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Consultation Paper
THE POWERS OF THE NORTHERN IRELAND HUMAN RIGHTS COMMISSION
November 2005
Contents
Introduction 2
The Government’s response to the recommendations of the 4
Northern Ireland Human Rights Commission
Equality 27
Regulatory Impact Assessment 28
How to respond to the consultation paper 31
The Consultation Criteria 33
1
Introduction
The Government believes strongly in the importance of human rights. It underpins
our vision of a modern society, based on opportunity and fairness for all. The
issue of human rights is constantly developing and Northern Ireland has been at
the forefront of the evolving human rights agenda. The establishment of the
Northern Ireland Human Rights Commission (‘the Commission’) in 1999 was a
significant step. The Commission is an important element of the Belfast
Agreement and it plays a major role in the continuing protection of human rights
in Northern Ireland. In addition, the Government has also established a range of
other bodies and mechanisms to ensure that human rights are protected and
developed.
The Northern Ireland Act 1998 provided for the creation of the Commission. The
Act sets out the functions, remit and powers of the Commission. Section 69(2) of
the Act required the Commission to make recommendations regarding its
effectiveness to the Secretary of State for Northern Ireland within the first
two years of its existence. The Commission submitted 25 recommendations to the
Secretary of State in March 2001. In May 2002, the Government issued a
consultation paper, which outlined the initial response to all of the
recommendations. It concluded that for a number of the recommendations, the
Commission already possessed the powers in question.
Following the NIO’s May 2002 consultation paper, a legal ruling of the House of
Lords brought a new perspective to some of the Commission’s recommendations. The
Commission had called for clarification in legislation of a number of incidental
and ancillary powers that had not been expressly conferred by the Northern
Ireland Act 1998. In June 2002, the House of Lords ruled (In re: Northern
Ireland Human Rights Commission [2002] UKHL 25) that the Commission did have one
of these powers; the power to intervene as a third party and act as amicus
curiae (friend of court).
In August 2002, the Commission responded to the Government’s consultation paper.
In that response it determined that the House of Lords ruling made it
unnecessary to continue to argue for the express clarification of incidental
powers and it therefore withdrew certain recommendations. In April 2004, the
Commission submitted a supplementary report containing four additional
recommendations and confirming that it had withdrawn recommendations 8, 9, 12,
14, 15, 16, 18 and 19.
2
The Government has considered the developments outlined above. We have also
considered changes in other jurisdictions. Most importantly, we have considered
the particular circumstances that relate to human rights in Northern Ireland.
We believe that it is right that the Commission is given appropriate powers.
This paper outlines our proposals for ensuring that the Commission is provided
with the right powers to enable it to carry out its duties effectively, while
taking into account those safeguards that already exist and taking care to
ensure that the work of the Commission does not duplicate work that is already
properly carried out by other bodies. Given the significant changes that have
taken place since May 2002, we also believe that the public should be consulted
on the Government’s updated response to the Commission’s recommendations.
Following this consultation, we will produce a summary of those responses
received. We will consider our proposals in the light of those responses and we
then intend to legislate to enact proposals, where necessary, when parliamentary
time allows. It should be noted that this consultation paper only applies to
Northern Ireland.
3
The Government’s response to the recommendations of the Northern Ireland Human
Rights Commission
Recommendation 1
In section 68(3) of the Northern Ireland Act 1998, the following underlined
words should be inserted: "In making appointments under this section, the
Secretary of State shall establish an independent selection process, complying
with the requirements of section 75 of this Act and of the Principles Relating
to the Status of National Institutions, approved by the General Assembly of the
United Nations in Resolution 48/134 of 1993, and as far as practicable secure
that the Commissioners, as a group, are representative of the community in
Northern Ireland".
1. The Government believes that as the Secretary of State makes appointments to
the Commission in accordance with guidance issued by the Office of the
Commissioner for Public Appointments (OCPA), there is already a sound basis for
independent oversight and so there is no need for additional legislation to
reinforce this position.
2. OCPA was established by Order in Council under the Public Appointments Order
in Council 1995 (subsequently replaced by the 2002 Order). OCPA’s guidance
requires that appointments ’should be governed by the overriding principle of
selection based on merit’. It also includes some important safeguards and
requires, for instance, that there should be independent scrutiny throughout the
appointment process by an independent assessor. In fact, in the recent round of
appointments to the Commission, three of the four interview panel members were
independent of Government and one was an international human rights expert. The
Commissioner for Public Appointments can also investigate complaints and audit
the process. Finally, the Secretary of State is accountable to Parliament for
his decisions.
3. This method of appointment is typical for other non-departmental public
bodies and is the proposed approach for the new Commission for Equality and
Human Rights in Great Britain.
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Recommendation 2
A new section 68(3A) should be inserted into the Northern Ireland Act 1998 which
reads: "Each member of the Commission shall serve impartially and independently
and shall exercise or perform his or her powers, duties and functions in good
faith and without fear, favour, bias or prejudice and subject only to the law".
4. The Government does not believe that it is necessary to amend the Northern
Ireland Act 1998 as proposed. However, we will ensure that a reference to these
values is made in future letters of appointment for Commissioners.
5. The Government agrees that it is important that the Commission acts – and is
seen to act – in a way that is impartial and independent from other agencies. We
therefore support the principle of this recommendation. The Commission is
already subject to legislative requirements providing that it should act
impartially and without bias, including the provisions of sections 75 and 76 of
the Northern Ireland Act 1998. Of course, Commissioners – like other citizens –
are subject to the law. The proposal in recommendation 2 is already well covered
by the legislation.
