Joint Committee On Human Rights Sixth Report

Northern Ireland

207. The Northern Ireland Human Rights Commission, envisaged as part of the Belfast Agreement, was established by section 68 of the Northern Ireland Act 1998. It has been in operation since 1999 as an independent body accountable to the Secretary of State for Northern Ireland. The function of the Commission, under its founding legislation, and in accordance with its mission statement, is to further the protection of human rights in Northern Ireland. Also established under the 1998 Act and pursuant to the Agreement is the Equality Commission for Northern Ireland—a single equalities body, which has brought together formerly separate Northern Ireland anti-discrimination bodies, and will take on responsibility in due course for the three new "strands" of equality legislation.[150]

208. Thus, while the question of whether the promotion and protection of human rights is best carried out by a human rights commission at all, and how that body might relate to a single equality body or otherwise, is for the rest of the UK still an open question, we do not intend in this report to look behind the Belfast Agreement and reopen the question of the establishment and structure of the institutional arrangements for the promotion and protection of human rights and equality in Northern Ireland.


209. The proposals for a Scottish Human Rights Commission grew out of a paper presented by the Scottish Human Rights Forum to Scottish Ministers in March 2000. A debate in the Scottish Parliament[151] indicated cross-party support for a Scottish Commission, and the Deputy First Minister made a public commitment to consult on whether to establish a Human Rights Commission in June 2000. The consultation was launched in March 2001. Following the conclusion of the consultation process, the Deputy First Minister announced in December 2001 that a Human Rights Commission for Scotland was to be created. The Executive said—

Human rights law is little more than rhetoric if it is not underpinned by the institutions, powers and knowledge base necessary to transform rights into realities.

The Executive proposed that the Scottish Human Rights Commission would have the following key functions—

  • promotion, education and awareness raising

  • guidance to public authorities

  • providing advice to the Scottish Parliament on legislation after introduction

  • monitoring and reporting on law and practice

  • investigation and reporting on human rights issues in relation to public policy.

A further consultation document was published in February 2003, setting out a number of options for the functions and powers of the proposed commission in more detail.[152]

210. The Scottish Human Rights Centre told us in their written evidence that the establishment of a Scottish commission " would not preclude the creation of a UK wide body if it were found to also be necessary".[153] However, it also expressed a preference for an England and Wales rather than a UK-wide body. When we visited Edinburgh to discuss these proposals we heard some conflicting views on the possible overlap of remits of a Scottish human rights commission and any other UK human rights commission. The February 2003 consultation paper proposes that the Commission should be a "devolved body", in other words that it would not deal with matters reserved to the UK Government and Parliament.

211. Unless the next elections to the Scottish Parliament produce an unpredictable political upheaval, there is going to be a Scottish human rights commission. That is the settled view of the Scottish Executive and the Scottish Parliament and we take that decision into account in the structures we propose for the rest of the UK.


212. In its written evidence the executive wing of the National Assembly for Wales argued that the structure of any human rights commission should reflect the post-devolution settlement, and pointed to the existing equality commissions (which have separate offices in Wales and Commissioners with special responsibility for Wales) as a useful model on which to build. It remained open-minded on the establishment of a human rights commission for Wales, but noted that there has been little debate on the subject within Wales, and that the Assembly itself had not debated or otherwise considered the issue. However, it was clear that any commission—

... would need to have a Welsh presence to command the confidence of the people of Wales if it were to succeed in promoting a human rights culture within Wales ...

and that one body—

... would help to emphasise the shared nature of Human Rights Act values, and would maximise the opportunities for joint working and for sharing information and good practice.[154]

It also noted that a single body with an office in Wales would be more cost effective.

213. Although we heard arguments from some quarters for the establishment of a separate Welsh human rights commission, we detected on our visit to Cardiff no groundswell of support for this amongst elected representatives or pressure groups, and no concrete proposals for one have been put forward by any organised group or official body. There are special circumstances in Wales, as there are in the different regions of England. But, at least for the foreseeable future, there are not to be separate jurisdictions between Wales and England, and there are no current plans to establish a human rights commission in Wales. We will therefore consider arrangements for the protection and promotion of human rights jointly in England and Wales.

