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Winnipeg Free Press - PRINT EDITION
Tale about loss can't meet promise of debut novel
SPANNING nearly two decades, this sophomore novel by California writer Tatjana Soli (The Lotus Eaters) is a flawed contemporary tale about loss, change and displacement in the intertwined lives of Claire Baumsarg, a middle-aged rancher and her companion.
At the outset, Claire's 10-year-old son is abducted and brutally slain. The family never fully recovers from the tragedy. After Claire and her husband split up, she devotes her life to running the ranch with much success.
Fast forward 15 years. Claire develops breast cancer and hires a caregiver to help her get through the treatment. Enter Minna, a charming Halle Berry look-alike whom Claire's daughter briefly met at a coffee shop.
Caribbean born-Minna is a PhD student at Berkeley, but wants to take a break from her courses. As well, she is the great-granddaughter of Claire's favourite author, Jean Rhys, who wrote the novel The Wide Sargasso Sea, a prequel to Jane Eyre.
Intrigued by Minna's connection with Rhys, Claire hires the young woman on the spot without asking for references. Bad idea. Minna turns into the caregiver from hell, yet Claire refuses to fire her. To say more would reveal spoilers from the plot.
The book's title refers to a ritual whereby African slaves circled a tree several times to allow them to forget memories of their home country.
For both Minna and Claire, the title is ironic. Minna never quite forgets her life back home, nor can Claire erase memories of her murdered son.
Soli is at her best at portraying the family dynamics in the aftermath of the tragedy. At the same time, she vividly captures the physicality of the farm in cinematic prose, as when Claire witnesses a fire on the ranch.
"Black smoke formed itself into the unforgiving blue sky," Soli writes. "A single, wide lick of flame reached from ground to topmost branch, a reversed lightning. Leaves dried out, then curled to gold, then black ash. The rinds of lemons grew rigid and tight, then burst, releasing a thick blood of juice."
The novel is divided into four parts. The opening section gives the impression of a domestic story about the aftermath of the son's abduction, its impact on the family and Claire's growing attachment to the farm.
However, the next section of 200-plus pages veers off in an entirely different direction, overwhelming us with details of Claire's six-month cancer treatment and her increasingly dysfunctional relationship with Minna.
Throughout this section, readers' attention may lag as a result of the bizarre plot developments and inexplicable character shifts in the portrayal of the two women -- Claire's passivity and Minna's callousness.
Part 3 recounts Minna's back story at lightning speed -- an 83-page summary of her life from childhood to adulthood, a lot for readers to absorb.
Part 4 ties up the loose threads of the farfetched story.
The Forgetting Tree is neither a page-turner nor a quick read. Sadly, it does not bear out the promise of Soli's earlier novel.
Bev Sandell Greenberg is a Winnipeg writer and editor.
Republished from the Winnipeg Free Press print edition October 27, 2012 J8
Updated on Saturday, October 27, 2012 at 12:31 PM CDT: adds fact box
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Bombardier Transportation participated in the European Union-funded railway industry partnership for integrated security of rail transportation, Protectrail, as a consortium partner. As part of the project, Bombardier demonstrated its EBI Gate 2000 level crossing system, one of the latest state-of-the-art rail security solutions, at a test track in Żmigród, Poland. The system is manufactured in Poland and has an obstacle detector integrated into it for the first time.The successful testing was the result of the collaboration between Bombardier's site in Katowice and the global technology company Honeywell, which provided the radar scanner.
When integrated, the EBI Gate 2000 system is able to receive information about an obstacle on the level crossing, which may impact the crossing or train operations, and send data to the Protectrail system. The information can then be used to alert crossing, station or train personnel. This successful testing also provides the foundation to develop a mechanism to inform the train driver about the need to brake.Protectrail is one of the largest integration projects for railway security at present, according to Bombardier. The consortium is composed of 29 companies, which have been working together since September 2010, to integrate existing security solutions in the rail environment to meet future security challenges. The objective is to develop a global framework, taking existing solutions, making them interoperable and testing them in demonstrations with real-life scenarios.As a leading consortium partner, Bombardier's Network Solutions group is responsible for the global integration efforts of the 29 members to improve overall passenger security. In Poland, the consortium has demonstrated an effective common approach to reduce the engineering costs associated with integration while improving the overall situational awareness in security and operational control centers.RELATED: "APTA's Melaniphy calls for Congress to fund PTC"
The train wreck, which occurred in the early morning of March 24, 2014, when the operator allegedly fell asleep, injured more than 30 people and caused roughly $9 million in damage. The lead railcar had to be cut up to remove it from the escalator.
The vehicle, which was a designed and built by Brookville Equipment Corp., will be the first streetcar in the U.S. that utilizes wireless traction power.
Opened in 1935, Newark Penn Station is listed on both the State and National Registers of Historic Places. The station was originally designed and still operates as an intermodal facility serving pedestrian, taxi, bus and private vehicle traffic generated by the more than 50,000 transit customers who use the station each day.
Part of the problem is an aging fleet, according to officials. Calgary Transit placed a $200-million deal in 2013 to buy 60 new light rail vehicles; however, those vehicles will not be operational until 2016.
The new trains for Hermann-Hesse railway line will be completely emission-free. In times of increasing energy costs and higher level of pollution, the development of this technology is essential.
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Ivyleaf Combe is part of our Autograph Lodge Holidays Collection and enjoys an idyllic setting nestling in a stunning wooded valley just two miles from the unspoilt, picturesque Cornish seaside town of Bude.Beautiful woodland surroundings, and easy access to both North Devon and Cornwall unite to create Ivyleaf Combe's truly unique atmosphere. A wonderful choice for a peaceful, relaxing holiday and an excellent base for exploring the breathtaking scenery and attractions.Each spacious, well appointed lodge boasts a stylish interior with luxury and modern day living very much in mind. The perfect retreat for a romantic escape or revitalising break with friends and family. You can relax and unwind in your very own hot tub, indulge in a pamper pack, or visit the many popular and traditional villages in the local area.A host of delightful hotspots await close by, including historic Clovelly, fashionable Rock, famous Padstow and magnificent Port Isaac. Glorious beaches abound!Bike hire*† and a laundry room* are available for all dates.*Charges apply, † Available locally.The area is home to some of the most magnificent sandy beaches in the country and golf, horse riding, sailing, fishing and surfing are all available close by together with superb cycling (hire available*) and walking along the breathtaking famous Cornish Way and Heritage coastline. Whether you're looking to recharge your batteries or seeking an energetic break away this stunning collection of truly special lodges are the perfect base from which to enjoy a wonderful break away.
