Policy Learning: Equality and Human Rights in Northern Ireland, Ireland and Great Britain

Abstract

This article is about policy learning or diffusion in the field of equality and human rights across Ireland and the United Kingdom (UK). It first outlines the axes along which policy learning has taken place, or could do so, and the policies that are the subject of learning. It then discusses internal policy learning in Northern Ireland (NI) on the key issue of public sector duties. Learning is then examined between NI and Ireland; between NI and Great Britain (GB); and between Ireland and GB. These sections involve private and public employers, as well as the public sector duties, and touch on institutional design. In conclusion, it is suggested that it is not only because of the banking, fiscal and economic crises in Ireland and the UK that learning opportunities have been undermined. This case study demonstrates the importance of the contrast between politicians with their “limited attention spans” and the more analytical wider policy community of professionals and interest groups. Power relations between them are a significant factor in degrees of superficiality or profundity.

Keywords:

• Equality
• human rights
• Northern Ireland
• Ireland
• Great Britain
• conflict resolution

Notes

Though the goal of ‘equivalence’ is, strictly speaking, in connection with human rights (Multi-Party Agreement, 1998: 17), the relevant policy communities throughout the islands now see equality and human rights as intertwined (see notes 8 and 15) though the same is not necessarily true of politicians (O'Cinneide, 2012: 146–7).

Other commitments included that of the UK to incorporate the European Convention on Human Rights (ECHR) (in fact the Human Rights Act does not do this) and to ensure that NI legislation complies with it. Both governments made undertakings in respect of minorities (Ireland) and minority languages (UK) (Multi-Party Agreement, 1998: 18–19).

Domestic factors, as well as Ireland's GFA obligations, also contributed to this innovation (Harvey and Walsh, 2009: 15; see also pp. 20–1 on the operationalization of the IHRC).

The Amsterdam Treaty introduced new grounds of equality: sex, racial or ethnic origin, religion or belief, disability, age and sexual orientation. The Directives are: Council Directive 2000/43/EC on equal treatment irrespective of racial or ethnic origin; Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation; and European Parliament and Council Directive 2006/54/EC on equal opportunities and equal treatment of men and women in employment and occupation.

Before the GFA, the NI Equal Opportunities Commission had carved out an innovative role in supporting ‘landmark’ cases that went to the European Court of Justice (Collins and Meehan, 1994)—as did the GB Equal Opportunities Commission. Altar and Vargas (2000) argue that the Court has transformed the national political process by shifting the domestic balance of power towards equality actors. In Ireland, ‘ground-breaking’ legislation preceded new EU laws (O'Cinneide, 2012: 138).

The ECNI incorporates four previous regulatory bodies that dealt separately with discrimination based on religion or political opinion, gender, race and disability.

SACHR was set up in 1973 “to review the adequacy and effectiveness of the law in preventing discrimination on the ground of religious belief and political opinion” (Zappone, 2001: 44, 56) and lasted until the establishment of the NIHRC.

According to the UK Parliament Joint Committee on Human Rights (2003), human rights discourse was widely misunderstood in Britain, being associated with the defects of despotic regimes and/or giving rights to terrorists. In contrast, it is notable that equality and human rights were by 1998 already seen in NI as intertwined (Zappone, 2001: 45, where she quotes from the government's 1998 Partnership paper (para. 1.1); “equality of opportunity is a fundamental human right”).

In the EU context, Bell (2008: 40–1, 42–3) notes that all 27 member states have introduced legal reforms and new institutions which, on the surface, look similar. This may imply a degree of harmonization or convergence towards common norms. But, he suggests, deeper scrutiny shows that “national models have not withered away”.

A board member of the IHRC from 2001, she has also carried out work in this area (on ‘intersectionality’) for the Joint Equality and Human Rights Forum of the UK; see Zappone (2003).

According to Spencer (2008: 15–16) a paper by O'Cinneide (2002), commissioned by the British EOC, was one of a handful that influenced emergent thinking in the UK over the establishment of the Equality and Human Rights Commission. He also advised the NIHRC when it was drafting a Bill of Rights for NI (see below).

In compliance with the equality provisions of the ECHR, Ireland uses its own narrow concept of equality in legislation. In scope of coverage, Ireland's laws are wider in that the nine equality groups are protected in terms of goods services (as well as employment), whereas this varied in NI and GB. NI law is stronger than Ireland's with respect to: disability; the inclusion of political opinion, transsexual, and same sex partnership rights; in enforcement and remedies; and positive duties on public authorities and the private sector.