Devolution Solutions

214. The majority of respondents to our predecessors' call for evidence favoured a structure which reflected the devolved nature of government in the UK. The Bar Council and Law Society considered it anomalous to have a single body with jurisdiction extending to all parts of the UK. Amnesty International took a similar line, advocating two options, the establishment of separate territorial bodies or the establishment of a national body with separate territorial organs, but took no firm position on which option to adopt. Liberty advocated the establishment of separate commissions for Northern Ireland, Scotland, Wales and England on the basis of a duty to co-operate together on UK-wide and international matters. Stonewall argued for a similar arrangement. The majority of respondents refer to the UK Government's responsibility under international law for ensuring compliance with international human rights standards throughout the UK and acknowledge the need to establish a degree of uniformity in protection of human rights in all parts of the UK. The Institute for Public Policy Research and the Equal Opportunities Commission supported the creation of a UK-wide body, steered by separate regional commissions, with the UK Commission having the authority to speak on human rights for the UK as a whole while providing some common services to the regional commissions. Both the Commission for Racial Equality and the Disability Rights Commission recognised the case for a separate Scottish commission. But like the Institute for Public Policy Research, they recognised that it would be—

... unsatisfactory to have 3 or 4 Commissions that are entirely independent of each other, with no voice with the authority to speak on human rights for the UK as a whole. A UK wide umbrella of some kind is needed, whether light touch co-ordination or, as we advocate, providing some common services.[155]

Other witnesses broadly endorsed this approach.

215. It would be possible to overstate the problems of working the protection and promotion of human rights and equalities into the devolution settlement. There are four basic criteria to be met by any institutional design brought forward—

  • It must enable the special circumstances of the separate jurisdictions of the UK to be recognised.

  • It must provide for co-ordination at UK-wide level.

  • It must avoid overlap of responsibilities and duplication of effort.

  • It must provide clear lines of democratic accountability.

As long as these criteria are satisfied, we see no reason to be over-anxious about having tidily symmetrical institutional arrangements in every part of the UK. Asymmetry is one of the inevitable consequences of devolution, and local arrangements will reflect different needs, priorities and judgements.

216. There will be a separate commission for both human rights and equality in Northern Ireland, at least for the time being. The decision of the Scottish Executive and Parliament to proceed down the line of a separate human rights commission for Scotland was taken before the decision to move to a single equalities body for Great Britain. The Government's consultation paper on the single equalities body project comments—

The government considers that any new structure should be established for the whole of Great Britain ... Equally, any new machinery must have ... well-resourced offices in Scotland and Wales, with remits clearly tailored to Scottish and Welsh needs ... Any new equality body will need to interact well with the devolved administrations and legislatures. In addition ... other proposals have been put forward ... One suggestion, for example, is that there could be a ''light touch'' central body co-ordinating three executive arms in England, Scotland and Wales ... We would need to consider how the autonomy of the territorial bodies could be reconciled with the central body's overall accountability. In addition, we would need to ensure that points raised by the arms in Scotland and Wales about matters reserved to the UK Parliament ... could be fully taken into account.[156]

217. The argument for establishing locally-sensitive but UK-wide arrangements (with respect to the complex inter-relationships between reserved and devolved responsibilities) applies equally to arrangements for the promotion and protection of human rights and to arrangements for the promotion of equality. This is a further argument for making decisions in principle about both at the same time. The most straightforward solution, in our view, would be for there to be largely autonomous, but loosely federated, bodies operating in Scotland and in England and Wales jointly. The option of an integrated human rights and equality commission would create the disadvantage of some overlap with the Scottish Human Rights Commission. On the other hand, it would have the advantage of creating a body which can deal with reserved matters in Scotland which the proposed Commission will be unable to tackle. There would clearly be a need for a memorandum of understanding between the two organisations if the Scottish commission is established along the lines set out in the Scottish Executive's most recent consultation paper.

218. There will, however, remain a requirement for a UK-wide organisation of some kind, and we now address this need.

UK-wide Arrangements

219. In the shorter term than the implementation of the single equality body project and the establishment of the commission we propose, we recommend that the Government should establish, on a non-statutory basis,

a UK Human Rights Advisory Council. It should have a small, independent secretariat. It should have the power, and funds, to commission independent advice and assistance.

