Examination of Witnesses (Questions 1-19)
THURSDAY 28 NOVEMBER 2002
PROFESSOR BRICE
DICKSON, PROFESSOR
TOM HADDEN,
MS PADDY
SLOAN AND
MR PATRICK
YU
Chairman
1. Professor Dickson, thank you very much for
coming today to give evidence to the Joint Committee on Human
Rights, we are very pleased to welcome you and your team. So that
everybody in the room is aware, we are obviously pleased to welcome
Ms Paddy Sloan and Professor Tom Hadden but we notice that Mrs
Patricia Kelly is not here today, however we are very pleased
to welcome Mr Patrick Yu. We did come over earlier in the year,
as you know, and we had an informal meeting with members of the
Commission. At that stage we gave an undertaking that we would
come back later in the year for you to give evidence to our Committee,
which I recall you were very keen to do. We are very pleased that
we were able to fit in a visit to Belfast and you have been able
to come before us today. I would like to start by asking you about
how you see the role of the Human Rights Commission. You have
now been in operation since 1999 and I think it would be universally
acknowledged you have been promoting human rights in an exceptionally
difficult environment but also in a region where human rights
have the potential to transform a divided society. What is your
sense of that potential now in the light of your experience?
(Professor Dickson) Can I, first of all,
welcome the Committee. We are very pleased to have the opportunity
today to present evidence to you and we welcome the inquiry. I
think the short answer to your question is that the potential
for human rights to have a transforming effect in a divided society
still very much exists here. The Commission has been able to do
something to promote and protect human rights during our short
existence but of course a lot more remains to be done. I think
it has to be realised that the protection of human rights does
not operate in a vacuum, certainly not in a political vacuum,
and that while the protection of human rights is a sine qua
non to a democratic and peaceful society the Human Rights
Commission cannot ensure that all of a divided society's problems
are solved. There remain, and will continue to be, problems in
this divided society and in others which are not amenable, unfortunately,
to a solution by a human rights approach. We are very conscious
of how important the Human Rights Commission is as an institution
set up under the Belfast or Good Friday Agreement and we very
much want to operate in that context together with our sister
organisation in the Republic, the Irish Commission, with which
we have already established a joint committee and which committee
is already engaged in work on an all-Ireland basis, both with
a Charter of Rights for the Island and on racism issues. We look
forward to continuing that collaboration.
2. You just said that the Commission could do
something to promote human rights in a divided society. It would
be interesting to hear an example of that and also to acknowledge
that while many of your Commission's aims in creating a human
rights culture in Northern Ireland may be long term, do you have
any sense of change resulting from some of the work which the
Human Rights Commission has already done?
(Professor Dickson) I think probably the most outstanding
example of how our Commission is able to work towards the healing
of division in this society is our Bill of Rights work, which
I know your Committee possibly want to come on to later this afternoon.
We do feel our very deep and wide consultation on that, which
the minister recently expressed enormous admiration for, has had
an effect in helping to heal divisions. A lot more needs to be
done. Our proposals did not meet with universal acclaim, nor did
we expect them to, it was very much a consultation document and
we hope in the next phase of that project to make it more of a
consensus document. The second part of your question was?
3. What was distinctive about the Human Rights
Commission and what sense do you have of a real change which your
Commission has achieved?
(Professor Dickson) Of course it is hard to measure
that. In the very extensive contact that we have had with a very
high number of public authorities in Northern Ireland, for example
the Police Service, also many government departments and other
NDPBs, we have noticed a willingness to engage with us on human
rights issues that I think was not there prior to our existence.
A preparedness to proof their policies, plans and legislative
ideas against human rights standards, which we use. We make it
clear in our contact with all of those organisations that our
standards go beyond those in the European Convention on Human
Rights. Very often we are citing, for example, the UN Convention
on the Rights of a Child to various public authorities or other
UN soft law standards, as they are called, as regards policing
issues. We have had some success in getting policy documents changed
because of our reference to those international standards. Generally,
I think, there is a heightened awareness across the public sector
of the importance of human rights.
