Joint Committee On Human Rights Fourteenth Report


5. Strategy and effectiveness

Aims and functions

44. The Commission's mission statement defines its purpose as:

To ensure that the human rights of everyone in Northern Ireland are fully and freely protected in law, policy and practice.

It is to this end that the Commission educates, promotes and advises and, with more immediate practical effect, investigates and brings legal proceedings. The Commission's mandate under the Agreement to advise on the need for a Northern Ireland Bill of Rights also provides a vehicle for these aims. In this section we make a number of recommendations for how the NIHRC's functions and powers can be used or amended to achieve the aim set out in its mission statement most effectively.

45. Section 69 of the Northern Ireland Act provides that the Commission shall:

—  keep under review the adequacy and effectiveness in Northern Ireland of law and practice relating to the protection of human rights;

—  advise the Secretary of State and the Northern Ireland Assembly on legislation and measures required to protect human rights;

—  advise the Northern Ireland Assembly on whether a bill in the Assembly is compatible with human rights;

—  advise on human rights matters relating to Northern Ireland in legislation at Westminster;

—  promote an understanding of human rights through education and research;

—  co-operate with the Human Rights Commission in the Republic of Ireland through a Joint Committee.

46. In addition, section 69 provides that the Commission may:

—  provide assistance to individuals in court proceedings related to human rights;

—  bring proceedings related to the law or practice of human rights;

—  conduct investigations related to human rights in Northern Ireland;

—  publish the results of its research and investigation.

47. Since its establishment, the Commission's main activities have included:

—  consultation on a draft Bill of Rights for Northern Ireland;

—  human rights scrutiny of both Northern Ireland Assembly and Westminster legislation;

—  education, training and publication of promotional material on human rights;

—  casework, third party interventions, and providing amicus curiae briefs;

—  conducting investigations;

—  publishing reports;

—  making submissions to UN and Council of Europe treaty monitoring bodies.

Commission priorities

48. Developing a draft Bill of Rights has loomed very large in the Commission's workload. The Commission has viewed the Bill of Rights consultation process as an important vehicle for its broader aims, in particular education and promotional activities.[33] However, it has been argued that undertaking a project of such scale and difficulty, with such limited resources, has skewed the NIHRC's priorities away from some of its other core activities.

49. In addition to its work on a Bill of Rights, the Commission has pursued an ambitious workplan. It has produced a considerable body of work, including investigation and research reports which are widely acknowledged to be topical and of high quality.[34] As well as casework and educational and promotional activities, it has engaged in a comprehensive programme of legislative scrutiny, and of involvement with international human rights institutions. The reach of the Commission's ambitions has, however, also attracted a good deal of criticism, on grounds of lack of focus. Evidence submitted to us criticised the Commission's work for a lack of co-ordination between its different strands, and failure to follow up on the results of its work in a way that would most effectively achieve change. Such problems of lack of focus or co-ordination are not unexpected in a new organisation exploring its terms of reference and its capacities in its initial years of operation. The Commission pointed out to us in its written evidence the extent of the co-ordinated work that had been done in certain instances.[35] In oral evidence Commissioners did acknowledge the difficulties, within its limited resources, of pursuing a broad agenda, and stressed that account had been taken of this in preparing its strategic plan for 2002-2006. The Chief Commissioner said that in developing the plan—

… when we come to set particular objectives and particular performance indicators and time scales associated we will certainly be less ambitious than we were and more realistic about what can be achieved with the resources available to us.[36]

50. The Commission's 2002-2006 Strategic Plan was published in May 2003. Although the programme of work set out in the new strategic plan remains an ambitious one, it does establish clear and coherent areas of focus for all strands of the Commission's work, and sets out a series of objectives and performance indicators in relation to each aim. Priority matters under the plan include development of the Bill of Rights; addressing patterns of gross or systematic abuse of particular identified rights through casework, investigation and research; providing human rights education to at-risk groups; and developing human rights awareness amongst those working in the criminal justice system, education and public services. We welcome the Commission's recognition of the need for more focussed and strategic work, and look forward to seeing the benefits of this in the implementation of the new strategic plan.

