SUMMARY OF PRINCIPAL CONCLUSIONS AND RECOMMENDATIONS
134. The following are the Committee's summarised
principal conclusions and recommendations:
(a) Several witnesses
stressed how important to the Peace Process issues of equality
of opportunity are, particularly issues of fair employment. We
agree (Paragraph 1).
(b) While we appreciate
that the Government wanted to make "rapid progress"
with the legislation in order to ensure that the terms of its
obligations under the Belfast Agreement were fulfilled, we do
not consider that the procedures used in this case provided for
adequate Parliamentary scrutiny of important new legislation in
a sensitive policy area where, hitherto, primary legislation has
been the norm. We regret that Government felt it should proceed
by way of an Order in this case. Fair employment legislation is
an issue of such importance and sensitivity that primary legislation,
which permits both more extensive debate and amendment, would,
in our opinion, have been the more appropriate approach (Paragraph
(c) We consider that
the community differences in unemployment should remain an appropriate
and important issue of concern for Government. While not a simple
measure of success of the legislation, it is one measure of the
success or failure of Government policy generally in the area,
but not the only one (Paragraph 47).
(d) We are conscious
that much of the evidence on the compliance costs of employers
under the fair employment legislation is, at best, somewhat anecdotal.
Further research is necessary before definitive conclusions can
be reached. We return to the issue of further research subsequently
(e) The Fair Employment
and Treatment Order 1998 has only been in force for a few months
and it is not therefore possible to assess the effectiveness of
the new provisions. It is clear that the previous legislation
has made an important contribution to improving the degree of
fairness in employment in Northern Ireland, even if the precise
extent of that contribution cannot be accurately determined. Mr
Ingram commented that "there is still some way to go to ensure
equality of opportunity" and that "there is still much
to be done." We shall continue to monitor the effectiveness
of the legislation in this important policy area (Paragraph 55).
(f) None of the
evidence we have received convinces us that the Fair Employment
Commission has been assisting "frivolous cases" to be
taken to the Fair Employment Tribunal (Paragraph 61).
(g) We recommend an
urgent review of the manpower and physical resources devoted to
Fair Employment Tribunals in order that the backlog of cases can
be cleared and future cases decided much more speedily, in the
interests of complainants and respondents alike (Paragraph 64).
(h) The FEC regards
the twin aims of "fair participation", first, as achieving
the better representation of the Roman Catholic community, and,
second, as getting rid of segregation in employment. We explored
with the FEC whether it considered that there was a tension between
these two aims, and whether they sought to prioritise one over
the other. The answer was that the Commission had not had to prioritise
the aims because the Commission had sufficient resources to concentrate
on both. We recommend that adequate resources be provided to the
Equality Commission to ensure that this remains the case (Paragraph
(i) While we
welcome the extent to which individual complaints have been used
by the Fair Employment Commission as the basis for strategic work
with employers, we agree with the Commission that if this was
the "sole method of dealing strategically with employers
then it would be a failure." We recommend that the existing
regulatory functions of the Commission be retained in their entirety.
(j) We recommend
that the Equality Commission be established without further delay
(k) We recommend that
a review of the appropriateness of the Nolan/Peach system for
appointments of the type involved in relation to the Equality
Commission be carried out by Government in light of the experience
now gained in its operation since it was introduced and the concerns
expressed to us in this case, and more generally in Northern Ireland,
about some recent appointments to public bodies (Paragraph 74).
(l) We were impressed,
during our visit to the United States, at the importance the equivalent
body to the Equality Commission (the Equal Employment Opportunities
Commission) placed on staff flexibility and non-specialisation
in order to ensure as integrated a Commission structure as possible
(m) We recommend that
Government should give very careful consideration to the proposal
of the Equality Working Group report, which concluded that an
extra £525,000 of public money would be necessary if there
was to be no diminution of effectiveness in areas of current activity
while also making the new equality duty on public authorities
effective. It is, in our view, essential that the work of the
four bodies to be subsumed into the new Equality Commission continues
at present levels of activity (Paragraph 78).
of equality legislation 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
(o) We recommend that
an early announcement be made by the Government on designations
generally under section 75 of the Northern Ireland Act 1998 (Paragraph
(p) Given the delay
that there has already been in establishing the Equality Commission,
a further extensive delay in bringing in the equality duty would
be most unfortunate (Paragraph 87).
(q) We recommend that
the Government look again at the potential contribution of contract
compliance to achieving fair employment objectives, taking account
of the full extent to which this may be compatible with EU law
and drawing fully on the experience of the United States Federal
Government. The Government has acknowledged, in the White Paper,
the principle that contract compliance has a part to play in the
particular circumstances of fair employment in Northern Ireland.