This park has:
Real reviews, from customers like you.
What an amazing lodge and everything you could possibly need inside! Staff were friendly,accommodating,helpful and so lovely! Had all modern cons, lodge was very clean and we'll looked after and the hot tub was the making of our trip! Would highly recommend this break and accommodation to anyone and would defiantly go back again!
Amazing place , very relaxing and quiet. Can't wait to go back again, just the getaway we needed x
Had a really lovely,relaxing stay here
Lodge was lovely as were the staff
Lodge had everything you could need in it
Hot-tub was nice and big lots of room
Would defiantly return
Very pleased with our stay. Staff helpful, only a 10 min drive to Bude. Clean and everything we needed in Lodge. Always nice when they provide the little things like dishwasher tabs. I would be struggling to fault this place.
An excellent lodge and site. Well kept and lovely hosts, with the unexpected addition of a very cute cat called Sparkles who the children loved. Will be back again sometime soon.
Owners are so helpful! Realy good value and the lodge is spotless really enjoyed the weekend ! Only downside is bude has a serious lck of choice for nice places to eat out !
Relaxing.and stress free.just what we needed to start the year of with.
Such a lovely weekend away in beautiful surroundings. We had fix lodge which was the most private lodge which is what I asked for. Hot tub with lovely views. Very clean and comfortable couldn't fault, other than the lack of hot water but this was explained when we arrived.
Very warm welcome from Jools the owner, lovely cosy wooden lodge, really enjoyed the hot tub ready to go 24/7 whatever the weather, would definitely recommend.
Not up to Autograph standard, but clean and tidy.
Great relaxing break, in lovely area.
Extremely helpful owners. Great location.
Great friendly staff. Family and couples retreat.
A fantastic lodge on the outskirts or Bude. Really clean and cosy. Completely relaxing with the added bonus of a hot tub. Will certainly return.
Absolutely fantastic short break - very much enjoyed by all 4 of the party !


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CoSO Response to the Single Equality Bill (SEB) Consultation Document, Equality Unit, Office of First Minister and Deputy First Minister August 2001 CoSO response to SEB CD 1 CoSO response to the Single Equality Bill (SEB) Consultation Document A: Introduction CoSO welcomes this opportunity to respond to the Consultative Document and looks forward to further opportunities to engage in dialogue with OFMDFM and the Equality Commission on the sexual orientation (SO) and wider aspects of the SEB. There has been a remarkable change in attitudes and in public policy towards equality irrespective of sexual orientation over the past 3 years. In that time, the Northern Ireland Act has acknowledged sexual orientation as one of the section 75 categories, partly in consequence of an equivalent acknowledgement in the Belfast Agreement. At the level of the EU, Article 13 of the Treaty of Rome amended at Amsterdam provides power to legislate against discrimination on grounds of sexual orientation, leading to the Framework Employment Equality Directive 2000 (FEED), some 6 months after the enactment of the Race and Ethnic Origin Directive 2000 (REOD). While both directives are to be largely implemented by 2003, CoSO would wish to see the SEB move well beyond the bare minimum requirements of the directives, bringing together aspects of regional, national, EU and international experience. So also, the EU Charter of Fundamental Rights includes sexual orientation in its non-discrimination clause, giving non-discrimination on grounds of sexual orientation an all-pervading significance across EU law. It is also significant in this regard that the last 3 years have also seen the European Court of Human Rights acknowledge the rights of lesbians, gays and bisexuals (LGBs) both in relation to Article 8 of the European Convention of Human Rights (ECHR) on the right to privacy1 and also as "other status" in the non-discrimination clause in Article 14 ECHR,2 a conclusion of significance also in relation to the interpretation of Protocol 12 ECHR and Article E of the Revised European Social Charter.3 More locally, whatever political significance might be given to developments in the Republic of Ireland, it is indisputable that that jurisdiction has brought into operation two comprehensive equality acts, the Employment Equality Act and the Equal Status Act, the former extending employment equality, and the latter equality in provision of goods, facilities and services, to cover sexual orientation. CoSO has not had the opportunity during this consultative process to examine in sufficient detail the precise provisions of the EEA or ESA or to consult with LGB groups in the Republic of Ireland. However, it is anxious that the Irish experience of a comprehensive equality regime, including sexual orientation, is fully considered in the drafting of the SEB and calls upon the OFMDFM and Equality Commission to liase closely with the Equality Authority on these issues, particularly in relation to SO matters. Finally, it appears non-contentious, at least according to the Equality Working Group of the Human Rights Commission and hopefully the Commission itself, that 1 Smith and Grady v UK [12999] IRLR 734. 2 Salgueiro da Silva Mouta v Portugal, 33290/96, 21 December 1999 (2000) 94 Equal Opportunties Review 41. 3 Neither of these international instruments has been ratified by the UK. The Republic of Ireland has ratified in RESC. CoSO response to SEB CD 2 protection against discrimination on grounds of sexual orientation should be included in a Bill of Rights for Northern Ireland. Indeed, the Commission has adopted a wide ranging set of recommendations based on a report prepared by the Human Rights and Equality Centre of the University of Ulster, including provision for protection against discrimination on grounds of sexual orientation.4 It is in this climate that CoSO responds confidently to the Consultative Document. We have sight of an earlier draft of the response of the Committee on the Administration of Justice (CAJ). We would wish to support and adopt the submissions of the CAJ, to which frequent reference is made, in solidarity with other members of the Equality Coalition. Although CoSO is self-evidently concerned with issues of sexual orientation, it endorses the need for a strong equality act governing a wide range of equality issues, first, as recognition of the diversity of multi-identity but, secondly, as a force for social inclusion on the basis of mutual respect and human dignity. In this regard, CoSO commences its response by setting out a range of underlying principles of particular concern to LGBs but of universal significance to all citizens of Northern Ireland, particularly those in any categories which suffer disadvantage and discrimination. B: Underlying principles Equality must be articulated within the SEB as a positive, proactive concept. It should embody a commitment to the prevention of discrimination and the promotion of those who have suffered disadvantage as a result of existing institutional bias in our society. There must be no hierarchy of inequality. The SEB must treat each of the listed categories of people of differing age, from different races, of different sexual orientation etc. as equal. The core principles of scope, coverage and enforcement, both in terms of structure and content, must ensure that there is "equality of the inequalities". The SEB will harmonise existing anti-discrimination legislation in Northern Ireland and incorporate the REOD and the FEED into domestic legislation. At every point along the drafting process there must be "harmonisation upwards", that is the application of "best practice" (particularly the FEETO model) across the SEB. CoSO notes that both Directives lay down minimum requirements, thus giving Member States the options of introducing or maintaining more favourable positions. Furthermore, CoSO concurs with the statement within both Directives that implementation, "shall, under no circumstances constitute grounds for a reduction in the level of protection against discrimination already afforded by Member States". Any discussions therefore about reductions in the levels of protection existing currently within Northern Ireland are, under the terms of the Directives irrelevant, in that such moves would be unlawful.5 The fair employment regime is generally the most advanced equality regime in the UK, although aspects of gender equality have 4 See generally Feenan D et al, Enhancing the Rights of Lesbian, Gay and Bisexual people in Northern Ireland, Northern Ireland Human Rights Commission, 2001. 