Select Committee on Northern Ireland Affairs Minutes of Evidence

Examination of Witnesses (Questions 121 - 139)




  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.

Mr Beggs

  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 that.

  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 Commission—though 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.

Mr Beggs

  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 argue—and I think it would be arrogant of me or foolish of me to argue—that 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.

Mr Barnes

  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 involved—there 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 practices—what they should be doing, changes they should be making, et cetera—last 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.

Mr Donaldson

  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 cent—and I have seen all of these percentages—was 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 time—and we argued strongly in favour of it—make 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 unemployed—and 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 that—the 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.

Mr Salter

  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 you?
  (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.

previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries

© Parliamentary copyright 1999
Prepared 30 July 1999