Examination of Witnesses (Questions 459
- 479)
TUESDAY 20 APRIL 1999
MR JIM
MCCUSKER,
MR SAMUEL
ADAIR and MR
TOM GILLEN
Chairman
459. Let me issue a very warm welcome to
you from the Chair. Thank you for the submission you made to us
in the fairly early stages of what we are about. We will seek
to make our questions follow a logical order, but I cannot predict
that the order round the table will necessarily be logical, as
we may dot around a bit. If at any stage you want to gloss an
answer you have already given, either orally on the spot or in
writing afterwards, please do not hesitate to do so. We will leave
you to decide between yourselves who is going to answer what,
but I will make the observation that we will not feel that your
evidence is inadequate if all three of you do not answer every
question, so we will leave it to you to decide who is going to
answer what. We, in turn, will feel at liberty to put in our written
questions of a supplementary nature if, after the event, we discover
that there is something which we have failed to ask which we wanted
or needed to. I do not know if there is anything you would like
to say of an introductory nature before we begin our questions.
(Mr McCusker) May I say, Chairperson, that we
very much appreciate the welcome you have given us and the opportunity
to be here. We would like to say a few introductory remarks.
460. We would be delighted to hear them.
(Mr McCusker) The first point we would want to
make is that the key to this whole area is the statement which
was in the Government's White Paper, Partnership for Equality,
that what we need are more jobs, more fairly shared. That is a
key requirement for achieving more progress on this. However,
having said that, the view of Congress is that the 1989 Act has
been largely successful. Now, while the overall position looks
satisfactory, I think there are pockets of problems in particular
occupations and I think there are problems also of segregated
workforces which have to be dealt with. Our view is that the priority
now is not so much on those who are active in the labour market
but those who are not active in the labour market and not connected
with it. We are thinking here not just about the long-term unemployed,
but women returners and also the increasing proportion of people
that we have in Northern Ireland who are drawing Social Security
benefits on a long-term basis. Those people are not connected
with the labour market. We think that is an area which needs attention.
We are a bit concerned that the last White Paper from the present
Government concentrated on the religious aspect and did not have
a comprehensive analysis of the other dimensions: sex, disability
and race. It then drew conclusions based on what we felt was not
an entirely rigorous analysis of the situation. Because we think
the priority lies in those not active in the labour market, we
have attached considerable importance to Targeting Social Need
and Policy Appraisal and Fair Treatment. As far as we were concerned,
Policy Appraisal and Fair Treatment was not working. Therefore,
we advocated that it should be put on a statutory basis, which
the present Government have accepted, but how this is going to
work out in practice is unclear. Our concentration recently has
been to argue that PAFT and TSN means that the focus is on the
role of public services and the contribution they can make. There
have been a number of disappointments, particularly the Industrial
Development Board. In one of the earlier annual reports on Policy
Appraisal and Fair Treatment, there was no contribution whatsoever
from the Industrial Development Board, yet this is the primary
organisation in our society trying to create more jobs in manufacturing,
and tradeable services. We think that the IDB should be more active
in setting targets for firms which are receiving public money,
and monitoring whether those targets are achieved. There are also
other areas which do give us cause for concern. As you are probably
aware, the Department of the Environment has, at the moment, a
document, Shaping the Future. One of the central elements
is that there should be nine key centres in which, certainly from
a physical planning point of view, growth should be concentrated,
but there is a DED document which suggests that they are going
to piggy-back on that. As far as we can see, there has been no
analysis, on either the Targeting Social Need or on a PAFT basis,
of that particular proposal. These are some of the things which
worry us and do illustrate the need to have this statutory equality
requirement on Government Departments and other public bodies.
Just one or two other comments, if I may. One of our other disappointments
about the 1989 Act has been contract compliance, which has been
virtually a dead-letter. We criticised the provisions in the 1989
Act on contract compliance. The hurdles that are in the way of
contract compliance make the Grand National look like a doddle.
The amount of time and effort which have to be put into this,
effectively to prosecute someone under that, does not seem to
be worth the candle. One of the things we want to look at is whether,
in fact, the contract compliance should be more linked with the
section 31 reviews which are, as you know, to decide whether there
is fair participation and consequently on affirmative action.
