16.7.1 Section 75 and Schedule 9 to the Northern Ireland Act 1998, came into force on 1 January 2000.
16.7.2 The provisions place a statutory obligation on public authorities (Northern Ireland departments, most non-departmental public bodies, District Councils and other bodies including UK departments designated by the Secretary of State) 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; and
• persons with dependants and persons without.
16.7.3 In addition, without prejudice to this obligation, public authorities must have regard to the desirability of promoting good relations between persons of different religious belief, political opinion, or racial group (Section 76, Northern Ireland Act 1998).
Whilst this legislation imposes a statutory duty on the public sector only, the Authority must ensure that a Contractor performs the Services in such a way as to ensure that the Authority is not in breach of its statutory duty. This equality legislation is considered amongst the most stringent world wide and must be considered at an early stage in the development of any PFI project.
16.7.4 Section 75(4) and Schedule 9 of the Northern Ireland Act 1998 state that every Authority, unless advised otherwise in writing by the Equality Commission, must have an Equality Scheme showing how the Authority proposes to fulfil its section 75 obligations in relation to its functions (schedule 9, 4(1)). The Equality Commission's Guide to Implementation of section 75 obligations (http://www.equalityni.org) is issued pursuant to Schedule 9, para 4(3)(a) of which requires that equality schemes "conform to any guidelines as to form and content which are issued by the Commission with the approval of the Secretary of State".241
16.7.5 The Authority is required to "screen" policies in order to determine whether a full equality impact assessment is required (Sch 9, para 4(2)(b), Equality Commission Guide, page 35 onwards). A PFI project must be regarded as a "policy" for the purposes of the legislation. It is recommended that equality screening be carried out on every PFI project as early as possible in the process. Equality screening involves consultation with all those potentially effected by the Project including representatives of the categories set out in Section 75 above. If the equality screening finds that there are significant equality issues involved in the Project, a full Equality Impact Assessment ("EQIA") should be carried out. An EQIA takes several months. The Equality Commission recommend at least 12 weeks for the consultation element of the EQIA.
16.7.6 As the result of the screening and any subsequent EQIA will inform the content of the Project Specification, it is critical that this process is carried out early by the Authority. If the Authority goes to the market with a Project that has not been screened and impact assessed if necessary, it may result in having to start the procurement process again if the Project Specification changes significantly.
Furthermore, a complaint to the Commission, under Schedule 9, paragraph 10, that an Authority has failed to comply with an approved equality scheme (i.e. that the Project is in some way in breach of Section 75) can, and indeed must, be made within 12 months of the complainant knowing of the matters complained of. Before making such a complaint the complainant must bring the complaint to the notice of the Authority and give it a reasonable opportunity to respond. As with any decision of a public body there is the possibility of judicial review. An application for judicial review must be brought promptly and in any event within three months of the decision being challenged. Therefore the sooner the process is completed, in compliance with an Authority's approved equality scheme, the sooner the risk of challenge on equality grounds can be eliminated from a Project.
Whilst the initial screening and any subsequent EQIA of a PFI Project must be carried out by an Authority, Authorities should consider what contractual commitments they require from the Contractors to discharge their statutory duty under Section 75 and Schedule 9 of the Northern Ireland Act 1998. Authorities have an obligation, under Schedule 9 para 4 (2) (c), to state in their equality scheme, the arrangements for monitoring any adverse impact of policies adopted by the Authority on the promotion of equality of opportunity. The Equality Commission Guide deals with monitoring at page 38 paragraph 4, and at Annex 1 paragraph 7, on page 46.
16.7.7 Appendix B of the Policy Framework Northern Ireland (see paragraph 15.6.1.1) suggests that "Through rigorous contract specifications we can require private sector compliance with the ethos of Section 75 and employment best practice more generally". It should be remembered that it is the public sector which is most familiar with the operation of Section 75, with screening and with equality impact assessment. It should also be remembered that it is unlawful for the Contractor, in its capacity as employer to discriminate on the Section 75 grounds except, for the moment, age, and on the grounds of race, religion, political opinion, sex and disability in their capacity as providers of goods and services, as a result of the legislation set out in the table at the start of this Chapter 15.
16.7.8 As a minimum, an Authority should require a Contractor not to discriminate against any of the categories of persons set out in Section 75. An Authority may want to go further and impose obligations on the Contractor to cooperate with its ongoing statutory duty and build this into the Specification. There seems little point in imposing a general obligation on a Contractor to have due regard to the need to promote equality of opportunity or to have regard to the desirability of promoting good relations between the various categories of persons. If the obligations are not set out in the Contract, there will be no real remedy for breach.
There will be a statutory duty on an Authority to continuously monitor a PFI Project for equality compliance. For example, where an Authority is concerned that hospital services are not being accessed by members of ethnic minorities the Authority will have to take action. This can be provided for in the change mechanism.
16.7.9 Any Contractor should be required to have an equal opportunities policy in relation to its employment practices and in relation to the provision of goods, facilities and services.
16.7.10 Contractors registered with the Equality Commission under the Fair Employment legislation are required to carry out a three yearly review of their employment practices. Authorities may wish to ensure that the Contractor maintains a database of all equality issues raised or complaints made, whether in the employment or service areas, for the purpose of enabling the Authority to monitor and assess the ongoing equality impact of the Project. The Equality Commission Guide deals with monitoring at page 38, paragraph 4 and at Annex 1, paragraph 7 on page 46.
16.7.11 Mechanisms should be put in place for modifying the operation of the Contract where monitoring and assessment under the Authority's equality scheme identify inequalities which must be addressed, and for assessing any resulting costs and who should bear them. For example, where an Authority is concerned that hospital services are not being accessed by members of ethnic minorities the Authority may, in conjunction with public advertising, require information points at hospital entrances to display leaflets on services and site maps in the relevant languages.
16.7.12 EU Public Procurement Directives allow the award of PFI contracts on the following bases:
(1) Lowest price tender; or
(2) Most economically advantageous tender
Whilst the European Court of Justice has confirmed242 that social issues such as employment requirements can be considered in determining the most economically advantageous tender, this is only the case where it is in conformity with all of the fundamental principles of Community law, in particular, non-discrimination on grounds of nationality.
It is quite conceivable, therefore that there could be a conflict between NI equality legislation and EU public procurement law re the use of social issues during the evaluation of bids.
It is essential where such a potential conflict exists, that legal advice is sought.
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241 Authorities should also see the Equality Commission/Central Procurement Directorate guidance "Equality of Opportunity and Sustainable Development in Public Sector Procurement" (http://www.equalityni.org), which (as well advising Authorities on compliance with their obligations relating to sustainable development under section 25 of the Northern Ireland (Miscellaneous Provisions) Order 2006) provides further guidance on Authorities compliance with their duties under section 75 of the Northern Ireland Act 1998.
242 Case C-225/98, Commission -v- France