By Steven McCaffery
STORMONT is under fire for its failure so far to reach a new agreement to bolster the peace process.
But it’s worth remembering that we are still waiting for confirmation of how politicians plan to implement the last deal they made.
In May 2013 First Minister Peter Robinson and deputy First Minister Martin McGuinness unveiled their long-delayed blueprint for securing a shared future, called: “Together: Building a United Community.”
More than a year later, we have yet to see the legislation that will implement their plan for combating sectarianism.
The document, which has become known as `TBUC’, was the replacement for proposals unveiled under Direct Rule in 2005, but which the DUP and Sinn Féin shelved when they took power after devolution was restored in 2007.
TBUC’s publication faced lengthy delays and it only emerged after demands that politicians do something to reclaim the initiative after months of rioting over the restrictions placed on flying the Union flag at Belfast city hall.
The flag decision was linked to equality legislation and the need for Belfast City Council to create an appropriate environment for the public and for its staff.
Ironically, similar equality issues are also at the heart of TBUC.
The TBUC document said the existing Equality Commission should take over the policy and advisory work of the Community Relations Council, creating a new `Equality and Good Relations Commission’.
TBUC also promised to “enhance Good Relations scrutiny by placing it on a statutory basis”.
Equality Impact Assessments, currently used to ensure government decisions are in line with equality entitlements, are also to be modified to include Good Relations.
This all sounds harmless, except that critics have claimed that since Good Relations duties took on greater prominence in 2007, there have been fears they could effectively erode the delivery of rights enshrined in equality legislation.
Good Relations and Equality
The key element of concern is that if politicians can point to the absence of cross-community agreement for a measure, they can argue that implementing it might damage good relations.
This may in some circumstances effectively block proposals that were designed to give voice to minorities or address an objective need.
As reported in The Detail here, the Committee on the Administration of Justice (CAJ) raised concerns in 2013 that this was already happening.
It cited objections to the erection of Irish language signage, and the shelving of a social housing project, on the basis of arguments that they did not have cross-community support.
At the time of The Detail’s coverage, the Equality Commission rejected the CAJ concerns.
While there are legal safeguards to ensure that Equality of Opportunity has primacy over Good Relations duties, and that Equality Impact Assessments are focused on ensuring equality, the CAJ is arguing in its latest report on the subject that an additional protection is required.
The CAJ said: “A further safeguard, which is yet to be implemented in Northern Ireland, would be to bring a measure of legal certainty to the Good Relations duty by actually having a definition of the concept on the face of the legislation.
“This has been the case in Great Britain for almost five years.
“The Equality Act 2010 [in Britain] provides that good relations in particular to be about ‘tackling prejudice and promoting understanding’.”
Under this definition, the CAJ argues that instead of one community being able to block the wishes of another, there would instead be an onus on government to explain the reason for a contested policy – thereby helping to `tackle prejudice and promote understanding’.
The CAJ has recorded two attempts by the SDLP at Westminster and in the Assembly “to seek a definition of Good Relations on the face of legislation, drawing on the formulation in Great Britain of ‘tackling prejudice and promoting understanding’.”
At Westminster the government ruled that the issue should be dealt with by the Assembly, while at Stormont there were unionist calls for further debate on the appropriate wording of any definition.
The CAJ said the fact that Good Relations features so prominently in the TBUC document presents the opportunity to better define the concept, so as to avoid outcomes that are “subjective and counterproductive”.
Where is this going?
The CAJ is also claiming that a recent high profile decision of the Equality Commission suggests that if the Good Relations concept and related issues are not better defined, it could have much wider implications.
In April this year the Equality Commission criticised Newry council over the naming of a children’s play park after IRA hunger striker Raymond McCreesh.
The commission decision found that there was a failure to pay due regard to the “need to promote equality of opportunity and regard to the desirability of promoting good relations”.
The CAJ examined the decision, noting the commission’s concerns of a “significant chill factor for the use of a Council run play park by families of a Protestant/Unionist background”.
But the human rights group asked whether the inclusion of the “chill factor” issue in this context could now spark complaints in other districts where councils fly the Union flag at public facilities they run.
The CAJ also noted commission concerns at “the naming of public buildings, roads or facilities” after a “controversial figure” and that this applied to longstanding names.
The CAJ imagined an extreme scenario and said: “It is not unreasonable to foresee that other persons may now pursue complaints about the naming of public buildings, streets or even the city of Craigavon after figures which are ‘controversial’ to other constituencies. This could lead to a significant shift in the focus and purpose of the equality duty.”
The Equality Commission replied (see the full response below this article) that each case is viewed on its merits and cannot be seen as setting a precedent.
Recent controversies suggest there are lots of activities in Northern Ireland that one section of society or another might oppose: economic measures, Gay rights initiatives, racial equality projects, minority language initiatives, sports events, flags, emblems.
But the CAJ said the commission decision “does not state how objections should be filtered”.
As we await the legislation implementing TBUC, the CAJ is pointing to the nuclear option.
It is claiming that if Good Relations is not tied down, the rows over identity and community relations that are destabilising politics, could swamp the machinery that was built to deal with bread and butter issues and ensure equality for all sections of society.