Joint Committee On Human Rights Appendices to the Minutes of Evidence

23.  Memorandum from British Irish Rights Watch


  1.1  British Irish Rights Watch is an independent non-governmental organisation and registered charity that monitors the human rights dimension of the conflict and the peace process in Northern Ireland. Our services are available to anyone whose human rights have been affected by the conflict, regardless of religious, political or community affiliations, and we take no position on the eventual constitutional outcome of the peace process.

  1.2  We welcome this opportunity to make a submission to the Joint Committee on Human Rights' call for evidence on whether there is a need for a human rights commission for the United Kingdom.

  1.3  In our view, there is a need for an over-arching human rights commission for the whole of the United Kingdom, but such a commission should be underpinned by local commissions in the four countries that make up the United Kingdom, ie England, Wales, Scotland and Northern Ireland.

  1.4  Northern Ireland has its own commission, set up under the terms of the Good Friday Agreement. While we welcomed that commission and its work, there was never any logic to the existence of a single commission in a single jurisdiction, and nor do we consider the structure of the Northern Ireland commission as an ideal model to be adopted elsewhere.

  1.5  As a human rights group focussed on Northern Ireland, we believe that there is a strong argument for harmonisation of human rights protections not only throughout the United Kingdom but also throughout these islands. Such harmonisation would, we believe, strengthen the Northern Ireland peace process. Whatever the political outcome of the peace process, either nationalists or unionists are likely to find themselves in a —presumably permanent—minority, whether it is unionists within a united Ireland or nationalists within the United Kingdom. Minority rights are therefore of crucial importance to the stability of any such outcome. The adoption of the same human rights standards throughout these islands would mean that both unionists and nationalists would know what guarantees they could expect to enjoy and/or to deliver at the end of the day.

  1.6  The trends towards devolution and multi-culturalism mean that there is room for some local diversity, and the reality is that, a human rights commission having been established for Northern Ireland, it would be politically difficult to remove it and replace it with one UK-wide commission. That being the case, we would advocate separate commissions in England, Scotland and Wales and Bills of Rights in these countries as well. However, there is a danger that such diversity would produce a hierarchy of rights and freedoms with local conditions perhaps putting a brake on the full development of a human rights culture in some places, with the result that the quality of people's rights would vary depending on where they lived. An overarching UK-wide commission is therefore desirable in order to ensure that matters affecting all four countries were dealt with uniformly. This would have the benefit of enhancing human rights throughout the UK, allowing for matters of local concern, yet providing a strong collective body when appropriate. There may also be a need for a UK-wide Bill of Rights.

  1.7  Logically, a UK-wide human rights commission could be drawn from the four local commissions, rather than being stand-alone. Its remit would be to cover all human rights issues that apply across the UK. This would not hamper the remit of the local commissions, because they would be able to participate in the work of the UK-wide commission and thus tackle both wider and local issues.

  1.8  It is against the background of that approach that we consider the specific questions raised by the Joint Committee on Human Rights.

2.  Question 1

  What (if anything) do you think a Human Rights Commission might add to the current methods of protecting human rights in the United Kingdom? In particular, are there useful functions in connection with protecting human rights and developing a culture of human rights which do not fall within the remit of any existing agency in the United Kingdom, such as:

  (a)  fostering a human rights culture in the United Kingdom;

  (b)  education in human rights;

  (c)  advising and assisting people who claim to be victims of violations of their Convention rights;

  (d)  developing expertise in human rights;

  (e)  bringing legal proceedings on human rights issues in the public interest?

  2.1  A UK-wide human rights commission (UKHRC) would ensure that, broadly speaking, similar human rights standards would apply across the UK. It would also prevent local human rights commissions (LHRCs) from deviating too far from basic standards and principles.

  2.2  There is no ducking the fact that four LHRCs plus a UKHRC is a potentially expensive option. There is therefore much to be said for avoiding duplication insofar as that is possible. We therefore believe that the UKHRC ought not to replicate the work of LHRCs, but should complement it.

  2.3  All the functions listed in (a) to (e) are important, but there is considerable scope for duplication with LHRCs, and for that reason careful thought needs to go into the division of labour between the UKHRC and the LHRCs. Two models which are not necessarily mutually exclusive suggest themselves.

