Select Committee on Northern Ireland Affairs Minutes of Evidence

Examination of Witnesses (Qustions 380 - 399)



  380.  That is an admirable basis for our cross-examination of you and happily you have broadly followed the line you took in your dissenting note.
  (Mr Nesbitt)  What I tried to do is take the line in my dissenting note and update it to today's figures and today's statement by Sir Robert Cooper.

Chairman:  You have, Mr Nesbitt, done us a further service because you have not only updated the views of the Chairman of the Fair Employment Commission who gave evidence to us before he wrote the document which you have just quoted, but also updated the views of the Northern Ireland Economic Council who gave us evidence before the report you have just quoted. I think we have got a good basis for asking questions and I am going to ask Mr Grogan to ask the first.

Mr Grogan

  381.  I take it then from your remarks that you do not really think in the White Paper and the subsequent legislation that the Government has learned very much from your dissenting note. Are you as unhappy with that as you were with the SACHR Report?
  (Mr Nesbitt)  The Government in reference to my dissenting note made one reference—"There was a dissenting note". I think that is more telling than to have totally ignored it. It merely mentioned it was there. I have spoken with Mr Worthington and with the civil servants and I have written to the Minister and said, "Please bring me a statistician who will refute what I am saying." I am still waiting for that statistician to meet with the Minister and meet with me. I said at the outset there must be demonstrably fair employment. We wish to see it. My key point I keep referencing is that the unemployment differential should not be used as a benchmark for fair employment. The Government still has not addressed that central tenet.

  382.  I am not a statistician and I have got more fascinated by it in the last 10 minutes than I anticipated I would this afternoon. On the unemployment differential, which was 3.1 in 1990, what was the prehistory of that before 1990? Has it been 3.1 for generations or was it substantially higher at one point?
  (Mr Nesbitt)  Because your review is the 1989 Act ten years on I have given you what it is in 1991 and 1998 which is within your time-frame. If you took 1971, which was a long time ago, the available Catholic population for work then was approximately 31 per cent and the actual proportion of Catholics in work was 29 per cent so, believe it or not, it was about two per cent then as well. So in other words 30 years ago 31 per cent of the population seeking work were Catholic and of those in work 29 per cent of them were Catholic. The difference between the two was remarkably the same. Time has not changed because the thing is, you see, a fair market will change that 29 per cent about two or three percentage points every five years but the available Catholic population that is coming onto the workplace is going up also by two or three percentage points every five years so therefore you cannot close the gap. You can by practising unfair recruitment but if you practise fair recruitment you cannot close the differential. As regards the time-frame, one interesting point I did put in my dissenting note was that SACHR said that five years' statistics was not enough for it to make a final comment. However, its remit was to deal with five years of statistics and it could have made a comment within five years because it should have subscribed to its remit but it made it an excuse not to take a definitive position on the statistics available to it for five years.

  383.  Between 1990 and 1996 there was quite a substantial change, was there not, and this unemployment differential reduced by a considerable factor, a third? Why was that, do you think?
  (Mr Nesbitt)  I think you might be—and I am not sure—confusing two things there. There was a reduction in the unemployment rate. I indicate a Government publication for reference, the Central Community Relations Unit (CCRU) Studies in Employment Equality, report number 4. You will find in that that this difference between those available for work and those in work has been of a magnitude of around two per cent throughout the period 1971 to 1998 in fact. So the difference between availability for work and actually in work has not changed at all but within that unemployment can go down or unemployment can go up and within that you can have fair employment but the difference between availability and actually in work has not substantially changed which is the basis for the differential.