Section 31 is a bit peculiar because when you read the Act all
it says is that employers should do this, full stop. There is
no statutory obligation on the employer to provide these on the
Fair Employment Commission, although that is what most of them
normally do. There is no obligation on the Fair Employment Commission
to do anything about it. We think that is an area which has remained
undeveloped. We also have a bit of a bone of contention in that
we think trade unions should be consulted on section 31 reviews.
The Government has recently turned us down on that one. I would
also like to make some comments on the Equality Commission. Congress
has severe reservations about this because it was based on what
we felt was an inadequate analysis of what was needed on the other
dimensions of equality other than the religious one. Secondly,
we feel that an Equality Commission could only work effectively
if the corpus of legislation was reasonably uniform between the
main dimensions of equality. Finally, we were concerned that you
could not give an Equality Commission the extra responsibilities
without giving them extra resources. That was certainly not evident
from the White Paper. We are particularly concerned that, while
the Government in Britain had promised extra resources for the
disability dimension, there was no indication that this was going
to be read across into Northern Ireland. Those are a few remarks
which we hope you will find useful.
461. Thank you very much indeed. On contract
compliance, one of my colleagues will come back and ask some supplementary
questions in due course. Before we get down to what is wrong with
the present situation and what we need to achieve in the future,
could you give us your reading of what progress you think has,
in fact, been achieved since the legislation. In other words,
so that we can have a clear idea of what you approve of in terms
of where we are now.
(Mr McCusker) The evidence from the monitoring
returns of the Fair Employment Commission shows that, on an overall
basis, the proportions of Catholics and Protestants in employment
is approximating to those who are in the working population at
large. We are getting closer to that. I think that has been brought
about in a large measure by the 1989 Act.
462. Thank you. I am not going to ask you
what you think are the major continuing problems because I think
you have, to some extent, covered those in your introductory remarks.
Is there anything you want to add in terms of what might be described
as major continuing problems?
(Mr McCusker) The two aspects of this are occupational
segregation, which is there still in a fairly large measure. There
are certain occupations which are predominantly Protestant and
there are certain occupations which are predominantly Catholic.
I do not think that is healthy for society: occupations which
are dominated by one or the other. Similarly, we have a situation
in which there are some workforces which are predominantly one
or the other. I think again that is unhealthy. It is a problem,
as far as we can see from the fair employment statistics, that
we do not seem to be making much progress on. This is a problem,
but the monitoring statistics do not really come into this. This
is where section 31 should get more at this sort of problem: why
I think that possibly section 31 reviews should become more important
in the future, given that we have a monitoring system up and running.
463. Would you like to give us perhaps two
or three examples of occupational segregation on either side of
the community, and indeed expand a little on what you said about
workforces.
(Mr McCusker) Occupational segregation. Engineering
and craft trades have been predominantly Protestant but there
are some changes and moves in the right direction on that one.
Then, on the other side of it, you find construction trades tend
to be disproportionately Catholic. This is not something which
we think is necessarily healthy. In the white collar areas, the
segregation has been breaking down a bit. Lawyers, for example,
have been disproportionately Catholic, but other occupations,
certainly in the past, mechanical and electrical engineering,
has been predominantly Protestant. Those are examples off the
top of my head of occupational or workforce segregation. It is
difficult to single out particular areas because you may feel
that you are criticising particular areas but there is always
some cross-over. If you are predominantly in the engineering trade,
your workforce is likely to be predominantly Protestant, although
there are exceptions to that. Similarly, if you are an employer
in the construction trade, your workforce is likely to be predominantly
Catholic. I would hesitate to name particular firms but you can
see them in the FEC's monitoring returns, where only 10 per cent
of the workforce is either Catholic or Protestant. That is a situation
which I do not think is particularly healthy, particularly if
they are in an area where the labour market on which they are
drawing is not so unbalanced.
464. My next question—I could equally
well have asked it right at the end but I will ask it at the beginning—what
criteria do you think our Committee should use for determining
whether or not the legislation has been effective?