This is also of concern on the east–west axis (to the ECNI and NGOs) as the GB single equality legislation, the Equality Act 2010, means that there are different standards and scope of coverage between it and NI (Collins, E., 2009; NI Council for Ethnic Minorities (NICEM), 2009).

The NIHRC had proposed 78 rights grouped into 20 sets. The NIO proposed the removal of nine sets and specific rights in the other sets (NIO, 2009: paras. 2.7, 3.14), arguing that such proposals were either relevant to people all over the UK and, thus, not specific to NI or were already in place by other means—which, according to the NIHRC response, were but conventions, practices or alterable policies rather than having constitutional status.

For example, differences in the operation of the ECHR in each jurisdiction; how far equivalence or harmonization should be taken and at what speed; and particular topics which might need a human rights umbrella—such as migration, the common travel area and economic and social rights. The last increasingly seen in the literature as intimately linked with equality and human rights. Zappone (2001), O'Cinneide (2005; 2012) and Smith and McLaughlin (2009), for example, include anti-poverty programmes in both jurisdictions when discussing equivalence of standards (see also Harvey and Walsh, 2009: 71) on Ireland's EA proposals in this area). A similar standpoint was advocated for the GB EHRC (Niven, 2008) and the Equality Act (Hepple, 2010).

As outlined by Oakshott (1962: 124–33), society is composed of arrangements that are at once “coherent and incoherent”, forming a pattern that “at the same time intimates a sympathy for what does not fully appear”. Political activity is the exploration of these sympathies or intimations. The process of change cannot be abridged. It can take place only when anomalies in social arrangements press “convincingly for remedy” and there is a convincing demonstration that the moment is appropriate.

That is, in distinction to the negative approach of outlawing discrimination; the principles were called by the Irish lobby in the US “the McBride principles”; see McCrudden, et al., 2010: 9–11).

Despite Lord Lester's successful Private Member's Bill in the House of Lords and support for it in a House of Commons motion (Hepple, 2010: 14).

See above. An amalgamation of the two NI bodies has been considered but rejected as “inappropriate [in NI] at this time”, though it should be “kept under review in the light of experience in Great Britain” (OFMDFM, 2005: 21, 50–2).

Moreover, it has a good international reputation. It is able to bring “a unique experience of human rights in conflict and post-conflict society (Spencer, 2008: 14). It was the UK's only accredited National Human Rights Institution at the UN and was awarded ‘A’ status in 2006. Now it is joined by EHRC which achieved ‘A’ status in 2009 and then, in 2010, by the Scottish Human Rights Commission.

Comparison between NI, Ireland and the Amsterdam Treaty.

NI: religious belief, political opinion, racial group, age, marital status, sexual orientation, sex, disability, and people with or without dependants.

Ireland: religion; race; age; marital status; sexual orientation; gender; disability; family status; and membership of the Traveller community.

Amsterdam Treaty: religion or belief; racial or ethnic origin; age; sexual orientation; sex; and disability (discrimination against nationals of other member states is unlawful under the Treaty of Rome).

Taking the Act as a whole, it was welcomed by the Equal Rights Trust (2010) as “a significant victory”. The chair of the Trust, Hepple himself, is, however, cautious. Workers are predominantly in the private sector, where there are no significant duties (see above) and the public sector duties are at risk because of the growth of outsourcing of public services to private companies. This leads him to conclude that “the new Act is not the end of the struggle for equality but an important new beginning” (Hepple, 2010: 22).

She also dealt with this extensively in her report for the two equality bodies on developing a coherent strategy on both parts of the island (Zappone, 2001).

The NI bodies are also sponsored by the OFMDFM but “exercise [their] statutory remit independently of Government, without fear or favour” (Collins, 2009).

This idea is reminiscent of the EU's Open Method of Coordination (OMC) as a means of implementing ‘soft law’ policies (including equality mainstreaming) through goal-setting, establishing indicators, benchmarking, reviewing and reporting. There are contrasting views on whether the OMC has any practical impact (O'Hagan, 2004). So far, the emerging practical outcomes of the work of the BIC relate to convergence on driving offences and penalty points.

Two bodies dealing with poverty (Combat Poverty) and race (NICCRI) were abolished at the same time. And the EA was relocated to an inaccessible part of Ireland (Harvey and Walsh, 2009: 40–1, 91).

As reported by the then NIHRC Chief Commissioner, Professor Monica McWilliams, at the meeting of the Joint Oireachtas Committee on 30 April 2009.