Examination of Witnesses (Questions 480
TUESDAY 20 APRIL 1999
ADAIR and MR
480. When you say "strike rates",
you mean to set a rate?
(Mr McCusker) Yes. There is a precedent for this
sort of thing. That was the context in which we were arguing.
To some extent, the argument has moved on. We are now into this
situation where we are going to have this statutory duty on public
authorities. Again, one of the unanswered questions is who monitors
whether, in fact, a Government Department or a public body is
honouring its statutory duty, and what is the sanction if it is
not? This is different from the private sector where we can say
that we are not paying any more grants or giving any more contracts.
But we cannot stop a public service. This is one of the areas
which continues to concern us; where you need a long stop somewhere.
481. As you say, the situation has been
moved on. This links us to the issues around the new Equality
Commission which has been set up. What is your reaction to the
work of the steering group, chaired by Dr Stringer, on the arrangements
for catering the existing equality agencies into the new Equality
(Mr McCusker) What they have said so far we do
not have any great problems with. We are most interested to see
what their next stage is which, I understand, is due out very
shortly. It would be a more critical stage. I know there has been
a lot of debate about how the Commission internally should be
organised. Whether it should have four directorates relating to
the four equality dimensions, or whether they should all be integrated
and organised on some sort of functional basis. We have not taken
a very firm view on this. It is something which is still the subject
of discussion. I think Mr Adair may want to come in on this point.
(Mr Adair) There is a lot of concern which is
still current. The object of the exercise was to set up one Equality
Commission. It seems to be that in this working group they are
actually moving away from it and they are coming up with a situation
where there is the worst of all worlds. It looks to me as if they
are going to have four directorates within the Equality Commission.
You will then end up fighting over the head of resources about
which one you are going to pin your hopes on, rather than being
a collective thing to have a go at the whole scenario.
482. What role have the trade unions on
the new Equality Commission? Have you been invited to send representatives
or have you been frozen out completely?
(Mr McCusker) We do not know whether we are yet
in or not. Like all and sundry in Northern Ireland, we have been
invited to make nominations and we have put in four or five. I
understand that there is something like 200 nominations. I might
say that there is an area of considerable debate in Northern Ireland
about how far Nolan impacts. We are concerned that Nolan might
be fair enough for all understandable reasons in Britain, but
the way it impacts in Northern Ireland we are very concerned about.
Effectively, it puts the civil servants even more in the driving
seat. We have been very concerned about the impact when civil
servants, say, decide the specification. Some of the specifications
we have seen, particularly that for the Industrial Development
Board, are such that not many of the long-term unemployed can
get a look in. The job specification has been very restrictive.
Secondly, when they interview the people, there is a potential
conflict between that specification and what the Secretary of
State has said about the Equality Commission being representative
of the community. How you square representation of the community
with Nolan has not been satisfactorily explained to us. We think
that the Equality Commission should be representative of the communities.
That should take place within Nolan. I am not sure how this is
going to be worked out.
(Mr Gillen) May I add something to that. The Secretary
of State, just last week, issued a press release and the second
report on the composition of public bodies. We have had a number
of meetings with the heads of the Civil Service, with the Secretary
of State and various Ministers, on how we think we are being disadvantaged
through Nolan. The Secretary of State has said quite unequivocally
that this is going to create better opportunities for women and
marginalised groups to be included on public bodies. It would
make it far easier to fill in. Jim mentioned the IDB. One of the
things was that you had to be a chief executive of a company or
a managing director to qualify to be on the board of the IDB.
That is excluding people. We have been working pretty hard to
try to get that changed. It is something that we are very interested
in and will continue to pursue. We did bring the question up with
Len Peach about PAFT in relation to public bodies, who said it
would be useful to have that stipulation in public bodies and
PAFT, so that they are representative of the community. Therefore,
we look forward to some response on that. We know that his term
of office has been extended for another period. It is something
when we get the second report we will want to pursue.
483. I want to read some of this into the
record because it is very useful and is a new point you have raised.
We have already heard this morning about concerns over the representative
dimension of the Equality Commission. Should it represent political
parties or disputes within political parties, or whatever? What
I would like from you, gentlemen, could you put on the record
for us and summarise your concerns as to how Nolan could impact
on this process. In other words, what is it about Nolan that has
ramifications for the process we are talking about?
