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STATUTORY INSTRUMENTS

2000 No. 1110 (N.I. 2)

NORTHERN IRELAND

The Equality (Disability, etc.) (Northern Ireland) Order 2000

  Made 19th April 2000 
  Coming into operation in accordance with Article 1(2)


ARRANGEMENT OF ORDER


PART I

INTRODUCTORY
1. Title and commencement.
2. Interpretation - general.

PART II

DISABILITY DISCRIMINATION
3. Interpretation of this Part.
4. General functions of Commission.
5. Formal investigations.
6. Non-discrimination notices.
7. Agreements in lieu of enforcement action.
8. Persistent discrimination.
9. Assistance in relation to proceedings.
10. Recovery of expenses of providing assistance.
11. Codes of practice.
12. Conciliation of disputes under Part III of the 1995 Act.
13. Procedure for amending section 7(1) of the 1995 Act.
14. Regulations.
15. Consequential amendments to the 1995 Act.
16. Repeals.
17. Crown application.

PART III

MISCELLANEOUS
18. Additional Commissioners of the Equality Commission.
19. Annual report of Equality Commission.
20. Continuation of saving for cases falling within section 50(2) of the Fair Employment (Northern Ireland) Act 1989.

SCHEDULES:

  Schedule 1 -  Formal investigations and non-discrimination notices.
 Part I -  Conduct of formal investigations.
 Part II -  Non-discrimination notices.
 Part III -  Action plans.
 Part IV -  Supplementary

  Schedule 2 -  Repeals.

At the Court at Windsor Castle, the 19th day of April 2000

Present,

The Queen's Most Excellent Majesty in Council

Whereas a draft of this Order has been approved by a resolution of each House of Parliament:

     Now, therefore, Her Majesty, in exercise of the powers conferred by paragraph 1(1) of the Schedule to the Northern Ireland Act 2000 and of all other powers enabling Her in that behalf, is pleased, by and with the advice of Her Privy Council, to order, and it is hereby ordered, as follows: - 



PART I

INTRODUCTORY

Title and commencement
     1.  - (1) This Order may be cited as the Equality (Disability, etc.) (Northern Ireland) Order 2000.

    (2) Part II shall come into operation on such day or days as the Office of the First Minister and deputy First Minister may by order appoint.

    (3) An order under paragraph (2) may contain transitional provisions and savings relating to the provisions brought into operation by the order.

Interpretation - general
     2. The Interpretation Act (Northern Ireland) 1954 shall apply to Article 1 and the following provisions of this Order as it applies to an Act of the Northern Ireland Assembly.



PART II

DISABILITY DISCRIMINATION

Interpretation of this Part
     3.  - (1) In this Part - 

    "the Commission" means the Equality Commission for Northern Ireland;

    "final", in relation to a non-discrimination notice, has the meaning given by paragraph 11 of Schedule 1;

    "formal investigation" means an investigation under Article 5;

    "non-discrimination notice" means a notice under Article 6;

    "notice" means notice in writing;

    "the Office" means the Office of the First Minister and deputy First Minister;

    "prescribed" means prescribed by regulations made by the Office; and

    "the 1995 Act" means the Disability Discrimination Act 1995.

    (2) Expressions used in this Part which are defined for the purposes of the 1995 Act have the same meaning in this Part as in that Act.

General functions of Commission
     4.  - (1) The Commission shall have the following duties - 

    (a) to work towards the elimination of discrimination against disabled persons;

    (b) to promote the equalisation of opportunities for disabled persons;

    (c) to take such steps as it considers appropriate with a view to encouraging good practice in the treatment of disabled persons; and

    (d) to keep under review the working of the 1995 Act and this Part.

    (2) The Commission may, for any purpose connected with the performance of its functions under this Part - 

    (a) make proposals or give other advice to any government department as to any aspect of the law or a proposed change to the law;

    (b) make proposals or give other advice to any public authority as to the practical application of any law;

    (c) undertake, or arrange for or support (whether financially or otherwise), the carrying out of research or the provision of advice or information.

    Nothing in this paragraph is to be regarded as limiting the Commission's powers.

    (3) The Commission shall make proposals or give other advice under paragraph (2)(a) on any matter specified in a request from a government department.

    (4) The Commission may make charges for facilities or services made available by it for the purposes of its functions under this Part.

    (5) In this Article - 

    "disabled persons" includes persons who have had a disability;

    "discrimination" means anything which is discrimination for the purposes of any provision of Part II or Part III of the 1995 Act;

    "the law" includes Community law and the international obligations of the United Kingdom; and

    "public authority" has the same meaning as in section 75 of the Northern Ireland Act 1998.

Formal investigations
     5.  - (1) The Commission may decide to conduct a formal investigation for any purpose connected with the performance of its duties under Article 4(1).

    (2) The Commission shall conduct a formal investigation if directed to do so by the Office for any such purpose.

    (3) The Commission may at any time decide to stop or to suspend the conduct of a formal investigation; but any such decision requires the approval of the Office if the investigation is being conducted in pursuance of a direction under paragraph (2).

    (4) The Commission may, with the approval of the Office, appoint, on a full-time or part-time basis, one or more individuals as additional Commissioners for the purposes of a formal investigation.

