Joint Committee On Human Rights Appendices to the Minutes of Evidence

22.  Memorandum from Committee on the Administration of Justice (Northern Ireland)


  The Committee on the Administration of Justice (CAJ) was established in 1981 and is an independent non-governmental organisation affiliated to the International Federation of Human Rights. CAJ monitors the human rights situation in Northern Ireland and works to ensure the highest standards in the administration of justice. CAJ takes no position on the constitutional status of Northern Ireland, seeking instead to ensure that whoever has responsibility for the jurisdiction respects and protects the rights of all without distinction. CAJ is opposed to the use of violence for political ends. The organisation's membership is drawn from all sections of the community and it has been awarded a number of international awards, including the prestigious Council of Europe Human Rights Prize in 1998.

  CAJ believes that human rights abuses have fed and fuelled the conflict, and accordingly worked hard to ensure that adequate institutional and other human rights protections would be built into the Good Friday/Belfast Agreement. We warmly welcomed the centrality given to human rights in the final text and CAJ worked intensively, in the immediate aftermath of the referendum vote, to ensure that the human rights and equality provisions secured in the Agreement would be fully translated into legislative form. Almost weekly meetings were held with Minister Paul Murphy in the final stages of the lobbying around the legislation, and we believe that the Northern Ireland Act reflects good practice in a number of important domains.

  The establishment of a Northern Ireland Human Rights Commission (NIHRC) was something that CAJ campaigned for successfully. However, we were less successful in convincing the government of the day that any such Commission should meet the minimum standards established by the UN Principles governing human rights institutions (the so-called Paris Principles). We remain surprised to this day why the United Kingdom, as a founding member of the United Nations, and a permanent member of the Security Council, would hesitate to comply with standards agreed as basic common standards for all such Commissions. With two years of experience completed, the Commission has now undertaken a review of its powers, and we were deeply disappointed to discover that our theoretical fears have been proved all too correct in practice. The Northern Ireland Human Rights Commission has neither the resources nor the powers to operate to its full—and necessary—potential. We hope that the occasion will be taken by the Joint Committee on Human Rights to address this situation directly, as well as draw lessons from the Northern Ireland situation which may have relevance for other jurisdictions in the UK.


  CAJ welcomes the recognition of the Joint Parliamentary Committee that the establishment of the NIHRC, as a part of the Good Friday Agreement, means that its remit cannot easily be fundamentally altered in any UK-wide debate of human rights institutions. It is of course always open to government to improve on its human rights mechanisms and safeguards, and we hope that the following paper will indicate ways in which current protections (including the work of the NIHRC) could be strengthened.

  As the only human rights commission so far in the UK, the experience of the NIHRC over the last two years will obviously be of great relevance to the Committee's work. Moreover, the recent review they have carried out into their powers is extraordinarily relevant to your deliberations and should, we believe, be the main starting point for the Committee's work. Arising from its review, the Commission makes an extensive number of recommendations but it highlights three particular priority issues. The NIHRC argues that it needs to have effective powers of investigation, it needs to be able to appear as a third party before the court, and it needs an adequate level of resources. It argues that nothing short of this will allow it to carry out its duties effectively, and live up to the expectations placed in it. CAJ endorses this conclusion and notes that all the recommendations are covered by the Paris Principles.

  Though the Human Rights Commission established in the Republic of Ireland is of much more recent date, it also provides an interesting model that the Joint Committee may want to examine. The Good Friday Agreement established that there should be at least an equivalent level of human rights protection in the Republic of Ireland as in Northern Ireland, and it is notable that the Republic's Commission has greater powers than its Northern Ireland counterpart.

  Based on the experience to date in Northern Ireland, CAJ would therefore urge the Joint Parliamentary Committee to recognise that:

  (a)  As a member of the UN Security Council, and one that prides itself on its attachment to human rights and democratic governance, it should be inconceivable that the UK would do anything other than take as its starting point the minimum standards laid down in the UN Paris Principles when establishing human rights institutions. Instead of failing to live up to these principles (as it did when legislating for the NIHRC), the government must use this opportunity to go beyond what are minimum internationally agreed principles.

  (b)  The NIHRC, if (and only if) it were granted the powers requested by it in its recent review of powers, could provide an important building block for human rights protections in other jurisdictions. Interestingly, the Republic of Ireland is obliged under the GFA to provide at least as good human rights protection as in Northern Ireland, and has in fact established a Commission with greater powers than its northern counterpart. Although its practical experience is of much shorter duration than that of the NIHRC, the Joint Committee may want also to scrutinise this model closely prior to coming to final conclusions.

  (c)  Ideally, strong human rights "control" mechanisms should be located as close as possible to the problems needing to be addressed. CAJ believes that individual human rights violations can therefore best be addressed at the devolved level, rather than at a state-wide level. The logic of such a stance is that there be commissions to cover each of the separate jurisdictions.

