Select Committee on Northern Ireland Affairs Fourth Report


70. We turn now from the past to the future, and consider several issues which have been brought to our attention as important issues which bear on the future success of Government policy in this area.

Equality Commission

71. The Northern Ireland Act received Royal Assent in November 1998. This established the new Equality Commission which is to replace the existing statutory equality bodies, but the relevant provisions of the Act have not yet brought into force, pending further work on clarifying the modalities of amalgamation. A working group, chaired by Dr Joan Stringer, began meeting immediately the Act was passed, with a Ministerial request that it complete its deliberations by the end of January. The intention was to have the new structure in place in March 1999. Due to the need for extensive consultation on the new arrangements and the need to move ahead swiftly with the appointments process, it was subsequently agreed that the Working Group would make early recommendations to Ministers in relation to the new Commission's structure, with a final report in March on other issues.

72. We note with disappointment that appointments have not yet been made to the Commission, although we welcome the statement made to the House on 30 June[151] that the process of appointing people should be completed by the end of July. This is much firmer than the forecast given to us by the Secretary of State on 19 May that the Equality Commission would be established in "some weeks but no more."[152] Mr Ingram assured us in December that the Government was attempting to make rapid progress with employment equality issues,[153] and that the Government was trying "to get this body in place as quickly as possible because of the range of important issues which it is having to deal with."[154] We recommend that the Equality Commission be established without further delay.

73. Apart from the problem of delay in establishing the Equality Commission, we received evidence which called into question the appropriateness of the appointments procedure adopted for new Commissioners.[155] The legislation provides that the Secretary of State is responsible for appointments to the Commission. However, these appointments are also subject to the 'Nolan/Peach' procedures,[156] which involve public advertisement, shortlisting by a panel of civil servants and an external member from the Civil Service Commission, interviews by the same panel, and recommendations to the Secretary of State. This appears to have given rise to some confusion as to who has the ultimate responsibility for appointments.[157]

74. We recommend that a review of the appropriateness of the Nolan/Peach system for these types of appointments 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.

75. The Equality Commission, when it is established, will have a difficult task making one new effective body out of four existing bodies, each with their own ethos, staff and priorities. A key issue will be whether the new Commission preserves the separate areas of equality (race, gender, disability and religious attributions) or attempts to create a more integrated Commission structure.

76. The Working Group's approach was to consider the structure of the new Commission in two phases: what needed to be in place on the date of establishment of the Commission (Phase 1) and the position in 6 to 12 months' time (Phase 2). The Group did not consider that full-scale amalgamation of functions was achievable from the first day of operations. In brief, the Group recommended that separate directorates on fair employment and treatment, sex equality, racial equality and disability be created during Phase 1, with similar provision for supervising the statutory duty. The Group recommended that the new Commission should review this structure as soon as practicable "in view of the need to encourage the development of a single ethos".[158] During Phase 1 there should in addition be movement towards functional unification of support services and external relations. In Phase 2 the Group envisaged the amalgamation of Legal, Equality, Advice and Information, Investigation and Enforcement, Policy and External Affairs, and Research functions, but with a Disability Directorate continuing separately for a period.

77. We do not wish to comment in detail on this structure, but to concentrate on the broad issue of amalgamation. We consider that movement towards a fully integrated Equality Commission, organised functionally rather than on the basis of the jurisdiction of existing equality bodies, should be made a reality as soon as possible, and in any event by the end of the first year of operation of the new Commission. We were impressed, during our visit to the United States, at the importance the equivalent body (the Equal Employment Opportunities Commission) placed on staff flexibility and non-specialisation[159] in order to ensure as integrated a Commission structure as possible.

78. In achieving this aim, strong leadership by the Commissioners and senior staff will be necessary in order to ensure that the existing equality bodies become successfully integrated. But, in addition, the Commission need to be assured it will have the resources which such a development will require, particularly since the new Commission will also have the new statutory equality duty on the public sector[160] to monitor and police. We recommend, therefore, 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.

Harmonisation of equality legislation

79. A major potential difficulty of the new arrangements, which some of our witnesses commented on, is the variety of different statutory requirements that operate in the different areas of equality law.[161] The regulatory regime regarding fair employment differs markedly from both race and sex discrimination legislation, which in turn is considerably different from disability discrimination requirements. While the substance of race and sex discrimination legislation is relatively similar in significant ways, the latter now has to be read subject to European Union gender equality law which has no existing equivalent in the race context.

