Introduction

Response to the Draft Equality Schemes

CoSO Response to the draft Equality Scheme Guidelines

The deadline for responses to the Public Authority Equality Scheme Guidelines:  Initial Working Draft that were written by the Equality Commission Working Group is 1st December 1999.  

CoSO has already written an initial response and now seeks additional comments and amendments to add to the final version.  Please have these comments in by Monday, 29th November 1999.

[see also Commentary and Report on Meeting with Equality Commissioners]

CoSO response to the draft Equality Scheme Guidelines

CoSO does not intend this as a systematic response to every guideline. CoSO wishes to take the opportunity to endorse those draft guidelines which it is considers to be particularly appropriate and to make constructive criticism of draft guidelines which it feels require further clarification and strengthening particularly from a Lesbian, Gay, Bisexual and Transgendered (LGBT) perspective. CoSO does not intend this as a systematic response to every guideline.

§§2.2 We welcome the use of a Council of Europe source as the basis for the draft guideline definition of ‘mainstreaming’ and more generally welcome the placing of the statutory duty within a framework of international equality standards, for example in §§2.8-2.9.

§§2.4-2.9 We welcome the explanation of the benefits of mainstreaming in terms of an emphasis upon a proactive approach as the essence of impact assessment process.

§2.10 We have some concerns at the content of this paragraph.

While we accept that all parties, both Public Authorities (PAs) and representative groups, must be realistic about the limits of impact assessment, we feel that the second sentence of this paragraph creates a negative tone which is liable to creates the wrong impression in the rest of the document, not just for PAs but also for "others" (§2.11), i.e. those in the equality duty constituencies. First, we wonder whether this proposition needs to be articulated at this stage of the guidelines at all. We would prefer to have it postponed until an appropriate opportunity in Chapter 7.

Secondly, if some expression of this proposition is perceived to be necessary here, we would prefer that it is more constructively phrased to indicate the positive outcomes for equality of opportunity, and public policy making, which are likely to result from impact assessment. The paragraph could nonetheless leave open the possibility that a PA may wish to take other considerations into account as a perceived justification for the implementation of a policy which has adverse consequences on equality duty constituencies.

Chapter 3: Developing an effective internal system within the public authority

§§3.3-3.8 We endorse these guidelines, which focus responsibility for the implementation of the equality duty on decision-makers within PAs.

§§3.9-3.10 These are valuable guidelines on training but it would be helpful if PAs, as part of their training process, were encouraged to develop and maintain links with the representative bodies with which they will be dealing, by involving them in awareness raising exercises, particularly in relation to issues surrounding sexual orientation where awareness may be low.

§3.14 We are presuming that CoSO will be included in Appendix 5.

We feel that there are a number of sensitive issues in this chapter, which require clearer articulation.

§4.2 We propose that the opportunity be taken on a number of occasions in the guidelines to mention explicitly the new categories of inequality, age, dependency and sexual orientation, not previously governed by statutory enactment and to require PAs to pay particular attention to these questions.

Therefore, in §4.2 we recommend that a sentence be included after "equality of opportunity" which would read:-

"The Commission wishes to draw to the attention of public bodies the extension of acknowledged areas of inequality beyond existing areas of religious belief, political affiliation, gender, race and disability into new areas of inequality identified in the equality duty, namely, age, dependency and sexual orientation and strongly recommends that public bodies pay particular attention to issues surrounding these new areas in their implementation of these guidelines."

§4.3 We are uncomfortable with the juxtaposing of legality and justification in this paragraph, particularly in relation to an area such as sexual orientation where, subject to possible judicial review proceedings, particularly in the light of the equality duty, most acts of discrimination by public bodies on grounds of sexual orientation might still be perceived as ‘lawful’. Once again, we feel that this controversial question is raised at an early stage in the draft guidelines and may, without further elucidation, create more confusion than clarity.

We suggest the following amendment to the 3^rd sentence of §4.3:-

"Even where discrimination is still technically permissible, in the sense that it is ‘not unlawful’, public bodies are required under the equality duty to scrutinise closely the effects of their policies, particularly in areas not previously governed by statutory equality provisions."

We propose that the final sentence of §4.3 be deleted and replaced with the following, which takes a positive view of the outcome of impact assessment but, by implication, leaves open the possibility of perseverance with a policy which allows an adverse impact to remain:-

"During the course of impact assessment, public authorities are required to consider the adverse effects of their existing and proposed policies. It is therefore anticipated that many policies which have adverse effects on equality duty constituencies will, by the end of the process, be perceived to be unjustifiable."

§§4.12-4.15 CoSO strongly endorses, as indisputable, the definition of "functions" to include employment policies and procurement policies. To CoSO, the former is absolutely vital to the promotion of equality of opportunity within public bodies. Similarly CoSO strongly endorses §§4.14-4.15 as similarly giving a wide interpretation to "policies" meaning all policies and not just equal opportunity policies.

§4.15 We accept that purely individualised applications of policy should not be covered, except for the purposes of monitoring. Nevertheless, there will be situations in which the apparent application of existing policies through individualised decisions creates new policy, for example if the surviving partner in a same-sex relationship seeks to retain a Housing Executive tenancy. In such circumstances, a new policy stance on the part of the PA will result and should be subject to impact assessment as a "proposed" policy.

