Equality
by Christopher McCrudden
From Human Rights, Equality and Democratic Renewal In Northern Ireland edited by Colin Harvey
Hart Publishing 2001
Developing an anti-discrimination agenda in Northern Ireland
The Northern Ireland civil rights campaign of the 1960s focused on the need to eradicate discrimination between Catholics and Protestants.1 This movement led to some action by the then Northern Ireland government, but anti-discrimination legislation as such began after the Northern Ireland government was suspended in 1972 and "direct rule" was introduced. The Northern Ireland Constitution Act 1973 made it unlawful for a public authority carrying out functions relating to Northern Ireland to discriminate, or to aid or incite another person to discriminate, against a person or class of person on the ground of religious belief or political opinion. Two features of the Act's approach are important. First, it protected from discrimination only in the religio-political context. Second, it protected only from direct discrimination, that is (to put it somewhat over-simplistically) discrimination which arises from an intentional act. There was, as a consequence, little litigation under these provisions.
The second major development in anti-discrimination legislation was in the area of employment. A government committee (the van Straubenzee committee) considered the question of discrimination in the private sector of employment in 1973 and produced a penetrating report.2 The Fair Employment Act 1976 partially implemented this report, and addressed also employment in the public sector. A Fair Employment Agency was established to enforce the legislation in 1977. However, the legislation had little effect on employers' practices. Research carried out by the Policy Studies Institute in 1987 showed that the vast majority of employers believed that the Act had made little, if any, impact on their behaviour.3 The research also confirmed the extent of the economic inequality between the two communities in Northern Ireland. According to the PSI study, for example, Catholic male unemployment, then at 35 per cent, was two and a half times that of Protestant male unemployment, and continued at this level despite there being over 100,000 job changes a year.
From the mid-1980s, inequality of opportunity between Catholics and Protestants again became a key political issue, largely due to pressure from outside Northern Ireland. A campaign was begun in the United States to bring pressure to bear on American corporations, state legislatures and municipal governments with investments in Northern Ireland to adopt a tougher set of anti-discrimination principles (called the "MacBride Principles") and sought to encourage employers to engage in affirmative action.4 The MacBride campaign met with opposition from the British government, but proved popular with American state and city legislators. A number of states enacted legislation requiring US companies in which they invested to ensure fair employment practices in their Northern Ireland subsidiaries. This US campaign began to fill, however partially and inadequately, the vacuum caused by the failure of institutions in Northern Ireland to address the issue adequately.
Partly in response, in 1986 the Northern Ireland Department of Economic
Development proposed new legislation that offered hope of a more robust
approach, but the proposals, emphasising voluntary compliance, fell short
of what was likely to be effective.5 In October 1987 the Standing Advisory
Commission on Human Rights (SACHR) published a major report providing a
comprehensive and authoritative analysis of the problem and a detailed set
of proposals for legislation and other government initiatives.6 Crucially
the report shifted the terms of the debate from the eradication of prejudiced
discrimination to the reduction of unjustified structural inequality in
the employment market, whether caused by discrimination or not. In December
1988 the government responded by publishing new legislation. After significant
amendments this was passed in July 1989.7 The new Fair Employment Act 1989
marked a departure from existing approaches, emphasising compulsory rather
than voluntary compliance, giving broader powers to the enforcement agency
(the Fair Employment Commission), and requiring limited affirmative action
and compulsory monitoring. The Act adopted many, but by no means all of
the SACHR Report's Recommendations. |
