CODES IN A COLD CLIMATE: ADMINISTRATIVE RULE‐MAKING BY THE COMMISSION FOR RACIAL EQUALITY
| DOI | http://doi.org/10.1111/j.1468-2230.1988.tb01765.x |
| Author | Christopher McCrudden |
| Date | 01 July 1988 |
| Published date | 01 July 1988 |
THE
MODERN LAW REVIEW
Volume
51
JULY
1988
No.
4
CODES IN
A
COLD CLIMATE:
COMMISSION FOR RACIAL EQUALITY
ADMINISTRATIVE RULE-MAKING
BY
THE
I
INTRODUCTION
THE
term “administrative rule-making’’ is not one that trips
off
the
tongues of British lawyers with the degree
of
facility with which it
would those of American administrative lawyers. Other narrower
terms tend to predominate in Britain. The most common is
“delegated legislation.” This is used most often to describe rule-
making which is delegated to Ministers (or their central government
departments) by express parliamentary authority in an enabling
statute. Delegated legislation in this sense is normally subject to
some form of parliamentary scrutiny. This form of rule-making is
thus the closest to primary legislation known in Britain. Such rules
are usually as legally binding as primary parliamentary legislation.
It was delegated legislation which, until recently, was considered
most in what little research has been conducted on rule making in
Britain.’
At least since the early
1980s,
however, academic researchers
(and some political interests’) have become as, if not more,
concerned with forms of rule-making other than delegated legislation
of this rather narrow type. In particular, there has been lively
interest in the expanded use in British government of rules which
are not promulgated by central or local government departments,
or are not fully legally binding, or emerge from a process which
does not have as close a relationship to Parliament as do statutory
rules.3 In particular, interest has increased in rule-making by
’
On the history
of
rules and delegated legislation, see C.
K.
Allen,
Law and Orders
(3rd.
ed. 1965). See also Beatson, “Legislative Control
of
Administrative Rulemaking:
Lessons
for
the British Experience?”, 12 Cornell Int’l L.J. 199 (1979); Beatson, “A
British View
of
Vermont Yankee” (1981)
55
Tulane L.R.
435
and Asimow, “Delegated
Le ‘slation: United States and United Kingdom”,
3
0x.J.Leg.Stud. 253 (1983).
‘See,
e.g.
Social Democratic Party, Open Forum Paper
3,
Controlling the State:
Towards Fairer Administration,
pp. 19-20.
See esp. Baldwin and Houghton, “Circular Arguments: The Status and Legitimacy
of
Administrative Rules”
[
19861 P.L. 239 (hereafter “Baldwin and Houghton”); and Ganz,
Quasi-Legislation: Recent Developments in Secondnry Legislation
(1987).
409
410
THE MODERN LAW REVIEW
[Vol.
51
regulatory agencies and other non-departmental public bodie~,~
and in the promulgation of rules which have only quasi-legal force
by central and local government. Thus rule-making as such, rather
than merely delegated legislation, has become a focus of attention.
“Codes of practice” made under statutory authority have in
particular become the subject
of
interest.’ One area in which they
have long had a role is in the area of labour law. There have been
three phases of administrative rule-making activity in this area. The
first phase consisted of the introduction of the first code
of
practice
relating to employment practices by the Department of Employment
under powers conferred by the Industrial Relations Act
1971
,6
coming into effect in February
1972.
When the
1971
Act was
repealed the Code was retained in force.’ The second phase began
in
1974
and lasted until
1976.
It differed from the first in granting
code-making powers to a number of regulatory agencies rather
than the Department. The Health and Safety at Work etc. Act
1974
gave power to issue codes to the Health and Safety
Commission.6 The Employment Protection Act
19759
gave the
Advisory Conciliation and Arbitration Service (A.C.A.S.) power
to issue codes to give practical guidance for promoting good
industrial relations in accordance with certain general principles,
such as freely conducted collective bargaining and orderly
procedures for settling disputes.
lo
A third phase of activity began
in
1980
when section
3
of the Employment Act
19801’
conferred a
code-making power not on a regulatory agency but firmly upon the
Secretary of State. Two such Codes have been issued: the Code on
Picketing
(1980),
and the Code on Closed Shop Agreements and
Arrangements
(1983).
An important aspect of the new arrangements
under the
1980
Act is that a Secretary of State’s Code may
supersede the whole or part of an A.C.A.S. Code.I2
The granting of code-making powers to the Equal Opportunities
Commission (E.O.C.) and the Commission for Racial Equality
‘See R. Baldwin and C. McCrudden, Regulation and Public Law (1987), passim
(hereafter “Regulation”).