Recommendation 3
Paragraph 4(1) of Schedule 7 to the Northern Ireland Act 1998 ["The Commission
may employ staff subject to the approval of the Secretary of State as to numbers
and as to remuneration and other terms and conditions of employment"] should be
deleted.
6. The Government does not believe that the important safeguard at paragraph
4(1) of Schedule 7 should be removed. But we do believe that an appropriate
balance can be found between necessary oversight of the staffing of the
Commission and the need for the Commission to operate effectively.
7. The Government, as set out under recommendation 5 below, has a duty to
achieve value in the use of taxpayers’ money. This is an important principle and
the provision at paragraph 4(1) of Schedule 7 is included to ensure this. The
framework set out in the Northern Ireland Act 1998 in respect of the Commission
applies to a number of other public bodies. However, we do want the Commission
to have as much flexibility in this area as appropriate and will ensure that we
work closely with
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the Commission so that the requirements of this provision can be fulfilled
without undue difficulties.
Recommendation 4
A new paragraph 12 should be inserted into Schedule 7 to the Northern Ireland
Act 1998 which reads: "The Crown shall enter into a Memorandum of Understanding
with the Commission in respect of all relevant matters to ensure that the
Commission's status as an independent human rights commission as set out in the
Principles Relating to the Status of National Institutions, approved by the
General Assembly of the United Nations in Resolution 48/134 of 1993, is fully
guaranteed".
8. The Government supports the principle of Recommendation 4 and agrees that it
is important to establish the relationship between it and the Commission through
a Memorandum of Understanding, but is not persuaded that this process, which is
essentially one of administrative procedure, needs to be prescribed by law.
9. A Memorandum of Understanding is part of the standard framework for managing,
at a practical level, the relationship between a Non-Departmental Public Body (NDPB)
and its sponsor Department. At the time that the Commission prepared its
recommendations, a Memorandum of Understanding was not in place. However, such a
document was agreed in 2003. Officials in the Northern Ireland Office and in the
Commission will keep the arrangements in the Memorandum under review.
Recommendation 5
A new section 68(3B) should be inserted into the Northern Ireland Act 1998 which
reads: "The Commission shall be provided with sufficient resources to ensure
that it can carry out each of its functions effectively".
10. The Government believes that the existing arrangements remain the most
appropriate means of ensuring that the Commission has access to adequate
resources while ensuring that there is due regard for the need to achieve value
for money paid out of the public purse.
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11. The Northern Ireland Act 1998 provides for the Secretary of State to make
funds available for the Commission out of money voted by Parliament. That is the
basis on which the Commission’s initial annual budget of £750,000 was set. It is
also the normal procedure for funding many other public bodies. At the time that
these recommendations were put forward, the Commission was concerned that its
budget was not sufficient. Since that time, its budget has increased to £1.35
million.
12. Recommendation 5 would, effectively, allow the Commission to set its own
budget. While the Government is committed to ensuring that the Commission has
appropriate funding to enable it to fulfil its role as set out in the Northern
Ireland Act 1998 and envisaged by the Belfast Agreement, this commitment must be
set alongside the need to ensure appropriate funding for all other public bodies
and services. The Government has a duty to the taxpayer to ensure that it
achieves value for money in the way in which it allocates resources.
13. The Government is prepared to consider sympathetically bids for additional
resources, supported by a business case demonstrating the added benefits that
would result from the extra funding. This arrangement puts the Commission in the
driving seat in terms of assessing what resources are necessary to fulfil its
duties but also places an obligation on it to demonstrate the value for money
justification for providing them. As with other NDPBs funded by Government, the
onus is on the Commission to demonstrate why the money is required.
Recommendation 6
A new paragraph 6A should be inserted into Schedule 7 to the Northern Ireland
Act 1998 which reads: “Subject to the duties imposed by section 68(3A)
[impartiality and independence of Commissioners], and in order to further its
activities for the promotion and protection of human rights in Northern Ireland,
the Commission may from time to time apply for or accept grants from lawfully
constituted bodies or raise funds through the provision of services or other
lawful activities."
14. As with the proposal in recommendation 4, this is primarily an
administrative arrangement and would not normally be dealt with through primary
legislation. In fact, to legislate in this case could put in place new
constraints because we would need to
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define in statute the sort of bodies from which the Commission could accept
money and the range of activities the Commission could pursue to raise funds.
15. The Government agrees that the Commission should be able to accept funding
from other sources. This is, in fact, already the case. However, in order to
ensure value for public money, the Commission is not entitled to receive money
from outside sources for which it has already been allocated money by the
Government. In other words, there should be no duplication of funding.
16. The Financial Memorandum agreed by the Commission and the Northern Ireland
Office already sets out the circumstances in which the Commission can accept and
raise funds from other sources. We will work with the Commission to ensure that
procedures in place are adequate to allow appropriate fund-raising activities
and external grants to be considered and accepted.
Recommendation 7
A new paragraph 2(2A) should be inserted into Schedule 7 to the Northern Ireland
Act 1998 which reads: "The Chief Commissioner and two of the other Commissioners
shall be appointed on a full-time basis". (The Commission does not, however,
wish this recommendation to be implemented unless the necessary associated
resources are made available to it for the payment of two extra full-time
Commissioners.)
17. The Northern Ireland Act 1998 does not prescribe for the size of the
Commission or the time commitment that each Commissioner should make and so
additional Commissioners can be appointed and time commitment determined without
legislative change. To legislate as recommendation 7 suggests would actually be
to remove flexibility for the future and so the Government does not believe that
it is necessary to amend the Act as proposed.
18. The Secretary of State for Northern Ireland has recently appointed a new
full-time Chief Commissioner and seven part-time Commissioners, in addition to
the two Commissioners already in post. The Secretary of State is confident that
these appointments have provided for a body with a good balance of skills and
experience without being unwieldy.
