Religious and Political Discrimination and Equality of Opportunity in Northern Ireland[Key_Events] Key_Issues] [Conflict_Background] Government Reports and Acts
Second Report Chairman: Sir Oliver Napier, LL.B
Presented to Parliament by the Secretary of State for
Northern Ireland by Command of Her Majesty
Published in London by,
Cmnd. 1107 Copyright notice:
Crown copyright material has been reproduced under licence from the
Controller of Her Majesty's Stationary Office. Contents 1 Introduction 1.1 Terms of reference 2 Inequality in Northern Ireland 2.1 Introduction 3 General principles 3.1 Introduction 4 Discrimination in the Public Sector 4.1 Introduction 5. Ombudsman Introduction 6 Provisions of Goods and Services in the Private Sector Introduction 7 Discrimination on Grounds of Race or Disability 7.1 Introduction 8 Communal Rights and Communal Recognition
8.1 Introduction 9 Institutional Arrangements 9.1 Introduction 10 Future Role and Function of the Standing Advisory Commission on
Human Rights Introduction 11 Legislative Framework 11.1 Introduction 12 Summary of Main Conclusions and Recommendations 12.1 Introduction Annex A: Summary by Standing Advisory Commission on Human Rights of research by Policy Studies Institute on public sector housing in Northern Ireland Annex B: Schedule 2 to the Northern Ireland Constitution Act 1973: excepted matters Annex C: Part 111 of the Northern Ireland Constitution Act 1973: prevention of religious and political discrimination Annex D: Scope of section 19(1) of the Northern Ireland Constitution Act 1973
Standing Advisory Commission
Dear Secretary of State, I have pleasure in enclosing the Commission's Second Report on
its review. of the laws and institutions aimed at preventing religious
and political discrimination in Northern Ireland and providing equality
of opportunity. This follows on from the Commission's Report on Fair
Employment (Cm 237) which was submitted by my predecessor, Mr James
O'Hara. The Commission's main recommendations arising from this second stage
of the review are summarised at the end of the report. I shall not repeat
them in this covering letter. I do, though, want to make the point that
the enclosed report has the support of all the Commission's Members and
that we are all strongly of the view that its message that more needs to
be done, and be done now, to safeguard human rights in Northern Ireland
should not be ignored. We hope that the report will be widely discussed
and be a basis for early governmental action. We shall want to assist Government
in whatever way we can in taking the recommendations in the report forward. I should add that the Commission does not see the report as a conclusion
of its work in advising on the full range of human rights safeguards in
Northern Ireland. We attach a high priority to maintaining the momentum
of our enquiries into inequalities in Northern Ireland and as you know
have already embarked on a major review of human rights aspects of the
education system. Results of that work are even now coming through and
are mentioned in the enclosed report. We shall continue to keep you closely
informed on this important matter. I want also to say, again on behalf of all the Commission's Members,
that we are deeply indebted to our many external consultants for their
considerable assistance in preparing this Second Report. The specialist
advice which we receive from outside the Commission is without doubt indispensable. On a personal note, I am most grateful to my fellow Members of the Commission
and the Commission's staff for all they have done over the many months
of putting this report together. I would not have been without them. Yours sincerely Oliver Napier Sir Oliver Napier (Chairman) Secretariat The Commission decided in December 1984 to review the laws and institutions
intended to secure freedom from religious and political discrimination
and to promote equality of opportunity in Northern Ireland. A report on
the first part of the review was published in 1987 entitled Report on
Fair Employment (Cm 237). The present, second report deals with
the remainder of the review. The recommendations in this Second Report
are the responsibility of the present Members. The Commission wishes
to record its gratitude to former Members and former members of staff who
have contributed to the review at its various stages. The former Members
of the Commission who have retired since 1984 are: Mr J O'Hara (former
Chairman of the Commission); Mrs M Bell; Mrs J Brett; Dr E E Butler; Mrs
R W Carswell; Dr A Downey; Mr R A Ferris; Mr J P Flannery; Mr F P Girvan
QC; Professor D S Greer; Mr A R Hart QC; Mr T H Kernohan CBE; and Dr J
C McCrudden. The former full-time members of the Commission's Secretariat
who have assisted with the review are: Mr J R Fisher (former Secretary
to the Commission); Mr M Barden; Miss J Fleming; Miss R Gammon; Mrs M Kavanagh;