51. We particularly welcome the NIHRC's commitment to raising awareness of human rights amongst public sector bodies.[37] This commitment reflects the conclusions of our own inquiry into the case for a human rights commission for Great Britain. Our findings suggested that such work was particularly and urgently needed, to mainstream human rights thinking into the work of public authorities.[38]

52. We also received evidence in the course of our inquiry which was critical of the Commission's strategic planning, management and decision making structures, and its reliance on internal committees.[39] The Hosking Report[40] recommended changes to management and staffing structures, including the re-organisation of the Commission's staff structure and the creation of additional management posts, increased in-house legal advice, the dismantling of the system of committees overseeing casework, investigations, etc, and the establishment of a communications unit. The Commission's Strategic Plan for 2002-2006 commits it to implementing improvements to its management structure and systems.[41] We welcome this commitment of principle. We also welcome the Chief Commissioner's statement in oral evidence to us that considerable changes to the structure of the organisation were likely to be put in place within the next year, including streamlining of the Commission's system of committees. We look forward to seeing the results of this reorganisation in practical evidence of the Commission's capacity to deliver in accordance with clear strategic priorities.

Casework

53. One of the functions of the Commission is to bring court proceedings or to assist individuals in bringing cases where appropriate. The casework function has been particularly resource-intensive and demanding. Under section 70 of the Northern Ireland Act, the Commission may provide or arrange for the provision of legal advice and assistance to individuals in cases which raise issues of human rights principle, or where the individual could not be expected to bring the case without assistance, or where it considers that there are other special circumstances which make it appropriate to provide assistance. In practice, the Commission has been involved with casework in a number of ways: by funding cases, taking cases in its own name, making third party interventions, and acting as an amicus curiae.[42]

54. The potential demand for legal assistance to individuals in human rights cases is considerable. The Commission can in practice only hope to satisfy a very small part of it. The availability of resources is therefore a major constraint on how the Commission performs its casework function. Within the year covered by the Commission's last annual report, it was able to provide assistance for only seven out of fifty four applicants.[43] The Commission's Chief Executive told us that—

… periodically [the Commission has had to] stop taking new enquiries because we simply did not have the capacity to deal with the number of enquiries that were coming through.[44]

This is a far from ideal method of selecting cases. Furthermore, resource limitations may also affect the quality of the casework carried out by the Commission, and constrain its ability to remain involved in and informed about cases its supports. For example, the Commission cannot always have a staff member in court to monitor the cases it funds.[45]

55. For a human rights commission, casework may serve a number of functions, which are integrated with its broader aims. The tangible results of redress for the individual applicant, and development of human rights jurisprudence, are allied to the Commission's broader strategic goals of achieving change and promoting a human rights approach to particular issues. Professor Hadden, in his evidence to us, identified the central dilemma: a strategic approach, looking to the wider human rights issues to be influenced, pulls against a client-centred approach which treats all applicants equally.[46] The Commission also noted that there was difficulty in particularising the vague criteria for case funding set out in section 70 of the Northern Ireland Act, without becoming vulnerable to judicial review on the basis that it had unduly fettered its statutory discretion.[47] It commented in its section 69 report that it might wish to make further recommendations to make funding criteria more precise and clear.[48]

56. We received evidence which was critical of the Commission's casework strategy. Comments were made on the imprecision of the criteria applied to decisions to fund cases, and the uncertainty surrounding decisions as to whether to proceed by way of case funding, third party intervention etc.[49] Evidence submitted to us concerning particular, controversial, cases suggests that problems have been caused by lack of clear decision-making structures and guidelines.[50] The Commission nevertheless defended its prioritisation of casework, pointing out that assistance had been granted in only a small number of cases, and that the casework committee had been "meticulous in giving full consideration to each application submitted".[51] We were also told that the Commission was in the process of refining its casework criteria, in particular in relation to decisions on which method should be used to support a particular case, as well as improving its decision making procedures so that involvement in particularly controversial cases is now decided by the Commission as a whole.[52]