  384.  Just finally on the statistics, is it your basic contention, to try and follow, that the number of Catholics in the working population has gone up and therefore that explains a lot of it? Could it be that the number of Catholics who make themselves available for work is a reflection of increasing prospects for employment for that sector of the community? Whether you are available or not available for work is an interesting definition, is it not?
  (Mr Nesbitt)  When you say the number of Catholics in work has gone up, this is where I made reference earlier—and I say this genuinely and those who know me know my political CV is one where I am trying to resolve this conflict—I do not wish to see Nationalists and Unionists or Catholics and Protestants disagreeing with one another—but the Catholic community will see by the Government's own indication that somehow there is still not fairness because there is still a differential and the Protestant community will ask what you have indicated to me, "Have Catholics not got jobs?" Yes, the latest Government report from the Fair Employment Commission indicates, and I quote the figures, that Catholic employment has gone up by 25,698 and Protestant employment has gone up 5,031 so Catholic employment has gone up astronomically compared with Protestants and so it should because there are more Catholics seeking work coming onto the workforce, but the point is the Protestants see this large volume of Catholics securing work and a large volume of Protestants not securing work or not increasing and they say this must be fair and then they see they are being banged on the head because the differential is still 2.3, there is still discrimination. Both Protestants and Catholics feel aggrieved by it. That is the kernel on page 1 of my dissenting note, that Government should tell statistical analysis as it is and therefore both Catholics and Protestants would feel at ease and Catholics would realise the differential has nothing to do with whether or not there is fairness. If we look at recruitment and promotion practices, which is nothing to do with the differential, they will see from that there is fairness and a recognition that Catholics are being treated fairly and then both sections of the community would feel at ease with each other which is, what I am about, and then you stitch into that a Minister for Equality with all the legislation to police it, and then they should feel equally happy as well. I hope I have made that clear.

Mr Grogan:  Thank you.

Chairman:  Mr Donaldson?

Mr Donaldson

  385.  Thank you, Mr Chairman. You are welcome to the Committee, Mr Nesbitt. If we can move on to the nature of the problem at this stage. You have indicated that looking at the statistics the differential between those seeking employment and those actually in employment in terms of the Roman Catholic community in Northern Ireland has more to do with the increase in numbers actually seeking employment than it does with discrimination or fair employment. The question is to what extent you consider there is still a problem in Northern Ireland of continuing discrimination in employment on the grounds of religious belief or political opinion? Do you believe there is still a problem?
  (Mr Nesbitt)  Your initial statement, Mr Donaldson, about actual versus availability for work, this is where I have to say at one stage—and this is being personal—one of the SACHR people said I was not qualified to speak on this subject. I said I am precisely qualified because what I am dealing with is labour market economics which is a discipline of economics and therefore what has failed to be appreciated is that unemployment, as it were, is a reservoir of people from which comes employment and to move from unemployment to employment is a movement from one to another and they are all separate elements of labour market economics. The stock of unemployed, the stock of employed and the movement from one to another through fair recruitment are central tenets of labour market economics and I have to say SACHR in its report did not deal with labour market economics. I dealt with that in my dissenting note. Of course, as I have said in my dissenting note, there is discrimination. There would not be fair employment tribunals if there was not discrimination but equally if people go down the road and break the law at 38 miles an hour and gets penalty points, because people are breaking the law you cannot conclude it is a law-breaking society which is a different point altogether. So, yes, there has been is and no doubt will continue to be discrimination, on both sides of the House I would add, but you cannot conclude what the Secretary of State concluded in her 14 May statement and indeed it was in the Queen's speech and it could not be higher than in the Queen's speech, where it said we are here to "combat discrimination". That elevates it to a very high level which I do not think is justified. Why have they elevated it to a high level? Because they are blinkered by the view that differentials somehow indicate unfairness and if it is unfair it is discriminatory and therefore we have continued differentials and continued discrimination and we must address this discrimination. There is no black and white answer. Yes there is and yes we need to police it, but to conclude from that it is rampant discrimination is wrong. The CBI indicated that they did not like those words because they had a connotation which they felt as a business sector was not justified. I will repeat what they said. "There is some unease with the use of the word `combating' which is felt to be too confrontational and negative."