5 For further discussion on this point see CAJ, "Response by the Committee on the Administration of Justice to the Initial Consultation by the Office of the First Minister and Deputy First Minister on A Single Equality Bill for Northern Ireland." CoSO response to SEB CD 3 been enhanced by vigorous interpretation of EU gender equality law by the European Court of Justice. Particularly in relation to institutional and enforcement matters, where the fair employment regime is at its strongest, CoSO wants to see the extension of that regime to all categories of inequality. The SEB will be drafted within the developing equality discourse. The statutory equality duty and proposed Bill of Rights will act as crucial points of reference. CoSO notes that sexual orientation is included as a category of people deserving protection from unfair treatment under the statutory equality duty and also that sexual orientation will be a category of people protected under the anti-discrimination clause of the proposed Bill of Rights. CoSO also notes that both David Trimble, in his capacity as First Minister, and Denis Haughey, in his capacity as Junior Equality Minister, have made public commitments that sexual orientation will be included as a category for protection under the new SEB. CoSO believes that the SEB should embrace a definition of equality which recognises difference and resists a definition which implies that people should be treated the same in every situation. The SEB must also recognise the complex reality of people"s identity, encompassing as it does many facets of their lives and experiences. Layered discrimination suffered as a result multi-identity must be a disadvantage which the Act can recognise and remedy. CoSO believes that the SEB must make manifest a diagnostic approach to recognising/acknowledging direct/indirect discrimination and providing for "reasonable accommodation". There is no single template for discovering and resolving direct/indirect discrimination. Formulating practical, tangible strategies for achieving equality will require a close assessment of the particular disadvantage affecting each of the covered groups. This diagnostic approach would include a combination of monitoring, assessment and consultation with all relevant parties, and should be accompanied by statutory duty provisions which embrace positive action. A diagnostic approach is the most effective means of revealing where inequality is an issue and where positive action is appropriate. The SEB must embrace a sophisticated anti-discrimination regime which allows for imaginative facilitation of those who employers/organisations which want to pursue a positive inclusive approach. There must also be maximum pressure on other employers/organisations to do so. In particular, a crucial underlying principle must be that an equality regime is directed towards protecting the most vulnerable members of society whether at work or in the wider society. Therefore not only must there be meaningful concepts, there must also be an institutional and enforcement structure which appreciates that individuals are unlikely to be able to enforce their "rights" without innovative processes to assist them. In particular, it is most unlikely that many LGBS will be in a position to enforce their rights on an individual basis at all. The past three decades of anti-discrimination law have focused on equality as equality of opportunity. This focus has not resulted in substantial or lasting change for those targeted by this legislation, because it fails to recognise the underlying structures which maintain inequality and which create barriers to access opportunities. In contrast, an understanding of equality as equality of outcome recognises that equality measures are only as real as the substantial, tangible change they produce and support. The anti-discrimination legislation process is only CoSO response to SEB CD 4 a means to an end, not the end in itself. The goals must be equality of outcome, which has the potential for affecting real change as it pays attention to the wider processes of social exclusion and legacies of discrimination. CoSO believes that there must be facilitation of positive measures to promote and achieve equality of outcome. C: Coverage The Single Equality Bill must extend its coverage to all of the nine Section 75 categories. Although extension of equality provisions on the grounds of marital and dependant status is not explicitly called for by either EU directives, the inclusion of all Section 75 grounds in the Single Equality Bill is necessary if Northern Ireland is to put forward coherent and consistent equality legislation. Furthermore, CoSO recommends that the provision on marital status be expanded to include protection for single people. Although discrimination against single people will frequently be indirect discrimination on grounds of sexual orientation, CoSO believes that the intricacies of proving ID in such circumstances would be avoided if single status was included within marital status. An important reason for this extension of coverage to include SO and other categories can be seen in the latent and multiple ways inequality operates. This manifests itself in two ways. First, there is the experience of layered discrimination as a result of multi-identity. For example a person may experience discrimination as a result of being a woman and being a lesbian. Secondly, indirect discrimination shows us how active discrimination on one ground can act as a cover for discriminating on another ground, such as the example above concerning discrimination against single people. Thus forms of discrimination are often linked and function together to exclude sectors of our society from full participation. If an equal value is placed on ensuring an equivalent level of protection for everyone in Northern Ireland, the SEB must take an integrated, harmonised approach to discrimination. An important part of this harmonised approach will be the inclusion of legal provisions specifically aimed at multiple-discrimination and multiple disadvantage. CoSO recognises the need for a full and reflective definition of the categories of people to be protected under the sexual orientation category within the SEB. Such a definition must be clear and inclusive and predicated on the concept of consent. CoSO would wish to enter into further discussions with the OFMDFM and the Equality Commission on an appropriate definition of "sexual orientation" and does not propose to suggest a definitive definition at this stage. Two further points on coverage must be made at this stage. The term "sexual orientation" is initially intended to cover LGBs. In this regard, CoSO does not purport to respond specifically on behalf of trans people, except to the extent that they are themselves LGB. Although the term "sex" in the SDO now incorporates "gender reassignment", there is a range of issues for trans people which relate to "gender identity" encompassing gender reassignment but also many other issues. For example, many transvestites are straight and have no intention of entering into gender reassignment. Nonetheless, the discrimination which they encounter is clearly related to their gender identity. In these circumstances, CoSO proposes that the definition of "sex" within the SEB should include reference to "gender identity". CoSO response to SEB CD 5 The second point concerns diversity with the LGB communities. Possibly in some DD situations but more frequently in relation to ID and any possible "reasonable accommodation" cases, there may be distinctions between the impact of a