BILL OF RIGHTS

RESPONSE  TO  A  CONSULTATION  PAPER  BY  THE  GOVERNMENT

  january 2006   

1.         introduction

1.1       British Irish rights watch is an independent non-governmental organisation and registered charity that monitors the human rights dimension of the conflict and the peace process in Northern Ireland.  Our services are available to anyone whose human rights have been affected by the conflict, regardless of religious, political or community affiliations, and we take no position on the eventual constitutional outcome of the peace process.

1.2       We welcome this opportunity to respond to the government’s Consultation Paper on the Powers of the Northern Ireland Human Rights Commission.  However, we are disappointed to note that, as happened last time, the majority of the Commission’s recommendations are either not accepted, deemed to be unnecessary, or accepted only partially.

1.3       In this submission, we comment on the government’s further response to the Commission’s recommendations.

2.         RECOMMENDATION 1: APPOINTMENTS

2.1       The Commission recommended that its members should be appointed in accordance with the s. 75[1] promotion of equality provisions and with the Paris Principles[2].  The government considers that the present arrangements are appropriate and that there is no need to enshrine these two matters in the legislation.

2.2       We disagree.  It is an unfortunate but well-recognised fact that governments, however committed they may be to human rights in principle, tend to be the most hostile to human rights in practice.  Political parties are also often hostile to human rights and are perfectly prepared to politicise human rights issues if it suits them.  Such has proved to be the case in Northern Ireland, where unionist politicians, led, most regrettably, by David Trimble MP, who as First Minister of the Northern Ireland Assembly had particular responsibility for human rights, have mounted a sustained attack on the Commission.  Many of the attacks have centred on the membership of the Commission, with politicians wilfully ignoring the fact that the Commission itself has no control over its membership, which – unfortunately, in our view – is the responsibility of government.  Bizarrely, initial attacks on the Commission’s membership[3] centred around the fact that some of its members were or had been in the past members of the Committee on the Administration of Justice, Northern Ireland’s foremost human rights groups and the winner of the Council of Europe’s Human Rights Prize in 1998 for its work to place human rights and equality at the heart of the peace process.  David Trimble said in Parliament in 2000, “A large number of people in Northern Ireland, myself included, think that that commission has no credibility in view of the discriminatory process by which it was formed and of quite a few of the persons on it.[4]”  Lord Laird of Artigavan – one of the most outspoken of the Commission’s critics – has gone so far as to lambast the Commission because its membership does not reflect “those who, for religious reasons, do not believe in the concept of human rights”[5], which is rather like criticising the Church of England because the Synod does not include atheists.  Depressingly, the government has frequently failed to defend the Commission sufficiently robustly.  Instead, it has left the Commission to answer dozens of patently ill-intentioned questions laid down in Parliament and in the Northern Ireland Assembly, at disproportionate cost in terms of its already scarce resources.

2.3       We have always argued that the Commission should be independently appointed, rather than by the Secretary of State.  Our view was reinforced by the last-but-one round of appointments, which skewed the Commission’s ability to reflect the community it serves, in accordance with the 1998 Northern Ireland Act[6] and the Paris Principles[7].  Whereas the initial set of ten commissioners was made up of six Protestants and 4 Catholics, with a 50:50 gender split – thus reflecting Northern Ireland society well – the membership appointed prior to the most recent round of appointments broke down as eight Protestants to four Catholics[8] plus one member who is neither, and eight men to five women – thus moving away from an accurate reflection of the community.  Furthermore, while the original membership included a high level of human rights expertise, that was somewhat watered down.  We were also concerned that the appointment of a serving UUP Councillor[9] further diluted the appearance of the Commission’s independence and begged the question of whether, if serving politicians can be members, the government needs to look to the political balance within the Commission – a trend to which we would be opposed.  The present membership of the Commission is no better balanced.  It has six Catholics and four Protestants, and six men and four women.  No less than five members have served in local politics, four of them still being so involved.

