Chapter 1:
Introduction and Background

1.1 Since the establishment of Direct Rule in 1972, successive administrations have recognised the importance of eliminating discrimination based on religion or political opinion, and promoting greater equality between all sections of the population in Northern Ireland. Equality of opportunity is a fundamental human right which would also accelerate economic growth by maximising human potential. Furthermore, widespread confidence that the labour market operated fairly, with recruitment and promotion based on merit, would lead to greater social cohesiveness and better relations between different sections of the community. And, of course, perceptions of discrimination and unfairness have fuelled political alienation.

1.2 Part III of the Northern Ireland Constitution Act 1973 created protection against religious and political discrimination in legislation and in the discharge of public sector executive functions. The 1973 report of the Van Straubenzee working party on employment discrimination in the public sector established the need for new legislation and institutions[1]. This was the origin of the Fair Employment (Northern Ireland) Act 1976 and the establishment of the Fair Employment Agency.

1.3 The second major impetus to legislation in this field came in the mid-i 980s, derived from statistical evidence of continuing differentials in the socio-economic experiences of the Catholic and Protestant sections of the community. This prompted a series of official publications which addressed the potential for the strengthening of the Fair Employment legislation and other measures which the Government might take to promote greater equality of opportunity in the socio-economic sphere. The Department of Economic Development published a consultative paper on future strategy options in September 1986; the Standing Advisory Commission on Human Rights (SACHR) produced an extensive report on Fair Employment in September 1987; and the Government published a White Paper containing legislative proposals in May 1988[2]. This period was marked by a close interest in Fair Employment issues on the part of the trade union movement, nongovernmental organisations and commentators in the United States. Since the 1985 Anglo-Irish Agreement, the Irish Government also had the right to raise issues such as employment equality through the Inter-Governmental Conference under the terms of Article 5 of the Agreement[3].

1.4 The Fair Employment (NI) Act 1989 resulted from this debate on, and reappraisal of, previous policy. The Act represented a major advance. Among other provisions, it imposed new obligations on employers in terms of the monitoring of their workforce, arrangements which provided a comprehensive database for future statistical analysis of employment trends. It created new institutions with wider powers, in the form of the Fair Employment Commission (FEC) and the Fair Employment Tribunal (FET). Building on the 1976 Act, the new legislation probably constituted the toughest measures against employment discrimination available to any European Government, going well beyond equivalent provisions in UK law on race and sex discrimination.

1.5 New Government policies, introduced in the early 1990s, also had a potential relevance to equality of opportunity in employment. The Targeting Social Need (TSN) initiative was launched in 1991 with the intention of focusing resources in Government programmes towards areas and people in greatest social need, defined by objective criteria. As the Catholic population suffered higher levels of socio-economic disadvantage, it was expected that, overtime, TSN would contribute to the erosion of communal differentials. In 1993 administrative guidelines on Policy Appraisal and Fair Treatment (PAFT) were issued to Government Departments in Northern Ireland [4]. These had the objective of proofing policies and service delivery against discriminatory impacts in terms of a broad range of social categories, including religion and political opinion.

1.6 During the passage of the 1989 legislation, Peter Viggers MP, then the Minister responsible for Northern Ireland industry, had announced an intention to have a comprehensive review, taking account of all the factors influencing access to employment, after five years' experience of the new law [5]. This task was initially entrusted to the Government's Central Community Relations Unit (CCRU) which consulted on and developed a research strategy [6]. It became apparent that a comprehensive review would have to extend beyond the impact of the Fair Employment legislation and the institutions which it created. Government policies on job creation, inward investment, training and education all contribute to the provision of employment opportunities and a workforce with appropriate skills to avail of those opportunities. There was continuing evidence of the persistence of the unequal impact on the Protestant and Catholic communities of long-term unemployment, especially among males.

1.7 In 1994 a number of organisations and commentators expressed concern that the review of employment equality would not be sufficiently independent of Government. There were calls for the responsibility for carrying forward the review to be transferred from CCRU to SACHR. At the end of 1994 the then Secretary of State, the Rt Hon Sir Patrick Mayhew QC MP, invited SACHR to take forward work on the review, building on the research already commissioned by CCRU. SACHR accepted this remit and the Government provided appropriate resources to ensure a fully comprehensive review. SACHR initiated a wide-ranging consultation process and commissioned extensive research. Three volumes of material derived from these exercises were published in Summer 1996[7]. In June 1997 SACHR published its final Report, "Employment Equality: Building for the Future,, [8]. This report included a Dissenting Note by one member of the Commission, Mr Dermot Nesbitt. The main body of the report contained over 160 recommendations on changes to legislation, policies and practices.