80. We regard it as unlikely, in the longer term, that the single Equality Commission will operate successfully if the plethora of different requirements currently imposed continues. Some degree of harmonisation of the equality requirements therefore seems necessary, and this was supported by a wide range of bodies giving evidence to us (CBI Northern Ireland,[162] IoD,[163] CAJ[164]). We agree with the IoD that "proposing a single Commission but without proposing a thorough look at the legislation" means that the "job is not complete."[165]

81. This would raise the difficult question of the level of harmonisation. We have not examined the regulatory frameworks in the equal opportunities, racial equality and disability areas of policy in Northern Ireland, so we have no information on what changes might be appropriate if a common framework is introduced. On the basis of the evidence adduced in the course of this inquiry, however, we would be most reluctant to see any diminution in standards in the area of fair employment legislation. It would also sit very oddly with the enhancements introduced only recently by the Fair Employment and Treatment Order 1998.

Statutory Duty to Promote Equality of Opportunity

82. We consider the new statutory duty on public authorities to promote equality of opportunity enacted in the Northern Ireland Act 1998 to have important implications for the issues we consider in this Report. As we have seen, the new provisions grew out of attempts to make the earlier non-statutory Policy Appraisal and Fair Treatment guidelines more effective, and from the Belfast Agreement. The new duty is an attempt to make equality issues central to the whole range of public policy debates, including those areas of Government policy-making which have a considerable indirect effect on fair employment issues, such as industrial development and inward investment policy. We agree with those who gave evidence to us that the new equality duty on public authorities in the Northern Ireland Act has the potential to have a very significant effect on policy-making in areas relevant to equality of employment equality.

83. Section 75 of the Northern Ireland Act 1998 provides that each "public authority" is required, in carrying out its "functions" relating to Northern Ireland, to have due regard to the need to promote equality of opportunity between certain groups. We consider that it is important that a broadly inclusive view should be taken, both of which public authorities are included and of which functions are covered by the duty.

84. As regards the coverage of "public authorities", the Northern Ireland Act 1998 defines public authority, first, by reference to those bodies included within the jurisdiction of the Northern Ireland Ombudsmen (these are automatically included).[166] In addition, however, the Secretary of State has the power to designate other public bodies as included within the definition, including Northern Ireland-based bodies not currently included within the jurisdiction of any Northern Ireland Ombudsman (such as the Royal Ulster Constabulary (RUC), the RUC Reserve and the Police Authority for Northern Ireland),[167] and United Kingdom-wide bodies which carry out functions in Northern Ireland (such as the Ministry of Defence).[168]

85. We can see advantage, not least on fair employment grounds, for the RUC, the RUC Reserve and the Police Authority for Northern Ireland to be designated as public bodies for the purposes of section 75, as well as the principal Whitehall departments whose policy-making functions will continue to have the greatest effect on Northern Ireland, including the Ministry of Defence. We understand, though, that the RUC considers that designation would have very substantial implications for it, both managerially and operationally. Pending the report of the Patten Commission, the Government has not yet decided whether to designate the RUC as a public body under section 75, and no final decisions have yet been taken on the designation of other public bodies.[169] In view of the comments made by the RUC about the implications of designation under section 75 of the Northern Ireland Act 1998, we assume that a thorough assessment will be made by the Northern Ireland Office of the advantages and disadvantages of designation of the RUC and of the RUC Reserve. We recommend that an early announcement be made by the Government on designations generally.

86. As regards the range of 'functions' included within the coverage of section 75(1), we consider that a broad approach is desirable. The functions of public authorities include the "core" functions of departments and other public bodies, such as the development of educational policy by the Department of Education. The meaning of "function" goes beyond this, however, and includes other functions such as procurement and employment. There is thus a clear relevance for fair employment issues directly and indirectly in the provisions of section 75, and we return to these issues subsequently.

87. We share the concern of one of our witnesses,[170] however, given the importance of these provisions, that there has been a delay in bringing section 75 into force. While some delay may be understandable, given the need to allow the Equality Commission time to consult on and publish its guidelines on the equality duty, we are concerned that this delay should not be excessive. We were therefore pleased to be informed by the Secretary of State that work on equality schemes had already begun in many Departments. She hoped that, as a consequence, such schemes could be submitted to the Equality Commission within a shorter period than the six months permitted by legislation.[171] 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.[172]

88. We understand that there is an issue as to whether the date for the transfer of powers to the new Equality Commission can legally be separated from the start date for the new equality duty, and that the Department of Economic Development is considering the issue.

Contract Compliance

89. The system adopted in the 1989 Act used Government contracts and grants as a final sanction against an employer who was acting contrary to the provisions of the legislation in a recalcitrant way. The legislation provided that both Government contracts and Government grants might be withdrawn in cases of persistent and recalcitrant behaviour (where the respondent was deemed to be "in default").[173] An employer was regarded as "in default", for example, where he had failed within the time allowed to serve a monitoring return and he had been convicted of an offence in respect of that failure, or where the employer had failed to comply with an order of the Fair Employment Tribunal and a penalty had been imposed.

