Members present:

Lester of Herne Hill, L. Jean Corston, in the Chair
Parekh, L. Mr Kevin McNamara

Whitaker, B.


Memorandum submitted by Northern Ireland Office

Examination of Witness

MR DESMOND BROWNE, a Member of the House, Parliamentary Under-Secretary of State; and MS KIRSTEN McFARLANE, Head, Human Rights and Equality Unit, Northern Ireland Office, examined.



  1. Welcome to this meeting of the joint Committee on Human Rights. We welcome you in your ministerial role and also as a former member of this Committee. Perhaps you would like to introduce the member of staff who is with you today?
  2. (Mr Browne) Can I say it is a pleasure for me to be here today, given that I had the honour to serve as one of the first members of this Committee, and I am particularly pleased to be here. This is my first ever appearance as a Minister before a Select Committee. I am joined today by Kirsten McFarlane, head of the human rights and equality unit in Northern Ireland, and we shall endeavour to assist your inquiries.

  3. Could I ask you a preliminary question as part of our inquiry into the Northern Ireland Human Rights Commission? When we met them earlier in the year in February we did promise that we would take evidence from them subsequent to the publication of their annual report, and we are very pleased you have come to see us today, but how would you measure the success of a Human Rights Commission?
  4. (Mr Browne) I think as you know and your Committee will know human rights are central to what we are trying to achieve in Northern Ireland and to the Belfast Agreement, not only in the sense that there is a Human Rights Commission, and, indeed, the creation of that Human Rights Commission has its roots in the Belfast Agreement and not only the proposal for a Bill of Rights which also has its roots in the Belfast Agreement instructing that Commission to give us advice in relation to that, both of those are very important to the promotion and protection of human rights, but the other institutions in Northern Ireland have as a central theme running through them a culture of rights. Our view is that, since the Belfast Agreement and the institution of those institutions, although the two important institutions are at the moment suspended for reasons which I think are well known to the public, we believe we have come a long way towards creating a strong culture of human rights in Northern Ireland but we are also mindful of the fact that there is a lot more to be done, and the Commission makes a significant contribution to that. It has incomplete work in relation to the Bill of Rights and it is a very difficult and challenging task that it has to give advice to the government and to bring forward that advice in a way in which it is supported and has ownership by the community of Northern Ireland which is a divided community. It is a particularly challenging and difficult task. I have to say, and I say this at the outset, people are very quick to judge the work they are doing in relation to that, and I think one ought to be careful about judging that because it is incomplete work. My view is that they have taken on that challenge which is a very difficult and unique one very bravely and we are to be judged against where we were rather than where people think we should be going in terms of that work. They also provide a valuable source of advice and guidance to the government. I have to say they will say it is not always advice that we take but that is the nature of the relationship. It is a dynamic one, as I have said on a number of occasions publicly and very recently publicly: we expect to be challenged by them and they do challenge us, and I suppose it is a healthy relationship that they think we do not always rise to the challenge they generate. Our view is, and I have again made this clear in response to their annual report, that they make a significant and important contribution but I think people have to understand where we have been in Northern Ireland and where we hope to get to and understand the perils along that road, and I do not think either the government in relation to its workings with the Commission or the Commission in relation to it working with the community in Northern Ireland ought to be judged against the objective as opposed to against what we have managed to achieve in the time since the agreement.

  5. It is evident to me that you, if not an enthusiast or a supporter, do see the importance of a Human Rights Commission in Northern Ireland and would, I think, wish them fair weather. Do you think that enthusiasm is shared by everybody in Northern Ireland? Do you think they all want it to be a success?
  6. (Mr Browne) I think everybody in the Northern Ireland Office takes their key from the minister who has responsibility in the sponsoring department for the Northern Ireland Human Rights Commission. I am more than satisfied with the service I get from excellent officials in relation to this work. It is of the nature of the work we do and in particular since there is no template, as the minister for human rights, as the minister for victims in Northern Ireland I was not able to take a book off the shelf and say, "This is how one does the job". I think it is of the nature of that and the divided community that is emerging from conflict that some people are going to want to move at a different pace than others, but in the context of the greater political process we have in Northern Ireland I think people have to understand that sometimes we have to mark time and allow other people in the community to catch up with us, so that the community moves at the same pace and that we do not leave people behind. I think that is a difficult task and there has to be a balance. We try to apply that balance in a fair, honest and transparent fashion. We are not surprised that we get criticised and sometimes from both sides, but that is the nature of the territory, and I think there are some people in this Committee who have a degree of expertise in Northern Ireland politics and they will know fine well that traditionally the Northern Ireland Office is a whipping boy for everybody in Northern Ireland as far as almost every area of social policy is concerned. My experience as a minister is that a lot of that criticism is misplaced, and just as I on occasions defend the Northern Ireland human rights committee when I think the criticism is unfair, I shall defend my officials when I think the criticism is unfair too.

