Appendix I
Government Response to
the Report of the Committee on the Operation of the Fair Employment
(Northern Ireland) Act 1989: Ten Years On
The Government welcomes the Committee's
report and in particular its acknowledgement of the importance
of equality of opportunity issues to the Peace Process and ultimately
to the future of Northern Ireland. The Report is wide-ranging
and considers not only the effectiveness of Government policy
to date but also very recent developments such as the establishment
of the Equality Commission and the imposition of a statutory duty
on public authorities to have due regard to the need to promote
equality of opportunity. It therefore provides a valuable contribution
to the wider understanding of Government's efforts to enhance
equality of opportunity for all sections of the Northern Ireland
community.
The Government is encouraged by the
Committee's view that the legislation has made an important contribution
to improving fairness in employment in Northern Ireland. It recognises
however that there is more to be done and it is pressing ahead
with the measures outlined in the White Paper "Partnership
for Equality" to ensure employment is fairly shared and equality
of opportunity across a broad range of issues is available to
everyone in Northern Ireland.
The Government has the following
comments to make on the Committee's specific conclusions and recommendations.
The numbers refer to paragraphs in the Committee's report.
In short, we consider that the
community differences in unemployment should remain an appropriate
and important issue of concern for Government. While not a simple
measure of success of the legislation, it is one measure of the
success or failure of Government policy generally in the area,
but not the only one. (Paragraph 47)
Government fully accepts that community
differences in unemployment are unacceptable and should remain
an issue of concern. It endorses the Committee's recognition that
this is not a simple measure of the effect of the legislation
on what is a very complex problem. As set out in the White Paper
"Partnership for Equality", a broad range of policies
and programmes is being implemented to tackle this problem and
long-term unemployment generally.
We are conscious that much of
the evidence on the compliance costs of employers under the fair
employment legislation is, at best, somewhat anecdotal. Further
research is necessary before definitive conclusions can be reached.
(Paragraph 53)
The Government accepts that there
is a lack of robust information on the costs to employers of complying
with fair employment legislation. To remedy this deficit the Government
will ensure that research into this issue is available to the
next review of employment equality which will be launched by 2005
at the latest.
We recommend an urgent review
of the manpower and physical resources devoted to Fair Employment
Tribunals in order that the backlog of cases can be cleared and
future cases decided much more speedily, in the interests of complainants
and respondents alike. (Paragraph 64)
The Office of the Industrial and
Fair Employment Tribunals receives a significant number of complaints
each year. For example, in the calendar year 1998 there were 4,022
Industrial Tribunal (IT) and 559 Fair Employment Tribunal (FET)
complaints registered and from January 1999 to 30 June 1999
there were 2,876 and 255 respectively. The number of live cases
at 29 July 1999 was 1,049 FET and 11,172 IT.
Government has sought to ensure that
both the Fair Employment and the Industrial Tribunals are resourced
to deal with this workload. It is conscious of the backlog and
of the need to hear cases quickly and has taken steps to address
the problems.
The number of part-time IT Chairmen
available to hear cases was doubled last year and it is planned
to appoint three additional part-time Chairmen to the FET in Autumn
1999. In support of this, the Department also doubled the number
of lay members available to sit on the two Tribunals to over 300,
effective from 1 January 1999.
Two additional tribunal rooms were
added during November 1998 and a further two rooms will come
on stream later this year following renovations now underway at
Long Bridge House. This will increase to nine the number of rooms
available.
The Fair Employment Commission
(FEC) regards the twin aims of "fair participation",
first, as achieving the better representation of the Roman Catholic
community, and, second, as getting rid of segregation in employment.