57. The resources available for casework may in part be constrained as a result of choice about internal resource allocation within the Commission stemming from a lack of clarity about is strategic priorities.[53] Nevertheless, it should be recognised that for any organisation, casework is particularly resource intensive, and it is likely that any reasonable internal allocation within the Commission's current overall budget would still prove inadequate. We welcome therefore the increasing emphasis within the Commission on a selective and strategic approach, integrating its casework with its other functions in relation to research, legislative scrutiny and investigation. However, the Northern Ireland Commission's experience tends to confirm our view that, in general, it is impractical for human rights commissions to have a leading role in providing legal assistance to individuals bringing human rights claims. We conclude that such a role can be better filled by the legal aid authorities, a conclusion confirmed by some of the overlapping competences which have been an issue in Northern Ireland, and which we consider below. We do recognise that there is an important role for a human rights commission, such as the NIHRC, in bringing strategic test cases, providing amicus briefs and acting as a third party intervener. We recommend that the review of the Commission's functions under section 69 should take account of the need for a strategic casework function, aimed at developing the law and disseminating human rights principles, rather than achieving redress for individuals.

Memorandum of understanding with the legal aid department

58. One practical problem for the Commission's casework function has been the overlap of its funding of human rights cases with the provision of legal aid by the Northern Ireland Legal Aid Department. Evidence submitted to us pointed out that applicants seeking funding for a case raising human rights points could suffer delays because they were required to apply to both the Legal Aid Department and the Human Rights Commission for funding.[54] Under current regulations, applicants to the Legal Aid Department will be refused consideration of their application for legal aid if there is the possibility of funding from another source, such as the Human Rights Commission. The result is that applicants must first apply for assistance to the Human Rights Commission, knowing that their application will be refused on the grounds that they are eligible for legal aid. Applicants must then revert to the Legal Aid Department. This lengthy process causes difficulties for applicants, in particular in urgent cases. As one solicitor's firm noted, the product of this situation is that—

… for an Applicant who is eligible for legal aid, they are placed in a worse position in a case with a human rights dimension, than they were in prior to the establishment of the Human Rights Commission.[55]

59. This is clearly an unacceptable outcome. The evidence presented to us by the NIHRC makes clear that the Commission and the Legal Aid Department are together taking steps in an attempt to address this problem. Under the latest version of the Memorandum of Understanding between the Commission and the Legal Aid Department, the Department will only require reference to the Commission where there is a "core" human rights issue. In addition, both organisations attempt to deal with such cases through their emergency procedures, thus minimising the delay caused. Nevertheless, the situation is clearly unsatisfactory. The Commission itself acknowledged this, and said that they were in continued discussions with the Legal Aid Department to better address this problem through the Memorandum of Understanding.[56] We welcome the intention to address the problems of overlap with the Northern Ireland Legal Aid Department, and recommend that consideration be given to revising the Legal Aid Regulations to ensure that applicants do not suffer detriment as a result.

Powers

60. Clear and sufficient powers are a necessary condition for a Human Rights Commission to carry out its work effectively. The Northern Ireland Act has been criticised as making insufficiently detailed provision for the Commission's powers as well as, more specifically, for failing to arm the Commission with any investigatory powers to require the production of evidence to its inquiries.

61. The extent of the Commission's powers was called into question in September 2000 by a decision of the Northern Ireland coroner's court, later upheld on appeal in the Northern Ireland Courts, that the Commission did not have the power to intervene in a case before it.[57] As a result, in its section 69 review report, the Commission recommended that the Northern Ireland Act should be amended to spell out in greater detail the full extent of its functions and powers. However, the Commission was ultimately successful in an appeal to the House of Lords, which found that the Commission did have the power to make third party interventions, as part and parcel of its general function of promoting the understanding of human rights law and practice and reviewing its adequacy and effectiveness.[58]

62. Following the decision of the House of Lords, both the Commission and the Northern Ireland Office have now taken the view that an exhaustive definition of the Commission's powers and functions in an amended Northern Ireland Act is no longer necessary. It has been agreed between the NIHRC and the NIO that the Northern Ireland Act should be amended to state that the Commission has powers incidental to those specified in the Act. Nevertheless, in our view, the uncertain climate in which the Commission operates is such that there may be value in setting out in legislative form, for the avoidance of doubt, both the detail of the Commission's role and the full range of powers needed for it to carry it out. Although they may not be needed immediately, we recommend that the proposals for specifying its functions and powers which were made by the Commission in its initial review under section 69 should be revisited in future reviews of the Commission's work.