  7. In response to the Commission's report under section 69 of the Northern Ireland Act, the Northern Ireland Office Office noted that the Northern Ireland Humans Rights Commission was one of several bodies with human rights responsibilities in Northern Ireland. In view of that, do you think there is a unique role for the Human Rights Commission in Northern Ireland?
  8. (Mr Browne) It is a very difficult question, I think. I try not, and indeed in the short submission we gave the Committee we deliberately avoided this, to be drawn into qualitative judgments about the Human Rights Commission in the sense that I think they are better left to other people to make, and in particular in relation to my unique role as the minister for human rights in Northern Ireland, I think it would be unhelpful if I was to express opinions in some areas. In answer to the first question, I said that we are trying to create a culture of human rights in Northern Ireland right across the board, so it is implicit in that that all the institutions that are being created under the Good Friday Agreement and that are part of the process of peace in Northern Ireland have to make some contribution to that culture. The particular role that the Commission plays I think, which is unique, is that it uniquely has the duty to advise in relation to the question of the Bill of Rights so it is charged with that responsibility. It has I think by its nature and by the nature of the talents that are brought together in the Commission, and the resources that it has, a unique role in advising in relation to human rights across the board and should be of assistance to some of the other institutions in terms of giving them advice. While it is not the only source of advice about human rights, I think if it has to any extent a unique role, then that is it.

    Baroness Whitaker

  9. It is very nice to see you again - even if it is not alongside. You refer to the role of the Human Rights Commission in giving advice and guidance to government. How do you see it as providing that service in effect? What are the forms of advice and guidance to the governance that the Human Rights Commission might give?
  10. (Mr Browne) I have a copy of the 1998 Act at my hand here but rather than bore you with reading out what is in there there is some guidance in the provisions of the 1998 Act and indeed the schedule to the Act as to the role of the Human Rights Commission. As a matter of fact, it is a matter for the Commission to decide itself what its programme of work is over the course of the year and it does so, and where it chooses to investigate or to report then its advice is heard and listened to by government and I have certainly found its annual report a very valuable tool in relation to some issues. With reference to that I can very quickly point to the areas in which they have sought to carry out work, and in addition to that it is always consulted - consultations of which the Northern Ireland Office carry out a significant number in relation to legislation.

  11. Do you think there are ways in which you could make better use of the Commission's advice? For example, in relation to legislative scrutiny, I believe they said to us they were not always consulted on legislative proposals in time? Am I right?
  12. (Mr Browne) I have to say in my limited ministerial experience in Northern Ireland there is a constant criticism of the length of the time given for consultation. I am in the unique position in relation to some of the areas where I have responsibility, say, for example, criminal justice or electoral law - and I am thinking particularly in relation to the Criminal Injuries Compensation Board - I have a duty to consult with the Assembly although the ministers that are directly responsible to the Assembly have no executive powers in this particular area and in a number of areas there is a formalised consultation built into the 1998 Act with the Assembly. It is unique in my experience and I as an executive minister accountable to this Parliament have a formal requirement of consultation with another legislative body that I have no accountability relationship with. That is not, in fact, in my experience the limit of the amount of consultation that goes on in Northern Ireland. There is an extensive amount that goes on with bodies, including sometimes pre legislative consultation and pre publication consultation with political parties in Northern Ireland about proposed legislation. So there is quite extensive consultation that takes place in Northern Ireland in relation to policy decisions by the government, particularly if they are likely to be reflected in legislation. Constantly parties complain that there is not enough time for those consultations but sometimes the necessity of complying, for example, with requirements in relation to a European directive or some other compulsifer limits the time we have. I have heard from the Northern Ireland Humans Rights Commission that on occasions they have had insufficient time to deal with legislation or been insufficiently consulted in relation to that, and we endeavour to take that into account and to improve our capacity to consult with them and others as we proceed.

  13. So you are saying, minister, then that it is routine to consult the Northern Ireland Humans Rights Commission about legislative proposals?
  14. (Mr Browne) I cannot think at the moment of any particular piece of legislation that we ought to manifestly have consulted with and that we did not consult with them on, but if somebody can point out to me some area where we have been remiss I will be content to try and deal with it. Mr McNamara is about to do that!

    Mr McNamara

  15. I would not accuse you of being remiss but I think when the emergency legislation was pushed through after September 11 and other matters which they felt specifically affected rights in Northern Ireland and elsewhere I believe they were saying then they were not consulted, but that is before you were there.
  16. (Mr Browne) I am not so sure it was before my time as a minister. I take on board what Mr McNamara says but I do not think that was the Northern Ireland Office's responsibility.

  17. But they are the human rights organisation for Northern Ireland?
  18. (Mr Browne) Yes. I think there is a legitimate point to be made that the fact that there is a Human Rights Commission in Northern Ireland is not always uppermost in the consciousness of other departments who work principally in other parts of the UK, and I think it is part of our responsibility to ensure that other departments are aware of that dimension to the institutions of Northern Ireland and to that extent, if we have been remiss, then I accept the criticism as far as we are concerned, but we learn all the time and we learn from our mistakes as well as from those things we did correctly.