    (5) The Commission may, as respects any formal investigation which it has decided or been directed to conduct - 

    (a) nominate one or more Commissioners, with or without one or more additional Commissioners appointed for the purposes of the investigation, to conduct the investigation on its behalf; and

    (b) authorise those persons to exercise such of its functions in relation to the investigation (which may include drawing up or revising terms of reference) as it may determine.

    (6) Schedule 1 (so far as relating to the conduct of formal investigations) has effect.

Non-discrimination notices
     6.  - (1) If in the course of a formal investigation the Commission is satisfied that a person has committed or is committing an unlawful act, it may serve on him a notice (referred to in this Part as a non-discrimination notice) which - 

    (a) gives details of the unlawful act which the Commission has found that he has committed or is committing; and

    (b) requires him not to commit any further unlawful acts of the same kind (and, if the finding is that he is committing an unlawful act, to cease doing so).

    (2) The notice may include recommendations to the person concerned as to action which the Commission considers he could reasonably be expected to take with a view to complying with the requirement mentioned in paragraph (1)(b).

    (3) The notice may require the person concerned - 

    (a) to propose an adequate action plan (subject to and in accordance with Part III of Schedule 1) with a view to securing compliance with the requirement mentioned in paragraph (1)(b); and

    (b) once an action plan proposed by him has become final, to take any action which - 

      (i) is specified in the plan; and

      (ii) he has not already taken,

    at the time or times specified in the plan.

    (4) For the purposes of paragraph (3) - 

    (a) an action plan is a document drawn up by the person concerned specifying action (including action he has already taken) intended to change anything in his practices, policies, procedures or other arrangements which - 

      (i) caused or contributed to the commission of the unlawful act concerned; or

      (ii) is liable to cause or contribute to a failure to comply with the requirement mentioned in paragraph (1)(b); and

    (b) an action plan is adequate if the action specified in it would be sufficient to ensure, within a reasonable time, that he is not prevented from complying with that requirement by anything in his practices, policies, procedures or other arrangements;

and the action specified in an action plan may include ceasing an activity or taking continuing action over a period.

    (5) In this Article "unlawful act" means an act which is unlawful discrimination for the purposes of any provision of Part II or Part III of the 1995 Act or any other unlawful act of a description prescribed for the purposes of this Article.

    (6) Schedule 1 (so far as relating to non-discrimination notices and action plans) has effect.

Agreements in lieu of enforcement action
     7.  - (1) If the Commission has reason to believe that a person has committed or is committing an unlawful act, it may (subject to Article 5(3)) enter into an agreement in writing under this Article with that person on the assumption that that belief is well founded (whether or not that person admits that he committed or is committing the act in question).

    (2) An agreement under this Article is one by which - 

    (a) the Commission undertakes not to take any relevant enforcement action in relation to the unlawful act in question; and

    (b) the person concerned undertakes - 

      (i) not to commit any further unlawful acts of the same kind (and, where appropriate, to cease committing the unlawful act in question); and

      (ii) to take such action (which may include ceasing an activity or taking continuing action over any period) as may be specified in the agreement.

    (3) Those undertakings are binding on the parties to the agreement; but undertakings under paragraph (2)(b) are enforceable by the Commission only as provided by paragraph (8).

    (4) For the purposes of paragraph (2)(a), "relevant enforcement action" means - 

    (a) beginning a formal investigation into the commission by the person concerned of the unlawful act in question;

    (b) if such an investigation has begun (whether or not the investigation is confined to that matter), taking any further steps in the investigation of that matter; and

    (c) taking any steps, or further steps, with a view to the issue of a non-discrimination notice based on the commission of the unlawful act in question.

    (5) The action specified in an undertaking under paragraph (2)(b)(ii) must be action intended to change anything in the practices, policies, procedures or other arrangements of the person concerned which - 

    (a) caused or contributed to the commission of the unlawful act in question; or

    (b) is liable to cause or contribute to a failure to comply with his undertaking under paragraph (2)(b)(i).

    (6) An agreement under this Article - 

    (a) may include terms providing for incidental or supplementary matters (including the termination of the agreement, or the right of either party to terminate it, in certain circumstances); and

    (b) may be varied or revoked by agreement of the parties.

    (7) An agreement under this Article may not include any provisions other than terms mentioned in paragraphs (2) and (6)(a) unless their inclusion is authorised by regulations made by the Office for the purposes of this Article; but any provisions so authorised are not enforceable by the Commission under paragraph (8).

    (8) The Commission may apply to a county court for an order under this paragraph if - 

    (a) the other party to an agreement under this Article has failed to comply with any undertaking under paragraph (2)(b); or

    (b) the Commission has reasonable cause to believe that he intends not to comply with any such undertaking.

    (9) An order under paragraph (8) is an order requiring the other party to comply with the undertaking or with such directions for the same purpose as are contained in the order.

    (10) Nothing in this Article affects the Commission's powers to settle or compromise legal proceedings of any description.

    (11) In this Article "unlawful act" means an act which is unlawful discrimination for the purposes of any provision of Part II or Part III of the 1995 Act or any other unlawful act of a description prescribed for the purposes of this Article.

    (12) Schedule 1 (so far as relating to agreements under this Article) has effect.

