State institutions supporting
democracy
44. The White Paper states—
Like the existing equality commissions, the CEHR
will be an executive non-departmental public body.[54]
45. The new Commission will not be like the existing
equality commissions. This proposal is not acceptable. The EOC
told us that the proposals in the White Paper are "not enough
in themselves to ensure the necessary independence from government".[55]
The far more radical proposals we made in our report were broadly
endorsed by the DRC.[56]
The time has come for the Government to recognise that there is
a class of public bodies which have a distinctive constitutional
role, and that these need to be designed with this special status
in mind. It is not sufficient to pick the NDPB model off the shelf
and apply it to every new public institution.
46. There is an emerging, but rather unacknowledged
group of these special bodies. They comprise at present the Parliamentary
Commissioner for Administration, the National Audit Office and
the Electoral Commission. Each does have a distinctive (though
slightly different) accountability structure. To these might be
added the Information Commissioner, the Public Appointments Commission,
the proposed Judicial Appointments Commission, the proposed Children's
Commissioner for England and, perhaps, the Civil Service Commissioners.
47. The relevant shared characteristic of these bodies
is that they are established as part of the constitutional machinery,
supplementary to Parliament, to act as a check on abuse of executive
power. It is inappropriate, therefore, for them to be beholden
to Ministers in any way. So far as they are to be held accountable
for their actions, and for their use of public money, it is the
proper task of Parliament to ensure this. They should not, however,
be creatures of Parliament. The basic principles for the design
of independent national institutions supporting democracy are
that they should enjoy—
statutory guarantees of independence from both the
executive and parliament;
a system of funding independent of direct ministerial
control;
independent staffing arrangements;
statutory involvement of a parliamentary body in
approving and overseeing its budget and strategic plan;
parliamentary involvement in key appointments;
direct reporting to parliament;
48. When we recently visited South Africa, it was,
among other reasons, to examine the work of its human rights institutions.
Chapter 9 of the South African Constitution establishes a number
of "State Institutions Supporting Constitutional Democracy".
These are the Public Protector (broadly equivalent to the Parliamentary
Commissioner for Administration), the Human Rights Commission,
the minorities commission, the Commission for Gender Equality,
the Auditor General and the Electoral Commission. It can be seen
that this modern constitution reflects the special status of these
institutions and groups them together.
49. Although the governance and accountability structure
of these institutions may not be wholly directly transferable
to the UK, it is worth noting in particular two fundamental features
built in to the design of all the "Chapter 9 institutions".
The first is that it is intended that they will in future all
be directly funded by money voted by Parliament, not through the
budgets of the departments of state. The second is a degree of
parliamentary involvement in the appointment of individuals to
these commissions and offices.
50. In our previous report, we proposed a model accountability
structure for the new Commission based on a combination of elements
from the design of the offices of the Parliamentary Commissioner
for Administration, the National Audit Office and the Electoral
Commission.[57] The essential
elements were as follows:
- the Chair of the Commission
should be defined in statute as an "officer of Parliament".
- dismissal of a commissioner within the fixed
term of appointment should be effected only by a joint address
of both Houses, or otherwise only on the recommendation of a statutory
committee which includes parliamentary, non-executive, representatives;
- there should be no power of direction or veto
over the commission, in relation to the promotion and protection
of human rights, either by Ministers or by Parliament;
- the commission should be funded by moneys voted
by the House of Commons directly, not through the voted expenditure
of a ministerial department.;
- the commissioners and staff of the commission
should not be crown servants (although they should have a statutory
guarantee of broadly equivalent terms and conditions);
- there should be a statutory committee appointed
to approve and oversee the commission's budget, and the strategic
plan which it should be required by statute to present;
- the statutory committee should recommend commissioners
for appointment, since there is no obvious way to reconcile differences
of view between the two Houses;
- the commission should be required to make an
annual report to Parliament, which should be laid before each
House by its Clerk. The commission should be empowered to lay
other reports before Parliament as it thinks fit, including those
arising from general inquiries on matters of public policy relating
to human rights;
- there should be a committee of both Houses charged
with considering the reports of the commission.
51. We expect the next stage of the Government's
design of the new Commission to take these proposals fully into
account.
52. A critical element in the independence of such
institutions is the decision-making processes on funding. Nobody
proposes writing such bodies an open cheque, but as the EOC comments—
One of the most common means of sidelining equality
bodies … as is shown from international experience, is through
inadequate initial resourcing or subsequent resource cuts . The
EOC would like to see some form of safeguard to ensure that the
funding levels for the CEHR are subject to appropriate scrutiny.
Whichever mechanisms are put in place ought to aim to prevent
any repetition of the current imbalance in the funding between
the existing three commissions, and provide a clearer rationale
for linking resources to roles.[58]
We consider that the best safeguard that can be
devised to ensure that manipulation of funding is not used to
undermine the independence of the new Commission will be the transparency
that should result from close parliamentary involvement in its
budget-setting process.
53 
