Equality and Equity Report
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POLICY APPRAISAL AND FAIR TREATMENT
ANNUAL REPORT
1995
CENTRAL COMMUNITY RELATIONS UNIT
(June 1996)
FOREWORD BY THE SECRETARY OF STATE
Last year, the first report on the implementation of the Policy
Appraisal and Fair Treatment (PAFT) initiative was published.
It covered the calendar year 1994 when PAFT came into operation.
The PAFT guidelines, which apply in the Northern Ireland Office,
Northern Ireland Government Departments and many other parts of
the public service, require that an annual report should be made
to me on action taken to implement the initiative. I am now pleased
to be able to introduce the second such report, for the calendar
year 1995. This latest report gives further evidence of the evolving
nature of this initiative. The individual reports by Departments
show that the PAFT approach is becoming more deeply embedded within
the practice and policies of the public sector. Coupled with other
important developments in the legislative protection for ethnic
minorities and disabled people, this report indicates that 1995
was a significant year in advancing equality of opportunity in
Northern Ireland.
As with the previous report, I would recommend those who wish
to comment and give advice, to write to the relevant Department
or to the Central Community Relations Unit in Belfast.
SIR PATRICK MAYHEW QC MP
SECRETARY OF STATE FOR NORTHERN IRELAND
POLICY APPRAISAL AND FAIR TREATMENT
ANNUAL REPORT
1995
BACKGROUND TO INITIATIVE
| 1.1 | Guidelines on Policy Appraisal and Fair Treatment (PAFT) were issued by Central Secretariat in December 1993 to Northern Ireland Departments and the Northern Ireland Office. The guidelines envisaged preparation of an annual report to the Secretary of State and Ministers on the progress of the initiative. The Secretary of State subsequently decided that such reports should be published. This is the second such report, covering the calendar year 1995. As with the previous report, it includes annexes prepared by the six Northern Ireland Departments, the Northern Ireland Office and Central Secretariat, describing in detail the experience of each in implementing PAFT during 1995. This main report has been prepared by the Central Community Relations Unit, which is part of Central Secretariat and which has responsibility for oversight of the PAFT initiative.
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| 1.2 | The aim of the PAFT initiative is to ensure that issues of equality and equity inform policy making and action in all spheres and at all levels of Government activity, whether in regulatory and administrative functions or in the delivery of services to the public. The guidelines identify a number of areas where there is potential for discrimination or unequal treatment and outline steps which those responsible for the development of policy and the delivery of services should take to ensure that, in drawing up new policies or reviewing existing policies, they do not unjustifiably or unnecessarily discriminate against specified sections of the community.
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| 1.3 | Groups coming within the scope of the guidelines include people of different gender; age; ethnic origin; religious belief or political opinion; married and unmarried people; disabled and non-disabled people; people with or without dependants; and people of differing sexual orientation. In some cases discrimination is already illegal under existing statute - the Northern Ireland Constitution Act 1973 and the Fair Employment Acts relate to discrimination on grounds of religion or political opinion; and the Sex Discrimination (NI) Order 1976 outlaws discrimination on grounds of gender. A Disability Discrimination Act has recently been enacted. Legal protection against discrimination on grounds of race is planned for the near future. PAFT, however, goes beyond those areas specified in statute described above and requires Departments to have regard to wider issues of fairness and equity.
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| 1.4 | The first annual report had noted that the development of PAFT must be an evolving process. It had invited comments and advice in response to the report with a view to developing the implementation of PAFT. Subsequent to publication, comments were received from organisations and individuals. The Equality Committee of the Northern Ireland Committee of the Irish Congress of Trade Unions sought a meeting with the Head of the Northern Ireland Civil Service in September 1995 and voiced concerns about the pace of implementation and the Government's commitment to the initiative. PAFT was also raised by the Northern Ireland Committee at a meeting with the Secretary of State in December 1995. Officials of the Equal Opportunities Commission met with Government officials to convey their views on the report. Individuals have also contributed their views. Comments received informed thinking by Government officials when PAFT was discussed at senior level in October 1995 and steps were taken to sharpen its focus (see paragraph 2.7 below).