(Mr McCusker) Our concern about Nolan/Peach is
the specification is drawn up by civil servants; it is not the
subject of any public consultation whatsoever. The tendency, as
far as we can see, is to draw up job specifications which are
exclusive and not inclusive. Then it moves into an interviewing
process which is conducted, in the main, by civil servants. There
may be one person from outside the civil service, but again how
that person is selected, what their role is, is shrouded in mystery.
At the end of the process you get a decision. It seemed to us
also to inhibit what Ministers can do. You may be critical of
Ministers in the past, how they selected people, but I imagine
that the Minister now has great difficulty in not accepting what
comes up through the Civil Service process. Our viewand
this does not just apply to the Equality Commissionis that
quangos should be representative of society. The tendency of the
last Administration was that quangos should be composed primarily
of business people. We do not think the function of a quango such
as the Equality Commission is to second-guess professionals. The
function of an Equality Commission is to represent the person
in the street. This depends on what constituency is being addressed,
but obviously in the equality area you need to look at the main
equality dimensions: the fact that there is division in our society
between Catholic and Protestant, the gender dimension, a disability
dimension, a race dimension. We have also got the economic players.
We have the employers and ourselves. We have all the equality
organisations. Our view is that being representative should be
the first thing. I was struck by something which I just happened
to come across accidentally. It may appear to be a bit off-beam.
There was an advertisement in one of the London newspapers for
a trade unionist to be appointed to the Docklands Light Railway.
If that did not conflict with Nolan/Peach, why cannot we say we
want so many trade unionists for an Equality Commission? So many
Catholics and Protestants and all the rest of it. Why cannot we
adopt that approach? If it is good enough for the Docklands Light
Railway, it is good enough for the Equality Commission in Northern
484. I hope the Equality Commission will
be more successful than the Docklands Light Railway!
(Mr Gillen) If I may make a quick reference to
the Good Friday Agreement, it will come as a big shock to some
of our colleagues, at least in the Republic, some of the things
which are in the Good Friday Agreement: how far behind they are
in equality issues and current employment issues. Recently, our
Executive Council was invited to nominate two people to the new
Equality Agency which has been set up in the Republic, (specifically,
in the ICTU), one man and one woman. We have no such guarantee
in relation to the new Equality Commission in Northern Ireland,
whereas we did have certainly a recognition that we were on the
Fair Employment Commission and the Equal Opportunities Commission.
There is that remote possibility that we will be excluded from
the new Equality Commission because we are not recognised or involved
as a social forum. What we are arguing is that we may well have
some individuals in there, but as a trade union centre working
in this area since 1966 or before that, we should be included
in there as a regular. This was the point the Chairman was making:
that we will have to go through to Peach/Nolan, etcetera.
Mr Salter: Thank you
485. As a matter of curiosity, the advertisement
calling for trade unionists on the Docklands Light Railway, was
this before or after it was taken into public ownership?
(Mr McCusker) I think it was after.
Chairman: It has nothing
to do with the price of eggs but simply because Sir Len Peach's
name has come up in the course of evidence, I well remark that
he gave me one of the memorable phrases of my life when he was
still in the private sector: that what the private sector was
seeking was wild duck flying in formation.
486. We are well aware that you did make
reference to national security exemptions in your submission to
SACHR. What concerns do you have, if any, about the new procedures
regarding ministerial national security certificates?
(Mr McCusker) Our concern about section 42 of
the Act has been the problem that the person who is "accused"
has not been able to know what the evidence has been against him.
The argument from the security people is that if this were disclosed
then that could prejudice their sources. Our suggestion has been
that a third party look at this and see if we can bridge that
particular gap. Our understanding has been, for example, that
the Ombudsperson is not entitled to see stuff which might be classified
as national security. That person should be able to see what the
evidence is against the person and be able to intervene in this
situation: to decide, first of all, whether the refusal to disclose
the evidence is reasonable; and, secondly, if it is reasonable,
whether it is a fair assessment of the situation that the person
should be denied, say, employment, etcetera. We have concerns
that there is not the independence in the proposals that we would
have in the like of the Ombudsperson. One of the other things
which concerns us is that there have been cases of mistaken identity
in some of these cases, where usually there has been evidence
of association with certain people. It might not relate to the
person who is accused, so to speak, yet the person does not have
the opportunity of denying it. This is a denial of justice which
does concern us greatly.
