Joint Committee On Human Rights Minutes of Evidence

Examination of Witnesses (Questions 20-39)



  20. Can I just be quite clear about this, my colleague Mr McNamara in his question to you was suggesting that the Government would deprive you of funds to enable you to go by way of judicial review, surely that would be a clear abuse? They could not do that, they could not prevent you having a right of access to court. Would it not be the case if you were prevented from having access to information you needed for the purpose of your function that you would have a strong case of irrationality, at least you would in London in judicial review, and I would be surprised if it was not the case in Belfast in judicial review?
  (Professor Dickson) That may be the case, Lord Lester, and that may well be tested in the near future. As regard funding cases the Government does not say to us, you cannot spend money on this particular case or that particular case. I think what Mr McNamara might have been suggesting, it is certainly what I am suggesting, is that our casework budget is so small that for us to waste it on such needless test litigation would mean that other people who have suffered serious human rights abuses would not get the benefit of our assistance.

Vera Baird

  21. Chief Commissioner, could I ask a few questions about your casework. Firstly, what does the Commission see as the primary goal of its work in the courts through casework, third party interventions and amicus, do you take symbolic, totemic cases, as it were, to raise the awareness of human rights, or is it a strategic, rather systematic process in which you seek to influence the development of a body of Northern Ireland human rights law?
  (Professor Dickson) I think it is more the former than the latter, especially in the sense that while, of course, we pay attention to the likely success of winning a case that is only one factor we bear in mind. We often say to ourselves that it would be important to raise this issue in the courts so as to promote awareness of this human rights issue. Obviously if we win the case then that will have an impact on the development of Northern Ireland human rights case law. The real difficulty here is that the budget of the Commission for casework is so small that, as you know, from our last year's Annual Report we were able to provide assistance for seven out of 54 applicants. There is not a lot we can achieve with that kind of money.

  22. I can see that very clearly, Chief Commissioner. You did publish your case work criteria, the criteria you use for deciding whether to get involved in litigation. Given the very real scarcity of resources are there not difficulties in prioritising?
  (Professor Dickson) There are difficulties in prioritising. The first difficulty is the legislation itself, Section 70 of the Northern Ireland Act, which is worded identically to the equivalent provisions in the anti-discrimination legislation both in Great Britain and here, is particularly unhelpful in allowing the Commission to decide what is or is not a case worth assisting. We have tried to develop the statutory criteria in a way that does not open us up to judicial review on the basis that we have fettered our discretion in some way. We have taken legal advice on what our criteria should look like. The criteria refer, as you know, to our strategic plan and it often comes down to deciding whether an issue is one that, for example, raises criminal justice concerns, which is within our current strategic plan, or other concerns which are within that plan. We do pay considerable attention to that. We also take that on board when deciding to proceed by funding the individual rather than by going to court in a different capacity, either in our own name or as an intervener.

  23. I am very interested in that area of, as it were, how you decide which route to take once you have decided to become involved in a case. I cannot myself at the moment see what criteria you do use to make those decisions. Part and parcel of how you do that will be how you perceive the relative impact and the relative utility of the three methods now available to you. Can you give us help about that? I appreciate we are talking in an enormous amount of detail about a very small pot but we are anxious to learn from your experience.
  (Professor Dickson) There are two constraining factors that we have to bear in mind when deciding which route to go down as regards casework, one is that we have a duty under Section 70 to consider applications by individuals. We have to consider every case in the same way against fixed criteria. The other one is, if we decide to take a case in our own name we have to be aware of the statutory limits on our power and if we did that we could not rely on Convention rights. Rather bizarrely the Northern Ireland Act precludes us, unless we are ourselves a victim, which is very unlikely, from relying on Convention rights when taking cases in our own name. As part of our next strategic plan we have been developing a casework strategy which will address the kind of issue that you have just raised, which for us would be the best route to go down. Of course it is the case that from September 2000 to June 2002 we were deprived of the intervention route thanks to the ruling of the courts, effectively our choice was to assist individuals or to go in our own name. As I indicated, the limitation on going in our own name is a serious one and remains so.

Lord Lester of Herne Hill

  24. I wonder if I can probe that slightly more. I quite understand that you are not a victim in terms of the Human Rights Act and therefore you do not have standing in that sense to make a claim, but there is nothing to stop your Commission from bringing judicial review proceedings in your own name and then in the course of that indicating the Convention rights have not been properly taken into account, is there?
  (Professor Dickson) That is, indeed, how we proceeded in October 2000 when we took a case against the BBC in relation to the broadcasting of an edition of Panorama. The judge in that case did suggest that having gone into court on a judicial review standing he then, as a public authority, became under an obligation to deal with the convention points. Unfortunately the judge, despite our best efforts, has not reduced that decision to writing in any form. It remains unclear whether judges would adopt the same attitude, especially in Northern Ireland. It is not always that we have gone to court through judicial review in the first place.