    Mr McNamara: I was not saying you were remiss.

    Baroness Whitaker

  19. On that aspect, I think you said there was a good human rights culture within the Northern Ireland Office. Could I ask you then whether legislative proposals are scrutinised by your officials for compliance with human rights standards - all of them, the Human Rights Act, the relevant UN conventions?
  20. (Mr Browne) Yes. I can certainly say from my experience, and I have been responsible for I think quite a lot of legislation in the short time I have been a minister, a particularly large Criminal Justice Bill, Electoral Law Reform Bill and reform of the Criminal Injuries Compensation Board, not to mention a significant number of orders, and we are very conscious to ensure that the provisions contained in them are compliant with human rights standards. I have to say that sometimes the view that we take is not necessarily a view that is shared by others but we are always ready to defend the view that we take and to argue why we have come to that conclusion, and indeed consistently in relation to the Criminal Justice Bill I was engaged in six debates but I think we are always in a position to put forward robust arguments.

  21. So the matter of compliance is covered in the advice you receive from your officials about legislative proposals?
  22. (Mr Browne) Well, it is built into it.

  23. Finally, on the memorandum of understanding which we were told was being prepared between your office and the Commission, how do you see that this will help co-operation between your office and the Commission and what practical impact do you think it will have on your modus operandi?
  24. (Mr Browne) There has been some criticism, and I am sure you have been treated to at least some expressions of it, of the historic relationship between the Northern Ireland Office and the Human Rights Commission. My observation is that as one would expect that relationship has improved with time as people have got to understand each other better, and that recently it has improved. I am not saying it is perfect but it has improved and one would expect it to be improved, and I do not claim credit for that - I think that is the normal outworking of a relationship of this nature. The memorandum of understanding which has been in negotiation for a specific period of time and is not yet agreed I think will give expression to that experience and give a degree of certainty to the relationship so that when personnel changes, as it does in the Department and necessarily will in the Commission, people will understand where the parameters of responsibility lie and they will have reasonable and transparent expectations of each other. I would like to see that memorandum of understanding concluded and in force but as usual things are never as simple as that. We are unfortunately in a situation where the consultation in relation to the powers, effectiveness and structure of the Northern Ireland Humans Rights Commission is at consultation. Now, the consultation ought to have been concluded in August but some very important stakeholders had not responded to that consultation by then, and unfortunately in present circumstances are not in a position to respond, so that consultation process cannot be concluded in the meantime pending the re-instatement of the institutions of devolution. There is a dynamic between that and the memorandum of understanding because it covers more than finance, and in particular some of the recommendations in my view that have arisen from the Commission's recommendations in Section 67 would be better reflected in a memorandum of understanding than in the legislation, and we want to try and bring that to a conclusion in some sort of coherent fashion. Obviously that will depend on the workings of the political process in Northern Ireland and we keep an eye on that, but I think the simple answer is it will give a transparency to the relationship which will allow people to know with some certainty where they stand, and what their expectations can be.

    Lord Parekh

  25. Minister, I want to pursue with you just a little of this whole question of allegation of bias levelled against the Commission. No Commission is perfect and certainly in a divided society like Northern Ireland, as you were saying earlier, some kind of allegation of bias is bound to be expected but here there seems to be more than its fair share. How do you account for this? I am not just talking of institutional bias that you would expect in any Commission concerned with human rights, because if you are going to be concerned with human rights in a divided society naturally some communities might feel that the Commission is institutionally rated against them, but here the bias seems to arise out of the perceived allegiance of members of the Commission. You are in charge of these members. How do you answer the criticism?
  26. (Mr Browne) The provisions of the Act require the Secretary of State to ensure that the Commission is, as far as practicable, representative of the community of Northern Ireland as a whole. You can be absolutely ridiculous about that and suggest that the only way you can achieve that is to appoint everybody a Commissioner because that is the only way of ensuring it, but we do not interpret that particular requirement as meaning that the Commission has to reflect every single point of view. Obviously "as far as practicable" must mean something, and it means apart from anything else I think the size of the Commission and at present we have a Commission which we think after some experience is an appropriate size, and we endeavour within that very obvious restriction to ensure that the Commission is representative of the community of Northern Ireland as a whole, bearing in mind the Paris principles which set out some guidance as to how that could be achieved in terms of representation, although there are no parliamentarians on it. So we have in the Northern Ireland Office, and the Secretary of State has come under some criticism, a failure to achieve that objective, and I think as with all the areas of argument in relation to human rights that we engage in we have I think robust arguments as to why we have done the best we could with those people who are qualified to do the work and who applied for the job, given the constraint and the numbers, and we are satisfied - at least we were until the recent resignations - that the Commission was representative, but if there is a distortion in the Commission at the moment in terms of representativeness then that has been created by the resignations rather than by us. So when we start with that level of constant criticism and it persists, although it is more muted now than it has been in the past, then it is inevitable that people will come to the view that no matter what that Commission does it is biased in one way or another, and I am afraid we cannot do very much about that other than ask people to look at the work and judge the work on its own merits rather than against some perception as to the value of the representation of those who did it. My personal answer to your question is that to understand why there is this constant criticism of bias one has to understand the immediate past history of Northern Ireland over the last thirty years and the important role that those who have argued for human rights have played in relation to the politics of the thirty years of conflict. Whether they have wanted to or not they have been very closely associated with one side of the argument. They have constantly argued that human rights is universal and for everybody but that has not been accepted by some other people. There are two consequences of that: one is that the whole issue of rights is identified as being in the ownership of one part of the community as opposed to another when it is not but secondly, and just as important, is the capacity of one side of the division to be able to engage in debate in a meanful way in relation to these issues and concepts and I think part of the role of the Human Rights Commission is to help to build the capacity of the whole of Northern Ireland to engage in issues of rights, so that people will understand that it is for everyone and there are not seen to be concessions to one side or another. So you will constantly get arguments in Northern Ireland that issues to do with rights and policies to do with rights are concessions to the nationalists or the Republican community. It is no answer to say to people that rights are universal, and everybody gains. You can only answer that when you can engage with those people in a debate and list the vocabulary and the importance of rights in which they feel they are playing an equal role, and that is a part of this progression and dynamic that I talk about. We need to bring people on with this so they can with confidence engage in this debate.