Persistent discrimination
     8.  - (1) This Article applies during the period of five years beginning on the date on which - 

    (a) a non-discrimination notice served on a person,

    (b) a finding by a court or tribunal in proceedings under section 8 or 25 of the 1995 Act that a person has committed an act which is unlawful discrimination for the purposes of any provision of Part II or Part III of that Act, or

    (c) a finding by a court or tribunal in any other proceedings that a person has committed an act of a description prescribed under paragraph (4),

has become final.

    (2) If during that period it appears to the Commission that unless restrained the person concerned is likely to do one or more unlawful acts, the Commission may apply to a county court for an injunction restraining him from doing so.

    (3) The court, if satisfied that the application is well-founded, may grant the injunction in the terms applied for or in more limited terms.

    (4) In this Article "unlawful act" means an act which is unlawful discrimination for the purposes of any provision of Part II or Part III of the 1995 Act or any other unlawful act of a description prescribed for the purposes of this Article.

    (5) A finding of a court or tribunal becomes final for the purposes of this Article when an appeal against it is dismissed, withdrawn or abandoned or when the time for appealing expires without an appeal having been brought.

Assistance in relation to proceedings
     9.  - (1) This Article applies to - 

    (a) proceedings which an individual has brought or proposes to bring under section 8 or 25 of the 1995 Act (complaints and claims about unlawful discrimination under Parts II and III); and

    (b) proceedings of a description prescribed for the purposes of this paragraph, being proceedings in which an individual who has or has had a disability relies or proposes to rely on a matter relating to that disability.

    (2) Where the individual concerned applies to the Commission for assistance in relation to any proceedings to which this Article applies, the Commission may grant the application on any of the following grounds - 

    (a) that the case raises a question of principle;

    (b) that it is unreasonable to expect the applicant to deal with the case unaided (because of its complexity, because of the applicant's position in relation to another party or for some other reason);

    (c) that there is some other special consideration which makes it appropriate for the Commission to provide assistance.

    (3) If the Commission grants an application, it may - 

    (a) provide or arrange for the provision of legal advice;

    (b) arrange for legal or other representation (which may include any assistance usually given by a solicitor or counsel);

    (c) seek to procure the settlement of any dispute;

    (d) provide or arrange for the provision of any other assistance which it thinks appropriate.

    (4) Paragraph (3)(b) does not affect the law and practice as to who may represent a person in relation to any proceedings.

    (5) The Commission may authorise any employee of the Commission to exercise such of its functions under this Article as it may determine.

Recovery of expenses of providing assistance
     10.  - (1) This Article applies where - 

    (a) the Commission has given an individual assistance under Article 9 in relation to any proceedings; and

    (b) any costs or expenses (however described) have become payable to him by another person in respect of the matter in connection with which the assistance is given.

    (2) A sum equal to any expenses incurred by the Commission in providing the assistance shall be a first charge for the benefit of the Commission on the costs or expenses concerned.

    (3) It is immaterial for the purposes of this Article whether the costs or expenses concerned are payable by virtue of a decision of a court or tribunal, an agreement arrived at to avoid proceedings or to bring them to an end, or otherwise.

    (4) The charge created by this Article is subject to any charge under the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981 and is subject to any provision in that Order for payment of any sum into the legal aid fund.

    (5) Provision may be made by regulations made by the Office for the determination of the expenses of the Commission in cases where this Article applies.

Codes of practice
     11.  - (1) The following section shall be inserted at the beginning of Part VII of the 1995 Act (supplemental) - 

    " Codes of practice.
             54A.  - (1) The Commission may prepare and issue codes of practice giving practical guidance - 

      (a) to employers, service providers or other persons to whom provisions of Part II or Part III apply on how to avoid discrimination or on any other matter relating to the operation of those provisions in relation to them; or

      (b) to any persons on any other matter, with a view to - 

        (i) promoting the equalisation of opportunities for disabled persons and persons who have had a disability, or

        (ii) encouraging good practice regarding the treatment of such persons,

      in any field of activity regulated by any provision of Part II or Part III.

        (2) The Commission shall, when requested to do so by the Office, prepare a code of practice dealing with the matters specified in the request.

        (3) In preparing a code of practice the Commission shall carry out such consultations as it considers appropriate (which shall include the publication for public consultation of proposals relating to the code).

        (4) The Commission may not issue a code of practice unless - 

      (a) a draft of it has been submitted to and approved by the Office and laid by the Office before the Assembly; and

      (b) the statutory period has elapsed without the Assembly resolving not to approve the draft.

        (5) If the Office does not approve a draft code of practice submitted to it the Office shall give the Commission a written statement of its reasons.

        (6) A code of practice issued by the Commission - 

      (a) shall come into effect on such day as the Office may by order appoint;

      (b) may be revised in whole or part, and re-issued, by the Commission; and

      (c) may be revoked by an order made by the Office at the request of the Commission.

        (7) Where the Commission proposes to revise a code of practice - 

      (a) it shall comply with subsection (3) in relation to the revisions; and

      (b) the other provisions of this section apply to the revised code of practice as they apply to a new code of practice.

        (8) Failure to observe any provision of a code of practice does not of itself make a person liable to any proceedings, but any provision of a code which appears to a court or tribunal to be relevant to any question arising in any proceedings under Part II or Part III shall be taken into account in determining that question.