1.8 Shortly before publication of SACHR's report, the new Labour administration had been elected to office. The new Government was committed to tackling long-term unemployment and, in Northern Ireland, the Secretary of State, the Rt Hon Marjorie Mowlam MP, restated her aim of progressing equality of opportunity. SACHR's report offered an opportunity to review existing policies at an early stage in the life of the new administration. Tony Worthington MP was given Ministerial responsibility for the review, complementing his departmental responsibilities for community relations, education and training. In July 1997 he wrote to some 40 organisations representative of interests which would be directly affected by specific SACHR recommendations. Officials and Ministers subsequently made a detailed assessment of all the recommendations. The current White Paper is a distillation of this exercise.

1.9 This White Paper, however, is not simply a reaction to SACHR's recommendations. The new administration has embarked on a radical policy programme, both at national and Northern Ireland levels. One such policy is the New Deal for the Unemployed, for which £140m of additional resources are being made available in Northern Ireland over the next five years. The Government is also committed to making early progress on a broadly accepted political settlement in Northern Ireland. The Propositions on Heads of Agreement of 12 January 1998 referred to arrangements for the comprehensive protection of, inter alia, social and economic rights and respect for the principles of equity of treatment and freedom from discrimination[9]. The Government has also published its plans for incorporation of the European Convention on Human Rights into United Kingdom law [10]. It envisages that the provisions of the European Convention would be supplemented in Northern Ireland by a Bill of Rights. Recently, the Government has announced a wide ranging review of its economic development strategy which will be undertaken in partnership with industry, the unions, academia, the community and voluntary sector, and local government.

1.10 The time is therefore propitious for a fresh direction and impetus to employment equality, embracing both changes to the Fair Employment legislation and those wider policies which seek to address socio-economic inequality.

1.11 In considering these future directions, SACHR's recommendations have been invaluable as a challenge to accepted policies and practices, and as a pointer to where change might be needed. Most, though not all, of the Commission's recommendations coincide with the Government's assessment of the way ahead. On some issues the Government is now proposing more fundamental change than SACHR recommended. The Government has already indicated its intention to act on some specific recommendations, notably clarification of the law to ensure that direct recruitment of the long-term unemployed cannot be interpreted as indirectly discriminatory. This paper indicates a wider range of issues where firm intentions can now be announced. On some subjects, no final decision has been taken and the views of interested organisations and individuals are invited on these matters. In other areas, decisions in principle have been made but consequential details have yet to be finalised. Here again, the views from readers of this paper will be welcomed. Arrangements for inputting views to the Government's ongoing consideration are set out on page 6.

1.12 In considering SACHR's recommendations, the Government has sought, as far as possible, to advance its commitment to equality of opportunity and to tackling discrimination. It has also sought to focus its policies more effectively on the reduction of unemployment. Sometimes there may be a tension between these principles, for sustainable reductions in unemployment are dependent on the creation of new jobs, and the business growth which creates jobs may be deterred by excessive burdens imposed by anti-discrimination law. Hence, there is a need for balance in the application of these principles.

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[1] Report and Recommendations of the Working Party on Discrimination in the Private sector of Employment (HMSO, May 1973).
[2] Equality of Opportunity in Employment in Northern Ireland: Future strategy Options: A consultative Paper (HMSO, September 1986).
SACHR - Religious and Political Discrimination and Equality of Opportunity in Northern Ireland: Report on Fair Employment (HMSO, cm 237, October 1987).
Fair Employment in Northern Ireland (HMSO, cm 380, May 1988).
[3]Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Ireland (HMSO. cm 9690, December 1985).
[4] Central Secretariat circular 5/93: Policy Appraisal and Fair Treatment (December 1993).
[5] House of commons Hansard: Standing committee B, 16 March 1989, col 500.
[6] The Review of Employment Equality in Northern Ireland (CCRU, September 1992).
[7] Fair Employment Law in Northern Ireland: Debates and Issues (ed. D Magill and S Rose, SACHR, 1996).
Policy Aspects of Employment Equality in Northern Ireland (ed. E Mclaughlin and P Quirk, SACHR, 1996).
Public views and Experiences of Fair Employment and Equality Issues in Northern Ireland (ed. J Mcvey and N Hutson, SACHR. 1996).
[8]SACHR - Employment Equality: Building for the Future (HMSO, cm 3684, June 1997).
[9] Joint Statement by the British and Irish Governments (Belfast, 12 January 1998).
[10] Rights Brought Home: The Human Rights Bill (HMSO, cm 3782, October 1997).

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