Equality
by Christopher McCrudden
We describe first what happens in the former case. On receipt of the scheme the Commission shall approve it, or refer it to the Secretary of State. Where the Commission refers the scheme to the Secretary of State, the Commission is required to notify the Northern Ireland Assembly in writing that it has done so and send the Assembly a copy of the scheme. Where a scheme is referred to the Secretary of State he or she has three options: to approve it, to request the public authority to make a revised scheme, or to make a scheme for the public authority. Where the Secretary of State requests a revised scheme, or makes a scheme himself or herself, he or she shall notify the Assembly in writing. Where the Secretary of State has made a scheme for the public authority, he or she is required also to send the Assembly a copy of the scheme.
Certain of these provisions do not apply in the case of United Kingdom-wide departments. On receipt of a scheme submitted by a UK government department the Commission shall approve it, or itself request a department to make a revised scheme. Where such a request is made, the government department shall, if it does not submit a revised scheme to the Commission in the time provided, send to the Commission a written statement of the reasons for not doing so. The provisions relating to the notification of the Assembly do not apply. Nor do the provisions empowering the Secretary of State to make schemes for the public body directly. These provisions are intended to "avoid a situation where the Secretary of State much reach a decision or issue a direction in a case involving her Department or that of a Cabinet colleague".3
If the Commission receives a complaint, made in accordance with certain formalities of failure by a public authority to comply with an equality scheme approved by the Commission or made by the Secretary of State, it is required to investigate the complaint, or give the complainant reasons for not investigating. The formalities with which complaints must comply are that the complaint must be made in writing by a person who claims to have been directly affected by the failure. A complaint must also be sent to the Commission during the period of 12 months starting with the day on which the complainant first knew of the matters alleged. Before making a complaint the complainant must bring the complaint to the notice of the public authority, and give the public authority a reasonable opportunity to respond.
In addition to investigating on the basis of a compliant, however, it appears that the Equality Commission itself has power to carry out an investigation into the compliance by the public authority with an equality scheme without having received a valid complaint. Although there is room for doubt, the power to carry out such an investigation appears to be derived from the Equality Commission's general duty to keep under review the effectiveness of the duties imposed by section 75. Paragraph 11 of the Schedule, in addition, provided explicitly for the same conditions to be applied to investigations which arise from complaints as investigations which are "carried out by the Commission where it believes that a public authority may have failed to comply with a scheme".
What happens to the results of these investigations depends on the type
of public authority involved. Again, a distinction is drawn between Northern
Ireland and United Kingdom-wide public bodies. In the case of the former,
the Commission is required to send a report of both types of investigation
to the public authority concerned, the Secretary of State, the Assembly,
and the complainant. If a report recommends action by the public authority
concerned and the Commission considers that the action is not taken within
a reasonable time, the Commission may refer the matter to the Secretary
of State. Where a matter is referred to the Secretary of State, the Secretary
of State may give directions to the public authority in respect of any matter
referred to him. Where the Commission refers a matter to the Secretary of
Stare it shall also notify the Assembly in writing that it has done so.
Where the Secretary of State gives directions to a public authority, he
or she shall notify the Assembly in writing that he or she has done so.
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