8
19. The Government accepts that the burden of work may vary and will keep the
size of the Commission under review. However, while it is already possible to
appoint two more full-time Commissioners, the Government does not believe that
this is appropriate. It is already relatively unusual within the UK to have a
full-time Chair of a public body and creating, particularly on a statutory
basis, three full-time positions would be a further departure from the norm.
20. A further consideration is that public appointments are meant to bring
people from all walks of life into contact with the management of the public
service. In the main, this is done on a part-time basis, in conjunction with
other work, thus helping to ensure what the UN Paris Principles describe as
‘pluralist representation’. Much of that could be lost if all or some of these
appointments became full-time. We would restrict considerably the field from
which we could draw and this would be to the overall detriment of the Commission
and the community it serves.
21. One alternative model that would achieve some of the workload-sharing
benefits desired by the Commission while not losing the important diversity of
membership might be to create a position of Deputy Chief Commissioner. The
Government will consider whether the creation of a Deputy Chief Commissioner is
appropriate. We will also keep under review the optimum size of the Commission,
in dialogue with the Chief Commissioner and make changes as appropriate.
Recommendation 8
In section 69(1) of the Northern Ireland Act 1998, the following underlined word
should be inserted: "The Commission shall keep under review the adequacy and
effectiveness in Northern Ireland of law, policy and practice relating to the
protection of human rights".
22. This was withdrawn by the Commission in August 2002.
9
Recommendation 9
A new section 69(1A) should be inserted into the Northern Ireland Act 1998 which
reads: "Without prejudice to subsection (1) the Commission shall keep under
review the implementation in Northern Ireland of the Human Rights Act 1998 and
of the Bill of Rights for Northern Ireland." (The Commission does not, however,
wish this recommendation to be implemented unless the necessary associated
resources are made available to it for the performance of this duty.)
23. This was withdrawn by the Commission in August 2002.
Recommendation 10
A new section 69(2A) should be inserted into the Northern Ireland Act 1998 which
reads: "The Commission shall, before the end of the period of three years
beginning with the making of the recommendations required by section 69(2),
report to the Secretary of State on the extent to which the recommendations made
have been implemented, make such further recommendations for improving the
Commission's effectiveness as it thinks fit and, for these purposes, obtain the
assistance of independent assessors".
24. The Commission has, through its supplementary review of 2004, already shown
that it can make recommendations on an ongoing basis. The Government is not
convinced, therefore, that legislation is necessary for this recommendation.
However, we would welcome views on whether the Commission should make
recommendations from time to time or at specified points in time and whether
this should be set out in legislation.
25. The Government agrees that the Commission should be able to make further
recommendations on ways in which its effectiveness might be improved. The three
year period envisaged by the Commission in recommendation 10 has now passed. In
any event, we believe that it would be more appropriate for the Commission to
consider its effectiveness on an ongoing basis. We also believe it is
unnecessary to tie the Commission’s hand to using external assessors to support
this work; this should be a matter for the Commission to decide itself, rather
than being bound to do so by the statute.
10
Recommendation 11
A new section 69(3A) should be inserted into the Northern Ireland Act 1998 which
reads: "The Secretary of State and the Executive Committee of the Assembly shall
refer to the Commission all draft laws and policies proposed for Northern
Ireland as early as practicable before they are introduced to Parliament or the
Assembly or made available to the general public".
26. The Government believes that the present position already strikes the
appropriate balance between affording the Commission the opportunity to ensure
that it can promote human rights considerations in the development of policy and
legislation and the proper role of elected representatives in formulating and
deciding on policy.
27. Section 69 of the Northern Ireland Act 1998 sets out the Commission’s role
in reviewing the adequacy and effectiveness in Northern Ireland of law and
practice relating to the protection of human rights. This is an important part
of the Commission’s work. We agree that it is important for Government and the
devolved administration to consult with the Commission early in the
policy-making process when relevant issues arise.
28. However, the Government does not believe that it would be appropriate to
implement this recommendation, for the following reasons:
• To refer to the Commission ’all draft laws and policies’ would be unworkable.
New policies are formulated constantly across Government and its agencies and
most will not touch on rights issues. The Commission would be overwhelmed by the
volume of unrelated proposals.
• The Commission is not the only organisation with expertise in human rights
issues, nor is it the only body charged with scrutinising legislation for
compatibility with human rights. The Joint Parliamentary Committee on Human
Rights naturally takes a particularly active interest in the area of
compatibility. In addition, there are already legal requirements on Government
to consider human rights compatibility in policy making. The requirement in
section 19 of the Human Rights Act 1998 that, before the Second Reading of a
Bill, the responsible Minister must make a statement on its compatibility with
the European Convention on Human Rights (‘the Convention’) is another important
process and ensures that human rights standards
must always be considered as part of the development of
policy and legislation. Departments are required to include an analysis of
compatibility in the explanatory notes that accompany a Bill and Parliament then
has the opportunity to consider this.
• It is also the case that other interests – not just human rights
considerations but, for example, equality must be taken into account in the
development of new legislation and practice. To afford the Commission a unique
role in this regard would not be appropriate.
• Many laws are already published in draft form for public consultation and the
Government encourages this approach. There may be occasions when it is not
practicable to refer draft legislation to the Commission before it is
introduced. To tie either the Government or the devolved administration to this
process, given the opportunity after legislation is published, but before it is
debated or enabled, for the Commission to comment, seems to us to be
unnecessarily prescriptive.