practice or policy on different categories of LGBs, for example a policy in relation to family rights may be more likely to discriminate indirectly against lesbians than gay men. A policy on certain types of offences may have disproportionate impact on gay men but not lesbians. As with the definition of "racial groups" in the RRO, it is necessary to have further discussions with CoSO about the possibility of defining "sexual orientation" to include certain groups with a similar orientation, such as lesbians, gay men and bisexuals, in order that certain examples of ID can be effectively contested. CoSO supports the inclusion of "other status" to catch unforeseen situations, thus allowing expansion and adaptation of the legislation. This would bring the SEB in line with Article 14 and Protocol 12 of the European Convention on Human Rights and the Human Rights Act of 1998. Given that LGBs have recently gained the benefit of a progressive interpretation of Article 14 ECHR, CoSO supports an "other status" provision which permits individuals from groups not listed to make their case to appropriate authorities in the future. CoSO notes that an "other" status provision is particularly important because of its ability to extend provisions to other identifiable, marginalised groups who are not specifically mentioned in the coverage provisions. Furthermore "other status" allows the courts to develop discrimination law in response to social mores. What is meant by "other status" should be enumerated further in the Codes of Practice of the SEB, allowing more time to consider the intricacies of the extension of coverage to other areas of particular concern to Northern Ireland, including nomadism, ex-prisoners, and socio-economic status. D: Scope CoSO welcomes the implementation of FEED within the SEB. However it notes that the Directive extends only to employment, unlike the REOD, which extends protection with regard to education and "access to the supply of goods and services which are available to the public, including housing", but also "social protection, including social security and healthcare and social advantages". At present the Fair Employment and Equal Treatment Order (FEETO), Sex Discrimination (NI) Order (SDO), Race Relations (NI) Order (RRO), Disability Discrimination Act (DDA) extend to coverage of goods, facilities and services and education. CoSO is adamant that, in order to maintain "equality of the inequalities", the SEB must include universal protection from discrimination with regard to employment and with regard to the provision of goods, facilities, services (including public services), education and also the social welfare system. There are workable definitions of these situations in the relevant legislation and in EU law and CoSO is generally happy to see these applied to all equality categories. E: Exemptions CoSO believes that any exemptions to the provisions in the SEB must be kept to a minimum. CoSO believes that all current exemptions be re-examined for the purpose of the SEB. Furthermore CoSO notes that the two EU Directives set down CoSO response to SEB CD 6 the maximum scope of exemptions, but do not require that all available exemptions be incorporated into national legislation. Positive Action Exemptions CoSO is of the opinion that a clear distinction should be made between the exemptions allowing discrimination and measures fostering positive action. Action aimed at remedying disadvantage should be framed as equality measures rather than permitted forms of discrimination or positive discrimination. It does not advance the aim of equality to refer to positive measures in the negative language of exemptions. CoSO believes that the SEB must include provisions specifically legalising measures designed to remedy disadvantage and promote equality of outcome.6 Genuine Organisational Qualifications (GOQs) CoSO recognises that there may be occasions when Genuine Organisational Qualifications (GOQ) may be necessarily used by various organisations. Although GOQ is used henceforth in this response, CoSO is clearly encompassing within its approach any genuine requirements of providers of services etc as well as employers.7 The use of GOQs must not be interpreted loosely (as has been mooted by misguided interpretations of the Framework Directive) and the Directive itself has a strong declaration that use of a GOQ cannot legitimise discrimination on any other ground. At this stage, CoSO has an open mind about the correct approach towards GOQs, ie whether to adopt a "general definition" approach as in the FEED or to keep to the UK tradition of a list of clearly defined situations which are the only ones in which a GOQ can be invoked. One approach to a litany of exemptions would take the form of a general defence for discrimination, clarified in the Codes of Practice in order to provide guidance in determining where a difference in treatment is justifiable. For these purposes, the EU Framework Directive"s general employment exemption (Act. 4(1)) should be looked to as a starting point and extended to all sectors covered by the SEB and would read as follows: Organisational Exemption Clause: a given characteristic constitutes a genuine and determining organisational requirement, provided that the objective is necessary and legitimate, and the requirement is proportionate. CoSO would point out that it is deliberately tightening up the FEED definition of GOQ. CoSO does not accept that it is permissible in the NI and GB context to allow GOQs merely where the objective is "legitimate". In NI equality law, it has always been necessary to establish clearly defined circumstances in which a GOQ can be invoked This definition ensures each particular instance of discrimination must be justified. Although it is self-evident that a GOQ cannot be used to discriminate either directly or indirectly in relation to another prohibited ground (indeed this is articulated in Article 4 FEED specifically in relation to the purported "religious ethos' GOQ but must 6 See later comments on positive action at G. 7 See also the approach of the Equality Working Group in relation to Clause 8 of its draft Equality chapter. CoSO response to SEB CD 7 apply more generally), CoSO is very wary of homophobic organisations trying to argue "legitimate" objectives which would not satisfy a test of "necessary" objective. CoSO notes that the Framework Directive (Art 15) exempts the recruitment of teachers from the Directive's provisions on religion or belief. CoSO believes that education exemptions should be subject to the same justification as set out above for occupational exemptions in general - the exemptions should be necessary, legitimate and proportionate. Broad religious discrimination for all educational hiring would fall short of meeting these requirements. Despite the specific inclusion of a "Northern Ireland" clause in the FEED, CoSO does not accept that NI equality law should include this blanket exemption which would only apply while "expressly authorised by national legislation". More particularly, CoSO is also concerned at the inclusion within the FEED of a possible "religious ethos" exemption in the SEB. This possible exemption is heavily circumscribed in relation to pre-existing laws and practices. However, even if it is considered necessary to include more than a general GOQ in relation to religious ethos employment, which CoSO would contest, CoSO makes particular reference to the qualification in Article 4.2 that any difference of treatment "should not justify discrimination on another ground". Similarly, although less explicit, the following sub-paragraph commences "Provided that its provisions are otherwise complied with, this Directive shall not prejudice the right of churches …." Although potentially more draconian even than the earlier sub- paragraph in the latitude which it might give some organisations to engage in discriminatory behaviour, neither permits discrimination, either direct or indirect, on any other ground governed by the Directive. In this sense, there can be no "religious ethos" exemption for sexual orientation. CoSO would wish to see explicit reference to this pre-condition, in relation to "discrimination on any other ground", articulated in the SEB. This first approach sets out CoSO"s position as being one of guarded recognition of the need for GOQs, and stating a preference for a general definition, in need of judicial interpretation, to create possible circumstances where discrimination would be allowed. However discussion within CoSO has revealed several situations in which it would be preferable, in keeping with the existing approach in the SDO, RRO etc, to have a pre-defined list of the only situations where discrimination would be permissible. For example, there are situations in which LGB organisations would wish to take advantage of a GOQ on the lines of Article 10 (2)(e) SDO in relation to "personal services promoting their welfare or education, or similar personal services ...", both in relation to employment and provision of services. Not only would an LGB group, which was concerned with helping LGBs to come out, want to employ LGBs, it would also want to provide its services to LGBs without the prospect of its activities being disrupted by litigious homophobic influences. Indeed, it might be argued that even a commercial organisation such an LGB bar or club should be allowed to restrict its clientele to LGBs in order that those who may not be out in many situations can enjoy the ambience of the bar or club only in the presence of other LGBs. A pre-defined list would allow organisations to know from the outset what was allowed and what was not without having to fight court cases in order to establish what a general definition permitted. A pre-defined list would also leave the scope of GOQs in the hands of the legislature, which is dedicated to a progressive equality act, rather than the courts and tribunals where a suitably sympathetic approach cannot be guaranteed. However, a defined list approach also enhances the CoSO response to SEB CD 8 possibilities of other regressive GOQs, for example in relation to religious ethos and more generally creates political tensions as to which GOQs should be included and which should not, creating the demoralising prospect of an act which is longer on exceptions than equality principles. There may be limited situations in which GOQs are permissible in relation to exemptions for goods, facilities, services, education and the social welfare system, although it appears that the REOD does not provide for this eventuality. CoSO has two concluding remarks on this highly problematic aspect of the SEB. First, there needs to be extensive discussion between the OFMDFM, the Equality Commission and the Equality Coalition on which approach to take towards GOQs. Secondly, it is imperative that any GOQ clause includes an categorical statement that GOQs cannot not used to discriminate either directly or indirectly on any other prohibited ground. Otherwise the principle of "equality of the inequalities" will be undermined by the unscrupulous use of GOQs to discriminate against other vulnerable groups, of which LGBs would be an obvious example. F: Definitions The purpose of equality law is to identify discrimination and promote equality, not to become lost in the minutiae of particular rules which mask the true purpose of the legislation. In this regard, CoSO is proposing wide ranging definitions of direct discrimination, indirect discrimination, reasonable accommodation and positive action. The underlying theme is that concepts should be transparent, workable, geared towards facilitating those organisations which wish to promote equality and effective towards those organisations which are not prepared to do so. Direct Discrimination CoSO believes that there should be no requirement of a comparator or reference to comparable situations for most of the terminology defined in this section. CoSO believes that in order to establish a prima facie case of discrimination, in terms of disadvantage suffered, the applicant need not locate a comparator. CoSO is particularly disappointed that the REOD and FEED adopt "less favourable treatment" approaches rather than the prohibition on "any discrimination whatsoever" as in the Equal Treatment Directive 1976. A comparator may provide evidence of discrimination but it is clearly not a pre-requisite for a finding of discrimination. For example, an employer cannot be allowed to get way with dismissing an LGB by dismissing others who are not LGB in order to ensure that the LGB is dismissed. CoSO believes that in line with long-established principles of human rights, equally poor treatment should not be considered as fulfilling equity principles. As stated by the CAJ, the requirement for a comparator works at cross-purposes with principles of equality by setting up the currently privileged group as the norm. The provisions of the SEB should also include specific measures preventing a diminution in protection or a "levelling down", ie achieving equality by taking away benefits from the more advantaged group rather than giving them to the less advantaged group. CoSO supports a definition of direct discrimination which introduces the notion of disadvantage, as was recommended by the Human Rights Commission"s Bill of Rights Equality Working Group. Disadvantage as a gauge for determining direct CoSO response to SEB CD 9 discrimination is also used in the Equal Treatment Directive and supported by the European Court of Justice. Direct Discrimination: direct discrimination shall be taken to occur when a person has suffered, will or would suffer disadvantage on the basis of their membership of a designated group. Indirect discrimination CoSO notes that a definition of indirect discrimination which is based around a necessity test for objective justification will provide the best protection. Again CoSO believes that there should be no comparator for the reasons mentioned above. The definition would read: Indirect discrimination: indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons of a [covered characteristic] at a particular disadvantage unless that provision, criterion or practice is justified by a necessary aim and the means of achieving that aim are appropriate. CoSO notes that defining indirect discrimination in this way has several strengths. First, it does not contain a statistical requirement as an element of proving indirect discrimination. The requirement of statistical proof has the effect of neutralising an indirect discrimination claim, as statistics are rarely available and/or costly to gather. This is especially relevant in the Northern Ireland context, where there is little statistical evidence yet available on many forms of discrimination, particularly in relation to SO. Second, the definition does not require the discrimination be overt, intentional or conscious. It sends a clear message that discrimination does not have to be direct or intentional to be highly damaging to society. Moreover, the provisions on indirect discrimination should make clear that the term "practice" refers to inaction as well as action. CoSO believes that it is imperative that the justification test be defined by a "necessary aim" rather than a legitimate aim, which weakens the protection. CoSO notes that the Framework Directive, which includes a "legitimate" justification test, is a minimum provision and believes that the SEB must return to the original "necessary" aim test found in the case law of the European Court of Justice in gender equality law. CoSO is particularly concerned that the rights of LGBs will be undermined through consideration by tribunals and courts of what is considered "legitimate" rather than what is considered "necessary" Reasonable Accommodation CoSo believes that extensive use of a "reasonable accommodation" concept across all the categories for protection under the SEB enables a diagnostic approach to equality. CoSO believes that a three step process, encompassing direct discrimination, indirect discrimination and reasonable accommodation concepts will provide the most effective legislative mechanism for delivering equality of opportunity and equality of outcome. CoSO response to SEB CD 10 CoSO believes that "reasonable accommodation" should not be restricted to disability equality law. It is a process which