(Professor Hadden) I would just like to add that the
main change that I notice is that the people we are consulting
with on the Bill of Rights project and other human rights issues
have a much better understanding of the underlying human rights
issues, because of the way in which our education team has been
able to get out to the schools, to the public, to the community
organisations and assist them in training on human rights documents
and understanding the issues which arise both in relation to existing
human rights standards, the European Convention and other international
documents. and also in relation to the issues of the proposed
Bill of Rights here. The level of engagement, expertise and sensible
comments which we are getting now is far and away more helpful
and better than the initial comments we got when we launched the
Bill of Rights process. I think throughout society, not just in
the public sector, there is now a much greater understanding of
the issues and some of the possible resolutions. Perhaps it has
taken two or three years for members of the public generally to
become aware of those issues, to learn the language and to be
able to contribute more effectively to the discussions on the
Bill of Rights. I think that is a significant change throughout
society.
4. Thank you. We have noted your draft strategic
plan for 2002 to 2006, which was published earlier this year,
and your five strategic goals and your seven core values. Trying
to distil those, could you tell us what you see as your strategic
priorities for the next two years and how you intend to achieve
them?
(Professor Dickson) Yes. We considered all of the
submissions that were made to us on that draft plan, which was
out for consultation for four months, and in the light of those
submissions and our deliberations we have altered the strategic
goals into the following six. If I may just outline them for you,
and I should say these are in no particular order: We wish to
identify serious human rights violations; we wish to protect vulnerable
groups; we wish to deliver the Bill of Rights for Northern Ireland;
we wish to engage in international monitoring and in developing
relationships with treaty bodies; we wish to promote awareness
of human rights and of the Commission itself. Finally, we want
to ensure compliance with the Paris Principles, which govern national
human rights institutions. For each of those goals we will have
specific objectives and performance indicators in our strategic
plan and business plans which are in the course of preparation
and should be publicly available shortly after Christmas.
5. They do sound very general. Do you have any
specific Northern Ireland issues that you would want other people
to use as a test of your effectiveness over the next two years?
(Professor Dickson) The Bill of Rights is a Northern
Ireland specific project and we would like that to be a model
for other jurisdictions to follow, both in the process by which
it was obtained and in the content. In the international work
we do we hope that we have been able to raise awareness of the
importance of international standards, awareness within government
circles but also in the civic society in Northern Ireland. I think
we are in the forefront of the work being done by national human
rights institutions around the world in that area. We are just
about the most active of any national human rights institution
when it comes to engaging with the international treaty monitoring
bodies and other UN mechanisms. In our work for the vulnerable
sectors of society, the protection of economic and social rights,
for example, taking the commitment further in our first strategic
plan we worked on behalf of marginalised groups, I would again
hope we would be a model for other jurisdictions to follow.
(Professor Hadden) I think on more specific issues,
I am the Chair of the Investigation and Research Committee of
the Commission and we have a number of very specific projects
which form part of the strategic plan. One of the most important
ones is the Article 2 issue arising from the decision of the European
Court in Jordan, and other cases. We want to expand the focus
of Article 2 issues to cover not only the question of inquests
but also the question of police investigations, prosecution practice
and decisions so that we can come out with recommendations for
complete compliance with the Article 2 requirements of the European
Court. That is one of the issues on which we are currently engaged.
Another of the issues on which we are about to produce a report
is the issue of baton rounds. We have commissioned a study on
that and we are focusing on a number of important issues in relation
to, first of all, the balance between police use and army use
of these baton rounds and, secondly, on the technical qualities
and effects of the baton round, which has been introduced. In
particular we are concerned about the high level of misses. One
of the arguments for the introduction of the new baton round is
that it would be more accurate. The information we have is that
quite a considerable number of these rounds which are fired are
missing the initial target. We are very concerned that something
unpleasant may happen as a result of that. Those are a couple
of examples of the specific implementation of the kind of general
principles that Brice has been talking about. Each of other committees
could give you examples; the victims and Education Committees,
and the precise way in which we are working on specific targets.