and Mr J Knox. * Succeeded by Mr G W Davies in February 1990. 1.1 The Standing Advisory Commission on Human Rights was established by section 20 of the Northern Ireland Constitution Act 1973 for the purpose of: 'advising the Secretary of State on the adequacy and effectiveness of the law for the time being in force in preventing discrimination on the ground of religious belief or political opinion and in providing redress for persons aggrieved by discrimination on either ground'. 1.2 In February 1985, the then Secretary of State, the Rt Hon Douglas Hurd MP, announced that he had been advised by the then Chairman of the Commission, Mr James O'Hara, that: 'the Commission intends as a priority to undertake a major study to examine the adequacy and effectiveness of existing laws and institutions in securing freedom from discrimination and furthering equality of opportunity in Northern Ireland. The study will include the detailed examination of the provisions of the Northern Ireland Constitution Act 1973, the legislation which established the offices of the Northern Ireland Parliamentary Commissioner for Administration and Commissioner for Complaints and the Fair Employment Agency as well as the relevant responsibilities of the Northern Ireland Housing Executive and of the Commission itself. The Government share the Commission's commitment to further human rights in the interests of all the people in Northern Ireland. I therefore welcome and support the Commission's decision to undertake the proposed study. . .'[1] The terms of reference for the study were: 'to examine the adequacy of the coverage and effectiveness of existing laws and institutions in securing freedom from discrimination on the grounds of religious belief or political opinion and furthering equality of opportunity in Northern Ireland'. 1.3 In July 1985, the Secretary of State further announced that he had: 'asked officials to prepare urgently proposals to make our approach to full equality of opportunity in employment more comprehensive, consistent and effective' [emphasis added].[2] Accordingly, the Commission decided to concentrate initially on the
adequacy and effectiveness of the fair employment legislation. The Commission's
Report on Fair Employment was the culmination of this first part
of the study. The Report was presented to Parliament in October 1987.[3] 1.4 In the report, the Commission said that it would proceed to complete
its study by examining the laws and institutions securing freedom from
discrimination and promoting equality of opportunity in areas other than
employment. The outcome of this further stage of the study is the subject
of this Second Report, on the constitutional protection of human
rights in Northern Ireland. This can be read independently of the Report
on Fair Employment. Nonetheless, the two reports are complementary
and there are frequent references in this report to the earlier report.
[4] As explained in the Report on Fair Employment there was a need,
if the Commission was to provide authoritative advice, to commission research
from outside consultants; and to seek the views of other specialist advisers
and interested organisations and individuals. In October 1985, the Commission
asked the Policy Studies Institute to enquire into differences between
Catholics and Protestants in Northern Ireland in their socio-demographic
and economic positions. The importance of this work was underscored by
official statistics published in 1985 [5] which showed that such differences
had persisted notwithstanding legislative provisions aimed at reducing
inequalities. 1.6 The Policy Studies Institute's report has been . published in four
parts under the general title Equality and Inequality
in Northern Ireland. Parts 1, 2 and 3 were relevant to the Commission's
work on fair employment, and were were published at the same time as its
fair employment report, Cm 237, ie in October 1987. These dealt with: differences
between Catholics and Protestants in employment and unemployment;[6] employment
policies and practices in the workplace;[7] and people's attitudes towards
discrimination and inequality.[8] 1.7 Part 4 of PSI's report dealt with housing conditions and housing allocations in the public sector. This work was relevant to the second stage of the commission's study and was published in June 1989.[9] The work on housing is referred to in the Commission's present report in chapters 2 and 4 and is summarised at Annex A. 1.8 The Commission wishes to record its gratitude to the NIHE for making available to the PSI a substantial volume of data for the purposes of the housing research. The Commission is grateful to Mr John McEvoy, NIHE's chairman, and his predecessor Mr Norman Ferguson, as well as NIHE's Chief Executive, Mr Victor Blease, and its Principal Economist, Mr John McPeake, for attending a number of the Commission's meetings to answer member's questions about PSI's findings. 1.9 The Commission believes that PSI's contribution towards an understanding of the nature of the socio-economic differences between Catholics and Protestants in Northern Ireland has been influential in the debates in Parliament during the passage of the Fair Employment (Northern Ireland) Act 1989. The Commission is grateful to Mr Bill Daniel, PSI's Director , and to Mr David Smith and Mr Gerald Chambers, the authors of the PSI reports, for the help which they have given to the Commission's Members and its Secretariat. 1.10 The Commission is also grateful to its advisory panel which was
set up to help the Commission to monitor and evaluate PSI's research as
it proceeded. The members of the panel included: Professor Paul Compton
and Mr Robert Cormack, Queen's University, Belfast; Dr Jeremy Harbison
and Dr Kevin Sweeney, Policy Planning and Research Unit, Department of
Finance and Personnel for Northern Ireland; Mr Alan Murie, School for Advanced
Urban Studies, University of Bristol; and Dr Robert Osborne, University
of Ulster.[10] Studies of Laws and Institutions 1.11 The Commission also wishes to record its appreciation of the work
of the academic advisers who were appointed by the Commission to write
background papers on various aspects of the study of discrimination and
equality of opportunity and to comment on drafts of the present report.
