23. Memorandum from British
Irish Rights Watch
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 make
a submission to the Joint Committee on Human Rights' call for
evidence on whether there is a need for a human rights commission
for the United Kingdom.
1.3 In our view, there is a need for an
over-arching human rights commission for the whole of the United
Kingdom, but such a commission should be underpinned by local
commissions in the four countries that make up the United Kingdom,
ie England, Wales, Scotland and Northern Ireland.
1.4 Northern Ireland has its own commission,
set up under the terms of the Good Friday Agreement. While we
welcomed that commission and its work, there was never any logic
to the existence of a single commission in a single jurisdiction,
and nor do we consider the structure of the Northern Ireland commission
as an ideal model to be adopted elsewhere.
1.5 As a human rights group focussed on
Northern Ireland, we believe that there is a strong argument for
harmonisation of human rights protections not only throughout
the United Kingdom but also throughout these islands. Such harmonisation
would, we believe, strengthen the Northern Ireland peace process.
Whatever the political outcome of the peace process, either nationalists
or unionists are likely to find themselves in a presumably
permanentminority, whether it is unionists within a united
Ireland or nationalists within the United Kingdom. Minority rights
are therefore of crucial importance to the stability of any such
outcome. The adoption of the same human rights standards throughout
these islands would mean that both unionists and nationalists
would know what guarantees they could expect to enjoy and/or to
deliver at the end of the day.
1.6 The trends towards devolution and multi-culturalism
mean that there is room for some local diversity, and the reality
is that, a human rights commission having been established for
Northern Ireland, it would be politically difficult to remove
it and replace it with one UK-wide commission. That being the
case, we would advocate separate commissions in England, Scotland
and Wales and Bills of Rights in these countries as well. However,
there is a danger that such diversity would produce a hierarchy
of rights and freedoms with local conditions perhaps putting a
brake on the full development of a human rights culture in some
places, with the result that the quality of people's rights would
vary depending on where they lived. An overarching UK-wide commission
is therefore desirable in order to ensure that matters affecting
all four countries were dealt with uniformly. This would have
the benefit of enhancing human rights throughout the UK, allowing
for matters of local concern, yet providing a strong collective
body when appropriate. There may also be a need for a UK-wide
Bill of Rights.
1.7 Logically, a UK-wide human rights commission
could be drawn from the four local commissions, rather than being
stand-alone. Its remit would be to cover all human rights issues
that apply across the UK. This would not hamper the remit of the
local commissions, because they would be able to participate in
the work of the UK-wide commission and thus tackle both wider
and local issues.
1.8 It is against the background of that
approach that we consider the specific questions raised by the
Joint Committee on Human Rights.
2. 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 human rights culture in the United Kingdom;
in human rights;
and assisting people who claim to be victims of violations of
their Convention rights;
expertise in human rights;
legal proceedings on human rights issues in the public interest?
2.1 A UK-wide human rights commission (UKHRC)
would ensure that, broadly speaking, similar human rights standards
would apply across the UK. It would also prevent local human rights
commissions (LHRCs) from deviating too far from basic standards
2.2 There is no ducking the fact that four
LHRCs plus a UKHRC is a potentially expensive option. There is
therefore much to be said for avoiding duplication insofar as
that is possible. We therefore believe that the UKHRC ought not
to replicate the work of LHRCs, but should complement it.
2.3 All the functions listed in (a) to (e)
are important, but there is considerable scope for duplication
with LHRCs, and for that reason careful thought needs to go into
the division of labour between the UKHRC and the LHRCs. Two models
which are not necessarily mutually exclusive suggest themselves.
2.4 The first model would be to see the
UKHRC as a think tank, generating human rights policies and developing
standards, with the emphasis on UK-wide issues. Under this model,
the UKHRC might not do any casework, leaving functions (c) and
(e) to the LHRCs. Instead, it might
conduct research into UK-wide human
rights issues, such as the rights of homeless people, gay and
lesbian rights and the rights of the elderly;
develop new human rights standards
for those groups who are poorly covered by existing human rights
advise UK-wide public bodies on their
compliance with the Human Rights Act and other human rights instruments
and issue guidance to them;
advise the government on human rights
issues, especially in situations where the courts have found legislation
to be incompatible with the Human Rights Act, and on reforms required
in the law, policy and practice;
and so on.
2.5 We can see that a UKHRC may also have
some role to play in advising other standard-setting or enforcement
bodies, such as those concerned with data protection or genetic
engineering, on the human rights dimension of their work.
2.6 The second model would set parameters
on work that could legitimately be undertaken by both LHRCs and
the UKHRC, setting out clear areas of responsibility. Function
(b), education, provides a good example. British Irish Rights
Watch has long advocated the incorporation of education on human
rights into the school core curriculum, both at primary and secondary
levels, as a key tool in the creation of a human rights culture.
The UKHRC could take responsibility for developing that curriculum,
in consultation with schools etc, while LHRCs would be responsible
for helping local schools to deliver that curriculum and for other
local education work.