  27. The Commission will not be able to function unless it enjoys popular legitimacy, and it cannot do that unless different communities have confidence in it and its impartiality, so the question is not only who is there and whether they are representative of point of view or not - although that is important - but also whether they are able to function impartially and effectively. So even if a community might feel it is not represented on the Commission, it at least has the assurance that the Commission functions effectively and impartially. What do you think needs to be done to make sure that this reputation is not dented, as seems to have happened, and does the Parliament or this Committee have a role?
  28. (Mr Browne) I think I have a role to play in that. I have endeavoured in the time I have been the minister for human rights to engage in public discussion and to encourage public discussion which facilitates people to engage I think as equals in this debate. But the Commission itself in my view has a role to play in educating and encouraging people to engage in the debate and to prove their capacity to do it, and that is only way I can see it that we can take this forward. There is, of course, the fundamental problem that if, for example, an organisation like the Northern Ireland Humans Rights Commission explicitly supports the Belfast Agreement, which I suspect they do although I am trying to think if they have come out and said so but if they do, in Northern Ireland because of the nature of the society then a significant proportion of the community will then say, "Well, they do not represent us and anything they say, if it is in support of the agreement which I support, they will immediately reject". I think these are issues which cannot be resolved in the short term and if you take a snapshot of opinion in Northern Ireland, then in my view what you get is a distorted view. What you have to do is you have to understand where we have been and where we have come to and look at the progressive engagement of people who before would have rejected arguments about human rights in these arguments now, and we have come a significant way. I would venture to suggest that the substantial majority of people in Northern Ireland now have far more interest and understanding in human rights than before the Belfast Agreement. We have still a long way to go and we have all got a role to play in that, but equally those who just reject out of hand anything in the rights or equality agenda as being a concession to the Republicans or Nationalists have a reponsibility themselves. We all have responsibilities but we are very mindful of it, and in my ministerial experience in Northern Ireland I face this challenge every day.