Preparing for Change

220. The detailed task of designing a commission will take some time. The development of a strategy for the single equality body is also clearly something that cannot be left until that body takes over from the existing commissions—and whatever institutional arrangements are finally settled on it will be necessary, as we have stressed, to design the arrangements for the promotion of equality and diversity alongside those for the promotion and protection of human rights. The time needed for these processes means these are not to be regarded as quick fix solutions—it will require research, debate and consultation. The principal stakeholders must be fully involved. We believe the principal function of the Advisory Council we propose should be to provide a "light-touch" co-ordination of arrangements for the promotion and protection of human rights (including equality) throughout the UK and, in its first phase, helping prepare the way for the institutional changes which are in view. It could have a part to play in preparing, in time for implementation by 2006, the draft legislative proposals for a statutory independent human rights and equality commission for Great Britain (which might encompass separate arrangements for Scotland), and any unified equality legislation covering the six "strands" of anti-discrimination law and arrangements for the promotion and protection of human rights.

221. We now turn to consideration of the principles which should guide the design of the new commission in relation to its accountability.

Independence and Accountability


222. The great majority of those who responded to our predecessors' call for evidence laid great emphasis on the importance of the independence of any human rights commission. Throughout the world, this is a matter of general consensus. The Northern Ireland Human Rights Commission suggested that independence of the commission would be best preserved by removing from Government full control over the appointments process, as well as the financing and internal management processes of the commission. The majority of respondents favoured the involvement of this Committee in the appointment process. Similarly, the Commission for Racial Equality and Disability Rights Commission believed that the commission should be accountable directly to Parliament through the JCHR.

223. There are a number of models available for how Parliament, and specifically this Committee, could be involved in the appointment of commissioners. One is the non-statutory arrangement adopted by the House of Commons Treasury Committee to hold "confirmation hearings" on the appointment of members of the Bank of England Monetary Policy Committee.[157] Although the Treasury Committee believes—

... that confirmation hearings, even on a non-statutory basis, act as a stimulus to the Chancellor to choose candidates who are competent and independent ... the hearings underline the fact that MPC members are accountable to Parliament and to the public ...[158]

few would consider this offers a high level of real accountability. A better model may be that provided by the arrangements under the National Audit Act 1983 for the appointment of the Comptroller & Auditor General, by which that officer is appointed on a motion which is required to be moved jointly in the House of Commons by the Prime Minister and the Chairman of the Committee of Public Accounts. However, the logic of such a system would be difficult to retain if it were felt that both Houses had jointly to approve appointments of commissioners. On the whole we would tend to favour a form which requires a duty to consult Parliament on the appointment of commissioners as a guarantee of independence and democratic accountability, so long as this was a statutory duty.

224. The responses to our predecessors' call for evidence received from academic institutions tended to emphasise the importance of making appointments representing different sectors of society whilst ensuring that Commissioners have the requisite level of expertise. The extent to which such an ambition can be achieved will always be problematic for any institution. We would not favour any statutory obligation to require the commission's membership to be "representative of all sections of the community"—but we would expect this to be a consideration in making appointments, as it should be for all public bodies. Nor are we inclined to favour a model which incorporates a majority of part-time commissioners.


225. However, appointment arrangements are only a part of the story as regards the quality of the independence shown by commissioners. More important, as we heard time after time on our visits abroad, is the quality of the people appointed and the resources at their disposal. We believe the main factor which will influence the quality of the people who seek to become commissioners is the perception that the commission is a body with the potential to exercise real influence, and which is to be resourced adequately to do the job it has been set. As the Council of Europe's Commissioner for Human Rights recently commented (in relation to the Northern Ireland Human Rights Commission)—

Independence is an indispensable characteristic of an effective human rights institution. Financial autonomy and an adequate level of funding are among the means to guarantee such independence. According to the Paris Principles, human rights institutions should enjoy a level of funding that allows the institution "to be independent of the Government and not [to] be subject to financial control which might affect its independence" . It is obvious that a human rights institution should have its own budget which is sufficient for the fulfilment of its tasks. Apart from the regular financial scrutiny through review and the evaluation of financial reports, other bodies, such as the Government or individual ministries should not interfere in the use of the institution's resources.[159]

We do not propose here to try to calculate the cost of running a commission, as we have insufficient evidence to make any such estimate other than speculative. However, we can note that the cost of the three anti-discrimination commissions is running at around £40 million annually.[160] The additional costs of promoting and protecting human rights effectively will be highly dependent on the structure for any commission which is eventually settled on. We also note that the Northern Ireland Human Rights Commission has expressed concern that its independence was being eroded by the need to go cap-in-hand to the Northern Ireland Office for resources for any work beyond what was really a bare minimum of core tasks. We recommend that, as a guarantee of independence and in accordance with the comments we make below on accountability, Parliament should be directly involved in the setting of any commission's budget.