We explored with the FEC whether it considered that there was
a tension between these two aims, and whether they sought to prioritise
one over the other. The answer was that the Commission had not
had to prioritise the aims because the Commission had sufficient
resources to concentrate on both. We recommend that adequate resources
be provided to the Equality Commission to ensure that this remains
the case. (Paragraph 65)
We recommend ... that Government
should give very careful consideration to the proposal of the
Equality Working Group report, which concluded that an extra £525,000
of public money would be necessary if there was to be no diminution
of effectiveness in areas of current activity while also making
the new equality duty on public authorities effective. It is,
in our view, essential that the work of the four bodies to be
subsumed into the new Equality Commission continues at present
levels of activity. (Paragraph 78)
Government is fully committed to
proper resourcing of the Equality Commission to enable it both
to carry on the work of the existing equality bodies and to address
its new duties effectively. It has already had discussions with
the Commission on the matter and will consider it further in conjunction
with the Commission as part of the review of public expenditure
allocations it is currently undertaking.
While we welcome the extent to
which individual complaints have been used by the Fair Employment
Commission as the basis for strategic work with employers, we
agree with the Commission that if this was the "sole method
of dealing strategically with employers then it would be a failure".
We recommend that the existing regulatory functions of the Commission
be retained in their entirety. (Paragraph 66)
The Government agrees with the Committee's
recommendation. As evidenced by Article 7 of the Fair Employment
and Treatment (Northern Ireland) Order 1998 the Fair Employment
Commission's existing duties under the 1989 Act will be taken
over in their entirety by the new Equality Commission. Those duties
have also been extended to include review of the working of the
legislation and to enable the Equality Commission to provide advice
to the Department on any matter relating to the Commission's duty
or any other matter which the Department may specify.
We recommend that the Equality
Commission be established without further delay. (Paragraph 72)
The Equality Commission was established
on 2 August 1999 and will take over the functions of
the equality bodies on 1 October 1999.
We recommend that a review of
the appropriateness of the Nolan/Peach system for these types
of appointments [appointment of members of the Equality
Commission] be carried out by Government in light of
the experience now gained in its operation since it was introduced
and the concerns expressed to us in this case, and more generally
in Northern Ireland, about some recent appointments to public
bodies. (Paragraph 74)
The Government accepts that it is
desirable for the membership of public bodies in Northern Ireland
to be balanced in terms of gender and community background and
to be otherwise representative of the community which they serve.
The Government does not accept that
achieving a representative membership is incompatible with the
Nolan/Peach principle of appointment on merit. The initial objective
of the appointments process is to maximise the pool of applicants
from which appointments are made. This is achieved by the use
of open competition including public advertisement. Having achieved
this, appointments are made on merit, taking account of the range
of skills which the body requires to carry out its remit effectively
and the desirability of a membership which is broadly representative
of the local community. The Secretary of State has approved an
action plan designed to encourage more applicants from under-represented
groups. Part of that plan involves a review of the documentation
used for public appointments to make it less off-putting to under-represented
groups; to enable greater account to be taken of non-traditional
career paths; and to ensure that the criteria drawn up do not
disadvantage any particular group.
The Government is not aware of any
significant public disquiet in Northern Ireland that the introduction
of the Nolan/Peach procedures has led to the membership of public
bodies becoming less representative and feedback from Departments
has not revealed any problems of incompatibility between the process
and the desirability of having representative membership of public
bodies.
The Government does not believe therefore
that a review of the appropriateness of the Nolan/Peach procedures
for Northern Ireland, as recommended by the Committee, is necessary
at this time. However, post-devolution, responsibility for making
appointments to most public bodies in Northern Ireland will pass
to the local administration. It will be a matter for them to decide
what procedures they wish to adopt for making public appointments.
We were impressed, during our
visit to the United States, at the importance the equivalent body
[to the Equality Commission] (the Equal Employment
Opportunities Commission) placed on staff flexibility and non-specialisation
in order to ensure as integrated a Commission structure as possible.
(Paragraph 77)
Integration of the existing bodies
will be a matter for the Commission itself. It will no doubt wish
to balance the benefits of retaining existing specialised knowledge
with those expected to come from structural reorganisation. The
Report of the Equality Commission Working Group recommended that
the Commission produce an organisational development strategy
within the first few months to achieve effective integration of
all staff into the organisation and manage the process of change.
Government agrees that this should be a priority for the Commission.
