Joint Committee On Human Rights

Joint Committee On Human Rights Eleventh Report

4 Structure

94. The principal structural issue we raised in our report of March 2003—the question of the institutional relationship between the protection of equalities and the promotion of human rights—has been resolved. The commission is to be an integrated human rights and equality body.

95. A number of those who submitted evidence to us remain opposed to this decision in principle, but their opposition is largely to the integration of the equalities strands rather than their being joined with human rights.[102] Others (a larger group) argue that it is illogical to establish the new commission before the equality legislation it will be required to enforce and promote is rationalised.

Transitional arrangements

96. In our report last year we recommended the establishment of a non-statutory "UK Advisory Council on Human Rights" to prepare the way for the new commission.[103] We recognise that the Taskforce could be seen as a reasonable, if partial, response to this recommendation.

Local relationships

97. We discussed above the need for the new commission to take a light-touch, rather than heavy-handed, approach to its work. A number of submissions[104] expressed concern that the commission could drain energy from local community groups by becoming a monopolistic but remote provider of advocacy and advice on matters relating to human rights and equality. We acknowledge the strength of these arguments, but we also acknowledge that there will always be a tension between building up a central body of expertise and empowering local activism in contexts which take account of the particularities of specific circumstances.

98. We reiterate our belief that the mission of the new commission should take full account of the need to assist others in the work of the promotion of equality and the promotion and protection of human rights. Some submissions argue that this requires a network of local offices, others seem to imply that it should be a small central contracting service giving grant in aid to local providers, We have recommended above that the body must have power to make grants to build local capacity across the strands of its remit. What the precise regional structure of the commission should be is a matter on which we do not have any settled view—we will await the proposals of the White Paper before making further comment.

99. However, we do recognise that there is a special need to recognise the implications of the devolution settlement. In our report last year we said that 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.

105

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.

DEVOLUTION AND THE SCOTTISH AND WELSH DIMENSIONS

100. The Scottish dimension of the new body will depend to a great extent on the proposals of the Scottish Executive which emerge from the latest round of consultations on the proposed Scottish Human Rights Commission. We recognise that the relationship with the Scottish Human Rights Commission is a matter on which the Scottish Parliament and Executive should take the lead. The National Assembly for Wales has already indicated its belief that there should be a clear Welsh dimension to the institutional arrangements, but appears broadly to have accepted a GB-wide model. There is already a close relationship between the National Assembly's Equal Opportunities Committee and the anti-discrimination commissions. This will no doubt have to be recast. For our part, we would be pleased to have the opportunity to work with partner committees in the Scottish Parliament and the National Assembly.

NORTHERN IRELAND

101. The Committee for the Administration of Justice in Northern Ireland wrote to us expressing concern that the new arrangements for Great Britain might affect those in Northern Ireland, where there are separate bodies: a single Equality Commission and Commission for Human Rights.[106] We agree that there are strong arguments in favour of leaving the current arrangements undisturbed. These arrangements are anyway grounded in the Belfast Agreement, and would require wider agreement to be unpicked.[107] For the time being we anticipate no change in the arrangements for the Equality Commission and the Human Rights Commission in Northern Ireland.

GOVERNANCE

102. We touched on "governance" issues only briefly in our report last year, in particular the nature of the "board" of the commission (whether executive or non-executive), the number of commissioners and distribution of functions among them. We commented—

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.

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 …[

108

103. The majority view amongst those who responded on this point appeared to favour, with different qualifications, a functional approach to the governance of the new commission rather than a strand-specific approach. A particularly strong case was made, however, for the need to retain a requirement for people with disabilities to be adequately represented—there is at present a statutory requirement that half the commissioners on the DRC are persons who are, or have been, disabled.[109] It was also argued that an explicit requirement for representation amongst the commissioners for Scotland and Wales would be desirable.