This is, as the Government says, a significant modification of
general Government policy on contract compliance. We believe that
the present limited provisions can, and should, be developed into
a more effective mechanism for helping to deliver fair employment
policy objectives (Paragraph 101).
(r) 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
(s) We find it difficult
to see how public purchasing activity can in principle be regarded
as a separate area of state activity in which equality criteria
are ignored that are considered self-evident in other areas of
state activity, such as public sector employment (Paragraph 104).
(t) We recommend
that Government Departments and public bodies review the position
they have taken with regard to public procurement in the context
of the preparation of their equality schemes under section 75
of the Northern Ireland Act 1998 (Paragraph 105).
(u) We recommend that
the Government make renewed efforts to find a solution to this
problem of legal representation in relation to national security
certificates which is acceptable both to the Bar and to Government.
We understand that there is a similar question outstanding regarding
the equivalent procedure in the immigration context. More generally,
we recommend that the use of the national security certificate
system (NSCS) be reviewed by the Northern Ireland Office in the
context of the preparation of its equality scheme under the Northern
Ireland Act. This would consider whether the operation of the
NSCS has any implications for equality of opportunity between
the two designated religious communities (Paragraph 113).
(v) 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. (Paragraph 117).
(w) We have noted
above the continuing under-representation of Roman Catholics in
the Senior Civil Service. As the Secretary of State put it in
"... 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. We look forward to receiving further information on
the results of this reassessment when it is completed - we hope
in the near future - and look to the Government to include at
least an interim response in its Reply to this Report (Paragraph
(x) We recommend that,
in order to prevent conflicts of interest arising, the Secretary
of State should establish her own Equality Unit within the Northern
Ireland Office, in part to advise her on the exercise of these
functions, and in part to co-ordinate the equality schemes of
UK Departments and public authorities designated by her under
section 75 of the Northern Ireland Act 1998 (Paragraph 122).
(y) If, by the time
the Government replies to this Report, there has been no such
transfer of powers, or such a transfer of powers under the Northern
Ireland Act 1998 is not an immediate prospect, we look to it to
indicate what institutional arrangements within Government it
proposes for equality matters in Northern Ireland (Paragraph 123).
(z) We agree with
the Secretary of State that a Memorandum of Understanding should
be agreed between the Northern Ireland Human Rights Commission
and the Equality Commission to minimise unacceptable overlaps,
without in any way improperly fettering the powers of either body,
and we so recommend (Paragraph 124).
(aa) We welcome the
inclusion of TSN as one of the areas of responsibility of the
new Equality Unit in the First and Deputy First Ministers' Office.
We consider that New-TSN should be adequately resourced to enable
it more effectively to target a reduction in the unemployment
differential than it has proven to be in the past, that the indicators
used to determine social need be kept under review to ensure that
they enable the effective targeting of resources to those in greatest
need, and that the transparency and accountability of TSN decision-making
be enhanced. (Paragraph 125).
(bb) We recommend
that monitoring of the effects of the New Deal by religion be
carried out as suggested to us by the Northern Ireland Economic
Council, in order to estimate whether, and to what extent, the
New Deal helps to reduce the unemployment differential (Paragraph
(cc) As we have seen,
the fair employment legislation has recently been amended to permit
recruitment from the long-term unemployed as a lawful form of
affirmative action. Again, it remains to be seen to what extent
this enabling provision will affect the unemployment differential.
We recommend to the Equality Commission that it vigorously promote
the use of this provision (Paragraph 127).
(dd) We recommend
that, when the IDB prepares its equality scheme under section
75 of the Northern Ireland Act, it should in particular consider
the extent to which its operations might better serve to contribute
to the policy goal of reducing the unemployment differential.
We may return to this matter in the context of our inquiry into
the public expenditure aspects of inward investment in Northern
Ireland (Paragraph 128).
(ee) We do not consider
that Government should wait until the production of the results
of the Census in 2011 to reconsider the issue of the unemployment
differential. We note that the next review of employment equality,
which the Government has said will be launched by 2005 at the
latest, and we have suggested should occur five years after the
coming into effect of the Fair Employment and Treatment Order
1999, will consider any deviations between the benchmarks established
and the available data. This would provide a suitable opportunity
for appropriate policy initiatives on the unemployment differential
(ff) 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 (Paragraph 132).
(gg) We recommend
that Government attempt to ensure that independent research on
fair employment issues be made available on a continuing basis
from several sources. In particular, we recommend, given the potential
importance of these issues to economic planning and investment
in the future, that the Northern Ireland Economic Council be encouraged
to integrate fair employment issues into the mainstream of its
work on a continuing basis (Paragraph 133).