    Lord Lester of Herne Hill

  29. Minister, if I can ask you about the powers of the Human Rights Commission, if one looked at the powers, for example, of its sister or brother organisation, the Equality Commission, it is clear that it has powers, for example, to investigate, to compel the disclosure of information, to bring strategic law enforcement functions like judicial review, to act as a amicus, a friend of the court, and to assist test cases. All of those powers are pretty clear, either on the face of their statute or otherwise, and I have two particular questions. First of all, do you agree that the Human Rights Commission should be no less powerful in those respects than the Equality Commission? Secondly, do you agree in any event that the powers need to be clarified by statute in view of the uncertainty and controversy there has been in the recent past about the powers? Do you, first of all, agree that they need to have effective powers, resources and all the rest of it to do strategic law enforcement, to bring test cases, to investigate, obtain information, make reports, and bring judicial review proceedings as part of their functions, as does their sister organisation the Equality Commission? If you do not agree, why not? If you do, could that not be clarified?
  30. (Mr Browne) It is not just as simple a question as it appears, and I suspect you do not think that it is. They may well be sister institutions and certainly to the extent that the paragraphs that referred to them in the Belfast Agreement follow each other they are in the same chapter and belong to the same family of institutions in Northern Ireland. They do distinctly different things and certainly in my experience I was not a party, other than in the sense that I was a supporter of the government and I am now a government minister, to these discussions but those who were and who still survive in the on-going discussions and talks that we have periodically, and indeed are going through at the moment are very clear to me from all parties that they are two distinct organisations with different functions, and consequently they would argue - not all of them but some of them - that because they have different functions they need different powers. Without going into all the detail of what the Equality Commission does particularly in relation to the other European directives and other functions that it has which I am sure you know about, the actual powers that the Commission has are set out in the 1998 Act and the provisions of the 1998 Act and the schedule to the Act and they were intended to be a reflection of the terms in paragraph 5 of the right safeguards and equality of opportunity section of the Belfast Agreement. Now, as part of the statutory framework, the government built into or Parliament built into the Act a provision requiring the Human Rights Commission to keep under review the adequacy and effectiveness of functions conferred by part of the Act, among other things, and to report, and it has done and the government has responded, and to the extent that the consultation document which was published in May 2002 responds to those recommendations, that reflects the government's thinking in terms of powers. But that is not a concluded view. It is at consultation at the moment and if you do not mind, in the process of consultation, I would rather not give you snippets of what ministers may be thinking. At the end of the day we will report on that. What I can say to you, however, is that the government's view as at May 2002 was put into the public domain and coherently argued, although people might not agree with it. The Commission has been hampered in what it has done by interpretation of its powers which has been unduly restrictive and this Committee will know better than most that the government supported them to the point of appearing in the House of Lords appeal to argue that the proper interpretation of the Act allowed them to appear amicus. That appeal was successful. Now, it was argued that we should change the Act to reflect that but our view was we did not need to - they had the power anyway. They also have the power to take judicial review proceedings in certain circumstances and I think they have the power to support test cases, and have done. The annual report shows that they have taken forward cases, so they have quite extensive powers, and in my view the question is whether they should have the further specific powers that they ask for in the report to government and which are dealt with in this consultation. I think there is a debate to be had as to whether or not those powers are consistent with other functions they need to serve, and we can have that debate in the context of consultation and at the conclusion of it.

  31. Could I say, first of all, that I am sure it is very welcome to all of us that you have not closed your mind to these issues under Section 69 of the review but would you bear in mind in coming to a conclusion that both the Paris Principles and the powers of other Human Rights Commissions that have been looked at by this Committee and elsewhere in the world are certainly more extensive than the powers that the Commission at present have, and could you give us an indication of when the government will reach a concluded view because it is relevant to us in our wider report on whether there should be a Human Rights Commission generally?
  32. (Mr Browne) I will, of course, take account of those markers that you bring to my attention and I will ensure that the Secretary of State does too when it comes to making decisions, but I might say that not all international experience transports well into the context of Northern Ireland's community emerging from conflict, and there are other issues in that context that we need to take into account, and I am sure this Committee understands that. That is why the Bill of Rights instruction constrains the Commission to take into account the particular circumstances of Northern Ireland, although they might not be unique but they are particular, and we will take those things into account. I think there is a debate to be had, and maybe this is not the right place to have it, about the interpretation of the Paris Principles in relation to investigations as to whether it implies these powers or not, but we will have that debate and I have no doubt in terms of consultation people will put forward arguments and we will look at them.

  33. Could you give us some indication of time?
  34. (Mr Browne) I did earlier, haltingly, explain, I think, that in relation to that particular consultation some important stakeholders are disabled at the moment because of suspension from responding to consultation and we just have to concentrate on seeking to restore devolution to Northern Ireland first and then, because the exercise of these powers will have important implications for others. For devolving institutions, the exercise of these powers recommended by the Commission. I think it is important that we get a view from several institutions of devolution in Northern Ireland, so at the moment I cannot give an indication other than to say that the statute still requires an election to the Northern Ireland Assembly on 1 May.

    Baroness Whitaker

  35. This is a question on the UK more than Northern Ireland. As you know the relationship between an Equality Commission and Human Rights Commission is a live one in the UK dimension. In Northern Ireland, would you see any particular advantages or objections to a merger of the Equality and Human Rights Commission?
  36. (Mr Browne) There would be vociferous objection to it in Northern Ireland.

  37. Either way? Equality and human rights, or human rights and equality?
  38. (Mr Browne) I do not think it is by accident that there are two separate provisions in the relevant section I have already referred to of the Belfast Agreement for the creation of a new institution in the form of a Human Rights Commission, although to some degree they have a forerunner in SACA although it was an NGO and not a statutory institution like this, but it was not by accident that these two issues were separated from each other and two separate institutions were proposed. There is a very clear view in the minds of many in Northern Ireland that these are two separate issues and need to be pursued and supported by two separate institutions. Now, that may not be the case in the longer term - I do not know - it depends how Northern Ireland as a community will develop, but I do not think there would be any argument. It would be maybe overgeneralising to say from any source in Northern Ireland that we should be conjoined. I do not know if you have heard any such arguments from anybody but I have not heard that, and if it has been made then it has been drowned out by the others who have said keep them separate from each other.

  39. There is a general concept that equality is a human right rather than the other way round, even though it may be the most important human right, so it should be possible to think of a structure which would bring the two together such that all human rights were covered including equality in a clear way. Would there be fundamental objections to that?
  40. (Mr Browne) I think there would be in Northern Ireland as at present, yes.