104. These factors will complicate the process of appointing a board of commissioners, making it unfeasible to take a narrowly "meritocratic" approach to its composition. On the other hand, as we said in our report last year, we would not favour a statutory obligation to make the commissioners representative of society in some broadly defined way, and nor would we favour a system of appointment which tended to identify individual commissioners as "champions" of one or other strand of the commission's remit. Because the reality of individual identity is inevitably complex, the perceived special allegiances of an applicant cannot be the sole criterion to apply in determining appointments. The best guarantee of an effective commission is the commitment of the commissioners to the application of the clear and established standards and principles of universally recognised human rights and the advancement of equality between all persons. A perfectly representative human rights commission would be of little assistance to the people of Great Britain if its work were not directed by the professional skill, expertise and practical experience of its commissioners and staff.

105. We recommend that the legislation should provide that commissioners are appointed on a basis that must have regard to their experience, knowledge and expertise in matters relating to the commissions functions and powers and should have regard to the importance of achieving a balance between representatives of different parts of the United Kingdom and between representatives of those who have particular experience or understanding of discrimination of different kinds.

106. We consider that the commission will need to consider whether it should establish consultative committees to represent the different strands of its activities. We are not yet persuaded that this would best be set down as a statutory requirement relating to specified groups which experience discrimination.

107. We consider that a commission of no fewer than nine and no more than sixteen commissioners would be appropriate. We should emphasise that we would envisage their qualifications as being grounded in their capacity to work together in enabling the commission to combine its functions into an overall strategy of securing compliance with the anti-discrimination legislation and in promoting a culture of respect for human rights.

Independence and accountability

108. In our report last March, we concluded that—

… the standard model of NDPB accountability is [not] 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).[110]

We also commented—

111

112

109. The majority of respondents to our consultation agreed that the new commission should report to Parliament rather than Government, and most cited the Paris Principles in support of this position. We now examine possible structures to achieve this.

THE TRADITIONAL NON-DEPARTMENTAL PUBLIC BODY MODEL

110. The government clearly expect to establish the new commission, on much the same statutory basis as the present anti-discrimination commissions, as a non-departmental public body (NDPB). The general structure of these bodies is that they—

· are established by statute;

· have boards whose members are appointed by a Secretary of State, usually for fixed terms which may be renewable, and who can be dismissed only on specified grounds;

· are accountable to that Secretary of State for the propriety of their use of public money, and usually require his or her agreement to establishment numbers and sometimes to the acquisition of property, but are not usually required to seek agreement to specific budget lines and are able to decide their own policies within their statutory remit, sometimes with provisions for Ministers to give them directions;

· negotiate their budgets with their sponsoring Department, and have their funds voted by Parliament as part of that Department's Estimate;

· are required by statute to make an annual report, which the Minister is required by statute to lay before Parliament along with their audited accounts.

111. The Government argues that the NDPB model has served perfectly satisfactorily for the anti-discrimination commissions, and they see no reason to abandon it. The main argument for adopting the traditional model for the CEHR is that it works, and is tried and tested. Lord Falconer also advanced the argument in his evidence that there were advantages to the present commissions being on the inside—essentially that they were nearer to the levers of influence. We recognise some force to this argument, but do not consider that it outweighs the other objections. Nonetheless, we hope that in whatever structure emerges, there will be a Cabinet Minister who recognises a special duty of care towards the new body.

112. So far as the power of appointment being vested with Ministers is concerned, the Government contends that the "Nolan principles" (in essence open advertisement and transparent appointment procedures) have addressed this problem of a lack of independence. It is always debatable whether Ministers holding the purse-strings has led to actual inappropriate pressure (or just even just an instinctively deferential attitude by boards), but there is always a risk that this may be so. These are well-rehearsed objections to the use of the NDPB model in particular or general circumstances. But, in contesting the assumption that this model is satisfactory, we identify some particular distinguishing features which we believe make it inappropriate, in its traditional form, to the proposed Commission for Equality and Human Rights.

THE ALTERNATIVE MODELS

113. We referred, in our report last year, to two possible alternative models of accountability: the Parliamentary Commissioner for Administration (PCA) and the National Audit Office (NAO). These are now briefly described. We then go on to consider a third and more recent model—the Electoral Commission.

