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Statutory Instruments 1998 No. 3162 (N.I. 21)
The Fair Employment and Treatment (Northern Ireland) Order 1998 - continued

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Proceedings against the Crown
     92. The provisions of Parts II to IV of the Crown Proceedings Act 1947 shall apply to proceedings against the Crown under this Order as they apply to proceedings in Northern Ireland which by virtue of section 23 of that Act are treated for the purposes of Part II of that Act as civil proceedings by or against the Crown, except that - 

    (a) section 20 of that Act (removal of proceedings from county court to High Court) shall not apply; and

    (b) section 28 of that Act (discovery) shall have effect subject to Article 93(3).

Disclosure of information by Crown for purposes of investigation or proceedings
     93.  - (1) Subject to paragraph (3), any obligation to maintain secrecy or other restriction upon the disclosure of information obtained by or furnished to persons in the service of the Crown, whether imposed by any statutory provision or by any rule of law, shall not apply to the disclosure of information for the purposes of any investigation, appeal or proceedings under this Order; and the Crown shall not be entitled in relation to any such investigation, appeal or proceedings to any such privilege in respect of the production of documents or the giving of evidence as is allowed to the Crown alone by law in legal proceedings.

    (2) A Minister of the Crown or a Northern Ireland Minister may by a certificate in writing, with respect to any document or information specified in the certificate, or documents or information of any class so specified, certify that in his opinion the disclosure of that document or information or of documents or information of that class would be prejudicial to the safety of the United Kingdom or any part of it or otherwise contrary to the public interest.

    (3) Where a certificate is given under paragraph (2) nothing in this Order shall be construed as authorising or requiring the communication to any person or for any purpose of any document or information specified in the certificate, or any document or information of a class so specified.

    (4) A document purporting to be a certificate such as is mentioned in paragraph (2) shall be received in evidence and, unless the contrary is proved, shall be deemed to be such a certificate.

    (5) Where, in consequence of paragraph (1), any information is disclosed to persons not in the service of the Crown, those persons shall, without prejudice to paragraphs (1) and (3), be subject to the same restrictions on the disclosure of the information as if they were in that service and, in particular, the Official Secrets Act 1989 shall have effect in relation to them as if they were Crown servants within the meaning of that Act.

    (6) Any reference in paragraph (2) to a Minister of the Crown includes a reference to the Commissioners of Customs and Excise and the Commissioners of Inland Revenue.

Application to the police
     94.  - (1) For the purposes of this Order (except Part VII) the holding of the office of constable shall be treated as employment - 

    (a) by the chief officer of police as respects any act done by him in relation to a constable or that office;

    (b) by the police authority as respects any act done by it in relation to a constable or that office.

    (2) There shall be defrayed as expenses of the police authority - 

    (a) any damages or costs awarded against a chief officer of police in any proceedings under Part VI, any costs incurred by him in any such proceedings so far as not recovered by him in the proceedings, and any costs incurred by him in connection with any investigation under Part II so far as not defrayed by sums paid by the Commission under paragraph 10 of Schedule 2; and

    (b) any sum required by a chief officer of police in connection with the settlement of any complaint made or action brought against him under Part VI, if the settlement is approved by the police authority.

    (3) Any proceedings under Part VI which, by virtue of paragraph (1), would lie against a chief officer of police shall be brought against the chief officer of police for the time being or, in the case of a vacancy in that office, against the person for the time being performing the functions of that office; and references in paragraphs (2) and (4) to the chief officer of police shall be construed accordingly.

    (4) The police authority may make arrangements for the legal representation of the chief officer of police in any proceedings under Part VI.

    (5) In the application of this Article to the police force - 

    (a) in paragraph (2) for the words "as expenses of the police authority" there shall be substituted the words "out of funds put at the disposal of the Chief Constable under section 10(5) of the Police (Northern Ireland) Act 1998"; and

    (b) paragraph (4) shall be omitted.

    (6) In this Article - 

    "chief officer of police" - 

    (a) in relation to a person appointed, or an appointment falling to be made, to the police force, means the Chief Constable of the Royal Ulster Constabulary;

    (b) in relation to any other person or appointment means the officer who has the direction and control of the body of constables in question;

    "police authority" - 

    (a) in relation to a person appointed, or an appointment falling to be made, to the police force, means the Police Authority for Northern Ireland;

    (b) in relation to any other person or appointment, means the authority by which the person in question is, or on appointment would be, paid;

    "police force" has the same meaning as in the Police (Northern Ireland) Act 1998.