  386.  Underlying your analysis of the situation is the belief that this differential, which is pointed up continually as evidence of discrimination, cannot be addressed in the way or should not be addressed in the way that Government seeks to address it, nevertheless if one had a desire to close the differential there would have to be measures that were taken to do that. What do you see as being appropriate measures to close the differential created by the fact that, yes, you are trying to hit a moving target, but do you just accept that the differential exists and will be perpetuated by the fact that, for the foreseeable future, the proportion of those actually seeking work in terms of the percentage of Roman Catholics will continue to increase? Do you accept that is the case and that the differential will therefore continue to exist or are there measures that can be taken to address that problem which are not currently being undertaken by the Government?
  (Mr Nesbitt)  That is the $64,000 question. Are there measures that could close the differential? In other words, are there measures the Government can take which it is not presently taking? I indicated the fact it was dramatically in error in print where I said that the real problem in Northern Ireland is the differential between the haves and the have-nots. The have-nots are unemployed whether they be Catholic or Protestant and therefore what we must do is secure a stable political environment. That is the best thing that can help anything. From that, we can secure better employment opportunities and a better generation of employment and that will lower the overall unemployment rate of both Catholics and Protestants. I heard Bob Cooper on Good Morning Ulster on 25 February 1999 and he said that the long-term unemployed is where there is the greatest differential between Catholic and Protestant. Up to now we could not have recruited specifically from the long-term unemployed. Now the new law will enable this to happen and thus more Catholics will be able to be recruited, which will help the differential. Yes, those are unemployed and disadvantaged, yes, there are more Catholics disadvantaged than Protestants, because there are more of them unemployed but even if you recruit fairly, and I have said in my letter to Government you would be in breach of Section 75 of the Northern Ireland Act if you try to recruit anything other than fairly, you would still keep the differential. So all we can actually do is target unemployed areas, reduce the unemployment, whether it be Catholic or Protestant, and that will alleviate problems, but we should not be focusing it more on Catholic or Protestant because of the benchmark of the differential. There is a statement often made that the differential is two per cent or two times and therefore the conclusion is that that means you are twice as likely to be unemployed if you are Catholic than Protestant. That is statistically wrong. There was a Transition programme where I questioned a presenter on that—and he is smiling at me right now—because if the Catholic unemployed rate is twice that of Protestants, the conclusion was that Catholics are twice as likely to be unemployed. It is nothing to do with the likelihood of being unemployed. You are equally likely to be employed or unemployed if you have fair measures. So, Jeffrey, I have tried to give a wide-ranging answer and all I am saying is that you must target areas where there is deprivation, but you must not make that solely within the Protestant or Catholic community. You must recruit fairly because there is disadvantage on both sides, but in doing that that simple table there shows you that you will not in essence reduce the differential. So therefore there is nothing that can be done to reduce the differential other than unfair practices, I believe.

Mr Donaldson:  Thank you.

Mr McCabe

  387.  Good afternoon. Can I just ask a very simple question. Can fair employment legislation ever be justified?
  (Mr Nesbitt)  Yes, in the way a police force can be justified—it polices it. There is in this community a feeling of, as it were, disharmony, a lack of trust, a lack of confidence across the community and, therefore, as in every society where there is a lack of trust, you must ensure there are in place those things that demonstrate beyond reasonable doubt that the whole community, Catholic, Protestant, Unionist, Nationalist can feel at ease with the community and therefore that legislation, a Minister for Equality, ensuring it is rigorously enforced and implemented and statistics that follow from that will demonstrate that there is fairness. Without it then it is more ripe for people to say it is unfair. We need the evidence to demonstrate fairness. Therefore you need it to be policed because, regrettably so, of the divided society. When I say "divided society" I am not saying that against Protestant or Catholic, I am saying there is a divided society, a lack of trust by Catholics of Protestants and by Protestants of Catholics and therefore it needs to be policed. I am saying when you police it make sure that you use the proper benchmarks. That is the thrust of what I am saying. The unemployment differential is not a proper benchmark.

  388.  I imagine that most members of the Committee are clear about what you are saying on that point. When you say it is justified and it should serve a policing purpose, could you say a bit more about exactly what you think the legitimate, justifiable aims of fair employment legislation should be?
  (Mr Nesbitt)  We did have a view, I put it in my dissenting note, that if the fair employment legislation is operating reasonably fairly, if it is not broken, you do not have to fix it. I concluded where I said: "There is in existence today an employment market that is operating fairly, perhaps even more than fairly, towards the Catholic community. Unemployment differences have, during the review period, apparently nothing to do with unfair discrimination. This does not imply that individual cases of such discrimination no longer exist, they do. Penalties related to the law `breaker' may require more enhancement: in this respect, regarding the Report's suggestions I support its recommendations." In other words, there is all that aspect of monitoring and submission by employers and the statistics that are submitted being monitored. We did not see the necessity for the enhancement of the legislation because the legislation is there. Remember the most robust and fair employment legislation in the European Union had a further enhancement as a result of the present Government. It is there, it is reality, and it should be used to ensure beyond doubt that there is indeed fairness and used in the way it is being used. There is an Equality Unit within the new administration. There were some parties that wished for a Department of Equality. Such was the view of those parties of the importance of equality that they said, "We want a Department of Equality." As a Unionist I recognise their concerns, and therefore if all the mechanisms that are here are fully and rigorously monitored and presented to an Assembly, if and when it is fully functioning, that I trust will demonstrate beyond doubt there is equality. I know I am repeating myself, but without getting into the detail of what has been suggested about the whole public sector to promote equality of opportunity, the listing of candidates, the listing of part-timers, a whole raft of stuff there, I need not go into the detail. I say as a Unionist we accept there is a law, let's make sure it is utilised to demonstrate that there is indeed fairness.

