Examination of Witnesses (Questions 121
WEDNESDAY 13 JANUARY 1999
and MS ANNE
121. Sir Robert, we are delighted to welcome
you and your colleagues here. We are extremely grateful to you
for coming, just as we were extremely grateful to you for the
papers you sent us back in September which you subsequently supplemented
when we embarked on this project. As you probably know, there
is nothing magic to it being the tenth anniversary of the Act,
and indeed your own papers make clear that in many ways the year
2000 would be a better year to take because you would have the
extra year of relevant statistics. Nevertheless, we are embarked
upon it. Before we embark on questions I will ask if there is
anything you want to say of a preparatory nature, including introduction
of your colleagues, but I will leave that entirely to you. We
are on this occasion going to ask a fair number of questions,
we will try and be rational and take questions out if it is quite
clear we have had an answer at an earlier stage. I just give you
that warning in advance, so that questions will I hope follow
a logical order. If at any stage afterwards you want to gloss
anything that any of you have said, please feel free to do so,
and we would be happy to have a written note. Equally, if something
occurs to us which we ought to have asked but did not ask, we
will reserve the liberty of coming back to you. Is there anything
you would like to say in advance beyond the introductions?
(Sir Robert Cooper) I do not think so, Chairman.
I think we have put forward a submission which I presume people
will have read, and we will be very pleased to answer questions.
It does not seem we should be taking up time adding to that. I
have with me Harry Goodman, who is Chief Executive of the Fair
Employment Commission; Eileen Lavery, on my left, who is Director
of Policy, and Anne Balmer who is joint Legal Director.
122. Let me ask an extremely basic question
to start off with. What do you consider the main aims of the fair
employment legislation are?
(Sir Robert Cooper) The main aims of the fair
employment legislation, as I would see it, would be to create
a society which in terms of employment is fair to people from
both communities or all communities and which rectifies any past
problems in terms of inequality. I would say there are a number
of ways of achieving that and we have always placed enormous emphasis
on the importance of the legislation helping to create jobs, because
we have taken the view that a major role in improving representation
of both communities is by the creation of more jobs.
123. A question which flows out of the answer
which you have just given, how far is there a tension underlying
the legislation between achieving a more integrated workforce
and tackling the very specific problem of Catholic under-representation?
(Sir Robert Cooper) There is a degree of tension
and in a sense in terms of our original policy statement we argued
quite strongly that there are two aims. The first one is to achieve
better representation of the Catholic community, but the second
one is to get rid of segregation in employment. The reason we
adopted those twin aims was simply along the lines of the question,
that it would be possible for us for example if we only adopted
the first aim to get better Catholic representation but not to
be concerned in the case of companies, for example, where there
is a big under-representation of Protestants. In our view that
would be wrong and we have adopted that as our twin aim. We think
that whereas there may appear to be some conflict in fact there
is not, and in essence there is not total contradiction between
them because if you have theoretically a situation where you had
separate but equal, that in our view rarely means equal.
124. I understand the answer you have just
given and I was struck by the sections 2.3, 4, 5 and 6 in your
response to the White Paper in which you specifically dealt with
the issue of Protestant under-representation and the implications
that would have for the conduct of policy and the possibility
it might get in the way of certain other desiderata, but are you
saying that the twin aims are in fact equal and in harness or
are you saying that one of them has a priority over the other?
(Sir Robert Cooper) We have not had to prioritise
them. We have regarded them as both very important twin aims.
I suppose if we were starved of resources we might have to decide
we should neglect one rather than the other, but we have not been
in that situation and we have not therefore elevated one over
the other. We regard both as central to creating a fairer society.
Chairman: I will turn
to Mr Beggs to ask the next few questions.
125. Thank you, Chairman. Good afternoon.
What do you consider "fair participation" to mean? Should
fair participation be defined in the legislation? Has the lack
of definition in the legislation proven to be a problem in practice,
either for you as the regulator or for employers?