’
See, e.g. the House
of
Lords debate on Codes
of
Practice, H.L.Deb. Vol. 469, cols.
1075-1104 (January 15, 1986).
’
First by the Trade Union and Labour Relations Act 1974,
s.l(Z)(a),
and subsequently
by
the Employment Protection Act
1975,
Sched. 17, para. 4.
s.16. Two have been issued in 1978, one on Safety Represenfafives and Safea
Committees (1978), and one in Time-off
for
the Training of Safety Represenfafives (1978).
See Baldwin, in Regulation, pp.142-148.
lo
Three Codes have been issued: Disciplinary Practice and Procedures in Employment
(1977), Disclosure of Information to Trade Unions for Collective Bargaining Purposes
(1977) and Time
Off
for Trade Union Duties and Activities (1978). See Dickens, in
Regulation, pp.118-21 and Freedland (1976)
5
I.L.J. 257 and (1977) 6 I.L.J. 121. A
further draft A.C.A.S. Code has been rejected, see I.R.L.I.B.
No.
323, February 17,
197:. s.3.
s.3(7), see Bercusson, “Picketing, Secondary Picketing and Secondary Action”
(1980)
9
I.L.J.
211 and Lewis (1981)
44
M.L.R. 198.
Industrial Relations Act 1971, ss.2-4.
s.6.
JULY
19881
CODES IN A COLD CLIMATE
411
(C.R.E.) fits, though rather uneasily as we shall see, into the
second phase of labour law codes of practice. This article considers
three main sets of issues relating specifically to the C.R.E. Code of
Practice.
First, the British political and legal system has still to come to
terms with agencies such as the C.R.E., and is relatively unfamiliar
with administrative rule-making powers being given to such bodies.
What degree of scrutiny and control of the exercise
of
these
powers is forthcoming, does this lead to reticence in the way the
agency uses these powers, and what effect do these conditions have
on the content of the Code?
Second, the C.R.E. Code has, hitherto, been given relatively
little attention by lawyers. In
West Midlands Passenger Transport
Executive
v.
Singh,
l3
however, the Employment Appeal Tribunal
(E.A.T.) and the Court of Appeal overturned a previous precedent
and accepted the probative value of statistical evidence in cases
where allegations
of
direct discrimination were in issue. The
decision is noteworthy for that element in the decision alone, but
the aspect
of
the case which is particularly relevant for this article
is the E.A.T.’s reliance on the C.R.E. Code of Practice to buttress
its decision. Was the E.A.T. justified in according legitimacy to the
C.R.E. Code on the question
of
monitoring in the way that it did?
Third, the C.R.E. and the E.O.C. have both advocated an
enhanced role for Codes of Practice in future. Both Commissions
have proposed that their powers to issue employment codes should
be extended to cover the provision of goods, facilities and services.14
Similar proposals have recently been considered by Parliament.
l5
In addition, the most recent government proposals to further
equality of opportunity between Catholics and Protestants in
employment in Northern Ireland indicate that an enhanced role for
Codes of Practice may be provided in forthcoming legislation in
that sphere. These proposals, as outlined at the end of May 1988,16
provide that employers in Northern Ireland will be required to
refrain from discriminating directly or indirectly and to practice
equality of opportunity. Employers will be enabled to undertake
l3
[1987] I.R.L.R. 351 (E.A.T.). The Court of Appeal decision is reported at [1988]
I.R.L.R.
186.
The latter upholds the E.A.T.3 discussion
of
the role
of
the Code
of
Practice in this respect, though without extended discussion.
l4
C.R.E.,
Review
of
the Race Relations Act
1987:
Proposals
for
Change
(1985), para.
4.1.3; E.O.C.,
Equal
Treatment
for
Men and Women: Strengthening the Acts
(March,
1988), para. 4.36.
During
debates on the Education Reform Bill 1988 and the Housing Bill 1988,
unsuccessful amendments were proposed which would have extended the C.R.E.’s code-
making powers into the areas
of
eduction and housing respectively. See New Clause 21,
Education Reform Bill, Standing Committee
.I,
March 8, 1988, cols. 2158-2166, and New
Clause
35,
Housing Bill Standing Committee
G,
March 15, 1988. Explicit powers
for
the
European Commission to issue a Code
of
Practice on sexual harassment have also been
advocated by Mr. Rubenstein,
The Digniry
of
Women at Work: A Report on the Problem
of
Sexual Harmsment in the Member Stares
of
the European Communities,
V141UlI87-EN
def. Oct. 1987, Chap.
7.
l6
White Paper,
Fair Employment in Northern Ireland,
Cm 380 (May, 1988).
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