The advisers were: Mr George Applebey and Ms Evelyn Ellis, University of
Birmingham; Mr Patrick Birkinshaw, University of Hull; Professor Anthony
Bradley, Mr Wilson Finnie and Mr Christopher Himsworth, University of Edinburgh;
Mr Benedict Kingsbury, Exeter College, Oxford; Ms Patricia Leopold, University
of Reading; and Dr Christopher McCrudden, Lincoln College, Oxford.[11]
1.12 In August 1985, the Commission advertised its intention to embark
on its study of religious and political discrimination and equality of
opportunity in Northern Ireland and publicly invited interested bodies
and individuals to comment. Most of the evidence which was submitted in
response to this invitation concerned fair employment. A list of all those
who provided written or oral evidence is at Annex A to the Report on
Fair Employment.[12] Some of the written evidence was, with
the permission of the persons concerned, published by the Commission in
January 1988.[13] 1.15 Responsibility for the view expressed in the Second Report
rests solely with the Commission. 1.16 The Commission wishes to place on record its appreciation of the
additional funding received for the purposes of the whole of the study
from the Northern Ireland Office and from the Commission of the European
Communities, the European Human Rights Foundation, the Sir Halley Stewart
Trust and the Ireland Fund. 1.17 The Second Report fulfills the Commission's original undertaking
to review the laws and institutions concerning religious and political
discrimination and equality of opportunity in Northern Ireland. The Commission
will nonetheless be giving this important area of concern its further attention
and, as is pointed out in chapter 2, has already put in hand major new
work, on the education system in Northern Ireland. Moreover, as is indicated
by the latest official statistics mentioned in chapter 2, further legislative
changes and associated changes in public policies are needed if human rights
in Northern Ireland are to be properly protected. The Commission hopes
that this Second Report will contribute to the process of making
Northern Ireland a fairer society for all its people. 1.18 Chapter 2 of this report provides a summary of recent legislation
and research having a bearing on discrimination and equality in Northern
Ireland. Chapter 3 sets out the general principles which have guided the
Commission in the remainder of the report. Chapter 4 discusses legislative
safeguards against discrimination in the public sector; and chapter 5 looks
at the authority to deal with discrimination in the public sector of the
Northern Ireland Parliamentary Commissioner for Administration and Commissioner
for Complaints. In chapter 6, the Commission considers the need for protections
against discrimination in the supply of goods and services in the private
sector. Chapter 7 discusses the need for legislation in Northern Ireland
to prevent racial discrimination as well as discrimination on grounds of
disability. Chapter 8 widens the discussion further by considering the
need to recognise group and cultural rights and identities in addition
to the rights and freedoms of individuals. The remaining chapters draw
the discussion together. Chapter 9 looks at the institutional framework
which would be most appropriate in present circumstances in Northern Ireland
if the Commission's views are to be implemented, whilst chapter 10 deals
with the Commission's future role. Chapter 11 discusses the legislative
implications of the Commission's recommendations. The recommendations are
summarised in chapter 12. Notes: [1] HC Debs., Vol. 73, Col. 556. Written Answers, 21 February 1985. [2] HC Debs., Vol. 83, Col. 161, Written Answers, 3 July 1985. [3] Standing Advisory Commission on Human Rights Religious and Political Discrimination and Equality of Opportunity in Northern Ireland Report on Fair Employment, Cm 237, 1987. [4] The Report on Fair Employment included the dissenting view of three of the Commission's former Members, see Cm 237 op cit pp. 184-186. For convenience, this Second Report, when referring to the Commission's views and recommendations in the Report on Fair Employment, does not distinguish the unanimous views and recommendations from any which might have had the support of only the majority of the then Members. [5] Continuous Household Survey: Religion PPRU Monitor 2/85 June 1985. [6] David J Smith Equality and Inequality in Northern Ireland Part 1: Employment and Unemployment Policy studies Institute London 1987(PSI occasional Paper 39). [7] Gerald Chambers Equality and Inequality in Northern Ireland Part 2: The Workplace Policy Studies Institute London 1987 (PSI Occasional Paper 39) [8] David J Smith Equality and Inequality in Northern Ireland Part 3: Perceptions and Views Policy Studies Institute London 1987 (PSI Occasional Paper 39). [9] David J and Smith and Gerald Chambers Equality and Inequality in Northern Ireland Part 4: Public Housing Policy Studies Institute London 1989 (PSI Occasional Paper 47). [10] The other member, Professor John Darby, ceased to be on the panel in September 1986 when he became a Member of the Standing Advisory Commission on Human Rights. [11] Dr McCrudden ceased to be a Member of the Standing Advisory Commission on Human Rights in September 1988 and was first appointed an academic adviser on the study in the following December. [12] Cm 237, op cit pp. 187-189. [13] Religious and Political Discrimination and Equality of Opportunity