Procedure following investigation under Article 11 in relation to certain public authorities
     95.  - (1) This Article applies where, following an investigation under Article 11, the Commission is of the opinion that action for promoting equality of opportunity ought to be taken by any of the following authorities, namely - 

    (a) a Minister of the Crown or a government department or a person acting for purposes of such a Minister or department; or

    (b) a member of Her Majesty's forces acting as such; or

    (c) any other person acting on behalf of the Crown, being a statutory body or a person holding a statutory office; or

    (d) the Police Authority for Northern Ireland or the Chief Constable of the Royal Ulster Constabulary;

and, accordingly, Articles 12(3), 14, 15 and 16 shall not have effect in relation to any such authority.

    (2) Where the Commission asks for an undertaking such as is mentioned in Article 12(2)(b), but - 

    (a) the undertaking is not given; or

    (b) the undertaking, although given, is not complied with,

the Commission shall send a report of the results of its investigation and of the opinion it has formed in relation to the subject-matter of the investigation (including any recommendations the Commission considers appropriate for action on the part of the authority concerned) - 

      (i) where the investigation related to a Minister of the Crown, to that Minister;

      (ii) where the investigation related to a government department, to the Minister of the Crown in charge of the department, or in the case of a Northern Ireland department to the Northern Ireland Minister in charge of the department; or

      (iii) where the investigation related to any other authority, to the Minister of the Crown or the Northern Ireland Minister generally responsible for matters falling within the scope of the functions of that authority.

    (3) Where the report is sent to a Minister of the Crown he shall lay it before Parliament; and where the report is sent to a Northern Ireland Minister he shall lay it before the Assembly.

    (4) A person who is not in the service of the Crown shall not be regarded as within paragraph (1)(a) by reason only of his acting in pursuance of a contract entered into with a Minister of the Crown or a government department.



PART XI

MISCELLANEOUS AMENDMENTS

Amendment of the Sex Discrimination (Northern Ireland) Order 1976

Acts safeguarding national security, etc.
     96. For Article 53 of the Sex Discrimination (Northern Ireland) Order 1976 (acts safeguarding national security) there shall be substituted - 

    " Acts safeguarding national security, etc.
             53. No act done by any person shall be treated for the purposes of any provision of Parts III to V as unlawfully discriminating if - 

      (a) the act is done for the purpose of safeguarding national security or protecting public safety or public order; and

      (b) the doing of the act is justified by that purpose.

    Effect of certificates by Secretary of State
             53ZA.  - (1) This Article applies where in any proceedings - 

      (a) a person claims that an act discriminated against him in contravention of - 

        (i) the relevant provisions of Part IV; or

        (ii) Part V, so far as it has effect in relation to those provisions; and

      (b) the person against whom the claim is made proposes to rely on a certificate purporting to be signed by or on behalf of the Secretary of State and certifying - 

        (i) that an act specified in the certificate was done for the purpose of safeguarding national security or protecting public safety or public order; and

        (ii) that the doing of the act was justified by that purpose.

        (2) The claimant may, in accordance with rules under section 91 of the Northern Ireland Act 1998, appeal against the certificate to the tribunal established under that section.

        (3) If on an appeal under paragraph (2) that tribunal determines - 

      (a) that the act specified in the certificate was done for the certified purpose; and

      (b) that the doing of the act was justified by that purpose,

    the tribunal shall uphold the certificate; in any other case, the tribunal shall quash the certificate.

        (4) If - 

      (a) the claimant does not appeal against the certificate; or

      (b) the certificate is upheld on appeal,

    the certificate shall be conclusive evidence of the matters certified by it.

        (5) Sections 91 and 92 of the Northern Ireland Act 1998 shall apply in relation to appeals under this Article as they apply in relation to appeals under section 90 of that Act.

        (6) In paragraph (1) "the relevant provisions of Part IV" means the provisions of that Part except so far as they apply to vocational training.".

Amendment of the Race Relations (Northern Ireland) Order 1997

Selection of unemployed persons
     97. After Article 36 of the Race Relations (Northern Ireland) Order 1997 there shall be inserted - 

    " Selection of unemployed persons
             36A.  - (1) The application of any requirement or condition to any person applying to fill a vacancy for employment where the requirement or condition is one that the person applying to fill the vacancy has not been in employment for a specified period of time is not by virtue of Article 3(1)(b) unlawful under any provision of Parts II and IV.

        (2) The Commission shall, on request, advise any person who proposes to apply any requirement or condition described in paragraph (1).

        (3) In paragraph (1) "specified" means specified by the person applying the requirement or condition in question.".

