Response to the Northern Ireland Office’s consultation on the Section 75 Equality Duty – an Operational Review


Children’s Law Centre
September 2005


Contents




Introduction                                                                                                                                             3

General Comments                                                                                                                              3

Theme 1 – Integration of Equality Duty with Policy Formulation                                                   4

Theme 2 – Enhancing Performance and Sharing Good Practice                                                6

Theme 3 – Consultation                                                                                                                       8

Theme 4 – Monitoring                                                                                                                           9

Theme 5 – Communication and Raising the Profile of Section 75                                              10

Theme 6 – Matters for the Equality Commission Review                                                              10

Conclusion                                                                                                                                               11


Introduction
The Children’s Law Centre is an independent charitable organisation established in September 1997 which works towards a society where all children can participate, are valued, have their rights respected and guaranteed without discrimination and every child can achieve their full potential.
We offer training and research on children’s rights, we make submissions on law, policy and practice affecting children and young people and we run an advice/ information/ representation service. We have a dedicated free phone advice line for children and young people called CHALKY and a youth advisory group called Youth@clc.
Our organisation is founded on the principles enshrined in The United Nations Convention on the Rights of the Child, in particular:
• Children shall not be discriminated against and shall have equal access to protection.
• All decisions taken which affect children’s lives should be taken in the child’s best interests.
• Children have the right to have their voices heard in all matters concerning them.
The Children’s Law Centre is an active member of the Equality Coalition, a group committed to the promotion of equality of opportunity and the effective operation of section 75 which consists of more than 60 NGOs working on all the nine categories referred to in the legislation. From its perspective as an organisation, which works with and on behalf of children, both directly and indirectly, the Children's Law Centre is grateful for the opportunity to make this submission to the Northern Ireland Office (NIO) and to offer assistance and comment on the Operational Review of the Section 75 Equality Duty.
General Comments
The Children’s Law Centre believes that the implementation of Section 75 of the Northern Ireland Act 1998 is perhaps the most significant development in the promotion of equality of opportunity in recent years, offering a genuine opportunity for individuals and representative groups to meaningfully contribute to the development of legislation and policy in Northern Ireland. The Children’s Law Centre is firmly committed to the effective operation of the section 75 equality duty and has worked towards this since the implementation of the Northern Ireland Act. The importance of section 75 cannot be over emphasised and it is vital in reviewing any aspect of the equality duty that we acknowledge the high constitutional importance of section 75 in the context of the new settlement in Northern Ireland from the outset.

The promotion of equality of opportunity under section 75 should is a statutory duty and the language of enforceable legal duty has been used from its inception. Moreover it is a duty to have “due” regard, that is to say the regard that was owing, to such a constitutional and fundamental principle. The Equality duty is a single obligation, across all the stated grounds thereby emphasising its fundamental nature not a series of obligations having differential weight for instance in relation to religion and political opinion and in relation to matters such as age and dependency. The equality duty or statutory obligation was seen by the signatories to the Good Friday Agreement as a particular priority and was intended by the signatories to apply to all the functions of such public authorities.

It is clear that section 75 is a positive duty, requiring public authorities to be proactive in order to meet it. The Equality Commission’s Guide to the Statutory Duties makes it unequivocal that the section 75 equality duty goes much further than the elimination of discrimination.

“The promotion of equality of opportunity entails more than the elimination of discrimination. It requires proactive measures to be taken to secure equality of opportunity between the categories identified under Section 75” (Page 81, A guide to the implementation of the statutory duties on public authorities arising from Section 75 of the Northern Ireland Act 1998 - Revised February 2005)

While the fundamental importance of the section 75 equality duty is clear, as is the need for public authorities to be proactive in meeting their obligations, there have been a number of problems with the operation of the duty. These are mainly as a result of the failure of public authorities and government departments to afford the correct degree of importance and political will to the effective operation of the duty as was clearly intended from its inception. This has been more prevalent under Direct Rule due to the lack of local political accountability and the fact that Direct Rule Ministers are least likely to have been involved in the formulation of section 75 and may be unaware of its importance as a constitutional cornerstone to the Good Friday Agreement. This can be demonstrated by the worrying number of policies and pieces of legislation which we have inherited as a direct read across from England and Wales without regard for the specific circumstances of Northern Ireland or indeed any meaningful attention shown to section 75 as it operates in Northern Ireland. This is a matter of grave concern as the duties imposed under section 75 apply whether we are in a climate of direct rule or devolution. The fact that this has not been the case indicates a failure on behalf of public bodies and government departments to discharge their statutory duty, attribute the correct degree of importance to section 75 and a lack of political will to ensure its effective implementation.