in Northern Ireland: A Review of the Standing Advisory Commission
on Human Rights: Evidence Standing Advisory Commission on Human Rights
Belfast January 1988. 12 Summary of Main Conclusions 12.1 In. this chapter, the Commission lists the principal conclusions
and recommendations contained in this Second Report. The chapter
is not a summary of the report. It is important that each conclusion and
recommendation is read in the context of the discussion in the chapter
from which it is drawn. The numbers of the paragraphs in the report at
which the various conclusions and recommendations can be found are shown
below for ease of reference. Inequalities in Northern Ireland 12.2 The Commission is of the view that a constitutional framework
which provides protection against discriminatory laws and practices
is essential if there is to be full recognition in Northern Ireland
of basic human rights and fundamental freedoms. (Paragraph 2.1.) 12.3 The Commission welcomes Government's commitment to progressive
evaluation and formal review of the Fair Employment (Northern Ireland)
Act 1989 and the role which the Standing Advisory Commission on Human Rights
will have in this process. (.Paragraph 2.8.) 12.4 The Commission believes that Government needs to collect more labour
market information than at present if imbalances, whether in employment
or in unemployment, are to be properly assessed. (Paragraph 2.13.) 12.5 The Commission is of the view that careful consideration be given
to PSI's recommendation that NIHE 'should move towards explicitly and openly
monitoring the results of its policies in the light of the need to achieve
equal opportunities for the Catholic and Protestant communities'. (Paragraph
2.20.) 12.6 The Commission is of the view that discrimination and inequality
have to be tackled across the whole spectrum of public policy and without
delay. (Paragraph 2.26.) 12.7 The Commission has concluded that the Government should take
whatever action is practicable to ensure that any form of discrimination,
whether direct or indirect, on the grounds of religious belief or
political opinion which may contribute to inequalities as between Catholics
and .Protestants is eliminated and that full equality of treatment
and opportunity is attained. (Paragraph 3.2.) 12.8 The Commission has concluded that it would not be right to restrict
its recommendations to those areas of public and private sector activity
in which there is clear evidence of a significant level of direct or indirect
discrimination or lack of equality between the two main sections of the
community. It has preferred to base its recommendations on the principle
that the legal protection against discrimination and measures to promote
equality of opportunity should be broadly framed to cover all aspects of
actual or potential discrimination or inequality of opportunity, unless
some good reason can be produced for a specified exemption. (Paragraph
3.3.) 12.9 The Commission recommends that in so far as compliance with the
European Convention on Human Rights has not already been achieved in respect
of discrimination by Government or its agencies under sections 17 to 19
of the Northern Ireland Constitution Act 1973 there are strong grounds
for amending the law to bring it fully into line with the terms of the
Convention. (Paragraph 3.6.) 12.10 In the Commission's view European Community law provides further
support for the adoption of general laws against discrimination on relevant
grounds and in particular for the principle that all formal measures against
discrimination should include indirect as well as direct discrimination.
(Paragraph 3.11) 12.11 In the Commission's view the provisions of the various United
Nations sponsored covenants and conventions impose a general obligation
on the United Kingdom Government to ensure that its legislation provides
equal protection throughout its territory against all relevant forms of
discrimination. (Paragraph 3.15.) Discrimination in the Public Sector 12.13 The Commission has concluded that the provisions of the Northern
Ireland Constitution Act 1973 which were designed to deal with a particular
form of devolved government, are not appropriate or effective to deal with
continuing direct rule. Nor are they fully adequate to deal with the wide
range of possible forms of devolved government which might be established
in the future. For this reason alone they require clarification and amendment.