2.4       In 2003 the Joint Committee on Human Rights recommended that:

“In appointing a Commission whose membership from Northern Ireland reflects the composition of the community as a whole, the principal criterion should be that of experience, knowledge and expertise in the field of human rights.”[10]

            While we do not doubt the commitment to human rights of the present membership of the Commission, only one member appears to have any human rights expertise.      

2.5       Finally, we would point out that governments come and governments go, and even if it were not for the concerns outlined above, we would prefer to see the independence of the Commission enshrined in legislation, to safeguard it from the predations of a less enlightened regime.

3.         RECOMMENDATION 2: IMPARTIALITY

3.1       The Commission wishes to see the impartiality and independence of its members made a statutory requirement.  The government feels that ss. 75 and 76 of the Northern Ireland Act 1998 provide sufficient safeguards.  However, s. 75 only enjoins public authorities to have “due regard” to the need to promote equality of opportunity, while s. 76 only outlaws discrimination on grounds of religious belief or political opinion.   The Commission’s formulation, that each member 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", goes far beyond that.

3.2       We consider a specific requirement of impartiality to be important, especially in light of the concerns we have expressed at paragraph 2 of this submission.

4.         RECOMMENDATION 5: RESOURCES

4.1       The Commission is seeking a statutory requirement that it be given sufficient funding to enable it to carry out each of its functions effectively.  The government is resisting this recommendation.

4.2       It cannot be good governance for a government to set up a body with statutory powers and duties but then to starve it of sufficient resources to enable it to fulfil those functions.  The Commission has said from the outset that it is under-resourced, and the government has tacitly acknowledged that by increasing the Commission’s budget by a massive 74% in 2001/02[11].  The Commission, with a budget of just £1.4m, is also considerably less well funded than some of the similar bodies in Northern Ireland, such as the Police Ombudsman, with a budget of £7.4m, and the Equality Commission, £6.7m.

4.3       While we support the provision for an adequate budget for the Police Ombudsman and the Equality Commission, the Human Rights Commission’s functions are at least as important as theirs, and it seems to us that it should enjoy a commensurate budget.  Even a budget of £7m or £8m per year for the Commission would be negligible when set alongside the PSNI’s budget of £750m in 2004.

5.         RECOMMENDATION 8: review of human rights policy

5.1       The Commission had wanted to be able to keep human rights policy in Northern Ireland under review, as well as law and practice.  The government resisted this proposal, although its grounds for doing so were not made explicit.  We do not understand why the Commission has withdrawn this recommendation.

5.2       The government had asked for examples of policy issues that are not covered by law or practice.  An obvious example is the decision of the United Kingdom not to ratify the First Optional Protocol to the International Covenant on Civil and Political Rights, which would give people in the UK the right of individual petition to the United Nations Human Rights Committee, and indeed many other international human rights instruments that would benefit the people of Northern Ireland.

5.3       That example perhaps explains the government’s reluctance to allow the Commission to review policy matters.  To do so would invite criticism of their political judgement, and would expose failings in their human rights policies not only in Northern Ireland but throughout the UK, thus indirectly highlighting the anomaly of having a human rights commission in one jurisdiction only.  These all seem to us to be excellent reasons for extending the Commission’s remit to include policy matters.

6.         RECOMMENDATION 10: COMMISSION’S RECOMMENDATIONS

6.1       The Commission has sought to be put under a statutory duty to report on whether its recommendations concerning its own effectiveness have been implemented, to make further recommendations, and to bring in outside assessors.  The government prefers a more open-ended power.

6.2       We tend to agree with the government’s approach, subject to seeing the wording of the proposed amendment.  However, we detect a degree of frustration on the part of the Commission that the government has, in more substantive areas of human rights, failed to seek, heed or implement its recommendations[12].  The government should re-assess its attitude towards advice from the Commission.

7.         RECOMMENDATION 11: draft legislation

7.1       The Commission would like to be able to comment on draft legislation for Northern Ireland at an early stage.  The government rejects this proposal.

