THE FAIR EMPLOYMENT AND TREATMENT ORDER
1998
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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