Examination of Witnesses (Questions 140
WEDNESDAY 13 JANUARY 1999
and MS ANNE
140. Moving on from that, if things go according
to plan in the Belfast Agreement and there is a scaling-down of
the security operation, what difficulties do you think there would
be for a largely or overwhelmingly Protestant-dominated workforce
within particularly the RUC, but the security services as a whole,
in re-integrating itself back into normal/civil society?
(Sir Robert Cooper) I think they will have difficulty.
One should not think of it as exclusively a Catholic problem,
though the Catholic problem is sharper. I think the police will
have difficulties integrating themselves into quite a number of
working class Protestant areas, where in the past there has been
a great deal of paramilitary activity. I suspect the problem we
have in Northern Ireland is not entirely unknown in other areas
which is that the police tend perhaps to have at least middle-class
lifestyles whether they are middle-class, and most will have been,
and there are tensions with working class communities. So I think
there will be those sort of problems, but there will be obviously
special problems for the Catholic community and I think one of
the major issues that the Patten Commission has to address is
the whole issue of the ethos inside the force. There is no doubt
about it, there is a great deal of evidence that there has been
a canteen culture as it were, which is only to be expected if
you have a force which is 92 per cent from one community, whether
it is a hospital, school, whatever it is, you will have a canteen
culture which is not sympathetic to the 7 or 8 per cent. That
is what has to be addressed; the whole question of symbols has
to be addressed. The other thing is that I used to represent,
a long time ago, West Belfast and one of the things which my constituents
141. "Represent"? In what capacity?
(Sir Robert Cooper) As a member of the Northern
Ireland Assembly, and the Northern Ireland Constitutional Convention,
an elected member. One of the things which I got most complaints
about from Catholics in West Belfast about the police was that,
if they had suffered a normal crime, a burglary or something like
that, and they called the police, it took hours for the police
to come. The reason for that was very simple, the police had had
a situation where ambushes had been established and rather than
going out into a Catholic area right away when they got a call,
they had to do a lot of checking out and so on. If that all disappears,
as one hopes it will, that will make a very substantial difference,
if it is in fact seen that the police are responding properly
to demands from each community.
142. Finally, there is a declared objective
to increase Catholic participation, Catholic representation, in
the security services in general but within the RUC in particular.
If we are down-sizing the RUC it becomes considerably more difficult
to increase the proportion of a scaled-down RUC which is drawn
from Catholic backgrounds. Do you see this as a major problem
or have you given any thought to how this particular issue may
(Sir Robert Cooper) Yes. We see it as a major
problem. We have given thought to it but I am not sure we have
come up with a very clear answer and I am not sure anybody can.
I think the aim of having a police service which is representative
of the community is something which I believe is worth paying
a price for. I think the price is, if you were looking purely
in economic terms you would say, "Let's not recruit any police
for the next five years so that natural wastage can take care
of the run-down" and that would be a purely economic solution.
I think that would be a false economy. I think that it is important
over the next number of years that even though there is a run-down
there should be recruitment going on. From the point of view of
the police force as well, I think it is desirable that they have
a wide mix of age groups. From my experience of industry, I have
known of companies which have stopped recruiting and their labour
force is overwhelmingly over 40 and they are at a disadvantage,
so I think it is desirable to have a labour force which is age-representative
as well. So I think it is very important that we do not apply
purely economic tests in terms of doing no more recruitment, but
that we continue to recruit at some level at the very least. I
would have thought the crucial thing is that people should see
that change is taking place, even though the rate of change, because
of the run-down in police, may not be as great as one would wish
to see, but the direction is the right direction.
143. I have one or two questions on contract
compliance. How effective has the existing limited linkage between
government contracts and fair employment been in practice?
(Sir Robert Cooper) I do not think it has been
enormously important. I think that if an employer refuses to abide
by a fair employment regime, as it were, the sanctions are, firstly,
de-registration and they can be denied government contracts, they
can be denied government grants, but, in my view more importantly,
they can be subject to financial penalties. That we have found
is something which is more feared than being denied government
grants or contracts because a lot of companies, particularly in
certain industries, are not terribly heavily dependent on government
contracts, but they are very affected by the possibility of being
subject to financial penalties. That has been more important than
144. I do not know if Mr Ingram's evidence
to us has been published yet, and it may well be in the light
of the answer you have just given you will again say you do not
regard the matter as being of great significance, but he did say
that European Community law poses a problem for the introduction
of more far-reaching contract compliance mechanisms. Would you
agree with that?