enables diagnosis of discrimination both direct and indirect and a removal of those discriminatory obstacles. The process encourages positive, inclusive action. The actors within society work to bring about a cultural change which shifts societal perceptions. This process towards a more inclusive environment, which is proactive rather than punitive, must be sanctioned and protected by the legislative process. Hence, indirect discrimination and reasonable accommodation should not be framed as either/or options. Victimisation CoSO believes that there must be a broad approach to victimisation as a form of direct discrimination. CoSO notes that the definitions of victimisation currently in force in anti-discrimination legislation, such as in the Race Relations (Amendment) Act 2000, are inadequate because they limit victimisation to those who have brought forward discrimination cases. They are also flawed in using the comparative approach. Victimisation protections should be extended far beyond their current limited scope and should receive as thorough treatment as other forms of discrimination. The REOD and FEED definition of victimisation is far preferable to the definitions offered by the Race Relations Order, or other current Northern Ireland legislation. Under its victimisation section, the Race Directive calls for Member States to "introduce measures as are necessary to protect individuals from any adverse treatment or adverse consequence as a reaction to a complaint or to proceedings aimed at enforcing compliance with the principle of equal treatment." The SEB"s Codes of Practice should ensure those brought within the ambit of victimisation protection include: former employees; third parties adversely affected, including those giving evidence; and current employees, including post-complaint/post-proceeding protection. If necessary, CoSO proposes that "third parties" should expressly include those who are associated with a person who is protected by the equality legislation. For example, a straight person could be refused a drink at a bar because s/he is in the company of LGBs who have complained that they are not being served. Harassment CoSO believes that there must be a broad approach to harassment as a form of direct discrimination. The SEB's harassment provisions should spell out prohibited behaviour, while allowing for positive measures and prevention. The provisions must make clear that both public bodies and employers have a positive duty to be proactive in taking all reasonable and relevant steps to prevent harassment. This is particularly important within the context of an Equality Bill, because of the severe exclusion, loss of dignity and intimidation experienced by the subjects of harassment. With this in mind, CoSO recommends a definition of harassment based on the Framework Directive"s definition: CoSO response to SEB CD 11 Harassment: harassment shall be deemed a form of discrimination when unwanted conduct related to [any ground covered by the SEB] takes place with the purpose or effect of violating the physical integrity or dignity of a person, or of creating an intimidating, hostile, degrading, humiliating or offensive environment. The Single Equality Bill must, again, ensure there is no requirement of a comparator in proving harassment. As the Hepple review of current UK anti-discrimination legislation points out, requiring a comparator ignores that harassment is really about creating an environment which undermines dignity. Further, the Human"s Right"s Commission"s Bill of Rights Equality Working Group have stressed the inclusion of physical integrity concerns in any definition of harassment. Physical integrity should be further elaborated in the Codes of Practice as including sexual and emotional abuse and neglect, as well as physical forms of abuse. Incitement & Instruction to Discriminate CoSO notes that both EU Directives (Art. 2(4)) require an instruction to discriminate be considered discrimination. CoSO notes that whilst instruction to discriminate requires a relationship between instructor and instructee (most often seen in the employment relationship), a prohibition against incitement to discriminate recognises the real range of discrimination experienced by LGB people. CoSO believes this is entirely logical and emphasises the importance of Northern Ireland introducing legislation which would include an express ban on incitement or pressure or instruction or promotion to discriminate in relation to all covered groups. Furthermore such a prohibition must go beyond coverage on employment relationships, to include goods, facilities, services (including public services), education and social welfare. G: Positive Action CoSO is committed to a rights based approach within the SEB. However the SEB must confirm the symbiotic relationship between the rights based concepts of direct and indirect discrimination and reasonable accommodation and the positive action process. CoSO notes that terms such as positive action, fair participation and equal access confirm the centrality of affirmative measures in terms of creating lasting structural and institutional transformation. The EU Directives are committed to this equality model. Their positive action clauses (Art. 5 and 7) give Northern Ireland broad latitude to seek permanent institutional change throughout society by "adopting specific measures to prevent or compensate for disadvantage linked to any of the grounds." Positive action affords a means of understanding our institutional structures, examining existing practices, and addressing the power structures that perpetuate disadvantage within our society. Positive action, framed as a means of achieving parity for everyone in Northern Ireland, must go beyond head-counting and the status quo language of under-representation to emphasise mechanisms for attaining CoSO response to SEB CD 12 and ensuring fair participation and equality of outcome.8 In this regard, the "reasonable accommodation" concept is a measure designed to protect against indirect discrimination but also to go beyond it into positive measures to alleviate disadvantage. CoSO believes the Single Equality Bill should contain express provisions carving out a general exemption for positive action measures. Building on the Hepple Report"s formulation, the clause protecting positive action should allow for positive measures intended to provide specific advantage for persons from a designated group in order to prevent or compensate for disadvantage in the covered areas. The Codes of Practice should provide examples of positive action measures. This open-ended protection is much preferable to a finite list, because it allows for the protection of a wide range of positive action strategies. In the consultation document, OFMDFM raises some concern over how to define a disadvantaged group for positive action purposes. Disadvantage is best seen as a relative position, which can be clearly identified and remedied with positive measures. It may not, however, fit into the prescriptive, fixed definitions usually set out in anti-discrimination legislation. That is, indicators of disadvantage can be clearly discerned using a diagnostic approach – this combines monitoring and evaluation in assessing whether a designated groups enjoys fair participation or fair access to sector in question, be it employment in a sector, participation in training, access to housing, etc. CoSo believes there must be maximum facilitation of employers/organisations which wish to take positive inclusionary measures. Although the NI equality regime has an example of a quota system in relation to the policing service, CoSO is not concerned about quotas for LGBs. What is more important is that those organisations which wish to take positive inclusionary measures should be facilitated and hence that a general positive action clause be included. CoSO is not opposed to any such programmes of positive inclusionary measures being subject to Equality Commission scrutiny and approval. Monitoring CoSO reaffirms its support for monitoring as a key tool in the diagnostic process within the SEB. CoSO finds no reason to limit monitoring to employers and employment or to certain