(Paragraph 4.9.) 12.14 The Commission is of the view that indirect discrimination is
as objectionable and as inimical to the maintenance of good relationships
between the two main sections of the community in Northern Ireland as directly
discriminatory legislation and executive action and should be prohibited.
(Paragraph 4.10.) 12.15 The Commission is of the opinion that there is an urgent need
for a general measure authorising legislative provisions designed
to provide or increase equality of treatment or opportunity for the two
main sections of the community which might otherwise be unlawful as discriminatory.
(Paragraph 4.11) 12.16 The Commission believes that there is a general need for Government
and other public bodies to accept the desirability of and to implement
appropriate procedures for monitoring the impact of legislation and of
administrative decisions or policies on equality of treatment and opportunity
for the two main sections of the community. (Paragraph 4.12.) 12.17 The Commission recommends that no specific provision limiting
the meaning of political opinion be included in an amended Northern Ireland
Constitution Act. (Paragraph 4.17.) l2.l8 The Commission recommends that the definition of discrimination
in the 1973 Act, should be amended to include indirect as well as direct
discrimination like that in the Fair Employment (Northern Ireland) Act
1976. (Paragraph 4.23.) 12.19 The Commission recommends that the definition of indirect discrimination
for the purposes of the anti-discrimination provisions in respect of legislation
and of executive action by Government and other public bodies should cover
any provision, requirement, policy or practice which is introduced, continued
or allowed and which has a significant relative adverse impact on a particular
section of the community defined by religious belief or political opinion.
(Paragraph 4.25.) 12.20 The Commission is of the opinion that it is desirable to ensure
that any exemptions from provisions outlawing discrimination are fully
compatible with international human rights law. (Paragraph 4.28.) 12.21 The Commission has concluded that the best and most generally
acceptable formulations for exemptions from anti-discrimination provisions
are to be found in the well established provisions of the European Convention
on Human Rights and of other international human rights conventions, namely
that the relevant exemptions can be shown to be necessary in a democratic
society in the interests of such matters as national security, the protection
of public order, health or morals, the prevention of disorder or crime
or the protection of the rights and freedoms of others. (Paragraph 4.29.) 12.22 The Commission recommends a further general exemption in respect
of affirmative action. Such action would have to be specifically authorised
in legislation. (Paragraphs 4.31-4.33). 12.23 The Commission recommends that an amended Northern Ireland Constitution
Act should contain a provision stating that the anti-discrimination provisions
shall prevail over both past and future Acts of Parliament except to the
extent that the Act expressly directs that they shall not apply. The amended
Act should also provide that the only discriminatory action exempted from
the anti-discrimination provisions is that which is clearly and expressly
authorised or required by a provision which expressly states that the provisions
of the Constitution Act are not to apply. (Paragraphs 4.37 and 4.38.) 12.24 The Commission recommends that the 'questionnaire procedures used
under the racial and sex legislation which requires answers to questions
in relation to an alleged discriminatory action be included in an amended
Northern Ireland Constitution Act both in respect of individual cases of
alleged direct discrimination and in respect of cases involving alleged
indirect discrimination either on an individual or more general basis.
(Paragraph 4.40.) 12.25 The Commission recommends that a remedy in damages equivalent
to that in respect of executive action under section 19 of the Northern
Ireland Constitution Act 1973 should be provided in respect of specific
loss or injury suffered as a direct result of the enactment of discriminatory
legislation. (Paragraph 4.41.) 12.26 The Commission recommends that the Judicial Committee of the Privy
Council should be granted a discretion under section 18 of the Northern
Ireland Constitution Act 1973 to accept a further reference, whether by
the Secretary of State or by a court in Northern Ireland where new grounds
of challenge not considered in the initial hearing are raised. (Paragraphs
4.45 and 4.47.) 12.27 The Commission recommends that amendments to section 18(3) of the Northern Ireland Constitution Act 1973 should be made to include an express reference to the Commission as a body interested in the determination of any reference to the Judicial Committee of the Privy Council. (Paragraph 4.46.) 12.28 The Commission recommends that no change to section 19 in respect of remedies is necessary. (Paragraph 4.49.) 12.29 The Commission recommends that procedures should be introduced by NIHE for ensuring that the way its policies and practices impact on each of the two main communities is monitored on a regular basis. (Paragraph 4.53). 12.30 The Commission recommends that if detailed research showed that
a sizeable number of NIHE's tenants or applicants wish to live on integrated
estates in suitable areas then it might be desirable to explore the possibility
of providing financial incentives to publicly funded housing bodies as
