Joint Committee On Human Rights Written Evidence


3. Further memorandum from the Northern Ireland Human Rights Commission (NIHRC)

Introduction

  The resignations of two Commissioners in September 2002 were very much regretted by the remaining Commissioners and by staff. Their sudden departure came as a genuine surprise to everyone. Although it had been clear that each of the Commissioners in question had qualms about the way the Commission was proceeding on some issues—just as other Commissioners had qualms about other points—no-one suspected that resignations were in the offing. In this part of the Commission's evidence it seeks to address some of the points raised by the resigning Commissioners in statements made by them subsequent to their departure.

  The Commission would reject the suggestion that it is dysfunctional and that rational decision-making has become impossible. Such a suggestion is a gross distortion of reality, not to say a slur on the hard work and commitment exhibited by Commissioners and staff alike over the course of the last four years. While by no means operating perfectly, the Commission is very far from being the completely uncoordinated, disorientated and internally riven body which the words "dysfunctional" and "irrational" suggest.

  At the time of the resignations the Commission was in the middle of developing its Strategic Plan for the next three or four years and every Commissioner knew that they had ample opportunity to feed into the discussions around that Plan: a Draft Strategic Plan had been published and circulated widely in May 2002, with comments due back to the Commission by 1 September 2002. In so far as it has been suggested that the Commission's Strategic Plan for 2000-02, with which all Commissioners agreed at the time and over which there was no significant dispute in any other quarter, failed to set out specific human rights goals to be achieved and to present a "joined up" approach to strategies for achieving them, an analysis of the priorities set in that Plan—which include work on education—shows that almost all of the promises made in it have been fulfilled and that there has been substantial co-ordination in the undertaking of the activities concerned.

  The Commission was deliberately ambitious in its first three years because the Belfast (Good Friday) Agreement called for an institution that was more high-profile than the former Standing Advisory Commission on Human Rights. It has been suggested that institutions such as the Commission should have been established in "shadow" form for at least a six month period to develop internal staffing, working procedures and practices and initial agendas. But among the matters which arose in the first six months of the Commission's existence were a major treaty examination (CEDAW), an Asylum and Immigration Bill, and consultations on legislation concerning freedom of information and terrorism. None of these were matters on which the Commission could have credibly remained silent while working only on its own internal procedures. The Commission's new Plan, for 2003-06, will be more specific in view of the fact that the Commission is better aware of the real limits on its resources and powers.

  As regards alleged defects in the internal management of the Commission, a decision was taken in mid-2002 to build on the work done on the organisational effectiveness of the Commission by Mr Peter Hosking from New Zealand between November 2001 and April 2002. A consultant, Mr Roger Courtney, was duly appointed to make recommendations for reform in that regard. The Courtney report, as the Committee is aware, is all but complete and has been provisionally agreed by the Commission. The Commission envisages prioritising the implementation of its recommendations throughout 2003.

  As to points that have been made by others concerning the Commission's resources and powers, these were points which the Commission itself has long been making and on which the Government has still definitively to respond. To allege that the Commission's strategy for spending its money is incoherent, and not based on any prioritisation, is simply wrong. Any cursory perusal of the Commission's Strategic Plan for 2000-02 will indicate what the Commission's spending priorities were and why they were chosen. There is a whole section headed "Our Resources and Grounds for Choosing between Strategies".

  In any account of the Commission's operations, it should not be forgotten that extensive work done has been by the Commission on policing issues, on reports into the rights of older persons, the rights of gay, lesbian, bisexual and transgendered people and on the rights of people wanting to march or to oppose a march. Moreover strenuous efforts have been made to establish an effective Joint Committee with the Irish Human Rights Commission. In all of these matters the present Commissioners believe that valuable and essential work has been done which deserves to be acknowledged by the Commission's detractors and which is perfectly in line with what was expected of the Commission when it was first established.

The Bill of Rights project

  As regards alleged dissatisfaction with the Commission's Bill of Rights process, it is again important to remember that in September 2002, when two Commissioners resigned, the Commission was in the midst of its deliberations on how best to move forward with that process. Nothing had been firmly decided by then. Subsequent work by the Commission, already explained to the Committee, has ensured, we hope, that the path which all Commissioners were wary of treading (the dangerous one of driving a wedge between political parties) has not in fact been taken.

  Some seem to think that the Commission's Bill of Rights project has not been clearly managed within the Commission and that this has damaged the very idea of a Bill of Rights process as a valuable part of the peace process. No evidence has been presented to substantiate this large and alarming claim. There is, on the other hand, much evidence to suggest that the process has been a dynamic and open one which has raised awareness of the importance of human rights across wide swathes of civil society.

