Select Committee on Northern Ireland Affairs Fourth Report


24. After we had embarked on this inquiry, in December 1998, the draft Fair Employment and Treatment (Northern Ireland) Order 1998[45] was published and laid before Parliament, designed to implement many of the proposals announced in the White Paper and to replace the remaining provisions of the 1976 and 1989 Acts. As a draft Order in Council under the Northern Ireland Act 1974, it was not subject to the same parliamentary scrutiny as that to which primary legislation would have been subject, and consequently could not be amended by either House. It was debated briefly on 7 December 1998 in the House of Lords,[46] and considered by a House of Commons Standing Committee on Delegated Legislation on 10 December.[47]

25. In brief, the new Order repeals the 1976 and 1989 Acts, while substantially re-enacting major parts of those Acts, although with those significant changes set out in the White Paper, "Partnership for Equality".[48] The major changes enacted include:

  • provisions which broaden the scope of the legislation to prohibit unlawful discrimination on grounds of religious belief or political opinion in goods, facilities and services,[49] including the sale of land (subject to the limitation that land sales not publicly advertised are excluded from coverage);[50]
  • provisions which broaden the scope of monitoring returns and triennial reviews: increasing the number of employers who must register with the FEC;[51] including part-time workers within the scope of a new definition of employee;[52] requiring all registered employees to include details of those applying for work;[53] requiring public authorities to include details of those leaving employment in monitoring returns;[54] permitting regulations to prescribe only one principal method for assessing community affiliation;[55] and requiring triennial reviews to include redundancy issues.[56] New monitoring regulations were published in March 1999 to come into operation on 1 January 2001;[57]
  • provisions broadening the scope of affirmative action exceptions: permitting employers to train non-employees of one religion where that religion is under-represented in the workforce;[58] permitting employers to recruit from those not in employment;[59] and modifying the affirmative action provisions relating to redundancy by omitting the need to have an agreed procedure;[60]
  • giving new powers to, and placing new duties on, the Equality Commission, including a duty to keep working of the Order under review,[61] and new powers to deal with persistent discrimination;[62]
  • broadening the scope of the employment provisions to include partnerships[63] and barristers;[64]
  • modifying the individual complaints procedures: enabling tribunals to make recommendations for reducing the adverse effect of any unlawful discrimination on someone other than the complainant;[65] providing for tribunals to have the power to award damages for unintentional indirect discrimination;[66] and empowering the Labour Relations Agency to draw up arbitration schemes.[67]
  • Following the judgment by the European Court of Human Rights in the Tinnelly and McElduff case,[68] both the Northern Ireland Act 1998[69] and the new Order[70] provide for a right of appeal to a new tribunal against national security certificates signed by the Secretary of State.

26. We shall be considering the substance of some of these changes subsequently. At this point, however, it is appropriate to register our unease at the form in which this legislation was presented to Parliament. In 1976 and 1989, fair employment legislation took the form of primary legislation, whereas in 1998 the form adopted was an Order in Council, which contained substantial changes from the earlier legislation. In contrast to the previous occasions, the House had no opportunity to seek to amend the proposals. Originally, indeed, the Government proposed taking the Order in the Standing Committee before Mr Ingram gave evidence to us on 9 December. We were grateful that the Government did at least delay consideration of the draft Order in the Standing Committee until after he had given evidence, and we made special arrangements to ensure that the transcript of Mr Ingram's evidence was made available to that Committee.

27. Our concern was, if anything, intensified by the way in which the draft Order in Council was presented to Parliament.[71] In other circumstances in which an Order in Council approach to legislating for Northern Ireland had been adopted, the Government frequently published a proposal for the draft Order in Council before the draft itself was published, in order to enable interested parties to comment on the proposal before it was finalised. The 1998 Order was not first published as a proposal and so even that possibility of influencing the draft was substantially reduced, although Mr Ingram maintained[72] that people had three months to comment on the White Paper.

28. While we appreciate that the Government wanted to make "rapid progress" with the legislation in order to ensure that the terms of its obligations under the Belfast Agreement[73] were fulfilled, we do not consider that the procedures used in this case provided for adequate Parliamentary scrutiny of important new legislation in a sensitive policy area where, hitherto, primary legislation has been the norm. We regret that Government felt it should proceed by way of an Order in this case. Fair employment legislation is an issue of such importance and sensitivity that primary legislation, which permits both more extensive debate and amendment, would, in our opinion, have been the more appropriate approach.

45  Referred to hereafter as the "1998 Order". Back

46  House of Lords Official Report, Vol. 595, 7 December 1998, cols 755-773. Back

47  House of Commons, Fourth Standing Committee on Delegated Legislation, Draft Fair Employment and Treatment (Northern Ireland) Order 1998. Back

48  Cm 3890. Back

49  1998 Order, Article 28. Back

50  1998 Order, Article 29(2). Back

51  1998 Order, Article 48. Back

52  1998 Order, Article 69. Back

53  1998 Order, Article 52. Back

54  1998 Order, Article 52. Back

55  1998 Order, Article 53. Back

56  1998 Order, Article 55. Back

57  Fair Employment (Monitoring) Regulations (Northern Ireland) 1999. Back

58  1998 Order, Article 76. Back

59  1998 Order, Article 72. Back

60  1998 Order, Article 73. Back

61  1998 Order, Article 7. Back

62  1998 Order, Article 41. Back

63  1998 Order, Article 26. Back

64  1998 Order, Article 32. Back

65  1998 Order, Article 36. Back

66  1998 Order, Article 39. Back

67  1998 Order, Article 89. Back

68  Tinnelly and Sons Ltd and McElduff v United Kingdom (Application No. 20390/92, (1992) 27 EHRR 249, 10 July 1998 (European Court of Human Rights). Back

69  Northern Ireland Act 1998, Sections 90-92. Back

70  1998 Order, Article 79-80. Back

71  This concern was shared by others, see Q415. Back

72  Q4. Back

73  Q3-4. Back

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