2.7 On this model, there is potential for
dividing case workfunctions (c) and (e)along UK/local
lines. The UKHRC could be responsible for case work involving
UK-wide public bodies, while the LHRCs would be responsible for
case work involving local public bodies. Thus cases involving
the police would come under LCRCs but cases involving the Immigration
Service would come under the UKHRC.
2.8 We emphasise that, under our proposed
arrangements, the UKHRC would be drawn from the LHRCs, so there
would be little danger of divergence or schism between the UKHRC
and the LHRCs.
2.9 It is relatively easy to envisage a
UK/local breakdown of responsibilities in each of the five functions
identified by the Joint Committee. However, that list seems to
us to be far from exhaustive. In our view, it ought also to include
at least the following other functions.
setting and developing standards;
advising public bodies on their compliance
with the Human Rights Act and issuing guidance;
advising the government/local assembly
on law, practice and policy.
We also think that the UKHRC should have the
power to consider any matter referred to it by any of the LHRCs
as having potentially UK-wide implications or for advice.
3. Question 2
If a Human Rights Commission were established,
how should its role and functions relate to those of this Committee?
3.1 We would expect the Joint Committee
to see both the UKHRC and the LHRCs as regular consultees on all
its work. However, the human rights commissions ought not be seen
in any sense as a substitute for the Joint Committee, or as being
there to do its work.
3.2 Instead, we would expect the Joint Committee
to invite the human rights commissions to submit evidence on any
issue the Joint Committee was examining. It might also be appropriate
to invite the UKHRC to undertake research on its behalf. However,
these should be invitations that the human rights commissions
should be free to refuse, so that their own priorities are not
skewed or resources drained by such requests.
3.3 The Joint Committee may also wish to
consult the UKHRC on its own programme of work, in particular
in terms of which human rights issues it ought to scrutinise.
4. 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?
4.1 We feel strongly that both the UKHRC
and LHRCs should be vigorously independent bodies. Therefore,
they should decide their own priorities. If they choose to consult
us about their priorities, we will respond, but we do not think
it is appropriate for other bodies, such as the Joint Committee,
to invite comment on the priorities of bodies that do not even
4.2 The Northern Ireland Human Rights Commission
was set up with a completely inadequate budget. If human rights
commissions are to be enabled to function effectively and to make
sensible decisions about priorities, they must have the money
to do the job.
5. 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, Wales and Northern Ireland, or both a United Kingdom
body and bodies with territorial responsibilities? (The Northern
Ireland Human Rights Commission must continue to exist, as this
is one of the requirements of the United Kingdom's agreement with
Ireland about the future of Northern Ireland.)
5.1 Since the Northern Ireland Human Rights
Commission is in existence and will continue to exist, there cannot
be any justification for depriving Wales, Scotland and England
of their own LHRCs.
5.2 However, four separate LHRCs without
a UKHRC will mean that different approaches to UK-wide human rights
issues may be taken and that UK-wide public bodies may receive
conflicting advice from each country. Therefore a UKHRC is also
5.3 If, as we propose, the UKHRC is drawn
from the LHRCs, a coherent human rights machinery will be developed
at both local and UK level. The UKHRC will also provide a natural
location for communication and cross-fertilisation between the
6. 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)?
6.1 Under our proposed arrangements, the
UKHRC would focus exclusively on UK-wide matters. It would therefore
have no work in relation to any of the four countries other than
6.2 Our proposal for an organic link between
the four LHRCs and the UKHRC overcomes any potential for duplication
or divergence between the work of the respective bodies.
7. 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?
7.1 The Institute for Public Policy Research
has made detailed proposals for integrating these other bodies
into the UKHRC. There are clearly advantages to such an umbrella
structure, since there are obvious and considerable areas of overlap
with their work.
7.2 The IPPR proposal fits quite well with
our own proposal in relation to local and UK human rights commissions,
in that it leaves the work of existing bodies intact and does
not dilute the expertise they have already developed.
7.3 The difficulty with IPPR's proposal
is that the nature of most of the other bodies' remits do not
permit a clear local/UK division of responsibilities. The logic
of devolution is that ultimately there would be equal opportunities
commissions, disability commissions, commissions for racial equality
and equality commissions in all four countries. Were that to come
about, then the IPPR model would work well.
7.4 There are some bodies, though, such
as the Information Commission, the Data Protection Registrar,
and other bodies such as those that regulate genetic engineering,
that have important human rights dimensions but where there is
no particular rationale for having local rather than UK-wide mechanisms.
In these cases, rather than expand the umbrella beyond its natural
circumference, we suggest that the UKHRC could act as an adviser
to those bodies.
7.5 The Joint Committee's questions also
raise the possibility of eventually doing away with at least some
of the specialist commissions and subsuming their functions under
human rights commissions. It may well be that at some point rationalisation
of a rights/equality map that has grown up piecemeal will be both
necessary and desirable. In our view, that time is not yet. An
amalgamation on that scale at this point in time would run the
risk of strangling the development of a human rights culture at
birth while huge upheavals took place in well-established rights
protection agencies, leaving protections for gender, race and
disability rights severely diluted without any visible benefit
accruing. In our view, it would be better to rationalise the position
in relation to human rights commissions along the lines we have
proposed, allow that structure and the implementation of the Human
Rights Act to bed down, and then tackle the wider rationalisation
questions raised by the Joint Committee.