(Sir Robert Cooper) A lot of people argued very
strongly that fair participation should be defined in the legislation.
It has not been defined in the legislation, we have not found
it a major problem that it has not been. We have been able to
work with employers in terms of defining the particular situation
with their company because it varies even in terms of an individual
company. It varies depending on the type of labour which you are
looking at. For example, you can visualise a company where there
are a lot of part-time cleaners employed, and fair participation
would be the catchment area for those people and that would be
a very localised catchment area; people are not going to travel
20 miles for a few hours' office cleaning. On the other hand,
for, for example, management, senior technical staff, professional
staff, the whole of Northern Ireland would be the catchment area.
So it varies not just from company to company but from grade of
labour to grade of labour. In those circumstances we have not
found it a major problem that it has not been defined, and we
would not have had much difficulty with employers in terms of
126. Do you consider that fair participation
applies to all levels of the workforce or all employers, or just
for larger employers?
(Sir Robert Cooper) It applies for all employers
but clearly the numbers are relevant. The legislation at present
does not require monitoring or anything like that for employers
with less than 11 employees. There is a very good reason for that,
and that is that statistics are meaningless for an employer with
ten employees, and, similarly, the lower down you go in terms
of the number of employees, the less meaning statistics have.
So that if you have a company with 1,000 employees then statistics
are extremely relevant and extremely relevant at each level, but
if you have a company with 20 employees for example and perhaps
two or three managers then statistics are irrelevant and you cannot
really look at whether there is fair participation. You would
be concerned if you had a company with 20 employees in a 50-50
catchment area and every single employee was from one community
or the other community, but apart from that you cannot really
get into detail because the statistics are relevant in relation
to the size.
127. In having decided to look at the legislation
after the ten year period, it would be odd if we were not involved
in looking at the effectiveness of legislation in that process.
What criteria do you think our Committee should use for testing
the effectiveness of legislation?
(Sir Robert Cooper) I think the first criteria
is looking at the twin aims. The first criteria is the extent
to which there has been an increase in representation of the Catholic
community, getting closer and closer to the overall economically
active population, and the extent to which the gap has narrowed.
The second test is the extent to which segregation is declining.
We have been working in a situation where perhaps, in many areas,
segregation has been increasing; certainly over the last ten years
there has been a great deal of academic evidence of an increase
in segregation for example in housing and where people live. I
think it is highly desirable that the legislation should help
to create a decline in segregation in employment and that is an
area we are concerned with as well. Obviously, an important consideration
is the extent to which people who feel they have been discriminated
against feel they have got justice, that their complaint has been
properly investigated, irrespective of the outcome. I think one
of the things which many people do not accept or do not understand
is that an outcome which is satisfactory to the complainant is
not necessarily a victory or a settlement. Even if an individual
feels he or she has been discriminated against it is quite important
that the information should become available for them to be able
to judge perhaps they have not been discriminated against. That
I think is quite important, not just for the individual but for
Northern Ireland society as well, so that people do not go around
with a very strong chip on their shoulder that they were discriminated
against; a chip which can last 20 or 30 years. We get letters
all the time from people saying, "Thirty years ago I was
discriminated against, what are you going to do about it?"
and we have to tell them there is not much we can do about it.
That I think is extremely important.
Chairman: I am not
sure whether we have yet published the evidence which was given
to us by the CBI under examination but I will report, though it
is more an observation about the legislation than about the work
of the Commissionthough the Commission is obviously embraced
in the compliment, that our colleague Mr Livingstone prefaced
his questions to the CBI by saying that he had been extremely
sceptical about the legislation when it was originally introduced,
and he had believed it was simply a sop towards the MacBride Principles,
but he had been genuinely impressed by the amount which had been
achieved under the legislation. If that compliment has not reached
you, I pass it on.
128. How far do you consider that the changes
you detail in workforce composition are the result of fair employment
legislation and how far do you consider they would have come about
without such legislation?