(Sir Robert Cooper) Yes, I think that would be
145. In what particular respect does European
Community law serve as a restriction in this regard?
(Sir Robert Cooper) The restriction is in terms
that lots of companies, for example, would wish to recruit on
a localised basis, but European contract legislation makes that
more difficult. I am not an expert on the European situation,
but I am told that it will soon be possible for companies perhaps
to avoid the difficulties there, but there are pitfalls in that
because of the European regulations about contracts being open
to people from right across the European Union. Employers cannot
differentiate, and that causes some problems.
146. A single question on national security
certificates, do you consider that the procedures introduced by
the Northern Ireland Act 1998 to deal with national security certificates
and the issues they represent are consistent with the basic principles
of natural justice and fair judicial determination of the issues?
(Sir Robert Cooper) You are asking me in a sense
to say what I think the European Court of Human Rights will decide
if the case ever comes to the European Court of Human Rights.
147. I shall certainly go on to that.
(Sir Robert Cooper) I am not certain about that.
We were involved, of course, with the European Court of Human
Rights in the Tinnelly case and the McElduff case,
and it would certainly be true to say that it was recognised by
the European Court of Human Rights that there needed to be some
special provision. In other words, they recognised things could
not be dealt with without special provisions, but that the problems
of giving information which was security-sensitive, for example,
to complainants was a real problem. So there was a recognition
that there was a problem and that it was not simply enough to
say, "Of course, there should not be any special measures".
Whether those special measures which have been enacted in the
legislation will match their requirements or not is a matter which
I would not wish to speculate on at this stage.
148. You have anticipated my question and
I was going to ask whether you thought it was inconsistent with
the European Convention and you have responded to that. Another
single one-off question which we have dealt with with other witnesses
relates to land sales. Can you help us on the extent of land sales
not covered by the new anti-discrimination requirements introduced
in the recently passed Order?
(Sir Robert Cooper) I am afraid the answer is
we cannot, and I do not think anyone can at this stage. I think
it is something which we have to acquire more information about.
I was interested yesterday that a councillor from North Antrim
was arguing on BBC Radio Talk Back that land sales was
still a major problem. He was arguing, however, that the major
problemand he said he had a good deal of evidence of itas
he saw it was not in fact the private sale of land between a local
farmer and his neighbour, but in fact instructions to estate agents,
auctioneers, et cetera, that land was not to be sold to people
from one community or another. I was on the programme but I was
rather taken aback by the weight of telephone calls from the general
public saying that this was still a major problem. Perhaps, coming
now from an urban background, I was not as seized of it being
a major problem as certainly a lot of the members of the rural
communities feel it to be. I do not know the answer.
149. I think I can anticipate what answer
you are going to give to my next question, but it does follow
on from the one I have just asked. Do you consider the exemption
for land sales that are not advertised is compatible with our
international human rights obligations?
(Sir Robert Cooper) If you thought I was going
to say, I do not know, you correctly anticipated me. I do not
know the answer to that. I think that is something which needs
to be considered. As we all know, in Ireland, both parts of Ireland,
land is a very sensitive issue. Those who have seen the film,
The Field, will be aware of that. I am happy that we have
taken the first steps on this course, whether we need to go further
or not I think is something which will emerge from the extent
to which private sales will be able to circumvent the legislation.
If it becomes, as I would see it, a major problem, then we may
need to move further along those lines.
Chairman: You did
correctly anticipate what answer I had anticipated. My recollection
when the Minister gave evidence to us was that he expressed the
hope, even confidence, that we were living within our obligations
but I have to say it sounded to me as though it was based more
on faith than knowledge, so it is quite clearly a problem to which
we will need to return.
150. As I understand it, you have two prime
roles, you have an advice giving role to employers who may themselves
want to comply or you might wish them to comply, and you have
an enforcement role which has clearly been in extremis.
Are there any circumstances where information gleaned by you or
your staff in the course of the advice-giving side of your operation
is used in the enforcement side of your operation?
(Sir Robert Cooper) No. One of the major concerns
which employers had initially when the legislation was introduced
was the old adage which was frequently used at that time, "You
don't ask a policeman if the tread in your tyre is the right depth",
and there was a major concern about that. We argued at that time
it was possible to have Chinese walls and we have successfully
I think been able to do that, to such an extent that frequently
employers get quite impatient. For example, if people who are
in our legal section dealing with complaints ask an employer for
details of his equal opportunities policy, the employer says,
"I sent that to the Fair Employment Commission last week,
to your advice people. Does the left hand not know what the right
hand is doing?" The answer is yes, the left hand does not
know what the right hand is going. That was a very major concern
of employers in the early stage, but I think it is much less of
a problem now. It is recognised that we have those two different
roles and that we have to operate them both and our people would
be very concerned on both sides, the advice giving side and the
complaints side, if in fact there was a feeling that employers
could not freely approach us to seek advice.