Investigatory powers

63. The Commission's power to conduct investigations, under section 69(8) of the Northern Ireland Act, has in the view of the Commission been hampered by its lack of investigatory powers.[59] Under the Act, the Commission cannot compel the production of evidence, and has no powers of entry, search or seizure. It is certainly the case that the lack of any provision for investigatory powers in the Northern Ireland Act leaves the Commission lacking by international standards. The Irish Human Rights Commission, for example, has comprehensive powers of investigation at its disposal.[60] The Paris Principles also clearly contemplate a Commission having power to compel evidence—

… within the framework of its operation, the national institution shall ... hear any person and obtain information and any documents necessary for assessing situations falling within its competence.[61]

64. In a number of instances in its work, the Commission has been refused information by public bodies. It has encountered difficulties in obtaining permission from the Northern Ireland Office, from Juvenile Justice Centres, and from voluntary organisations, to interview detainees at the centres and to obtain access to documents.[62] The Commission has also said that it has had difficulty obtaining information from the Ministry of Defence and the (then) Royal Ulster Constabulary on the use of plastic baton rounds; from the Prison Service on the death of a prisoner; and about the Key Persons Protection Scheme, which the Commission wished to audit for compliance with Article 2 of the ECHR.[63] The Commission has not as yet tested the extent of its powers to acquire information by bringing judicial review proceedings, citing the expense involved.[64] It should not be necessary for the Commission to bring judicial review proceedings to attempt to obtain disclosure of information necessary for its effective work.

65. During the passage of the Northern Ireland Bill, concern about the Commission's limited powers, in particular in relation to investigations, was in part allayed by undertakings that the powers would be reviewed at a later date. Under section 69(2) of that Act, the Commission was therefore required to submit to the Secretary of State, within two years, recommendations necessary to improve its effectiveness, its powers and resources. There was reason to think that such recommendations would be favourably received. In the debate in the House of Lords Minister of State Lord Williams of Mostyn stated—

… if the Commission reported that it had been frustrated in carrying out its work, we believe that that would offer a powerful case for legislation to deal with the absence of the powers.[65]

66. The Commission recommended in its section 69 report that it should have specific statutory powers to: allow for access to all places of detention and all places where persons are in the care of a public authority; apply to a magistrate for a warrant to enter and search premises and seize evidence; and to compel the production of evidence. The Northern Ireland Office's preliminary response, however, rejected the proposal for powers of entry to places of detention etc, pointing out that a number of other bodies already had powers in this area, and that allocation of such powers to the Commission might cause confusion. It also considered that additional investigatory powers would "muddy the waters" between the Commission, the courts and the police, and would sit uneasily with the Commission's casework functions. The legitimacy of this latter concern is acknowledged by the Council of Europe Commissioner for Human Rights, who notes that, "the combination of the Commission's investigative powers and its ability to bring proceedings before the courts would confer powers that would exceed those typically enjoyed by public prosecutors".[66] The Commission is not, however, a public prosecutor, and it should be borne in mind that similar powers to those proposed for the Commission have long been enjoyed by the Commission for Racial Equality and the Equal Opportunities Commission.

67. The Commission makes it clear that, if granted investigatory powers, it would make use of them only in rare instances. The Chief Commissioner stressed that there was evidence that the—

… mere existence of these powers is itself enough to ensure the production of the information that is being sought and therefore the powers themselves rarely, if ever, have to be used. They have a tremendous psychological effect by their mere existence.[67]

68. In our view the Human Rights Act would itself confer adequate safeguards in relation to any additional investigatory powers granted to the Commission, and would protect fair hearing rights under Article 6 ECHR and privacy rights under Article 8 ECHR. In addition, there could be provision that information obtained through the Commission's investigatory powers should not be admissible in subsequent court proceedings.[68] Furthermore, there will be legitimate constraints, set by the Commission's duty as a public authority to comply with the Human Rights Act, on the material of which the Commission can demand disclosure. As well as the constraints placed on the Commission by Articles 6 and 8 ECHR, legislation could include safeguards, such as those in the founding legislation of the Commission for Racial Equality and the Equal Opportunities Commission, that would prevent the unnecessary disclosure of confidential information obtained in the course of Commission investigations.

