With the help of a grant from the Baring Foundation the CAJ has established an Equality Duty Enforcement Project. The project aims to support the work of the members of the Equality Coalition to (i) take forward complaints and other interventions to ensure Northern Ireland’s “Section 75” public sector equality duty is complied with; and (ii) share and embed the CAJ’s human rights based approach and legal expertise with other Equality Coalition members. The project and the newly appointed Equality Duty Enforcement Coordinator were launched on Tuesday 12 December 2017 at a seminar organised by the Equality Coalition as part of the NI Human Rights Festival of events.
Equality Coalition Co-Conveners Daniel Holder of CAJ and Patricia McKeown Regional Secretary of UNISON also presented and facilitated a discussion on the Equality Coalition’s research report “Equal to the Task?” – a report which analyses the current application and impact of enforcement powers over the “Section 75” equality duties. The report includes analysis of the approach to enforcement through the investigation powers vested in the Equality Commission for Northern Ireland (ECNI).
It has been a strategic concern of the Equality Coalition for some time that the Section 75 equality duty is being regularly flaunted by many public authorities. This has come into sharp focus in relation to austerity policy decisions over cuts in recent years with patterns of the duties being applied poorly or entirely circumvented in key policy decisions. Equality Coalition members have worked over many years with public authorities to attempt to remedy the above and related issues. This has included the submission of thousands of consultation responses and thousands of face-to-face meetings. There is still however limited compliance and a risk that key civil society stakeholders may ‘give up’ on the duty.
The Equality Coalition has collectively come to the view that many of the above issues can only be addressed by robust enforcement of the duties through powers vested in the Equality Commission for Northern Ireland (ECNI) and ultimately the Secretary of State and Courts. It was clear however that the enforcement powers were rarely triggered by civil society or the ECNI, and the Equality Coalition therefore decided to undertake this research.
The timing of this research relates to informing and influencing the ECNI’s ongoing review of the effectiveness of Section 75. The methodology of the research involved desk based research examining relevant written materials obtained online or through Freedom of Information requests.
The second methodological strand was a number of oral evidence hearings with Equality Coalition member groups, where a panel consisting of the Coalition Co-Conveners and other persons heard member group experiences of patterns of compliance with equality schemes and of challenging failures to comply with the equality duty.
A third strand involved engagement with the ECNI through a number of meetings and the presentation of preliminary findings at a meeting with a number of Commissioners and senior managers in summer 2017.
The report concludes that:
- Notwithstanding pockets of good practice, there is currently widespread flouting of equality schemes compliance in relation to policy decisions and functions that have significant equalities impacts;
- The approach of seeking to collaborate, encourage and persuade public authorities to remedy patterns of non-compliance has become insufficient and ineffective; non-compliance with the duties appears low down the ‘risk register.’ In our view only more effective enforcement of the duties and a ‘zero tolerance’ approach to significant failures to comply can reverse the patterns of non-compliance;
- Whilst the enforcement powers could certainly be stronger and strengthened at present, it is also the case that they are very much underused both by civil society and the ECNI. The ECNI has a good track record of, for example, obtaining significant publicity for tribunal cases – by contrast the Section 75 enforcement work – with some exceptions – has had a low profile;
In relation to recommendations for the Equality Commission:
- The ECNI in its assessment of public authorities’ polices should make use of the screening decision review process when it has demonstrable concerns regarding a screening decision;
- The ECNI should develop a strategic enforcement strategy in relation to compliance with the statutory duties and proactively identify opportunities for ‘Own-Initiative’ investigations;
- The ECNI should give clear reasons for not investigating an admissible complaint;
- The ECNI should address the issues of long delays in relation to initiating investigations and consideration should be given by the ECNI to a ‘fast track’ investigative and enforcement process for more obvious procedural failures;
- The ECNI should also refer failures to comply with recommendations expeditiously to the Secretary of State;
In relation to recommendations to civil society and affected persons:
- Much greater use should be made of the enforcement procedures in relation to Section 75, we conclude this is the only way left to make the duties effective;
- In particular the screening decision review process with public authorities is rarely known and used by organisations and should be harnessed more to challenge ineffective screening exercises.
The Chief Commissioner of the ECNI, Dr Michael Wardlow, addressed the meeting in December 2017 to give the ECNI’s response to the report. The ECNI concurs with the Equality Coalition that there are significant issues regarding public authorities’ compliance with the Section 75 duties. The ECNI has now agreed to review the use of its investigation powers in this coming business year in furtherance of its statutory remit to keep the effectiveness of the Section 75 duties under review. At present however the Chief Commissioner emphasised that the ECNI prioritises its advisory work, mentioning that investigatory work can be perceived as “adversarial”. Equality Coalition members in the audience however tended to emphasise the important role enforcement plays in ensuring statutory compliance with the equality duty.
In light of the deep uncertainty Northern Ireland is currently facing as a result of BREXIT and the collapse of the devolved institutions, a final contributor rightly highlighted the crucial role equality plays in maintaining peace in Northern Ireland and the fact that equality underpins all human rights. Notably in the absence of the Northern Ireland Executive and NI Assembly, the Equality duty is one of the few tools and safeguards available to civil society.
One of the Equality Duty Enforcement Project’s first pieces of work has been the submission of a Section 75 compliance complaint against the Department for Communities for the Department’s failure to equality screen the “two child rule” in Universal Credit. The Department’s justification for not having equality screened the rule under Section 75 being that the legislation was passed in Westminster and thus is not within its “functions” to carry out the equality screening of the policy decision.
The CAJ Section 75 complaint is one of many potential challenges which we hope will eventually result in the two child rule being reconsidered due to the negative effects it will have on child poverty and gender equality. We see this challenge against the ‘2 child rule’ as particularly important for upholding Section 75 for two reasons.
First, the legislation will have a significant detrimental effect on several protected groups in Northern Ireland (and uniquely to NI will impact Catholic families more than Protestant families). It is vital that the NI specific equality implications are considered. Second, the Northern Ireland Executive remains suspended and we are currently facing the possibility of direct rule from London. If a local government department were able to abdicate its Section 75 responsibilities on the basis that a particular policy was based on legislation emanating from Westminster, this would effectively strip the Northern Ireland population of Section 75 protection on a wide range of matters.
Secondly, the CAJ work on the two child rule is also an example of how the Project aims to provide support to Equality Coalition member groups who may have a knowledge or skills gap on Section 75 enforcement. Some groups may have felt ill equipped to raise a complaint on this legislatively complex issue but we hope that the work of the Equality Duty Enforcement Project on the two-child rule and other policies effecting socio economic rights will equip and embolden member groups for future challenges.
More information on the work of CAJ can be found HERE
More information on the work and membership of the Equality Coalition can be found HERE
The full Report – ‘Equal to the Task? Investigative powers and effective enforcement of the ‘Section 75’ equality duty.’ Can be found HERE
The executive summary of the research report can be found HERE