  2.4  The first model would be to see the UKHRC as a think tank, generating human rights policies and developing standards, with the emphasis on UK-wide issues. Under this model, the UKHRC might not do any casework, leaving functions (c) and (e) to the LHRCs. Instead, it might

    —  conduct research into UK-wide human rights issues, such as the rights of homeless people, gay and lesbian rights and the rights of the elderly;

    —  develop new human rights standards for those groups who are poorly covered by existing human rights instruments;

    —  advise UK-wide public bodies on their compliance with the Human Rights Act and other human rights instruments and issue guidance to them;

    —  advise the government on human rights issues, especially in situations where the courts have found legislation to be incompatible with the Human Rights Act, and on reforms required in the law, policy and practice;

and so on.

  2.5  We can see that a UKHRC may also have some role to play in advising other standard-setting or enforcement bodies, such as those concerned with data protection or genetic engineering, on the human rights dimension of their work.

  2.6  The second model would set parameters on work that could legitimately be undertaken by both LHRCs and the UKHRC, setting out clear areas of responsibility. Function (b), education, provides a good example. British Irish Rights Watch has long advocated the incorporation of education on human rights into the school core curriculum, both at primary and secondary levels, as a key tool in the creation of a human rights culture. The UKHRC could take responsibility for developing that curriculum, in consultation with schools etc, while LHRCs would be responsible for helping local schools to deliver that curriculum and for other local education work.

  2.7  On this model, there is potential for dividing case work—functions (c) and (e)—along UK/local lines. The UKHRC could be responsible for case work involving UK-wide public bodies, while the LHRCs would be responsible for case work involving local public bodies. Thus cases involving the police would come under LCRCs but cases involving the Immigration Service would come under the UKHRC.

  2.8  We emphasise that, under our proposed arrangements, the UKHRC would be drawn from the LHRCs, so there would be little danger of divergence or schism between the UKHRC and the LHRCs.

  2.9  It is relatively easy to envisage a UK/local breakdown of responsibilities in each of the five functions identified by the Joint Committee. However, that list seems to us to be far from exhaustive. In our view, it ought also to include at least the following other functions.

    —  conducting research;

    —  setting and developing standards;

    —  advising public bodies on their compliance with the Human Rights Act and issuing guidance;

    —  advising the government/local assembly on law, practice and policy.

  We also think that the UKHRC should have the power to consider any matter referred to it by any of the LHRCs as having potentially UK-wide implications or for advice.

3.  Question 2

  If a Human Rights Commission were established, how should its role and functions relate to those of this Committee?

  3.1  We would expect the Joint Committee to see both the UKHRC and the LHRCs as regular consultees on all its work. However, the human rights commissions ought not be seen in any sense as a substitute for the Joint Committee, or as being there to do its work.

  3.2  Instead, we would expect the Joint Committee to invite the human rights commissions to submit evidence on any issue the Joint Committee was examining. It might also be appropriate to invite the UKHRC to undertake research on its behalf. However, these should be invitations that the human rights commissions should be free to refuse, so that their own priorities are not skewed or resources drained by such requests.

  3.3  The Joint Committee may also wish to consult the UKHRC on its own programme of work, in particular in terms of which human rights issues it ought to scrutinise.

4.  Question 3

  In what order of priority would you arrange the functions of such a Commission? If you think that a Commission should examine a range of issues, to which issue or issues do you think that the Commission should give priority?

  4.1  We feel strongly that both the UKHRC and LHRCs should be vigorously independent bodies. Therefore, they should decide their own priorities. If they choose to consult us about their priorities, we will respond, but we do not think it is appropriate for other bodies, such as the Joint Committee, to invite comment on the priorities of bodies that do not even exist.

  4.2  The Northern Ireland Human Rights Commission was set up with a completely inadequate budget. If human rights commissions are to be enabled to function effectively and to make sensible decisions about priorities, they must have the money to do the job.

5.  Question 4

  If a Human Rights Commission were to be established, should there be a single body with a jurisdiction extending to all parts of the United Kingdom, or separate bodies for England, Scotland, Wales and Northern Ireland, or both a United Kingdom body and bodies with territorial responsibilities? (The Northern Ireland Human Rights Commission must continue to exist, as this is one of the requirements of the United Kingdom's agreement with Ireland about the future of Northern Ireland.)

  5.1  Since the Northern Ireland Human Rights Commission is in existence and will continue to exist, there cannot be any justification for depriving Wales, Scotland and England of their own LHRCs.

  5.2  However, four separate LHRCs without a UKHRC will mean that different approaches to UK-wide human rights issues may be taken and that UK-wide public bodies may receive conflicting advice from each country. Therefore a UKHRC is also desirable.