(Mr McCusker) I would think that if you looked
at the working population as a whole, including those who are
in employment and those who are not connected with the employment
market, and took a view as to whether the proportions are reasonable
or not, my view is that they are not, but I do not think this
is so much the fault of the Act. The Act focuses on the employment
situation. Our problem is of people who are not connected with
the employment situation. This is where the role of the TSN, which
is about the provision of public services, is more important and
is not really catered for in the 1989 Act although, to some extent,
this is now covered by the Northern Ireland Act and subsequent
Order.
(Mr Adair) May I make a point on one of the things
you say, as to how you should evaluate this. If you look at the
meanings of the fair employment legislation, one of them was to
create a society which in terms of employment would reflect both
communities. I think that if you look at that, then there has
been an increase in the proportion of the population who are in
jobs, and that would be a way of how to measure whether or not
the fair employment legislation has been successful.
Mr McCabe
465. The questions I want to ask follow
quite logically from Mr Adair's comments. I want to ask a few
questions about the unemployment differential. You made various
references to it in your submission last year. I wondered if,
in terms of a general question, I could simply ask you what is
the significance of the unemployment differential in terms of
the fair employment debate?
(Mr McCusker) You can look at it on a statistical
basis and then look at it on a political level. On a statistical
basis, it would need major changes in those in employment, effectively
to give a major change in the unemployment differential. However,
at the same time, it is a sort of litmus test of the success of
Government as a whole and not just a particular piece of legislation
as to whether it is effectively making inroads into this particular
problem. It is an illustration of the fact that the deprivation
in Northern Ireland is unequally shared. There are large pockets
or parts of this Province where the Protestant community predominantly
has suffered from long-term unemployment. We feel that it is a
particular problem which has to be dealt with for both communities,
and until we make significant inroads into that whole problem,
including the differential, then the judgment is likely to be
that Government is not being successful in tackling the overall
problem.
466. Thank you. We took evidence earlier
from Mr Nesbitt who argued quite strongly that because of changes
in the birth rate between the two communities, that the unemployment
differential was a moving target and, therefore, it was not worth
wasting energy on. That roughly is what he was telling us. I wondered
whether you had any reaction to what he was saying.
(Mr McCusker) We could indulge in a large argument
about the statistics. From our point of view, the fact is that
it is a political reality, that the differential in unemployment
will be a measure of the success or failure of Government in this
area. I accept that there are factors which are outside the control
of Government, which will have an influence on rates of unemployment
and possibly the differential between the two. What is remarkable
is that when you do look at the statistics, to see how durable
the differential has been. You may try to defend it in all sorts
of statistical ways, but it is a fact that it is there and cannot
be denied. It is going to be a measure or criterion which people
are going to use to judge whether the whole policy has been successful
or not.
467. From your perspective, what do you
think should be done about the unemployment differential?
(Mr McCusker) This is where we would argue that
the policies of Targeting Social Need and what has been in the
PAFT, the Policy Appraisal and Fair Treatment, come into play.
I did mention that we have been disappointed at what appears to
us a lack of participation on the part of the Industrial Development
Board. For example, we would argue that the Industrial Development
Board, if they are giving large public funds to a company, should
try and persuade that company—and I think they were successful
in one particular case—to take a proportion of their people
from the long-term unemployed and they should also then monitor
whether or not, in fact, that company has been successful. What
the IDB tend to say to you is, "We have plants adjacent to
TSN areas." But when we ask them if they are adjacent to
TSN areas, that does mean that they are drawing their labour from
the TSN areas. "Can you prove it?" They say they cannot.
We say, "Do you make any attempt to monitor the situation,
collect the information?" I think, quite frankly, that this
has been a bit of a bone of contention between us and them because
they tend to say, "This is not really our function."
This gets to the heart of the thing. We say that there is an obligation
on all public bodies at least to ensure that what they are doing
is not exacerbating the situation and, if possible, is helping
to improve the situation. So those are the areas. I mentioned
public transport, for example. One of the projects that the IDB
was after some time ago was the South Korean project, to put on
the outskirts of Belfast, with no public transport to it. Now,
there are questions there: should it go there? If it should go
there, should there be a duty on all parts of the Government machine
to ensure public transport will be available, or should it be
put in an area where there is already public transport? It is
back into Shaping the Future. The message we seem to be
getting is that we should be going for brownfield sites where
there is a developed infrastructure rather than greenfield sites.