  389.  Finally, if I can just check, without wanting to go over the point about the differentials again, what aspects of the Fair Employment and Treatment Order go beyond the aims that you would find acceptable?
  (Mr Nesbitt)  One of the very important aspects, again I made reference to this in the SACHR report, and I am sorry to come back on the same point but it is the fundamental point I am addressing and if I get one point across to you today I am doing well because I realise this is a complicated issue, is where they are using differentials as a benchmark. They hope to reduce this by a certain time to a certain amount and I quoted Paul Magill who says this should be eliminated. There is only one way you can eliminate that or reduce it other than by unnatural means and that is by unfairly treating the Protestant community. Again I have put that in my dissenting note and I have read the Northern Ireland Economic Council statement and if you look at their little box on numbers, they show the only way to reduce the differential was to give proportionally more jobs to Catholics than were actually seeking jobs if you assume they were equally qualified. To do that you are unfairly treating the Protestant community. You say what am I against? Please, please, please do not use the unemployment differential as a benchmark, in other words, say that this must be reduced by a certain percentage because that is what the Fair Employment Commission has in the PAFT indicated as a benchmark. I have referred to it in my dissenting note. I would point that out as the key thing because a policy to do either would not be a fair policy.

Mr McCabe:  Thank you very much.

Chairman:  Mr Beggs?

Mr Beggs

  390.  Good afternoon. Both the SACHR report and the White Paper talk about "equality" and "equality of opportunity" as well as "discrimination". What is the difference and what implications should this have for Government policy, in your view?
  (Mr Nesbitt)  Equality and discrimination, what is the difference?

  391.  Equality of opportunity.
  (Mr Nesbitt)  Equality of opportunity would mean that each person should have the same probability of securing a job as the next person. If that person is equally well qualified, that person should have an equal chance. In other words, if there were four people seeking jobs and there were two jobs, each of them has got a 50 per cent chance and you will raise the criteria to recruit two. So equality of opportunity means literally an equal chance of getting a job if you are equally qualified, as simple as that. I am assuming all jobs go to the unemployed, and all are equally qualified. If all go to the unemployed, and all are equally qualified that is equal treatment, equality of opportunity, but you still do not reduce the differential. This bit about discrimination, that is an important word because you must discriminate in selection. The process is a process of discrimination. What I am talking about, to use the technical term, is unfair discrimination. You have to discriminate, you have to get ten people down to five people being recruited.

Chairman:  Mr Robinson?

Mr Robinson

  392.  Thank you, Mr Chairman. The differential, however, even according to the statistics that you have provided us with, was reduced between 1990 and 1996 from 3.1 per cent to 1.9 per cent. Therefore, clearly there is a factor that occurred during that period of time which significantly reduced the differential. I assume that can only mean that more jobs were coming onto the market than people coming onto the market?
  (Mr Nesbitt)  Yes, that would be the best assumption you would wish to make. In other words, recruitment was still fair because we have a process of monitoring that by applicant and appointee proportions. If 40 per cent of the applicants are Catholic, 40 per cent of the jobs should go to the Catholics if it is fair. So, yes, that is fair. What has probably happened there is the availability of those coming onto the job market is not as high. 38 only up to 40. From 1996-98 it seemed to have jumped from 40 up 42. To be fair to the Fair Employment Commission, the Commission itself says this proportion of people available for work is an estimate and an estimate cannot be accurate. You are correct that it is not—and I want to make this point—saying that somehow the recruitment market has been unfair to the Protestant community by recruiting more Catholics to get the differential down. I am not saying it is unfair to the Protestant community by recruiting more Catholics. All I am saying is that the statistics indicate that recruitment has been fair, therefore it has been the availability of those coming on to the workplace that has caused that movement from 3.1 to 1.9. Is that clear?

  393.  Indeed. If Bob Cooper had taken a different starting date he would have had to report exactly the opposite that he did because if he started at 1996 instead of 1990 he would have had to report the differential as substantially increased.
  (Mr Nesbitt)  The only reason I have 1996 in there is because that is the year I referred to in my dissenting note. That was the cut off year for the SACHR report. As I indicated earlier in answer to Mr Grogan's question, throughout the period 1970-1998 there was a remarkable commonality of difference of 2-2.3 per cent. When you say Bob Cooper could have mentioned that in his report in 1998 he still could have referred to 1996 but he did not. He could have said it got better and now it has got worse but he did not make any reference to it.