        (9) In this section - 

      "code of practice" means a code of practice under this section;

      "the Commission" means the Equality Commission for Northern Ireland;

      "discrimination" means anything which is unlawful discrimination for the purposes of any provision of Part II or Part III;

      "the Office" means the Office of the First Minister and deputy First Minister; and

      "statutory period" has the meaning assigned to it by section 41(2) of the Interpretation Act (Northern Ireland) 1954.".

    (2) The Commission may treat any consultation undertaken under section 52(2) of the 1995 Act before the coming into operation of this Article as being effective for the purposes of section 54A(3) of that Act.

    (3) Nothing in this Article affects the Commission's powers apart from this Article to give practical guidance on matters connected with its functions under this Part.

Conciliation of disputes under Part III of the 1995 Act
     12. For section 28 of the 1995 Act (arrangements with a view to the settlement of disputes under Part III) there shall be substituted the following section - 

    " Conciliation of disputes.
             28.  - (1) The Commission may make arrangements with any other person for the provision of conciliation services by, or by persons appointed by, that person in relation to disputes arising under this Part.

        (2) In deciding what arrangements (if any) to make, the Commission shall have regard to the desirability of securing, so far as reasonably practicable, that conciliation services are available for all disputes arising under this Part which the parties may wish to refer to conciliation.

        (3) No member or employee of the Commission may provide conciliation services in relation to disputes arising under this Part.

        (4) The Commission shall ensure that any arrangements under this section include appropriate safeguards to prevent the disclosure to members or employees of the Commission of information obtained by a person in connection with the provision of conciliation services in pursuance of the arrangements.

        (5) Subsection (4) does not apply to information relating to a dispute which is disclosed with the consent of the parties to that dispute.

        (6) Subsection (4) does not apply to information which - 

      (a) is not identifiable with a particular dispute or a particular person; and

      (b) is reasonably required by the Commission for the purpose of monitoring the operation of the arrangements concerned.

        (7) Anything communicated to a person while providing conciliation services in pursuance of any arrangements under this section is not admissible in evidence in any proceedings except with the consent of the person who communicated it to that person.

        (8) In this section - 

      "the Commission" means the Equality Commission for Northern Ireland; and

      "conciliation services" means advice and assistance provided by a conciliator to the parties to a dispute with a view to promoting its settlement otherwise than through the courts.".

Procedure for amending section 7(1) of the 1995 Act
     13. For subsections (3) to (10) of section 7 of the 1995 Act (exemption for small businesses) there shall be substituted the following subsections - 

        " (3) Before making an order under subsection (2) the Office of the First Minister and deputy First Minister shall consult - 

      (a) the Equality Commission for Northern Ireland;

      (b) such organisations representing the interests of employers as that Office considers appropriate; and

      (c) such organisations representing the interests of disabled persons in employment or seeking employment as that Office considers appropriate.

        (4) The Office of the First Minister and deputy First Minister shall, before laying an order under this section before the Assembly, publish a summary of the views expressed to it in its consultations.".

Regulations
     14.  - (1) Regulations under this Part may make - 

    (a) provision enabling a person to exercise a discretion in dealing with any matter; and

    (b) incidental, supplemental, consequential or transitional provision.

    (2) Regulations under this Part shall be subject to negative resolution.

Consequential amendments to the 1995 Act
     15.  - (1) The 1995 Act shall be amended as follows.

    (2) In section 67(5) (orders not subject to negative resolution) for "52(8), 54(6)" substitute "54A(6)(a)".

    (3) In Schedule 3 (enforcement and procedure under Parts II and III), in paragraph 6(2), for the words from "a person" to "approached" there shall be substituted "the dispute concerned is referred for conciliation in pursuance of arrangements under section 28".

Repeals
     16. The statutory provisions mentioned in Schedule 2 are repealed to the extent specified.

Crown application
     17. This Part binds the Crown.



PART III

MISCELLANEOUS

Additional Commissioners of the Equality Commission
     18.  - (1) In Schedule 8 to the Northern Ireland Act 1998 (the Equality Commission) after paragraph 3 there shall be inserted - 

    " Additional Commissioners

             3A.  - (1) Paragraph 2(1) and (2) shall apply to additional Commissioners as they apply to Commissioners.

        (2) The Commission may pay, or make such payments towards the provision of, such remuneration, allowances (including allowances for expenses), pensions or gratuities to or in respect of an additional Commissioner as the Office of the First Minister and deputy First Minister, with the consent of the Department of Finance and Personnel, may determine.

        (3) The Commission may not alter the terms of appointment of an additional Commissioner except with his consent and the approval of the Office of the First Minister and deputy First Minister.

        (4) An additional Commissioner may resign by notice in writing to the Commission.

        (5) The Commission may, with the approval of the Office of the First Minister and deputy First Minister, terminate the appointment of an additional Commissioner if satisfied - 

      (a) that without reasonable excuse he has failed to discharge his functions for a continuous period of three months beginning not earlier than six months before the termination;

      (b) that he has been convicted of a criminal offence;

      (c) that a bankruptcy order has been made against him, or his estate has been sequestrated, or he has made a composition or arrangement with, or granted a trust deed for, his creditors; or

      (d) that he is unable or unfit to carry out his functions.

        (6) The appointment of an additional Commissioner shall terminate at the conclusion of the investigation for which he was appointed, if not sooner.

