Joint Committee On Human Rights Minutes of Evidence

Examination of Witnesses (Questions 46-53)




  46. Dr McCormack and Professor Bell, thank you very much for appearing before us today. We understand that you were both appointed to the Northern Ireland Human Rights Commission at its inception in 1999 and that you have not seen out your term of office until 2004. You both resigned in September citing lots of reasons, specifically the Commission's inadequate powers and resources and other matters. We are grateful to you for coming to give evidence to the Committee. We have seen both of your letters of resignation and you both indicate dissatisfaction with the Government approach to the Commission and with the direction and strategies adopted by the Commission itself. What action do you think the Commission can take now, given its acknowledged constraints, to better fullfil that mandate to promote and protect human rights in Northern Ireland?

  (Professor Bell) Thank you very much for the opportunity to give evidence. I suppose in a nutshell it would be important for the Commission to recognise that there is a serious problem and to work to address that. We felt there was not that recognition, and that was in part behind our reasons for resigning. In terms of what should be done, we set out two sets of criticisms: criticisms external to the Commission, which the Commission cannot do very much about except lobby Government, and criticisms internal to the Commission. Our view would be that those two issues need to be addressed together. One without the other will not make the Commission into the body it is meant to be. It would be our view that the Commission needs external help in addressing its internal problems. I do not know if that is a sufficient answer at this stage.
  (Dr McCormack) I would add to that that we feel one of the ways forward—we are not being prescriptive about the way forward—in bringing those two issues together we think it would be useful for both Governments to have an external review process that brought together the responsibilities of the issues and the powers and resources together with what we consider the internal managerial problems of applying any powers and resources.

  47. Could you share with us any proposals you have made for action that the Northern Ireland Office could now take to better support the Commission?
  (Professor Bell) It would largely be in common with the evidence that was given before us. We think the Government should implement the Review of Powers document in full. It should also take steps to proactively support the Commission in terms of how it responds to hostile interventions in Parliament, matters such as Professor Dickson referred to as regards the appointments process. I think quite a lot of people have the view that the Commission itself made its own appointments because of the nature of the discussion around them. So that type of support I think is important. I also think that Government should look at the Commission as a friend in certain respects, particularly with regard to the Human Rights Act. There is a joint project of ensuring that legislation and policy are proofed and that that should be pursued by the Government as a joint project. The Commission is not an NGO.

  48. You just said there should be some external help or an external review, it could be said that the Commission itself has been over reviewed both under the Section 69 process, the Hosking Report and now, indeed, this Committee. What value do you think there would be in an external review?
  (Professor Bell) I think it is important that there is a review in terms of the Belfast Agreement, because the Agreement had a very clear vision of the Commission. There was experience, a very valuable experience, of SACHR. The Agreement stated that the Commission would be a body that went beyond SACHR and indeed in terms of the contribution to a UK-wide Commission that should be the focus for evaluation. There is a role for external review in terms of that specific audit to take place; but also one of the problems with the reviews has been that of implementing them. In fact part of the implementation of them has come unstuck because of some of the same issues that the reviews themselves have addressed. The Hosking Report is now quite old. We saw the Hosing Review although this came a little undone within the Commission, as part of the same process as the review of powers. The Commission's original idea was that as part of the review of powers process the Commission should review its own conduct and how it had used its powers. The Commission as a body signed off on that, but it was not implemented at the time and turned into a later review and not something that could be worked together with the review of powers. I think these two things do need to be worked together. An external review could have follow-through as regards implementation and also make sure that the seriousness of the issues was adopted by the Commission.