  41. I think you have answered that.
  42. (Mr Browne) I think the view is that the equality agenda is one which requires Northern Ireland because of its immediate past history a particular exclusive attention.

  43. Anybody who looks at this Commission cannot fail to notice the disparity in funding between bodies like the Equality Commission and the Northern Ireland Humans Rights Commission which is expected to fulfil a huge range of responsibilities on three quarters of a million pounds a year. Now I know in the last year they have had 1.3 million but that is because they had to come cap in hand to the Northern Ireland Office, and it is a bit of a waste of time and effort making applications for particular funding. In my view, looking at some of the correspondence, it seems to give the Northern Ireland Office an undue opportunity to decide whether such funding is appropriate and thereby compromises the independence of the Commission if the Northern Ireland Office can be the arbiter of whether or not a particular line of inquiry or course of action is appropriate. Could you comment, please, on whether it would be more appropriate just to give them an increased budget, certainly not as big perhaps as the Equality Commission but perhaps approaching that, and trust them to get on with the job?
  44. (Mr Browne) Certainly at the time I have had ministerial responsibility for the Commission I have not been aware that we in the Northern Ireland office, either myself as minister or officials, have been doing anything which has in any way interfered with the independence of the Commission. The statutory structure is that they are funded by grant in terms of a provision of the 1998 Act. I, again, was not privy to the discussions that fixed the grant for that first year and which was on-going for a period of three years of I think a co funding of 750,000. I have to say I am not able to uncover any empirical calculation that arrived at that figure. The only comment I can make about it is that it was three times the funding of SACA who were an NGO but had different functions. They have only in one year, 4, had to survive on funding of three quarters of a million pounds. Indeed in the first year, which I think was a fat year, they got 928,000 and they have had 1.3 and 1.2 million respectively, otherwise in 2000 and 2001 their funding totalled three quarters of a million pounds. Although there were bids I understand in the Northern Ireland Office for funding, those bids were not processed until the next year. I have been discussing this very issue with the chief Commissioner and the chief executive and what they seek is sufficient funds and any degree of flexibility within that funding to enable them to respond to things as they arise over the course of the year. Consistent with my responsibilities as the minister responsible in the supporting department to account for public funds. I have undertaken to help them to try to achieve that objective but I do also have responsibilities to account for public funds. Now I have to say, without going into the detail of the correspondence, and if your Committee has access to the correspondence you will see the extent to which my officials have gone to try to assist bids for particular projects, I am not aware of a large number of bids for projects being turned down - indeed, I think we answered that question in about July in the House of Lords and set out the history of those bids that were not fully funded for particular projects. I am anxious to allow the Commission to carry on and do its work independently reacting to contingencies as they arise over the course of the year, but also bearing in mind my responsibilities as the government minister to be able to account for public funds. I am conscious of this point but I have to be candid with the Committee and say that there is not a long history of requests by the Commission for funding to do particular things which were turned down out of hand, and have been turned down in an arbitrary fashion. We have sought to get from them business plans that explained what was going to happen to the money.

    Mr McNamara

  45. That last question leaves a lot to be pursued but if I could turn, minister, to the question of the Bill of Rights, as I understand the situation this matter is now being discussed in the talks about the Agreement and about its implementation as part of the on-going discussions for the reintroduction of devolved government. Can you tell me what attitude Her Majesty's Government is taking to the suggestion that the political parties themselves should play a more effective role in the creation of a Bill of Rights, and take it more into their possession?
  46. (Mr Browne) At the moment my position is that, as a minister in the Northern Ireland Office, I await the concluded advice from the Northern Ireland Humans Rights Commission about the making of the Bill of Rights for Northern Ireland. They are charged with the responsibility of giving that advice to the government by the Belfast Agreement, and in my view those of us who support the Belfast Agreement ought to be consistent in our support across the board and allow them to get on with the work. So that is my position. You are quite right that among those issues which parties brought to the talks that are going on at the moment is the human rights and equality agenda, and as a subdivision of that there is reference to the Bill of Rights. I have not heard anybody suggest that it should be taken from the Human Rights Commission and I have certainly not argued for that, and as long as the Belfast Agreement is in its present form then it seems to me that it is only consistent with the agreement to leave the job where it was put by a multilateral agreement that has an international aspect to it. Now, there may well be some frustration by certain people in Northern Ireland about the pace at which this work is being done. That seems to be a function of a number of things, not the least of which is the capacity of the community in Northern Ireland to engage in a debate about this, but the most important reason is because of the complexity and difficulty of the issue. It is a very complex and difficult issue, and I would much rather that the Human Rights Commission took their time with it and got it right and was satisfied that the advice they were giving us about this important issue was owned by and supported by the people of Northern Ireland than that it was given to somebody else because they were not moving quickly enough, and worked through. But these issues, of course, are due to be put up on a list of issues that people want to discuss, and no doubt will be looked at in the context of the talks. But I cannot make my position clearer and I have made it clear on a number of occasions publicly in Northern Ireland that this is a job in terms of the actual agreement for the Human Rights Commission.

