Joint Committee On Human Rights Fourteenth Report

3. Independence and impartiality

16. For a human rights commission to be successful in promoting human rights, and in advancing their effective protection, it must be able to operate and be seen to operate, independently, impartially and free from interference or obstruction. Independence from government and other organs of the State, and impartiality, are essential. The values of independence and impartiality need to be woven through the Commission's structure, policy and strategy, as well as its everyday work. They also need to be at the forefront of the minds of those who work with the Commission, in particular the representatives of government.

17. In Northern Ireland, with its history of community division, gaining the confidence of both communities in the Human Rights Commission's impartiality and independence is an essential requirement for the Commission's success. It is also particularly difficult to achieve in a context in which discrimination has been endemic and institutional sectarianism still persists. However, the Commission's mandate to apply internationally-recognised standards of universal human rights should provide a solid foundation for impartiality. The challenge it faces is to demonstrate to the people of Northern Ireland, through its programmes of work, and through dissemination of and education on human rights standards, that these standards and principles, and its skill and judgment in applying them, transcend politically partisan and sectarian divisions and prejudices. This is not a task which the Commission should be left to undertake in isolation. It needs the support of government, in providing a strong statutory basis for independence, maintaining its separation from the Commission's policy in practice, and in appointing a Commission. The Government has an obligation to support the Commission and the rights it protects.

The statutory basis for independence

18. Like all public authorities in Northern Ireland, the NIHRC is required, under sections 75 and 76 of the Northern Ireland Act, to have "due regard" to the need to promote equality of opportunity, and not to discriminate on grounds of religion or political belief. However, the Northern Ireland Act does not place a positive duty on the Commission to act independently and impartially. The Commission itself recognises the potential value of statutory guarantees of independence, and has proposed, in its report under section 69 of the Northern Ireland Act, that amendments should be made to write into the Act a requirement for Commissioners to carry out their duties independently. This recommendation was later withdrawn, in response to the NIO's contention that it was unnecessary, given the existing duties under sections 75 and 76 of the Northern Ireland Act. While we recognise that such an amendment would not change what is already the practice, we agree that it could have symbolic value. In the context of any amending legislation arising out of the review of the Commission's powers and functions under section 69 of the Northern Ireland Act, we recommend the amendment of the Act to include a specific duty on the Commission to act with independence and impartiality.

The appointments process

19. The heightened sensitivity to community representation on the Commission makes the appointments process particularly sensitive to criticism. A transparent and independent appointments process enhances the independence and impartiality of the Commission.

20. Appointments to the Commission are made by the Secretary of State for Northern Ireland in accordance with the requirement under the Northern Ireland Act that the Commission be representative of the community.[10] The process is conducted in accordance with the guidance of the Office of the Commissioner for Public Appointments (OCPA),[11] which requires a representative of OCPA to be included on the selection panel. There is a right of appeal to the Commissioner for Public Appointments.[12]

21. The NIHRC recommended, in its section 69 report, that an independent appointments procedure should be established in order fully to comply with section 75 of the Northern Ireland Act, and the Paris Principles.[13] One means of enhancing transparency and accountability in the appointment of Commissioners would be to involve Parliament in the process. In our recent report on the case for a human rights commission for Great Britain, we suggested a number of possible models for the involvement of Parliament, and were inclined to favour a statutory duty on the appointing Minister to consult Parliament on the appointment of commissioners.[14] We asked the NIHRC whether they would favour the appointment of members of their Commission by Parliament. The Chief Commissioner responded that—

Ideally it would be preferable if another body—be it Parliament, be it the Government together with opposition MPs or other representatives of civic society ... appointed the members of the Commission.[15]

We recommend that, in preparing its final response to the NIHRC's review of its functions and powers, the NIO give consideration to a role for an independent Commission in the appointment of Commissioners.

The criteria for appointing commissioners

22. In making appointments, the Secretary of State must ensure, under section 68 (3) of the Northern Ireland Act, that the Commissioners are, as a group, as far as practicable "representative of the community in Northern Ireland". The statutory guidance goes no further, although some further assistance is gained from the guidance of the Office of the Commissioner for Public Appointments.[16]

23. Much of the criticism we have heard of the Commission's alleged lack of impartiality has focussed on perceptions of the political or cultural provenance of the individual commissioners. Indeed, the views expressed on the Commission's impartiality or lack of it have been couched very largely in terms of the numbers of Commissioners with perceived allegiances to either of the main political or religious communities. The composition of the Commission has also been criticised for being unrepresentative as to age, sex, disability, and ethnicity. The shortcomings of this "numbers game" approach to assessing impartiality are evident in the number of written submissions which criticised the composition of the Commission as insufficiently representative both from a Unionist and from a Nationalist perspective. However, in view of the principle of inclusivity in the Agreement, it is important to ensure that the Human Rights Commission is representative in its composition. It is, of course, difficult for the membership of any Commission to be representative of any society: the minimum requirement is to ensure this "so far as practicable", that is that all reasonable measures are taken. Because the reality of individual identity is inevitably complex, the perceived community origin of an applicant cannot be the sole criterion to apply in determining appointments.

24. Concern was expressed by British Irish Rights Watch in their submission to us that—

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.[17]

The best guarantee of impartiality in the members of a human rights commission is their commitment to the application of the clear and established standards and principles of universally recognised human rights. A perfectly representative human rights commission would be of little assistance to the people of Northern Ireland if its work were not directed by the skill, expertise and practical experience of its Commissioners in the human rights field. 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.

25. Knowledge and experience of human rights may be built, amongst other means, through work in the NGO sector. It has been a matter of controversy that several members of the Northern Ireland Human Rights Commission have or have had connections with prominent human rights NGOs. In our view, such connections should not be taken as an indication of bias as distinct from a commitment to the protection and promotion of human rights. However, in our view to bar the Commission from availing itself of knowledge and skills acquired in the NGO sector would be to debilitate it unnecessarily.