Vera Baird

  49. Your written evidence, if I can address you jointly on this, criticises the Commission's casework for a lack of strategy and says, "the Casework Committee is funded through solicitors with varied human rights experience to undertake a random selection of cases with no control over how human rights' issues are addressed at court". You suggest that there has been an inconsistency in decisions on which cases are to be funded as well as in deciding which track, ie whether to take a third party intervention to be an amicus or to fund a case separately as appropriate in each case. I wonder to what extent these problems are attributable to the lack of resources for funding cases, the lack of resources for staff time necessary, the lack of resources for in-house expertise?
  (Professor Bell) Many of them are attributable to a lack of resources but of course there are also Commission decisions. The casework budget was internal allocation and I do not feel, on reflection, that there was enough consideration within the Commission as to where the emphasis of its work should be. The division of the budget was not given to us, we created those divisions. I still feel that there is not the sufficient attention or implementation of strategic direction. In particular, and this is the thrust of our criticism of the Commission overall, it was not a case of did they choose this, when they could have chosen that; it was a case of were there integrated strategies for delivering change, of which casework was a part. For example on the right to life, which the Commission has presented here, something it has been working on for a long time: right to life issues were coming into the Commission through casework, they were coming in through the victims' group. The issue of right to life was coming into a lot of different arenas and instead of looking at how you would adopt an integrated strategy and what tools would be the most effective, there were periodic joint meetings that were not followed up, and there was no forum for discussion as to what that strategy might look like, or the communication implications for people who did not agree with the strategy. That type of holistic approach, to see how we could best use what powers and resources we did have to affecting some positive change, was really missing. I accept that in the early years that sophisticated type of strategy is difficult to get and it takes time. However, there was really no sign of that strategy emerging, or no real realisation that that was what the Commission had to move to.

Lord Lester of Herne Hill

  50. Powers. The need for more powers. Like the Commission itself I think both of you have said that you would like the Commission to have more investigative powers. I just want to suggest something to you and see whether you agree with me about this, there is no point in giving a statutory body powers unless, first of all, they have the will to use the powers and, secondly, they have the capacity to translate the powers into practical operation, that means that recruiting the right kind of staff, enough of them, training them and operating within a highly disciplined framework with leadership from top to bottom. It is easy for anyone to advocate more powers, do you really think that given the history of the Commission and the equality commissions that the Human Rights Commission or any conceivable human rights commission in Northern Ireland would be able to preserve those powers and implement them wisely? That seems to me to be a key question
  (Professor Bell) I will separate out this Commission from any conceivable one to answer your question. I think what you put your finger on was a dilemma for me which cut to the heart of my own involvement in the Commission because on the one hand, for an effective Commission it is absolutely vital that the powers and resources are there; but on the other hand, how you mount a credible lobby whenever there are issues as to how you have used your present powers and resources is very difficult and places you in a next to impossible position as a member of a public body. In terms of arguing for more powers, I think that it clearly has to be part of an integrated strategy. You have to be clear about why you want the powers. I do not think that was made clear that that strategy was there, or that even close to any vision as to how that strategy might work, was there. In terms of whether any conceivable human rights commission could use these powers properly, I was interested in your earlier point regarding use of investigative powers because I would argue that the powers very rarely need to be used. The experience in the South Africa Human Rights Commission and in Australia is that they very rarely need to use them because people know they have the powers and they do give over the evidence without going to court. I would not say that the fact that you do not go into court often means that they are not useful. It may be that the avoidance of court action indicates how useful they are. As regards whether they could be used credibly, I think an interesting example to look at is the Police Ombudsman Office which does have these powers and in contrast to the Commission, has very credibly used them. I would not agree with all of the decisions that have been made, but the Ombudsman has made a case in the media in the face of great hostility, she has acquired legitimacy for her office and this has often been shown, not just through the cases that she has been prepared to take on, but also through how she has dealt with the police themselves and complaints relating to them. I think those powers can be used credibly and effectively. I think they are an important part of the tools for a Human Rights Commission. I think they have to be used selectively and what is very important is that the case for using them needs to be built up. You do not walk into people's offices and get documents until you have exhausted all other possibilities. I would have concerns about capabilities of the Commission at the minute, to use them wisely.