Lord Lester of Herne Hill
6. It just seems to me that looking at those
six goals, that are not ranked in any particular order, as you
said, that is a huge agenda even for a United Kingdom body. I
just wonder whether having so many different objectives with such
slender resources means that, instead of concentrating on protecting
vulnerable groups or dealing with gross violations of human rights,
you find yourself distracted by other goals which may be very
worthy but will blunt your cutting edge as a Human Rights Commission,
given your resources? Should you not refine your priorities in
order to sharpen your cutting edge?
(Professor Dickson) We are very conscious through
you, Chair, that there have been very high expectations of the
Human Rights Commission since we were first established in March
1999. I think we would admit we set ourselves a very ambitious
plan for the first two or three years with the result that we
were not able to do as much follow-up work on particular issues
as we might have hoped. That kind of consideration has weighed
very heavily with us in our recent consideration of the next strategic
plan. When we come to put flesh on the bones of those goals, when
we come to set particular objectives and particular performance
indicators and time scales associated we will certainly be less
ambitious than we were and more realistic about what can be achieved
with the resources available to us. It will mean that we will
have to say on some issues we are not able to do much, if any,
work while focusing on other issues. We accept your point, Lord
Lester, but it does not mean that we want to cease to be the very
effective institution which the Good Friday Agreement requires
us to be.
Baroness Whitaker
7. Chief Commissioner, I was very interested
in your Harry Street lecture that you kindly copied to us all
and in your account of the potential value added to society by
human rights commissions, but this is only on the basis that they
are independent organisations, impartial organisations. In your
environment here, of course, the Commission's political impartiality
is constantly questioned, that is the situation you are in. I
would like to ask you, what support do you need from the Government
to ensure that the Commission's impartiality is made clear to
the general public, first of all?
(Professor Dickson) Firstly, we would expect the Government
to be more defensive of the appointment process to the Commission.
We in the Commission have had to answer or try to answer or deflect
a barrage of criticism about the appointments to the Commission,
which are none of our concern, they are the responsibility of
the Northern Ireland Office. That is not to say we do not have
views on what kind of skills mix we need on the Commission, we
are certainly alive to that. The responsibility for appointing
people and the selection process is that of the Government. I
would have liked the Government to have been more vocal in explaining
the appointments process and how objective and competitive it
was, both in 1999 and last year. Secondly, I would have hoped
that the Government would have been more willing to correct some
of the inaccurate statements made about the Commission and about
individual commissioners. We ourselves can do that, of course,
but I think it is appropriate for the Government to defend such
a key institution as the Human Rights Commission against its detractors,
especially if they are making inaccurate statements, as they have
on many occasions, both in Parliament and out of Parliament. Thirdly,
I think I would have liked a little bit more recognition, in fact
a lot more recognition, of the achievements of the Commission
and the difficulties we have faced in getting to those achievements.
In the last 6 months, or so, there have been more positive statements
from the Government about the work of the Commission and the challenges
we have faced and met. Certainly in the first two or three years
of our life the Government tended to stand back too much from
the work we were doing and they did not support us in the way,
for example, they have supported other institutions created by
the Good Friday Agreement. That is regrettable.
8. You say the Government stood back. I also
wondered if you have ever had direct or indirect pressure from
the Government or officials not to pursue a case or a threat to
withdraw funding or anything which is, perhaps, not standing back
enough?
(Professor Dickson) We certainly have pressure put
upon us to explain in more detail why we would wish to have funding
for a particular project, our chief executive might well want
to come in and supplement me on this. We do feel our independence
is put seriously at risk by the fact that our core budget is so
small, it really only covers our salaries and our running costs
and therefore for all our programme costs in effect we have to
apply for supplementary funding and that permits Government to
attach strings to the funding and say, "you can have this
money if you do the project this way". That is obviously
unacceptable to an independent commission.
9. That is certainly an example of pressure.
How about pursuing particular cases, have you had pressure on
you in that respect, or not pursuing cases?
(Professor Dickson) I cannot recall any Government
department putting pressure on us not to pursue litigation, no.
Mr McNamara
10. Can we take that question a little further,
has there ever been any pressure put upon the Commission to withdraw
funding from cases it has undertaken from other bodies?