well as to tenants to develop integrated housing schemes or to alter the
terms of the Housing Selection Scheme to facilitate the development of
integrated estates. (Paragraph 4.54.) 12.32 The Commission accepts the exemption in section 21(3) of the Northern Ireland Constitution Act 1973, regarding oaths, for any requirement on a person 'to make a declaration of acceptance of office or a declaration that he is qualified to act, serve or be employed, or not disqualified from acting, serving or being employed, in any capacity'. (Paragraph 4.58.) 12.33 The Commission recommends that oaths should be excepted matters,
and that any requirements to make oaths should be confined to circumstances
where they are necessary for protecting the constitutional position or
the reputation of the appointing or employing authority or body. (Paragraph
4.59.) Ombudsman[1] 12.34 The commission recommends that resources are made available to publicise the offices of Northern Ireland Parliamentary Commissioner for Administration (NIPCA) and Northern Ireland Commissioner for Complaints (NICC). (Paragraph 5.29.) 12.35 The Commission is of the view that the legislation governing the offices of Ombudsman amounts to a constitutional safeguard which expressly should not be within the competence of devolved legislative authority. (Paragraph 4.61.) 12.36 The Commission recommends that the requirement that reference of complaints to the NIPCA must be via Members of Parliament should be removed and direct access be permitted. (Paragraph 5.31.) 12.37 The Commission recommends that the Ombudsman should be given a formal power of audit over internal complaint mechanisms of bodies under his jurisdiction to ensure that such mechanisms are adequate and effective. (Paragraph 5.33.) 12.38 The Commission recommends the removal of the limitations on the Ombudsman of investigating 'maladministration' only and that he should be permitted to examine any action or omission which was 'unreasonable, unjust, oppressive or improperly discriminatory' as the New Zealand Ombudsman is permitted to do. (Paragraph 5.37.) 12.39 The Commission recommends that the list of bodies within the purview of the Ombudsman be revised. (Paragraph 5.39.) 12.40 The Commission recommends that the exclusion of matters relating to contractual and other commercial transactions by government departments from the jurisdiction of the NIPCA be removed. (Paragraph 5.40.) 12.41 The Commission has decided not to recommend that the Ombudsman should have power to initiate an investigation entirely of his own motion, but recommends that he should have an express power to investigate all areas of maladministration which come to his attention during an investigation. (Paragraph 5.41.) 12.42 The Commission recommends that ex-gratia payments recommended by the NIPCA should be paid by Northern Ireland Departments without the necessity of such departments seeking Treasury approval of such payments. It also recommends that complainants seeking compensation in the civil courts following a finding of maladministration should be eligible for legal aid, which is not available at present. (Paragraph 5.42.) 12.43 The Commission recommends that consideration be given to consolidating the two statutory offices of NIPCA and NICC and giving the combined office the generally understood name of Ombudsman. (Paragraph 5.43.) 12.44 The Commission recommends that all legislation pertaining to the two offices of NIPCA and NICC should be an 'excepted matter'. (Paragraph 5.45.) 12.45 The Commission recommends that the Independent Commission for Police Complaints be asked to pay particular attention to discrimination as a category of complaints if it is alleged or inferred in the complaints received. (Paragraph 5.46.) 12.46 it is most important that both the Police and HM Forces are and
are seen to be impartial in their treatment of the public. The Commission
therefore recommends that urgent consideration should be given to the establishment
of an effective procedure for dealing with complaints against the Army
which is seen to be independent. (Paragraph 5.52.) Provision of Goods and Services in the Private Sector
12.47 The Commission concludes that discrimination on the grounds of religious belief or political opinion in respect of the provision of goods, facilities and services generally available to the public should be made unlawful in a similar way to racial or sex discrimination in such matters. (Paragraph 6.14.) 12.48 The Commission recommends that there is a sphere of private or family activity in which the law should not interfere even if it can be shown to have been directly or indirectly discriminatory. (Paragraph 6.14.) 12.49 The Commission accepts that it would be impractical and wrong to attempt to interfere in sales and dispositions, by will or otherwise, or lettings within the family circle. The use of a professional estate agent or public advertisement are, in the opinion of the Commission, reasonable criteria to distinguish these private transactions from those in which the public are involved and in which religious or political discrimination is unacceptable. The Commission recommends that the same criteria be used to distinguish private from public transactions in respect of religious and political discrimination in Northern Ireland. (Paragraph 6.17.) 12.50 The Commission recommends that the Lands Tribunal be granted express powers to set aside restrictive covenants which are discriminatory on religious or political grounds, with similar exemptions to those in the Race Relations Act and the Sex Discrimination Act and Order. (Paragraph 6.18). 