§§4.19-4.20 Overall CoSO is supportive of the community relations duty, however it would wish to see it extended to good relations between persons of differing sexual orientation. CoSO welcomes the fact that the equality duty is to be given greater weight.

§§4.21-4.24 CoSO emphasises that "due regard" indicates that there is significant weight to the duty.

§4.23 Once more CoSO feels that the final sentence of this paragraph could be more positively phrased, indeed that this sentence is unnecessary. We accept that there may be rare situations in which another intrinsically inconsistent statutory duty so clearly requires a PA to discriminate, e.g. a duty to pay pensions at 60 and 65, that the PA has no choice but to enforce it. But in all other cases, the duty to promote equality of opportunity should be clearly stated to apply.

§5.1 explains that the equality scheme process has 3 stages, I) 'drafting the draft' scheme, ii) consultation on the draft and iii) re-appraisal of the scheme.

§§5.2-5.5 The possibility of exemption. CoSO notes that this formulation virtually excludes the possibility of exemption (outside of sub-committees of local authorities) as it is difficult to see how any of the bodies listed in the 2 Northern Ireland Orders could possibly only have "minimal" activities.

§§5.6-5.8 These guidelines outline the process of 'screening' whereby the PA indicates which policies in which functional areas are to be subject to "fuller equality analysis" and which are not.

§5.6 In general CoSO would support prioritisation on basis of significant impact rather than centrality of policy to PA’s functions.

§§5.9-5.11 The Guidelines state that a systematic review of existing policies is required.

CoSO feels that these are important points, well stated and should be supported but there may be a danger that some PAs may conclude that they screen first and then undertake a systematic review of what is left. This is not what is intended but it might be clearer that the systematic review is part of the screening process, if a further definition of screening in §5.8 was given as "exploratory impact assessment".

Furthermore CoSO would suggest the following;

"Public authorities should nevertheless consider carefully the full range of inequalities identified in section 75 before reaching conclusions on this screening process."

might go into §5.10 after the sentence beginning "A fresh look must be given …"

§5.9 CoSO would suggest that the following phrase be added to the last sentence in §5.9;

§5.11 Given that the screening process is an exploratory impact assessment, a PA should include in their in equality scheme a full explanation as to why representations from representative groups have not yielded in a particular policy being included in the full impact assessment. Should the Equality Commission conclude that this point is made adequately in §5.28 CoSO would suggest that §5.11 refer specifically to §5.28.

§5.14 Overall CoSO supports these criteria. However the following points must be addressed. For reasons outlined in more detail in our response to Chapter 7; a solely statistical basis for screening discriminates against members of the LBGT community; the question of confidentiality is a crucial one for the LBGT community, and specifically CoSO feels that alternative assessment through representations is essential; CoSO presumes that PAs will make available resources for research and consultation and allow representative groups to carry out their own research without avoiding their duty to undertake research under §§5.14.1 and 2.

§5.17 CoSO is very supportive of this guideline.

§5.18 CoSO notes with approval this guideline, specifically §5.18.3 – the importance of publishing the results of assessments and monitoring.

§§6.2.1-6.2.2 We feel that perhaps what is now §6.2.2 should precede §6.2.1 While CoSO welcomes the advice in §6.2.2, it would also wish to see that PAs be encouraged to establish particular issues of concern with representative groups of those constituencies. We therefore suggest the following:-

"Public bodies are encouraged to approach the representative groups with which they propose to consult in order to establish issues of particular concern to each equality duty constituency, particularly in areas, such as age, dependency and sexual orientation, in which public bodies have previously given little consideration to equality issues."

§6.2.3 CoSO endorses this guideline as a sensible approach to means of communication with representative groups. We would however wish to add that there should be actual consultations about the means of consultation. Although PAs will be subject to strains on their resources so will representative groups, and a particular means of consultation should only be chosen, if possible, on the basis of agreement. We also feel that there are particular issues of privacy and confidentiality surrounding those prepared to make representations on behalf of the LGBT community and PAs should take such considerations into account in arranging consultations on LGBT issues.

§6.2.4 In the light of our comment above on limited resources, we also welcome this guideline as giving representative groups a realistic opportunity to establish their own positions.

§6.5 CoSO particularly welcomes the guidelines in §§6.5.3 and 6.5.4 as promoting a strategic and constructive vision of the relationship between PAs and representative groups.

§7.6 CoSO fully accepts the centrality of a statistical basis for the identification and monitoring of equality issues. Nevertheless, particular considerations apply to sexual orientation in that many members of the LGBT community although ‘out’ within the community may be reluctant to provide information on their sexual orientation to PAs.

§7.6.4 CoSO welcomes the prospect of further research into a wide agenda of issues concerning the LGBT community so long as such research is carried out in a discrete fashion and with the confidentiality of LGBT respondents fully protected. Particularly in relation to research into sexual orientation, PAs should be encouraged to contract out their research to autonomous organisations.