readily "countable" categories. Employers have been monitoring their workforces for several decades, and their best practices can be surveyed for the purpose of developing monitoring instruments for use in the monitoring of other sectors, like the provision of goods, facilities and services. The OFMDFM has expressed some doubt about the value of requiring monitoring for categories where there is not likely to be statistically significant participation. CoSO disagrees with the consultation document"s suggestion that the relatively small overall population of some groups makes monitoring data statistically irrelevant. This assumption overlooks the power such monitoring data may have when aggregated by an equality body. For example, such aggregated data from employers has the 8 For further discussion on this point see CAJ, "Response by the Committee on the Administration of Justice to the Initial Consultation by the Office of the First Minister and Deputy First Minister on A Single Equality Bill for Northern Ireland." CoSO response to SEB CD 13 potential to reveal patterns of participation across a sector; there is also diagnostic value in revealing patterns of participation by members of those categories about which statistical information has proved elusive. Fair Employment legislation has been successful in implementing monitoring for religious belief or political opinion. This monitoring was initially responded to with reservations quite similar to the doubt currently being expressed towards the expansion of monitoring for other categories. However, we as a society now have much more experience with monitoring. Employers in particular are accustomed to monitoring their workforce in terms of workforce composition, training, recruitment, promotion, etc. If Northern Ireland is to develop an equality framework committed to achieving lasting equality of outcome, then the Single Equality Bill must include a statutory duty to register and monitor. With regards to traditional monitoring mechanisms sexual orientation should be included but without any obligation to reply. CoSO acknowledges that monitoring procedures reveal concerns about confidentiality and sensitivity in relation to sexual orientation. However CoSO believes that monitoring is essential to implementing a comprehensive, diagnostic approach towards equality. Nevertheless, in recognition of practical issues, CoSO feels it is important that monitoring entities be given the room (and indeed placed under an obligation) to explore imaginative alternative methods to the traditional monitoring procedures, as long as those monitoring are held accountable for accurately and sensitively accessing the information required by a diagnostic approach to equality. CoSO believes that the Equality Commission (Sexual Orientation Directorate) should authorise alternative qualitative methods of data collection, eg focus groups, representative consultations, feedback from representative organisations, responses to independent equality auditors etc. CoSO notes that the monitoring process itself can be an agent for creating a more equal environment. The public inclusion of sexual orientation acts as a counterbalance to the present relative invisibility if the LGB community. H: Structures The Equality Commission CoSO believes that in the interim there must be a Sexual Orientation Directorate within the Equality Commission. This directorate must have extensive powers to conduct investigations, bring cases in own name and in allied cases. Though the Equality Commission is currently engaged in a restructuring process it is crucial that the work on sexual orientation issues be given the resources and support a directorate would ensure. At present knowledge and experience on sexual orientation issues within the Equality Commission is relatively low in relation to previously legislated categories such as race or gender, and so this knowledge base must be raised via the establishment of a sexual orientation directorate. In the longer term, it remains vital that extensive diversity in the realities of the lives of those suffering differing disadvantage does not become lost in a regime where legal concepts are common to all categories. CoSO response to SEB CD 14 Single Equality Tribunal CoSO believes in the creation of a Single Equality Tribunal for employment and goods facilities and services cases. The equality tribunal, which may perhaps require fair employment and goods, facilities and service divisions, would aid in harmonising procedures across the areas of anti-discrimination law. A harmonised equality tribunal system is essential for the effective adjudication of claims by those who face multiple discriminations. A complainant would be able to have her particular claims adjudicated within the same tribunal using one set of procedures. This not only simplifies the process for all involved but also discourages the compartmentalisation of identity that can so often be fostered by discrimination proceedings. Finally, in terms of anti-discrimination and equality claims, there is a concern for the amount of familiarity and expertise possessed by the body adjudicating these cases. A system of equality tribunals would facilitate the accumulation of experience and expertise on the part of the adjudicating bodies. Continuing with separate tribunals or unharmonised procedures runs counter to the spirit of a single equality framework. Given the inclusion of SO within the equality regime, it might be anticipated that SO issues would receive a degree of sympathy and understanding from an Equality Tribunal which might be less likely in the ordinary courts. Removal of goods, facilities & services cases from the County Court Discrimination cases related to goods, facilities and services should also be heard by within the new tribunal structure. Currently, county courts hear discrimination cases related to the provision of goods, facilities and services. The costs, formality and complicated nature of county court procedures serve as a barrier to bringing these types of cases. Claimants must pay their own fees and face costs if they are unsuccessful, while county court judges have little experience and training in equality and anti-discrimination issues. The Hepple Report voiced the important reminder that many types of discrimination cases raise common themes and share similar sensitivities. In this sense, employment and non-employment discrimination cases share much more in common than goods, facilities, and services discrimination cases share with the other cases within the jurisdiction of the county courts. Moreover, as anti-discrimination legislation is simplified and made more understandable, there is likely to an increase in number of cases brought, without the matching increase in the county courts" capacities to handle the increased caseload. The new tribunal system will be much better prepared to meet this increased demand with the requisite sensitivity and expertise. Codes of Practice The Codes of Practice accompanying the Single Equality Bill will be essential to explaining and detailing the practical applications and nuances of the legislation. To ensure effective adjudication of proceedings under the legislation, any tribunal or court hearing anti-discrimination proceedings should have a duty to take into account the Codes of Practice accompanying the legislation. CoSO response to SEB CD 15 CoSO believes that the Codes of Practice must be specific reference to each of the protected categories of people. This is especially important for those categories of people who have not as yet benefited from anti-discrimination legislation. Possible role for mediation CoSO is in favour of a rights based approach to anti-discrimination legislation. However, CoSO recognises that although litigation is the primary mechanism for addressing discrimination and disadvantage, many people may be deterred from seeking redress or proactively addressing equality concerns. In addition to providing ample protection for those who initiate and participate in proceedings, the Single Equality Bill should keep in mind that the taxing and stressful nature of litigation remains a powerful deterrent to