Recommendation 12
A new section 69(3B) should be inserted into the Northern Ireland Act 1998 which
reads: "The Commission shall advise the Secretary of State on the desirability
of the United Kingdom becoming bound by international instruments on human
rights".
29. This was withdrawn by the Commission in August 2002.
Recommendation 13
A new section 69(4A) should be inserted into the Northern Ireland Act 1998 which
reads: "The Secretary of State and the Executive Committee of the Assembly shall
have due regard to the Commission's advice".
30. In the May 2002 consultation paper, we indicated that we would amend the
Northern Ireland Act 1998 as necessary to ensure that the Commission’s advice is
properly taken into account. We are now concerned that in situations where the
Government has to enact legislation at great speed, a requirement to have due
regard to the Commission’s advice could mean that the process was put on hold
while that advice was awaited. The Government believes that the spirit of this
12
requirement is already fulfilled by virtue of the need to act compatibly with
Convention rights and we continue to regard the Commission as an important
source of advice.
31. The Government agrees that it is important for the Commission’s advice to be
given appropriate weight in the consideration of law and practice affecting
human rights issues.
32. In addition, the Government has ensured, through the way in which the Human
Rights Act 1998 and Northern Ireland Act 1998 were framed, that there are a
number of other safeguards to ensure that human rights considerations are at the
heart of policy and law making:
• Section 6 of the Human Rights Act 1998 provides that it is unlawful for a
public authority to act in a way which is incompatible with a Convention right,
and Ministers must consider the implications for human rights before introducing
legislation to Westminster. Parliament will receive the Ministerial ‘section 19’
statement (as described under recommendation 11) about the compatibility of the
legislation and will take that into account when considering a Bill.
• The Northern Ireland Act 1998 gives the Commission a formal role in advising
the Northern Ireland Assembly on the compatibility of Bills with Human Rights.
• The Human Rights Act 1998 gives the Courts strong powers to declare primary
legislation incompatible or strike down secondary legislation if it cannot be
interpreted compatibly with the Convention and, of course, provides an
opportunity for victims who believe their human rights have been denied or
violated to take cases to the courts.
33. It will ultimately remain the responsibility of Government and Parliament to
take decisions about how best to determine policy and frame legislation, within
the context set by the Human Rights Act 1998. The Commission has an important
advisory role to play in that process, but it remains for Government to take its
own decisions, based on advice from many quarters and with proper regard for the
democratic principle, on the way to proceed.
13
Recommendation 14
In section 69(5) of the Northern Ireland Act 1998 a new paragraph (c) should be
inserted which reads: “[The Commission may] give information and advice
involving law, policy or practice relating to the protection of human rights”.
34. This was withdrawn by the Commission in August 2002.
Recommendation 15
In section 69(5) of the Northern Ireland Act 1998 a new paragraph (d) should be
inserted which reads “[The Commission may] intervene as a third party on any
matter or in any proceedings in any court, tribunal, inquest, hearing or
adjudicative process involving law, policy or practice relating to the promotion
or protection of human rights in Northern Ireland and the persons conducting the
court, tribunal, inquest, hearing or adjudicative process shall have due regard
to the points made by the Commission in its intervention”.
35. This was withdrawn by the Commission in August 2002.
Recommendation 16
In section 69(5) of the Northern Ireland Act 1998 a new paragraph (e) should be
inserted which reads “[The Commission may] appear as amicus curiae on any matter
or in any proceedings in any court, tribunal, inquest, hearing or adjudicative
process involving law, policy or practice relating to the promotion or
protection of human rights in Northern Ireland and the persons conducting the
court, tribunal, inquest, hearing or adjudicative process shall have due regard
to the points made by the Commission as amicus curiae”.
36. This was withdrawn by the Commission in August 2002.
14
Recommendation 17
In section 71(1) of the Northern Ireland Act 1998, the reference to section
69(5)(b) of the same Act should be deleted – so that the Commission will then
have the power to bring proceedings in its own name and when doing so rely on
Convention rights.
37. The Government is content that Convention rights are adequately protected by
allowing victims to take cases and therefore is not persuaded that it would be
appropriate to amend the Northern Ireland Act 1998 in the way proposed.
38. The Convention is explicit in Article 34 that it permits the court to
receive applications from victims. That principle was reflected in the wording
of Section 7 of the Human Rights Act 1998, which provides that a person can only
bring proceedings against a public authority for acting incompatibly with a
Convention right or rely on Convention rights in other proceedings involving a
public authority if he or she is a victim. As the Northern Ireland Act 1998
makes clear, the creation of the Commission here was not intended to disapply
this rule.
39. However, we are aware that some stakeholders believe strongly that the
Commission should have this power. The Government is also aware that a future
Bill of Rights for Northern Ireland may change the legal environment in Northern
Ireland and it may be appropriate to consider this issue again, in the context
of such a Bill of Rights.
Recommendation 18
A new section 69(6A) should be inserted into the Northern Ireland Act 1998 which
reads: "The Commission may express an opinion, as far as the position in
Northern Ireland is concerned, on the reports which the United Kingdom is
required to submit to United Nations bodies and committees, and to regional
institutions, pursuant to its treaty obligations".
40. This recommendation was withdrawn by the Commission in August 2002, because,
following the House of Lords ruling of June 2002, the Commission was content
that it did have this power. The Government agrees that the Commission already
holds the power expressed in this recommendation and it is therefore not
necessary to legislate to provide it.
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41. The Commission has already made submissions to United Nations bodies and
committees on the state of human rights in Northern Ireland. The Government
welcomes the fact that it has done so and considers it appropriate that the
Commission should be free to do this, subject to the reports being accepted by
the bodies concerned. The Commission’s expertise and statutory focus is, of
course, confined to Northern Ireland, and any comments it makes on reports
should be limited to issues affecting Northern Ireland.