        (7) In this paragraph "additional Commissioner" means an additional Commissioner appointed under - 

      (a) Article 57(2) of the Sex Discrimination (Northern Ireland) Order 1976;

      (b) Article 46(2) of the Race Relations (Northern Ireland) Order 1997; or

      (c) Article 5(4) of the Equality (Disability, etc.) (Northern Ireland) Order 2000.".

    (2) In that Schedule in paragraph 8 after sub-paragraph (1) (procedure) there shall be inserted - 

        " (1A) Nothing in sub-paragraph (1) prejudices the power of the Commission to appoint additional Commissioners under any provision mentioned in paragraph 3A(7).".

    (3) In Part III of Schedule 1 to the Northern Ireland Assembly Disqualification Act 1975 (disqualifying offices) there shall be inserted at the appropriate place in alphabetical order - 

    " Additional Commissioner of the Equality Commission for Northern Ireland.".

Annual report of Equality Commission
     19.  - (1) Paragraph 5 of Schedule 8 to the Northern Ireland Act 1998 (annual report of Equality Commission) shall be amended as follows.

    (2) In sub-paragraph (1) for the words "each year" there shall be substituted the words "each financial year".

    (3) At the end there shall be added - 

        " (5) Sub-paragraph (5) of paragraph 7 applies for the purposes of this paragraph as it applies for the purposes of that paragraph.".

Continuation of saving for cases falling within section 50(2) of the Fair Employment (Northern Ireland) Act 1989
     20. The Fair Employment and Treatment (Northern Ireland) Order 1998 shall have effect, and be deemed always to have had effect, with the insertion at the end of Schedule 4 (Transitional provisions and savings) of the following - 

    " Section 50(2) of the Fair Employment (Northern Ireland) Act 1989

             8. The repeals effected by this Order do not affect the operation of - 

      (a) subsection (2) of section 50 of the Fair Employment (Northern Ireland) Act 1989; or

      (b) any provision of the Fair Employment (Northern Ireland) Act 1976 mentioned in that subsection,

    in relation to a complaint or act mentioned in that subsection.".


A.K. Galloway
Clerk of the Privy Council


SCHEDULES


SCHEDULE 1
Articles 5(6), 6(6) and 7(12).


FORMAL INVESTIGATIONS AND NON-DISCRIMINATION NOTICES




PART I

CONDUCT OF FORMAL INVESTIGATIONS

Introductory

     1.  - (1) This Part applies to a formal investigation which the Commission has decided or has been directed to conduct.

    (2) Anysubsequent action required or authorised by this Part (or by Part IV) to be taken by the Commission in relation to the conduct of a formal investigation may be taken, so far as they are authorised to do so, by persons nominated under Article 5(5) for the purposes of the investigation.

Terms of reference and preliminary notices

     2.  - (1) The Commission shall not take any steps in the conduct of a formal investigation until - 

    (a) terms of reference for the investigation have been drawn up; and

    (b) notice of the holding of the investigation and the terms of reference has been served or published as required by sub-paragraph (3) or (4).

    (2) The terms of reference for the investigation shall be drawn up (and may be revised) - 

    (a) if the investigation is held at the direction of the Office, by the Office after consulting the Commission; and

    (b) in any other case, by the Commission.

    (3) Where the terms of reference confine the investigation to activities of one or more named persons, notice of the holding of the investigation and the terms of reference shall be served on each of those persons.

    (4) Where the terms of reference do not confine the investigation to activities of one or more named persons, notice of the holding of the investigation and the terms of reference shall be published in such manner as appears to the Commission appropriate to bring it to the attention of persons likely to be affected by it.

    (5) If the terms of reference are revised, this paragraph applies again in relation to the revised investigation and its terms of reference.

Investigation of unlawful acts etc.

     3.  - (1) This paragraph applies where the Commission proposes to investigate in the course of a formal investigation (whether or not the investigation has already begun) whether - 

    (a) a person has committed or is committing any unlawful act;

    (b) any requirement imposed by a non-discrimination notice served on a person (including a requirement to take action specified in an action plan) has been or is being complied with;

    (c) any undertaking given by a person in an agreement made with the Commission under Article 7 is being or has been complied with.

    (2) The Commission may not investigate any such matter unless the terms of reference of the investigation confine it to the activities of one or more named persons (and the person concerned is one of those persons).

    (3) The Commission may not investigate whether a person has committed or is committing any unlawful act unless - 

    (a) it has reason to believe that the person concerned may have committed or may be committing the act in question, or

    (b) that matter is to be investigated in the course of a formal investigation into his compliance with any requirement or undertaking mentioned in sub-paragraph (1)(b) or (c).

    (4) The Commission shall serve a notice on the person concerned offering him the opportunity to make written and oral representations about the matters being investigated.

    (5) If the Commission is investigating whether the person concerned has committed or is committing any unlawful act (otherwise than in the course of a formal investigation into his compliance with any requirement or undertaking mentioned in sub-paragraph (1)(b) or (c)) the Commission shall include in the notice required by sub-paragraph (4) a statement informing that person that the Commission has reason to believe that he may have committed or may be committing any unlawful act.

    (6) The Commission shall not make any findings in relation to any matter mentioned in sub-paragraph (1) without giving the person concerned or his representative a reasonable opportunity to make written and oral representations.

    (7) The Commission may refuse to receive oral representations made on behalf of the person concerned by a person (not being counsel or a solicitor) to whom the Commission reasonably objects as being unsuitable.

