Balancing act

Under the Northern Ireland Act 1998, public authorities have a duty to promote equality. Hilary Griffith considers the impact on public authorities undertaking PFI projects

Public authority obligations

Section 75 and Schedule 9 of the Northern Ireland Act 1998 place a statutory obligation on public authorities to carry out their functions relating to Northern Ireland with due regard to the need to promote equality of opportunity between:

  • Persons of different religious belief, political opinion, racial group, age, marital status or sexual orientation.
  • Men and women generally.
  • Persons with a disability and persons without.
  • Persons with dependents and persons without.

Public authorities must also have regard to the desirability of promoting good relations between persons of different religious beliefs, political opinions or racial groups. The legislation applies to public authorities which cover Northern Ireland departments, most non-departmental public bodies, district councils and other bodies, including UK departments designated by the Secretary of State.

The statutory duties
Schedule 9 sets out a detailed procedure for enforcement of the statutory duties. In brief, each public authority is required to produce an equality scheme stating how it proposes to fulfil the duties. This must be submitted to the Equality Commission (the Commission) for approval. The public authority must conduct a review of the scheme within five years of the submission of the scheme to the Commission.

The legislation requires public authorities to conduct equality impact assessments (EQIAs). The results of EQIAs must be published and the equality scheme must state the authority’s arrangements for this.

The legislation also requires consultation. Consultation must be both meaningful and inclusive, in that all persons likely to be affected by a policy should have the opportunity to engage with the public authority.

Initial considerations
The equality legislation in Northern Ireland is extremely far-reaching and is considered to be one of the most restrictive equality regimes in the world. As such, it is something that any public authority embarking on a PFI or PPP project should consider at the earliest stage possible.

Although the legislation applies only to the public sector, a public authority must ensure that any contractor performs the services under any PFI or PPP project in such a way as to ensure the public authority complies with its statutory obligations. Public authorities are required to ‘screen’ policies to identify whether they will have a ‘significant impact’ in terms of equality of opportunity and good relations and establish whether a full EQIA is required. It is advisable that all public authorities carry out this equality screening as early as possible in the process. If, as a result of the screening, the authority considers there to be equality issues involved in any PFI or PPP project, a full EQIA will need to be undertaken. The timetable for this is imprecise, but can take months.

There is a possibility that the nature and scope of any PFI or PPP project can change as a result of equality screening undertaken by an authority and any subsequent EQIA, and therefore it is advisable for any public authority to carry out these procedures prior to putting the project out to tender. Otherwise, any changes to the project which have to be implemented may result in the authority being forced to carry out the procurement process again if the changes to the project are significant.

Schedule 9 allows for complaints to be made to the Commission about a public authority’s failure to comply with the approved scheme. For example, a particular section of the community may feel that a particular project does not allow them equality of opportunity in, say, the provision of health or education services. The complaints must be made in writing by a person who claims to have been directly affected by the failure within a period of 12 months from when the complainant knew of the matters alleged. Before making a complaint, the complainant must bring the complaint to the notice of the public authority and give it a reasonable opportunity to respond. The Commission can also conduct its own investigation even if there is no complaint. It is essential, therefore, that an authority completes its screening process as soon as possible, thereby reducing the possibility of any challenge to a project on the grounds of equality.

Monitoring obligations
Any equality scheme submitted by a public authority under Section 9 must specify how an authority will monitor any adverse impact of policies. In relation to monitoring, public authorities will need to identify their information needs and the level of capability of existing information gathering and monitoring systems to measure and monitor adverse impact.

In the context of PFI and PPP, public authorities must consider what contractual obligations need to be placed on contractors to enable the public authority to comply with its monitoring obligations under Schedule 9. Public authorities intent on inserting detailed contractual provisions into the project agreement need to bear in mind that private contractors may not be as familiar with the operation of Section 75 and Schedule 9 as those in the public sector.

The contractor should be required by an authority to have an equal opportunities policy in relation to its employment practices and in relation to the provision of goods and services. Authorities should consider imposing an obligation on a contractor to maintain a database of all equality issues raised or complaints made, whether in the employment or service areas, in order for the authority to monitor and assess the equality impact of any given project.

Finally, it will be necessary for a public authority to consider how it deals with any modifications that may need to be made regarding the provision of services if its assessment identifies any equality issues; it will consider how the cost of implementing changes will be assessed and who should bear it. For their part, contractors and funders may wish to ensure that they do not bear the financial risk of changes which arise due to a failure by the awarding authority to discharge its obligations under Section 75.

The duties imposed on public authorities by Section 75 and Schedule 9 are stringent. In the context of PFI and PPP, these duties can present particular difficulties where public authorities are engaging with contractors in the private sector. The clear message for public authorities is to consider these issues as early as possible in the process, allocate the necessary resources for implementation and establish an effective system for monitoring and review. In this way, the risk of delay or challenge to PFI/PPP projects can be minimised.

Hilary Griffith is an associate specialising in corporate, commercial and employment law at L’Estrange & Brett