Recommendation 19
A new section 69(6B) should be inserted into the Northern Ireland Act 1998 which
reads: "The Commission may consult with, and attend the meetings of, such
national or international bodies or agencies having a knowledge or expertise in
the field of human rights as it thinks fit".
42. As with recommendation 18, the Government believes that the Commission
already holds the power to consult with, and attend the meetings of, other
bodies and it is therefore not necessary to legislate to provide it.
43. The Government accepts that the Commission should be able to consult with
such bodies as it sees fit, subject to the need to ensure that the Commission
continues to be and be seen as independent of outside influences and, of course,
the rules of the bodies and agencies themselves.
44. The power given to the Commission in section 69(6)(a) to conduct research
would adequately cover consultation and association with a wide range of bodies
and sources of expertise. However, in its original report of February 2001, the
Commission argued that recommendation 19 is required to ensure that there is no
doubt about the Commission’s powers to act in this way. This recommendation was,
like recommendation 18, withdrawn by the Commission in August 2002, following
the House of Lords ruling of June 2002.
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Recommendation 20
A new section 69(6C) should be inserted into the Northern Ireland Act 1998 which
reads: "Statutory authorities with responsibility for education or training in
Northern Ireland shall consult with the Commission when determining or reviewing
the human rights aspects of the content or delivery of education (including the
Northern Ireland Curriculum) or training".
45. The Government believes that public bodies with responsibility for education
and training should be encouraged to consult with the Commission on human rights
issues and given their duties under the Human Rights Act 1998, they will want to
do so. However, consultation should not be a binding duty set out in statute.
46. The Government agrees that co-operation between authorities responsible for
education and training and the Commission is important and must be encouraged.
47. However, if a statutory duty to consult was introduced, in accordance with
recommendation 20, it could create a huge volume of work for the Commission. In
order to ensure compliance with the law, education bodies could find themselves
having to refer decisions where there was even a remote chance of a human rights
dimension.
48. Bodies providing education and training within Northern Ireland will, for
the most part, be public authorities for the purposes of the Human Rights Act
1998 and will therefore already be required to act compatibly with the
Convention Rights, within the terms of section 6 of that Act. It seems likely
that many of them will want to draw on the Commission’s expertise in this regard
and the Government supports this.
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Recommendation 21
A new section 69(6D) should be inserted into the Northern Ireland Act 1998 which
reads: "The Commission shall monitor the content and delivery of the Northern
Ireland Curriculum from the point of view of the promotion and protection of
human rights". (The Commission does not, however, wish this recommendation to be
implemented unless the necessary associated resources are made available to it
for the performance of this duty.)
49. If the monitoring and delivery of the curriculum were made a binding duty,
it could put a very significant burden on the Commission. The legislation as it
stands allows the Commission very wide flexibility as to how it carries out its
work and on how it decides to prioritise. We do not propose to remove this
flexibility by legislating.
50. The Government agrees that it is important for the Commission to be able to
monitor all aspects of public life to assess the adequacy of work aimed at the
promotion and protection of human rights. This includes, of course, the
education sector. The Northern Ireland Act 1998 does not make this explicit as a
specific duty on the Commission. However, the provisions in section 69(1) of the
existing legislation already provide the Commission with the power to fulfil
this in relation to the Northern Ireland Curriculum as well as in relation to
other areas of public life.
Recommendation 22
A new section 69(8A) should be inserted into the Northern Ireland Act 1998 which
reads: "The Commission shall, in order to assure itself that human rights are
being protected or to investigate any alleged violation of human rights, have
access to all places of detention in Northern Ireland and to all places where
persons are in the care of a public authority or of a person or body exercising
functions of a public nature".
51. The Government agrees that it is crucial for places of detention to be
inspected to protect against abuses of human rights and to guard against
unfounded allegations of abuse. Northern Ireland already has a range of
inspection and oversight bodies with powers of access, which perform very
important work in this area. However, the Government accepts that there will be
times when the Commission can add value to the work of other agencies. As a
consequence, the Government agrees that it is right to amend the Northern
Ireland Act 1998 to give the
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Commission the power to access places of detention to assure itself that human
rights are being protected or to investigate an alleged violation of human
rights.
52. The Government has listened to the views – many of them strongly held – both
for and against additional investigative powers for the Commission, as set out
in recommendations 22 – 24. It has also considered developments in Great
Britain, where a Commission for Equality and Human Rights is being established;
in Scotland, where a Human Rights Commission is being created; and looked at the
position in other jurisdictions.
53. Given that there are other bodies, such as the Prisoner Ombudsman, Lay
Visitors, the Criminal Justice Inspectorate and the Police Ombudsman, which have
well established responsibilities in this area, the Government will need to
ensure that there is a co-operative relationship between the Commission and
other agencies. It is right that the Commission should carry out investigations
into matters in the field of human rights that have not otherwise been properly
addressed. It would not be right for the Commission to duplicate the work of
other bodies, or to cause undue disruption of the services these bodies provide
or to the places of detention they inspect and oversee. We will create
appropriate mechanisms to make sure that there is a collaborative approach
between the Commission and other bodies.
54. The recommendation is couched in very broad terms; the phrase ‘in the care
of a public authority or of a person or body exercising functions of a public
nature’ leaves open to interpretation the exact places to which the Commission
will have access. The Government believes that there should be clarity about the
scope of this power and is giving consideration as to how best to define in
legislation the places, or types of place, to which the Commission will have
access.