114. The PCA is appointed by the Crown under Letters Patent on the advice of the Prime Minister, and can be dismissed only on a joint address from the two Houses.[113] She has the status of an officer of the House of Commons. Her office is funded on the Cabinet Office Vote. She is, however, required under her statute to report to the House of Commons, and the House has since 1967 appointed a select committee to "examine" these reports (currently the Public Administration Committee), although the Committee has no power of adjudication over the cases considered by the commissioner or of direction over her activities.

115. The NAO operates under a more complex arrangement, and is the purest current example of parliamentary accountability almost fully separated from the executive. Under the terms of the National Audit Act 1983, the chief executive of the NAO, the Comptroller & Auditor General (C&AG) is appointed by a resolution of the Commons on a motion which must be moved jointly by the Prime Minister and the Chairman of the Public Accounts Committee (PAC). He has the status of an officer of the House of Commons. The C&AG is answerable to a statutory non-executive board, the Public Accounts Commission, also established under the 1983 Act. This comprises the Chairman of the PAC (ex officio), the Leader of the House of Commons (ex officio), and seven backbenchers appointed by the House. The Commission examines the budget of the NAO as presented to it by the C&AG and, after consulting the Treasury, presents the Estimate (with any changes it considers it appropriate to make) to the Commons for its approval. It also appoints the accounting officer for the NAO (invariably the C&AG) and it appoints auditors. It elects its own chairman, who is one of the backbench members, and one of its members answers written and oral PQs in the Commons about the work of the Commission (but not of the PAC itself). It does not have power of direction over the C&AG, who is fully independent and can only be dismissed by resolution of the House. The Commission is required by the 1983 Act "from time to time [to] present to the House of Commons a report on the exercise of its functions".[114] In practice it does this annually.[115]

116. The Electoral Commission is established under the Political Parties, Elections and Referendums Act 2000. It provides for between five and nine electoral commissioners to be appointed by the Queen in response to an address from the House of Commons, one of whom is nominated to be Chairman of the Commission.[116] The Commission appoints its own staff (who are not civil servants), including a chief executive,[117] and negotiates its budget with the Speaker's Committee appointed under the same Act.[118] That Committee is modelled to some extent on the Public Accounts Commission. It comprises the Speaker of the House of Commons, the Chairman of the Home Affairs Committee, the Home Secretary (all ex officio), a local government Minister (nominated by the Prime Minister), and five other backbench Members of Parliament appointed by the Speaker.[119]

117. There is growing interest in designing accountability mechanisms for constitutional watchdogs which, like the C&AG, offer regular opportunities to account to Parliament, while preserving independence from both the legislature and the executive. The Government have announced plans to make the both the House of Lords Appointments Commission and the Judicial Appointments Commission for England and Wales and for the proposed UK Supreme Court statutory bodies. The Public Administration Select Committee has argued for the Commissioner for Public Appointments to become an "Officer of Parliament".[120] It is also worth noting that in Scotland the Parliament has recruited and will employ the new Commissioner for Children and Young People, and the proposed Scottish Human Rights Commission will, the Executive agree, be likely to be accountable to the Scottish Parliament.

118. All three of these UK alternatives to the traditional NDPB model can be seen as part of a wider attempt to find a model which provides a greater degree of independence from government. These have been categorised as "officers of Parliament", although as yet this designation is not widely recognised in statute. A recent House of Commons Library research paper identified the key characteristics of this model—

· parliamentary involvement in appointment and dismissal

· a statutory committee which is responsible for budget approval and oversight

· a specific select committee to which the Officer is bound to report

· staffing independent of the civil service.[121]

119. The New Zealand House of Representatives has established an Officers of Parliament Committee, which approves the budget and organises the appointment of all the officials falling under this designation.[122] In the Canadian Parliament, there are five officials accorded this status in the standing orders of the House of Commons.[123]

IS THE CEHR A SPECIAL CASE?