151. What proportion of your staff are drawn
from the two major communities?
(Sir Robert Cooper) The proportion of our staff
from the two major communities are about 53 per cent Catholic,
47 per cent Protestant something like that. I can look it up and
give you the exact figures shortly. It is around that. We have
a small majority of Catholics.
152. Finally, we are looking at the Fair
Employment Act ten years on, and therefore we are looking at the
Fair Employment Commission ten years on. In your view what level
of acceptance do you think the Fair Employment Commission now
has? Are you no longer an object of controversy or is there still
some endemic in-built resistance from some elements within society?
(Sir Robert Cooper) I would be foolishly optimistic
if I felt there was no longer any resistance. I would say, however,
we find that there is much less resistance than there was in the
past, much more acceptance from both communities that fair employment
is a matter which we have to get right. The Social Attitude Survey,
conducted here every year or every two years, has shown that over
the period of the existence of the legislation, attitudes in particularly
the Protestant community have altered quite substantially. Whereas
in 1990 the majority of people in the Catholic community felt
religious monitoring of the composition of the labour force was
desirable, a substantial majority of Protestants were strongly
opposed to it. The situation now is that, whereas the proportion
of Catholics supportive of it has increased further, there is
now a majority of Protestants who are supportive of it. Broadly
speaking, I think there has been a sea change in the attitude
in both communities, particularly in the Protestant community;
greater recognition that fair employment is something which we
have to get right as part of getting Northern Ireland right.
Mr Salter: I could
not agree more, but thank you for your evidence.
153. Sir Robert, to follow on with regard
to monitoring statistics, in the first few years of the operation
of the FEC there was controversy over whether or not to publish
monitoring statistics or keep them confidential, and you decided
to publish them. What has been the effect of annual publication
of these statistics?
(Sir Robert Cooper) One of the reasons we believed
it was important to publish them was that we believed people in
Northern Ireland had a very single dimensional view about fair
employment, depending on which community they came from. If they
came from the Catholic community, they tended to believe that
the problem was simply gross discrimination against Catholics,
if they came from the Protestant community there was not a problem.
We believe the whole texture of the thing needed to come out into
the open, the complexity of it, that it was not a simple matter
of everybody discriminating against Catholics or nobody discriminating
against Catholics, everybody discriminating against Protestants
or nobody discriminating against Protestants. We believed it was
important that the whole pattern should be shown rather than people
having a uni-dimensional picture, which they did have, and that
to our view was the most important reason why they should be published.
There was a great deal of fear, a very real fear, on the part
of many employers, about the effects of publication. I think most
employers I have talked to, particularly those I talked to when
we were talking about this originally, now accept that the fears
have not been realised and that it has not caused the major problems
which they believed it would cause.
154. In the memorandum you supplied to us
on the overall composition of the monitored workforce in 1997,
it indicated there were still 18,159 employees in a non-determined
situation. What plans have you to have that reduced to increase
the accuracy of the statistics being made available annually?
(Sir Robert Cooper) Of course one should not necessarily
assume that with that number it is inaccurate. In other words,
one should not necessarily assume that simply means that those
18,000, whatever it is, could be allocated to Protestant or Catholic;
there are small but growing numbers of people from ethnic minorities,
et cetera, from outside Northern Ireland, who come into that category,
but obviously some of them would be. One of the reasons is that,
particularly in the public sector, there has been largely the
use of the schools method. As you know, there are a number of
methods of determining religion, one is the schools method and
the other is direct question. We have always favoured the direct
question but the legislation provided for either method. Broadly
speaking, up until the last year or two, the overwhelming bulk
of the public sector used the schools method, the overwhelming
bulk of the private sector used the direct question method. The
new legislation moves towards the direct question, away from the
schools method. I believe the schools method will disappear for
a number of reasons, one being that in fact it does leave a significant
proportion non-determined and, secondly, the growth of integrated
schools has been a factor and you do get an increase in cross-over,
that is to say, people particularly from the Catholic community
going to state schools. In those circumstances, the schools method
is becoming less and less an accurate predictor, and for that
reason it is desirable to move away from that method and that
will increase the reliability of the statistics.