487. I am going to move now to statutory
equality duty. What effect, if any, do you consider the new equality
duty on public authorities in the Northern Ireland Act is likely
to have on policy-making in areas relevant to equality of employment?
(Mr McCusker) I think this is an area which we
were discussing earlier on. If you take the examples I quoted
of the IDB, we think it would now be an obligation on them to
ensure that their activities are consistent with the statutory
duty; to report on how they have taken the statutory duty into
account in their decision-making processes. Also, as I have illustrated,
and this is a key issue for the future, this is in the Department
of Environment's Shaping the Future and in the nine key
centres. How does that Department take into account its statutory
duty in drawing up its nine key centres and all its associated
activities? The Training and Employment Agency is in the lead
role here also. It should be under an obligation as to how it
has taken into account its statutory duty, and how it proposes
to ensure that in its activities it has taken account of statutory
duties. It is very relevant to a number of agencies in Government.
488. How capable do you consider the CCRU
is generally in the area of equality policy development?
(Mr McCusker) I would say quite freely that we
are disappointed in the CCRU. It does not appear to have an awful
lot of clout. I am not sure what the reason for that is but I
think, at the end of the day, that Departments have been able
to argue against the CCRU. There has been no statutory obligation.
Quite frankly, the CCRU has been told that you can go and take
a running jump, if you wish, because there is nothing you can
do about it if we do not adhere. It has been dependent on co-operation
by Departments. I do not think it has been able to persuade Departments
to go along with the requirements, as we see it, of the old Policy
Appraisal and Fair Treatment. I think this is a crucial area.
Not only are there proposals for a devolved administration, but
in this proposal for an Equality Unit through the office of the
First Minister and the Deputy First Minister, we assume that it
will exercise the power and the function previously exercised
by CCRU and particularly ensure that the new statutory requirement
is met. Given that it rests in that office, in the two senior
people in the devolved administration, this should give it a lot
more clout than it has had in the past.
489. How confident are you of CCRU's current
ability to act as an effective internal enforcement mechanism
for the equality obligation of the Northern Ireland Act?
(Mr McCusker) Quite frankly we are not confident.
The indications are that it is not able to. Our main argument
for that would be the Annual Reports on Policy Appraisal and Fair
Treatment. We think they have been distinctly lacking in enforcing
progress and have been paying lip service to the policy. There
has been no apparent evidence. Maybe the CCRU has, in fact, been
trying to exercise clout and has been unsuccessful but, on the
face of the public documents that are available, it does not seem
to have been successful. We have to say that this has been no
reflection on the judgment or the competence of the people there,
but the fact is that at the end of the day the goods have not
been produced and the present system has not been working. This
is one of the reasons why we argued we should have the statutory
Mr Beggs: Thank you.
attention having been called to the fact three Members were not
present, he suspended the proceedings; and other Members having
come into the room and three Members being present the proceedings
490. You mentioned section 31 at the beginning
and I have a couple of questions, in conclusion, to ask you about
consultation with employers on periodic reviews. The first is:
to what extent are employers currently consulting with trade unions
when reviewing their employment practices and procedures under
(Mr McCusker) I think, certainly in the public
sector, it is fairly good practice; but in the private sector,
which Samuel may wish to comment upon, it is probably an exception
that there would be consultation.
(Mr Adair) You will find, Mr Chairman, in most
of the major companies, the big companies such as Shorts, Gallaghers
and Du Pont, that they will consult. The medium sized companies
do not feel that they can contribute by consulting upon those
issues at this particular point in time.
491. I have a further question which I will
break in two. Could I ask you to clarify the relationship between
these reviews and the requirement to promote equality of opportunity
in the new Northern Ireland Act. First, am I correct in thinking
that where the employer is a public sector employer, then the
employer review will be part of the arrangements which the employer
will be required to take for meeting the general obligation to
promote equality of opportunity under the Act.
(Mr McCusker) That would be our reading. Section
31 would be part of the statutory duty and would be one element
in it because that would be one element of the business of the
public sector organisation. It would not be the whole of the obligation
of the public sector body under the statutory obligation.