90. Where an employer was in default, the FEC might serve notice on him stating that he was not 'qualified'.[174] The Commission was required to take all such steps as it considered reasonable to bring the fact that a person was an unqualified person, or had ceased to be an unqualified person, to the attention of public authorities.[175] An application might be made by the person on whom the notice was served to have it revoked, but such an application might not be made sooner than six months after the notice was served, or more frequently than at six monthly intervals.[176] The applicant might appeal to the Fair Employment Tribunal against the refusal.[177]

91. Subject to certain prescribed exceptions,[178] where a public authority entered into a contract either made by the public authority accepting an offer made by any person, being an offer made in response to an invitation by the public authority to submit offers, or falling within a class or description specified in an Order made by the Department of Economic Development, the public authority was required to take all such steps as were reasonable to secure that no work was executed or goods or services supplied for the purposes of the contract by any unqualified person. A public authority might not enter into any such contract with an unqualified person.[179] The FEC had certain enforcement powers designated to prevent circumvention of the statutory provisions.[180]

92. The 1989 legislation further provided that Northern Ireland Departments might refuse to give to any unqualified person specific types of financial assistance or, where it had given or agreed to give such assistance to any unqualified person, refuse or cease to make any payments to him in pursuance of the assistance.[181] This provision applied to any financial assistance by way of grant or otherwise which might be given at the discretion of a Northern Ireland Department, if the moneys required for giving the assistance were payable out of the Consolidated Fund of Northern Ireland, or might be appropriated by Measure of the Northern Ireland Assembly (as constituted under the Northern Ireland Assembly Act 1973 and the Northern Ireland Constitution Act 1973).

93. These provisions appear to have had very little impact in practice.[182] One employer was temporarily declared unqualified, and subsequently came into compliance, but beyond that the provisions have not been "enormously important", according to the FEC.[183] In its review of employment equality, SACHR considered that, when awarding public contracts and grants, the Government and public bodies exercise considerable economic power which can be better used to secure fair participation in employment. SACHR recommended that the 1989 Act be amended to broaden the scope of contract compliance, linking access to contracts and grants to the promotion of affirmative action and fair participation measures by employers, and made a number of specific recommendations. The SACHR report also recommended substantial changes in the sanctions provisions of the 1989 legislation relating to Government contracts and grants.[184]

94. In its White Paper, the Government largely rejected the SACHR proposals. The Government considered that the SACHR proposal regarding new contract terms "runs counter to the spirit of market liberalisation in public procurement which has been promoted by the European Union and the UK Government. The Government's policy has been that value for money is central to public sector procurement policy and that the savings delivered through the application of this policy are retained and used to maintain, improve and extend delivery of services to the public. European Union law provides some limited leeway for the inclusion of social clauses, but the assessment of the compatibility of contract conditions with EU law requires a case-by-case analysis."[185] The provisions in the existing legislation "stand as a significant modification of general Government policy on contract compliance and an acknowledgement that the particular circumstances of Fair Employment in Northern Ireland might warrant sanctions of a different magnitude from those applying to other types of discrimination."[186]

95. The Government argued that the SACHR proposals "would expand the scope for litigation by a disappointed tenderer. The requirement on public bodies to satisfy themselves about a potential contractor's policies, procedures and practices offers immense scope for subjective assessment and could put a considerable burden of judgement on medium ranking officials in a wide range of public bodies who would be required to appraise a potential contractor's Fair Employment status."[187] The only proposal accepted was that the exemption from the application of the existing provisions on unqualified persons to contracts on grounds of disproportionate expense or public interest should be repealed,[188] and this was put into effect in the Fair Employment and Treatment Order,[189] which otherwise retained the limited approach of the 1989 Act.

96. Several of those giving evidence to us stressed the importance of using the Government's economic power to act as an effective lever to bring about necessary changes.[190] In a related area, the Trade and Industry Committee recently suggested that clear guidance should be provided to local and other public authorities as to the permissibility of public procurement tenders containing specifications relating to ethical production.[191] The Secretary of State was not supportive of the idea of contract compliance and cited a range of difficulties.[192] These included EU law, a point which Mr Ingram had previously raised.[193]

97. We also received evidence which indicated that, provided adequate advice was given by Government to ensure that the criteria did not discriminate against tenderers in other EU Member States,[194] European Community law was a less significant barrier to the use of public procurement than Ministers indicated in evidence.[195] Our view on this was strengthened by the fact that, in a recent Communication on public procurement, the European Commission 'encourages the Member States to use their procurement powers to pursue' a range of social objectives, including equality, "providing the limits laid down by Community law are respected."[196] The Secretary of State, subsequent to her oral evidence, has commented that no practical guidance has yet been given by the Commission as to the circumstances in which compliance with conditions of social character could lawfully be included in a contract.[197] The Secretary of State considered that the ambiguity of the Commission's present guidance raised the possibility of legal challenge by an unsuccessful tenderer, should contract compliance be applied.