7.2       Here is another example of the government drawing the teeth of the Commission, for no good reason.  The government seems to prefer to rely on the advice of the Northern Ireland Office and the Joint Committee on Human Rights.  While the former have knowledge of Northern Ireland and the latter have knowledge of human rights, the Commission has knowledge of both.  The logic of failing to avail of the Commission’s advice and expertise escapes us.

8.         RECOMMENDATION 12: international treaties

8.1       We do not understand why the Commission withdrew its recommendation that it be placed under a duty to advise the government on the ratification of international human rights treaties.

8.2       The government’s record on ratification is poor, despite the alacrity with which it admonishes other countries regarding lack of observance if international human rights standards.  BIRW believe that the Commission should have this duty.

9.         RECOMMENDATION 13: due regard to be paid to advice

9.1       The government resists the Commission’s recommendation that it should have due regard to advice from the Commission.

9.2       Given the government’s poor record in having any regard for some of the Commission’s advice to date[13], it seems to us that only a statutory provision will suffice.  We accept that the government is entitled to seek advice from many quarters, but a requirement that it pay “due” regard to the Commission’s would neither inhibit its ability to do so, nor usurp its prerogative to make policies and laws.

9.3       It seems to us that, if the government is not prepared to have due regard to the Commission’s advice, it is not serious in its commitment to human rights or to the proper implementation of the human rights pledges in the Good Friday Agreement.

10.       RECOMMENDATION 17: power to bring proceedings in the commission’s name

10.1     The government is not prepared to allow the Commission to litigate in its own right, insisting that only victims of human rights violations should be able to do so.

10.2     In view of the fact that the Equality Commission can legislate in its own name, there seems to us to be no rationale for depriving the Human Rights Commission of that power.

10.3     We consider that the Commission needs this power in order to take cases on classes of victims and where a victim would suffer disproportionately from the weight of taking a case in his or her own name.

11.       RECOMMENDATION 22: right OF ACCESS TO PLACES OF DETENTION ETC

11.1     In 2004 the United Nations’ Committee against Torture recommended that the government should give consideration to designating the Commission for the purposes of the Optional Protocol to the International Conventional against Torture[14], which the UK ratified as late as 10^th December 2003.  We understand that the government has now designated the Commission for these purposes, and that should be reflected in the legislation.

11.2     We accept that there is a potential for some overlap, but where that may exist a Memorandum of Understanding with the relevant body could prevent any duplication.  We anticipate that the Commission would only make use of such a power on rare occasions, but the very fact of it having such a power would enhance its effectiveness and its standing and thus indirectly promote adherence to human rights standards by the bodies in question.

11.3     We do not think it necessary to define the places to which the Commission should have access, nor to impose a condition on them that they give notice of an inspection.  We envisage two situations in which the Commission may deem a visit necessary.  The first might be when the Commission has received a number of complaints about a particular establishment.  The second might be when the Commission receives an urgent complaint about, for instance, ill-treatment of residents in a children’s or old people’s home.  In either case, having to give notice of their visit might enable the establishment to cover up the problem that the Commission wishes to investigate.

12.       RECOMMENDATION 26: PROMPT APPOINTMENT OF COMMISSIONERS

12.1     We support the Commission’s recommendation that vacancies on the Commission should be filled promptly. 

12.2     The situation which arose in 2005, when the Commission was reduced to two Commissioners for a period of some months, undermined the Commission’s effectiveness and credibility.

13.       RECOMMENDATION 27: INDEPENDENCE OF THE COMMISSION

13.1     We agree with the Commission that its independence should be enshrined in law.

13.2     A commitment by this government to stress independence in letters of appointment will not bind future governments.

14.       RECOMMENDATION 28: proceedings

14.1     We agree with the Commission that the law needs to be clarified.

14.2     There are people from Northern Ireland but living outside Northern Ireland, sometimes in fear of their lives, who may require the Commission’s assistance in relation to proceedings taking place in Northern Ireland.  As the law is currently drafted, it leaves a grey area where such people are concerned.

JANUARY 2006

Home Back

For Peace Justice & Human Rights

 

16 October, 2007 |