We recommend that an early announcement
be made by the Government on designations generally. (Paragraph
85)
It is intended that an Order listing
the public authorities to be designated under section 75(3)(a)
and (d) of the Northern Ireland Act 1998 will be made in the autumn.
Given the delay that there has
already been in establishing the Equality Commission, a further
extensive delay in bringing in the equality duty would be most
unfortunate. (Paragraph 87)
Section 75 of the Northern Ireland
Act 1998 will come fully into operation on 1 January 2000.
This date was set by the Northern Ireland Act 1998 (Commencement
No 3) Order 1999. Under the terms of the Act, public authorities
will be required to submit their equality schemes to the Equality
Commission by 30 June 2000.
We recommend that the Government
look again at the potential contribution of contract compliance
to achieving fair employment objectives, taking account of the
full extent to which this may be compatible with EU law and drawing
fully on the experience of the United States Federal Government.
The Government has acknowledged, in the White Paper, the principle
that contract compliance has a part to play in the particular
circumstances of fair employment in Northern Ireland. This is,
as the Government says, a significant modification of general
Government policy on contract compliance. We believe that the
present limited provisions can, and should, be developed into
a more effective mechanism for helping to deliver fair employment
policy objectives. (Paragraph 101)
We note that Government and public
bodies award public contracts on behalf of the communities that
they serve. It is not therefore, in our view, unreasonable that
these communities might expect that public contracts should, all
other things being equal, go to contractors who further such a
basic policy aim as fair employment. We do not consider the award
of public contracts as simply an economic activity by the Administration,
in which the Administration can consider itself as equivalent
to a private sector organisation. (Paragraph 103)
We find it difficult to see how
public purchasing activity can in principle be regarded as a separate
area of state activity in which equality criteria are ignored
that are considered self-evident in other areas of state activity,
such as public sector employment. (Paragraph 104)
The scope for using contract compliance
as a means of furthering fair employment objectives was carefully
considered in the preparation of the White Paper, "Partnership
for Equality" (Cm. 3890), published in March 1998. It
was decided not to extend contract compliance - beyond those provisions
on unqualified persons in the fair employment legislation. More
recently, the Government's response to the Better Regulation Taskforce's
recommendations on contract compliance in the review of anti-discrimination
legislation reiterated its long standing position that all public
procurement of goods and services is to be based on value for
money, having due regard to propriety and regularity, and should
not be used to pursue other aims. That continues to be Government
policy.
We recommend that Government Departments
and public bodies review the position they have taken with regard
to public procurement in the context of the preparation of their
equality schemes under section 75 of the Northern Ireland
Act 1998. (Paragraph 105)
Policy on public procurement by Departments
and public bodies is determined centrally. In due course the central
policy will be subject to an equality impact assessment in line
with the section 75 obligation.
We recommend that the Government
make renewed efforts to find a solution to this problem [of
the potential breach of Bar ethics by the Counsel appearing as
Special Advocates before a section 91 Tribunal]
which is acceptable both to the Bar and to Government. We understand
that there is a similar question outstanding regarding the equivalent
procedure in the immigration context. More generally, we recommend
that the use of the national security certificate system (NSCS)
be reviewed by the Northern Ireland Office in the context of the
preparation of its equality scheme under the Northern Ireland
Act. This would consider whether the operation of the NSCS has
any implications for equality of opportunity between the two designated
religious communities. (Paragraph 113)
Following consideration of this issue
by the Executive Council of the Bar of Northern Ireland, the Bar
Council is considering the application of its Code of Conduct
to Counsel appointed as special advocates. The Attorney General
will provide any assistance which the Bar may require in this
respect. The Attorney General has to date appointed two Counsel
to act as special advocates to represent the interests of prisoners
before the Sentence Review Commissioners. The advocates have yet
to appear before the Commission.
In individual cases the issue is
whether the Certificate is properly issued. This is a matter for
the Section 91 Tribunal. Government has no plans to review
the system.
