Examination of Witnesses (Questions 160
WEDNESDAY 13 JANUARY 1999
and MS ANNE
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 heardsometimes, 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
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.
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 witha sex discrimination
body and a fair employment bodyyou 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 wereone 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 areasand you talked about a hierarchy
of discriminationrelegated 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 perhapsI will not say inevitablya
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 yearsand
of course this is a matter for the people in the Commission to
prioritise thingsthe 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 worldand
I imagine if we get a new government in Northern Ireland it will
come into the same categorywhich 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
(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.
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
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 beand I will
give a single example which is neither the largest nor the smallestthat
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 itI am not sure whether
it is a United Kingdom body or a British bodyas 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.