    (8) If the Commission refuses to receive oral representations from a person under sub-paragraph (7), it shall give reasons in writing for its objection.

    (9) A notice required by sub-paragraph (4) may be included in a notice required by paragraph 2(3).

    (10) In this paragraph "unlawful act" means an act which is unlawful discrimination for the purposes of any provision of Part II or Part III of the 1995 Act or any other unlawful act of a description prescribed for the purposes of this paragraph.

Power to obtain information

     4.  - (1) For the purposes of a formal investigation the Commission may serve a notice on any person requiring him - 

    (a) to give such written information as may be described in the notice; or

    (b) to attend and give oral information about any matter specified in the notice, and to produce all documents in his possession or control relating to any such matter.

    (2) A notice under this paragraph may only be served on the written authority of the Office unless the terms of reference confine the investigation to the activities of one or more named persons and the person being served is one of those persons.

    (3) A person may not be required by a notice under this paragraph - 

    (a) to give information, or produce a document, which he could not be compelled to give in evidence, or produce, in civil proceedings before the High Court; or

    (b) to attend at any place unless the necessary expenses of his journey to and from that place are paid or tendered to him.

     5.  - (1) The Commission may apply to a county court for an order under this paragraph if - 

    (a) a person has been served with a notice under paragraph 4; and

    (b) he fails to comply with it or the Commission has reasonable cause to believe that he intends not to comply with it.

    (2) An order under this paragraph is an order requiring the person concerned to comply with the notice or with such directions for the same purpose as may be contained in the order.

Recommendations

     6.  - (1) The Commission may make recommendations in the light of its findings in a formal investigation.

    (2) The recommendations may be - 

    (a) recommendations to any person for changes in his policies or procedures, or as to any other matter, with a view to promoting the equalisation of opportunities for disabled persons or persons who have had a disability, or

    (b) recommendations to the Office, for changes in the law or otherwise.

    (3) The Commission may make such recommendations before the conclusion of the investigation concerned.

Reports

     7.  - (1) The Commission shall prepare a report of its findings in any formal investigation.

    (2) The Commission shall exclude from such a report any matter which relates to an individual's private affairs or any person's business interests if - 

    (a) publication of that matter might, in the Commission's opinion, prejudicially affect that individual or person, and

    (b) its exclusion is consistent with the Commission's duties and the object of the report.

    (3) The report of an investigation carried out at the direction of the Office shall be published by the Office or, if the Office so directs, by the Commission.

    (4) The report of any other investigation shall be published by the Commission.

    (5) Nothing in this paragraph affects the Commission's power to issue a non-discrimination notice before a report is prepared or published.



PART II

NON-DISCRIMINATION NOTICES

Procedure for issuing and appealing against non-discrimination notices

     8.  - (1) The Commission shall not issue a non-discrimination notice addressed to any person unless it has complied with the requirements of this paragraph.

    (2) The Commission shall serve on the person concerned a notice - 

    (a) informing him that the Commission is considering issuing a non-discrimination notice and of the grounds for doing so,

    (b) offering him the opportunity to make written and oral representations.

    (3) The Commission shall give the person concerned or his representative the opportunity of making oral and written representations within a period specified in the notice of not less than 28 days.

    (4) The Commission may refuse to receive oral representations made on behalf of the person concerned by a person (not being counsel or a solicitor) to whom the Commission reasonably objects as being unsuitable.

    (5) If the Commission refuses to receive oral representations from a person under sub-paragraph (4), it shall give reasons in writing for its objection.

     9. On issuing a non-discrimination notice, the Commission shall serve a copy on the person to whom it is addressed.

Appeal against non-discrimination notice

     10.  - (1) A person on whom a non-discrimination notice is served may, within the period of six weeks beginning on the day on which the notice is served on him, appeal against any requirement imposed by the notice under Article 6(1)(b) or (3).

    (2) An appeal under this paragraph lies - 

    (a) to an industrial tribunal, so far as the requirement relates to acts within the tribunal's jurisdiction; and

    (b) to a county court, so far as the requirement relates to acts which are not within the jurisdiction of an industrial tribunal.

    (3) The court or tribunal may quash any requirement appealed against - 

    (a) if it considers the requirement to be unreasonable; or

    (b) in the case of a requirement imposed under Article 6(1)(b), if it considers that the Commission's finding that the person concerned had committed or is committing the unlawful act in question was based on an incorrect finding of fact.

    (4) On quashing a requirement, the court or tribunal may direct that the non-discrimination notice shall have effect with such modifications as it considers appropriate.

    (5) The modifications which may be included in such a direction include - 

    (a) the substitution of a requirement in different terms; and

    (b) in the case of a requirement imposed under Article 6(1)(b), modifications to the details given under Article 6(1)(a) so far as necessary to describe any unlawful act on which the requirement could properly have been based.

    (6) Sub-paragraph (1) does not apply to any modifications contained in a direction under sub-paragraph (4).

    (7) If the court or tribunal allows an appeal under this paragraph without quashing the whole of the non-discrimination notice, the Commission may by notice to the person concerned vary the non-discrimination notice - 

    (a) by revoking or altering any recommendation included in pursuance of the Commission's power under Article 6(2); or

    (b) by making new recommendations in pursuance of that power.