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IMPLEMENTATION IN 1995
| 2.1 | The previous Annual Report described the administrative arrangements established to implement PAFT and these will not be rehearsed again in this report. 1995 saw a period which held out the hope for political development and economic regeneration. The Government's political development aim was to secure a lasting peace through the achievement of comprehensive political agreement on structures which would provide for fair and effective Government in the interests of all sections of the Northern Ireland community. The Government's approach to political development was informed by the principles of equality of opportunity, equity of treatment and parity of esteem. In February 1995 the Government published 'Frameworks for the Future', including the British and Irish Governments' Joint Framework Document. The latter document envisaged future arrangements for the protection of fundamental rights and a commitment to the right to equal opportunity in all social and economic activity, regardless of class, creed, gender or colour.
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| 2.2 | The European Union responded to the new possibilities for economic and social regeneration in Northern Ireland with a Special Support Programme (SSP), additional to the considerable EU assistance already provided for Northern Ireland under the Single Programming Document and other initiatives. The SSP applied to both Northern Ireland and the Border Counties of the Republic of Ireland. The European Commission and both Governments were committed from the outset to ensuring that this initiative would impact equitably and would improve the position of socially excluded groups. PAFT considerations were integrated into the Programme Document which stated that:
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| "in the implementation of this Programme, the central aim will incorporate the principle that funding should be distributed equitably. This obligation will be built into any contracts with intermediary funding bodies/partnerships and will underpin allocations from Central Government. There will be an opportunity for all sectors of the community, irrespective of religion and gender, to play a role in decision-making bodies."
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| 2.3 | Innovative mechanisms were established to deliver the Programme. A range of Intermediary Funding Bodies (IFBS) were appointed by the European Commission, in consultation with the Government, to administer specific measures. The IFBs were already active in the community and voluntary sector. The Government's contracts with IFBs operating in Northern Ireland contained a specific reference to PAFT.. The second administrative innovation in the SSP was the creation of District Partnerships in district council areas, which brought together representatives of local government, the community sector and employer/employee interests. Financial allocations to District Partnerships were determined on the basis of population and social need. The Department of the Environment's guidance to the Partnerships emphasised PAFT considerations and specifically required them to assess their Action Plans in terms of the PAFT guidelines.
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| 2.4 | PAFT considerations featured prominently in "Guidance on Public Appointments", published by Central Secretariat in October 1995. Throughout the UK, Government practice in making appointments to public bodies has seen radical reform, in line with the recommendations of the Nolan Committee. In Northern Ireland, the Central Secretariat publication sought to describe standards and objectives in the making of public appointments, to offer general advice on identifying suitable candidates, and to set out responsibilities and special considerations in making public appointments. The Guidance drew attention to PAFT and highlighted particular issues which might arise in applying its principles in the making of public appointments, with reference to religion and political opinion, gender, ethnic minorities and disabled persons.
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| 2.5 | PAFT featured increasingly in published reports from Northern Ireland Departments. An example was the Department of the Environment's Housing Policy Review, "Building on Success" of December 1995. An Annex to the report listed the PAFT considerations which had been addressed in the Review, including fairness in the location and allocation of social housing, and housing for the elderly, disabled people and special needs groups.
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| 2.6 | Independent research is an essential contribution to policy making and the Central Community Relations Unit has a particular responsibility for social research on the issues addressed by PAFT. In 1995 CCRU commissioned two studies which should feed into policy development on a cross departmental basis. The first was a study by the University of Ulster of the demographic, social and employment profile of the main ethnic minority communities in Northern Ireland. This research will also obtain information from the ethnic minority communities on language competence, access to services, and experience of harassment and discrimination. The second research commission was a study of the equity of the public appointments system with reference to religion, gender and disability.
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| This research is also being conducted by the University of Ulster.