All of these start interconnecting. It gets back to Mr Blair's
phrase of joined-up Government which we do not see much evidence
of.
468. On your last point, would it be fair
to conclude that, although you have talked specifically about
the IDB and some of the shortcomings there, you are also looking
for more effort from Government on the kind of examples you have
just quoted.
(Mr McCusker) What we would hope is that a new
statutory duty would mean that there would be a concerted effort
across all Government Departments and other public bodies. There
are other big spenders out there too: the Education Boards and
the Health and Social Services Boards. We should have some sort
of concerted effort to make sure that what we are doing, as I
say, does not exacerbate the problem and hopefully helps to resolve
it. Obviously, in this situation, if you have the agencies whose
primary responsibility is to try and create additional employment,
like the IDB, it is in a leading role but that does not mean to
say that everybody can sit back and leave it all to them.
469. Thank you. That is very helpful. One
obvious Government initiative is the New Deal. I wondered if you
could comment at all on the operation of the New Deal and how,
if at all, it is impacting on the unemployment differential.
(Mr McCusker) I should perhaps disclose that I
am a member of the New Deal Task Force for Northern Ireland. In
a sense, for the New Deal, the jury is out. The 18 to 24-year-old
programme was launched in April last year. The 25-plus programme,
which is really the area that is most relevant to this discussion,
was only launched in the autumn, and the latest figures I saw
showed that only 200 or so were on it. It is very difficult to
make a judgment as to where it is going to impact. It has obviously
a lot of political clout behind it. It has money behind it, which
other schemes have not had. It has a lot of goodwill behind it
right across all sectors, so one hopes at the end of the day that
it will be successful. In our view, those schemes which are most
successful, having looked at experience internationally, are those
which connect with employment and are not purely training schemes.
There has been a scheme run with some Peace and Reconciliation
money in Northern Ireland on a limited basis, called "Bridge
to Employment", run by the Training and Employment Agency,
which seems to have been quite successful. In this scheme, if
you have a company which is new or expanding, you invite the long-term
unemployed, particularly in the locality, to go through a special
training process prior to being then considered for employment
in the firm. In some cases they have had 80 or 90 per cent of
the people going through getting jobs. There have been a number
of our inward investors involved in that. We would like to see
more of that. Certainly in the 18 to 24-year-old part of the New
Deal, it was very highly prescribed from Westminster, and there
did not seem to be the flexibility to bring those sorts of things
into it. The 25-plus does give you that scope. It will be interesting
to see whether that develops because, at the end of the day, if
more people move into employment that is the greatest measure
of success.
Mr McCabe: Thank you
very much.
Mr Salter
470. Good afternoon, gentlemen. I want to
explore two areas with you, both of which you referred to in your
submission to the Standing Advisory Committee on Human Rights
in context with their Employment and Equality Review, that is,
Affirmative Action and Contract Compliance. It is page 2.122 and
the subsequent page. First of all, a couple of general points.
How far do you consider that the new Order implements an appropriate
approach to affirmative action? I take it from your comments that
it should have gone further, but can you expand on that particular
point to begin with.
(Mr McCusker) One of the problems we see is the
question of giving preference to the long-term unemployed. Take
an example. If you advertise for a job, you get quite a considerable
response and among those responses—we have had this experience
ourselves as employers, where I remember on one occasion we had
300 for a comparatively low paid job—you had a range of
people who had taken early retirement from major private companies
and public sector organisations; and then you had young people
with very limited experience; a question arises in that situation:
what is the fair thing to do? One presumes that the older person
who has taken early retirement has a pension, maybe has a grown-up
family; but, on the other hand, the young person is starting out
on their career or is in the early stages of their career, and
possibly has a young family or maybe a family on the way. What
is the fair thing to do in that situation? Should you be able
to give preference to the long-term unemployed? Our view is that
you should in those situations. To some extent the Government
has moved a bit in that direction but I do not think it has moved
sufficiently far. This is an illustration of the area that we
were concerned about. Certainly the present legislation does not
allow you to do that. If you want to be tribunal-proof you go
for the person with the experience because you see yourself at
a tribunal.