Mr Beggs: Thank you.
155. Good afternoon. Before I ask my questions
which are going to be about tribunals, I wanted to commend what
you have just said about schools and I hope that does indeed happen.
It is not simply inaccurate to use schools, I think it is positively
offensive. The second thing I just wanted to clear up, Mr Salter
asked earlier about the proportions in your own Commission, in
your own report it is 56 to 43. I remember that because on page
8 of your report you mention that you yourselves might have to
be a bit more pro-active about recruiting Protestants. I welcomed
that page of your report and I wished to put that on the record.
On the tribunal system you suggested in your response to the White
Paper that the Fair Employment Tribunal has proved to be an effective
means of resolving complaints. Of course, the old Fair Employment
Agency was opposed to a change so that individual complaints were
dealt with by you rather than as it were directly. Was the old
Fair Employment Agency in 1989 quite wrong to take that view?
(Sir Robert Cooper) We took that view very strongly,
trade unions took that view as well. Employers' organisations
and quite a lot of human rights activists took the other view,
that the tribunal system was the desirable system. There have
been down-sides to the tribunal system, one of them quite simply
is that it now overwhelmingly has the involvement of lawyers.
Under the Fair Employment Agency system, something like 87 per
cent of employers did not use lawyers when complaints arose, whereas
now it would be practically 100 per cent use lawyers. There has
been a substantial cost to employers from that. We were accurate
in recognising the down-side to tribunals, I think we perhaps
under-estimated the salutary effect that the public hearing of
complaints was to have, and therefore I would say that we would
certainly be more satisfied now with the system than we were then,
but it is a debate about whether the down-side or the up-side
is more important.
156. So you think it is better now but you
were not wrong then?
(Sir Robert Cooper) We think certainly the tribunal
system has been proved to be very effective. Some of the difficulties
which employers have with the tribunal systemand of course
we always say the unpopular thing which is, "We told you
so"have been real difficulties, but we think it has
been an effective system.
157. Having said that, of course, you give
them every opportunity to get out from having a formal hearing,
do you not, so it is their own fault if they get to a tribunal.
(Sir Robert Cooper) Yes, but if in fact they believe
they have not been guilty of discrimination they are quite entitled
to go to the tribunal. Broadly speaking, one of the things which
we have been opposed to is what are described as employers making
nuisance settlements. In our view, a person has either been discriminated
against or they have not. If they were discriminated against,
they are entitled to substantial recompense. If they have not
been discriminated against, they are not entitled to a penny.
Therefore we do not encourage employers to make what are, in the
jargon, described as nuisance settlements. If we want an employer
to settle, it is because we believe there is a substantial case
and we wish to see a substantial settlement.
158. That leads me on to my next question,
what procedures do you use in deciding whether to support an individual
complainant's allegations of discrimination? In particular, also,
what precautions do you take to avoid supporting frivolous cases?
(Sir Robert Cooper) The amount of time and effort
which we put in to ensure that is the case is very substantial.
We support cases in the main where we believe there is a reasonable
prospect of success. Broadly speaking, that means there is at
least a 50-50 chance of success. Even when we give support it
is limited by quite a lot of conditions, and I think we have given
you a memorandum which shows those conditions, so we can withdraw
at any time if we find as a result of further information there
is not a significant case or reasonable case. Quite a lot of cases
get preliminary support but that is withdrawn subsequently when
we find further information. We take this issue very seriously
indeed. The tribunal, as you know, has powers to make awards against
frivolous or vexatious complainants. We are happy it has not happened
in the cases we have supported, though it has happened in cases
which we have refused to support and where the complainants continued
to go ahead and costs have been awarded against them.
159. On that score I found your memorandum
about the statistics for complainants slightly opaque really,
particularly the category "Refused, no further assistance".
(Sir Robert Cooper) Those are people who are granted
assistance and where subsequently, as a result of further information,
we simply withdraw assistance. Can I say that one of the difficulties
is that the time limit for making complaints is quite short, it
is three months; in certain circumstances it is six months but
generally it is three months. Part of the difficulty we find then
is that, if the complainant comes within a few days of the three
months, for various reasons we have to lodge a complaint right
away because we cannot afford to spend time investigating it before
we lodge it, in which case we are giving assistance to lodge a
complaint. Then we would investigate, issue a questionnaire and
get information, and as a result of that we may decide to withdraw
and give no further assistance.