98. Another objection raised by Ministers was that the use of public procurement for social policy objectives was likely to run counter to the principle of value for money. We take the view that this need not be the case: it can be argued that a definition of best value which excluded the beneficial results of the achievement of the social policy objective at issue would not be supportable, a point which, in evidence, Mr Ingram appeared not to dissent from.[198]

99. We were impressed with the use of contract compliance in the United States. Under Executive Order 11246, government contractors have an obligation not to discriminate against women and minorities and to take affirmative action measures in favour of women and minorities when they are under-represented in the workforce. The coverage of the Executive Order depends on the existence of a Government contract or subcontract.

100. The Executive Order is enforced by the US Secretary of Labor through the Office of Federal Contract Compliance Programmes (OFCCP). The obligations are set out both in the Executive Order itself and in several sets of regulations. The Order applies to Federal contractors and subcontractors who have government contracts which exceed $10,000 and which are performed in the United States. All workplaces of the contractor are required to meet the obligations, whether or not they are directly involved in carrying out the contract. In addition, all such firms are obliged to complete and return an annual monitoring report on the workforce composition of the firm, broken down by race and sex. Written affirmative action plans must be devised by most contractors with contracts or subcontracts in excess of $50,000, employing 50 or more employees. In all, the Office estimates that some 26 million workers fall within its jurisdiction, nearly 22 per cent of the civilian workforce, involving over 90,000 non-construction establishments and 100,000 construction establishments.

101. In the course of our recent visit to the United States, we met Ms Shirley Wilcher, Deputy Assistant Secretary, and staff of the OFCCP. We were impressed with both the scale of the operation and the extent to which the Office was able to achieve its objectives by its preferred approach of conciliation: in only a minuscule number of cases has the Office used its ultimate sanction of debarment from Federal contracts. 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,[199] 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.

102. We note, with interest, that the recently published Anti-discrimination Legislation Review by the Cabinet Office Better Regulation Task Force offers some support to the use of contract compliance in certain circumstances. It recommended Government "to use its purchasing and funding muscle to promote equality practices among contractors and suppliers to the public sector". The Review continued: "If the public sector has a duty to set high standards in ensuring equality of treatment and opportunity as an employer, we believe it has an equivalent responsibility as a purchaser of goods and services."[200] In its Response, the Government reiterated its long-standing policy that all public procurement of goods and services should be based on value for money, having due regard to propriety and regularity. "Value for money" is defined as the optimum combination of whole life cost and quality, not simply initial price. The Government also commented that the European Commission is, together with Member States, taking work forward on the extent to which social factors can be taken into account in the procurement process under the existing régime, consistent with Community law.

103. 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.

104. 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. This consideration is strengthened if a company tendering for a contract is able to tender at a lower price for that contract because it does not engage in good employment practices which other tenderers do and is thus able to cut costs. Public bodies might reasonably be expected to take account of, and discount, any unfair competitive advantage acquired as a result. Unfortunately, the existing limited linkage between Government contracts and fair employment in Northern Ireland does not encompass this approach.

105. A new dimension to the debate about contract compliance has been added by the existence of the equality duty under the Northern Ireland Act 1998. As a CAJ witness commented:[201] "It would seem only fair and reasonable that public authorities should be free to examine how contractors are fulfilling their legal obligations under the existing legislation before deciding whether or not they may be breaching their statutory duty. They have to consider these matters in terms of fulfilling their statutory duty." 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.

National Security Certificates

106. We received evidence which called into question the acceptability of the new arrangements regarding national security certificates established under the Northern Ireland Act 1998 and the Fair Employment and Treatment Order 1998. The 1989 Act (as well as the other major pieces of equality legislation in Northern Ireland and the rest of the United Kingdom) contained an exception which provided that it was not unlawful to discriminate where the discriminatory act was done "for the purpose of safeguarding national security or of protecting public safety or public order."[202] The legislation then went on to provide that a certificate signed by or on behalf of the Secretary of State and certifying that an act specified in the certificate was done for this purpose "shall be conclusive evidence that it was done for that purpose".[203]

107. The operation of the "conclusive evidence" provision in the Sex Discrimination (Northern Ireland) Order 1976 was challenged as itself impermissible under European Community law in the course of litigation by a female RUC officer (Johnston v RUC).[204] The European Court of Justice upheld this challenge, deciding that the provision was contrary to the Equal Treatment Directive 1976. As a result of this case, the Government amended the sex discrimination legislation, omitting the "conclusive evidence" provision. The provision was, however, retained in the fair employment legislation, despite Parliamentary amendments attempting to remove it during the passage of the 1989 legislation. The existence of an equivalent provision in the immigration context was held by the European Court of Human Rights to violate the European Convention on Human Rights in the Chahal[205] case, as was the provision in the fair employment legislation in Tinnelly and McElduff.[206] As a result of these cases, a new system was introduced into immigration legislation, and subsequently into the Northern Ireland Act 1998[207] and the Fair Employment and Treatment Order 1998.[208]