§7.6.5 CoSO anticipates that, as the equality duty becomes embedded in the policy making ethos of Northern Ireland, a sympathetic approach by PAs towards questions on sexual orientation will develop. However, at this stage in the process, we do have concerns that some PAs may seek to use the equality duty to pry unnecessarily into the private lives of their employees and recipients of their services. We therefore propose that a sentence be added to this guideline as follows:-

"Nevertheless, public bodies should be sensitive to the rights to privacy of their employees and recipients of their services, particularly on issues surrounding their sexual orientation."

§7.6.6 In this context, CoSO would wish for greater weight to be given to consultation on questions of sexual orientation, given the understandable reticence of some members of the LGBT community to identify their sexual orientation. We would therefore add to this guideline the following:-

"Without detracting from the significance of relevant data for the proper performance of the equality duty, particular issues of confidentiality may arise in relation to sexual orientation. Public bodies should be more willing to accept representations from representative groups on these questions than other areas of inequality in the absence of extensive data on the sexual orientation of their employees and recipients of their services."

§7.9 CoSO welcomes the transparency in decision-making, which will be brought about through the provision of documents and other information and considers such provision to be essential to the adequate performance of the equality duty.

§7.13 CoSO has particularly strong views on the merit of this guideline. It feels that consultations with representative groups will significantly enrich the eventual policy making of PAs and that PAs will be unable to perform their equality duty adequately without meaningful consultations. CoSO is of the view that an obligation to provide resources to representative groups is an implicit element in the statutory duty itself.

§7.18 We are generally happy with the formulation of this guideline. Since much discrimination on grounds of sexual orientation may be technically ‘lawful’, we re-iterate our comments made on §4.3, in particular that it should be reformulated in the light of our proposal. We are concerned that a concept of ‘justifiability’ in §4.3 has been replaced by a concept of ‘fairness’ in this guideline and that ‘justifiability’ emerges again in §§7.20 and 7.21. We would prefer consistency between the concepts in §4.3 and §§7.18-7.21. On balance, we feel that ‘justifiability’ is a more appropriate concept in the context of equality principles.

§7.19 While CoSO accepts that discrimination on grounds of sexual orientation may be ‘lawful discrimination’ in many situations, at least where gays and lesbians are not treated differently, it may well be the case that a totally unreasonable policy may be subject to judicial review. We would therefore wish to amend §7.19 as follows:-

" … policy makers will need to assess whether the policy is unlawful either as being contrary to discrimination statutes or as being ‘totally unreasonable or irrational’."

§7.23 CoSO feels that it is important amongst this discussion of what is lawful and what is justifiable to reiterate that there is no hierarchy of inequality within the equality duty. We therefore propose a new §7.23:-

§§7.23-7.34 CoSO fully endorses the emphatically expressed obligations in these guidelines.

§9.2 CoSO accepts that this guideline is constrained by the terminology in paragraph 10(2) of Schedule 9. However we have two concerns about the necessity of complaint by a ‘directly affected’ person. First, given that the term "person" in s75(3)(d) of the Act clearly is intended, in accordance with general principles of statutory interpretation, to include legal as well as natural ‘persons’, we presume that a representative group can complain about a failure on the part of a PA to consult adequately with that group. We would like to see the guideline clarified in this respect.

Our second concern is particular to questions of sexual orientation, although possibly relevant to other vulnerable members of equality duty constituencies, in that many members of the LGBT community may be unwilling to make a personal complaint on questions of impact assessment such as differential impact, alternatives and mitigation. We propose that the Commission should undertake an impact assessment of the effect of paragraph 10(2) on grounds of sexual orientation. If it is possible within the terms of paragraph 10(2) to allow a representative group to complain on behalf of members of the LGBT community who are without question directly affected by a particular policy of a PA, this should also be articulated within §9.2. To the extent that the Commission feels obliged to come a conclusion that this is not possible, CoSO is forced to infer that paragraph 10(2) itself is a contravention of the very equality duty which is intended to enforce. We would therefore require the amendment of paragraph 10(2) to achieve consistency with the duty. Although we welcome the alternative avenue of enforcement by way of Commission investigation under §§9.3-9.4, such investigation, at the discretion of the Commission, is no substitute for an effective system of individual or representative complaint.

We have one final point of general concern on the complaint and investigation procedures as determined by paragraphs 10, 11 and 12 of the Schedule. CoSO is disappointed that these paragraphs utilise what is essentially a ‘name and shame’ approach to enforcement more appropriate for an Ombudsman investigation of maladministration short of illegality rather than the breach of a statutory duty. CoSO is therefore of the view that the complaint procedure under Schedule 9 is not exhaustive and that judicial review proceedings would be open to individuals and representative groups whose rights in relation to the statutory duty have been infringed. CoSO would therefore wish to add a new §9.11:-

"9.11 Public bodies should also be aware that the complaint and investigation procedures in these guidelines do not necessarily preclude judicial review proceedings by persons aggrieved by the failure of the public body to fulfil all its responsibilities under the equality duty."

For an explanation of the main issues that give rise to the response please take a look at the  Commentary page.  Then e-mail us on coso_ni@hotmail.com and let us know what you think.

You can also take a look at Report on Meeting with Equality Commissioners