Select Committee on Northern Ireland Affairs Minutes of Evidence

Examination of Witnesses (Questions 160 - 174)



  160.  Does that partly account for the fact that you conduct a large number of preliminary investigations but in the end a lot of it seems to go nowhere?
  (Sir Robert Cooper)  Yes. One of the things you have to bear in mind is that religion is rather different from, for example, gender, in that an individual comes and believes they were qualified for a job, they believe the reason they did not get it was because of their religion, they have no knowledge of the composition of the labour force, they have no knowledge of who got the job, no knowledge of what the qualifications were. We could say to that individual, "Go away, we are not interested because you have nothing to go on", but in our view it is much better that we attempt to find out some information so we can satisfy the individual perhaps. We can only do this, of course, if we get sufficient time and not if the individual comes a few days before the three months is up, but if he comes a couple of days after the situation we then do a fairly informal and speedy investigation, ask the employer who got the job, what were the qualifications, et cetera, and in those circumstances very often a high proportion of the complainants are satisfied as a result of that. So if you look at those statistics you will see that less than half of the people for whom preliminary investigations were done proceeded to seek further assistance, in other words more than half of the people who came to us and where investigations were initiated were satisfied either they could not sustain their case or in fact no discrimination took place.

  161.  Some of the witnesses we have had have suggested there is a problem with vexatious litigation. It sounds like it would not be accurate to summarise your remarks as there is not a problem with either frivolous or vexatious litigation, is that so?
  (Sir Robert Cooper)  One of the important points to bear in mind, and this was one of the arguments for changing to the tribunal system, is that it was argued at that time that the Fair Employment Commission should not be a monopoly provider of assistance and that an individual should have the right to go to a tribunal irrespective of what view the Fair Employment Commission took of that. As a result of that, a lot of people go to the tribunal without our assistance, and the majority of complaints now registered with the tribunal are not claims assisted by us. So I could not say that there is not a problem of frivolous and vexatious complaints which are not being supported by us, I would say there is not a problem of frivolous and vexatious complaints which are supported by us, but there may be others which we are not supporting. There are mechanisms for dealing with that. The employer can ask for a pre-hearing assessment and if, as a result of that, the tribunal takes the view this appears to be a case which is frivolous or vexatious, the individual still has the right to go ahead but he or she will be warned that if they do go ahead in those circumstances costs may be awarded against them, and that is a pretty substantial pressure point. So there are mechanisms for dealing with frivolous and vexatious complaints. I am not sure that all employers and all lawyers indeed representing employers make as full use of those provisions as they might do, but they are there and they are used.

  162.  You mentioned, again referring to the statistics, that increasingly the majority of cases which are not withdrawn "will be finalised by negotiated settlement". How far does that mean that employers are unwilling to go through a tribunal procedure and they are willing to sort of "buy off" complainants whose cases have little merit?
  (Sir Robert Cooper)  I do not know of employers in the main buying off cases which have little merit. As I say, we are not interested in settlements, we do not negotiate settlements for £200, so we are not interested in the actual buying off. It would be true to say that there are employers who make settlements and say, "Of course, the only reason I settled was because I did not want to face the tribunal, there was no case there", and that is a fairly easy thing for an employer to say. I am not sure that it is all that often valid. I think employers do not make the substantial settlements which we negotiate unless they know there is a very real chance of losing the case. The other thing about it is that, as time has evolved, as the tribunal case law has evolved, as the tribunal system has been laid down, employers and particularly their lawyers and legal advisers have a much clearer picture now of what will carry and will not carry, and therefore their lawyers are much more expert now at advising employers, "We think we should settle this case" rather than, "Give it a burl", which some lawyers used to say.