Mr McNamara

  51. If I can put two points together and that will perhaps save time. In your submission to us in talking about international work you said talking about going to international bodies, "The one example of the Commission directly using international standards pressure to influence domestic practices has been problematic. This has been the Commission's involvement of a staff member of the Office of High Commissioner on National Minorities to endorse the use of the word `community' rather than minority. The Commission then interpreted this to replace the word minority in Framework Convention provisions with the word community, in a way which potentially placed equality issues and the consociational voting mechanisms of the Agreement in jeopardy". You heard me point that question specifically to previous witnesses, I wonder whether you can back that up in your example and say whether you feel that going to OSCE and the Office of the High Commissioner was the better course of action than should they have originally gone to the Commission on Human Rights and the Venice Commission? The second one again arises from matters which were said before, the SDLP said in evidence to us "We believe that a Bill of Rights could best be successfully negotiated by the representatives of political parties. We also believe that key social partners, including human rights groups, should also be included in these round table discussions." Do you accept what the SDLP has said, that the discussions and, main framework and the agreement should be taken out of the hands of the Commission and go to the political parties?
  (Professor Bell) I will answer the OSCE point and my colleague will answer the Bill of Rights point. I suppose my preference on the OSCE would have been that Commission had come to a clear view in its draft and then decided on how to consult on it. Really, and strange as it may sound this is not a criticism, there was a lot of trouble producing the draft Bill of Rights. It was very difficult and we ended up essentially rushing things to get some sort of document out because we were aware a lot of groups were waiting for a document before they would make submission. Some were submitting prior to a draft and some were waiting to see what we produced. I would share Professor Hadden's view that often it is not useful to talk about minorities, it is useful to talk about communities. There is consensus in the Commission about that. But when it turned into what the draft would look like, certain members of the Commission, and particularly Dr McCormack and myself, had concerns as to how that draft would play out in practice. One major concern was that the way the provision could be interpreted would have provided a challenge to the Belfast Agreement and in particular its consociational mechanisms. Although it was only a draft document and we did not think that any challenge would be necessarily successful, we thought it was quite serious for the Commission to put out a document that it was proposing should be the Bill of Rights, albeit a consultation document, which would undermine the Agreement when there was a lot of disagreement in the Commission as to how those provisions should have been drafted, and that is reflected in the fact that a number of options are given in that section. That is an indirect answer to your question. To get back to the point of how the Office of the High Commissioner was used, the advice given was really a fairly low key response saying, "oh yes, whenever you are incorporating the framework convention into domestic law you do not have to use the word minorities", which the commissioners were also in agreement with. It was not my view and in talking to the representative initially, (I am not sure where it is at now), he did not consider that he had made a very specific recommendation as to how that should be done. I think that the whole process has been problematic and obviously it is not resolved yet because there is now a position of further advice to be forthcoming. I would still have those concerns about the draft provisions of the Bill of Rights.