     11. For the purposes of Part II of this Order a non-discrimination notice becomes final when - 

    (a) an appeal under paragraph 10 is dismissed, withdrawn or abandoned or the time for appealing expires without an appeal having been brought; or

    (b) an appeal under that paragraph is allowed without the whole notice being quashed.

    Enforcement of non-discrimination notice

     12.  - (1) This paragraph applies during the period of five years beginning on the date on which a non-discrimination notice served on a person has become final.

    (2) During that period the Commission may apply to a county court for an order under this paragraph, if - 

    (a) it appears to the Commission that the person concerned has failed to comply with any requirement imposed by the notice under Article 6(1)(b); or

    (b) the Commission has reasonable cause to believe that he intends not to comply with any such requirement.

    (3) An order under this paragraph is an order requiring the person concerned to comply with the requirement or with such directions for the same purpose as are contained in the order.

Register of non-discrimination notices

     13.  - (1) The Commission shall maintain a register of non-discrimination notices which have become final.

    (2) The Commission shall, in the case of notices which impose a requirement to propose an action plan, note on the register the date on which any action plan proposed by the person concerned has become final.

    (3) The Commission shall arrange for - 

    (a) the register to be available for inspection at all reasonable times, and

    (b) certified copies of any entry to be provided if required by any person.

    (4) The Commission shall publish those arrangements in such manner as it considers appropriate to bring them to the attention of persons likely to be interested.



PART III

ACTION PLANS

Introductory

     14.  - (1) This Part applies where a person ("P") has been served with a non-discrimination notice which has become final and includes a requirement for him to propose an action plan.

    (2) In this Part "adequate" in relation to a proposed action plan means adequate (as defined in Article 6(4)(b)) for the purposes of the requirement mentioned in Article 6(1)(b).

The first proposed action plan

     15.  - (1) P must serve his proposed action plan on the Commission within such period as may be specified in the non-discrimination notice.

    (2) If P fails to do so, the Commission may apply to a county court for an order directing himto serve his proposed action plan within such period as the order may specify.

    (3) If P serves a proposed action plan on the Commission in response to the non-discrimination notice, or to an order under sub-paragraph (2), the action plan shall become final at the end of the prescribed period, unless the Commission has given notice to P under paragraph 16.

Revision of first proposed action plan at invitation of Commission

     16.  - (1) If the Commission considers that a proposed action plan served on it is not an adequate action plan, the Commission may give notice to P - 

    (a) stating its view that the plan is not adequate; and

    (b) inviting him to serve on the Commission a revised action plan which is adequate, within such period as may be specified in the notice.

    (2) A notice under this paragraph may include recommendations as to action which the Commission considers might be included in an adequate action plan.

    (3) If P serves a revised proposed action plan on the Commission in response to a notice under this paragraph, it shall supersede the previous proposed action plan and become final at the end of the prescribed period, unless the Commission has applied for an order under paragraph 17.

    (4) If Pdoes not serve a revised action plan in response to a notice under this paragraph, the action plan previously served on the Commission shall become final at the end of the prescribed period, unless the Commission has applied for an order under paragraph 17.

Action by Commission as respects inadequate action plan

     17.  - (1) If the Commission considers that a proposed action plan served on it is not an adequate action plan it may apply to the county court for an order under this paragraph.

    (2) The Commission may not make an application under this paragraph in relation to the first proposed action plan served on it by P (even where it was served in compliance with an order of the court under paragraph 15(2)) unless - 

    (a) a notice under paragraph 16 has been served on P in relation to that proposed action plan; and

    (b) P has not served a revised action plan on the Commission in response to it within the period specified in the notice under paragraph 16(1)(b).

    (3) An order under this paragraph is an order - 

    (a) declaring that the proposed action plan in question is not an adequate action plan;

    (b) requiring P to revise his proposals and serve on the Commission an adequate action plan within such period as the order may specify; and

    (c) containing such directions (if any) as the court considers appropriate as to the action which should be specified in the adequate action plan required by the order.

    (4) If on an application under this paragraph the court does not make an order, the proposed action plan in question shall become final at the end of the prescribed period.

     18.  - (1) This paragraph applies where an order of the court under paragraph 17 ("the order") requires P to serve an adequate action plan on the Commission.

    (2) If, in response to the order, P serves an action plan on the Commission, that action plan shall become final at the end of the prescribed period unless the Commission has applied to a county court to enforce the order on the ground that the plan does not comply with the order (and any directions under paragraph 17(3)(c)).

    (3) Where an application is made as mentioned in sub-paragraph (2) - 

    (a) if the Commission withdraws its application, the action plan in question shall become final at the end of the prescribed period;

    (b) if the court considers that the action plan in question complies with the order, that action plan shall become final at the end of the prescribed period.

    Variation of action plans

     19. An action plan which has become final may be varied by agreement in writing between the Commission and P.

Enforcement of action plans

     20.  - (1) This paragraph applies during the period of five years beginning on the date on which an action plan drawn up by P becomes final.

    (2) If during that period the Commission considers that P has failed to comply with the requirement under Article 6(3)(b) to carry out any action specified in the action plan, the Commission may apply to a county court for an order under this paragraph.

    (3) Anorder under this paragraph is an order requiring Pto comply with that requirement or with such directions for the same purpose as are contained in the order.