  163.  I have never heard of that word before. Is it true there is a backlog of cases? Have you got a problem with that? Do you think further resources should be provided to you so that waiting times can be reduced?
  (Sir Robert Cooper)  It is not so much resources to us, but resources to the tribunal. There is in fact a working party sitting at the moment looking at the whole issue of backlogs, and the tribunal also has a committee of users of the tribunal which meets from time to time to attempt to see whether these can be reduced. There are a number of very real problems. One of them is those very real problems in a sense we have been referring to earlier, and that is settlements. If a settlement is arrived at sometime before the tribunal is due to hear the case, that is very helpful from the tribunal's point of view because they can schedule another case, but if the settlement is achieved at the door of the tribunal, which sometimes happens, or even after the first witnesses are heard—sometimes, for example, the case is settled after a complainant has given evidence and the lawyers acting for the employers say, "We don't think you have a chance here"—in those circumstances it does mean that the backlog is difficult to clear up. The other factor about it is that the tribunal, of course, has a legally qualified chairman, a presiding officer, and persons nominated by employers' organisations and trade unions. Very frequently, if a case runs a bit longer than was anticipated, it takes some time for the case to come back to the tribunal because if a busy employer has allocated a week to hear the case and if at the end of the week he or she is told it is going to run to next Monday or Tuesday, he will frequently say, "I have allocated a week, I cannot take Monday or Tuesday off, I have appointments", so it has to go back for a number of weeks. So it is a bit of an issue and I think all main players are very much seized of this problem which needs to be addressed. The backlog has diminished but there is still too large a backlog.

  164.  Last year, one case was finally dealt with after a six year wait, most cases were dealt with after something like a two year wait. Is that right?
  (Sir Robert Cooper)  Yes.

Mr McWalter:  Thank you.

Mr Beggs

  165.  Again, I come back to your memorandum, Sir Robert. You mentioned in your evidence that the Commission attaches considerable importance to the inclusion of remedial terms in settlements. How far do you consider that individual complaints can be used as the basis for strategic work with employers? Can you give some examples where this has been successful?
  (Sir Robert Cooper)  Yes. If, for example, as a result of a complaint, let us take a harassment case for example, we find the employer has no policy for dealing with religious harassment or political harassment, that they have never considered the issue, that they have not done any training of their staff, that their staff are not seized of this as a problem, in those circumstances we would include a term in the settlement that the employer will consult with the Fair Employment Commission in drawing up a harassment policy, that they will ensure their staff are trained, preferably with the assistance of the Fair Employment Commission training staff, trained in dealing with harassment, that the policy will be promulgated, that people will know the policy at every level of management and among employees. Those will be the sort of measures, and those have quite important strategic value, but there is no doubt about it, if you relied solely on that as your strategic measure, then you would be in a weak position, because complaints do not necessarily arise from the areas where there are biggest problems, so you need to do other work as well, but it is an important part. If it was the sole method of dealing strategically with employees then it would be a failure.

Mr Donaldson

  166.  Sir Robert, in your evidence from the Commission you express a preference for the new Equality Commission which has now been legislated for in the Northern Ireland Act and you would like to see that commission operating as a unified body rather than through separate directorates. Would you like to expand on your reasoning?
  (Sir Robert Cooper)  First of all, can I say there is a working party at the moment, as you are probably aware, looking at that from the different commissions and trade unions, with an independent chairman. At this stage, that working party has not reached a final conclusion, so anything I am saying is my own view rather than the view of the working party. First of all, I believe it was one thing when you had two anti-discrimination bodies for employers and others to deal with—a sex discrimination body and a fair employment body—you now have three because you also have the Commission for Racial Equality, and if the Government carries out its plans in terms of the new Disability Commission you would have four. In our view, in a place the size of Northern Ireland four separate anti-discrimination bodies dealing with employers, giving advice to them, does not make a lot of sense. So therefore in our view it was sensible to attempt to see if it was possible to bring these bodies together. I have a concern, however, if they are brought together with totally separate fiefdoms, as it were—one group of staff looking at religious discrimination, one group of staff dealing with sex discrimination, another group of staff dealing with race. I think there are experiences in some countries outside the United Kingdom where that is how it has operated, where you have one single body but they have not been unified, so you have separate people dealing with the different areas of discrimination, and our information is that it has not been terribly satisfactory. In our view, it is important that the staff of the new Commission should be sensitive to all areas rather than simply fighting for one particular area. There is another problem as well, and that is that all areas of unlawful discrimination I regard as unacceptable, and one should not attempt to make a hierarchy of them, and I think there will be a real possibility of making a hierarchy if in fact you have separate directorates, as it were. Clearly, since the ethnic minority population is about 1 per cent of the population of Northern Ireland, the racial equality body would be very small in comparison with either gender or religion. That would send, in my view, a false message to the ethnic minority communities that their area was less important, and obviously anyone from any of those areas who is discriminated against is equally entitled to full treatment. I think also that in the long-run there has been a demand from employers for a one-stop shop, and I think that is a demand which needs to be addressed.