55. This is an important power and the legislation will need to include
provisions to ensure that the Commission uses it appropriately. The Government
would welcome views on what safeguards will be needed. The Commission could, for
instance, be required to set out the terms of reference for any investigation,
and allow those who manage the place to which they require access to comment on
the terms of reference. The Commission could also be required to give a certain
period of notice of a visit to the place to which it requires access. Another
possible safeguard would be for those who manage a place to which access is
required to be able to
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apply to a court to cancel the request on the grounds that it is unnecessary for
the investigation or otherwise unreasonable.
56. The Government would welcome views on these proposals, particularly on how
to ensure co-operation between the Commission and other bodies; how to define
the places to which the Commission should have access; and how to ensure that
there are appropriate safeguards in place.
Recommendation 23
A new section 69(8B) should be inserted into the Northern Ireland Act 1998 which
reads: "For the purposes of conducting investigations under section 69(8), the
Commission may apply ex parte to a magistrate for a warrant to authorise the
Commission, subject to strict safeguards protecting the Convention rights of all
persons in those premises, (a) to enter and search premises if it reasonably
believes that a human rights violation has occurred or is occurring there and
(b) to remove any article discovered in those premises if it reasonably believes
that the article provides evidence of a violation of human rights".
57. The Government is confident that the power to require the production of
information, as set out under recommendation 24 below, can be adequately
enforced without the need for a power to search and seize.
58. The Commission originally proposed this recommendation in February 2001. It
was provisionally withdrawn in August 2002, as the Commission believed that were
they to be given this power they would need significant additional resources to
train existing staff or to appoint new staff.
59. The Government agrees that any body exercising such a power would require
very specific skills to a high level. There would also be significant legal
difficulties. This power is akin to those that the police possess and there
would be extremely significant difficulties to consider in granting police-type
powers to any non-police body: for example, how to ensure that all parties to
such an investigation are properly protected and have access to an adequate
complaints procedure (in much the same way as people can complain to the Police
Ombudsman if they believe the police have
20
abused their powers in entering and searching premises). We would need also to
consider what sanctions should be available if the power was improperly used.
60. The Commission subsequently decided to continue to press for this power in
its supplementary review of 2004. However, the Government believes that, in
legislating to give the Commission the power to require the production of
information, more proportionate means of enforcing this power can be developed.
Recommendation 24
A new section 69(8C) should be inserted into the Northern Ireland Act 1998 which
reads: "For the purposes of conducting investigations under section 69(8), the
Commission may require a person whom the Commission reasonably believes to be in
possession or control of any information, document or thing that is relevant to
an investigation being conducted by the Commission, (a) to furnish that
information, document or thing to the Commission and (b), where appropriate, to
attend before the Commission to answer fully and truthfully any question put to
him or her by the Commission (other than a question the answer to which might
incriminate the person) and (c), if so requested by the Commission, to sign a
declaration of the truth of his or her answers to any questions put to him or
her under paragraph (b)".
61. We agree that it is important that the Commission can carry out its
investigations effectively. In normal circumstances, we would hope that the
Commission will always receive co-operation from those it believes are in
possession of relevant information. However, we accept that there may be times
when information is not forthcoming and that consequently it is necessary for
the Commission to be given the power to require that information be produced.
62. In giving such a power we will need to provide safeguards to ensure its use
only in appropriate circumstances and in a proportionate and reasonable manner.
We will also need to consider how it could be enforced.
63. It will be important to get the safeguards right. The Government would
welcome views on what form the safeguards might take. The Commission could, for
instance, be required to set out the terms of reference for its investigation,
and allow anyone involved to comment on the terms of reference before giving
notice to a
21
person requiring them to provide information in their possession. Another
possible safeguard would be for a person given a notice to be able to apply to a
court to cancel the request on the grounds that it is unnecessary for the
investigation or otherwise unreasonable.
64. There are certain areas, such as national security matters, in which it will
be necessary to protect sensitive information, in the public interest. The
Government wants to ensure that as far as possible, the Commission can access
the information it needs to carry out its functions, consistent with protecting
the public interest, and so it will be important that these areas are clearly
defined.
65. The Government would welcome views on these proposals, particularly on how
this power should be enforced; whether additional or alternate powers and
safeguards to those set out above would be needed; and on whether certain
categories of information should be exempt from this power, in the public
interest.
Recommendation 25
A new section 69(10A) should be inserted into the Northern Ireland Act 1998
which reads: "The Commission may do anything incidental or conducive to the
performance of the functions set out in this section".
66. The House of Lords ruling of June 2002 clarified that the Commission does
have such powers as may fairly be regarded as incidental to or consequential
upon those things which the legislature has authorised. As a consequence, the
Commission already has the power set out in recommendation 25 and there is no
need to legislate for it.
22
The Commission’s supplementary review of powers, April 2004
Recommendation 26
To guard against improper interference in the Commission’s work an additional
provision should be inserted into the Northern Ireland Act 1998 (section 68(3B))
to read as follows: “When a Commissioner resigns from the Commission the
Secretary of State shall as soon as practicable secure that the vacancy is
filled by one or more new Commissioners selected in accordance with sub-section
(3) above.”
67. The Government is committed to ensuring that as far as practicable, the
Commission has an appropriate number of Commissioners at all times but we do not
believe it is appropriate to create a binding duty to run an appointment process
on the resignation of a Commissioner.
68. The Government understands that in some circumstances, the resignation of a
Commissioner can inhibit the operation of the Commission. However, there are
also circumstances where a Commissioner may resign and then be reinstated, for
example if they run unsuccessfully for political office.
69. Appointment processes can take many months to complete and they may face
unexpected difficulties. Each appointment process is also resource intensive and
it would be an inefficient use of resources to begin an appointment process if a
wider process is due to be held at a point in the near future.