108. The new provisions continue the exception for acts done for the purpose of safeguarding national security or protecting public safety or public order, but provide for a new approach as to how to deal with a Ministerial certificate which certifies 'national security' as the purpose of the act being complained about, and that the doing of the act was justified by that purpose. Where the respondent in a discrimination case proposes to rely on such a certificate, the claimant may appeal against the certificate to a new Tribunal. If the Tribunal determines that the act was done for the certified purpose, and that the doing of the act was justified for that purpose, then the certificate becomes conclusive evidence of the matters which it certifies. Any party, including the Secretary of State, may appeal to the Court of Appeal in Northern Ireland, with the leave of the Tribunal or the Court, against the Tribunal's decision on any question of law.

109. The Tribunal is appointed by the Lord Chancellor: the chairman must be a current or former judge of the High Court or the Court of Appeal in England or Northern Ireland. The legislation authorises Rules[209] which will enable proceedings before the Tribunal to take place without a party being given full particulars of the reasons for the issue of the certificate, and enable the Tribunal to hold proceedings in the absence of any person, including a party and any legal representative appointed by a party. Further provisions permit the Attorney General for Northern Ireland to appoint a Member of the Bar of Northern Ireland to represent the interests of a party to proceedings before the tribunal in any proceedings from which he and any legal representative of his are excluded, but the Order further provides that the person so appointed "shall not be responsible to the party whose interests he represents."[210]

110. These provisions might be thought to represent a reasonable compromise between the need to ensure that the certificates are properly reviewed by an independent body and the need to ensure that information is not disclosed contrary to the public interest. As Mr Ingram told the Committee, "to impart information to someone whom we have previously judged as a threat to the State may then put at risk the person or persons who are acting on behalf of our society and the nation in obtaining certain information. We have to balance the fine judgment between the rights of the individual and the national interests in all of this."[211] On the other hand, these provisions might be thought to enable the Government to have the best of both worlds, enabling the appearance of independent adjudication to take place, but so interfering with the usual adversarial process as to render the process unacceptable. SACHR expressed the view to us that "individuals who are affected by these certificates may not be happy at the end of the day that they have been fully and independently and properly represented by the tribunal. ... And we feel that these provisions, while enabling some sort of independent scrutiny, do not go far enough, certainly with regard to winning the confidence of the person who is affected by them that he has been properly dealt with."[212]

111. If these provisions are ever used, it is possible that the issue of their compatibility with the European Convention on Human Rights will come before the European Court of Human Rights or, indeed, our own courts once the Human Rights Act 1998 is fully in force. SACHR considered[213] "there must be some reservations" about whether the provisions comply. We hope that the new Northern Ireland Human Rights Commission will consider this issue in due course, and also the desirability of an alternative approach, such as whether the Parliamentary Commissioner for Administration should play a role, as suggested by the Northern Ireland Committee of the Irish Congress of Trade Unions.[214]

112. In the interim, another issue has arisen which needs to be resolved. The Northern Ireland Bar Council, which represents the practising Bar, has taken the preliminary view that counsel appointed to represent a person in these proceedings, while not being responsible to that party, may be at risk of being in breach of Bar ethics requirements. Since the legislation requires such counsel to be a member of the Northern Ireland Bar, and thus subject to Northern Ireland Bar Council ethics rules, this is a serious issue.

113. Mr. Ingram told us that the Government "continue to talk to [the Bar Council] to ensure that we have an agreed position to go forward on,"[215] and that "it is a matter which we, hope we can resolve to their satisfaction".[216] However, it appears from the evidence given to us recently by the Secretary of State that the issue remains unresolved.[217] We recommend that the Government make renewed efforts to find a solution to this problem 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.

Affirmative action and reverse discrimination

114. Affirmative action is a central element in the structure of the fair employment legislation.[218] We have seen earlier the extent to which affirmative action which would otherwise amount to unlawful discrimination is permitted. We have seen too that the affirmative action exceptions of the 1989 Act were broadened in the recent Fair Employment and Treatment Order. Those who gave evidence to us saw affirmative action in markedly different ways. On the one hand, the IoD[219] and Dermot Nesbitt[220] raised the possibility that the fair employment legislation had led to reverse discrimination in employment in favour of Roman Catholics. On the other hand, the Northern Ireland Committee of the Irish Congress of Trades Unions[221] and the CAJ[222] considered that existing exceptions for affirmative action were too narrow and should be further extended.