Power to obtain information

     21.  - (1) For the purposes of determining whether - 

    (a) an action plan proposed by P is an adequate action plan; or

    (b) P has complied or is complying with the requirement to take the action specified in an action plan which has become final,

the Commission may serve a notice on any person requiring him to give such information in writing, or copies of documents in his possession or control, relating to those matters as may be described in the notice.

    (2) A person may not be required by a notice under this paragraph to give information, or produce a document, which he could not be compelled to give in evidence or produce in civil proceedings before the High Court.

    (3) The Commission may apply to a county court for an order under this sub-paragraph if a person has been served with a notice under this paragraph and fails to comply with it.

    (4) An order under sub-paragraph (3) is an order requiring the person concerned to comply with the notice or with such directions for the same purpose as may be contained in the order.



PART IV

SUPPLEMENTARY

Restriction on disclosure of information

     22.  - (1) No information given to the Commission by any person ("the informant") in connection with - 

    (a) a formal investigation; or

    (b) the exercise of any of its functions in relation to non-discrimination notices, action plans and agreements under Article 7,

shall be disclosed by the Commission or by any person who is or has been a Commissioner, an additional Commissioner or an employee of the Commission.

    (2) Sub-paragraph (1) does not apply to any disclosure made - 

    (a) on the order of a court,

    (b) with the informant's consent,

    (c) in the form of a summary or other general statement published by the Commission which does not identify the informant or any other person to whom the information relates,

    (d) in a report of the investigation published by the Commission,

    (e) to a Commissioner, an additional Commissioner or an employee of the Commission, or, so far as is necessary for the proper performance of the Commission's functions, to other persons, or

    (f) for the purpose of any civil proceedings to which the Commission is a party, or of any criminal proceedings.

    (3) A person who discloses information contrary to sub-paragraph (1) is guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.

Enforcement of court orders

     23.  - (1) This paragraph applies to any order made by a county court under Article 7(8) or under any provision of this Schedule.

    (2) Article 54 of the County Courts (Northern Ireland) Order 1980 (penalty for refusal to appear, be sworn or give evidence) shall have effect in relation to a failure to comply with an order made by a county court to which this paragraph applies with the following modifications - 

    (a) for paragraphs (1) and (2) there shall be substituted - 

        " (1) Any person who fails without reasonable excuse to comply with an order made by a county court under Article 7(8) of or any provision of Schedule 1 to the Equality (Disability, etc.) (Northern Ireland) Order 2000 shall be guilty of a contempt of the court.";

    (b) for paragraph (3) there shall be substituted - 

        " (3) Notwithstanding Article 55(2), where a person is guilty of contempt of court under this Article, the judge shall not commit the person to prison but may, if he thinks fit, impose on that person a fine of such amount as the judge may direct.";

    (c) in paragraph (4), for the words "the party injured by the refusal or neglect" there shall be substituted the words "the Equality Commission for Northern Ireland for expenses incurred or wasted in consequence of the failure to comply with the order concerned"; and

    (d) paragraphs (5) and (6) shall be omitted.

    (3) If the Commission applies to a county court to enforce an order to which this paragraph applies, the court may modify the order.

Offences

     24.  - (1) A person who - 

    (a) deliberately alters, suppresses, conceals or destroys a document to which a notice under paragraph 4 or 21, or an order under paragraph 5 or 21(3), relates; or

    (b) in complying with - 

      (i) a notice under paragraph 4 or 21;

      (ii) a non-discrimination notice;

      (iii) an agreement under Article 7; or

      (iv) an order of a court under Article 7(8) or under any provision of this Schedule,

    makes any statement which he knows to be false or misleading in a material particular or recklessly makes a statement which is false or misleading in a material particular, is guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.

    (2) Proceedings for an offence under this paragraph may (without prejudice to any jurisdiction exercisable apart from this sub-paragraph) be instituted - 

    (a) against any person at any place at which he has an office or other place of business;

    (b) against anindividual at anyplace where he resides, or at whichhe is for the time being.

    Service of documents

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

Regulations

     26. The Office may make regulations making provision - 

    (a) supplementing Part I or II of this Schedule in connection with any matter concerned with the conduct of formal investigations or the procedure for issuing non-discrimination notices; or

    (b) amending Part III of this Schedule in relation to the procedures for finalising action plans.



SCHEDULE 2
Article 16.


REPEALS


Chapter or Number Short title Extent of repeal
1995 c. 50. The Disability Discrimination Act 1995. Sections 50 to 54.
    Section 67(4).
    In section 68(1), in the definition of "Northern Ireland department" the words "(except in sections 51 and 52)".
    Section 70(7).
    Schedule 5.
    In Schedule 8, paragraphs 4(2) and (3), 14, 33 to 37 and 52.
1996 NI 16. The Employment Rights (Northern Ireland) Order 1996. In Schedule 1, the entry relating to section 50(9) of the Disability Discrimination Act 1995.
1998 c. 47. The Northern Ireland Act 1998. Schedule 13, paragraph 16.


EXPLANATORY NOTE

(This note is not part of the Order)


This Order confers new powers in respect of discrimination by reason of disability on the Equality Commission for Northern Ireland. This Order also provides for the appointment of additional Commissioners of that Commission, amends the reporting period of that Commission and amends the transitional and saving provisions of the Fair Employment and Treatment (Northern Ireland) Order 1998.


ISBN 0 11 099152 4

Crown copyright 2000

Prepared 12 May 2000

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