226. The model of accountability adopted for the existing anti-discrimination commissions is the standard one for non-departmental public bodies. Broadly, they are established under statute, appointed by a Secretary of State (with circumscribed powers to dismiss within the statutory terms of office, which may or may not be renewable), and funded via the voted expenditure of their "parent" department. They are usually required to make an annual report to their Minister and present accounts audited by the National Audit Office, which the Minister is in turn required to lay before Parliament.

227. It is not an entirely satisfactory model from the point of view of independence or accountability. In negotiating their budgets, such bodies have little leverage against their parent department—a very central concern of the Commonwealth commissions which we visited. Ministers will have very varied levels of interest in the work of a particular body, and may on occasions even be hostile. There is often little sustained engagement between a commission and its government sponsor.[161] The level of formal parliamentary accountability is generally low, reliant on the intermittent attention of select committees with very crowded agenda or of individual members using questions or adjournment debates either to probe or support their work. The level of informal engagement in Parliament is often also poor.

228. A more attractive model is the National Audit Office, with its direct engagement with Committee of Public Accounts, and its much more independent funding stream through the statutory Public Accounts Commission. Here we see the highest level of parliamentary engagement and accountability, a very clearly established independence from Government, a more openly negotiated funding stream, and a high reputation for its work.

229. Something of a halfway house between these two models is the Parliamentary Commissioner for Administration. Though funded from central government voted expenditure, his or her reporting line is more directly to a specified parliamentary committee (currently the Public Administration Committee of the House of Commons).

230. We note that the Scottish Executive has reached the view that the Scottish Human Rights Commission should be directly accountable to the Scottish Parliament with its funding overseen by the Scottish Parliament Corporate Body.[162] Similarly, we do not consider that the standard model of NDPB accountability is a sufficiently outward and visible guarantee of independence from the Government to be appropriate to a national human rights commission (or indeed the proposed single equality body, whether or not integrated with a human rights commission). We intend to examine the other options more fully in the light of the Government's decisions following its consultation on a single equalities body.

Allocation of Functions

231. In general, there are two basic models for the allocation of functions within a human rights commission—commissioners with designated areas of responsibility (race relations, gender issues, disability, human rights, etc.) or commissioners with designated functions (complaint handling, advice services, litigation, etc.). We saw both models at work in the course of our inquiry, and heard advocates and critics of both models. In general, it could be said that commissions tended to appear to evolve from the former to the latter model over time.

232. From a human rights perspective, in a fully integrated commission covering anti-discrimination matters and human rights protection and promotion, we are inclined to favour the latter model, emphasising as it does the fundamental point that human rights do not belong especially to any particular group, and that there is no hierarchy of rights. However, we recognise that it may be necessary, at least in the medium term, to find a compromise between these two models, and we believe detailed consideration of this issue is another question which has to be held over until we know what the outcome of the Government's consultation on the single equalities project is. We agree with the comment made in the consultation document that, as a principle, the organisation should have as much freedom as possible in determining its own internal structure.

150   We visited both Commissions during the course of this inquiry. Back

151   On 2 March 2000 Back

152   The Scottish Human Rights Commission, The Scottish Executive, The Stationery Office, February 2003 Back

153   Twenty-second Report, Session 2001-02, op cit, Ev 186 Back

154   Twenty-second Report, Session 2001-02, op cit, Ev 190 Back

155   ibid., Ev 135 Back

156   Equality and Diversity: Making it happen, op cit, paras 9.10 to 9.12 Back

157   First Report from the Treasury Committee, Session 1997-98, HC 282 Back

158   ibid Back

159   Opinion 2/2002 of The Commissioner For Human Rights, Mr. Alvaro Gil-Robles on certain aspects of the review of powers of the Northern Ireland Human Rights Commission, Strasbourg, 13 November 2002, Comm DH(2002)16, original version in English, para 15. Back

160   See annual report of the CRE for 2001 (£19m), the EOC statement of accounts for 2001-02 (£9m) and the DRC's updated strategic plan for 2002/03-2004/05 (£12m). Back

161   The Equal Opportunities Commission has had three sponsoring departments in the last two years as a result of changes in the machinery of government entirely unconnected with its mission. Back

162   The Scottish Human Rights Commission, op cit, pp 34-36 Back

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