69. In his evidence to us the Minister then responsible, Des Browne MP, suggested that the question of additional investigatory powers was still open. We recommend that the review of the Commission's powers should reflect the Paris Principles, and the powers available to the equality agencies, and should allow the Commission investigatory powers. We support the Commission's recommendations for amendment of the Northern Ireland Act to allow it to compel the production of evidence, and to have access to places of detention for the purposes of its investigatory functions. Such powers should not be lightly or routinely exercised. However the experience of the equality commissions within the UK, and of human rights commissions in other jurisdictions, which suggest that such powers have a role in re-enforcing the authority and weight of the Commission, without the need to exercise them frequently, is persuasive.


33   Q 3 Back

34   For example, Baton Rounds: A review of the human rights implications of the introduction and use of the L21A1 Baton Round in Northern Ireland and proposed alternatives to the baton round, April 2003; In Our Care: Promoting the Rights of Children in Custody, March 2002; Enhancing the Rights of Older People in Northern Ireland, November 2001.  Back

35   Appendix 3, Ev 30 Back

36   Q 6 Back

37   Strategic Plan, 2002-2006 Objectives 3.1; 3.2; 3.3; 3.6 Back

38   Sixth Report of Session 2002-03 The Case for a Human Rights Commission, op cit, para 108 Back

39   Appendix 4, Ev 33 Back

40   An independent review of the Commissions powers, functions and structures, commissioned by the Commission and prepared by Peter Hosking (a consultant with the UNHCHR and former member of the New Zealand Human Rights Commission). The report was published in June 2002. Back

41   Strategic Plan 2002-2006, Objective 4.11, p 15 Back

42   The Northern Ireland Equality Commission has power to fund cases and to bring cases in its own name, as does the UK Equal Opportunities Commission (under the Sex Discrimination Act 1975) and the Commission for Racial Equality (under the Race Relations Act 1976). Although the equality commissions do not have express statutory power to act as amicus curiae or to make third party interventions, they have in practice done so. Back

43   NIHRC Annual Report 2002, p 40 Back

44   Q 27 Back

45   Q 30 Back

46   Q 26 Back

47   Q 22 Back

48   Report under 69(2) of the Northern Ireland Act 1998, op cit, p 21 Back

49   Appendix 4, Ev 38 Back

50   Appendix 12, Ev 63 Back

51   Appendix 3, Ev 31 Back

52   Q 31 Back

53   Q 49 Back

54   Appendix 12, Ev 67 Back

55   ibidBack

56   Q 32 Back

57   Decision of Sir Robert Carswell LCJ of 8 December 2000, upheld by the Court of Appeal [2001] NI 271 Back

58   Under section 69 of the Northern Ireland Act. Judgment of the House of Lords: In Re Northern Ireland Human Rights Commission (Northern Ireland), [2002]UKHL 25 Back

59   Section 69 Report, op cit, p 35. Broadly, the Commission conducts investigations where there are allegations of a pattern of abuse of human rights or where a serious human rights abuse is alleged to have occurred. Priority will be given to issues identified within the strategic plan, and to issues connected with work being carried out in accordance with the Commission's other functions. To date, the Commission has completed one full investigation, into the rights of children in custody, the results of which were published in March 2002. The Commission has stated that it aims to conduct two major investigations each year. A number of other research reports, undertaken under section 69(6) of the Northern Ireland Act, have also been produced under the guidance of the Commission's Investigations and Research Committee, and there are ongoing research projects, including one on the use of plastic baton rounds. Back

60   Human Rights Commission Act 2000, Section 9 Back

61   Sixth Report of Session 2002-03, The Case for a Human Rights Commission, op cit., Annex 1 Back

62   NIHRC Annual Report 2001-2002, p 47, See also Section 69 Report, op cit., p 37. These allegations are however contended by the NIO: Consultation Document, May 2002, para 87 Back

63   Q 17 and Section 69 Report, op cit., p 38 Back

64   QQ 18-19 Back

65   HL Deb, 21 October 1998, c 1543 Back

66   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) 216, para 36. Back

67   Q 17 Back

68   The Irish Human Rights Commission, under the Human Rights Commission Act 2000, must specifically authorise disclosure of information obtained in its inquiries, and such authorisation must be in accordance with law (section 8 (14) and (15)). Under section 8(16) information furnished in the course of an inquiry does not give rise to any civil or criminal liability, and is not admissible against the person disclosing it in any civil or criminal proceedings. Back


 
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