  52. Perhaps when that advice is forthcoming I hope we can get it.
  (Dr McCormack) If I can deal with the Bill of Rights issues, I share the concerns outlined by Professor Bell in relation to how that advice was being interpreted, I was concerned they would undermine Fair Employment provisions. The reason I am bringing those issues out is, in a sense, it goes on to the proposal from the SDLP, it seems Professor Bell and myself, and indeed many others, have a unique opportunity that the debate and process round the Bill of Rights can help shape and implement the ethos and value of the Good Friday Agreement. It came about by inclusive round table engagement and it seems to us that we need to stand back now. We believe that the process has been damaged by the Commission's own development. We think they have done very well in opening up the debate on the ground, we think the process of engagement has been disastrous and we are also very clear that there is a willingness amongst a number of political parties to recognise they have to accept responsibility. We summed up how we would see it and, in effect, that in terms will deal with the SDLP proposal. I do not think this is a question of a turf war, taking away things from people or grabbing it or owning it, it is about something broader and deeper. How do we create an ownership of the debate round a practice of rights? How do we enable nationalism and unionism to engage in that debate, not in terms of defeating each other but to find some form of compromise? How do you input into that context international standards as a way not of the lowest common denominator but of getting a compromise which is based on human rights standards. That is one problem coming out of our conflict resolution that we have a responsibility to deal with. The other issue is how do you deal with the silent voices who are struggling to get means shaped into rights—my own passion? How do you get those perspectives heard and how do you get that to intermingle? We helped to design, we proposed a process within the Commission when it was clear that the hostilities and division between political parties to our draft document was coming from all sides. That we designed a process where political parties would be asked how they would see the process move forward. A number of political parties came back to the Commission, specifically the SDLP, and said they wanted time to think, as did David Trimble. The SDLP said they saw it as their responsibility to try and engage with unionism and nationalism and to move forward. My view and Professor Bell's view is that there is a current talking process going on, both Governments are engaged in that and it is extremely important that the political parties have begun to open the process of debate as to how this issue be addressed and that they should be given every support to do so. Secondly, we are saying we deeply encourage, in fact pressurise for such a debate, such a forum should include civil society at the table together so when issues come unpicked are not unpicked in terms of identity but they are unpicked in terms of values. In a sense the process itself helps to shape the outcome. Now the fact that some of the political parties are articulating that is extraordinary helpful. We do not regard that as undermining the process of the Good Friday Agreement; we regard that as beginning to help to implement it and we strongly support it. We think such a process would benefit from an independent, international chair who has some stewardship record in human rights and would have skills and facilitation and a secretariat who would unpick the issues and present them in a manner people can deal with. We think that kind of process, that kind of forum would be an enormous benefit that would not take away from the Human Rights Commission. What it means is that such recommendations would come back to the Human Rights Commission and when brought together in such a forum it would become their consideration as to how they give advice to the Secretary of State. It is not a question of taking it away, it is a question of recognising the opportunity to create consensus.

Lord Lester of Herne Hill

  53. Can I ask Dr McCormack and Professor Bell, does the view that you need external help, transnational help, gain further support from two things? One is that looking at the Bill of Rights for Northern Ireland has north/south and east/west implications across the two islands, it is not only confined to this part of the two islands. Secondly, that in light of the debate about the future constitution of Europe in relation to the Charter of Fundamental Rights and the economic, social, civil and political parts of that, it is very hard to imagine this project succeeding if it is looked at exclusively through Northern Irish eyes?
  (Dr McCormack) It is exactly that. It seems to me that the benefit international attention has brought to conflict resolution, is that it moves from being singular to being resolvable. That is what the international pressure helped it to produce in context of the Good Friday Agreement. We believe in bringing in those issues around economic and social issues and in fact the fundamental charter debate benefited from that process, that round table process, so we see bringing those issues in to help define the particular circumstances of Northern Ireland. We see the interaction between a civil society and a political party process as extremely important in order that that definition would learn how to include, if you like, the excluded, but not just by virtue of their identity. We see it as extraordinarily hopeful that the political parties are beginning to consider that in the talks process.
  (Professor Bell) I would entirely agree with your point, there is a larger debate going on. We are all grappling with some of the same issues, the division between rights and political powers. These are not easy issues in a Northern Ireland context. I do not think it is so different elsewhere. There is a particular responsibility not to set up those debates in ways that divide people. How you frame the debate is crucially important. If you ask it as, do you want this or that you push people into camps around polar opposites. Part of our concern about how the process would continue is that you find a way to frame the debate that does not pit people against each other. I would welcome unholy alliances, I think we need more unholy alliances. These issues cut across politics, across the sectarian division, in all sorts of interesting ways. That is a positive, constructive way forward for Northern Ireland. It is a type of values debate that up until the Belfast Agreement we did not get to—we did not have the capacity to have openly. We would see the process as being as important as the end document, and the end document only being as good as the process.

  Chairman: Thank you very much, Professor Bell and Dr McCormack. As you can imagine we would like the opportunity to go on and talk to you for quite some time, as indeed your former colleagues. We are under considerable time constraints today. Thank you much for appearing before us to give evidence.

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