(Professor Dickson) 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 would be appropriate to
go into the details of that, Chairman, but that is already public
knowledge.
Chairman
11. Thank you.
(Ms Sloan) On a more general point, not specifically
tied to the cases: we have had Government officials telling us
we were not to undertake an independent evaluation which we had
commissioned from a consultant, independent of Northern Ireland
and the Commission, from Peter Hosking, formally of the New Zealand
Human Rights Commission. Peter came to follow up on our review
of powers with an independent evaluation of our effectiveness.
The officials did not like our selection and said they would not
give us the money to pay for that evaluation. Subsequently we
have had to secure that funding from within our core budget. The
fact that we have had a communications strategy approved in principle
but we do not have the terms of reference approved yet by the
Government to undertake that communications strategy development
and implementation within this year—it is a very important
element of our future strategy—we get approval in principle
but because we have to get the details and the terms of reference
approved by the Government—it means we have not been able
to take that forward. Similarly with a couple of major investigations
we have approval in principle but we do not have the terms of
reference approved and because we are working on supplementary
funding, Treasury guidelines it means this level of detail is
with officials for their control. That is the problem, we may
be receiving in total a budget in the region of 1.3 million but
our actual core budget over which we have total control only meets
approximately 90% of our running costs, so we have no room to
manoeuvre. It means that virtually every piece of work that we
do is subject to scrutiny by NIO officials. We have been working
through it with the Minister and with officials to try to improve
that situation. I do not think there is as much anxiety on the
part of officials now as there was in the early days of the Commission
to continue in that vein but we have actually had the kind of
restriction that you referred to, not in casework but on our evaluation.
That is a great frustration for us in terms of how we take forward
our work and how we follow up our work; as we always have to wait
for permission.
Baroness Whitaker
12. Thank you. Other colleagues will go on to
the Hosking Report. I would like to continue with the relationship
between the Northern Ireland Office and yourselves, but before
I do that can I just ask one question about the appointment of
commissioners. I think you mentioned in your Report to the Secretary
of State the possibility of appointments of commissioners either
by Parliament or by Letters Patent. Is that something that you
would still recommend or are there any other changes to the process
of appointment or the criteria which you would recommend?
(Professor Dickson) In recommending that we were relying
on what the Paris Principles say about the appointments process,
which is that it ought to be as independent of government as possible.
Clearly in the current system it is the Secretary of State who
appoints. Even though there is an open and competitive selection
process prior to that, it means that the outcome could be described
by some as not being as independent as it should be. Ideally it
would be preferable for another body—be it Parliament, be
it the Government together with opposition MPs or other representatives
of civic society—it would be better if that kind of organisation
appointed the members of the Commission. It is essential that
they be independent and are perceived to be so. As regards the
skills required, I think it is essential that commissioners have
not just a commitment to the protection of human rights but a
knowledge of human rights and they be prepared to be trained in
human rights issues once they are appointed if they do not have
the requisite knowledge at that point.
13. Thank you. You also note in your Report
that memoranda of understanding are being prepared between the
Commission and the Northern Ireland Office and with the Office
of the First Minister, that was before suspension. Can you give
an outline of what these memoranda would deal with?
(Professor Dickson) Yes. In fact the position is that
for some time now we have had three memoranda of understanding,
one with the Equality Commission, one with the Police Ombudsman
and one with the Legal Aid Department of the Law Society, and
all of them are kept under review. We are in the very final stages
of completing memoranda of understanding with the Court Service,
with the Office of the First Minister and the Deputy First Minister
and the Police Service of Northern Ireland. We are about to negotiate
with the Assembly Ombudsman another memorandum of understanding.
The Policing Board has refused to enter into a memorandum with
us on the basis that they did not think it was necessary. As regards
the Northern Ireland Office we are very disappointed at the lack
of progress on that. There was a delay caused by ourselves at
one point, over a year and a half ago, even longer, but there
was a much, much longer delay caused by the Northern Ireland Office.
