BILL OF RIGHTS

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 have taken this opportunity to respond to the Government’s Response to the Northern Ireland Human Rights Commission’s Review of Powers Recommendations, after the Commission drew our attention to its existence.  We were disappointed that the government did not seek our views itself, given our submissions to the government in the past concerning the setting up of the Commission and its powers.

1.3       Over more than a decade of work on the human rights dimension of the situation in Northern Ireland, British Irish rights watch has consistently advocated the adoption of a Bill of Rights and the establishment of a human rights commission, and we were delighted when these issues were addressed in the Good Friday Agreement and won overwhelming support in the referendum that approved the peace package.  However, since 1998 we have watched with some dismay the way in which those two human rights pledges have been delivered in practice.  In particular, the government has failed to give the Commission the resources or the powers that it needs to carry out its mandate, failed to consult the Commission about matters that clearly lie within its remit, and it has failed to give the Commission its wholehearted public support.  Furthermore, recent appointments to the Commission have appeared to have been made in reaction to political pressure and to have moved away from the principle that, while the composition of the Commission should reflect the community that it serves, its members should be selected first and foremost because of their knowledge of and commitment to human rights, rather than for any political reason.

1.4       Although the government’s response to the Commission’s recommendations concerning their powers is for the most part couched in positive language, we note that the majority of the Commission’s recommendations are either not accepted, deemed to be unnecessary, or accepted only partially or subject to consultation.

1.5       In this submission, we comment on the government’s response to the Commission’s recommendations and explain why the criticisms voiced above are relevant to the debate.  We have not commented on those recommendations that the government has accepted without quibble; our support for those recommendations can be taken as read.

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 has 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 has been reinforced by the most recent round of appointments, which has 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 present, expanded membership breaks 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 has now been somewhat watered down.  We are also concerned that the appointment of a serving UUP Councillor[9] further dilutes the appearance of the Commission’s independence and begs 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.

 2.4       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 are disappointed that, headed off at the pass by the government’s response, the Commission itself is no longer pressing for this reform, which we consider to be important, especially in light of the concerns we have expressed at paragraph 2.3 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 because it claims that the Commission is already “in the driving seat” financially[10], a statement which is clearly inaccurate.  In reality, the government is drip feeding finance to the Commission, on a project by project basis which, as the Commission rightly identifies, curbs their independence.

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 is also considerably less well funded than some of the similar bodies in Northern Ireland, such as the Police Ombudsman, with a budget of just of £6m, and the Equality Commission, £7.5m.

 4.3       The Commission itself has commissioned an external evaluation of its effectiveness, which examined the question of resources, inter alia.  Peter Hosking, a senior consultant with the United Nations, concluded that the baseline budget of £750,000 per annum for the first three years needs to be doubled to £1.5m[12], which is still a very modest amount when compared to the other bodies mentioned above.  Indeed, the figure sounds too low to us.  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 £642m in 2001/02.

5.         RECOMMENDATION 7: COMMISSIONERS

5.1       The Commission wants to make two of its commissioners full-time.  The government says it has already increased the number of commissioners by four and proposes that one of the existing commissioners should become a deputy chief commissioner.

5.2       We tend to agree with the government that creating some full-time and some part-time commissioner post may bring about a situation where some commissioners are more equal than others.  We note that Paul Hosking has made what seem to us to be sensible proposals for re-organising the staffing structures within the Commission[13], which would improve the Commission’s resources and working practices and thus remove some of the pressure on the members of the Commission.  We recommend that these changes are implemented – and financed – and that the Commission re-evaluates the situation once those changes have taken effect.

6.         RECOMMENDATION 8: review of human rights policy

6.1       The Commission wants to be able to keep human rights policy in Northern Ireland under review, as well as law and practice.  The government resists this proposal, although its grounds for doing so are not made explicit.

6.2       The government has 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.

6.3       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.

7.         RECOMMENDATION 9: HUMAN RIGHTS ACT AND BILL OF RIGHTS

7.1       The Commission wants an explicit power to keep under review the implementation of the Human Rights Act and the Bill of Rights.  The government thinks this is unnecessary.

7.2       The government’s stance is disingenuous in light of the motion of censure of the Commission tabled in the Northern Ireland Assembly in January 2002 for allegedly acting ultra vires in relation to the Bill of Rights.  The Commission has few enough resources, without having to waste time defending itself from challenges about its powers.  If the government is of the view that the Commission already has these powers, we can see no harm in spelling them out on the face of the statute.

8.         RECOMMENDATION 10: COMMISSIONERS

8.1       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.

8.2       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[14].  The government should re-assess its attitude towards advice from the Commission.

9.         RECOMMENDATION 11: draft legislation

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

9.2       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.