  5.3  If, as we propose, the UKHRC is drawn from the LHRCs, a coherent human rights machinery will be developed at both local and UK level. The UKHRC will also provide a natural location for communication and cross-fertilisation between the four LHRCs.

6.  Question 5

  If there were to be a Human Rights Commission with responsibilities for the whole United Kingdom (whether or not it operated alongside other bodies with responsibility for just one part of the United Kingdom), what relationship should there be between its work in respect of Northern Ireland and the work of the Northern Ireland Human Rights Commission (and similar Commissions in Scotland and Wales if they are established at some time in the future)?

  6.1  Under our proposed arrangements, the UKHRC would focus exclusively on UK-wide matters. It would therefore have no work in relation to any of the four countries other than UK-wide work.

  6.2  Our proposal for an organic link between the four LHRCs and the UKHRC overcomes any potential for duplication or divergence between the work of the respective bodies.

7.  Question 6

  If a Human Rights Commission were established, how should its work relate to that of other bodies with special responsibility for particular rights, such as the Information Commissioner, the Equal Opportunities Commission, the Commission for Racial Equality, the Disability Rights Commission and the Equality Commission for Northern Ireland? In particular:

    (a)  should a Human Rights Commission perform functions now performed by existing specialist Commissions, or should it co-exist with them? If they were to co-exist, what roles should they perform in areas where their responsibilities might be expected to overlap?

    (b)  if a Human Rights Commission were to co-exist with the existing equality Commissions, should issues relating to equal opportunities be excluded from the remit of the Human Rights Commission and be given to the Equality Commissions?

  7.1  The Institute for Public Policy Research has made detailed proposals for integrating these other bodies into the UKHRC. There are clearly advantages to such an umbrella structure, since there are obvious and considerable areas of overlap with their work.

  7.2  The IPPR proposal fits quite well with our own proposal in relation to local and UK human rights commissions, in that it leaves the work of existing bodies intact and does not dilute the expertise they have already developed.

  7.3  The difficulty with IPPR's proposal is that the nature of most of the other bodies' remits do not permit a clear local/UK division of responsibilities. The logic of devolution is that ultimately there would be equal opportunities commissions, disability commissions, commissions for racial equality and equality commissions in all four countries. Were that to come about, then the IPPR model would work well.

  7.4  There are some bodies, though, such as the Information Commission, the Data Protection Registrar, and other bodies such as those that regulate genetic engineering, that have important human rights dimensions but where there is no particular rationale for having local rather than UK-wide mechanisms. In these cases, rather than expand the umbrella beyond its natural circumference, we suggest that the UKHRC could act as an adviser to those bodies.

  7.5  The Joint Committee's questions also raise the possibility of eventually doing away with at least some of the specialist commissions and subsuming their functions under human rights commissions. It may well be that at some point rationalisation of a rights/equality map that has grown up piecemeal will be both necessary and desirable. In our view, that time is not yet. An amalgamation on that scale at this point in time would run the risk of strangling the development of a human rights culture at birth while huge upheavals took place in well-established rights protection agencies, leaving protections for gender, race and disability rights severely diluted without any visible benefit accruing. In our view, it would be better to rationalise the position in relation to human rights commissions along the lines we have proposed, allow that structure and the implementation of the Human Rights Act to bed down, and then tackle the wider rationalisation questions raised by the Joint Committee.

8.  Question 7

  If a Human Rights Commission were to be established, how should its independence of Government be preserved while ensuring an appropriate type and level of accountability? In particular:

    (a)  how should its Chair, members and key staff be apppointed?

    (b)  how should its funding be provided?

    (c)  to whom should it be accountable (for example, to a parliamentary body)?

    (d)  how should the matters mentioned in (a), (b) and (c) take account of devolution to Northern Ireland, Scotland and Wales?

  8.1  Both LHRCs and the UKHRC should be established by statute by the UK Parliament. Those laws should guarantee the commissions' independence of government. Accountability should be by means of an annual report, in the case of LCRCs to their local assembly and in the case of the UKHRC to the Westminster parliament. All the commissions should also be amenable to judicial review so that any interested party can challenge any abuse of their powers.

  8.2  We have been concerned by evidence in Northern Ireland of attempts by the Ulster Unionist Party, led by First Minister David Trimble, to politicise human rights and to use the mechanisms of the Northern Ireland Assembly to attack the Northern Ireland Human Rights Commission and human rights NGOs. This had led us to question the wisdom, at least in the Northern Ireland context, of devolving responsibility for human rights to local assemblies. However, we recognise that Northern Ireland is unique in the United Kingdom in that it is a very deeply divided society that is still emerging from conflict and may yet slide back into serious violence. It may be necessary to regard Northern Ireland as an exception to the general rule proposed above until it can function more normally.