Despite several letters from myself to officials this has still
not being progressed. That is regretful, because the advantages
such a memorandum could bring, to get to the gist of your question,
would mean we would as a result, I hope, get earlier access to
proposed policy and legislative initiatives and we would have
a healthier exchange of views about such initiatives. If I can
give you one practical example, very recently we had a productive
and interesting meeting with Government on the so called "on-the-runs"
question. We were assured that the Government had not come to
any conclusion on this issue and they were anxious to get our
view on this before they made up their minds on that kind of issue.
That was very much welcomed. That is how the process should operate
and that is the first time the Government has opened itself up
to us in advance of deciding what its policy on a certain issue
is going to be. A memorandum of understanding would, I hope, enable
that opening up to take place much more frequently.
14. Do you think when this memorandum is completed
it will help good working relationships with other United Kingdom
Government departments? Do you see that it would have a role there?
(Professor Dickson) I very much hope that it would.
Our experience on that front has not been too happy. The Home
Office and other Whitehall based government departments tend to
forget that we exist. We do not receive copies of very important
documents that have human rights implications, we have to go looking
for these rather than being sent them. We were not consulted in
advance on the legislative reaction to 11 September events last
year. The Northern Ireland Office could be the channel by which
we more effectively communicate with other United Kingdom government
departments and vice versa, and we hope that the memoranda will
achieve that.
Lord Lester of Herne Hill
15. Chief Commissioner, I would like to ask
you a few questions about your functions and your powers, if I
may. When you carried out your statutory review you recommended
that your functions should be clarified by legislation in several
respects. For example, it should be made clear that you would
have a duty to advise the Secretary of State on compliance with
international human rights instruments, you would clarify that
you have the power to comment on Government reports to treaty
bodies and that you would have a function of keeping the Human
Rights Act and the Bill of Rights, if you have one, under review.
As I understand it, you have withdrawn from advocating some of
those recommendations and I would like to ask you why, if that
is the case, you have done so, and why clarity in this area would
not be desirable?
(Professor Dickson) You are correct, Lord Lester,
to say that we have withdrawn some of the recommendations. That
is for two reasons, firstly the reasoning behind the House of
Lords decision in June of this year, which we took over the issue
of whether we had the right to apply to intervene in court cases
or to be an amicus in court cases. The reasoning of that judgment
was that the Commission should have all the powers that are reasonably
incidental to or consequential upon the expressed powers that
we have been given. When we applied that reasoning, that ratio
decidendi, if you like, to our recommendations we concluded
that a lot of the recommendations we had put in ex abundanti
cautela, if I may say so.
16. I do not think you are allowed to say so
because we have been forbidden to use Latin in English courts.
We better have it in plain English.
(Professor Dickson) I beg your pardon, I was going
to provide a translation, for the avoidance of doubt we inserted
those recommendations. The reasoning of that case makes those
recommendations superfluous. Secondly, the Government has accepted
in its response to our Report that there should be a clause in
the Act saying that we expressly have all of the powers that are
reasonably incidental to or consequential upon the express powers,
so that would be legislative back-up for the court's reasoning.
On a more specific recommendation we made as regards the right
of access to premises to search and seizure, to search for and
seize documents, we withdrew that recommendation at the time because
we felt we were not equipped to exercise that right. It would
entail a lot of training and resources on our behalf, and itself
carries human rights implications, so we withdrew that, at least
temporarily, but we may return to it.
17. Thank you. If I can ask you another question
about your lack of powers. I know that one of the matters that
the Commission has repeatedly emphasised is that you would like
to have more investigative powers, and you have pointed to the
Paris Principles, which say that you should have the power to
compel the disclosure of relevant information and you point out
that you are handicapped by not having that power. I am puzzled
by that, if I may say so, because in my experience the Commission
for Racial Equality and Equal Opportunities Commission in Great
Britain, which do have powers to compel the disclosure of information
in certain circumstances, have hardly ever found it necessary
to use them. The question I would like to ask is, can you tell
our Committee of practical instances in which you have been attempting
to obtain information for your work and you have been thwarted
by a refusal to cooperate so as to show what difference it would
make in practice if you had wider powers?