12.51 There is an argument for permitting landlords in the private sector to take the religion of applicants for housing into account for the specific and limited purpose of maintaining a reasonable balance in the occupancy of a particular estate or block of flats. If such a policy is to be made lawful in respect of the NIHE, it should at least be made lawful for registered housing associations, which fall somewhere between the public and private sectors. The Commission has concluded that any exemption in respect of residential lettings should be applied to all public and private sector housing, though it would have to be carefully phrased to ensure that it was available only where a landlord or agent could establish that giving preference on grounds of religion would help to maintain an established or planned balance in an identifiable group of lettings. (Paragraph 6.19.) 12.52 The Commission recommends that it would be unwarranted to attempt to interfere with charities whose beneficiaries are defined or restricted on the ground of religion. (Paragraph 6.20.) 12.53 The Commission recommends that there should be a general exemption for religious and political organisations except in respect of goods facilities and services offered to the public. (Paragraphs 6.21 and 6.22.) 12.54 The Commission recommends that discrimination in relation to the admission of pupils on religious or political grounds should be unlawful in grant aided schools and educational institutions, except where such discrimination is reasonably necessary to the maintenance of a reasonable balance in integrated schools. (Paragraph 6.23.) 12.55 The Commission recommends that a general exemption for actions designed to promote equality of opportunity be provided for the purposes of its proposed legislation on the provision of goods, facilities and services in the private sector such actions would have to be specifically authorised in legislation. (Paragraphs 6.24). 12.56 The Commission recommends that the primary means of enforcement
of its proposed legislation on the provision of goods, facilities and services
should be by way of individual complaint to a county court. (Paragraph
6.25.) Discrimination on Grounds of Race or Disability 12.57 The Commission recommends that racial discrimination in Northern Ireland be made unlawful. (Paragraph 7.4.) 12.58 The Commission recommends that a Race Relations (Northern Ireland) Act or Order parallel to that in Great Britain should be introduced without delay, without prejudice to a subsequent consolidation of the legislation on all forms of discrimination. (Paragraph 7.9.) 12.59 The Commission recommends that the development over time of general consolidated legislation on all forms of unlawful discrimination be monitored and enforced by a single general purpose statutory agency. (Paragraph 7.12.) 12.60 The Commission is unable as yet to make specific recommendations
about discrimination against the disabled and will report separately on
this matter as appropriate in due course. (Paragraph 7.13). Communal Rights and Communal Recognition 12.61 The Commission has concluded that more might be done to guarantee the equal treatment and esteem of both traditions within Northern Ireland. (Paragraph 8.4.) 12.62 The Commission is of the view that various developments in international human rights law make it clear that the granting or recognition of some special rights for members of minority groups within established state boundaries is legitimate under international human rights law and that such provisions may occasionally be required. (Paragraph 8.20.) 12.63 The Commission recommends that serious consideration be given to the introduction of more explicit and better entrenched guarantees for members of both traditions. (Paragraph 8.37.) 12.64 The Commission has concluded that it would be desirable to include in a new Northern Ireland Constitution Act a general statement recognising the existence of the two main sections of the community in Northern Ireland and imposing a duty on Government and all public bodies to ensure that their functions are carried out in such a way to ensure that members of both main sections of the community are granted equality of treatment and esteem. (Paragraph 8.41). 12.65 The Commission is of the view that the way in which the Irish language is treated is a touchstone of the extent to which the existence of two traditions in Northern Ireland is treated seriously by Government and the community at large. (Paragraph 8.42.) 12.66 The Commission has concluded that further consideration should be given by Government in consultation with relevant bodies to the enactment of Irish language legislation under which Orders might be made specifying the circumstances in which individuals or bodies would be entitled to use the Irish language in their dealings with Government and for other official purposes. (Paragraph 8.47.) 12.67 The Commission has concluded that the possibility of making more
explicit provision in the education legislation for Northern Ireland for
parents to have the right to have their children educated in denominationally
controlled schools and in integrated schools and for equal funding for
such schools should be regarded as a serious option. (Paragraph 8.52.) 12.68 The Commission has concluded that some specific institutional
arrangements for monitoring the effectiveness of any new legislation and
assisting in its enforcement are likely to be necessary if its objectives
