Examination of Witnesses (Qustions 380
MONDAY 19 APRIL 1999
SAVAGE and MR
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.
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
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
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
(Mr Nesbitt) I think you might beand I
am not sureconfusing 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 earlierand
I say this genuinely and those who know me know my political CV
is one where I am trying to resolve this conflictI do not
wish to see Nationalists and Unionists or Catholics and Protestants
disagreeing with one anotherbut 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?
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 stageand this is being personalone
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
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
thatand he is smiling at me right nowbecause 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
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 justifiedit 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
Chairman: 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?
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 notand I want to make this pointsaying
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 increasedhowever 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 longthree
yearsfrom 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
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 Kingdomthat
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
(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 tothat somehow all of this paraphernalia,
for want of a better description, is inhibiting industry which
is inhibiting the supply-side.