We recommend that a formal assessment
should be made after the new [Fair Employment and Treatment]
Order has been in effect for five years, just as the 1989 Act
was reviewed after five years operation. (Paragraph 117)
The Government welcomes the Committee's
comments on the provisions of the Fair Employment and Treatment
(Northern Ireland) Order 1998 and agrees that the Order should
be reviewed after five years of operation. The Government, at
paragraph 6.7 of the White Paper "Partnership for Equality"
has already given a commitment to review the legislation and related
policies by 2005 at the latest.
We have noted ... the continuing
under-representation of Roman Catholics in the Senior Civil Service.
As the Secretary of State put it in her evidence:
"...there
is a problem...at
the top three or four levels of the Civil Service, which is male
dominated and there are not many Catholics to be seen either..."
We understand from the Secretary
of State that the Government is considering what might be done
to improve the situation. We look forward to receiving further
information on the results of this reassessment when it is completed -
we hope in the near future - and look to the Government to
include at least an interim response in its Reply to this Report.
(Paragraph 118)
The Government welcomes the interest
shown by the Select Committee in the continuing under-representation
of Roman Catholics in the Senior Civil Service. Successive reports
of the Equal Opportunities Unit of the Department of Finance and
Personnel, and most recently the Sixth Report published in October 1997,
have highlighted not only the religious imbalance in the Senior
Civil Service but also the gender imbalance.
The NICS has worked closely for many
years with the Fair Employment Commission and the Equal Opportunities
Commission in exploring ways of accelerating the goal of fair
participation and as a result has initiated many positive actions.
The figures in the table below for the Senior Grades at Assistant
Secretary and above show that progress has been made in recent
years, but more remains to be done.
| Roman Catholic
| Females |
| (%)
| (%)
|
| 1985
| 5.9%
| 2.8%
|
| 1999
| 23.9%
| 9.2%
|
Following consultation with the Fair
Employment and Equal Opportunity Commissions, the Government has
set targets for improving the religious and gender balance in
the Senior Civil Service. It remains open to suggestions, within
the law, for further accelerating the process.
The Government intends to review
progress in promoting fair participation in the Senior Civil Service
and to seek to identify further measures which would help the
NICS at senior levels to become more representative of the Northern
Ireland community as a whole. The remit and conduct of the review
is under consideration and will be announced shortly.
We recommend that, in order to
prevent conflicts of interest arising, the Secretary of State
should establish her own Equality Unit within the Northern Ireland
Office, in part to advise her on the exercise of these functions,
and in part to co-ordinate the equality schemes of UK Departments
and public authorities designated by her under section 75
of the Northern Ireland Act 1998. (Paragraph 122)
Appropriate structures will be put
in place to ensure that those responsibilities which fall to the
Secretary of State continue to be performed. There is already
a Human Rights Unit in the Northern Ireland Office which is looking
at the general issue of the Secretary of State's responsibility
for equality.
If, by the time the Government
replies to this Report, there has been no such transfer of powers,
or such a transfer of powers under the Northern Ireland Act 1998
is not an immediate prospect, we look to it to indicate what institutional
arrangements within Government it proposes for equality matters
in Northern Ireland. (Paragraph 123)
The existence of the Equality Commission,
the statutory obligation on equality of opportunity and the provisions
of the Fair Employment and Treatment (Northern Ireland) Order
1998 are not dependent on the transfer of powers to a devolved
administration. In the interim before devolution, the statutory
responsibilities of the Department of Economic Development in
relation to the Equality Commission are set out in the Northern
Ireland Act 1998. Responsibility for promoting the statutory equality
obligation and giving advice within the Northern Ireland Departments
rests with the Central Community Relations Unit, pending the creation
of an Equality Unit in the Office of the First Minister and Deputy
First Minister at the time of devolution.
We agree with the Secretary of
State that a Memorandum of Understanding should be agreed between
the Northern Ireland Human Rights Commission and the Equality
Commission to minimise unacceptable overlaps, without in any way
improperly fettering the powers of either body, and we so recommend.
(Paragraph 124)
Ministers explained in Parliament
during the passage of the Northern Ireland Bill that the width
of the Northern Ireland Human Rights Commission's remit meant
that there was likely to be some overlap with the remit of the
Equality Commission and that the Government envisaged a non-statutory
arrangement of understanding between them. This is a matter for
the Commissions and both the Chief Commissioners are well aware
of the potential for overlap in their respective jurisdictions.