  (d)  On the other hand, just as the strength of the regional or devolved commissions lies in their more localised expertise and responsiveness, their weaknesses lies in their inability to develop UK-wide positions where these are necessary. UK-wide positions are particularly necessary in relation to human rights standard-setting and reporting obligations at the international level.

  (e)  CAJ would therefore recommend:

    —  the creation of a distinct Human Rights Commission for each UK jurisdiction;[60]

    —  the creation of a co-ordinating structure at UK wide level which would bring together representatives from each of the different commissions to meet once or twice a year to exchange information and good practice and to take action on any issues of common interest.

Question 1

  What (if anything) do you think a Human Rights Commission might add to the current methods of protecting human rights in the United Kingdom? In particular, are there useful functions in connection with protecting human rights and developing a culture of human rights which do not fall within the remit of any existing agency in the United Kingdom, such as:

    (a)  fostering a human rights culture in the United Kingdom;

    (b)  education in human rights;

    (c)  advising and assisting people who claim to be victims of violations of their Convention rights;

    (d)  developing expertise in human rights;

    (e)  bringing legal proceedings on human rights issues?

  The experience of the Human Rights Commission in Northern Ireland is that it raises the profile of human rights generally and can, given the necessary powers, provide an important mechanism to redress grievances. The examples of activities to be undertaken by Commissions are very relevant. CAJ believes that long-lasting cultural change, and educational initiatives, need to be carried out as near as possible to the targeted audiences. The practical work referred to in items (a), (b) and (d) would therefore rest essentially with the local commissions, but there would be great value in exchanging good practice across the different jurisdictions.

  It is difficult for us to see why one would pursue individual human rights violations, or legal proceedings, at a UK-wide level rather than at a more local level. Accordingly, we believe that items (c) and (e) should clearly rest with the local Commissions. Even where the issue per se is not devolved, there is no reason why it could not be left open to the individual Commission to take a case. After all, the NIHRC can take cases under the Terrorism Act, even if that particular legislation was passed by Westminster not Stormont and despite the fact that security issues are still clearly not devolved.

Question 2

  If a Human Rights Commission were established how should its role and functions relate to those of this Committee?

  We think that, in their human rights work, the roles of non-governmental organisations, media, statutory bodies, parliamentary bodies and governments are complementary but very distinct. The particular strength of human rights commissions lies in the fact that they are outside of the executive and legislature, and have no (or should have no) partisan political agendas. Parliamentary committees create a more "internal" scrutiny mechanism within the legislature (and to some extent the executive). The very fact that such committees draw their members from across the political spectrum is an extremely positive, if quite different, contribution to the protection of human rights.

Question 3

  In what order of priority would you arrange the functions of such a Commission? If you think that a Commission should examine a range of issues, to which issue or issues do you think that the Commission should give priority?

  In general terms, CAJ's view would be that litigation is a key function for any Human Rights Commission, followed closely by investigative research and wider human rights education. However, the work and the priorities of the different Commissions will depend very much on the needs in the different jurisdictions. Thus, a Bill of Rights is a key piece of work for the NIHRC but may be seen as much less of a priority in other jurisdictions. At the UK wide level, priorities about issues for wider collaboration would need to be on the basis of consensus between different jurisdictions.

Question 4

  If a Human Rights Commission were to be established should there be a single body with a jurisdiction extending to all parts of the United Kingdom, or separate bodies for England, Scotland and Wales and Northern Ireland, or both a United Kingdom body and bodies with territorial responsibilities?

Question 5

  If there were to be a Human Rights Commission with responsibilities for the whole United Kingdom (whether or not it operated alongside other bodies with responsibility for just one part of the United Kingdom), what relationship should there be between its work in respect of Northern Ireland and the work of the Northern Ireland Human Rights Commission (and similar Commissions in Scotland and Wales if they are established at some time in the future)?

  See earlier comments. CAJ believes that there should be a single Commission for each jurisdiction and regular meetings of representatives from each of the commissions to discuss UK-wide issues. The co-ordination meetings should normally not have any power to intervene directly on human rights issues as they relate solely to England, or Wales, or Scotland or Northern Ireland (unless explicitly requested to do so by the relevant commission). However, in combination, all the individual jurisdictions would benefit from sharing good practice at regular intervals, and in evolving common positions whenever a common UK position is required. Over time, one might imagine that the individual Commissions could see a value in developing a stronger UK-umbrella structure, but this should be a generic "bottom up" development.

Question 6

  If a Human Rights Commission were established, how should its work relate to that of other bodies with special responsibility for particular rights, such as the Information Commissioner, the Equal Opportunities Commission, the Commission for Racial Equality, the Disability Rights Commission, and the Equality Commission for Northern Ireland? In particular:

    (a)  Should a Human Rights Commission perform functions now performed by existing specialist Commissions, or should it co-exist with them? If they were to co-exist, what roles should they perform in areas where their responsibilities might be expected to overlap?

    (b)  If a Human Rights Commission were to co-exist with the existing equality Commissions, should issues relating to equal opportunities be excluded from the remit of the Human Rights Commission and be given to the Equality Commissions?