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Changes in PAFT Procedures
| 2.7 | Responses to the publication of the 1994 Annual Report had identified concerns about the rigour of departmental PAFT appraisals and the level of involvement by the Central Community Relations Unit in implementation by Departments of the PAFT guidance. The first annual report explained the relationship between CCRU and Departments, stressing that it was essential that Departments take full responsibility for assessing the implications of their own policies and for giving effect to the guidance within their own spheres of activity. However, in the fight of views expressed, consideration was given to how CCRU's support role could be strengthened and how the focus of PAFT generally could be sharpened. A number of proposals were endorsed by Northern Ireland Permanent Secretaries in October 1995 when it was agreed that:
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| - | submissions to Ministers on new policies, legislation, etc should include an annex setting out the PAFT appraisal, including those occasions when Departments concluded that there were no PAFT implications, so that the process by which this view was reached would be transparent;
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| - | CCRU would be consulted on PAFT assessments in five yearly reviews of major Departmental policies, both as a quality control measure and to allow CCRU to suggest scope for proactive steps to create greater equality of opportunity and equity of treatment;
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| - | Departments should make greater efforts to secure the commitment of Non-Departmental Public Bodies to PAFT principles.
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| 2.8 | CCRU also undertook to prepare detailed Model Appraisals which would assist Departments in the practicalities of applying PAFT and could form the basis for training courses. The Departments of the Environment, Economic Development and Health and Social Services offered to assist in this exercise by providing case studies. Work on the preparation of the Model Appraisals was in progress at the end of the year.
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| 2.9 | It is hoped that these Model Appraisals will be of use to Departments. It is not proposed to impose a rigid structure for Departments, which will remain responsible for the implementation of PAFT in their own spheres of responsibilities. However, this dissemination of good practice should enhance the standards of appraisal and will be particularly useful for training purposes.
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PAFT and the Employment Equality Review
| 2.10 | In November 1994 the Secretary of State asked the Standing Advisory Commission on Human Rights to carry forward the Review of Employment Equality (after five years' experience of the Fair Employment (NI) Act 1989), which had been initiated by the Central Community Relations Unit. The Secretary of State subsequently set out the remit of the review which was "to consider all aspects of fair employment (including the cost compliance effects on employers and employees), but notably the legal, social and economic dimension and the impact of relevant Government policies". PAFT is obviously a relevant policy in this respect and SACHR commissioned research in 1995 on the implementation and impact of PAFT. The research team was led by Professor Bob Osborne of the University of Ulster and it liaised closely with Departments. Professor Osborne's research was under way at the end of the year and will be published, along with other research findings, by SACHR in mid 1996. The Commission intends to publish its full report on employment equality towards the end of 1996 and this may possibly include specific recommendations on PAFT. Further details will be included in the next annual report.
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PAFT and Market Testing
| 2.11 | Probably the most controversial issue relating to PAFT which arose in the course of 1995 concerned market testing. For several years the Government has throughout the UK pursued a policy of greater involvement by the private sector in the delivery of public services as part of the drive for greater efficiency in service delivery and maximising cost savings. Market testing is only one aspect of a wider Government Reform Initiative (GRI). The trade union movement is opposed to many aspects of the GRI and would claim that equal opportunities issues are often involved where predominantly female workforces are the subject of market testing exercises. The Government on the other hand takes the view that the transfer of responsibility for delivery of services to the private sector does not necessarily disadvantage workers, particularly given the protection afforded by the Transfer of Undertakings (Protection of Employment) Regulations 1981, as amended in 1993, and the EC Acquired Rights Directive.
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| 2.12 | In 1995 the UNISON trade union brought a case of judicial review against the Down and Lisburn Health and Social Services Trust on the grounds that it had not applied the PAFT guidelines to a market test exercise. It transpired that, though the Management Executive of DHSS had notified Area Boards and Trusts of the existence of PAFT in early 1994, the actual guidelines had been distributed only to the Boards. The UNISON case therefore fell on the grounds that the Trust had not received the guidance. The judge indicated nonetheless that, had the guidance been in force, he would have expected to have seen evidence of its application to the market test. On 6 July 1995 the Management Executive issued the PAFT guidelines to the Boards, Trusts and Agencies to ensure the effective implementation by those bodies. The PAFT guidance itself makes clear that Next Steps Agencies must comply with PAFT and that Departments use all. appropriate measures at their disposal to ensure that NDPBs also comply. All other Departments had issued the PAFT guidance to relevant NDPBS.