471. Let us build on that argument and refer
back to the evidence we got from the Institute of Directors yesterday,
which will be in the public domain. Basically, from what you were
saying, Jim, if you go for experience, if you go for merit, then
you are going to be fairly bomb-proof. Would that summarise what
you are saying when it comes to defending your position at a tribunal?
(Mr McCusker) We are not going for merit, whatever
that means. One could write books on what is merit! What we are
saying is that the tendency is to go for experience on the basis
that you feel that you would be better able to defend yourself
if there were tribunal proceedings.
472. I do not want to get into a distinction
between merit and experience and best person for the job. We know
what we are talking about. This is not a trick question. Does
not this argument stack up that to go for the person who would
help you fulfil the needs of the organisation, who may be the
most experienced and the best person for the job or whatever,
is it not also fulfilling the needs of the organisation to ensure
a balanced workforce? Can you not argue that case strongly, or
does the law not allow you to argue that case strongly at the
moment?
(Mr McCusker) A balanced workforce. If you have
you an imbalance in your workforce—presumably you are talking
on the religious dimension?
473. Yes.
(Mr McCusker) My understanding of the law is that,
at the moment, it does not allow you to say that it is because
you have an imbalance that you can go for a person who is in an
under-represented section of the workforce. I am not sure that
we go so far as to say that the law should be amended to allow
you to do that. There is a problem in our society with long-term
unemployment and people who have not been connected with the labour
force for a long time. However, we feel that there should be a
social obligation on us to give preference to those people in
that situation where all things are equal.
474. May I interrupt you. That would be
irrespective of religious background?
(Mr McCusker) Yes.
475. Thank you. Moving on, I share the class
analysis rather than the religious analysis when it comes to dealing
with unemployment. Is there not a genuine problem with affirmative
action, as we would define it, certainly in terms of trying to
address religious balances? I would suggest three specific areas.
One, what about those workers who choose, (in my view, maybe quite
sensibly), not to align themselves with any priest of any religion?
Secondly, in terms of entrenching the sectarianism, which is endemic
in your society. Thirdly, the danger of triggering backlash.
(Mr McCusker) The reality in Northern Ireland
is that whether you profess to be an adherent to any particular
religion or not, you will be classified. You can be perceived
as someone famously said one day as a "Protestant atheist"
or a "Catholic atheist". That is a reality in Northern
Ireland as it exists at the moment. If we developed to a society
where people are not perceived in that way—hopefully, we
might move to that society—a lot of this stuff would become
redundant. The reality in Northern Ireland today is that you will
be perceived as one or the other, even though you may say you
forsake all religion and all the rest of it. That also possibly
answers the other part, that unfortunately in our society there
is division. It is there. I do not think that one is adding to
it by monitoring the fact that it is there. In some ways it is
more open now. Years ago, nobody would talk about these sorts
of things. We are now prepared to talk about them and recognise
they are there. It has been brought out into the open and this
is promoting a more healthy debate. This will lead, in the longer
term, to a situation in which this is no longer a factor in society,
what you are perceived to be.
(Mr Adair) Could I also say in response to this,
if you are a declining economy, which we have been for some particular
time, and you do not take moves to bring the long-term into work,
then you will never get them into work. All you will be doing
is regurgitating the people who are in work—moving from
this factory to that factory to the other factory. You are going
to have to make moves to give the long-term unemployed the chance
to get them into employment.
476. That is very helpful to read into the
record because we are fast approaching the conclusion that you
cannot address the balance in terms of declining workforce. May
I move on to contract compliance. You talked earlier, Jim, that
there were more hurdles than in the Grand National put in the
way of effective contract compliance. How practical do you think
it is to make the linkage between the awarding of contracts in
public service, in particular, and a specific performance requirement
for those organisations?
