Section 75 Northern Ireland Act 1998
Guide to the statutory duties, Practical Guidance on Equality Impact Assessment
published by the Northern Ireland Equality Commission (both available from www.equalityni.org)
Imagine if all public bodies were required by law to equality proof their work by reference to gender, race, disability, religion and other potential grounds of adverse impact. Such a new wide-ranging duty has already been introduced in Northern Ireland as part of the 1998 'Good Friday Agreement' and is at a early stage of implementation.
The statutory equality duty replaced the previous more limited 1993 PAFT (Policy Appraisal & Fair Treatment) guidelines. PAFT had been much criticised on grounds including the lack of a statutory basis; the lack of any adequate monitoring system; the very uneven response across public bodies; its limited remit which did not extend to many public bodies including local authorities; the lack of consultation and transparency; and inadequate resourcing.
A more elaborate system is now in place which appears to have the potential to have a real impact on inequality. But the process has only just begun and already both public bodies and, to an even greater extent, those who are being consulted at every stage of the process are feeling the strain.
The section 75 duty
Under section 75 of the Northern Ireland Act 1998 a public authority in carrying out it's functions must 'have due regard to the need to promote equality of opportunity' between persons of different religious beliefs, political opinions, racial groups, age, marital status, sexual orientation, gender, those with a disability and those without, and those with, and those without, dependants. The 'Guide to the statutory duties' describes the promotion of equality of opportunity as entailing more than the elimination of discrimination. It is stated to also require proactive measures to secure equality of opportunity between groups and to enable action to redress inequalities of opportunity.
Section 75 also creates an additional duty to 'have regard to the desirability of promoting good relations between persons of different religious belief, political opinion or racial group'. The two duties are seen as complementary as social cohesion is seen as requiring that equality should be reinforced by good community relations. However in the event of any conflict between the two duties, the 'equality of opportunity' duty is to take precedence over the 'good relations' duty.
The Act requires public bodies to produce an 'Equality Scheme' stating how they propose to fulfil these duties. This must be submitted to the Equality Commission (which also has a remit for all areas of discrimination law in NI) for approval. All such schemes must conform to detailed guidelines as to form and content produced by the Commission and must be reviewed by the public body within five years.
Public bodies are also required as part of the overall process to engage in wide-ranging and continuing consultation in the process of developing their Equality Schemes; and to produce 'equality impact assessments' to consider particular policies, examine the extent to which they will promote equality of opportunity and consider any adverse impact on the protected groups.
The Equality Commission is required to keep under review the effectiveness of the duties imposed by section 75; to offer advice to public authorities in connection with those duties; and to generally facilitate and monitor the operation of the system including preparing guidelines on Equality Schemes, approving Schemes, investigating complaints of failure to comply with an approved Scheme, and producing an annual report on the operation of the equality duty.
Mainstreaming equality
There can be little doubt about the potential impact of the equality duty. The Equality Commission's 'Guide to the statutory duties' states at the outset that 'The new statutory duty makes equality central to the whole range of public policy decision-making.' It refers to this as 'mainstreaming equality' and states:
Experience in Northern Ireland and elsewhere shows that questions of equality may easily become sidelined Effective attention to mainstreaming addresses this problem, by requiring all public authorities to engage directly with equality issues at an early stage of policy development. This is complementary to making more effective those measures adopted specifically to tackle discrimination, such as anti-discrimination law'.
The mainstreaming of equality should also ensure that public bodies comply with the obligation on public authorities under the Human Rights Act 1998 not to act in a way which is incompatible with the European Convention of Human Rights, including the right to enjoy Convention rights without discrimination.
Consultation overload?
One ironic feature of the new system is that the very success of the critics of PAFT and, in particular, the correct insistence of the trade union movement, voluntary and community sector that there be meaningful consultation, has resulted in layers of consultation which could threaten the feasibility of the process. This has been described by a leading equality campaigner as 'the curse of the answered prayer'.
For example, in the first year since Equality Schemes were submitted to the Equality Commission, the Irish Congress of Trade Unions has been consulted about 120 Schemes currently in the system. This has involved consultation in the drafting of the scheme, on the final Scheme submitted to the Equality Commission, on the screening process to decide which policies to subject to an equality impact assessment, and on the outcome of these assessments. While this process rolls on another batch of new schemes are being produced. Similarly, voluntary organisations with a remit over a range of areas including ethnic minority groups are trying to respond to a deluge of (welcome) consultation. This presents enormous practical and resource problems and, of necessity, organisations are having to prioritise and participate in a more limited way than they would prefer. Similarly the volume of consultation puts strains on public bodies.
A partial solution to the consultation dilemma which is beginning to emerge is that public bodies and those to be consulted should better co-ordinate the consultation process. Already there are good examples of bodies coming together in partnerships and networking to consult with affected groups and organisations in different geographic areas. The creation of Health Forums in two Health Board areas is one example. Ultimately there is a resource issue to be addressed by government Ð if the system depends on meaningful consultation then there is an onus on government to seek to ensure that the consultation process is workable by making resources available for that purpose.
Current situation
One vital aspect of the equality duty is the equality impact assessments. At this stage most authorities should be nearing the end of a consultation to help them identify and prioritise those policies which have a significant impact on equality. The purpose of an equality impact assessment is to examine the extent to which particular policies will promote equality of opportunity and to consider any adverse impact on the various groups covered within Section 75. If there is such an impact, the authority must consider how they might reduce it and look at alternative policies which might fulfill the same function while promoting equality of opportunity. This process must be conducted in consultation with those affected by the policies and this highlights the need for the effective involvement of the voluntary, community and trade union sectors.
The Equality Commission has established an Advisory Group made up of public, trade union and voluntary sectors which has worked with consultants to produce practical guidance on equality impact assessments. The commission is also to commence a training programme mainly targeted at the trade union and voluntary sectors to help enable their full participation in this process.
Public bodies will also be required to set out their procedure for dealing with complaints about the implementation of their scheme in an accessible and transparent way. Monitoring and analysis of complaints from particular groups should be a good indicator of how a policy is impacting on that group and may trigger the Equality Commission's use of its power to investigate complaints of a failure by a public authority to fulfill its approved equality scheme.
The new duty provides an opportunity for all aspects of public policy and practice to be inclusive of the needs of all members of the community and could be a historic milestone on the road to promoting equality in Northern Ireland. However, we are only at the beginning of this process. It will only be when the equality schemes have been fully implemented that we will be able to judge how effectively they have achieved their purpose.