Vera Baird

  25. Are you satisfied that your procedures and criteria for funding cases are very clear and transparent?
  (Professor Dickson) They are certainly very transparent, we make no secret of that. They are widely known and distributed and in our annual reports. Whether they are clear or not—I think they are clear—like many criteria they are often difficult to apply to the facts of a particular case that is brought to us. Most difficult of all is to know which weighting to give to the answers to the various questions that we ask ourselves when applying the criteria. There is certainly room for the criteria to be reviewed again and, as I said, we have received advice from counsel on this issue and the relevant committee of the Commission is, in the very near future, reviewing its criteria and its overall casework strategy with a view to feeding in to the Commission's strategic plan.

  26. Ironically the smaller you pot the more important it is to have detailed criteria. Do you agree?
  (Professor Dickson) I would agree.
  (Professor Hadden) There is a difficulty here, to have a very strategic approach to choosing cases really does involve a large amount of discretion for the Casework Committee in deciding on which case to pursue. That is a discretionary guideline, what do we as a Commission think would be a good strategic case to take. On the other hand, from the point of view of the applicant they probably would not like such a discretionary guideline or criteria because they want to know that they are getting exactly the same treatment as any other applicant for assistance. The more you go down the strategic route the more your criteria have to be discretionary. I am not sure that we have quite resolved that conundrum yet.

  27. That is why I prefaced most of this questioning by asking which model you were applying, strategy or symbolism, as it were. That is very helpful. May I return, I hope not too intrusively, to the issue that Mr McNamara and Lord Lester have raised which is that it is, it is appreciated there has been some pressure in one particular instance about withdrawing funding for a case, is this, without you, of course, giving me concrete examples, the only time you felt under pressure or to what extent are pressures placed upon the Commission in controversial cases? Are they ever a factor?
  (Professor Dickson) I think the main factor in our casework is the budgetary consequences of casework. We need to keep very close tabs on how much is being spent on our cases and we try to insist upon the solicitors who receive assistance keeping us well informed regularly as to the amount of money that has been spent. We have been well overspent on our casework budget since our inception, I think, and we are going have to go to the Northern Ireland Office very shortly and explain that some special procedure or mechanism is going to have to be put in place. I am glad to say Mr Browne did promise greater flexibility on this point. We are going to have to plead for some special understanding of the difficulties we are under as regards the financial pressures in casework, otherwise I do not think there has been pressure on us to withdraw from cases. I think I am right in saying that.
  (Ms Sloan) Not on a specific case because of the controversial nature of the case but in terms of financial limitations what we have had to do periodically is to stop taking new enquiries because we simply did not have the capacity to deal with the number of enquiries that were coming through. We have an assistant caseworker who does much of the initial enquiry work, but that is only on a temporary, short-term contract. That is part of the working out of the Hosking evaluation and subsequent management change process that we are going through, to look at how we can best meet the demands on us for legal advice. That has been a financial consequence, that we have had to periodically stop taking enquiries and providing telephone advice.

  28. Thank you very much.
  (Professor Hadden) May I add other point, there is an issue here between the methods of proceeding, if you are giving assistance to a particular applicant the Commission does not have as much control over the expenditure in the case as we would have if we were taking the case in our own name. We cannot often make strategic judgments as to whether this is a case worth continuing to proceed with in terms of a strategic objective or is it one that we should settle or withdraw from. In a case where we are assisting other applicants then the legal advisers of that applicant are more in control of the expenditure that is incurred rather than the Commission itself. That is a concern.

Lord Lester of Herne Hill

  29. Can I just follow that up, I have quite a lot of experience of this as a legal adviser to some of the equality agencies, that problem, I think, is increasingly dealt with by those agencies by imposing fairly intrusive conditions on members of my profession to make sure that they do not, as it were, run away with cases without the funding agency keeping careful control. I just wonder whether you have mechanisms in place that enable you to ensure those who are funded are not, as it were, moving outside the area that they should be?
  (Professor Dickson) I think we do have such measures in place. We have quite strict conditions of offer that we make to solicitors and counsel when granting assistance. I think we have had a bit of difficulty in receiving the information from solicitors on a regular basis that we would like to have to enable us to keep tabs on cases. We are taking steps to ensure that we are better informed.

Vera Baird

  30. Do have you any system of in-house supervision of those cases actively as they are on-going? Would you send somebody to every court hearing or would that be just spending money twice, as it were?
  (Professor Dickson) Such are our limited resources that we cannot always send a case worker, the main case worker or the assistant, to the court hearing. That does not happen often but it happens occasionally that that would be the case. The Casework Committee tries to keep tabs on the money being spent on cases, and the Chief Executive does likewise.