Acts safeguarding national security, etc.
     98. In the Race Relations (Northern Ireland) Order 1997 - 

    (a) for Article 41 (acts safeguarding national security) there shall be substituted - 

    " Acts safeguarding national security, etc.
             41. No act done by any person shall be treated for the purposes of any provision of Parts II to IV as unlawfully discriminating if - 

      (a) the act is done for the purpose of safeguarding national security or protecting public safety or public order; and

      (b) the doing of that act is justified by that purpose.

    Effect of certificates by Secretary of State
             41A.  - (1) This Article applies where in any proceedings - 

      (a) a person claims that an act discriminated against him in contravention of any provision of Parts II to IV; and

      (b) the person against whom the claim is made proposes to rely on a certificate purporting to be signed by or on behalf of the Secretary of State and certifying - 

        (i) that an act specified in the certificate was done for the purpose of safeguarding national security or protecting public safety or public order; and

        (ii) that the doing of the act was justified by that purpose.

        (2) The claimant may, in accordance with rules under section 91 of the Northern Ireland Act 1998, appeal against the certificate to the tribunal established under that section.

        (3) If on an appeal under paragraph (2) that tribunal determines - 

      (a) that the act specified in the certificate was done for the certified purpose; and

      (b) that the doing of the act was justified by that purpose,

    the tribunal shall uphold the certificate; in any other case, the tribunal shall quash the certificate.

        (4) If - 

      (a) the claimant does not appeal against the certificate; or

      (b) the certificate is upheld on appeal,

    the certificate shall be conclusive evidence of the matters certified by it.

        (5) Sections 91 and 92 of the Northern Ireland Act 1998 shall apply in relation to appeals under this Article as they apply in relation to appeals under section 90 of that Act.

        (6) In this Article - 

      "claim" includes complaint; and

      "claimant" includes complainant.";

    (b) in Article 66, paragraph (2)(b) and the word "or" immediately preceding it shall cease to have effect.



PART XII

SUPPLEMENTARY

Power of High Court to revise contracts
     99.  - (1) Subject to paragraphs (2) and (3), where a term is included in or omitted from a contract in contravention of any provision of Part III or IV or in consequence of such a contravention, then, notwithstanding that the making of the contract is an unlawful act, neither the contract nor any part of it is unenforceable by reason only of the contravention.

    (2) Where a complaint has been presented to the Tribunal under Article 38, the complainant or respondent may apply to the High Court to revise the contract or any of its terms.

    (3) Where proceedings under Article 40 have been brought in the county court, the claimant or respondent may apply to the county court to revise the contract or any of its terms.

    (4) On an application under paragraph (2) or (3) the High Court or, as the case may be, the county court, may make such order as it considers just in all the circumstances revising the contract or any of its terms so as to secure that, as from the date of the order, the contract in no way contravenes, or has any effect in consequence of a contravention of, any provision of Part III or IV.

    (5) Where the High Court or the county court makes an order under paragraph (4), every party to the contract, whether or not a party in the action, shall be bound by the order; but the High Court or, as the case may be, the county court, shall not make such an order which affects a party to the contract who is not a party in the action without giving him an opportunity of being heard.

Restrictions on contracting out
     100.  - (1) Except as provided by paragraph (2), any provision in an agreement (whether a contract of employment or not) shall be void in so far as it purports - 

    (a) to exclude or limit the operation of any provision of this Order; or

    (b) to preclude any person from presenting a complaint to the Tribunal under Article 38.

    (2) Paragraph (1) does not apply - 

    (a) to an agreement settling a complaint to which Article 38(1) applies where the Agency has taken action in accordance with Article 88(1) or (2); or

    (b) to an agreement settling a complaint to which Article 38(1) applies if the conditions regulating compromise agreements under this Order are satisfied in relation to the agreement; or

    (c) to an agreement settling a claim to which Article 40 applies.

    (3) The conditions regulating compromise agreements under this Order are that - 

    (a) the agreement must be in writing;

    (b) the agreement must relate to the particular complaint;

    (c) the complainant must have received advice from a relevant independent adviser as to the terms and effect of the proposed agreement and in particular its effect on his ability to pursue his complaint before the Tribunal;

    (d) there must be in force, when the adviser gives the advice, a contract of insurance, or an indemnity provided for members of a profession or professional body, covering the risk of a claim by the complainant in respect of loss arising in consequence of the advice;

    (e) the agreement must identify the adviser; and

    (f) the agreement must state that the conditions regulating compromise agreements under this Order are satisfied.