(Sir Robert Cooper) It is very difficult to give
an answer to that and very difficult to disentangle the situation.
All I would say is that, during the previous period when the legislation
was much weaker and where broadly speaking the legislation was
simply designed to deal with direct discrimination and indirect
discrimination was not covered, there was not as great a change
over the previous 15 or 20 years. So I believe that a considerable
part of the changes has been as a result of the legislation but
I would by no means argueand I think it would be arrogant
of me or foolish of me to arguethat the changes have been
exclusively because of that. A very simple thing, and this is
a point which I referred to earlier, is the growth in the economy.
If in fact the economy had been declining over this period, I
would be sitting here today saying, "Unfortunately we have
not achieved very much but of course it is because of the decline
in the economy", and that would be accurate, but you might
not necessarily regard it as very satisfactory. So I suppose basically
what I am saying is if we were to get the blame for a decline,
we might claim some of the credit for an improvement but by no
means could we claim all of it.
129. I want to follow on some of the points
which have been raised by Mr Brooke and Mr Beggs. You said in
response to Mr Brooke that one of the measures of your success
is seen in the statistics and you have supplied us with and in
other relevant information, but then, in connection with what
Mr Beggs was asking, you pointed out there might be a number of
factors involvedthere is the legislation, there is the
work under the legislation of the Commission and then there are
outside factors such as the growth of the economy. What would
you see as being your achievement in all that, specifically done
by the Commission? How would you take on board the argument that
some might say that you have not achieved all that much really,
it has been these outside factors and the over-arching factor
that there has been some legislation?
(Sir Robert Cooper) What I would say is that before
the legislation, particularly in the private sector, the most
common method of recruitment of workers apart from specialist
white collar management, technical people, in Northern Ireland
was word of mouth recruitment. In other words, an employer did
not advertise vacancies, they kept a file of applications and
when they had vacancies they recruited from that file. In those
circumstances, the file was almost entirely representative of
their existing labour force and in those circumstances no change
was taking place. That was probably the single greatest stumbling
block towards the provision of equality, not deliberate direct
discrimination but those sort of practices. Those sort of practices
have all but gone under the terms of our legislation, to such
an extent that most employers now are extremely sensitive that
the methods of recruitment, selection, employment practices have
to be in line with the Fair Employment Code of Practice. A great
deal of emphasis has been placed on the Fair Employment Code of
Practice by the Fair Employment Tribunals and I think the major
achievement which has been gained has been the transformation
in employers' attitudes in terms of employment practices.
130. How much of that is the Commission's
contribution? Is it in terms of informing employers as to what
their duties are in those circumstances or in terms of monitoring
what is taking place in order to make people aware?
(Sir Robert Cooper) I should pay tribute to Parliament,
and it might be appropriate to do so while I am here, in that
if it had not been for the legislation in 1989, a great deal of
that work could not have been achieved. I am not claiming it is
the Commission, I am claiming the legislation has had a very substantial
effect as has our enforcement of the legislation. I can give you
a statistic, in the first full year of the existence of the Fair
Employment Commission, we carried out 104 training exercises with
employers on fair employment practiceswhat they should
be doing, changes they should be making, et ceteralast
year, 1997-98, we carried out 597 training sessions with employers,
so there has been a six-fold increase in those seven years of
training for employers. That is, I think, an example that employers
are taking it very seriously because those sessions are usually
at the will of employers; we offer them the opportunity to get
training for their management or shop stewards, et cetera, but
obviously they are free to take it up or not. The fact that six
times as many are now taking it up is in our view very satisfactory.
131. In the statistics you provide, us in
terms of numbers of appointments of Roman Catholics between 1991
and 1997, the position in the public sector is a barely increasingly
percentage between 1991 and 1995 but then some improvement in
1996-1997, but in the private sector there was a significant increase
between 1991 and 1996 and then a fall-back in 1997. Would you
want to say something about the distinctions between the figures
and the patterns and what is it that has been happening in recent
years which is almost bucking the previous trend?
