Section 75, Northern I reland Act 1998
This submission seeks to address some legal issues that it is felt have been raised by the inclusion of various pieces of legislation within funding policies. It must be stressed from the outset that this submission does not deal with many of the wider issues around funding policy; instead it focuses solely on the issue of section 75 legislation, and the legality of its inclusion within any public authority funding policy. This legislation is particularly relevant to bonfire groups as Councils and OFMDFM have consistently tried to make compliance with section 75 a funding grant condition.
Section 75 of the Northern Ireland Act 1998 came into force on 01 January 2000 and is summarised in the following terms (source, OFMDFM);
Section 75 and Schedule 9 to the Northern Ireland Act 1998 came into force on the 01 January 2000 and placed a statutory obligation on public authorities in carrying out their various functions relating to Northern Ireland, to have 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;
between men and women generally;
between persons with a disability and persons without; and
between persons with dependants and persons without.
Even in the overview of this piece of legislation it makes clear that Section 75 placed a “statutory obligation on public authorities”. There is no reference to non-public bodies such as community groups, flute bands or other constituted groups. It refers solely to public bodies. In section 3 sub sections a-c those designated as public authorities are listed and sub section 3d provides the avenue for a body to be added to the list by virtue of an order made by the Secretary of State. For ease of reference I have included the legislative text below:
3) In this section “public authority” means—
(a)any department, corporation or body listed in Schedule 2 to the Parliamentary Commissioner Act 1967 (departments, corporations and bodies subject to investigation) and designated for the purposes of this section by order made by the Secretary of State;
(b)any body (other than the Equality Commission) listed in Schedule 2 to the Commissioner for Complaints (Northern Ireland) Order 1996 (bodies subject to investigation);
(c)any department or other authority listed in Schedule 2 to the Ombudsman (Northern Ireland) Order 1996 (departments and other authorities subject to investigation);
(cc)the Northern Ireland Policing Board, the Chief Constable of the Police Service of Northern Ireland and the Police Ombudsman for Northern Ireland;]
(cd)the Director of Public Prosecutions for Northern Ireland;]
(ce)the Chief Inspector of Criminal Justice in Northern Ireland;
(cf)the Northern Ireland Law Commission;]
(d)any other person designated for the purposes of this section by order made by the Secretary of State
The above extracts from the legislation make no reference to community groups being bound by section 75.
One must remember that Section 75 was part of the Northern Ireland Act 1998 and much of this was more akin to emergency legislation that was rushed through following the Belfast Agreement. Quite a lot of this legislation is riddled with ambiguity and is effectively bad law. It is ambiguous and without clearly defined parameters in a number of areas. It is only now that we are beginning to see the grey areas in various pieces of legislation- rushed through post 1998- coming under judicial scrutiny. Section 75 as of yet has not been the subject to judicial clarity in relation to the matter which I am addressing.
The grey area of this legislation is that if the Council, OFMDFM or any public body for that matter are providing funding to a community group then does the Section 75 obligation stretch itself to placing an obligation upon the group in receipt of the funding or, as I contend, is any attempt to stretch section 75 to place an obligation on funding recipients an abuse of legislation? A number of funders and councils have attempted to place the section 75 duty upon funding recipients or community groups and I believe they have no grounds for doing so.
As previously highlighted there is no judicial clarity on this matter, therefore I submit that any public body that attempts to place a duty upon funding recipients are materially misdirecting themselves and in a legal sense any policy that makes reference to section 75 as a condition of receiving funding is not worth the paper it is written on.
The legal burden to establish judicial clarity on the legislation therefore rests upon the public authority rather than the non public authority such as a community group. The flip side of this is that if a public authority withholds funding on the basis of a community groups refusal to agree to a section 75 obligation then the logical process would be for the community group to take a judicial challenge against the legality of withholding funding. It would be somewhat foolish for a public authority to withhold on the basis of a refusal to accept a section 75 obligation without clear judicial clarity therefore it is somewhat unclear as to how the circumstances for a judicial challenge will arise.
It is my contention that until there is judicial clarity, which I believe will re-affirm my submission that section 75 does not stretch to community groups, then no community group should be bound by this legislation and subsequently no funding should be withheld on the basis of a community groups refusal to accept the section 75 obligation.
Section 75 is a dangerous piece of legislation for single identity community groups therefore it is imperative that it is nullified. The legislation does not, in any section or sub section, make reference to the stretching of section 75 to place an obligation on a group that is receiving funding from a public authority. In this regard the burden rests upon Parliament to legislate around this. I submit that even for the judiciary to interpret section 75 as placing an obligation on a non public authority would be akin to subverting the will of Parliament and therefore in itself unlawful. There is no reference or hint of a reference to non public authorities within the legislation therefore there are no grounds for interpreting section 75 as placing an obligation on those recipients of funding from public authorities.
It is vital that all PUL community groups are aware of the dangers of ambiguous legislation being included within funding policies etc. and I urge all groups to go through all funding agreements or letters of offer line by line before agreeing to anything. Quite often these policies act as the thin edge of the wedge.