  394.  Could you look at your own dissenting member's note, the conclusions in paragraph 4. You seem to be indicating in that first paragraph of the conclusion that, while there is discrimination in every society, in general terms the employment market is operating fairly and you draw from that a conclusion that this "does not require the enhancement of all existing monitoring measures". That could mean, I assume, one of two or three things. You could be saying that it does require the enhancement of some of the existing monitoring measures, you could be saying it does not require the enhancement of any of the existing monitoring measures, or you might even be saying there is no need to keep some of the existing monitoring measures.
  (Mr Nesbitt)  I tried to make reference to that earlier in a general context where I said our position was that the overall load did not need to be increased—however it has been. What I would mean there is that there are aspects there like bringing in part time, which were not part of the process there before. You are extending the monitoring process and that does not deny policing. The only conclusion you might be able to come to in Bob Cooper's comments is it is like a headmaster's report "So far so good but still more progress could be made" and therefore we must enhance the legislation. That is a very general conclusion. The general thrust is we do not approve of what the Government was saying on raising the whole level of monitoring. In fact, the Government says it is now a very robust measure.

  395.  Leaving aside the monitoring measures and the role of the Fair Employment Commission in that, in terms of the fair employment tribunals, do you have a view on how they operate? There has been evidence given to us that perhaps there should have been more of a role for the Fair Employment Commission in arbitrating rather than having everything going to the final confrontation of a tribunal.
  (Mr Nesbitt)  I would not like to comment on that because I am not a lawyer and I have no knowledge of the workings of the court system in that sense. However, that point has been made. A point made through SACHR was that it takes too long—three years—from when you initiate something to when it gets to court. Maybe you could do it more locally or do it in a different way. For example, I give you my own employer, they set up within that employer organisation an equal opportunity unit to try and deal with the issues in-house so they would not have to go to the Fair Employment Commission or the tribunals as it would actually be. There are ways of dealing with it and in SACHR they could enhance things of this nature but I would not be qualified to make any definitive position on it other than certainly the issues took a long time to get to court. Maybe we are too litigious and too many do use the courts, maybe there should be some sifting mechanism before hand and perhaps employers can sift before it goes to the fair employment tribunal.

Mr Robinson:  Thank you.


  396.  I inferred one conclusion from your evidence was that you were arguing that the Government should actually concentrate on demand-side issues, I will give better training as a better example, rather than on regulation. It is probably sensible if I make sure I am not misrepresenting you in saying that.
  (Mr Nesbitt)  Indeed you are not, because I said at the very opening paragraph in my dissenting note: "In bringing forward this Note I am not disagreeing with all of the contents of the Employment Equality Review. For example, in endeavouring to address long-term unemployment (Catholic and Protestant) the Report is to be commended." It mentions those aspects, one of which you have mentioned. These aspects are to be commended. As I said in answer to Mr Donaldson about how do you get rid of this unemployment differential, the best way is to get rid of unemployment as far as possible and that would be through training, through joined-up government if we ever have these departments functioning where they co-operate together where you get the proper training and proper education to match the industries of the next century and all of that aspect. You are correct, sir.

  397.  I want to make absolutely certain we are also in agreement on my next point which is that I infer you would regard the new duty on the public sector to take equality issues into account in all policy areas as important too?
  (Mr Nesbitt)  Again, I view it as important in the sense that there is a lack of affinity, trust and cohesion within the Northern Ireland communities and therefore it needs to be seen to be demonstrably so (and that is tortology for the sake of emphasis) within the public sector, and we are more public sector dominated here than the rest of the United Kingdom—that we are demonstrably fair in our recruitment and in our promotion procedures as well. It is there; let's make sure it is used.

  398.  On the basis of your answers to those first two questions, what new supply-side recommendations would you make?
  (Mr Nesbitt)  May I ask in this sense, and it may sound naive, what do you interpret as supply-side?

  399.  To be extremely simplistic I am thinking of removing those obstacles to increased employment, whatever those obstacles might be, thus in your phrase to reduce unemployment.
  (Mr Nesbitt)  I think you have clarified what I was wanting. Supply-side can be seen as supplying jobs or can be seen as a legal impediment to the supply of jobs. It is the latter you are referring to—that somehow all of this paraphernalia, for want of a better description, is inhibiting industry which is inhibiting the supply-side.

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