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| 2.13 | The PAFT guidelines require Departments to use their best endeavours, consistent with legal and contractual obligations, to secure compliance with PAFT by those performing contracted-out services on their behalf. The primary purpose of this reference was to seek the delivery of contracted-out services to the public on the same basis of fairness and non-discrimination which would be expected from a public body. The controversy over market testing drew attention to the separate issue of the implications for the workforce in parts of the public sector where polices such as market testing, contracting-out and privatisation are applied. Where PAFT considerations are found to be relevant, it is, however, still entirely legitimate for a Department to conclude, on the basis of an assessment of the full range of factors at play, that greater benefit would be secured from implementation of the initiative. Furthermore, legislation predating PAFT, such as the Education and Libraries Order (NI) 1993, which introduced compulsory competitive tendering for certain functions of the Education and Library Boards, may limit the scope for the application of PAFT, since clearly statutory obligations take precedence over administrative guidance.
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| 2.14 | The Government is reviewing on a national basis its Competing for Quality Initiative, which includes market testing and contracting-out, to establish . whether it has delivered the anticipated results and to offer recommendations for the future. The outcome of this review will be examined for specific implications in Northern Ireland, including the PAFT dimension.
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| 2.15 | The Equal Opportunities Commission for Northern Ireland has conducted its own research on the impact of competitive tendering in the health and education services. This was a general formal investigation under Article 57 of the Sex Discrimination (NI) Order 1976. The EOC has the right to make recommendations for changes in policies or procedures with a view to promoting equality of opportunity between men and women. The Commission made an interim recommendation, on the basis of its draft report, that the Government should suspend its policy of competitive tendering in Health and Education Services in Northern Ireland. The Government decided not to suspend the policy, pending a full examination of the evidence contained in the EOC's report. Of the report's 35 recommendations, 6 relate to the application of the PAFT guidelines. The case studies on which the report is based related to the period before the introduction of the PAFT guidance and several of the recommendations would be expected to be part of current procedures. The final report was published in 1996 and is currently under consideration.
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| 2.16 | The controversy over market testing and competitive tendering points to the potential for tensions between the philosophy of PAFT and aspects of other Government policies. Many forms of discrimination are illegal under Northern Ireland statute and clearly cannot be breached by the Government. Other forms of differential treatment are legally permissible and PAFT requires Departments to consider carefully the potential for rectifying them. This may sometimes involve assessing the competing claims of different policies and this may ultimately be a matter for Ministerial judgement as to public interest. PAFT seeks to ensure that issues of equality and equity are given full weight in these considerations, but it cannot be assumed that PAFT considerations will always predominate.
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IMPACT ON RELEVANT GROUPS
| 3.1 | The individual Departmental and Central Secretariat reports printed at Appendices 1-8 set out in detail the action taken during 1995 to identify the scope for direct or indirect discrimination in the formulation of new policies, the review of existing policies and delivery of services. This section of the main report considers each of the eight categories where potential discrimination might arise and gives an overview of developments in respect of the relevant groups.
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People of Different Religious Beliefs or Political Opinions
| 3.2 | Northern Ireland has an extensive corpus of law designed to tackle discrimination on grounds of religion or political opinion applying to both the public and private sectors. The Fair Employment Acts 1976 and 1989 outlawed direct and indirect discrimination in employment. Since the passage of the 1989 Act, it had been planned to conduct a review of employment equality, after five years' experience of its provisions. Originally the responsibility of CCRU, the Secretary of State requested the Standing Advisory Commission for Human Rights to take forward the review. The Secretary of State sent formal terms of reference to SACHR in February 1995 and the Commission has since been engaged in a comprehensive examination of the subject, with an extensive research programme and mechanisms for public consultation. The Commission's report is expected to be published towards the end of 1996. The Northern Ireland Office has made available appropriate resources to allow the Commission to carry out a comprehensive review.
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| 3.3 | Two amendments were made to Fair Employment legislation during 1995. The Fair Employment (Amendment) Order (NI) 1995 removed the existing compensation limit of œ35,000. There is now no limitation on the compensation which can be awarded by the Fair Employment Tribunal. The ceiling has also been removed on compensation limits for sex discrimination (following a European Court of Justice case) and in race relations cases in GB. The Fair Employment Tribunal (Amendment) (NI) Order 1995 enabled the Fair Employment Tribunal to include interest in awards of compensation.