(Sir Robert Cooper) I think one of the differences
in the public sector and the private sector was that in 1991 proper
recruitment procedures were much more common in the public sector,
so there was nothing like the degree of improvement which was
required in the public sector at that time. In the private sector,
however, as I have explained earlier, there were very, very major
defects in the recruitment procedures and that I would regard
as being the important reason why there has been that significant
change over those years. The fact there has been a slight fall-back
from 1996-97 I would not regard as particularly relevant, it tends
to go up and down a little depending who is doing recruitment,
what sort of recruitment is happening, et cetera, and I would
not regard that as particularly relevant. The relevant thing is
the point you are making, that there is a very substantial increase
in the private sector whereas in the public sector it has been
a much more level pattern.
132. Do you have any evidence that there
is reverse discrimination that takes places because of the operation
of the legislation?
(Sir Robert Cooper) I appreciate the point. There
would be certainly individual cases of reverse discrimination.
We have supported cases of reverse discrimination and there have
been findings of reverse discrimination, but they are individual
cases. In terms of overall patterns, we would have no evidence
whatsoever that there is an overall pattern of reverse discrimination.
We get a lot of monitoring information from employers and we examine
that very carefully and if we were finding that there was substantial
evidence of reverse discrimination, significant evidence, we would
expect to come across it from that monitoring information. We
do not do so. In fact, if you look at the applications for the
private sector and the public sector, you will find, if you take
all of the years together, the success rate for Protestants and
Catholics was up until 1996 (and it varies from year to year)
exactly the same. There was not even a decimal point difference,
in fact, if you take them altogether for both public and private
sector. If there was significant reverse discrimination going
on, one would not expect to find that, one would expect to find
a situation where Catholics were being more successful than Protestants
over a period of time.
133. Would the reverse discrimination you
are aware of in any case amount to cases which were unlawful?
(Sir Robert Cooper) Yes. We have supported a number
of cases of reverse discrimination, although they would not be
enormous numbers but small numbers. I can think of some instances
where certainly the Tribunal ruled that unlawful discrimination,
reverse discrimination, had occurred.
134. You indicated that you could justify
the work of the Commission and the contribution it had made, could
it make a greater contribution if it had extra funding? Are there
any figures in that area?
(Sir Robert Cooper) I do not think there is any
organisation which is ever going to say that funding is totally
adequate, but we do not have a burning sense that we have been
under-funded. We do not have a burning feeling that an enormous
amount more could have been achieved with greater funding. On
the whole, the level of funding which we have had has increased
very substantially over the years and, in the main, we feel we
are not grossly under-funded.
Mr Barnes: It might
have blown your argument that you had been doing well if you had
used the argument that you were under-funded at the same time.
135. It had never previously occurred to
me until this particular session this afternoon, the famous advertisement
in the Church Times, put in by a Church of England parish
in the 1930s, "Rector required, slow left arm bowler preferred",
could have been regarded as discrimination against either right
arm bowlers or indeed fast bowlers in general. I do have one question
which is a supplementary to one or two back which Mr Barnes asked.
I remember when your first reporting occurred, there was a quite
clear significant minority of companies in which there was significant
under-representation by Protestants. Would you say over the years
of reporting since that, that list had been eroded at about the
same pace as the list of companies where there was a significant
under-representation of Catholics? That is a question quite separate
from the evidence you have in fact submitted to us but it went
back to the passage in your response to the White Paper in 2.3
and then the subsequent sections where you do actually refer to
this problem of Protestant under-representation.
