The Stephen Livingstone lecture: on Section 75

Continuing the review (link to the complete series) of Martin O'Brien's speech on 'Human rights and the Agreement: how far have we come?', the 2009 Stephen Livingstone memorial lecture.

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O'Brien calls for Section 75 of the Northern Ireland Act to be used for the active promotion of equality, rather than as a passive, non-discrimination clause:

"It’s clear to me that this provision has considerable potential to tackle inequality and transform people’s lives. 

Indeed there are examples of it being used very effectively to this end.

But here, as in other areas, I fear that things have got lost in the structures, in method. 

Very often what one sees are mechanistic “tick-box” exercises in relation to equality impact assessment. 

This is exacerbated by a lack of effective enforcement at both a political and statutory level.

For example the Equality Commission has produced complaints procedures for section 75 which are more complicated than those envisaged by Parliament. 

This problem was in fact identified by Professors Harvey and Dickson in their review of section 75. 

However it has yet to be remedied. 

It’s absolutely essential for the Commission to be robust in the exercise of its powers as it’s charged with holding government and public bodies to account on these issues. 

The Neill judgement gave the Commission a significant degree of discretion in how it exerts its Section 75 enforcement powers.  It should make full use of that discretion 

Equally negotiation and compliance will be a lot easier to operate if people have a clear sense of the costs of non-compliance. 

If the Commission is to carry out its remit it needs to be a champion for those who need equality.

In particular, the Commission, above all others, needs to be clear that section 75 of the Northern Ireland Act is about promoting equality. 

It’s not primarily about avoiding adverse impact. 

The active promotion of equality is primary. 

Anything less represents a failure to comply with the statute."