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| 3.4 | In line with Section 31 of the Fair Employment (NI) Act 1989, a service-wide review of fair participation and employment practices within the Northern Ireland Civil Service was carried out during 1995. The review addressed fair participation in Civil Service employment by Catholics and Protestants and considered affirmative action to secure improvements. The Department of Finance and Personnel will report to the Fair Employment Commission in 1996 and will subsequently publish a summary report.
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| 3.5 | The Government put forward proposals in 1995 to relax legal restrictions on Sunday trading, betting and sports. Sunday observance is a matter of some sensitivity for many people in Northern Ireland. It has been argued that the laws restricting activities on Sunday are an important aspect of Protestant culture. On the other hand, many people in both communities take a more relaxed attitude to Sunday leisure and seek the same freedom to pursue their interests as residents in England and Wales. After a process of public consultation, the Government developed legislative proposals which would permit sports, but not betting, on Sundays and which would allow wider opportunities for Sunday trading. As is the case in England and Wales, special provisions protect the interests of workers with religious objections to working on Sunday. The special exemption for Jewish-owned businesses, which applies in the legislation for England and Wales, could not be enacted in Northern Ireland, as the Northern Ireland Constitution Act 1973 prevented direct discrimination in favour of one religion. The implications of this were carefully considered in the context of PAFT. Any indirect disadvantage would relate, not to all members of the Jewish community in Northern Ireland, but only to those proprietors of large shops observing the Jewish Sabbath and who wish to operate without restriction on Sunday. There had been no evidence of exemptions having been sought under the existing 1946 legislation. Against this, the direct discrimination against the non-Jewish community would certainly be contrary to PAFT, as well as the NI Constitution Act. It was therefore decided not to include the exemption for Jewish-owned shops in the new legislation. The provisions on Sunday sports were laid before Parliament in 1996 in the Deregulation and Contracting-Out (NI) Order.
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| 3.6 | The Government's community relations policy also seeks to increase contact between members of the Catholic and Protestant communities and to create conditions where religious, political and cultural identity is accepted as not being threatening or divisive. The Government's community relations policy was given further impetus in 1995 when the European Union introduced its Special Support Programme for Peace and Reconciliation. The Northern Ireland Community Relations Council was designated as an intermediary funding body, with responsibility for the administration of a reconciliation measure. The Central Community Relations Unit directly supports the Community Relations Council and a range of other reconciliation groups. It also conducts research into community division and in 1995 funded an important new study of the social effects of communal segregation in rural Armagh.
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Men and Women
| 3.7 | Both domestic and European provisions outlaw discrimination on grounds of sex in employment and in the provision of goods and services. The Department of Economic Development is responsible for equal opportunities policy. During 1995 a steering group was established by DED, including representatives of industry, the community sector, the EOC and women's organisations to promote the "Fair Play" initiative in Northern Ireland. The initiative aims to improve women's success in employment and to promote equality of opportunity. DED also co-ordinated the third round of the Action Plans for Northern Ireland Departments.
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| 3.8 | The Central Secretariat guidance on public appointments in Northern Ireland (see paragraph 2.4 above) pays special attention to increasing the number of female members on public bodies. Shortlists submitted to Ministers for appointment to public bodies must contain at least one woman. Where external organisations fill positions on public bodies, Departments must ask for the inclusion of women in the names to be submitted for consideration. At March 1995 the proportion of women appointees on public bodies was 31.8%. This was a substantial increase on the 23% female representation in 1991, but still fell short of the 1994 target of 33%. Twenty-one public bodies had no female representation. The Central Appointments Unit of Central Secretariat continuously monitors the gender representation on individual public bodies and the totals for appointments by Departments. Women's participation in public bodies is also the subject of research commissioned by CCRU.
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| 3.9 | In February 1995 the Department of Finance and Personnel circulated to all staff a summary of research by external consultants on the culture of the Civil Service and its impact on equality of opportunity for male and female staff. The EOC's report on competitive tendering in health and education services was received in draft form in 1995. The report's implications for Government policy on market testing and contracting-out has been given full consideration (see para 2.15).