  It has also been alleged (by commentators as diverse as Ulster Human Rights Watch, the Evangelical Alliance and the resigning Commissioners) that the Commission's first draft Bill has failed to garner clear support among any community. This ignores the fact that the first draft was deliberately presented as a consultation paper, asking many questions—as is the custom in such papers—about consultees' preferences on certain points. No-one on the Commission seriously expected the papers draft Bill to be accepted in its entirety by anyone without demur. The Commission was not deeply divided over the consultation paper, whatever some people may now be saying. It was an agreed document which all Commissioners stood over when it was officially launched.

  A number of critics of the Commission seem to have a problem with its request to the OSCE's High Commissioner for National Minorities for comments on its Bill of Rights proposals regarding identity and community rights. But the Commission has an express statutory duty to advise on a Bill of Rights which reflects the fact that there are different communities in Northern Ireland, and it has an implied duty not to do anything that reduces the current level of human rights protections. The issue on which comments were sought was whether an existing treaty obligation towards "national minorities" (a term of uncertain application in the Northern Ireland context) would be undermined if the Bill of Rights gave similar rights to every "community". The legitimate aim was to find out whether it was possible to give ownership of the rights to both main communities, as well as to people outside those communities, without diluting the legal force of the obligation in the existing European Framework Convention on National Minorities towards "minorities". In that context the correct, obvious and necessary thing to do was to approach the treaty monitoring body for advice. This does not preclude asking other international bodies for their views too, and that is exactly what the Commission is doing.

Investigations and follow-up action

  It has been suggested that the Commission has had virtually no discussion about how it should work to implement the recommendations it makes or to build on the results of successful cases in which it has been involved. Again, this is not true. To take one set of issues as an example—investigations and the right to life—it is simply wrong to say, for instance, that terms of reference for a review of the Commission's work in response to the Jordan case were not passed to relevant staff. To accuse the Commission of being uncoordinated in this context is to ignore the fact that the Commission has, amongst other courses of action:

    —  met with and prepared a paper for the Fundamental Review of Coroners in England, Wales and Northern Ireland;

    —  met with the Chief Constable and a Government Minister to discuss the Key Persons Protection Scheme;

    —  consulted counsel on how to seek further appropriate information from the police and the government in relation to the protection of individuals generally;

    —  met with the Police Ombudsman and corresponded with the Chief Constable concerning "cold case reviews" of murder files;

    —  met with a Government Minister and prepared a draft response to the Government's "package of measures" reacting to Jordan et al, which the Government presented to the Council of Europe in October 2002;

    —  prepared terms of reference for a review of the law and practice concerning inquests in Northern Ireland;

    —  submitted detailed terms of reference to the Government for a large-scale investigation into how the right to life is protected by law in Northern Ireland;

    —  had several meetings with the English police officers leading the investigations into the murders of Pat Finucane and Rosemary Nelson;

    —  commissioned an external expert to consider the lethality of the "new" baton round in use since June 2001;

    —  offered its views to the Shipman Inquiry in relation to proposed reforms of the coroner system;

    —  granted assistance to the family of a young man who died in the Young Offenders Centre in Belfast; and

    —  asked for sight of the Prison Service's report into the death of Mark Fulton in Maghaberry Prison in June 2002.

  It is obvious that the Commission's work on this area has impacted across functions of the Commission apart from casework. (The decision not to ask the Commission's Case Worker to assist with the Commission's work on an investigation into Article 2 issues was one taken by the Casework Committee, based on what was considered to be best for the casework function of the Commission and for the Commission's staffing arrangements as a whole).

Comments on draft legislation and policy

  At the time of the resignation of two Commissioners in September 2002, the relevant Committee of the Commission (of which one of the resigning Commissioners was a member) was actively working on the devising of criteria for deciding when to prepare comments on draft legislation and policy. The suggestion that up until that time the taking of decisions on which consultations documents to comment on was a more or less random process is incorrect. Given the guidance obtainable from the Commission's Strategic Plan 2000-02, and our awareness of our limited resources, there was very rarely any difference of opinion among Commissioners present at the Committee meetings, or between them and the relevant Commission staff, as to whether a particular consultation required action, and if so, what sort of action. Since the vast majority of the 300-odd documents considered by the Committee each year did not engage human rights principles, in most cases it was agreed that no response was required. In those instances where human rights issues did present themselves, it was usually clear whether a brief response by letter was called for or an in-depth, perhaps externally commissioned submission. Every single item received by the Commission was and is reviewed, initially by staff and then through a report to the Legislation and Policy Committee where the Commissioners revisit the staff position on whether action is needed. The items considered include not only legislation, as some critics have implied; in fact almost half of the workload is policy consultation and international work.

Casework

  The criteria used by the Casework Committee for deciding when to grant assistance to applicants have been kept under constant review and discussed many times by the Committee with advice from outside counsel. They are to an extent dictated by the wording of section 70 of the Northern Ireland Act 1998. The expanded criteria have allowed the Commission to grant assistance strategically, in cases where it thought might achieve a positive result as regards the promotion and/or protection of human rights. As our Annual Report for 2001-02 indicates, in the past year we granted assistance to only seven applications out of 54 considered. The selection of cases was far from random.

