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.
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
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."
Mr Ingram assured us in December that the Government was attempting
to make rapid progress with employment equality issues,
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."
We recommend that the Equality Commission be established without
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.
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,
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.
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".
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
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
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
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,
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."
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
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
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).
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),
and United Kingdom-wide bodies which carry out functions in Northern
Ireland (such as the Ministry of Defence).
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.
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,
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.
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.
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
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").
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'.
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.
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.
The applicant might appeal to the Fair Employment Tribunal against
91. Subject to certain prescribed exceptions,
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
The FEC had certain enforcement powers designated to prevent circumvention
of the statutory provisions.
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.
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.
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.
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.
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."
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."
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."
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
and this was put into effect in the Fair Employment and Treatment
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.
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.
The Secretary of State was not supportive of the idea of contract
compliance and cited a range of difficulties.
These included EU law, a point which Mr Ingram had previously
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
European Community law was a less significant barrier to the use
of public procurement than Ministers indicated in evidence.
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."
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.
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.
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
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
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
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."
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
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:
"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."
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".
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
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
case, as was the provision in the fair employment legislation
in Tinnelly and McElduff.
As a result of these cases, a new system was introduced into immigration
legislation, and subsequently into the Northern Ireland Act 1998
and the Fair Employment and Treatment Order 1998.
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
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
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."
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."
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."
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
"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.
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,"
and that "it is a matter which we, hope we can resolve to
However, it appears from the evidence given to us recently by
the Secretary of State that the issue remains unresolved.
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.
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
and Dermot Nesbitt
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
and the CAJ
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.
The IoD said that their written submission alleging reverse discrimination
"reflects largely anecdotal comments we have had from some
The FEC reported that "In terms of overall patterns, we would
have no evidence whatsoever that there is an overall pattern of
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
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.
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:
"... 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
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
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
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
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
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
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
its role in assisting human rights litigation, including litigation
involving the anti-discrimination provisions of the Northern Ireland
and its general role in overseeing the adequacy of the protection
of human rights (including equality) in Northern Ireland.
It is clear that there is likely to be a degree of overlap between
the Equality Commission and the NIHRC.
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.
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,
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,
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.
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.
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."
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.
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
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."
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.
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."
We understand from the Secretary of State that the Government
is currently considering the system of incentives for the location
of new factories.
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."
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."
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
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
Several of those giving evidence to us were concerned at the lack
of urgency which this appeared to show.
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
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 ..."
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.
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.
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
and Ev. p. 161. Back
Group Report, para 4.4. Back
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
Ireland Act 1998, Section 75. Back
and Q417. Back
162 Q93. Back
163 Q368. Back
164 Q417. Back
165 Q370. Back
Ireland Act 1998, Section 75(3)(b) and (c). Back
Ireland Act 1998, Section 75(3)(d). Back
Ireland Act 1998, Section 75(3)(a). Back
169 Q506. Back
and Q456. Back
171 Q497 Back
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
Employment (Northern Ireland) Act 1989), Sections 38-43. Back
Employment (Northern Ireland) Act 1989, Section 38(2). Back
Employment (Northern Ireland) Act 1989, Section 38(3). Back
Employment (Northern Ireland) Act 1989, Section 38(6). Back
Employment (Northern Ireland) Act 1989, Section 38(7). Back
Employment (Northern Ireland) Act 1989, Section 41(7). Back
Employment (Northern Ireland) Act 1989, Section 41(1) and (4). Back
Employment (Northern Ireland) Act 1989, Section 42. Back
Employment (Northern Ireland) Act 1989, Section 43. Back
182 Q429. Back
183 Q143. Back
3684, paragraphs 6.53-5. Back
3890, para 5.25. Back
3890, para. 5.26. Back
3890, para. 5.27. Back
3890, para. 5.27. Back
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
See also Appendix 4, p. 169. Back
193 Q32. Back
194 Q145. Back
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
4, p.169. Back
198 Q34-5. Back
3890, para 5.26. Back
Office, Better Regulation Task Force, Anti-discrimination Legislation. Back
201 Q418. Back
Employment (Northern Ireland) Act 1989, Section 42(1). Back
Employment (Northern Ireland) Act 1989, Section (42(2). Back
v Chief Constable of the Royal Ulster Constabulary
(Case 222/84) ECR 1651 (European Court of Justice). Back
v United Kingdom (Application
No. 22414/93 (1997) 23 EHRR 413, 15 November 1996 (European Court
of Human Rights). Back
footnote 68. Back
Ireland Act 1998, Sections 90-92. Back
Rules currently await Parliamentary approval (The Northern Ireland
Act Tribunal (Procedure) Rules 1999). Back
Ireland Act 1998, Section 91(8)(b). Back
211 Q19. Back
See also Q433. Back
213 Q297. Back
214 Q486. Back
215 Q20. Back
216 Q21. Back
See also Appendix 4, p. 169. Back
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
p. 88 and Q360-1. Back
220 Q405. Back
221 Q470. Back
p. 118. Back
223 Q117. Back
224 Q361. Back
225 Q132. Back
226 Q132. Back
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
See also Appendix 4, p.169. Back
229 Q549. Back
231 Q545. 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
3684, para 2.29. Back
3890, para.2.22. Back
3890, para 2.22. Back
3890, para 6.7. Back
See also Q186, 280, 402, 460. Back
254 Q200. Back
255 Q176. Back