115. On the issue of whether the fair employment legislation has led to unlawful reverse discrimination in favour of Roman Catholics, none of the evidence given to us persuaded us that this was the case. CBI Northern Ireland had "no evidence" that the changes in Catholic participation were as a result of unlawful, reverse discrimination.[223] The IoD said that their written submission alleging reverse discrimination "reflects largely anecdotal comments we have had from some employers ..."[224] The FEC reported that "In terms of overall patterns, we would have no evidence whatsoever that there is an overall pattern of reverse discrimination."[225]

116. However, this does not necessarily mean that reverse discrimination does not take place, only that we cannot say that it takes place to such an extent that it has become a significant problem, or that the existing arrangements for dealing with such unlawful acts (such as assistance by the FEC[226] and adjudication in the Fair Employment Tribunal) are inadequate to the task of dealing with such cases if they do arise.

117. We have considered whether the existing affirmative action exceptions should be broadened further. We consider that the new Order implements an appropriate approach to affirmative action for the time being and we consider that the new provisions should be given time to prove whether or not they are adequate to the task. Any further changes should await an assessment in due course as to whether they deliver the extent of change necessary. If they do not, then further action may have to be considered. This might include reducing further the current restrictions on religion-specific training, and permitting the operation of a "tie-break principle" involving the appointment of a person from the under-represented group where two candidates are otherwise equally well qualified for a position. We recommend that a formal assessment should be made after the new Order has been in effect for five years, just as the 1989 Act was reviewed after five years operation.[227]

Composition of the Senior Civil Service

118. We have noted above the continuing under-representation of Roman Catholics in the Senior Civil Service. As the Secretary of State put it in her evidence:[228]

"... 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.[229] 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.

Institutional Arrangements for Equality within Government

119. Within Government, fair employment legislation has been the responsibility of the Department of Economic Development. In addition, however, the Central Community Relations Unit (CCRU) within the Northern Ireland Office has overall responsibility for equality policy, with the exception of responsibility for the equality legislation. Clearly, the appropriate arrangements for distributing responsibility for equality policy are significantly dependent on whether the arrangements set out in the Belfast Agreement and incorporated in the Northern Ireland Act 1998 are implemented. We shall consider first what arrangements are appropriate on the assumption that devolution occurs, before turning to consider possible arrangements in the event of devolution not occurring in the short term.

120. We begin with future arrangements in a devolved Northern Ireland Administration. Some witnesses were particularly critical of the effectiveness of the CCRU in the equality policy area.[230] We note that in the agreement approved by the New Northern Ireland Assembly on the distribution of functions across the new departmental structure, that CCRU will be replaced by an Equality Unit within the First and Deputy First Ministers' Office which should result in a much stronger visibility for equality issues at the heart of Government decision-making. We regard this Unit as of central importance to the co-ordination by the Northern Ireland Executive of equality policy and hope that it will also take over responsibility for equality legislation, replacing the Department of Economic Development. We would urge that this Unit should take on a strong challenging role on the operation of the equality schemes by individual Departments and in the scrutiny of draft New-TSN schemes.

121. Assuming a transfer of powers to the Assembly and Executive takes place, we have also considered what arrangements are appropriate for the operation of the Secretary of State's responsibilities for equality issues under the Northern Ireland Act 1998.[231] We have pointed out above that the Secretary of State remains responsible for the Equality Commission (although not its funding), and for the equality duty on public authorities. In particular, the Secretary of State will be responsible for approving Guidelines drawn up by the Equality Commission on the statutory duty, deciding on whether public authorities' equality schemes are appropriate after referral by the Equality Commission, and deciding what action to take on the basis of investigations by the Equality Commission of complaints that a public authority is not adhering to its equality scheme.

122. These are important and potentially controversial responsibilities. 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.

123. Even if there is no transfer of powers to the Assembly and Executive, we assume the Equality Commission will continue to operate, that the provisions of the Fair Employment and Treatment Order will remain in force, and that the equality duty on public authorities under section 75 of the Northern Ireland Act 1998 will remain. 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.

124. There is one further element in the architecture of equality-related institutions which merits further comment. This is the future role of the new Northern Ireland Human Rights Commission (NIHRC), also established by the Northern Ireland Act 1998,[232] implementing a commitment in the Belfast Agreement. There are at least three functions of the NIHRC which are of particular relevance to the subject matter of this report: its role in developing a Northern Ireland Bill of Rights that is likely to include revised equality principles;[233] its role in assisting human rights litigation, including litigation involving the anti-discrimination provisions of the Northern Ireland Act itself;[234] and its general role in overseeing the adequacy of the protection of human rights (including equality) in Northern Ireland.[235] It is clear that there is likely to be a degree of overlap between the Equality Commission and the NIHRC.[236] We agree with the Secretary of State[237] 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.

