Response to the initial consultation by the Office of the First Minister and Deputy First Minister on a Single Equality Bill for Northern Ireland.

The Committee for Higher and Further Education, Training and Employment welcomes the opportunity to respond to this initial consultation. The Committee's response will focus mainly on those aspects of the initial consultation that are within the remit of the Department of Higher and Further Education, Training and Employment and issues which have a significant impact on the functions of the Department. The Department of Higher and Further Education, Training and Employment is a significant employer in its own right as well as a key deliverer of public services. Furthermore, the Department has responsibility for employment law and labour relations, including the Industrial and Fair Employment Tribunals. Thus the implications of the Single Equality Bill for the Department will be significant.

As suggested in the consultation paper our response will concentrate on the scope and content of the proposed Bill with the understanding that the Committee will have the opportunity to input into a further consultation when both an Equality Impact Assessment and Regulatory Impact Assessment have been completed.

The Committee welcomes this consultation as a first step to the commitment in the Programme for Government to take forward work on a Single Equality Bill. The Committee for Higher and Further Education, Training and Employment's response is given below under ten main headings.

1. Tribunals

The Department of Higher and Further Education, Training and Employment has responsibility for Industrial Tribunals and Fair Employment Tribunals. The Committee considers that procedures should be simplified as far as is practical. The Committee considers the current backlog and time delays are unacceptable. The new structure must address this and ensure time limits are set so the system is fair, expeditious, effective and provides value for money. Furthermore, it is the opinion of the Committee that the new proposed model should consider the possible option of dealing with Goods, Facilities and Services (GFS) which currently come under the remit of the County Court. The Committee recognises that the new system must be well co-ordinated, integrated and be able to deal with allegations of multi-discriminations without any hierarchy developing.

Members also wish to express their concern over the current system which not only has unacceptable backlogs in dealing with cases but an apparent disregard for wasting the valuable time of people involved in cases (vexatious litigation). The Committee would strongly encourage that systems in other countries are examined in detail, and the recommendations from the current review of tribunals in Great Britain are combined, to identify best practice which can be put in place for the benefit of all.

The Committee also wishes to see a simplification as far as possible of the process and to restate its earlier response to simplifying the operation of industrial tribunals - 'The Committee also wishes to raise its concern in the development of tribunals from a low cost, easy and highly accessible method of achieving justice to that of an expensive full-blown court format.' The final system must be as transparent as possible, consistent and easily intelligible by all.

2. County Courts

The Committee for Higher and Further Education, Training and Employment wishes to see the role of the County Courts reviewed as part of the entire process. The Committee is much more concerned about the efficiency, effectiveness and economy of the process per se than the precise format of the structures to deliver this outcome.

3. Inclusion of new areas within the Single Equality Bill

The Committee supports the goal of a Single Equality Bill covering all areas detailed in current legislation so that all aspects of International and European law are taken into consideration. However, members stated that the legislation should be proportional to clearly evidenced problems and it should not be introduced where problems do not exist. Again the Committee suggests careful examination of other jurisdictions' experiences of anti-discrimination and equality law before a final recommendation is made.

4. Exemptions

The Committee agreed that all current exemptions should be closely examined with the view that the number and type of exemptions should be harmonised and kept to a minimum. Exemptions should take on board relevant tribunal and court decisions in Northern Ireland. All exemptions should also be reviewed on a periodic basis. Exemptions in other countries must also be examined to identify best practice and genuine occupational qualification exemptions should be considered (also the religious ethos exemption provided for in Article 4.2 of the European Union's Equal Treatment Directive). All exemptions should be fully explained in the Codes of Practice.

5. Goods, facilities and services

There were mixed views in the Committee for Higher and Further Education, Training and Employment as to whether Goods, Facilities and Services should be included in the Single Equality Bill. The burden of proof should be on those who would take our legislation beyond general European Union standards.

6. Harmonisation of the law

Currently there are inconsistencies and confusion between the different categories as defined in the legislation and this proposed Bill provides the opportunity to remove articles rendered obsolete by recent developments in case law. It was considered essential that every possible option must be introduced both in the legislation and the codes flowing from the Single Equality Bill, in order to ensure that it is easily understood by as many people as possible and not just the legal profession. Whilst some favoured harmonisation as an end in itself, other Committee members argued that in all cases legal provision should be proportional to real need.

7. Monitoring

The Committee for Higher and Further Education, Training and Employment recognised that this could be a significant additional cost to both public and private sector employers as well as a possible disruption in the workplace. One issue that must be addressed is to have clear definitions that are easily understood by everyone. The Committee recognises the current situation of monitoring requirements and affirmative action on race, sex, age and disability. Further consideration and information of the potential benefits versus the problems of monitoring every single category is required before the Committee will be able to make a final decision. The Committee currently considers that the benefits must out weigh the total costs and the potential problems of the extension and monitoring of all categories. Furthermore, the Committee recommends that detailed Codes of Practice with practical assistance and examples of best practice will be required by employers to ensure quality and accurate information is produced with negligible impact on the competitiveness of businesses.

8. Cost of regulations

It was agreed that the cost of regulations is of crucial importance and should be borne in mind as further debate on this proposed legislation develops. The Committee would be seeking more information on this area from the Department of Higher and Further Education, Training and Employment. However, the Committee considered that it was essential that this legislation must not adversely affect businesses, particularly Small and Medium-sized Enterprises (SMEs). It would be the responsibility of all parts of the Northern Ireland Executive to assist businesses to meet the requirements of the final outcome of the Bill. To assist employers but particularly small employers, who make up a large part of the Northern Ireland economy, advice and assistance should be available from the one location, on the principle of a one-stop-shop. This information must be straightforward and understandable as far as is practicable.

9. Definitions and understanding

The Committee for Higher and Further Education, Training and Employment recommends that clear definitions are produced for every parameter, everyone must easily understand these. It is also the view of the Committee that these should be put in the public domain as soon as possible to ensure the fullest debate and understanding within the consultation/legislative phase of the proposed Single Equality Bill.

10. Other issues

Members expressed their concerns regarding cases being currently settled before full hearings take place, as this was often considered the least costly option even if the case is viewed by them to be invalid. To minimise the likelihood of vexatious litigation proper screening/vetting mechanisms must be put in place.

Committee members agreed that equity and equality of opportunity were very laudable goals. In fact, appointment of the best person for the job is simply good business and management practice. There were, however, differing views as to the long-term desirability of basing equality policy on the definition of 'protected groups'. Some felt this could entrench perceived 'victimhood' even where objective conditions did not warrant such perceptions. Such members felt that the merit principle should be given greatest prominence.

Dr Esmond Birnie, MLA
Chairman
5 July 2001

Minutes of 28 June 2001, para 3, first action point
Minutes of 5 July 2001, para 3, third action point