the proper functioning of any equality framework. The Single Equality Bill should create structures which directly address the current problems with the tribunal system's accessibility. Therefore, the equality tribunal structure should be supplemented by a preliminary complaint, conciliation and investigation structure. CoSO supports the proposed equality investigations body,9 which could function as the first stop for those with complaints of discrimination. If this structure were to provide for simple, low cost or free complaint filing, a significant barrier to seeking redress could be removed. There is also the option of giving this investigation body the power to encourage mediation, undertake investigation, and issue redress when discrimination is found. If such a structure is included in the SEB, the right to a court appeal of any decision must be provided for. CoSO believes these alternative dispute resolution mechanisms would make the claims and investigation structure more accessible, facilitate timely investigation and resolution of complaints, conserve resources, and alleviate the workload of the equality body. An interesting model to consider for the purposes of the Single Equality Bill would be the Office of the Director of Equality Investigations set up in the Republic of Ireland, which is now successfully investigating SO equality cases. CoSO believes that pursuing a claim using this administrative alternative should in no way, however, mean relinquishing the right to pursue litigation. The EU Directives requires Member States to provide the right to a "judicial and/or administrative remedy." As discussed in more detail below (Section VI(1)), mechanisms focused on increasing the efficiency and cost effectiveness of procedures cannot be allowed to eclipse a person"s right to fair and impartial adjudication of their claims. Legal standing for NGOs – public interest litigation - duty to consult NGOs CoSO notes that the consultation document does not address the role NGOs in the community/voluntary sector will play in the new equality structures. NGOs act as a pivotal catalyst in the development of the equality and rights agenda in Northern Ireland. CoSO has performed a representative function in relation to the statutory equality duty and the proposed Bill of Rights and welcomes the opportunity to do so 9 For further discussion on this point see CAJ, "Response by the Committee on the Administration of Justice to the Initial Consultation by the Office of the First Minister and Deputy First Minister on A Single Equality Bill for Northern Ireland." CoSO response to SEB CD 16 again in relation to the equality agenda. EU law, including both the Race and Framework Directive, protect NGOs" roles as advocacy organisations in bringing impact litigation and participating in social dialogue and consultation. In total, there are four key areas where provisions related to NGOs are imperative. Legal Standing and Representative Claims – The Race Directive makes clear that legal standing must extend beyond simply allowing an equality body the right to bring litigation on behalf of injured parties. The SEB should provide legal standing for all relevant organisations for the purposes of bringing litigation both on behalf of complainants and in their own name. More detailed specifications as to which organisations have a legitimate interest in legal standing can be further clarified within the Codes of Practice. Such a provision would allow for a more proactive approach in addressing equality issues through litigation, while recognising the burdensome toll bringing discrimination litigation often has on individuals. 1. Legal Persons – Accompanying the above provision on legal standing, the SEB should also ensure its provisions apply both to individuals and legal persons/organisations. The Race Directive extends coverage to legal entities. This provision should be incorporated into the Single Equality Bill. NGOs who represent disadvantaged constituencies can often find themselves the objects of discriminatory practices, and should enjoy the same protection extended by the legislation towards individuals. By expressly providing protection for legal persons and allowing NGOs to bring litigation in their own names, the SEB will provide for an important mechanism in fighting institutionalised discrimination. It will also extend adequate legal recourse to a key sector within the equality framework. 2. Social Dialogue and Consultation – The Race and Framework Directives include provisions for promoting social dialogue or consultation with NGOs. If the equality framework set up by the SEB is to result in perceivable movement towards the consistent promotion of equality, then NGOs should play a vital role in the process. This should extend from an expressly defined role in the equality body to a clearly articulated role in the formulation of monitoring and equality promotion strategies. 3. Resources for NGO participation in the equality framework – NGOs representing those who have been disadvantaged by institutional structures often struggle for funding to meet the needs of their constituencies. Participating in the equality framework is of utmost importance to many organisations, but it acts as a further drain on already over-extended staff and resources. A commitment to equality by the government of Northern Ireland must include recognising the duty it has to provide adequate resources and support for the NGOs who contribute their knowledge and expertise in this area. A Single Equality Bill that overtaxes or exploits organisations serving disadvantaged groups or NGOs that work for the advancement of equality neither addresses disadvantage nor furthers this society"s progress towards greater equality for all. Assistance with Legal Costs CoSO believes that accompanying the right to a judicial remedy must be provisions for assistance with legal costs. There are currently no legal aid provisions for cases CoSO response to SEB CD 17 brought before the Fair Employment Tribunal or the Industrial Tribunal. Given the complexity of discrimination law, SACHR had concluded it is completely unrealistic to expect parties to appear without legal representation.10 Remedies, including proactive programmes under supervision of Equality Commission CoSO recommends a complete reassessment of the remedies available under current anti-discrimination and equality legislation. Both EU Directives allow for a broad set of remedies, while the European Court has concluded that remedies for anti- discrimination must have a real deterrent effect. That is, remedies should not only provide redress for the immediate claim, but also include provisions for effective deterrence and prevention of discriminatory practices in the future. The Single Equality Bill should provide for a broad range of practical and flexible remedies ranging from retrospective remedies, such as financial compensation, to prospective remedies, such as injunctions and mandatory reviews of equality policies. In addition, as suggested by the EOC (NI), tribunals decisions should be treated as binding precedent. This would allow other employers to benefit from tribunal decisions while facilitating the adjudication of similar anti-discrimination claims. The expansion of remedy provisions will bring the powers of the tribunals, courts and equality bodies under the Single Equality Bill in line with European standards. I: Conclusion As stated in our Introduction, CoSO welcomes this opportunity to participate in the consultation process on the SEB. However, this is only a beginning. CoSO looks forward to further detailed dialogue with the OFMDFM and the Equality Commission and within the Equality Coalition upon the detail of this SEB so that it may indeed meet the aspirations of the OFMDFM itself to be a comprehensive and progressive piece of equality legislation. 10 For further discussion on this point see CAJ, "Response by the Committee on the Administration of Justice to the Initial Consultation by the Office of the First Minister and Deputy First Minister on A Single Equality Bill for Northern Ireland." CoSO response to SEB CD 18
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