  167.  Chairman, during the process of debate on the Northern Ireland Act a number of us received representations from ethnic minorities in Northern Ireland and those associated with the issue of race discrimination and especially from those associated with the issue of disability rights. They were concerned about the idea of one commission because they were concerned that their issues might in fact become subsumed, given that sectarian discrimination in the context of the politics of Northern Ireland is the prominent issue, and that therefore a unified commission could see those other areas—and you talked about a hierarchy of discrimination—relegated and losing their identity in terms of the promotion of disability rights, for example, and discrimination against disabled people. Very often a society is measured by the extent to which it protects the rights of even the smallest minorities within its community, and in that context the Chinese community, for example, would be concerned about racial discrimination becoming subsumed. So when you talk about the separate directorates and your concern that that might in fact lead to this creation of a hierarchy, could not the reverse argument be made, that if you have a single commission and a single directorate that there is perhaps—I will not say inevitably—a trend towards prioritising the issue of sectarian discrimination and equality discrimination and that the other two may well get lost somewhere in the middle?
  (Sir Robert Cooper)  I think certainly there is a risk of that and that is dependent on the people appointed to the Commission to make sure that does not happen, and I think they can easily do that. Can I say, first of all, I understand the depth of feeling there was in those two groups of people you have referred to. The ethnic minorities have been arguing for a separate commission for quite a long time and then it was granted and then was about to be taken away about a year after it was granted, so I can understand their feeling of frustration on that. Similarly in terms of the disabled, having been arguing for a long time for a specialist disability body and looking as if they might be getting that, then to be told, "No, sorry, you are not going to get that", I can understand their feelings. What I would simply say is this, one of the advantages of a unified commission is that there will be a degree of flexibility in terms of staff. I would think in fact over the next couple of years—and of course this is a matter for the people in the Commission to prioritise things—the major training which needs to be done with employers is in the whole area of disability and that will require very substantial resources. We, last year, conducted 600 training sessions, there is no government in the world—and I imagine if we get a new government in Northern Ireland it will come into the same category—which is going to fund bodies to deal with 600 training sessions for religion, 600 for disability, 600 for race, et cetera and give them that level of funding. It is far more effective if the training session covers the full area. I believe in fact disability will be getting the priority in terms of training over the next couple of years. Far better that you have a considerable number of staff training in that area rather than a small number of staff.

  168.  You touched, Sir Robert, on the steering group which is being chaired by Dr Stringer at the moment. Could you from your own experience perhaps tell us how you feel it is progressing? How far advanced is the work of the steering group in terms of making the arrangements for the amalgamation of the various bodies and what is the timetable for the completion of that work?
  (Sir Robert Cooper)  I think the Minister said he expected a report about March, so that would be the expected timetable at the present time. The Commission has already had a two day meeting this month, there will be another meeting next week, a further two-day meeting towards the end of the month. Because there has been a commitment given by Government for consultation, particularly with various interest groups who are not represented on the steering group, the intention would be at the end of the month that a consultation document or proposals will be issued for consultation, which will obviously have to be a fairly tight period for consultation, tighter than one would normally wish to see, but the intention would be that by the end of February, people will be able to make a response and then in early March a final report will be published. That is the current timetable and I see no reason why that cannot be kept to.

  169.  One of the most important functions of the new Equality Commission will be the supervision of the equality duty on public authorities under the Northern Ireland Act. How do you envisage this operating?
  (Sir Robert Cooper)  I think one of the difficulties will be that there is an expectation on the part of Government that the saving in resources in having one commission will be enough to meet the resources required to deal with that duty. I would have some considerable doubts about that. I think that initially it will require significant resources. Clearly that particular aspect, leaving aside the whole issue of whether there should be separate directorates, has to be done on a joint, unified basis. I have been concerned with the legislation as we have it rather than attempting to determine what my successor and successors will do, but I think the very first priority of the new commission would be to establish a system for dealing with that, but all I can say at this stage is that I think it is likely to require more resources than the Government at this stage may be expecting.