8. 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 apppointed?
(b) how should its funding be provided?
(c) to whom should it be accountable (for
example, 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?
8.1 Both LHRCs and the UKHRC should be established
by statute by the UK Parliament. Those laws should guarantee the
commissions' independence of government. Accountability should
be by means of an annual report, in the case of LCRCs to their
local assembly and in the case of the UKHRC to the Westminster
parliament. All the commissions should also be amenable to judicial
review so that any interested party can challenge any abuse of
8.2 We have been concerned by evidence in
Northern Ireland of attempts by the Ulster Unionist Party, led
by First Minister David Trimble, to politicise human rights and
to use the mechanisms of the Northern Ireland Assembly to attack
the Northern Ireland Human Rights Commission and human rights
NGOs. This had led us to question the wisdom, at least in the
Northern Ireland context, of devolving responsibility for human
rights to local assemblies. However, we recognise that Northern
Ireland is unique in the United Kingdom in that it is a very deeply
divided society that is still emerging from conflict and may yet
slide back into serious violence. It may be necessary to regard
Northern Ireland as an exception to the general rule proposed
above until it can function more normally.
8.3 The chair and members of the commissions
should be appointed, not by the relevant Secretary of State, as
is the case in Northern Ireland, but by an independent appointments
commission. If the Northern Ireland precedent of having a Chief
Commissioner is to be followed, then the Chief Commissioner should
be appointed first and should be involved in the recruitment of
the other members. The main criterion for appointment of all commission
members should be their expertise in human rights. Considerations
such as community balance, as employed in Northern Ireland, have
no legitimate place and have caused problems there. All staff,
including key staff, should be appointed in the normal way by
the commissions themselves.
8.4 The funding should be provided by central
government for all five commissions, at a level adequate for the
performance of their functions. It should be open to local assemblies
with fundraising powers to make further grants to the LCHRs for
specific local projects and LCHRs should have the power to raise
money for specific projects.
9. 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?
9.1 This is not a question we can sensibly
answer. We suggest that the Northern Ireland Human Rights Commission,
which is the only body with practical experience of these matters,
should be asked for its comments.
10. 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 their remits. If a Human Rights Commission were to be established,
what powers should it have?
10.1 The base line should be the minimum
standards laid down by the Paris Principles (The Principles Relating
to the Status of National Institutions, approved by the United
Nations General Assembly by Resolution 48/134 in 1993).
10.2 Specifically, both LHRCs and the UKHRC
should have at least the following powers in relation to all matters
falling within their competence:
to advise and assist individuals,
groups and bodies on their human rights and to conduct casework;
to litigate on behalf of individuals,
groups and bodies;
to litigate in their own name;
to make third party interventions;
to act as amicus curiae;
to carry out investigations into
policies and trends;
to require disclosure of documentation
and other evidence;
to compel witnesses to answer questions
(short of compelling self-incrimination and subject to the right
of witnesses to free legal advice and, where appropriate, representation);
of search and seizure of evidence;
of access to places of detention;
to set and develop standards;
to educate the public, groups, and
public bodies and to promote awareness of human rights;
to issue press releases, give media
interviews and publish articles;
to publish its advice, the results
of its research and any submissions it has made;
to enter into consultation with any
individual, group or body, especially NGOs;
to advise public bodies on their
compliance with the Human Rights Act and issue guidance;
to advise the government/local assembly
on law, practice and policy;
to advise on draft legislation;
to review the implementation of the
Human Rights Act and Bills of Rights;
to advise on the UK's accession to
international human rights treaties and instruments;
to have its advice taken into account
by government, local assemblies and public bodies;
to make submissions to and address
international human rights bodies such as the United Nations;
to comment on the UK's submissions
to international human rights bodies;
to raise revenue for specific projects.
10.3 In addition, the UKHRC should have
the power to consider matters referred to it by LCHRs and LCHRs
should have the power to make such references.
11. Question 10
Are there other relevant issues or considerations
which have not been covered in answers to the earlier questions?
11.1 Under the Good Friday Agreement,
"It is envisaged that there would be a joint
committee of representatives of the two Human Rights Commissions,
North and South, as a forum for consideration of human rights
issues in the island of Ireland. The joint committee will consider,
among other matters, the possibility of establishing a charter,
open to signature by all democratic political parties, reflecting
and endorsing agreed measures for the protection of the fundamental
rights of everyone living in the island of Ireland."
11.2 It is obvious that no such animal as
a UKHRC was in contemplation at the time of the signing of the
GFA. In keeping with our desire for standardisation of human rights
throughout these islands, we suggest that the UKHRC ought also
to participate in the joint committee envisaged under the GFA.