Select Committee on Northern Ireland Affairs Fifth Special Report

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 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

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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