    (4) A person is a relevant independent adviser for the purposes of paragraph (3)(c) - 

    (a) if he is a qualified lawyer;

    (b) if he is an officer, official, employee or member of an independent trade union who has been certified in writing by the trade union as competent to give advice and as authorised to do so on behalf of the trade union;

    (c) if he works at an advice centre (whether as an employee or a volunteer) and has been certified in writing by the centre as competent to give advice and as authorised to do so on behalf of the centre; or

    (d) if he is a person of a description specified in an order made by the Department.

    (5) But a person is not a relevant independent adviser for the purposes of paragraph (3)(c) in relation to the complainant - 

    (a) if he is, is employed by or is acting in the matter for the other party or for a person who is connected with the other party;

    (b) in the case of a person within paragraph (4)(b) or (c), if the trade union or advice centre is the other party or a person who is connected with the other party;

    (c) in the case of a person within paragraph (4)(c), if the complainant makes a payment for the advice received from him; or

    (d) in the case of a person of a description specified in an order under paragraph (4)(d), if any condition specified in the order in relation to the giving of advice by persons of that description is not satisfied.

    (6) In paragraph (4)(a) "qualified lawyer" means a barrister (whether in practice as such or employed to give legal advice), or a solicitor who holds a practising certificate.

    (7) In paragraph (4)(b) "independent trade union" has the same meaning as in the Industrial Relations (Northern Ireland) Order 1992.

    (8) For the purposes of paragraph (5) any two persons are to be treated as connected - 

    (a) if one is a company of which the other (directly or indirectly) has control; or

    (b) if both are companies of which a third person (directly or indirectly) has control.

    (9) An agreement under which the parties agree to submit a dispute to arbitration - 

    (a) shall be regarded for the purposes of paragraph (2)(a) and (b) as being an agreement settling a complaint if - 

      (i) the dispute is covered by a scheme having effect by virtue of an order under Article 89; and

      (ii) the agreement is to submit it to arbitration in accordance with the scheme; but

    (b) shall be regarded for those purposes as neither being nor including such an agreement in any other case.

Power to amend this Order
     101.  - (1) The Department may by order - 

    (a) amend any provision of Part III, IV, V or VIII so as to render lawful an act which, apart from the amendment, would be unlawful by reason of Article 19(1), 28(1) or 29;

    (b) amend Article 26(1) so as to alter the number of partners specified in that provision.

    (2) The Department may by order provide that Article 6(3) shall have effect - 

    (a) with the substitution for the words from "exploration" to "natural resources" of the words "any activity falling within section 11(2) of the Petroleum Act 1998"; and

    (b) with the insertion after "1964" of the words "or specified under section 10(8) of the Petroleum Act 1998".

    (3) The Department shall not lay before the Assembly the draft of an order under paragraph (1) unless it has consulted the Commission about the contents of the draft.

Offences by bodies corporate and partnerships
     102.  - (1) For the purposes of this Order section 20(2) of the Interpretation Act (Northern Ireland) 1954 applies with the omission of the words "the liability of whose members is limited" and, where the affairs of a body corporate are managed by its members, applies in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.

    (2) Where a partnership is guilty of an offence under this Order, every partner, other than a partner who is proved to have been ignorant of or to have attempted to prevent the commission of the offence, shall also be guilty of that offence and be liable to be proceeded against and punished accordingly.

Service of documents
     103. For the purposes of this Order section 24 of the Interpretation Act (Northern Ireland) 1954 applies with the omission from subsection (1) of the word "registering".

Regulations and orders
     104.  - (1) No regulations under Article 48(10), 53 or 54 or order under Article 6(3), 48(5), 71(6) or 101(1) shall be made unless a draft of the regulations or order has been laid before and approved by resolution of the Assembly.

    (2) Regulations and orders made by the Department under any other provision of this Order (except orders under paragraph 1(5) or 2(7) of Schedule 1) shall be subject to negative resolution.

    (3) Regulations and orders made by the Department under this Order may contain such incidental, supplementary, consequential and transitional provisions as the Department thinks fit.

Amendments, transitional provisions, savings and repeals
     105.  - (1) The statutory provisions specified in Schedule 3 shall have effect subject to the amendments specified in that Schedule.

    (2) The transitional provisions and savings set out in Schedule 4 shall have effect.

    (3) The Department may by order make such other transitional provisions and savings as it thinks fit in connection with the coming into operation of any provision of this Order.

    (4) The statutory provisions specified in Schedule 5 are hereby repealed to the extent specified in the third column of that Schedule.


A.K. Galloway
Clerk of the Privy Council


 
  © Crown copyright 1998
Prepared 20 January 1999

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