120. There are a number of features of the proposed Commission for Equality and Human Rights which, we believe, make it necessary to think about its accountability structure in a different way from that applied to the standard quango, including the existing anti-discrimination commissions.

121. First and most fundamental is the nature of the relationship between human rights and the State. It is, as we have stressed several times in this report, the State itself which is bound by the Convention and other human rights treaties. Most NDPBs are dealing with non-state actors (ie principally the various regulators of things such as the water suppliers, the railway operators, the energy industry, the telecommunications industry or the broadcast media) or what might be termed common property (for example the national heritage in the form of museums and galleries, the built environment, the natural environment, etc.). Even the existing anti-discrimination commissions have traditionally been involved as much, if not more, with the private rather than the public sphere. Some other bodies do have a custodial relationship with organs of the State, though generally with more or less arms-length governmental bodies (the police, the education authorities, the NHS, etc.). Those like the National Audit Office, the Civil Service Commissioners, the Parliamentary Commissioner for Administration or the Electoral Commission, which deal directly with issues of propriety or maladministration in central government more often do not follow the traditional NDPB model. We consider that the proposed commission has a character more like these constitutional watchdogs.

122. Second, whatever the reality of the independence of well-respected bodies like the discrimination commissions, their accountability structure does not give the appearance of full independence, and may accordingly not be judged fully to comply with the Paris Principles. And although their independence from government influence is asserted, it is impossible to gauge the extent to which the retention of direct financial control by government inhibits these bodies either directly, through resource constraints, or consciously or unconsciously on the part of Ministers in limiting their ability to undertake activities they believe to be necessary to their statutory purposes.[124]

123. Third, the nature of the constitutional settlement could be argued to indicate that, on the matter of the protection of fundamental rights and freedoms, Parliament should be involved more fully than it is with a typical regulator or enforcement body. It is clear that very few NDPBs have developed a close working relationship with Parliament—a situation for which the fault almost certainly lies on both sides. The establishment of this new body represents an opportunity, we believe, for an assertion of Parliament's confidence in its own paramount constitutional role.

124. Fourth, and pragmatically, the nature of the new commission will mean that it has responsibilities ranging across those of all Government departments. To avoid bias and turf wars, it is imperative to situate it outside the machinery of government. The EOC has been assigned to four different departments in the period since 1997.[125] This clearly militates against the development of an effective working relationship.

125. Finally, as a new "independent national human rights institution", the Commission for Equality and Human Rights would present an opportunity for the UK to demonstrate its commitment to the Paris Principles and the exhortations of the Council of Europe by designing a "best practice" model of independence.

Our template for the new commission

126. We remain convinced, and indeed have become more convinced, that the Commission for Equality and Human Rights should be modelled not on the standard NDPB but on the constitutional watchdogs described above. Research undertaken for the Constitution Unit has identified eight principles for the design of such bodies. These are:

· 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, overseeing its budget and strategic plan;

· parliamentary involvement in key appointments, which should be for a fixed term;

· dismissal only with parliamentary approval;

· direct reporting to parliament, both through a designated committee and through questions;

· extra-parliamentary accountability.[126]

127. We consider that the models of the PCA, the NAO/C&AG and the Electoral Commission, described above, contain all these essential elements in one place or another. We recommend that the statutory design of the Commission for Equality and Human Rights should adopt and adapt the arrangements for guaranteeing the independence and accountability used for the Parliamentary Commissioner for Administration, the National Audit Office and the Electoral Commission. It should include the following elements.

128. The Chair of the Commission should be defined in statute as an "officer of Parliament". There should be between eight and fifteen additional commissioners, certain of whom might be designated as deputy chairs of the commission. 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 the statutory committee recommended below.

129. However, the commission should not be a creature of Parliament instead of a creature of the executive. As the authors of the Constitution Unit research comment—

Little will be gained for the public or the polity in general if dependence by officers on government was simply replaced by a similar dependence on parliament … The parliamentary connection should, in principle, enable key aspects of independence, such as appointment, financing and reporting, to be more open and transparent than if these were matters for government.[127]

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.