We have a number of concerns in relation to the action already underway and proposed actions in the consultation paper in that it is unclear how these actions will address the issues raised. We strongly advocate regular and thorough monitoring of the actions, both proposed and underway and remedial action if it is decided that the actions are not addressing the issues or having a substantial positive impact.

Theme 1 – Integration of Equality Duty with Policy Formulation
It has been the experience of the Children’s Law Centre that the application of section 75 has been much more successful at the policy delivery stage, rather than at the policy formulation stage. The Equality Commission’s Guide to the Statutory Duties does not distinguish between high and ordinary levels of policy, yet increasingly we have been informed that section 75 does not apply to policies deemed to be high level. This is particularly concerning as very often these are the policies which have the greatest impact on the Northern Ireland public, for example, the development of the government’s Budget and Priorities and the Review of Public Administration. We believe that this is contrary to the letter and spirit of section 75 which intends for the equality duty to be central to the policy decision-making process, regardless of the perceived level of the policy. This involves consideration of section 75 at all stages of policy formulation, development and implementation. The Equality Commission’s Guidance for Implementing Section 75 of the Northern Ireland Act 1998 states that,
“1.4 The new statutory duties make equality central to the whole range of public policy decision-making. This approach is often referred to as “mainstreaming”. The Council of Europe has defined mainstreaming as:

“the (re)organisation, improvement, development and evaluation of policy processes, so that a[n] … equality perspective is incorporated in all policies at all levels and at all stages, by the actors normally involved in policy-making”.” (Gender mainstreaming conceptual framework, methodology and presentation of good practices. Council of Europe, Strasbourg May 1998) (Our emphasis)

It is clear from this that the intention of section 75 is to mainstream equality, making it central to policy decision making. In order for an equality perspective to be central to policy making it needs to be incorporated in all policies at all levels and stages. This would unequivocally involve incorporation of the principles of equality of opportunity from the beginning of the process and throughout the development and implementation of the policy, regardless of the level of the policy. We believe the failure to apply the section 75 equality duty at the highest level of policy formulation is a means of shirking the equality duty in the formulation of the most important policies of all. The government are the duty bearers in relation to section 75 and there are clearly issues around their interpretation that it is acceptable to fail to apply the equality duty in certain circumstances. It is our view, and we believe the intention of section 75 as detailed in the Equality Commission’s Guide to the Statutory Duties, that it is a clear breach of the statutory duty to waive the equality duty as imposed upon public bodies and government departments by section 75 in the formulation of legislation and policy and to do so runs entirely contrary to the spirit and intention of the legislation.

In addition, failure to effectively apply the section 75 equality duty to high level policies presents problems as a result of our structures of governance. While there is engagement at the lower levels of policy formulation, with the lower, more local structures, such as Councils, Trusts and Boards, if section 75 is not being effectively applied at Departmental level, there is a limited amount the lower levels of the structures of governance can do regardless of their genuine commitment to the equality duty. It is clear that there is an urgent need for section 75 to be given effect at the highest levels of policy formulation.

There is also an issue around monitoring to establish whether consultation is effective. In the formulation of policy, while there are varying degrees of engagement by public bodies in relation to consultation, there are also varying degrees of how this consultation and the views expressed impact upon the final formulation of policy. It has been the case that what we viewed as very serious breaches of the equality duty and other domestic and international legislation have come to light in a number of consultation processes. While these breaches were raised by a number of organisations in their responses, there were numerous failures to take these views into account. We have concerns in relation to the importance placed on consultation and the views expressed and the impact that these views have in the formulation of policy.

