APPENDIX 4
Further memorandum from the Secretary
of State for Northern Ireland
I am writing in order to clarify or provide
further information on some points that were raised when Adam
Ingram and I appeared before the Committeee on 19 May 1999.
In my introductory remarks I may have given
the impression that representation on the Equality Commission
Working Group was wider than it actually was. I clarified the
point at the end of the session but, for the record, the Working
Group consisted of the chairs and chief executives of the four
existing equality bodiesnamely the Fair Employment Commission,
the Equal Opportunities Commission, the Commission for Racial
Equality and the Northern Ireland Disability Counciland
a Trade Union representative.
In response to question 507 I undertook to advise
the Committee of those UK Departments and public bodies which
are to be designated for the purposes of Schedule 9 to the Northern
Ireland Act 1998. Final decisions on designation have not yet
been made but I will provide the Committee with this information
as soon as it is available.
You enquired (question 508) whether the Irish
Government were meeting their commitments on equality under the
Good Friday Agreement. The Employment Equality Act 1998 was signed
into law by the President in June 1998 and the target date for
its implementation is 1 September 1999. On 8 March the Minister
announced arrangements for the equality infrastructure which is
being put in place to underpin employment equality and equal status
legislation. This consists of two new bodies; the Equality Authority,
which will replace the existing Employment Equality Agency, and
the Office of the Director of Equality Investigations which will
provide a forum of first redress. Mr Niall Crowley, formerly Director
of Pavee Point has been appointed as Chief Executive Officer of
the Equality Authority, and he took up duty on 9 June. A revised
Equal Status Bill was published on 19 April, with a view to enactment
in 1999. The Bill has passed Second Stage in the Dail and is awaiting
a slot for Committee Stage.
In reply to question 520 I said that, from memory,
20 per cent of the applications to join the RUC were from Catholics
and women. In fact the number of applications received from the
Roman Catholic community has risen to 22 per cent while those
from women has increased to 36 per cent.
I made reference to John Hume in reply to Question
532 posed by Martin Salter. I should make clear that I was not
attributing views on contract compliance to Mr Hume. My point
was simply to draw a parallel between contract compliance and
the MacBride Campaign in terms of their possible effects on investment.
John Hume's concern was that MacBride was a disincentive to investment.
The Committee enquired (Questions 536 to 538)
about the implications in EU law of adopting a more active policy
to promote fair employment objectives among employers through
contract compliance. Our response to the Standing Advisory Commission
on Human Rights' proposals for including terms in public sector
contracts encouraging recruitment of the long-term unemployed
and affirmative action by employers was set out in the white paper
"Partnership for Equality" (Cm 3890, March 1998). The
White Paper stated that contract compliance ran counter to the
spirit of market liberalisation in public procurement which had
been promoted by the European Union and the UK Government, while
admitting that EU law provided some limited leeway for the inclusion
of social clauses. This response was based on the 1989 Commission
communication on regional and social aspects of public procurement
(COM(89)400).
On the same day as the White Paper was published,
the Commission issued a new Communication on public procurement
which included a brief section on social aspects. This accepted
the permissibility in principle of including "as a condition
of execution of public contracts, compliance with obligations
of a social character, aimed for example at promoting the employment
of women or encouraging the protection of certain disadvantaged
groups" and it "encourages the Member States to use
their procurement powers to pursue the social objectives mentioned
above". However, no practical guidance was offered on the
circumstances in which such clauses would be acceptable and the
document stated that "the Commission intends to clarify the
principles which can be applied to allow social factors to be
taken into account". No further clarification has yet been
issued and the ambiguity of the Commission's guidance raised the
possibility of legal challenge by an unsuccessful tenderer, should
contract compliance be applied.
The policy of the UK Government over many years,
reiterated in Treasury guidance on public procurement of November
1998, has been opposed to using public contracts as a means of
pursuing social policy objectives. As Mr Salter pointed out at
the Committee session, the Cabinet Office Better Regulation Taskforce
review of anti-discrimination legislation published on 12 May
has recommended that the Government should use public contracts
to promote equality practices among contractors and suppliers.
The Government is currently considering the totality of the Taskforce's
recommendations with a view to a formal response by 12 July.
In relation to my response on the Northern Ireland
Civil Service (Question 549), the following figures will be of
interest to the Committee. At 1 January 1999, in the Civil Service
overall, the percentage of Protestants was 55.2 per cent, Roman
Catholics 39 per cent and 5.8 per cent were undetermined. Roman
Catholic representation amongst the Senior Grades at Assistant
Secretary and above has increased from 5.9 per cent in January
1985 to 23.9 per cent in January 1999.
Adam Ingram undertook, in response to Question
554, to provide the most up-to-date statistics in terms of Catholic
and Protestant employment. These are attached at Annexes A-C and
update statistics that were included in the Department of Economic
Development's memorandum of 6 October 1998 to the Clerk of the
Committee. A copy of the Fair Employment Commission's "Summary
of Monitoring Returns 1998" which provides detailed statistics
on both the Public and Private Sectors is also enclosed.
At Question 566 Adam Ingram agreed to provide
information on aspects of the MacBride principles which might
contravene European law. Our legal advice is that there is no
clear instance in which the MacBride principles, as amplified,
are in conflicts with EU Law.
At 569 Mr Salter asked whether Section 75 of
the Northern Ireland Act might require some limited form of contact
compliance by virtue of its reference to the functions of public
authorities. This seems a rather strained interpretation of the
Act. The primary means for implementing the Statutory obligations
under Section 75 will be through equality schemes which require
assessments of a public authority's policies. Policy responsibility
on public procurement lies with the Department of Finance and
Personnel and I would expect it to assess that policy and any
future changes to it in the context of its equality scheme. However,
other public authorities are required to implement that centrally
determined policy.
Finally, you raised the question of the appointment
of counsel to represent individuals in appeals against National
Security Certificates before the Tribunal provided for in the
Northern Ireland Act 1998. Adam Ingram undertook (576) to check
whether there are continuing conversations with the Bar Council
in England and Wales about similar procedures in the immigration
context. We are advised that at present there are no ongoing discussions.
In Northern Ireland, consideration of the Bar Council of Northern
Ireland's position on special advocates continues and they have
been consulted about the procedural rules for the Tribunal.
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