Currently, protection in Northern Ireland against racial discrimination by public authorities when exercising public functions is limited to four areas; namely, social security, health care, social protection or social advantage.
The legislation was limited to these four areas to reflect the scope of the Race Directive which prohibited discrimination by public bodies in the areas of social protection, including social security and healthcare, and social advantage. This means that individuals who consider that they have been subjected to less favourable treatment, including harassment, on racial grounds by a public body carrying out public functions, do not have protection under the race equality legislation if the public function in question falls outside one of these four areas.
‘Public functions’ cover a wide range of functions including arrests, detention and restraint by the police, the charging and prosecution of alleged offenders, the regulatory and law enforcement functions of bodies such as HM Revenue and Customs, the formulating or carrying out of public policy (such as devising policies and priorities in health, education or transport), planning control, licensing and investigation of complaints.
In terms of what constitutes a public function, it is important to note that public functions are not only carried out by public bodies but may also be carried out by private or voluntary organisations; for example, a private company managing a prison or a voluntary organisation taking on responsibilities for child protection.
Many activities carried out by public bodies will amount to the provision of goods, facilities and services to the public; for example, the provision of library or leisure services.
In those circumstances, the provisions under the race equality legislation relating to the provision of goods, facilities and services will apply. Such activities will therefore not be covered by the provisions relating to the exercise of public functions.
In general, the public functions provisions apply in relation to a function of a public nature exercised by a public authority or on behalf of a public authority, and where the function is not covered by the other provisions in the race equality legislation; for example, the provisions relating to accessing goods and services, premises, work or education.
Cases brought before the courts in Great Britain revealed gaps in protection under the equality legislation; as well as highlighting that it was not always clear whether an act of a public body was a service to the public or constituted carrying out a public function.
For example, police duties involving the provision of assistance to, or protection of, members of the public were deemed to be providing services to the public; whereas police duties relating to controlling those responsible for crime were considered not to be covered by the provisions relating to goods and services under the race equality legislation. Further, the application of immigration controls was considered not to be covered by the provisions in the race equality legislation relating to the provision of goods and services.
Rationale for change
This change will help to clarify, strengthen, harmonise and simplify the legislation. Our recommendation is also in line with changes implemented in Great Britain, already taken place under the disability equality legislation in Northern Ireland and with the recommendations of international human rights monitoring bodies.
In particular, a number of steps have been taken in Great Britain as regards the race equality legislation in this area in order to strengthen, harmonise and clarify the legislation, address gaps in protection and ensure legal uncertainty.
For example, in Great Britain the race equality legislation was strengthened and clarified in 2000, following the outcome of the Macpherson report into the police investigation of the murder of Stephen Lawrence. These changes to the law meant that, for the first time, the police and many other public bodies could not discriminate on racial grounds when carrying out their public functions.
In addition, the race and other equality legislation was harmonised and strengthened in this area following the enactment of the Equality Act 2010 in Great Britain. In particular, public bodies were prohibited from discriminating when carrying out public functions across all racial grounds and as regards all functions; except in some clearly defined limited areas.
Whilst the race equality law in Northern Ireland was strengthened in 2003, the provisions prohibiting racial discrimination by public authorities when exercising public functions were, in contrast to the current position in Great Britain, limited to four areas; namely, social security, health care, social protection or social advantage.
We are of the view that there is the potential for some public functions, such as certain policing and law enforcement functions, including search and arrest functions, to fall outside the scope of the racial equality legislation in Northern Ireland. These activities would not be covered by the provisions relating to goods and services in the race equality legislation.
Further, the extension of the race legislation to all public functions, unless specifically falling within an exception, will ensure clarity both for those with rights under the legislation and those public bodies with responsibilities under the law.
The potential for legal uncertainty in this area was recognised by OFMDFM in its consultation on a Single Equality Bill for Northern Ireland in 2004. In particular, it indicated that “if the Race Directive approach is taken, there will nevertheless be room for dispute and technical distinctions on the question of whether a function falls within the definition of social security, social protection, social advantage or healthcare.”
Our recommendation is not only in line changes implemented in Great Britain, but also with changes that have already taken place under the disability equality legislation, and with the recommendations of international human rights monitoring bodies.
For example, this limitation to four areas does not exist under the disability legislation in Northern Ireland. In particular, public authorities are prohibited from discriminating on the grounds of disability when carrying out public functions across all their functions; except in some clearly defined limited areas.
Further, our recommendation is in line with the recommendations of the Advisory Committee on the Framework Convention for the Protection of National Minorities. In particular, the Committee in its Second Opinion on the UK in 2007, urged authorities ‘to introduce a more extensive prohibition of discrimination in Northern Ireland’s race equality legislation in relation to public functions.’
Finally, as set out in more detail above , we recommend that protection against discrimination or harassment by public bodies when exercising their public functions should apply to all racial grounds; currently protection only exists on the grounds of race, ethnic or national origins and not on the grounds of colour or nationality.