Additional issues exist in relation to the turnover of civil service staff which impedes true expertise in relation to section 75 in the public sector and the number of mixed messages which are received from public bodies and government departments. Examples of these include the establishment of a Commissioner for Children and Young People and a Minister for Children in Northern Ireland, asserting the importance of children and young people in our community and the introduction of Anti-Social Behaviour Orders which will have a disproportionate adverse impact on children and result in the criminalisation of young people for behaviour disproportionately engaged in by young people, such as ‘hanging around’. This is also the case in relation to the PSI Working Group on Travellers, which aims to improve the lives of members of the Travelling community in Northern Ireland and the implementation of the Unauthorised Encampments Order which will criminalise Travellers for their nomadic way of life.

Perhaps the most challenging aspect of the meaningful application of section 75 in policy formulation is the perceived lack of political will. Departmental Equality Schemes are signed off by Ministers because it was recognised at the inception of section 75 that the responsibility for the effective operation of the equality duty should rest at the highest level in government, thus affording section 75 the importance it was intended to have. It is our view that there is a distinct lack of understanding by Ministers of the importance of section 75 and its constitutional status in Northern Ireland. This can be demonstrated by the increasing number of policies being introduced in Northern Ireland which are identical to those in operation in Great Britain, without any cognisance being given to the particular circumstances of Northern Ireland. An example of this are the Age Regulations currently being consulted on which are a direct read across from Great Britain, despite the much greater percentage population of young people in Northern Ireland and the fact that we are emerging from thirty years of conflict. There is a need to establish high level accountability to ensure that section 75 is complied with and the importance of it is understood. We believe that the best way to ensure this is through the establishment of a Permanent Secretary and Ministerial forum which is advised by independent experts where issues in relation to the equality duty are regularly discussed and affirmative action is taken.

Theme 2 – Enhancing Performance and Sharing Good Practice

The Equality Commission’s annual progress reports are the main vehicle for the sharing of good practice in an attempt to enhance performance. These reports are not useful in highlighting the numerous examples of good practice which exist and are based on a bland template which relies on self-assessment. We believe that a system of robust audit should be carried out in place of the rather half-hearted system currently in operation which does nothing to ensure the dissemination of good practice and enhanced performance. It has been our experience that public bodies who have best practice in relation to equality are much more likely to be operating it on a daily basis and due to its intensive nature, are less likely to have the time and resources to share it. In introducing a robust system of audit of best practice, the onus would not however shift to being the responsibility of the Equality Commission. Government are the duty bearers in relation to section 75 and this statutory responsibility should not be delegated to an alternative body. It is the responsibility of Government to ensure that models and examples of best practice are shared and that benchmarking of what works in delivering equality of opportunity is carried out. We believe that sharing good practice and detailing what good practice actually is would be much more useful in ensuring enhanced performance, rather than the current system of following a template.

It has been our experience that public bodies and government departments tend to rely on respondents to consultation exercises to highlight available data and relevant research. While resourcing the implementation of the section 75 equality duty is a huge issue for the public sector, regardless of the fact that public authorities commit by virtue of their approved Equality Schemes to resourcing section 75, it is also an issue for the voluntary and community sector who receive no additional resources to carry out work in relation to section 75 and are often in the position of having to raise the same concerns time and time again both with units within the same Departments and cross-departmentally. While this is not good practice, there is also a need to learn from previous consultation exercises in the promotion of good practice. This is clearly repetition rather than learning from inappropriate practice and in such instances commitment to the equality duty must be queried. There is a need for public bodies and Departments to share information from consultation exercises and to learn from previous exercises in an effort to make progress and demonstrate genuine commitment to the equality duty.

We believe that this sharing of and learning from information would go some way to more effective consultation and result in better targeting of the limited resources which exist. There would also be merit in sharing information and learning from views expressed to ensure good working relationships between public bodies and respondents by reducing the level of frustration felt at being forced to reiterate comments which have not been taken into account from previous exercises in formulating the present consultation document. We believe that a database should be developed to allow for responses and comments to be shared and lessons learned cross sectorally. There is also a related point in any discussion of sharing good practice and this relates to the operationalising of good practice, in particular by those bodies who the rest of the Government Departments and public bodies would expect to be exponents of best practice, namely the Equality Commission and the Equality Directorate of OFMDFM. Regrettably this has not been our experience.

We have a concern also about the actions underway in relation to this theme. The document states that one of the actions already underway are,

“The Equality Commission has placed on its website, a database of good practice and equality outcomes.”