  170.  Touching on that in terms of whatever procedures your successor will want to put in place to deal with the question of the public bodies, public authorities, are you therefore saying you are not at this stage preparing guidelines for the public bodies as envisaged by the Northern Ireland Act?
  (Sir Robert Cooper)  We are certainly looking at that. We have in fact another two-day session for our senior staff to look at that next week, to attempt to arrive at some form of recommendations, but obviously it would be for the successor body to take that forward. We would like to have something in place for them so they are not simply coming in on the first day finding a totally blank sheet, but I suppose if I was giving one single piece of advice for the body, it would be that it should attempt to not proceed on too broad a basis. You get overwhelmed if you are trying to proceed on too broad a basis, look at the areas where there are the most problems and concentrate on those initially.

Chairman:  You will be reassured to hear, Sir Robert, that we have effectively covered the agenda with which we set out but I am afraid there are one or two supplementaries around the room people want to ask arising out of answers you gave.

Mr McWalter

  171.  One thing I would like to be clear about. I get the impression, although of course we are still in the middle of taking evidence, that the Commission overall has actually done a really good job of work; congratulations. In part that does relate to the construction of the Chinese walls that you mentioned earlier in your evidence. To what extent has the effective operation of that system been as a result of the particular individuals you have working for the Commission or to what extent do you think you have got a system which is robust and resilient and would carry forward under significant changes of personnel in the future? I ask that particularly because I am interested in the prospect of success for the new Equality Commission.
  (Sir Robert Cooper)  I think it is robust enough. I have not the slightest doubt that it has been very substantially inculcated into the staff on both sides and they are very much seized of the importance of that, and I think that any new body which came in and started to break down those walls would run into a lot of difficulties with our staff, that the staff would take very strong exception to that. I would think that it is robust enough.


  172.  I have a couple of supplementaries which also dwell on the evidence you have given to Mr Donaldson on the Equality Commission. I want to put an analogy to you, really to clear my own mind. The present Government in Westminster is embarking on the creation of a Financial Services Authority so there will be a one-stop shop for the regulation of the whole of the financial services industry, which now is on the same scale as manufacturing within the economy. The Financial Services Authority will under legislation take over the Ombudsman's responsibilities which hitherto have been in six or seven different places, at least one being statutory but a lot of the rest being voluntary. The present intention, as I understand it, is that there will be a single Ombudsman to cover the whole of the financial services industry though there will be sub-ombudsmen to deal with particular parts of the financial services industry not dissimilar to the existing system, the order of magnitude will be—and I will give a single example which is neither the largest nor the smallest—that the building societies' Ombudsman might take 10,000 complaints in a year but there will be other Ombudsmen who take significantly more. Is it the scale of the operation in that particular instance which you would imagine causes them to be planning to have a series of sub-ombudsmen rather than a totally unified operation, or are there other differences between the analogy I have quoted, and what you are looking at here in terms of discrimination which causes your Commission to go for a single unified body?
  (Sir Robert Cooper)  I think there are two factors. The first one is the scale, I think that is very important, but the second is simply the size of it—I am not sure whether it is a United Kingdom body or a British body—as opposed to the size of Northern Ireland. The size of Northern Ireland is such that I think we have much closer contact with people on the ground perhaps than in Britain simply because of the size, and in those circumstances that also is a determinant for us to move closer to a single body. But the size of the first item is very much an important one.

  173.  My final question is, is there a projected date for the Equality Commission coming into being?
  (Sir Robert Cooper)  No. It is likely to be sooner rather than later but there is not at this stage a date. There will be an advertisement fairly soon for a Chief Commissioner and then Commissioners and clearly the date will be dependent to an extent on those appointments and how quickly those people can take up office.

  174.  We have, I hope not to your distress, covered so wide a canvas today that I will not ask what is often my last question which is, is there any question which you were surprised we failed to ask you. I think on behalf of the whole Committee I would want to applaud you for an outstanding session. As will have been apparent from an intervention of my own earlier in the afternoon, I see everything through a filter of cricket but I congratulate you on having carried your bat as far as I can see throughout, except with occasional help with the red button. It was extremely impressive from our point of view; a very, very comprehensive session and we are extremely grateful to you. Thank you very much.
  (Sir Robert Cooper)  Thank you very much indeed. I have found it most interesting.


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