  31. Can I ask you a related issue about the procedures you have in place to prevent conflicts and indeed apparent conflicts of interest and breaches of confidentiality, are there particular difficulties in a case where the Commission are supporting the case and might have to give evidence in it?
  (Professor Dickson) We do have a confidentiality policy which at the moment does not contain a particular clause on conflicts of interest, that is something I want us to look at in the near future. There is a potential for commissioners who are taking decisions on cases having an interest in the case, whether for the applicant or against the applicant. We try very hard to set aside our interests and I hope we do that successfully. There is also the point that is worth bearing in mind here, that the Casework Committee given the nature of its function has been delegated with the powers to perform by the full Commission, which means that on occasions three commissioners, even two commissioners, can take decisions on cases which bind the whole Commission. We have been learning as we have gone along in our casework, as in other areas, and we have now altered our procedures slightly so that particularly controversial cases or rather cases where there is serious dissent in the Casework Committee can go to the full Commission.

  32. Finally about casework, Chief Commissioner, thank you for your comprehensive answers so far, I was going to ask you about the existence of any memorandum of understanding with the Legal Aid Commission, you told Baroness Whitaker that there is one. As you are aware we have taken some written evidence as well as talking to you. We have received some evidence that nonetheless there is sometimes a lack of coordination between the Commission and the Legal Aid Department which can cause applicants seeking funding to be delayed in bringing their actions. Is that right? Are you confident that your memorandum has now dealt with that problem or is it still an issue?
  (Professor Dickson) The memorandum has been in existence for some time. The controversial or difficult aspect of it is that which, as has been mentioned earlier, requires the Legal Aid Department, because of the Legal Aid regulations, to refer matters to us because we are a facility available to grant assistance. In the latest version of that memorandum the Legal Aid department refers only those cases where the core issue is a human rights issue. That still means that a number of cases are sent us to. Often these are emergency applications for Legal Aid which the Legal Aid Department tries to deal with within three days. Likewise when we receive a referred application of that nature we try to deal with it through our own emergency procedures which require either an emergency meeting with the Casework Committee or telephone contact between a caseworker and members of the committee. If all else fails then there is the chairperson's action on the case. That usually takes place likewise within three days of receiving the application, although in our view not all emergency applications actually satisfy our criteria for urgency. I do not think there is lack of coordination, as you suggest. There are difficulties caused by the Legal Aid regulations and we are still in contact with the Legal Aid Department reviewing that particular clause in the memorandum to try to make it less of an apparent obstacle to applicants for Legal Aid.


  33. Professor Dickson, if I may now move on to legislative scrutiny, this Committee has now developed quite a considerable expertise in scrutinising legislation and seeking to influence and promote change in legislation where we see a potential human rights conflict or abuse. I do not see any specific reference or, in a way, not even implicit reference in your strategic goals to this work. Where do you see legislative scrutiny in terms of your priorities in the Commission? Further to that, who do you seek to influence in so doing?
  (Professor Dickson) In our latest discussion of our next strategic plan we envisage the work on legislation and policy being referred to the objectives related to the goal of identifying serious human rights violations, the goal of protecting vulnerable groups, the goal of international monitoring and the goal of promoting awareness. Our objectives would relate to more than one strategic goal. For example through our legislation and policy work we will be promoting awareness within the Civil Service, within officialdom, as to the need to proof legislation and policy against human rights standards. Who are we seeking to influence? We are seeking to influence the policy and law makers on all occasions, be they Parliamentarians in London, be they MLAs in Belfast, be they the officials who draft the secondary legislation, which is very common in Northern Ireland. With some Government departments we have a very good relationship, they send us all of the draft statutory rules, they respond to our comments and very often they will give us reasons why they are or are not changing their proposals.
  (Professor Hadden) I think one of the issues certainly on my mind is what the best way of influencing Parliamentarians may be. Our practice so far has been to send all documents to members of Parliament or members of the House of Lords who we think may be interested. There is, perhaps, not sufficient follow-up in that process and one of the things we are considering at the moment is whether it would be desirable for us to have some kind of parliamentary liaison officer who would act more proactively in contacting members of Parliament and lobbying on issues which we consider to be particularly important. A purely paper process sometimes may not be as effective as direct contact although that, of course, is a resource question, how much of our limited resources should we be applying to that particular kind of involvement in the legislative process. It is labour intensive, it is difficult for us to decide on how much we should spend on that. A full time member of staff could easily be absorbed full time in that kind of operation.