492. I was expecting you to give that answer,
or at least in general to give that answer. Therefore, let me
move on to the second half. Am I correct, under that assumption,
in thinking that public sector employers will, therefore, have
to consult representatives of those affected (and this will include
trade unions) in the preparation of the employer review?
(Mr McCusker) I am not sure that there would,
in fact, be a statutory obligation to consult. I think our expectation
is that they will consult. Certainly most of the major public
sector employers have consulted on their section 31 reviews. One
hopes that there would be no regression in that situation, but
I am not sure we have read into the statutory obligation that
it would entail an obligation to consult the trade unions.
Chairman: If, in the
aftermath of this examination, you wanted to gloss that at all
on the basis of having taken further thought, it would certainly
be helpful to us to know what your conclusion was. Let me ask
whether any of my colleagues have a supplementary question they
want to ask.
493. There is a lot of talk about division
in the society and discrimination against Catholics or Protestants.
Where do the ethnic minorities, as some people are all too ready
to define themthe Sikhs, the Hindus, the Chinese, the Vietnamesecome
into this equation, if at all?
(Mr McCusker) One of the problems with our society
is that because of the proportions between Catholics and Protestants,
it tends to dominate the debate on equality. I often think that
people with disabilities are the most discriminated against in
our society. Because it is politically an issue, the Catholic/Protestant
dimension means that the other dimensions sometimes are neglected.
One hopes that the new Equality Commission will be able to put
more resources behind the other dimensions, including the race
one. We used to pretend in Northern Ireland that we did not have
a problem with race discrimination because we were too busy discriminating
against Catholics and Protestants. The recent evidence is that
those people are very discriminated against. Even outside the
realms of the employment situation, they are quite frequently
subject to physical assault in a way which has not been apparent
before. I do not think our treatment of ethnic minorities in Northern
Ireland is anything to be proud of.
(Mr Adair) Could I add a supplementary to that
particular point. In the society, women are still discriminated
against as well, from the fact that you will always find that
they cannot travel as far to jobs, and that a lot of the jobs
are part-time and they are not in the periphery of where they
are. The ethnic minorities will come into that category as well
because they will be the chip shops and Chinese restaurants and
things like that, where they are limited to the amount of hours
they can actually do.
494. For what it is worth, a friend of mine
was a service soldier, who comes from an Afro-Caribbean background.
He said that there was one thingthis was many years ago
- where the Catholic and Protestant communities were entirety
at one, which was the depth of discrimination and racial abuse
that he suffered at the hands of both people.
(Mr McCusker) Unfortunately, I can believe it.
495. We have drawn attention to many of
the difficulties still to be overcome within Northern Ireland
during this session. I think, nevertheless, I would like to have
it confirmed by the representatives here that in spite of all
the difficulties throughout the period of trouble, there has been
a remarkably high level of goodwill and co-operation at all levels
among those employed in Northern Ireland industry and commerce,
thanks to the influence which trade union representatives have
(Mr Gillen) Could I thank you very much for that.
We take a bit of pride in the role that we have led in Northern
Ireland these past 30 years: our peace work progress campaign,
our Investing in Peace Programme; the support that we have
given to local politicians who are now in the Assembly; the goodwill
that we offer them. We look forward to the opportunity to congratulate
them when they set up an Assembly and an Executive to look after
all of our interests. Today we had piece in the Irish News
this morning about the role that we have played with the CBI in
Neckford, in the Northern Ireland Council for Voluntary Action,
where we wrote to all of the Assembly members, including the two
Prime Ministers and the two Secretaries of State, saying that
we are still out there waiting to support our politicians. We
want to have some arguments with them as well because we want
to talk about the future of our health service, our education
service, local government. We want to talk about employment prospects;
all of the things we want to work out closely together. I know
where Samuel comes from, he comes from the public services, and
we work very hard to keep our membership together. We run courses
which will put issues before them. We have established a Counteract
Unit to deal with the problems of sectarianism or whatever. We
are working with education as well. We will continue to support
politicians and value the work that they do, and hope that they
will involve us as they take us forward into the year 2000.
496. I do not know whether there is any
question you were expecting us to ask you, which we have failed
to ask you, but we are very appreciative of your having come to
give evidence to us. We very much appreciate the time and trouble
you have devoted to it and let me thank you on behalf of the whole
(Mr McCusker) Thank you very much, Chairman.