We are unaware of the database of good practice and equality outcomes on the Equality Commission’s website as it does not appear to have been placed on the website to date.

In terms of sharing of good practice, there are a number of methods to ensure that this is carried out much more effectively, such as co-ordinated or themed consultations, such as those from the health family, similar organisations working together on similar areas, such as joint Council consultations on the same issues allowing for a pooling of resources and much more meaningful consultation with interested parties. There is also the option of using services to consult on the services themselves, an example of this would be to place consultation questions on refuse collection services on bins.
Theme 3 - Consultation

There are issues around direct consultation which the majority of public bodies and Government Departments are not doing effectively, if at all, at present. This is particularly apparent in relation to direct consultation with children and young people. Such consultation is essential not only in ensuring compliance with section 75 and the relevant Government Department’s equality scheme, but also in ensuring compliance with the obligations of Government under Article 12 of the United Nations Convention on the Rights of the Child (UNCRC) - one of the principles of the Convention - Respect for the views of the Child. In examining the government’s compliance with Article 12, the UNCRC Committee recommended that the government,

“...take further steps to promote, facilitate and monitor systematic, meaningful and effective participation of all groups of children in society”. (Para 30 CRC/C/15/Add.188)

In order to meet their obligations, there is clearly a need for public bodies and Government Departments to embed the ethos of section 75 and meaningful consultation and the development of skills and commitment of adequate resources to carry out extensive consultation.

There is a major issue in relation to the analysis of responses and the systems put in place to ensure that this is done systematically and to attribute the appropriate degree of weight to the responses received. As a matter of course, the Children’s Law Centre asks questions in relation to analysis and weighting in each consultation response it makes. To date we have yet to receive a response from any Government Department or public body. This point goes to the core of the section 75 duty and relates again to meaningful consultation, impact of responses and taking the views of respondents, who are unresourced and very often ill-equipped in terms of time and workload to make responses to consultation exercises, into account.

We are also aware of a number of instances where there has been particularly bad practice such as private companies being employed to analyse responses to consultation exercises. This is of serious concern as it undermines the process entirely and we fail to see how this practice could possibly result in embedding equality within Government. We took part in a consultation exercise earlier in 2005 where we were informed that the Minister was being briefed in relation to the consultation on the same day as the date we were advised we could submit our response, leaving only a matter of hours for analysis and consideration of responses, if such actually occurred.

We have a concern also about the actions underway in relation to this theme. The document states that two of the actions already underway are,

“Equality Commission to develop guidance on Section 75 consultation with Children and Young People through a group including OFMDFM, the Commissioner for Children and Young People, the NIHRC and the voluntary and community sector

Equality Commission to take forward training on this guidance with public authorities.”

While we are aware of initial discussions in January 2005 in relation to establishing a child participation forum to develop guidance, this has not progressed to date. As a result, training on the guidance has not taken place to date either. We wish to express an element of scepticism in relation to the actions underway.

Theme 4 – Monitoring

We wish to reiterate the importance of section 75 and the obligations it places on Government. While the Equality Commission has an additional monitoring role as the watchdog of section 75, Government, as the duty bearer, has a very clear role in carrying out thorough monitoring in order to meet its statutory obligations. There is a serious lack of data which exists in relation to children and young people’s lives in Northern Ireland and it is the responsibility of Government to collect this data so that we can conduct effective and useful monitoring. We feel that this is the first time that Government is seriously beginning to look at the area of monitoring and believe that monitoring should have been addressed at a much earlier stage in the process. It is welcome to note the greater emphasis in the Equality Commission’s Practical Guidance but we would welcome a commitment from Government to training on the Guidance and its implementation.

There is an urgent need for the collection of disaggregated data and the use of comparable data sets across agencies and jurisdictions. It is widely accepted that the statistics produced in relation to the state of children’s rights in NI are limited and that those produced cross different parameters, timescales and ages. The UNCRC Committee’s General Comment No 5 stresses that,

“...sufficient and reliable data collection on children, disaggregated to enable identification of discrimination and/or disparities in the realisation of rights” is an essential part of implementation (CRC/GC/2003/5 para. 48)

Reporting guidelines for periodic reports on the UNCRC point out that quantitative information should indicate variations between geographical areas and between groups of children.