(Professor Dickson) Yes. The experience of Human Rights
Commissions and other anti-discrimination bodies is that mere
existence of these powers is itself enough to ensure the production
of the information that is being sought and therefore the powers
themselves rarely, if ever, have to be used. They have a tremendous
psychological effect by their mere existence. The report that
we did for the Government on our powers in February 2001 gives
examples of the obstacles we faced in many quarters when seeking
information. For example we sought a copy of the early Stevens'
Reports into alleged collusion, including security forces and
loyalist paramilitaries. We were told we could not see them. We
sought information from the Northern Ireland Office during the
investigation into Juvenile Justice Centres in Northern Ireland
and we did not succeed in getting that information. At the moment
we are in the process of further testing our powers, and we have
been doing this for the last nine months, or so, in one way or
another, for over a year we have been putting pressure on the
Ministry of Defence to be given a copy of the guidelines used
by the Army when firing baton rounds. I know a number of other
organisations and Parliamentarians were putting pressure on the
MoD likewise and as a result of that united pressure the Minister
did release those guidelines recently. We have been seeking to
obtain from the Prison Service a copy of a report into the death
of a prisoner, because we would like to check that the investigation
into that death was human rights compliant. We have been seeking
further information from the Government on the so called Key Persons
Protection Scheme, about which we have some doubts as to whether
it is compliant with Article 2 of the European Convention. We
have just embarked, again, on a further attempt to get more information
from the Director of Public Prosecution's Office about why he
decides not to take certain prosecutions. If we have to go to
judicial review, in the way that the Government suggested that
we should, to test the willingness of the authorities to give
us those bits of information, we will do so. We are currently
working towards that by seeking to obtain the information through
normal, non-litigious methods. We will go to court if we have
to and test whether or not we have this power.
18. If you did a judicial review and you lost,
I suppose the costs would run into many thousands of pounds, do
you have the resources to be able to mount a judicial review challenge
of that kind where you would presumably be alleging that the public
authority was abusing its powers by not giving you relevant information?
Is that something that you have the resources to do and you would
contemplate doing?
(Professor Dickson) We would certainly rather not
do that litigation, it is extremely expensive and, as you are
well aware, our budget in general, our casework budget in particular
is very, very small indeed. That would, in a sense, be wasted
money, just like we would say the money spent in going to the
House of Lords was ultimately wasted, but that did not come out
of our own budget, I am glad to say, at the end of the day. We
also think that we would probably lose any such judicial review
because under the current Wednesbury standards it would not be
unreasonable for a public authority to refuse to give information
to a Commission which does not have the power to compel the production
of that information.
(Mr Yu) I will try and make my point about the powers
and functions of investigation. Our Commission, unlike other commissions
in Northern Ireland, does not have investigative powers under
formal legislation. Lord Lester, you drafted the law and know
very well how effectively you can use that law. Our Commission,
according to our law under the Northern Ireland Act 1998, we do
not have that power. What our Commission would like is to have
that power now. I think it is very important and more effective.
Politically it is more important that we have the power, it does
not mean that we will use it all of the time. Once we have a case
concerning human rights we will talk to the department, talk to
the public body and we would try to use cooperation, as usual.
If they are not cooperative then the Commission can apply to the
court to get an order and they will start the formal investigation
process. Their powers should be written into the law so that it
equips the Commission to be more effective to investigate human
rights violations in Northern Ireland.
19. Would I be right, Chief Commissioner, in
summing up the situation as this: the Government has advised you
to go for a judicial review in the cases where you feel you should
have powers, but the Government are not prepared directly, specifically
to give you money for that purpose, and that in any case you are
of the opinion from your own legal background that to pursue the
course which the Government is advocating would be nugatory?
(Professor Dickson) I think that is a fair summing
up, except that it is not just my own personal legal view, it
the Commission's view that legally we would fail in a judicial
review. It is also the case that the Government is saying that
only in relation to our demand for the power to compel the production
of information, they are not saying we need to go to judicial
review in relation to other powers. It is certainly their view
in relation to investigation. It is very unfortunate.
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