They regard agreement of a Memorandum of Understanding between
their Commissions as a priority task.
We welcome the inclusion of TSN
as one of the areas of responsibility of the new Equality Unit
in the First and Deputy First Ministers' Office. We consider that
New-TSN should be adequately resourced to enable it more effectively
to target a reduction in the unemployment differential than it
has proven to be in the past, that the indicators used to determine
social need be kept under review to ensure that they enable the
effective targeting of resources to those in greatest need, and
that the transparency and accountability of TSN decision-making
be enhanced. (Paragraph 125)
The Government is committed to openness
and consultation in the implementation of its New TSN initiative.
The New TSN first annual report to be published shortly will include
draft action plans, prepared by Northern Ireland Departments.
A consultation process will be launched to obtain the views of
individuals and non-Governmental organisations on these proposals.
New TSN does not have a separate budget, but is implemented through
the refocusing of Departmental programmes. In the case of tackling
long-term unemployment, several initiatives have a role to play
including the New Deal and Lifelong Learning.
We recommend that monitoring of
the effects of the New Deal by religion be carried out as suggested
to us by the Northern Ireland Economic Council, in order to estimate
whether, and to what extent, the New Deal helps to reduce the
unemployment differential. (Paragraph 126)
It is likely to be very difficult
to trace the effect of any single policy on the unemployment differential,
which is a complex problem affected by many different factors.
However, the New Deal programme is being monitored in a number
of ways including by religion and its outcomes will be carefully
evaluated.
As we have seen, the fair employment
legislation has recently been amended to permit recruitment from
the long-term unemployed as a lawful form of affirmative action.
Again, it remains to be seen to what extent this enabling provision
will affect the unemployment differential. We recommend to the
Equality Commission that it vigorously promote the use of this
provision. (Paragraph 127)
Government has drawn the Committee's
recommendation to the attention of the Chief Commissioner of the
Equality Commission.
We recommend that, when the IDB
prepares its equality scheme under section 75 of the Northern
Ireland Act, it should in particular consider the extent to which
its operations might better serve to contribute to the policy
goal of reducing the unemployment differential. We may return
to this matter in the context of our inquiry into the public expenditure
aspects of inward investment in Northern Ireland. (Paragraph 128)
The IDB will be included in the equality
scheme to be produced by the Department of Economic Development.
Under that scheme, existing IDB policies will be reviewed against
their impact on equality of opportunity for all the groups identified
in section 75.
We do not consider that Government
should wait until the production of the results of the Census
in 2011 to reconsider this issue [the unemployment differential].
We note that the next review of employment equality, which the
Government has said will be launched by 2005 at the latest, and
we have suggested should occur five years after the coming into
effect of the Fair Employment and Treatment Order 1999, will consider
any deviations between the benchmarks established and the available
data. This would provide a suitable opportunity for appropriate
policy initiatives on the unemployment differential. (Paragraph
130)
It has never been the intention of
Government to wait until the results of the Census in 2011 are
available before reconsidering the effects of its policies on
the unemployment differential. The Government agrees that the
next review of employment equality, which will be launched by
2005 at the latest, will provide a suitable opportunity for all
of the issues associated with the unemployment differential to
be given full consideration.
We recommend that Government attempt
to ensure that independent research on fair employment issues
be made available on a continuing basis from several sources.
In particular, we recommend, given the potential importance of
these issues to economic planning and investment in the future,
that the Northern Ireland Economic Council be encouraged to integrate
fair employment issues into the mainstream of its work on a continuing
basis. (Paragraph 133)
In developing and reviewing its fair
employment policies, Government has benefited greatly from the
findings of a wide range of independent research. It will liaise
with the new Equality Commission and with research institutions
to ensure that a co-ordinated and coherent programme of research
on fair employment issues is put in place. Government will formally
commend to the Northern Ireland Economic Council the Committee's
view that it should integrate fair employment issues into the
mainstream of its work on a continuing basis.
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