LAW ENFORCEMENT BY REGULATORY AGENCY: THE CASE OF EMPLOYMENT DISCRIMINATION IN NORTHERN IRELAND1
| Published date | 01 November 1982 |
| Author | Christopher McCrudden |
| Date | 01 November 1982 |
| DOI | http://doi.org/10.1111/j.1468-2230.1982.tb02496.x |
THE
MODERN
LAW
REVIEW
Volume
45
November
1982
No.
6
LAW
ENFORCEMENT BY REGULATORY
AGENCY: THE
CASE
OF EMPLOYMENT
DISCRIMINATION IN NORTHERN IRELAND
REGULATORY
agencies are relatively new plants in the United
Kingdom’s administrative and political pro~ess.~ Despite (or perhaps
because
of)
their recent origins, they are a threatened, if not endan-
gered, species. Yet relatively little independent research has been
completed into fairly basic questions relevant for deciding on their
sur~ival.~ This article
will
examine the operation
of
one such body
:
the Fair Employment Agency of Northern Ireland (F.E.A.), set up in
1976 under the Fair Employment (Northern Ireland) Act 1976.
I
shall
examine the experience of the Agency’s attempts, between its establish-
ment and the end of 1981, to identify and eradicate religious and
political discrimination in employment, and to reduce inequality
of
1
This is
a
substantially revised version
of
a
paper presented at a seminar at the
New University of Ulster
in
June 1981.
1
am grateful to participants and
to
Richard
Markovits and Joe
O’Hara
for
helpful comments, and to the Fair Employment
Agency
for
assistance. The Agency is not responsible,
of
course,
for
opinions
expressed. This article will appear in
a
shortened version in R.
D.
Osborne and
R.
J.
Cormack (eds.),
Religion, Education
and
Enxployment
fn
Northern
Ireland
(forthcoming).
2
I
adopt R.
E.
Cushman’s classification
of
powers common
to
American regulatory
agencies
as
a
working definition of “regulatory agency”
for
the purpose
of
this
article:
a
quasi-judicial power, often in
the
form
of
a
power
to
issue injunction type
orders;
a
quasi-legislative power to issue rules and regulations;
a
broad adminis-
trative
or
managerial power
to
conduct
or
closely direct the conduct of business
operations;
an
enforcement
power;
and investigative and planning powers,
e.g.
to
research problems and recommend new legislation.
The
Independent
Regitlalory
Commissions
(NY,
OUP, 1941), pp. 5-10.
3
I
refer, of course, to the growth of these bodies from the mid-20th century. The
19th century saw ,fonsiderable use
of
such bodies but
also
their eventual demise.
See,
e.g.
Willson, Ministers
and
Boards: Some Aspects
of
Administrative Develop
ment Since 1832
”
(1954)
32
Public
AdnMstrurion
43.
4
The S.S.R.C. Socio-Legal Research Unit’s Regulation Project
is
currently engaged
in
a
major research study.
In
the United States, such research is widespread. See,
most recently,
E.
Bardach and R.
A.
Kagan,
Going
by
the
Book
(Philadelphia,
Temple University
Press,
1982) and the literature cited there.
5
Examples
of
other U.K. bodies which exercise
or
have exercised many of the
powers included in the above definition
of
regulatory agency (note 1) are: the
Independent Broadcasting Authority, the Civil Aviation Authority, the Director
General
of
Fair Trading, the Equal Opportunities Commission, the Commission
for
Racial Equality, the Price Commission, the Race Relations Board, and the Supple-
mentary Benefits Commission. See
G.
R. Baldwin,
‘‘
Regulation by Agency: The Fall
and Rise
of
Government at Arm’s Length” (unpublished paper, 1982).
617
VOL.
45
(6)
1
618
THE
MODERN
LAW
REVIEW
[Vol.
45
employment opportunity between the two religious communities-its
two major functions. It
is
a
depressing picture.
THE
STRUCTURE
OF
THE
LEGISLATION
Discrimination
in
employment on the grounds of religious belief or
political opinion is made unlawful in Part
111
of
the Act." In addition
the Act makes unlawful any victimisation of persons concerned in
proceedings under the Act,' the publication of discriminatory advertise-
ments,8 or aiding, inciting, procuring
or
inducing another person to
commit an act of unlawful dis~rimination.~ The Agency is to receive
discrimination complaints and investigate them.1°
If
it decides that
there has been unlawful discrimination it is to attempt to conciliate
but
if
unsuccessful it is able to issue recommendations to the employer
or other respondent."
If
these are not complied with the Agency may
take action, on behalf
of
the complainant, in the county This
court has power to award damages
or
issue an injunction, or both.13
The
ways
in which equality of opportunity is to be promoted are
set out in Part
I1
of
the Act. As required by the Act,
a
Guide to
Manpower Policy and Practice has been issued by the Northern
Ireland Department
of
Manpower Servi~es.'~ The F.E.A., also as
required by the Act, has encouraged employers and other bodies
to subscribe to
a
Declaration of commitment to the principle
of
equality of opportunity.16 Potentially much more important, how-
ever, are the powers of investigation given to the Agency.'" Where
the Agency
is
of the opinion, following an investigation, that the
person concerned has failed to afford equality of opportunity, either
generally or in relation to any class of person, the Agency
is
required
to use its best endeavours to ensure that he takes such action for pro-
moting equality of opportunity as
is
in all the circumstances reasonable
and appropriate and to secure a satisfactory written undertaking by
him that such action will be taken.I7 Where the Agency is unsuccess-
ful in this
"
conciliation stage
"
because the undertaking is not given,
the Agency is required to serve on the person concerned
a
notice
containing directions.
If
an understanding has been given but not
complied with, the Agency is required either to serve on him a notice
containing directions which then supersedes the undertaking or to make
an application to the county court.ls In such notices the Agency may
6
Fair Employment
(Northern
Ireland)
Act
1976 (F.E.A. 1976),
ss.
16-23.
7
F.E.A. 1976,
s.
16
(3)
and
(4).
8
F.E.A. 1976,
s.
33.
9
F.E.A. 1976,
s.
34.
10
P.E.A. 1976,
s.
24.
11
F.E.A. 1976,
ss.
25
and
26.
12
F.E.A. 1976,
s.
30.
13
F.E.A. 1976,
s.
31.
14
F.E.A. 1976,
s.
5.
Northern Ireland
Department
of
Manpower Services,
Guide
15
F.E.A. 1976,
s.
6.
16
F.E.A. 1976,
s.
12.
For
further
djscussion
of
these powers,
see
irifra,
pp.
625-626.
17
F.E.A. 1976,
s.
13
(1).
18
F.E.A. 1976,
s.
13 (2).
to
Manpower Policy arid Practices (Belfast,
HMSO,
1978).
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