(Mr McCusker) I do not think it is easy, but some
other jurisdictions who have been able to do it. To some extent
there was some evidence of unofficial practice of it in Britain,
in relation to race, some years ago. It seems to have had some
effect there. The difficulty, at the moment, is that you have
to have committed a really serious offence and been found at fault
by the Fair Employment Commission, having gone through a whole
rigorous procedure with many opportunities for appeal, before
you would be disqualified. It is very negative in nature. One
of the things, which certainly I have been worrying about, is
whether it should not be more connected with the section 31 review,
which is really about your participation but, more importantly,
whether you are doing anything (or can do anything) about the
unfair participation that is present. This may be a better basis
on which to consider whether firms should be allowed to compete
for Government contracts, be awarded government grants, etcetera.
477. It would certainly, would it not, seem
somewhat strange for a Government to have on a statute book fair
employment legislation—possibly some of the most effective
legislation in Europe—and then be handing out large amounts
of Government cash to organisations which did not embrace the
spirit of that legislation, in the way that they acted and in
the way they treated their potential employees.
(Mr McCusker) Yes, that has been our point, but
Government seem to be very reluctant to penalise companies. They
are reluctant to exercise the powers that are in their hands.
It is not one that we have successfully argued with Governments
in the past. I think probably we are the voice in society which
has argued strongly for it, other than possibly the equality commissions.
The employers are obviously not keen on it. Governments are not
keen on it. We, and the equality bodies and various groups that
are keen on it, are not the dominant economic forces in society.
478. You are not entirely without friends
in this room. Moving on, the Minister of State, Mr Ingram, gave
evidence to this Committee some time ago that European Community
law poses a problem for us in respect of the introduction of contract
compliance. You make no reference to that in your paper, and certainly
other witnesses have questioned as to whether or not there really
is any blockage created by current European law. Have you any
view on that situation or any experience of it?
(Mr McCusker) Frankly, we do not have much experience
of it. We have heard the argument but I must say we have not found
it to be convincing. Our impression is that it is used by civil
servants as an argument for not doing more in this area. I am
not an expert on international law but one of the things that
certainly we are keeping an eye on is that under the Amsterdam
Treaty there is now a clause in the Treaty which extends the discrimination
to areas like religion and race. We, as a trade union movement,
are advocating that this be activated by having European Union
Directives on discrimination in religion, race, etcetera. Whatever
the arguments have been in the past—and certainly if we
are successful in arguing for a Directive on discrimination—it
should take precedence over any inconsistency or conflict in all
other Directives on public procurement. We would be hopeful that
if there is an argument there, the new provision in the Amsterdam
Treaty would enable us to overcome that.
479. If you were minded to provide us with
any supplementary evidence it might certainly help our deliberations
if you were to have some from your trade union discussions in
Europe. We will have an opportunity to discuss this further over
a session (hopefully) with the Secretary of State. Certainly I
think this is an area we need to probe. One last point. In your
paper to SACHR you talked in terms of the value of establishing
a Public Service Commission. You go on to say: "[to] replace
the largely ineffective Staff Commissions in Local Government,
Health and Education . . ." " . . . implementation of
equality of opportunity programmes . . ." and taking over
personnel functions. Given that this is set within the paragraph
on contract compliance, presumably you would see the establishment
of a Public Service Commission as being a useful tool to turn
contract compliance from a theory into a reality, or am I reading
too much into that?
(Mr McCusker) One of our concerns was about the
sanctions which could be exercised on public bodies which were
not complying with the legislation. The ultimate sanction in the
1989 Act is that the public body is the subject of a formal report
to Parliament. We would not wish to be disrespectful of Parliament,
but we did not think it was a terribly effective sanction on a
public body. The arguments we have had in the past are that if,
in fact, a public body was blatantly doing things which were contrary
to the letter and the spirit of fair employment legislation, that
a Public Service Commission should be able to come in and take
over their functions. We have precedents on this in Northern Ireland
because, in the wake of the Anglo-Irish Agreement of 1985, a number
of district councils refused to strike rates and a Commissioner
was put in to strike rates on their behalf.
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