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Married and Unmarried People
| 3.10 | Though discrimination in employment against married people of either sex is illegal, there are many aspects of civil law where the distinction between married and unmarried people remains and is justifiable. A consultation paper on Domestic Violence and Occupation of the Family Home was issued by the Office of Law Reform in May 1995. This proposed giving cohabitants and former cohabitants legal remedies against victimisation by violent partners, though an unmarried cohabitant would be required to apply for occupation rights from a court before securing an order. Despite this residual distinction, the OLR proposals considerably reduced the discrimination between married and unmarried cohabitants in a sensitive area of social policy and law.
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| 3.11 | A draft Succession Order was also prepared to implement a number of recommendations made by the Law Commission. One of its provisions would permit a cohabitant to have a claim on a person's estate, as if he or she had lived with the deceased as husband or wife. The draft Order was subsequently published for consultation in 1996.
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People With or Without Dependants
| 3.12 | The Children (NI) Order was made in 1995. This is a comprehensive reform of existing law and is based on the principle that the welfare of the child is of prime consideration. DHSS and DENI took forward their policies on the Early Years Provision, following publication of a policy document in September 1994. An Early Years Development Fund was also established with the first awards announced in March 1995. The European Union's Special Support Programme contained a special measure on Promoting the Inclusion of Children and Young People with financial provisions of 16.8 Mecu in Northern Ireland. This will be aimed particularly at marginalised young people.
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People of Different Ethnic Groups
| 3.13 | A major step was taken towards extending protection against discrimination and social equality when the Secretary of State announced in April 1995 that he had decided to bring forward legislation on race relations. Responsibility for preparation of the new law was given to the Department of Economic Development. Its provisions will be broadly inline with the Race Relations Act in GB. However, it will specifically include Travellers within its Scope. It is hoped to be possible to publish draft legislation in the summer of 1996.
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| 3.14 | In preparation for the implications of the orders CCRU has commissioned a research study of the needs of the main ethnic minority communities in Northern Ireland. .The study will also attempt to identify more clearly the number of people in each community.
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| 3.15 | An inter-departmental review of the policies affecting Travellers, led byDOE, reported in 1995. The review covered the provision of accommodation, health, education, training and employment services.
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People With or Without a Disability
| 3.16 | The second major advance in anti-discrimination legislation in 1995 was the Disability Discrimination Act. This is UK-Wide legislation and it gives disabled people new rights in terms of both employment and goods and services. The Act makes special provision for a separate Northern Ireland Disability Council, which will advise Departments on disability discrimination and prepare codes of practice. The Council was established in March 1996 and the first provisions on rights of access and employment will come into operation later in the year.
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| 3.17 | Differentiation between people of different ages is often justified for practical reasons. However, PAFT requires Departments to consider carefully this justification. DOE's published review of housing policy highlighted a situation where such discrimination was justifiable. The Housing Executive's policy of encouraging sales to tenants does not include old people's dwellings. Though this may be regarded as disadvantaging elderly tenants, it is necessary to maintain a stock of purpose built public sector accommodation for old people. House sales could diminish the stock and hence the exception to the general policy was justifiable.
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People of Differing Sexual Orientation
| 3.18 | The Criminal Justice and Public Order Act 1994 reduced the age of consent for homosexual acts between males in Northern Ireland to 18. Since then, there has been no particular pressure for further changes to the law in this respect in Northern Ireland. However, there has been some private members' interest in Parliament in creating rights against discrimination on grounds of sexual orientation, and for giving legal recognition to the status of transsexuals.
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CONCLUSION
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4.1 | 1995 saw an extension of anti-discrimination protection in two major areas with the Government's announcement on race relations legislation and the passage of the Disability Discrimination Act. This momentum is part of a greater sensitivity to issues of equality and equity, in which the PAFT guidance also plays a major role. The first annual report described PAFT as an evolving process. it is hoped that the current report will give evidence of further stages in that evolution. Criticisms of the first report have been taken into account in sharpening the focus of the initiative. Further constructive criticism of Departments' performance in 1995 will again be welcome, but it is hoped that recognition will also be given to the widespread desire within the public sector to make genuine progress with PAFT.
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