  47. This is not a question of the pace, as I understand it, but of the method being followed in the carrying out of this work by the Human Rights Commission, and in particular in seeking as the Evangelical Commission put it to undermine the Belfast Agreement rather than working with and seeing itself as a result of the Belfast Commission.
  48. (Mr Browne) I am sorry to say that this is a bit obscure for me, Mr McNamara. I do not understand what that criticism is. Can I say that from my point of view, as the minister, when the consultation document was published, I quite explicitly stated that I did not see it as part of my job to engage in the consultation process. However, what I did was I wrote an article which was published I think in both the Irish News and the newsletter with the intention of getting as broad a readership as possible, encouraging the people of Northern Ireland to engage in the consultation process. Subsequently I think on 22 November I wrote to Brice Dickson as the chief commissioner a letter, which I am sure you have a copy of because it is in the library of the House of Commons, saying that while I did not want to try to shape the nature of the advice I wanted to encourage people to engage in discussions about certain issues of principle which I would be interested to hear comment on, and on which I would like to help form the advice. It was a very carefully worded letter that engaged in some discussion that allowed me then - and it was perfectly open and I explained to the Commission what I was doing by explaining it to the chief commissioner - to engage with the very people that you think or it is being suggested should be involved - that is political parties - to encourage them to become involved, and I opened my door to a number of NGOs and political parties to discuss the issue in the context of my letter. I have to say that that did encourage a number of organisations to become involved. If you ask me was it outstandingly successful with political parties becoming involved in the consultation I would have to say I do not think it was. Now, you can take a horse to water and I am not that sure, to be honest, that if one asked the political parties to take responsibility for this, that would necessarily engage those people, whom I perceive do not want to engage at the level of debate that some of us would wish them to, in the debate about this particular issue. If that is a function of capacity then it is a function of capacity; if it is a function of willingness, then it is a function of willingness, but it may just be a reflection of where Northern Ireland society is. I think people sometimes just have to say, "Well, that is where we are in this process and let us take time to get it right", rather than saying, "The shape of this consultation is wrong", or finding some other reason. It is maybe just that the people of Northern Ireland are not yet ready to conclude this process and, if they are not, then the rest of us who are anxious to get it concluded in a particular way maybe just need to wait for them to get the capacity to engage.

  49. It is my understanding that the political parties, or certainly a couple of them, want this to be a central feature on the future of the human rights agenda and the Bill of Rights within the talks taking place at the present time, which would tend to suggest that when you opened the door some of them were willing to put their heads round and do something about it. But it is also a concern that a Bill of Rights might undermine some of the main provisions and understandings of the Good Friday agreement which they are most concerned about - namely the equality agenda, the parity of esteem agenda, and some of the legislation like third employment and parity of the various legislations for equality within departments, and for recruitment to the police.
  50. (Mr Browne) Of course I accept that these are complex and difficult debates. At the heart of this proposal for a Bill of Rights there lies a great challenge for those of us who believe in rights and think that rights can contribute to peace, and I think there needs to be a debate about this. In Northern Ireland we have a devolved administration who are responsible for socio economic policy. A Bill of Rights as it is presently envisaged would be enacted by legislation in Westminster. Were such a Bill of Rights to include, for example, socio economic rights then the question is could those rights be amended on the basis of future experience only here or could they be amended by the devolved institutions. Would they then be lumbered with that? Were they to be lumbered with our view here in this Parliament of how socio economic rights ought to be determined, would we then undermine the nascent democracy and democratic institutions of Northern Ireland by restricting the ability of their politicians to set priorities for socio economic policy? I do not know what the answers to these issues are but it does seem to me that these are very important debates, particularly for a society emerging from conflict. It would be the ultimate irony if those of us who believe in rights discover that the rights agenda acted against the peace. We need to have that debate and I do not think changing the format of the consultation will make us any more capable of having that debate. We have to have the capacity to engage in that debate. In Northern Ireland I have to have the capacity to engage in it and others do too. There is an argument in my view that, until we are ready to have that debate, until the people of Northern Ireland are ready to have that debate and emerge with a conclusion we cannot have a Bill of Rights. That is only one of a number - you identify others - and I do not think changing the horse is going to make the fences any easier to jump

