within these two categories or to re-advertise the posts to ensure applications from these groups, combined with a serious problem of the Equality Commission's image as being inept and powerless.

•There is also a problem with the notion of the Equality Commission being independent, depending as it does on funding from government departments and the fact that its functions and duties are overseen by OFMDFM. The irony of this is that the Equality Commission under Section 75 of the NI has a statutory obligation to monitor the functions of OFMDFM.

•The Equality Commission has been susceptible to the same approach to religious belief and political opinion as not a few public bodies, i.e. it has been dealt with, it is not a priority issue, let's deal with something less controversial. The Commission has also made the same mistake as the Human Rights Commission in trying not to rock the boat and not upset unionists and take a balanced approached to the situation as opposed to vigorously challenging religious and political discrimination. By adopting this approach, they serve no one, not least the people they are supposed to protect.

•Perhaps as far as religious discrimination is concerned, the most damaging decision that the Commission took was to 'refine' its policy towards the funding of legal cases. The Commission in 2002 took the decision that it would be reducing the number of legal cases that it would be prepared to support. This policy 'refinement' was taken without any consultation and without an equality impact assessment. This decision will mean a 75% drop in the number of cases the Commission will be supporting.

The Commission now argues that it will only support cases that test new points of law. This will have severe implications for people seeking to case of religious and sex discrimination, as it will be argued that most points of law have already been tested. This will potentially affect hundreds of people. This decision was taken despite the fact that there has been a 160% increase in the number of applications to the Fair Employment Tribunals over the last decade and the fact that complaints on the grounds of religious discrimination still account for the greatest number of complaints lodged every year.

The ultimate outcome of this is that publicity will say that there are fewer complaints with grounds for a legal case, therefore discrimination on the ground of religion and political opinion is disappearing. This only serves to mask the ugly reality of the situation.

Equally dangerous is the message that this sends out to employers that that there will no longer be any legal incentive on them to behave in a non discriminate fashion an that they are less likely to have complaints against them heard in courts or tribunal therefore less punitive damages to pay out. This move effectively removes the only sanction that was in place to ensure employers, both public and private adhered to the legislation.

•The Equality Commission has serious internal problems, not least with their invisible Commissioners, but there is also the issue of the level of staffing for the Statutory Duty Unit, which is completely insufficient for the workload and monitoring required of it. After its first five years, the Commission is undergoing an internal review. Unless there are answers forthcoming to some fundamental questions, the Equality Commission will, like the Human Rights Commission, fail to live up to expectations and worse, fail in its duty to protect and defend the rights of the most vulnerable and disadvantaged people in our society.

Questions requiring answers and indeed resolution include:

  • Why is the review not analysing the role and performance of Commissioners?
  • The Commission's monitoring systems are deficient? Why is this and what will be done to rectify this?
  • How many days due to sick leave have been lost within the Commission and how many cases have been lodged with Tribunals by the Commission's own staff? Indications are that there have been almost 30 while there was massive media hype around the fact that the NI Tourist Board had 7/8 cases lodged against it. There seems to be no concern that the guardians of equality in this state do not appear to be a shining example of good practice themselves.
  • What are the budgetary implications of legal assistance decisions and what impact will this have on 'client groups'?
  • Will the review also examine the role of OFMDFM, which has a responsibility to monitor the effectiveness of the Equality Commission.

There are serious management, strategic and legal problems within the Commission which have to be urgently addressed to ensure that the Commission will turn itself around and begin to fulfil the expectations people had when they voted for the Good Friday Agreement and the institutions that were to emanate from it.

What also has appeared to have been lost in the general fallout from the collapsing of the institutions is the fact that the British government allowed David Trimble and his camp followers to perpetrate the biggest act of political discrimination and collapse the entire political setup simply because they cannot countenance the notion of equality for Catholics and nationalists and are not prepared to engage in any real power sharing. A case of the more things change the more they stay the same?


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