130. The commission should be funded by moneys voted by the House of Commons directly, not through the voted expenditure of a ministerial department. The adequate funding of the commission, having regard to the need for efficiency, economy and effectiveness in the use of its resources, will of course be essential to guarantee its independence. It will require more funding than the combined budgets of the existing commissions.

131. 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).

132. 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.

133. This statutory committee should include, for example, the chair of the parliamentary committee charged with considering the reports of the commission, the Secretary of State for Constitutional Affairs or his or her deputy, Ministers representing other departments with a stake in the commission's work, a person appointed by the Lord Chief Justice, a person appointed by the presiding officer of each of the Scottish Parliament and the National Assembly for Wales, and persons appointed by the presiding officers of each House, the majority of whom should be members of one or the other House.

134. The statutory committee should recommend commissioners for appointment whom the Secretary of State for Constitutional Affairs would recommend for appointment by Her Majesty. There should be consultations with a parliamentary committee, as described below, but we do not think it is necessary or feasible to make appointments on the basis of a joint address from both Houses, since there is no obvious way to reconcile differences of view between the two Houses.

135. 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. Representatives of the statutory committee should be able to answer parliamentary questions on the statutory committee's work, but not that of the commission.

136. There should be a statutory duty on the commission to consult on its strategic plan.

137. There should be a committee of both Houses charged with considering the reports of the commission.

The relationship with Parliament

138. We noted in our report last year that the level of both formal and informal engagement between the existing anti-discrimination commissions and Parliament was low.[128] We drew attention to the models of the Parliamentary Commissioner for Administration and the National Audit Office as means of overcoming this.

139. Virtually all the submissions we received argued for the new body to have some form of direct reporting relationship with a parliamentary committee, and most indicated that this should be the JCHR in its current or a revised form.[129] The TUC argued for a separate equality committee of the House of Commons.[130] We think this would tend to produce an institutional fissure between the equality and human rights strands of the new commission which would be difficult to negotiate effectively. As Professor Sarah Spencer points out, this raises the question of whether the JCHR should have a stronger equality mandate.[131]

140. We believe that it will be important for the new commission to develop such a parliamentary relationship. It should not be a "supervisory" relationship but it should be one that emphasises the democratic accountability of the new body, and helps to "mainstream" equality and human rights not only in the executive branch of the constitution but also in the legislative branch. It is Parliament that should be giving effect to many of the recommendations of the new body.

141. We recommend to each House that, when the legislation creating the new commission has been enacted, our terms of reference should be amended by inserting after paragraph (2)(a), as an additional matter which the committee may consider:

"(b) the expenditure, administration and policy of the Commission for Equality and Human Rights, any reports of the commission which are laid before Parliament, and any matters connected with those reports;".[132]

142. If this expansion of our remit were agreed to by each House, we would wish to consider whether it would also be desirable to enlarge the Committee (to, for example, nine members of each House) and grant it the power to appoint two or more sub-committees.

143. Although in many circumstances the matters under consideration by the new commission will relate to reserved matters under the devolution settlements, we would expect the commission to respond positively to any request for co-operation from committees of the National Assembly for Wales or the Scottish Parliament.

102 See for example the Mayor of London (Appendix 21), the 1990 Trust (Appendix 32). Back

103 Sixth Report of Session 2002-03, op cit., para. 220. Back

104 See Appendices. Back

105 Sixth Report, Session 2002-03, op cit., para. 215. Back

106 Appendices 8 and 9. Back

107 We reported on the Work of the Northern Ireland Human Rights Commission in our Fourteenth Report of Session 2002-03, HL Paper 132, HC 142, published on 15 July 2003. Back

108 Sixth Report, 2002-03, op cit., paras. 231 and 232. Back

109 Disability Rights Commission Act 1999, Sch 1, para 2(2). Back

110 Sixth Report, Session 2002-03, op cit., para. 230. Back

111 Ibid., para. 223. Back

112 Ibid., para. 225. Back

113 Parliamentary Commissioner Act 1967. Back