  The Committee did not, for example, grant assistance to individual applicants in planning matters, since that is not an area highlighted in our Plan as deserving of attention (instead we chose to commission a general report which we make available to anyone who has a query concerning the relevance of human rights law to planning). We did, on the other hand, prioritise assistance to applicants whose cases involved alleged violations of Articles 2 and 3 of the European Convention. The Committee has been meticulous in giving full consideration to each application submitted and it took a unanimous decision to try to stop the broadcasting by the BBC of an edition of Panorama in October 2000. Every Commissioner went along with that decision at the time because, even though it may not have been a "popular" course of action, it was one which we felt was necessary to check the huge power of a public broadcasting company and because of the importance of the right to a fair trial.

  The Commission's phone-around process for urgent applications has been criticised by some, but with no consideration given as to how else the Commission might make a decision in circumstances where it is not possible to bring together a quorum at a meeting. Human rights issues of some urgency are bound to arise from time to time and a mechanism has to be in place to allow the Commission to respond urgently. Of course it is important to be clear about what is genuinely an urgent issue and the Commission is currently looking at that. To date the criteria applied during the consideration of urgent cases have (inevitably) been the same as those applied in non-urgent cases and care has been taken to support only those applications where it was felt that the Commission could effectively promote human rights. Of course not only must casework further pre-set strategic goals: sometimes an intervention will be required because of an unforeseeable serious threat to the human rights of one or more individuals.

  The Memorandum of Understanding with the Legal Aid Department of the Law Society has not yet been finally agreed, but both organisations have for some time been working to a draft Memorandum which has thrown up few problems. The current wording of the Memorandum is one which the Casework Committee has approved, at least for the time being. Difficulties in this area have been caused by the wording of legislation—section 70 of the Northern Ireland Act 1998 and Regulation 5(13) of the Legal Aid Regulations (NI) 1965—but they are being surmounted through good liaison.

Education

  Some individuals take a view of the importance of human rights work in the education field which is at odds with that shared by the present Commissioners and staff. There was, and still is, a more than sufficient consensus within the Commission for the undertaking of work on the Burns Report into selection for education at age 11. This is because human rights issues can easily be discerned in the stressful nature of the selection process on children who take the examination, and especially those who fail it. There is also a potential negative impact on those who do not take the exam if their teaching is neglected while resources are concentrated on examinees. There is the broader question of whether academic selection perpetuates socio-economic inequalities, engaging another range of human rights principles. These are not issues which the Human Rights Commission could afford to ignore, especially when a major review was under way and it had been invited to participate.

  Although there was not much time available for comments to be returned, the Commission's draft response to this Report was circulated to all Commissioners for comment and a member of the Burns Review team was invited to a Commission meeting to talk about the Review's recommendations from a human rights point of view. The prevailing opinion concerning the Commission's event on the Burns Report is that it was very worthwhile. The Education Worker, moreover, has been very much involved in the Commission's Bill of Rights work, as have several of the Commission's staff.

Victims

  Any suggestion that the Commission's Committee for Victims has displayed an antipathy to victims of state abuses—or, what is even stronger criticism, a predominant strategy of excluding victims of state use of force from its work—is quite simply untrue. The fact that the Committee for Victims has done some work on the victims of paramilitary atrocities in no way diminishes the Committee's, and the Commission's, commitment to working on the rights of victims of state abuses. In 2000 there was some disagreement over who should be invited to be members of the Commission's Bill of Rights Working Group on Victims, but this was based on mutual misunderstandings and in the end the matter was resolved to everyone's satisfaction.

  Contrary to some suggestions, the Committee did seek out international best practice concerning the sitting of memorials. An acknowledged local expert was invited to address the Committee and a researched trawled the international human rights documents for helpful provisions.

  The Commission's report on the rights of victims of violence (all violence) has been delayed principally because the person appointed to do the task was taken ill and funding shortages have meant that other members of staff and Commissioners have had to complete it bearing in mind further recent developments in the field.

  There is clearly a role for the Human Rights Commission in promoting and protecting the human rights of victims (all victims). Such work can make an important contribution to the creation of human rights culture in Northern Ireland.

International work

  As well as filing well written reports with international treaty-monitoring bodies, representatives of the Commission have attended hearings, lobbied members of the monitoring bodies, liaised with UN and Council of Europe secretariats and key officials, co-operated with NGOs also presenting to treaty-monitoring bodies, made our comments widely available, developed staff expertise and experience, collected materials, etc. Earlier this year a document presenting a strategic approach to international work was considered and approved by the Commission and it is to be summarised in the next Strategic Plan for the period 2003-06. There is a consensus within the Commission that the Commission's international work has been productive, cost-effective and valuable.

Conclusion

  The present Commissioners are enthusiastic about their work for the Commission and are of the view that they are addressing its future in a positive and constructive manner.

10 January 2003


 
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