  34. Thank you. As my question was related to legislative scrutiny, I cannot see how you could possibly further promote the interests of legislative scrutiny of human rights by lobbying individual members of Parliament. Surely the question here is how you work with Government and with the Assembly in scrutinising legislation, not lobbying individual members. I find it very puzzling to see how that could possibly fit into a legislative scrutiny process.
  (Professor Hadden) My answer to that is that I am thinking in terms of legislation which is being proposed, particularly in relation to Westminster legislation. The Northern Ireland contingent is quite small and in order to ensure that legislative proposals and our views on them in relation to human rights compliance are taken seriously we do have to involve ourselves with members of Parliament who can raise those issues. It is somewhat easier in relation to Northern Ireland Assembly business because the channels of communication are more direct. Particularly in relation to dealing with legislation on a UK-wide basis it is quite difficult for us to deal with the Westminster departments who do not have Northern Ireland issues very high on their agenda. In order to do that we do have to contact members of Parliament to ensure these issues are raised in the relevant committees. I cannot see there is any other way of doing that.

Vera Baird

  35. Resources. The Commission has made it clear on a number of occasions that it considers its level of resourcing inadequate, do I take it that that remains very much the position now?
  (Ms Sloan) Very much so. We had our core budget set for three years and, as you know, we are just awaiting the outcome of the next Spending Review. We have not as yet been told how that will affect our core funding. We are struggling, as I said earlier, with the tension between maintaining our independence and obviously our need and desire to be fully accountable in terms of Treasury guidelines. We want to be accountable for our finance but we do want to be able to make our own decisions as to which investigation we will undertake or which consultant we will use for evaluation if we want to undertake that. That level of scrutiny is not helpful. I do not get the impression in recent months that that is what the current Northern Ireland Office officials or the ministers want for us. However, as I said before, 90% of our core budget is required simply to open the doors. We do not have any more than one full time member of staff responsible for each of our statutory powers and duties, we are stretched to the limit. Obviously, as Lord Lester said before, we have looked at that to see how we can make the best use of our resources. We are operating on a very tight budget, and compared to other organisations with similar remits it is a small amount of money that we work with.

  36. I wonder if I can ask you very directly, is an effective Human Rights Commission viable in the long term on current levels and current structure of funding?
  (Ms Sloan) We would have to look very carefully at how we prioritise our work and how we prioritise our resources if we had to continue to work on the same level of core funding. We have managed to increase our funding by about 60% each year, during the second and third year, through supplementary funding. I would be very surprised if we have to continue on £774,000. It would be a serious challenge to our operation were we compelled to continue on that level of funding.

  Vera Baird: Thank you very much.

Mr McNamara

  37. I want to pursue the question of the Bill of Rights: following the suspension of the Assembly it was agreed that the parties and the Government would look at all aspects of the Belfast Agreement, in particular matters which arose from it which centred around the Commission. The question is this, have the Government been in touch with you about it, are the Government in touch with you about their review of what is going to happen, or any of the political parties?
  (Professor Dickson) Neither government has been in touch with us, Mr McNamara. We have had meetings with some political parties which have led us to believe that the Bill of Rights and the Commission are in some way being discussed during the interparty talks, but we do not really know any details about that.

  38. In their evidence to us the Evangelical Alliance—you may not have seen this, it is a general point they make—"The apparent hostilities between the Commission and elected representatives in the province have weakened its effectiveness. The Commission does not present itself as underpinning the political structures, but rather as undermining them. Set up by the same Belfast Agreement that established the Assembly, this is an incongruous position of usurping the elected and representative political system that Northern Ireland lacked for so long. This is not a tenable position for the Commission to maintain." What would your observations be on that? What do you think gave them cause to say that to us?
  (Professor Dickson) My observations would be that I do not recognise the Commission from that description. To suggest that we are undermining political structures here is completely inaccurate. We have worked very hard to arrive at an understanding with the different political parties here. It has been more difficult in some quarters than in others. We have sought to engage, in particular with the Unionist parties, on human rights issues without for a moment sacrificing our commitment to the international human rights standards. Obviously because of the differences between the parties here on rights issues and in particular on a Bill of Rights for Northern Ireland there is a danger that whatever we come up with on the Bill of Rights may meet with opposition from one or more of the political parties. If the parties can arrive at a consensus as to what should be in a Bill of Rights for Northern Ireland we would be extremely pleased. If they can do that in conjunction with the Commission's process—of course we have a duty to give advice to the Government on this and in conjunction with the international experts and civic society we are engaging with—then so much the better.

  39. With regard to the international organisations, to whom did you look for an interpretation of your proposed Bill of Rights and why?
  (Professor Dickson) So far we have not completed this process. We have looked both to the Council of Europe's experts and to the Office of the High Commissioner on National Minorities. I should add we have also sent it to the United Nations in Geneva.

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