26. Human rights expertise, and insight into the human rights issues facing Northern Ireland, may come from outside Northern Ireland, as well as from within. We see no reason in principle why consideration should not be given by the Northern Ireland Office to appointing Commissioners from outside Northern Ireland, as happened with the Commission's predecessor, the Standing Advisory Commission on Human Rights. These commissioners could contribute and add new perspective to the Commission's work.

27. Part of the difficulty with the current appointments system stems from the ambiguity of the term "representative of the community" in the Northern Ireland Act, in the absence of any other statutory criteria for appointment. As we have made clear, our view is that there has been too great a focus on the representative composition of the Commission. The Northern Ireland Office should publish a clear statement of the criteria for appointment under the Northern Ireland Act.

Government support for the Commission's independence

28. There has been criticism of the Northern Ireland Office for neglecting to defend appointments to the Commission as forcefully as might have been hoped. The CAJ has argued that—

… government should have shouldered its responsibilities in the matter either by defending its appointments vigorously or, if it thought necessary, recognising that there was some problem and remedying any perceived deficits. Instead the Commission was considerably weakened in the public arena from the outset and government has made insufficient efforts to staunch or remedy the damage. By its silence and, on occasion, lukewarm support, government has contributed to a weakening of one of the key institutions created by the Good Friday Agreement.[18]

29. We would emphasise that the appointment of an impartial Commission is the responsibility of the Northern Ireland Office, as the appointing body under the Northern Ireland Act. The Human Rights Commission itself can have no control over the appointment of its own members. The then Minister, in his oral evidence to the Committee, accepted this, and acknowledged the importance of his own role in supporting the Commission's independence.[19] We welcome this.

30. Having decided on appointments to the NIHRC, the NIO must stand by these choices and make clear its support for, and confidence in the impartiality of, the Commissioners it has appointed. In the absence of such support, confidence in the Human Rights Commission is undermined. This loss of confidence is detrimental not only to the Commission as an institution, but to the potential of human rights values to contribute towards the future of Northern Ireland. We recommend that the NIO be more robust in support of the Commission, its work, its impartiality and its independence.

Ensuring impartiality in the Commission's work

31. The Human Rights Commission's impartiality must be evident throughout its work. Although some of those who submitted evidence to our inquiry suggested bias in the Commission's selection of topics for research or inquiry, it is clear that the Commission has striven to address issues of concern to all communities. We note that at least one external institution has already sought to put pressure on the Commission in carrying out its role. The Chief Commissioner stated: "I cannot recall any Government Department putting pressure on us not to pursue litigation".[20] Elsewhere, however, he did admit, "as is already public knowledge there was a letter sent to us by the then Chief Constable in relation to a particular case that we were involved in, that is currently sub judice, and I am not sure it is appropriate to go into the details of that … but that is already public knowledge".[21] Whatever is the outcome of that case, the conduct of the then Chief Constable in sending such a letter and the reaction of the NIHRC Chief Commissioner must be a cause of concern. In written evidence the solicitors Madden & Finucane enclosed a copy of a letter sent from the then Chief Constable of the then RUC to the Chief Commissioner on 21 March 2002.[22] Inter alia, the Chief Constable "very strongly urge[d] the Commission to review its funding decision" and "strongly" maintained that it was inappropriate for the Commission to continue to commit public funds to this litigation. He continued: "The Commission is, of course, at liberty to reconsider, review and revoke decisions of this nature at any time. Please treat this letter as a solemn and formal request for review and revocation".[23] In reply, the Chief Commissioner wrote—

Our Commission meets again on Monday 8 April and we will be considering then our involvement in this particular litigation. I should be able to let your office know on the following day what the outcome of our consideration has been. I would be most grateful if you could delay taking a decision on the disclosure of my letter of 4 December until then.[24]

The Commission can not be expected to tolerate interference in its independence. We welcome the statement of the then Minister, in his evidence to us, that the independence of the Commission should be judged not solely by its composition but by its work. We also welcome the fact that the Commission's mission statement commits it to being "independent, fair, open, accessible and accountable" in its activities, to being "committed to equality of opportunity for all and to the participation of others in its work" and to performing its functions "in a manner which is efficient, informative and in the interests of all the people of Northern Ireland." The Commission's Strategic Plan for 2002-2006 stresses the importance it places on the impartial conduct of its work.[25] We strongly recommend that the effectiveness of the Commission should be assessed by what it does, not by identifying the community background of individual Commissioners.

32. However, we do have concerns about the extent to which the financial arrangements for the commission may compromise its independence, and we now examine these.

10   NI Act 1998, s68 Back

11   Commissioner for Public Appointments, Code of Practice for Ministerial Appointments to Public Bodies, July 2001 Back

12   Northern Ireland Office, Response to the NIHRC's Review of Powers Recommendations, A Paper for Consultation, May 2002, para 16 Back

13   Report on Effectiveness-NIHRC Report to the Secretary of State required by section 69(2) of the Northern Ireland Act 1998, February 2001, Recommendation 1 Back

14   Sixth Report of Session 2002-03, The Case for a Human Rights Commission, op cit., para.223 Back

15   Q 12 Back

16   op citBack

17   Appendix 5, Ev 45 Back

18   Committee on the Administration of Justice, Submission to the Government's response to the NIHRC's Review of Powers Recommendations, July 2002 Back

19   Q 67 Back

20   Q 9 Back

21   Q 10 Back

22   Appendix 12, Ev 64 Back

23   ibidBack

24   ibid., Ev 65 Back

25   Northern Ireland Human Rights Commission, Strategic Plan, 2003-2006, p 7 Back

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