Recommendation 27
A further provision should be inserted into the Northern Ireland Act 1998
(section 68(3C)) to read as follows: “The independence of the Northern Ireland
Human Rights Commission from the Government is guaranteed and the relationship
between the Commission and the Government shall be regulated by a Memorandum of
Understanding, including a Financial Memorandum, which shall be annually
reviewed.”
70. These points are substantially covered by recommendations 2 and 4. The
Government believes that there are already sufficient legislative requirements
that
23
the Commission acts impartially and without bias but we additionally intend to
make reference to these values in letters of appointment for Commissioners.
71. As we said in response to recommendation 4, the Government agrees that it is
important that there is a Memorandum of Understanding between it and the
Commission. Both a Memorandum of Understanding and a Financial Memorandum have
now been agreed and are open to amendment, by consent, at any time by either the
Commission or Government. This is an administrative matter and it is not
necessary to legislate to achieve this.
Recommendation 28
Section 70(1) should be repealed and replaced with the following sub-section:
“This section applies to –
proceedings involving law or practice relating to the protection of human rights
in Northern Ireland which a person has commenced, or wishes to commence; or
other proceedings in the course of which a person relies or wishes to rely on
law or practice relating to the protection of human rights in Northern Ireland.”
72. The Government believes that the current provisions of the Northern Ireland
Act 1998 have served and continue to serve their intended purpose.
73. In its supplementary review of powers, the Commission stated its concern
that the Northern Ireland Act 1998 as it stands only allows the Commission to
assist a person who is in Northern Ireland when they commence, or wish to
commence legal proceedings. In addition, the Commission stated its concern that
this excluded those people who did not commence legal proceedings but rather
were defendants or respondents to legal proceedings. We are not aware that the
Commission has been unable to provide assistance because of the current
provisions and we are therefore not convinced of the need to amend the Northern
Ireland Act 1998 in this way.
24
Recommendation 29
In section 69(5) of the Northern Ireland Act 1998 a new paragraph (c) should be
inserted to read as below:
“(5) The Commission may –
(a) give assistance to individuals in accordance with section 70;
(b) bring proceedings involving law or practice relating to the protection of
human rights; and
(c) resolve any dispute by mediation, conciliation or negotiation.”
74. There are already a number of bodies that provide mediation for a variety of
dispute situations. Given that there are already opportunities to access
mediation services, the Government accepts that the Commission should be able to
recommend mediation but we do not think formal powers in this area are
justified.
75. It seems logical that if a dispute seems to the Commission to be capable of
resolution without recourse to formal proceedings, it should be open to the
Commission at least to suggest this approach. On the other hand, in the context
of human rights in Northern Ireland (or indeed elsewhere), any given dispute may
well be highly charged or politically contentious. Resolving such disputes may
require specialist skills of a very high order. In some forms of alternative
dispute resolution, the neutrality of the mediator is essential to successful
outcomes. Because the Commission is also an advisory body with a set of
statutory functions which include the promotion and protection of human rights,
it might be difficult for it not to take a view on the matter in hand.
25
Equality
All designated public authorities in Northern Ireland are required to comply
with the statutory equality duty, set out in section 75 of the Northern Ireland
Act 1998, which requires them, in carrying out their functions to ‘have due
regard to the need to promote equality of opportunity –
(a) between persons of different religious beliefs, political opinion, racial
group, age, martial status or orientation;
(b) between men and women more generally;
(c) between persons with a disability and persons without; and
(d) between persons with dependants and persons without.’
In addition and without prejudice to the above duty, public authorities are
required to ‘have regard to the desirability of promoting good relations between
persons or different religious belief, political opinion or racial group.’
The proposals in this paper are intended to provide the Commission with the
right powers to enable it to carry out its duties effectively. The Northern
Ireland Office has conducted an Equality Screening Assessment on these
proposals. The screening is designed to indicate whether there is any likelihood
that a policy will have a significant differential impact on any of the section
75 categories.
We do not believe that there are any significant differential impacts. The
powers which the Government are considering will not themselves impact on groups
within the section 75 categories. Any impact will come from the manner in which
the Commission decides to use these new powers. This will be a matter for the
Commission to assess as part of its own section 75 duty. An impact assessment of
the Government’s policy in this regard is therefore not recommended. However, as
part of this consultation exercise we would welcome your views in this area,
particularly in relation to the following questions:
Do you believe that any of the Government’s proposals will have an adverse
impact on individuals within the scope of section 75?
If so, are there any measures that should be implemented to mitigate against
adverse impact on people in the section 75 equality groups?
26
Regulatory Impact Assessment
A Regulatory Impact Assessment is a framework for analysis of the likely impacts
of a policy change and the range of options for implementing it. A partial
assessment has been carried out on the proposals contained within this paper.
While this assessment will be developed following the consultation and as
proposals are developed, the current assessment indicates that these proposals
are likely to have a low regulatory impact. The partial assessment is set out
below. We would welcome your views on this.
1. Title
The powers of the Northern Ireland Human Rights Commission.
2. Purpose and intended effect
Objective - The Government’s aim is, in response to the recommendations of the
Commission, to make proposals which will ensure that the Commission has the
right powers to enable it to carry out its duties effectively.
Background - The Northern Ireland Human Rights Commission was established by the
Northern Ireland Act 1998. Section 69 (2) of the Northern Ireland Act 1998
provides that the Northern Ireland Human Rights Commission shall, before the end
of the two years beginning with the commencement of the section, make to the
Secretary of State such recommendations as it thinks fit for improving – (a) its
effectiveness; (b) the adequacy and effectiveness of the functions conferred on
it by this Part; and (c) the adequacy and effectiveness of the provisions of
this Part relating to it.
