Northern Ireland Act 1998: the Equality Commission for Northern Ireland (sections 73 to 75, 78B to 78E and Schedule 9)

In brief

The Northern Ireland Act 1998 establishes the Equality Commission for Northern Ireland as a body corporate of 14 to 20 Commissioners appointed by the Secretary of State, who must as far as practicable be representative of the community in Northern Ireland (s.73(1), (2) and (4)). The functions of the Fair Employment Commission, the Equal Opportunities Commission for Northern Ireland, the Commission for Racial Equality for Northern Ireland and the Northern Ireland Disability Council became exercisable by the Equality Commission, and those bodies were dissolved (s.74(1) and (2)). Section 75(1) requires a public authority, in carrying out its functions relating to Northern Ireland, to have due regard to the need to promote equality of opportunity between persons of different religious belief, political opinion, racial group, age, marital status or sexual orientation, between men and women generally, between persons with a disability and persons without, and between persons with dependants and persons without; s.75(1) does not list gender reassignment. The Commission keeps the effectiveness of the section 75 duties under review, advises public authorities and others on them (Sch. 9, para. 1), approves or refers the equality schemes public authorities must submit (Sch. 9, paras 2 to 7), and investigates complaints that an authority has failed to comply with its approved scheme (Sch. 9, paras 10 and 11). The Commission must monitor, report and advise on the implementation of Article 2(1) of the Protocol on Ireland/Northern Ireland (s.78B), may bring judicial review proceedings or intervene in proceedings about an alleged breach of it (s.78C), and may assist individuals in such proceedings (s.78D). Under the Sex Discrimination (Northern Ireland) Order 1976 the Commission's duties include working towards the elimination of discrimination and of harassment contrary to the Order and promoting equality of opportunity for persons who intend to undergo, are undergoing or have undergone gender reassignment (art. 54(1)); it may issue codes of practice for the employment field (art. 56A), conduct formal investigations (art. 57) and assist individual complainants (art. 75).