    Lord Lester of Herne Hill

  51. Minister, your letter of 22 November which you referred to, the one which you raised on the Bill of Rights, if I may say so raised a number of issues of principle which seemed to me to be very important, and some of them very difficult to answer. Without changing horses I wonder whether you are attracted by what I am about to say which is that it might be that the process would be well served if it is looked at not only in terms of the particular circumstances of Northern Ireland but also in terms of the repercussive effects across the UK, within Europe in the context of the European Charter, and also north/south of the Republic of Ireland? In other words, would it not be sensible, without changing horses, to have an external review or external component, as was being put to us in Belfast when we went there on Thursday, when it was suggested that the process if not being rescued might be advanced by looking at it through slightly wider spectacles. Just to make my point a bit clearer, I am well aware that in the Republic, for example, they are looking at what kind of Human Rights Bill they should have, whether they can go as far as our one, and if they are trying to get common standards north and south and across the Irish Sea and to Britain as well, would it not be good to have a macro rather than a micro examination of the issues without delaying the whole process unduly?
  52. (Mr Browne) I think that were we to seek independent international advice then it is not necessarily the case that that might not delay the process. We do not know what that independent international advice might be and it might open up a whole other series of issues that need to be discussed - I do not know. The phrase "particular circumstances in Northern Ireland" emerges from the Agreement, and if you excuse me I constantly go back to the Agreement because it is the template for what we are seeking to achieve in Northern Ireland and for my points of reference. I think that one of the other great challenges, and I think I said this in my letter of 22 November too, is to decide what that phrase means and I think there could be an interesting debate on that as well. My personal observation is I do not think that debate has yet taken place and I think it needs to in some detail, so those of us who have to receive this advice are able to test it back against that particular criteria. I do not think that the Human Rights Commission are restricted in their remit by the phrase "particular circumstances of Northern Ireland" from taking on board best international practice - indeed, they are constantly taking on board best international practice and encouraging me in government as a minister and my colleagues to do the same thing - so there is no reason why they should not take on board best international practice and, indeed, in the context of a recent round table where I think the Human Rights Committee of the Council of Europe were present in Northern Ireland, I had a discussion with the chief commissioner about whether or not advice from that source could come forward, and I have no objection. I said to him privately and I say it publicly, it can only be requested from that source by a government and I have no objection in this case to the government and myself being used as an agent to get that advice if that is necessary, but I think it is important that the Commission asks for it. So I do not think they are constrained from seeking advice from international sources or making international comparisons in what they do, and the document I have here is redolent with international comparisons. So I accept we do have something to learn from those sources but I do caution people from seeking always to move at a pace which leaves too many people in Northern Ireland behind. The most important thing about this process of rights is that we increase the capacity of everybody in Northern Ireland to be able to engage in it and that they all have ownership of it. If it is to serve the purpose of bringing peace to Northern Ireland in part then it will make a substantial contribution, and some of us just need to be patient while others catch up a bit with us.

  53. On this area, in your letter, for example, you say, "Look, we have to have a framework that makes sense within the UK as a whole", and that must be right, but surely if we are trying to have a framework which makes sense within the UK as a whole it should be within the UK and the Irish Republic as a whole, and one needs therefore to have perspectives under the Good Friday agreement that look across the Irish Sea and north and south to try to get some common standards. It does not make much sense, does it, to be talking about incorporating international treaties of civil and political rights and economic and social rights just in Northern Ireland without looking, as you say, in your letter beyond that to the UK as a whole and to the Republic as a whole?
  54. (Mr Browne) I think I was agreeing with you in my last answer.

    Mr McNamara

  55. What happens to the economic social argument if, in fact, the charter of rights of the European Community is accepted by the European Community, including Her Majesty's Government?
  56. (Mr Browne) I think the answer to that is that we are in changed circumstances, and we then have to look at where we are. This whole process of rights is a dynamic and it has moved significantly since this government came to power in the UK. There is a European dimension to it; there is an all-island dimension to it in the Britain Isles, although I have to point out that I do not think Ireland has incorporated the European Convention of Human Rights into its domestic law so we might be at a disadvantage using it as a comparator at the moment. I come back to an essential theme of my first answer which is that when you are operating in this area you are operating in a dynamic area and you need to be fleet of foot and keep your wits about you, recognising that things may change tomorrow, and if they do then you have to respond to them. Just to be comprehensive in relation to funding, I would point out that we are looking at funding for the next three years for the Commission and we will be making an announcement shortly about that. I am not able to do that at present.


  57. Finally, minister, if the Cabinet was to seek your advice on the establishment of a Human Rights Commission in Great Britain or England and Wales, what lessons would you draw from the Northern Ireland experience?

(Mr Browne) I do not think the Cabinet will be seeking my advice on this particular issue! I think my initial response to this might be that I have enough responsibilities, and at the moment I have more than enough responsibilities in Northern Ireland without worrying about the "Yes" to the United Kingdom. Probably I would speak to them as I usually do in reply to any question but I think they have our years of experience - now four years of experience - of working in government with the Human Rights Commission to draw on which has a number of lessons I think for government, but also for those charged with the responsibility of being Commissioners. I think reading the annual reports of the Commission would be very good advice because those are just the sorts of issues that will be important to a Commission. They might in the particular circumstances of Northern Ireland have a unique environment to work in, but I suspect that what is reflected in the annual reports of the Commission would be the sorts of things that would be of relevance to the consideration of what a Commission for Great Britain would do.

Chairman: Thank you very much, minister, for your time today.