The Commission submitted its recommendations in 2001 and in May 2002 the
Government issued a consultation paper on its initial response to the
recommendations. The Commission in turn responded to this paper in August 2002.
It submitted a supplementary set of recommendations in April 2004. The
Government is now consulting on a revised list of recommendations before making
any necessary legislative changes. This policy only covers Northern Ireland.
Rationale for government intervention - The Commission has recommended that it
needs additional powers to carry out its functions effectively. If the
Government does
27
not intervene and propose new legislative powers then the Commission’s powers
would remain the same as they currently are.
3. Consultation
In May 2002, the Northern Ireland Office carried out a three month public
consultation on its initial response to the Commission’s recommendations. The
NIO has also consulted widely across Government. This document is subject to a
further three month public consultation.
4. Options
Three options have been considered for dealing with these issues:
Option 1 - to do nothing. The Northern Ireland Human Rights Commission would
continue to operate the functions granted to it under the Northern Ireland Act
1998.
Option 2 - to issue a government response to the Northern Ireland Human Rights
Commission’s recommendations and to agree to make administrative changes only.
This option would provide the Commission with some means with which to improve
their efficiency. Whilst the government would seek to make any possible
administrative changes, it would not propose any legislative changes to increase
the Commission’s powers.
Option 3 - to issue a consultation paper on the recommendations of the Northern
Ireland Human Rights Commission, followed by legislation to provide the
Commission with additional powers.
5. Costs and benefits
Sectors and groups affected - there are no specific sectors affected by this
policy. Any additional powers granted to the Northern Ireland Human Rights
Commission would be applicable to all sectors and groups within Northern
Ireland.
Benefits - the scope of the policy means that there are no economic or
environmental benefits. However, in terms of social benefits, option 3 will
provide the Commission with additional powers to promote and protect human
rights in Northern Ireland.
Costs - the scope of the policy means that there are no environmental or social
costs. The changes proposed in recommendations 22 and 24 above will grant the
28
Commission additional powers. However, these powers are designed to allow the
Commission to carry out its existing duties more effectively. The powers should
not, therefore realise additional costs.
6. Small Firms Impact Test
This policy will not have any direct statutory effect on business. Accordingly,
there are no direct compliance requirements.
7. Competition assessment
Due to the nature of the powers proposed, this policy will not have an effect on
competition.
8. Enforcement, sanctions and monitoring
It is possible that any future legislative changes made as a result of this
consultation, could require enforcement. Arrangements for enforcement, sanctions
and monitoring, will if necessary be included in the final Regulatory Impact
Assessment.
29
How to respond to the consultation paper
We welcome your responses and comments on any aspect of this document. The
deadline for responses is 8 February 2006. A response can be submitted by
letter, e-mail or fax to:
Syed Hussain
Human Rights and Equality Unit
Northern Ireland Office
11 Millbank
London
SW1P 4PN
tel: 020 7210 0209
fax: 020 7210 0248
email: hreu@nio.x.gsi.gov.uk
Please ensure that responses are clearly marked as ‘a response to the
consultation on the powers of the Northern Ireland Human Rights Commission’.
Additional copies of the paper can be obtained by contacting Syed Hussain at the
address above or from the Northern Ireland Office website: www.nio.gov.uk.
After the Consultation Period
We will analyse the responses to the consultation and produce a summary of
responses after the end of the consultation period.
Confidentiality
Information provided in response to this consultation, including personal
information, may be published or disclosed in accordance with the access to
information regimes (these are primarily the Freedom of Information Act 2000 (FOIA),
the Data Protection Act 1998 (DPA) and the Environmental Information Regulations
2004).
If you want the information that you provide to be treated as confidential,
please be aware that, under the FOIA, there is a statutory Code of Practice with
which public authorities must comply and which deals, amongst other things, with
obligations of confidence. In view of this it would be helpful if you could
explain to us why you
30
regard the information you have provided as confidential. If we receive a
request for disclosure of the information we will take full account of your
explanation, but we cannot give an assurance that confidentiality can be
maintained in all circumstances. An automatic confidentiality disclaimer
generated by your IT system will not, of itself, be regarded as binding on the
Department.
The Department will process your personal data in accordance with the DPA and in
the majority of circumstances; this will mean that your personal data will not
be disclosed to third parties.
31
The Consultation Criteria
The Government has adopted a set of criteria for consultations, which apply to
all UK public consultations by government departments. These are set out below.
1. Consult widely throughout the process, allowing a minimum of 12 weeks for
written consultation at least once during the development of the policy.
2. Be clear about what your proposals are, who may be affected, what questions
are being asked and the timescale for responses.
3. Ensure that your consultation is clear, concise and widely accessible.
4. Give feedback regarding the responses received and how the consultation
process influenced the policy.
5. Monitor your department’s effectiveness at consultation, including through
the use of a designated consultation co-ordinator.
6. Ensure your consultation follows better regulation best practice, including
carrying out a Regulatory Impact Assessment if appropriate.
The code does not have legal force but is regarded as binding on UK departments
and their agencies unless Ministers conclude that exceptional circumstances
requires a departure from it. The full consultation code may be viewed at:
http://www.cabinetoffice.gov.uk/regulation/consultation/index.asp
If you have any concerns or complaints about this consultation, or you have any
other observations about ways of improving the consultation process, then please
contact the Northern Ireland Office’s consultation co-ordinator, Dr Jim Alford,
at:
The Central Management Unit
Northern Ireland Office
Stormont House
BELFAST, BT4 3SH
Telephone: 028 9052 7015
email: jim.alford@nio.x.gsi.gov.uk 32
For Peace Justice & Human Rights