are to be achieved. (Paragraph 9.7.) 12.69 The Commission has concluded that neither on the grounds of effectiveness nor in terms of reasonable public expenditure could the creation of any new independent anti-discrimination agencies in Northern Ireland be justified. (Paragraph 9.8.) 12.70 The Commission has concluded that, while the possibility of creating a single agency to deal with all forms of discrimination and inequality of opportunity in Northern Ireland should not be ruled out in the longer term, it should not be adopted as an immediate policy objective. (Paragraph 9.9.) 12.71 The Commission recommends that the Fair Employment Commission should be given the task of monitoring the implementation and assisting in the enforcement of the Standing Advisory Commission's proposed legislation on discrimination and equality of opportunity in respect of goods, facilities and services and in respect of race. (Paragraphs 9.12 and 9.13.) 12.72 The Commission has concluded that the enforcement agency in respect of public sector discrimination should not be required to handle all individual complaints or to adjudicate on them. All individual complainants, however, would have the right to pursue their complaints in the courts on their own behalf, and the agency should be enabled to provide advice and assistance as it thinks fit. (Paragraph 9.16.) 12.73 The Commission has concluded that it is necessary for an effective enforcement agency to be in a position to challenge the validity of all forms of legislation and certain forms of executive action which have a general impact. (Paragraph 9.18.) 12.74 The Commission believes that if the enforcement agency did not have the power to take legal action in its own right it would, in the opinion of the Commission, be essential for it to have the power and the resources to assist individuals or bodies to take proceedings in cases of general interest. (Paragraph 9.19.) 12.75 The Commission believes that it would be essential for the enforcement body to have general powers and sufficient resources to engage in appropriate educational and promotional activities. (Paragraph 9.21.) 12.76 The Commission has concluded that the Fair Employment Commission
be given the task of monitoring and assisting in the enforcement of an
amended Northern Ireland Constitution Act (Paragraph 9.22.) Future Role and Function of the Standing Advisory
12.78 The Commission has concluded that a new approach to the appointment of members and staff, with greater emphasis on relevant skills and experience and longer terms of office, is essential if the Commission is to carry out its functions effectively and economically. (Paragraph 10.11.) 12.79 The Commission has concluded that international practice in relation to human rights agencies lends further support to the view that a body which has no independent status and no power of independent initiative is unlikely to be able to play a major role in the protection and promotion of human rights. (Paragraph 10.13.) 12.80 The Commission recommends that it be reconstituted as an indepenent body corporate with power to recruit its own staff, to enter into its own contracts and to act independently of the Northern Ireland Office within its statutory remit. (Paragraph 10.14.) 12.81 The Commission recommends that its statutory remit be formulated as follows: (i) to keep under review the adequacy and effectiveness of the laws and Practices in Northern Ireland for protecting and upholding human rights; (ii) to advise the Secretary of State and other relevant bodies as appropriate on the action which in the opinion of the Commission needs to be taken for the better protection and upholding of those rights; (iii) to promote greater understanding in Northern Ireland and elsewhere of the importance of human rights within Northern Ireland and to undertake appropriate educational and promotional activities to that end; (iv) to carry out or commission research relevant to its functions.
(Paragraph 10.15.) 12.82 The Commission recommends changes in law and practice to the membership
of the Commission and its staffing. (Paragraphs 10.16 and 10.17.) 12.83 The Commission endorses the view expressed in 1977 in its report The Protection of Human Rights in Northern Ireland (Cm 7009), regarding the incorporation of the European Convention on Human Rights into domestic law. The incorporation of the Convention into Northern Ireland law would likely require its incorporation into United Kingdom law. (Paragraph 11.2.) 12.84 The Commission recommends that the Northern Ireland Constitution Act should be amended as proposed in this Second Report at the earliest opportunity whether or not agreement has been reached on a new form of devolution. (Paragraph 11.3.) 12.85 The Commission recommends that those of its proposals which are
no way dependent on or even related to a new Political settlement be adopted
at the earliest practical opportunity whether or not amendments to the
Constitution Act are adopted. (Paragraph 11.4.) Notes: [1] The term Ombudsman is used where it refers and is applicable to
the system as a whole. Where there are differences between the legislative
scope and powers of the two offices of the Northern Ireland Parliamentary
Commissioner for Administration and the Northern Ireland Commissioner for
Complaints the two offices are distinguished by their acronyms-NIPCA and
NICC.
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CAIN
contains information and source material on the conflict
and politics in Northern Ireland. CAIN is based within Ulster University. |
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