Northern Ireland Consultation on the Review of the Race Relations (NI) Order 1997
NORTHERN IRELAND CONSULTATION ON THE REVIEW OF THE RACE RELATIONS (NI) ORDER 1997
Northern Ireland (NI) Equality laws lag well behind our counterparts in both Great Britain (GB) and the Republic of Ireland (ROI).
And despite the lack of functioning Executive, on 27 March 2023 the Executive Office launched the 12 week public consultation on the review of the Race Relation Order which can be viewed here: Review of the Race Relations (NI) Order 1997 Consultation Document
The Consultation forms part of Executive’s 10-year strategy (running from 2015 to 2025 so entering its last few years) to review and revamp the laws and bring them into line GB and Ireland or advance them to help future-proof them.
The Consultation examines the differences between the three jurisdictions and compares the laws in those jurisdictions to those currently in place in NI laws. These laws are in the main:
- In Northern Ireland – Race Relations Order 1997;
- In Great Britain – Equality Act 2010;
- In Ireland – in the main Employment Equality Acts 1998–2015.
It considers areas including:
- Provision of Goods, Facilities, Services & Premises,
- Role & Powers of Equality Commission for Northern Ireland (ECNI)
Some key points of the Consultation includes consideration of:
- Widening the definition of racial harassment from ‘on the grounds of race’ to lower threshold of ‘related to race.’ (If adopted, this would align NI to the position set out in GB Equality Act.)
- Consider if other categories should be protected recognising legal concept and definition of employee is difficult to understand.
- Questioning if when relying on the exception on grounds of a Genuine Occupation Qualification, there should be an additional requirement of establishing a legitimate aim which is the test in GB.
- Making employers liable if they fail to take reasonably practicable steps to prevent Third Party Harassment. (NB: this was brought in under Equality Act in 2010 in GB and subsequently repealed in 2013. The Consultation notes that it will examine the reasons for bringing it in and subsequently repealing it.)
- The Consultation looks at personal liability for unlawful acts. The consultation states that currently if employee discriminates when doing their job both employee and employer are responsible. If the laws change, it would mean employee should take responsibility unless it was employer who told them to do it.
- Allowing Equality Commission Northern Ireland to bring cases in their own name (i.e. ECNI name) rather than through supporting an individual. This would be a significant step as it would allow the ECNI to pursue a case when there was no individual named.
- The Consultation proposes to remove some of the current powers of the ECNI albeit these are ones that do not appear to be regularly used and increasing ECNI’s powers in other areas. For example, one proposal is to give ECNI the power to conduct formal investigations not on grounds of a test of ‘belief of unlawful acts’ but on grounds of a test that ‘things could be improved.’
- Under Enforcement, the Consultation considers increasing Tribunal powers to make Recommendations that benefit whole workforce and not limited to recommendations that only benefit the person named in the complaint.(NB: the same provision was introduced and then repealed in GB). Also introducing effective sanctions for non-compliance with Tribunal Recommendations and considers options for increased powers to ECNI.
- Presently the test referred to as the ‘reverse burden of proof test’ is used for some but not all claims. The Consultation proposes removing that anomaly and making the consistent test for all claims.
- Views are sought on whether the Statutory Questionnaire should be retained or abolished; it has been abolished in GB. This is the questionnaire sent by persons seeking more information usually before a claim is commenced or 21 days after the Tribunal claim has been lodged.
- Introducing Ethnic Equality Monitoring which they initially propose rolling out for the public sector before moving to private sector. This is timely as on 17 April 2023, in GB the Government published Guidance for employers on how to measure, report on and address any ethnicity pay differences within their workforce.
- Considering the inclusion of ‘descent and caste’ in the definition of race so as to allow their protection without having first to shoe horne them into the current aspects of race.
The Consultation closes on 18 June 2023 and states feedback will be provided to a new Minister, if and when the Executive gets back up and running. We could foresee that any changes adopted to this strand of discrimination could eventually be applied across other protected ground as it would make the area of discrimination more consistent across all strands.
We will write separately setting out the questions asked seeking Members comments and thoughts. All comments are very welcome, and we strongly encourage any member with comments to email them to us as they are invaluable in forming part of our response.