In its 2002 concluding observations the UNCRC Committee recommended that the UK establish a nationwide system whereby disaggregated data are collected on all persons under 18 years of age for all areas covered by the UNCRC and that these data be used to assess policies and progress to implement the UNCRC. (CRC/C/Add.188. para 49) The potential for collaboration with research bodies/universities in this work, as recommended by the UNCRC Committee, should be explored, while acknowledging that most of the required baseline data is, or should be in the possession of Government departments and statutory responsibility for data collection rests with Government.

Indicators for monitoring must be put in place from the very beginning and should be in operation from the conception of a policy to ensure its development and delivery of the desired outcomes. There is a need for disaggregated baseline data to determine progress made towards outcomes or otherwise. It will not be possible to monitor if indicators are not in place from the beginning and we feel that this is an area for urgent attention.



Theme 5 – Communication and Raising the Profile of Section 75

This is an area where we believe there have been problems from the beginning of the implementation of 75 as there has been relatively little communication in relation to section 75 and the various protections which it offers to members of the nine categories detailed in the legislation. There is clearly a need for a public information, awareness raising campaign, detailing the protections offered to the public by virtue of the legislation. Again there is a need for the demonstration of top level commitment to section 75, rather than passing references being made to the equality duty. Communication of section 75 should be more than purely lip service and should be accompanied by change. The failure in some instances of Government to deliver on section 75 creates a sense of alienation and the equality duty of section 75 needs to be transposed into actions. The recent Anti-Poverty Strategy consultation highlighted the fact that inequality is actually increasing in Northern Ireland, which is understandably giving rise to a growing sense of frustration. Section 75 should not be used as a smoke screen for Government to hide behind to justify doing nothing.

We note with some concern that four of the five proposed actions to address the issue of communication and raising the profile of section 75 rests with the Equality Commission. Again, we reiterate the fact that section 75 places an obligation on Government and there should be no negation of Government’s responsibility in relation to the equality duty. The Equality Commission certainly have a role to help Government with monitoring and raising the profile of section 75, but it must be remembered that it was Government who signed up to the Good Friday Agreement and made the commitment to deliver upon section 75. Part of this commitment involves raising awareness of section 75 and Government must discharge this aspect of its duty. There should be a clear and demonstrable commitment to section 75 through Government action, rather than confusion over ownership, with only one action being the responsibility of public authorities.

Section 75 and its equality duty underpins all Government action and it is essential that Government leads from the front, taking a robust approach to inequality rather than playing down the inequalities which exist within our society. Press releases and statements which play down the level of inequality which exists and figures which obscure the realities in society do little but frustrate and demonstrate a lack of actual commitment to the delivery of section 75.

Theme 6 – Matters for the Equality Commission Review

We have considerable concern around the fact that the Equality Commission has a role in examining its own effectiveness and would argue that there should be external, independent involvement in carrying out the effectiveness review. We also believe that the Equality Commission should be budgeting for the review at this stage and are concerned that there is a view that the review can be carried out within budget. We are aware that the Equality Commission are drafting the terms of reference of the review at present. We feel that there should be consultation and direct dialogue with organisations such as the Children’s Law Centre to draft a meaningful terms of reference and to ensure that the effectiveness review addresses all the issues which it needs to. We do not wish to raise any other issues for the Equality Commission’s review in this forum and feel that it is vital that the reviews are kept separate and issues for the Equality Commission’s review raised with the Equality Commission themselves.

Conclusion

The Children’s Law Centre strongly supports the section 75 equality duty and is firmly committed to its effective operation. Section 75 is a constitutional cornerstone of the new settlement in Northern Ireland and it is fundamental that the correct degree of importance is given to the equality duty from the very highest levels of Government down. We are grateful to have the opportunity to comment on the Northern Ireland Office’s consultation on the Operational Review of the Section 75 Equality Duty. We hope that our comments have been constructive and useful and are more than happy to meet with NIO staff to discuss anything raised in this response. We wish to be kept informed of progress in the development of the Operational Review of the Section 75 Equality Duty in Northern Ireland and look forward to the issues raised in this response being addressed, taken forward by the NIO and hearing from the NIO in the near future.