Key provisions

• NIA 1998 s.73 — The Equality Commission for Northern Ireland : There is a body corporate known as the Equality Commission for Northern Ireland (s.73(1)), consisting of not less than 14 nor more than 20 Commissioners appointed by the Secretary of State (s.73(2)), including a Chief Commissioner and at least one Deputy Chief Commissioner (s.73(3)). In making appointments the Secretary of State must as far as practicable secure that the Commissioners, as a group, are representative of the community in Northern Ireland (s.73(4)). Schedule 8 makes supplementary provision (s.73(5)).
• NIA 1998 s.74 — The Commission's principal functions : The functions exercisable by the Fair Employment Commission for Northern Ireland, the Equal Opportunities Commission for Northern Ireland, the Commission for Racial Equality for Northern Ireland and the Northern Ireland Disability Council are instead exercisable by the Equality Commission, and those bodies are dissolved (s.74(1) and (2)). In exercising its functions the Commission must aim to secure an appropriate division of resources between the functions previously exercisable by each of those bodies and have regard to advice offered by a consultative council (s.74(3)).
• NIA 1998 s.75 — Statutory duty on public authorities : A public authority must in carrying out its functions relating to Northern Ireland have due regard to the need to promote equality of opportunity between persons of different religious belief, political opinion, racial group, age, marital status or sexual orientation; between men and women generally; between persons with a disability and persons without; and between persons with dependants and persons without (s.75(1)). Without prejudice to that, it must have regard to the desirability of promoting good relations between persons of different religious belief, political opinion or racial group (s.75(2)). Public authority is defined in s.75(3), which includes designated bodies and listed authorities but excludes, among others, the Equality Commission and the board of governors of a grant-aided school (s.75(3)(b)). Schedule 9 provides for enforcement (s.75(4)).
• NIA 1998 Sch. 9 paras 1-9 — Equality schemes : The Commission must keep under review the effectiveness of the section 75 duties, offer advice to public authorities and others in connection with them, and carry out its functions under the Schedule (para. 1). A public authority must submit an equality scheme to the Commission unless notified that it need not (para. 2); the Commission may request a scheme or a revised scheme (para. 3). A scheme shows how the authority proposes to fulfil its section 75 duties and states its arrangements for assessing compliance and consulting, assessing and consulting on the likely impact of policies on the promotion of equality of opportunity, monitoring adverse impact, publishing the results, training staff, and ensuring public access to information and services (para. 4(1) and (2)). The Commission approves a scheme or refers it to the Secretary of State (para. 6). In publishing an impact assessment, an authority must state the policy's aims and the consideration given to mitigating measures and alternative policies, and must take the assessment and consultation into account in its decision (para. 9).
• NIA 1998 Sch. 9 paras 10-11 — Complaints and investigations : If the Commission receives a complaint of failure by a public authority to comply with an approved scheme, it must investigate or give reasons for not investigating (para. 10(1)). The complaint must be in writing by a person who claims to have been directly affected, sent within 12 months of first knowing of the matters alleged, after bringing it to the authority's notice and giving it a reasonable opportunity to respond (para. 10(2) to (4)). The Commission may also investigate where it believes an authority may have failed to comply (para. 11(1)(b)). Reports go to the authority, the Secretary of State and the complainant; if recommended action is not taken within a reasonable time the Commission may refer the matter to the Secretary of State, who may give directions (para. 11(2) and (3)).
• NIA 1998 ss.78B-78E — Functions relating to Article 2(1) of the Protocol on Ireland/Northern Ireland : The Equality Commission must monitor the implementation of Article 2(1) of the Protocol on Ireland/Northern Ireland in the EU withdrawal agreement, report on it to the Secretary of State and the Executive Office, advise on measures to implement it and on whether a Bill is compatible with it, and promote understanding of it (s.78B). The Northern Ireland Human Rights Commission or the Equality Commission may bring judicial review proceedings in respect of an alleged breach (or potential future breach) of Article 2(1), and may intervene in legal proceedings so far as they relate to one; this does not create a cause of action (s.78C). Either Commission may assist a person in proceedings about an alleged breach on the grounds that the case raises a question of principle, that it would be unreasonable to expect the person to deal with it unaided, or other special circumstances (s.78D). The two Commissions may arrange for these functions to be carried out by one on behalf of the other or jointly (s.78E).
• SDO(NI) art. 54(1) — The Commission's duties under the Sex Discrimination Order : The Commission has the duties to work towards the elimination of discrimination; to work towards the elimination of harassment that is contrary to any of the provisions of the Order; to promote equality of opportunity between men and women generally; to promote equality of opportunity for persons who intend to undergo, are undergoing or have undergone gender reassignment; and to keep under review the working of the Order and the Equal Pay Act (Northern Ireland) 1970 and submit proposals for amending them to the Department for Communities (art. 54(1)(a), (aa), (b), (bb) and (c)).
• SDO(NI) art. 56A — Codes of practice in the employment field : The Commission may issue codes of practice containing practical guidance for the elimination of discrimination and of harassment contrary to the Order in the field of employment, the promotion of equality of opportunity in that field between men and women, and the promotion of equality of opportunity in that field for persons who intend to undergo, are undergoing or have undergone gender reassignment (art. 56A(1)). A code may include guidance on the steps it is reasonably practicable for employers to take to prevent employees from doing unlawful acts (art. 56A(2)). The Commission must publish a draft, consider representations and consult representative organisations, and a draft it proceeds with is transmitted to the Department, which lays it before the Assembly if it approves it (art. 56A(3) to (5)).
• SDO(NI) arts 57 and 75 — Formal investigations and assistance to individuals : The Commission may, and if required by the Department shall, conduct a formal investigation for any purpose connected with its duties under art. 54(1) (art. 57(1)). Where an actual or prospective complainant or claimant applies for assistance in proceedings under the Order, the Commission must consider the application and may grant it on the ground that the case raises a question of principle, that it is unreasonable to expect the applicant to deal with the case unaided, or by reason of any other special consideration (art. 75(1)).

When relevant

Relevant when a question about trans inclusion in Northern Ireland turns on the role of the Equality Commission for Northern Ireland: who enforces the Sex Discrimination (Northern Ireland) Order 1976 (SDO-NI-1976), whether a public authority's policy must be assessed under its equality scheme, how a person can complain about an authority's failure to follow that scheme, or who can help a complainant. The section 75 duty applies to public authorities as defined in s.75(3), not to private employers or service providers, and its list of groups in s.75(1) does not name gender reassignment. A complaint under Schedule 9 paragraph 10 is open to a person who claims to have been directly affected by the failure. Assistance under SDO(NI) art. 75 is open to actual or prospective complainants and claimants under the Order. The record is drawn from the statutes only; the Commission's own guidance is not held, because its website states no reuse licence. The Fair Employment and Treatment (Northern Ireland) Order 1998 and the other Northern Ireland equality instruments the Commission also enforces are not held by the toolkit. Decision support, not legal advice.