  In Northern Ireland, we have a Human Rights Commission and an Equality Commission. Protocols have been developed, or are in preparation, to ensure that information is exchanged, and the setting of priorities is informed by each other's work. We see no reason why this would not be possible in the other jurisdictions, and indeed it has come to our attention that there are already some regular exchanges between the human rights and various equality agencies, in both Britain and in Ireland. Certainly, at the UK level, a strong case could be made for including in the regular meetings of Commission members, single-issue UK-wide bodies such as the Information Commissioner, alongside jurisdictional Commissioners.

Question 7

  If a Human Rights Commission were to be established, how should its independence of Government be preserved while ensuring an appropriate type and level of accountability? In particular:

  (a)  how should its Chair, members and key staff be appointed?

  (b)  how should its funding be provided?

  (c)  to whom should it be accountable (eg to a parliamentary body)?

  (d)  how should the matters mentioned in (a), (b) and (c) take account of devolution to Northern Ireland, Scotland and Wales?

  We would recommend that the Committee examine both the current practice with regard to the NIHRC, and the various recommendations it has made to strengthen its independence. In general terms, we think that there should be an independent selection committee for members of the Commission, that the posts be publicly advertised, and that the Chief Commissioner be given a role in determining other appointments to the Commission. As to funding, it will be very clear to the Joint Committee that the NIHRC has serious problems in this area. The problem is not solely insufficient resources, but the fact that the existing arrangements for financial scrutiny are overly interventionist and entirely unsatisfactory. It is quite inappropriate for an independent commission to have such detailed control exercised over its budget, and alternative arrangements must be introduced. One could imagine a variety of responses—perhaps an endowment arrangement? Or perhaps a budgetary allocation system which makes a clear distinction between the exercise of financial and of democratic scrutiny?

Question 8

  In the light of your answers to Questions 1 to 7, what is your estimate of the level of staffing which would be required by the body or bodies you propose and what the annual cost might be?

  CAJ would assume that few if any staff at the UK wide level are required immediately, though—as noted earlier—the level of UK (as distinct from activities by the individual Commissions) may vary over time. Staffing levels for the devolved Commissions will need to be determined in the light of local realities.

Question 9

  Some Commissions currently operating in fields related to human rights have a range of powers. For example, they might be empowered to conduct investigations; to require people to provide information; to issue notices requiring people to cease conduct which the Commission considers to be unlawful; to conduct legal proceedings; to assist other parties to legal proceedings; to issue Codes of Practice; to conduct research; and to engage in a range of activities designed to heighten awareness of issues within the remits. If a Human Rights Commission were to be established, what powers should it have?

  See the UN Paris Principles as a starting point, and very importantly the recent report on the experiences of the NIHRC. The Joint Parliamentary Committee will need to take particular account of the NIHRC recommendations regarding the powers they consider necessary to be a credible human rights commission. The fact that the Irish Republic's Commission has more fully reflected the Paris Principles may also provide an interesting model to explore in more detail.

Question 10

  Are there other relevant issues or considerations which have not been covered in answers to the earlier questions?

  The NIHRC works with the newly created Republic's Human Rights Commission via a Joint Committee. There is probably too little experience to draw upon yet, but there may be some interesting parallels here that the NIHRC could be asked to expand upon in its own submission to the Committee. As noted elsewhere, the legislation establishing a Commission in the Republic is stronger and is more in line with the Paris Principles than is the case for Northern Ireland. We can think of no reason why the level of protections provided by the UK should be any less.

  CAJ has not painstakingly reiterated the detailed concerns and recommendations of the NIHRC, but we cannot emphasise enough that the review highlights very grave problems in the Commission's ability to meet the high expectations placed in it. Attached for your information is CAJ's commentary on the review, and a copy of the review itself, though this latter is presumably available on the web. In his reply to CAJ's critique the Chief Commissioner noted "Your letter goes on to express considerable doubt over whether the Human Rights Commission can justify public confidence in its ability to deliver appropriate changes in human rights protection. I have to admit that I myself, and some at least of my fellow Commissioners, harbour such doubts too. Whether those doubts can be dispelled depends on how government responds to our report (and the Law Lords ruling) . . .".

  CAJ strongly urges the Joint Parliamentary Committee to prevail upon government to respond positively to the recommendations of the NIHRC. Indeed, we would go so far as to say that if the Joint Parliamentary Committee cannot agree to make such an intervention, there is little point in proceeding to create further (weak) commissions in other jurisdictions. Tokenistic responses (and how else could one describe the establishment of a Human Rights Commission acting as little more than a toothless tiger?) do a grave disservice to human rights. We urge you to ensure that the NI Commission be given the powers and resources it needs, and then use this as a model of good practice on which to create commissions in other jurisdictions.

June 2001

60   We have no position on whether England and Wales (having common legal systems) should have one single commission, or whether (having different political structures) there should be two separate bodies. This is something that others are much better placed to advise on. Back

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