(Sir Robert Cooper) If one looks at the different
deciles of composition, in other words if one looks at those companies
which employ less than 10 per cent Catholics, those which employ
less than 20 per cent Catholics, less than 30 per cent Catholics
and so on up until those companies which employ less than 10 per
cent Protestants, in both cases at the end of that you will find
there has been improvement. The improvement has been slightly
better in terms of the companies which are overwhelmingly Protestant
but there has been a significant improvement in both cases. I
have got the figures here. From 1990 to 1997 there was an improvement
in companies which employed less than 10 per cent Catholics of
4.7 per cent, in other words the companies which employed less
than 10 per cent in 1990 had a composition which was 6.1 per cent
Catholic and that went up to 10.7 per cent Catholic. In the companies
which employed less than 10 per cent Protestant it went up by
3.3 per cent. So there has been an improvement of 4.7 per cent
in the proportion employing less than 10 per cent Catholics and
an improvement of 3.3 per cent in less than 10 per cent Protestants.
If you look at each of the deciles until you get to the middle,
where you would not expect to find change and do not find change,
in all the deciles where Catholics were under-represented, there
has been an improvement and in all the deciles where Protestants
were under-represented, there has been an improvement.
Chairman: Thank you
very much indeed.
136. Thank you, Chairman. You are very welcome
to the Committee. Can I turn to the question of long-term unemployment,
which is identified in your evidence as being a major concern?
You estimate that almost two-thirds of the long-term unemployed
are Catholic. We would all, of course, welcome the news today
that the long-term unemployed has reduced by 3,000 in Northern
Ireland over the last 12 months, and that is a positive development.
Two aspects to that. First of all, to what extent do you believe
from the experience gathered over the period of the life of the
Commission that discrimination is a major factor in terms of long-term
unemployment amongst Catholics, when you set that alongside socio-economic
issues relating to where those long-term unemployed tend to be
concentrated, the employment opportunities in those areas, and
the trends in terms of the industries which were in those areas
which have gone into decline and the failure to replace them with
new industries? To what extent is discrimination set alongside
other socio-economic factors a major factor? I just throw out
one example. In West Belfast, for example, where there would be
a high concentration of long-term unemployed Catholic people,
to what extent is it a problem that there are Protestant employers
in West Belfast not employing Catholics as opposed to the fact
that perhaps the area where Catholics were traditionally employed,
areas of industry, have in fact undergone considerable decline?
I was wondering what the experience of the Commission is on that.
(Sir Robert Cooper) A lot of academics have done
an enormous amount of work in trying to disentangle the different
elements in the reason for the unemployment discrepancy, particularly
the long-term unemployment discrepancy. Many of them come down
on the side that a very significant proportion of the discrepancy
is caused by discrimination. Others have come down on the side
that very little of it is caused by discrimination. I personally
believe it is actually not possible accurately to disentangle
it and I am not sure it is all that necessary to disentangle it.
Take, for example, someone who is long-term unemployed. That person
is up against it in the labour market irrespective of discrimination,
whether he is Protestant or Catholic, and employers have a tendency
to wish to employ people who have consistent employment records.
So that person is up against it in the labour market whether he
is Protestant or Catholic. Whether his long-term unemployment
was caused by discrimination in the past as opposed to the present
may be of interest, but the crucial thing is that you do something
to ensure that long-term unemployment is reduced. There are a
number of factors which are related, however. If you talk about
West Belfast, one of them is the violence and the climate of violence
we have had for the last 20, 25 years. One of the major problems
we have had is that people from Catholic areas have been very
reluctant to go to work in Protestant areas, or areas which they
perceive as Protestant areas, and therefore, if you had had peace
over the last 25 years, many more Catholics would have been in
employment than have been in employment, because there would not
have been the vast chill factor there is to working in Protestant
areas or what they perceive as Protestant firms. So, broadly speaking,
what I am saying is that I think it is very difficult to disentangle
it. All of the structural elements people use have an element
which is related to religion, although religion may not be directly
a major factor. I think myself at this moment in time it is desirable
that the whole community in Northern Ireland joins together to
tackle the problem of long-term unemployment rather than having
a lot of arguments about the past, about whether 30, 40, 50, 70
per centand I have seen all of these percentageswas
caused by discrimination in the past. I am not sure it is all
that relevant. The relevant thing is that we tackle the problem
of long-term unemployment. I earlier paid tribute to the legislation
which Parliament introduced in 1989, but one of the problems I
had with it, however, was that Parliament did not at that timeand
we argued strongly in favour of itmake special provision
for recruitment of the long-term unemployed. I believe that was
probably the major single defect in the 1989 Act and it is a defect
which has now been remedied.