  8.3  The chair and members of the commissions should be appointed, not by the relevant Secretary of State, as is the case in Northern Ireland, but by an independent appointments commission. If the Northern Ireland precedent of having a Chief Commissioner is to be followed, then the Chief Commissioner should be appointed first and should be involved in the recruitment of the other members. The main criterion for appointment of all commission members should be their expertise in human rights. Considerations such as community balance, as employed in Northern Ireland, have no legitimate place and have caused problems there. All staff, including key staff, should be appointed in the normal way by the commissions themselves.

  8.4  The funding should be provided by central government for all five commissions, at a level adequate for the performance of their functions. It should be open to local assemblies with fundraising powers to make further grants to the LCHRs for specific local projects and LCHRs should have the power to raise money for specific projects.

9.  Question 8

  In the light of your answers to Questions 1 to 7, what is your estimate of the level of staffing which would be required by the body or bodies you propose and what the annual cost might be?

  9.1  This is not a question we can sensibly answer. We suggest that the Northern Ireland Human Rights Commission, which is the only body with practical experience of these matters, should be asked for its comments.

10.  Question 9

  Some Commissions currently operating in fields related to human rights have a range of powers. For example, they might be empowered to conduct investigations; to require people to provide information; to issue notices requiring people to cease conduct which the Commission considers to be unlawful; to conduct legal proceedings; to assist other parties to legal proceedings; to issue Codes of Practice; to conduct research; and to engage in a range of activities designed to heighten awareness of issues within their remits. If a Human Rights Commission were to be established, what powers should it have?

  10.1  The base line should be the minimum standards laid down by the Paris Principles (The Principles Relating to the Status of National Institutions, approved by the United Nations General Assembly by Resolution 48/134 in 1993).

  10.2  Specifically, both LHRCs and the UKHRC should have at least the following powers in relation to all matters falling within their competence:

    —  to advise and assist individuals, groups and bodies on their human rights and to conduct casework;

    —  to litigate on behalf of individuals, groups and bodies;

    —  to litigate in their own name;

    —  to make third party interventions;

    —  to act as amicus curiae;

    —  to conduct research;

    —  to carry out investigations into policies and trends;

    —  to require disclosure of documentation and other evidence;

    —  to compel witnesses to answer questions (short of compelling self-incrimination and subject to the right of witnesses to free legal advice and, where appropriate, representation);

    —  of search and seizure of evidence;

    —  of access to places of detention;

    —  to set and develop standards;

    —  to educate the public, groups, and public bodies and to promote awareness of human rights;

    —  to issue press releases, give media interviews and publish articles;

    —  to publish its advice, the results of its research and any submissions it has made;

    —  to enter into consultation with any individual, group or body, especially NGOs;

    —  to advise public bodies on their compliance with the Human Rights Act and issue guidance;

    —  to advise the government/local assembly on law, practice and policy;

    —  to advise on draft legislation;

    —  to review the implementation of the Human Rights Act and Bills of Rights;

    —  to advise on the UK's accession to international human rights treaties and instruments;

    —  to have its advice taken into account by government, local assemblies and public bodies;

    —  to make submissions to and address international human rights bodies such as the United Nations;

    —  to comment on the UK's submissions to international human rights bodies;

    —  to raise revenue for specific projects.

  10.3  In addition, the UKHRC should have the power to consider matters referred to it by LCHRs and LCHRs should have the power to make such references.

11.  Question 10

  Are there other relevant issues or considerations which have not been covered in answers to the earlier questions?

  11.1  Under the Good Friday Agreement,

    "It is envisaged that there would be a joint committee of representatives of the two Human Rights Commissions, North and South, as a forum for consideration of human rights issues in the island of Ireland. The joint committee will consider, among other matters, the possibility of establishing a charter, open to signature by all democratic political parties, reflecting and endorsing agreed measures for the protection of the fundamental rights of everyone living in the island of Ireland."

  11.2  It is obvious that no such animal as a UKHRC was in contemplation at the time of the signing of the GFA. In keeping with our desire for standardisation of human rights throughout these islands, we suggest that the UKHRC ought also to participate in the joint committee envisaged under the GFA.

June 2001

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