10.       RECOMMENDATION 12: international treaties

10.1     The government is doubtful about putting the Commission under a duty to advise them on the ratification of international human rights treaties because it would fetter the Commission’s discretion.

10.2     The obverse of a duty is a right.  We support the Commission’s claim to a right to be consulted on these issues.

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

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

11.2     Given the government’s poor record in having any regard for some of the Commission’s advice to date[15], 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.

11.3     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. 

12.       RECOMMENDATION 14: power to give information and advice

12.1     Given the attempts that have been made to undermine the Commission by challenging its powers, we support the inclusion of a specific power to provide information and advice.

12.2     Although the House of Lords ultimately ruled[16] that the Commission’s power to act as amicus curiae was inherent, it took lengthy and expensive litigation and the third party intervention of the government and human rights NGOs to establish the point.  Making the Commission’s powers explicit in the Northern Ireland Act would avoid any repetition.

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

13.1     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.

13.2     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. 

13.3     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.

14.       RECOMMENDATION 18: power to comment on uk reports to treaty bodies

14.1     The government seeks views as to whether the Commission should have a power or be put under a duty to comment on the UK’s reports to regional and international human rights bodies.

14.2     In this instance, we favour a power, which would give the Commission a discretion over whether to comment or not.  Since the Commission’s primary remit is Northern Ireland, and given its lack of resources, it should be for the Commission to decide whether or not to prioritise such work in relation to any given report.

15.       RECOMMENDATION 19: power to consult other bodies

            For the reasons given at paragraph 12 above, we support the Commission’s proposal that it be given the power to consult with and meet appropriate bodies in the course of its work.

16.       RECOMMENDATIONS 20 and 21: right to be consulted about education matters AND TO MONITOR THE CURRICULUM

16.1     We do not accept that, because education is a devolved matter, the government cannot legislate in this area when it comes to ensuring that Northern Ireland, like the rest of the UK, complies with international human rights obligations.  That is surely a reserved matter.  However, it is of course appropriate for the government to consult the Northern Ireland Assembly and the department of education concerning this proposal.

16.2     We see no need for the government to emphasise[17] the fact that the Northern Ireland authorities need not follow any advice they may receive from the Commission.  On the contrary, in our view they ought to be placed under a duty to have due regard to any advice.

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

17.1     The government refuses to allow the Commission the right of access to places of detention and places where people are in the care of a public authority or of someone exercising functions of a public nature, on the grounds that this would cause confusion with the role of other bodies.

17.2     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.  As the Commission points out[18], the powers it is seeking merely bring it into conformity with best practice as recommended by the United Nations.  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.

18.       RECOMMENDATION 23: warrants to search premises

18.1     The Commission has provisionally decided to withdraw their recommendation that they have the power to apply for a warrant to search premises.

18.2     We think they are wise to do so.  If they are given sufficiently strong powers to obtain disclosure (please see paragraph 19 below), they should not need such a power.

19.       RECOMMENDATION 24: power of discovery

19.1     Possibly the most serious deficiency in the Commission’s current powers is the lack of a power to compel discovery of documents or attendance at interviews by relevant persons, but the government has set its face against granting such a power. 

19.2     In doing so, they are depriving the Commission of powers that are available to their counterparts elsewhere, for example in Ireland, and to other bodies such as the Local Government Ombudsman.

19.3     In our view, failure by the government to reverse its response on this crucial matter will confirm our worst fears that the government is determined to turn the Commission into a paper tiger.

20.       RECOMMENDATION 25: INCIDENTAL powers

20.1     The government has agreed with the Commission that it needs a “catch-all” power, and we support this proposal.

20.2     However, the government suggests that such an incidental power might do away with the need to legislate on recommendations 12, 14, 18 and 19.  Although we see the rationale, in view of the hostility the Commission has encountered towards the exercise of some of its powers, and the controversy that has surrounded its remit, we think it safest to spell out these powers and to leave the incidental power as a fall-back for anything not explicitly included in the legislation.

21.       EQUALITY SCREENING

21.1     We fundamentally disagree with the government’s contention that its response to the Commission’s review of its powers does not require a full equality impact assessment.

21.2     We regard the “tick box” method of equality screening adopted by the Northern Ireland Office as wholly inadequate, and in this case its inadequacies are readily apparent.

21.3     In our view, it is self evident that depriving the Commission of a full range of powers – especially in relation to the investigation of cases and to having a right to have its advice taken into account – may very well have an adverse impact on the nine s. 75 categories.  Those who are vulnerable to discrimination are very likely to suffer disproportionately if the bodies who are ostensibly there to help them lack the necessary powers.  While the Commission’s potential beneficiaries include the whole population of Northern Ireland, the people most likely to need their help are most likely to be those who fall into some of the nine categories.  The government’s attempt to distinguish between the Commission’s powers and its performance is completely specious.

AUGUST 2002

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16 October, 2007 |