Unemployment differential

125. The issue of long-term unemployment is addressed by Government in several interlinking ways. We agree with the Government that this is a priority issue which must be tackled. We note that there have been attempts under TSN to address aspects of the problem in the past and New-TSN should enable resources to be applied more directly to tackle this problem. Our inquiry did not concentrate on TSN but we received evidence which pointed to TSN as having potential, as yet unrealised,[238] to address important aspects of the problem. 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,[239] 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.[240]

126. The operation of the New Deal has been seen by the Government as an important new approach to improving the skills base overall in Northern Ireland, and thereby dealing with long-term unemployment in general.[241] How far this will affect the unemployment differential remains to be seen. As Mr McCusker of the Northern Ireland Committee, Irish Congress of Trade Unions, said, "for the New Deal, the jury is out."[242] 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,[243] in order to estimate whether, and to what extent, the New Deal helps to reduce the unemployment differential.

127. 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. As we saw above, if contract compliance mechanisms are adopted more widely, the opportunity to build conditions into Government contracts to ensure greater use of the long-term unemployed could be a useful way of harnessing the new provision with the exercise of Government economic influence.

128. We consider, however, that there are several additional initiatives which would be valuable. We stress subsequently the need for more inward investment into Northern Ireland. We agree, however, that "more jobs per se will not necessarily do anything to redress the unemployment differential."[244] Investment needs to be targeted at areas of greatest need. The role of the Industrial Development Board (IDB) will therefore be important. We received evidence that the IDB could be more active in harnessing its functions to securing greater equality.[245] The Northern Ireland Committee of the Irish Congress of Trade Unions, for example, argued that "the Industrial Development Board, if they are giving large public funds to a company, should try to persuade that company ... to take a proportion of their people from the long-term unemployed and they should also then monitor whether or not, in fact, that company has been successful."[246] We understand from the Secretary of State that the Government is currently considering the system of incentives for the location of new factories.[247] 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.

129. In its 1987 report, SACHR said that "Government should now establish the goals which they would wish to see achieved in five years." In its 1997 report, SACHR again recommended "that the Government should publicly adopt realistic targets for the reduction of long term unemployment and unemployment differentials."[248] The Government responded in the White Paper that "to assess the rate of progress, the Government proposes to commission the [Equality Commission] to agree with the representatives of employers, employees, political parties and other interests, benchmark measures for the future reduction of the unemployment differential."[249] We hope the Equality Commission will seek to establish early agreement on this matter. We consider that the Government should study carefully the fruits of that work and reach conclusions in the light of it on any policy measures it can take in consequence to reduce the differential.

130. As we have noted earlier, the Government considered that its policy proposals should lead to changes in the unemployment differential "which should be evidenced by the time of the 2011 Census".[250] Several of those giving evidence to us were concerned at the lack of urgency which this appeared to show.[251] We do not consider that Government should wait until the production of the results of the Census in 2011 to reconsider this issue. We note that the next review of employment equality, which the Government has said[252] 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.


131. We consider that the transition to a more equal society will be made easier if there are more jobs to go round. Clearly, an expanding economy, peace, political stability and more employment opportunities will do much to lessen whatever anxieties there may be about fair employment policy in Northern Ireland. We agree with the CBI Northern Ireland that "it is much easier in a situation where you have a buoyant employment situation and you have ... not only new jobs but you have more of a turnover ..."[253]

132. Increased investment will be necessary not only to meet the increased demand for jobs from new entrants on to the labour market, but also to enable those who may lose out as part of the "peace dividend". The effect of peace may exacerbate the competition for employment between the communities because of the reduction in the number of jobs in the security-related sectors of the economy, and greater numbers seeking fewer jobs.[254] Greater foreign investment leading to more jobs is likely therefore to be to everyone's benefit in Northern Ireland. We therefore envisage an important role for positive foreign involvement in helping fair employment develop in Northern Ireland. In particular, constructive American involvement continues to make a valuable contribution to fair employment issues in Northern Ireland through direct and indirect investment.


133. We were considerably assisted by research carried out, or commissioned, by the FEC, CCRU and by SACHR during the course of the Employment Equality Review. We were struck, however, by the fact that no body (other than the new Equality Commission) will have a standing brief to do independent research on fair employment issues in Northern Ireland. We were particularly surprised by the lack of economic research on the costs and benefits of the legislation to the Northern Ireland economy. We note that the Northern Ireland Economic Council, an independent body established in 1977 by the Secretary of State to advise on the development of economic policy, has not looked specifically at fair employment.[255] We are concerned that Government (and Parliament) should have the results of research from other bodies as well as the Equality Commission, whose resources are likely to be stretched. 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.