137. To follow on from that, in terms of
the new provisions which are being enacted, what in a practical
sense do you think can be done? You talk about the community coming
together to tackle this issue of long-term unemployment, but what
do you feel needs to be done to tackle this issue?
(Sir Robert Cooper) Obviously a lot of it is connected
with Government policy as opposed to fair employment legislation
or fair employment, a lot of it is concerned with increased investment
in areas of high unemployment, and a lot of it is concerned with
increased training in areas of high unemployment. The particular
aspect of it which we have had most concern about, however, is
the fact that, under the terms of the 1989 Act, if an employer
wished to set aside a certain proportion of jobs for long-term
unemployedand quite a lot of companies particularly influenced
by Business in the Community and the Prince's Trust and so on
were keen as a matter of social concern to do thatthe legislation
put them in great difficulties with that, because the legislation
provided that an employer could not practise indirect discrimination.
Because of the discrepancy which you have referred to, the employer
who decided that 15 or 20 per cent of the jobs should be preserved
for the long-term unemployed could have been challenged in the
courts and the tribunal that he or she was indirectly discriminating.
That was the single issue which we were most concerned about.
We had a situation where employers came to us who were involved
with the Prince's Trust, with Business in the Community, et cetera,
and asked for advice on recruiting from the long-term unemployed,
and we tried to help them as far as we could, but we always had
to make it clear to them there was a tightrope there which caused
difficulties. I believe that as a result of that tightrope, less
action was taken by employers in Northern Ireland to recruit from
the long-term unemployed than would otherwise have been the case.
138. Good afternoon. I would like to put
some questions relating to the security service in particular,
and by that I am defining it as per your memorandum in that we
would be looking at the RUC, the Royal Irish Regiment, the Territorial
Army, Royal Naval Reserves, Northern Ireland Prison Service and
staff working for the Police Authority. Certainly the figures
you have given us in your very helpful memorandum, and thank you
for that, show the community background of the best part of 21,000
monitored employees in security-related occupations, and some
92 per cent were Protestant as against 8 per cent Roman Catholic
and very, very little progress having been made. Does that depress
(Sir Robert Cooper) Yes.
139. What do you think the reasons are for
the fact that so little progress has been made in those areas?
(Sir Robert Cooper) The Fair Employment Commission
has given evidence to the Patten Commission and I would not wish
to attempt to pre-judge what they will come up with. Clearly there
are major problems, but there is no doubt that it was dangerous
for Catholics to have jobs related to security. It was dangerous
for everybody to have jobs related to security, but particularly
dangerous for Catholics. I can remember a complainant coming to
us with a problem, and the problem was that she came from West
Belfast, she worked in the Police Authority and she told all her
friends and people outside the immediate family that she worked
in the valuation office or something like that, and it was at
the time when we still had civilian security people around the
centre of Belfast, and she was stopped by a civilian security
person in a fairly routine way and asked for her identification
and she produced her identification which was her Police Authority
pass, and the man said, "Police authority", and she
was terrified because it meant people around her coming from the
same area suddenly knew she worked for the Police Authority. So
it was a massive problem and one should not under-estimate that.
I think that one of the issues, however, which the Patten Commission,
is looking at was whether that was the sole problem and I rather
suspect it might not have been, there may have been other problems,
but there is no doubt that it was highly dangerous for people
who came from Catholic areas (and with increasing segregation
in the residential areas in Northern Ireland, a declining proportion
of Catholics came from mixed areas) and in those circumstances
it required an enormous degree of courage to take a job in relation
to security in Northern Ireland.