151  Official Report, 30 June 1999, Vol. 334, col. 331. Back

152  Q509. Back

153  Q3. Back

154  Q17. Back

155  Q482-3. Back

156  Q14, 497. Back

157  Q559 and Ev. p. 161. Back

158  Working Group Report, para 4.4. Back

159  We understand that about 20 of the staff are specialists in particular policy areas and the rest are generalists, who therefore have to cover any aspect of discrimination within the competence of the Commission. Back

160  Northern Ireland Act 1998, Section 75. Back

161  Q367 and Q417. Back

162  Q93. Back

163  Q368. Back

164  Q417. Back

165  Q370. Back

166  Northern Ireland Act 1998, Section 75(3)(b) and (c). Back

167  Northern Ireland Act 1998, Section 75(3)(d). Back

168  Northern Ireland Act 1998, Section 75(3)(a). Back

169  Q506. Back

170  Q437 and Q456. Back

171  Q497 Back

172  The Equality Commission Working Group recommended that the timescale for bringing into operation the relevant parts of the Northern Ireland Act should be limited to no more than three months from the date of establishment of the Commission. Back

173  Fair Employment (Northern Ireland) Act 1989), Sections 38-43. Back

174  Fair Employment (Northern Ireland) Act 1989, Section 38(2). Back

175  Fair Employment (Northern Ireland) Act 1989, Section 38(3). Back

176  Fair Employment (Northern Ireland) Act 1989, Section 38(6). Back

177  Fair Employment (Northern Ireland) Act 1989, Section 38(7). Back

178  Fair Employment (Northern Ireland) Act 1989, Section 41(7). Back

179  Fair Employment (Northern Ireland) Act 1989, Section 41(1) and (4). Back

180  Fair Employment (Northern Ireland) Act 1989, Section 42. Back

181  Fair Employment (Northern Ireland) Act 1989, Section 43. Back

182  Q429. Back

183  Q143. Back

184  Cm 3684, paragraphs 6.53-5. Back

185  Cm 3890, para 5.25. Back

186  Cm 3890, para. 5.26. Back

187  Cm 3890, para. 5.27. Back

188  Cm 3890, para. 5.27. Back

189  Article 64(7). Back

190  Q288, 476. Back

191  Sixth Report from the Trade and Industry Committee, Session 1998-99, (HC 235), paragraph 16. See also the Committee's Seventh Special Report, Session 1998-99 (HC 528), p. v. Back

192  Q530-539. See also Appendix 4, p. 169. Back

193  Q32. Back

194  Q145. Back

195  Q418, 478. Back

196  Commission Communication, Public Procurement in the European Union, COM (98) 143 (March 1998), deposited in Parliament as European Community Document No. 6927/98. See section 4.4. Back

197  Appendix 4, p.169. Back

198  Q34-5. Back

199  Cm 3890, para 5.26. Back

200  Cabinet Office, Better Regulation Task Force, Anti-discrimination Legislation. Back

201  Q418. Back

202  Fair Employment (Northern Ireland) Act 1989, Section 42(1). Back

203  Fair Employment (Northern Ireland) Act 1989, Section (42(2). Back

204  Johnston v Chief Constable of the Royal Ulster Constabulary (Case 222/84)[1986] ECR 1651 (European Court of Justice). Back

205  Chalal v United Kingdom (Application No. 22414/93 (1997) 23 EHRR 413, 15 November 1996 (European Court of Human Rights). Back

206  See footnote 68. Back

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

208  Article 80. Back

209  Draft Rules currently await Parliamentary approval (The Northern Ireland Act Tribunal (Procedure) Rules 1999). Back

210  Northern Ireland Act 1998, Section 91(8)(b). Back

211  Q19. Back

212  Q296. See also Q433. Back

213  Q297. Back

214  Q486. Back

215  Q20. Back

216  Q21. Back

217  Q571-3. See also Appendix 4, p. 169. Back

218  We assume that when the Secretary of State said that she was "not a strong supporter of affirmative action" she meant that she was against unlawful reverse discrimination. Q512. Back

219  Ev. p. 88 and Q360-1. Back

220  Q405. Back

221  Q470. Back

222  Ev. p. 118. Back

223  Q117. Back

224  Q361. Back

225  Q132. Back

226  Q132. Back

227  The Government, in the White Paper (para 6.7) undertook that a review to confirm whether sufficient progress has been made in fair employment and related policies will be launched by 2005, at the latest. Back

228  Q549. See also Appendix 4, p.169.  Back

229  Q549. Back

230  Q438, 488-9. Back

231  Q545. Back

232  Section 68. Back

233  Section 69(7). Back

234  Section 69(5). Back

235  Section 69(1). Back

236  Q310. Back

237  Q497. Back

238  Q282. Back

239  Q418. Back

240  Q418. Back

241  Q9. Back

242  Q469. Back

243  Q194. Back

244  Q421. Back

245  Q460. Back

246  Q467. Back

247  Q557. Back

248  Cm 3684, para 2.29. Back

249  Cm 3890, para.2.22. Back

250  Cm 3890, para 2.22. Back

251  Q305, Q418. Back

252  Cm 3890, para 6.7. Back

253  Q105. See also Q186, 280, 402, 460. Back

254  Q200. Back

255  Q176. Back

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