Joint Committee On Human Rights Written Evidence


5. Memorandum from British Irish Rights Watch (BIRW)

1.  INTRODUCTION

  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 the Joint Committee on Human Rights' scrutiny of the Northern Ireland Human Rights Commission, but would have appreciated a longer period of time in which to submit written evidence.

  1.3  Over more than a decade of work on the human rights dimension of the situation in Northern Ireland, British Irish Rights Watch has consistently advocated the adoption of a Bill of Rights and the establishment of a human rights commission, and we were delighted when these issues were addressed in the Good Friday Agreement and won overwhelming support in the referendum that approved the peace package. However, since 1998 we have watched with some dismay the way in which those two human rights pledges have been delivered in practice. In particular, the government has failed to give the Commission the resources or the powers that it needs to carry out its mandate, failed to consult the Commission about matters that clearly lie within its remit, and it has failed to give the Commission its wholehearted public support. Furthermore, recent appointments to the Commission have appeared to have been made in reaction to political pressure and to have moved away from the principle that, while the composition of the Commission should reflect the community that it serves, its members should be selected first and foremost because of their knowledge of and commitment to human rights, rather than for any political reason.

  1.4  Against that background, we are surpised that the Joint Committee on Human Rights has chosen to hear oral evidence only from the Northern Ireland Human Rights Commission and the Northern Ireland Office. The Joint Committee will be aware that three Commissioners—Angela Hegarty, Christine Bell and Inez McCormack—have resigned since its inception. All three are known for their expertise and for their commitment to human rights and equality. We would have thought that the Joint Committee could benefit from their insight into the workings of the Commission.

2.  THE COMMISSION'S EFFECTIVENESS

  2.1  Any consideration of whether the Commission has been successful in furthering the protection and promotion of human rights in Northern Ireland must take account of the environment in which the Commission came into being and presently operates. Since Northern Ireland was created in the 1920s, human rights have been ignored and abused. A combination of the effects of the conflict, the repressive measures taken by governments in an attempt to quell the conflict, and the abuse of power by the Stormont government, disbanded in 1972, has resulted in grave damage to democracy and the institutions of society in Northern Ireland. In consequence, little or no human rights culture exists to which civil society can adhere. Human rights have become a victim of the conflict just as surely as the dead and injured. In Northern Ireland, it is not a question of restoring respect for human rights, but of creating that respect. Some might say that it was a brave experiment to plant the United Kingdom's first, and so far only, human rights commission in such a desert; others might say that such a project was set up to fail.

  2.2  The Commission is a creature of the Good Friday Agreement. While there was some cross-party political support for the Bill of Rights at the time of the Agreement, there was no obvious political champion for the Commission itself. As with other human rights aspects of the Agreement, the Commission has found itself without meaningful political backing and has been left to sink or swim. Perhaps more so than any other of the human rights features of the Agreement, the Commission has suffered the fate of being used as a political football.

  2.3  It is an unfortunate but well-recognised fact that governments, however committed they may be to human rights in principle, tend to be the most hostile to human rights in practice. Political parties are also often hostile to human rights and are perfectly prepared to politicise human rights issues if it suits them. Such has proved to be the case in Northern Ireland, where unionist politicians, led, most regrettably, by David Trimble MP, who as First Minister of the Northern Ireland Assembly had particular responsibility for human rights, have mounted a sustained attack on the Commission. Many of the attacks have centred on the membership of the Commission, with politicians wilfully ignoring the fact that the Commission itself has no control over its membership, which—unfortunately, in our view—is the responsibility of government. Bizarrely, initial attacks on the Commission's membership[51] centred around the fact that some of its members were or had been in the past members of the Committee on the Administration of Justice, Northern Ireland's foremost human rights groups and the winner of the Council of Europe's Human Rights Prize in 1998 for its work to place human rights and equality at the heart of the peace process. David Trimble said in Parliament in 2000, "A large number of people in Northern Ireland, myself included, think that that commission has no credibility in view of the discriminatory process by which it was formed and of quite a few of the persons on it." [52]Lord Laird of Artigavan—one of the most outspoken of the Commission's critics—has gone so far as to lambast the Commission because its membership does not reflect "those who, for religious reasons, do not believe in the concept of human rights"[53], which is rather like criticising the Church of England because the Synod does not include atheists.

  2.4  Depressingly, the government has frequently failed to defend the Commission sufficiently robustly. Instead, it has left the Commission to answer dozens of patently ill-intentioned questions laid down in Parliament and in the Northern Ireland Assembly, at disproportionate cost in terms of its already scarce resources. It has also deprived the Commission of the powers[54] and the resources[55] it needs to operate effectively.

  2.5  The government has further undermined the Commission's effectiveness in terms of its membership. We have always argued that the Commission should be independently appointed, rather than by the Secretary of State. Our view has been reinforced by the most recent round of appointments, which has skewed the Commission's ability to reflect the community it serves, in accordance with the 1998 Northern Ireland Act[56] and the Paris Principles[57]. Whereas the initial set of 10 commissioners was made up of six Protestants and four Catholics, with a 50:50 gender split—thus reflecting Northern Ireland society well—the present, expanded membership breaks down as eight Protestants to four Catholics[58] plus one member who is neither, and eight men to five women—thus moving away from an accurate reflection of the community. Furthermore, while the original membership included a high level of human rights expertise, that has now been somewhat watered down. Any review of the Commission's effectiveness cannot afford to discount the views of the three members who have resigned. We are also concerned that the appointment of a serving UUP Councillor[59] further dilutes the appearance of the Commission's independence and begs the question of whether, if serving politicians can be members, the government needs to look to the political balance within the Commission—a trend to which we would be opposed. Finally, we would point out that governments come and governments go, and even if it were not for the concerns outlined above, we would prefer to see the independence of the Commission enshrined in legislation, to safeguard it from the predations of a less enlightened regime.

  2.6  It should be borne in mind that the Commission, although it inherited some staff initially from the Standing Advisory Commission on Human Rights, had to be set up virtually from scratch. In our view, the Commission did a good job of consulting over its mission statement, core values and priorities, with which we are in broad agreement. It has also developed sensible criteria for undertaking casework and investigations.

  2.7  The Commission itself has commissioned an external evaluation of its effectiveness by Peter Hosking, a senior consultant with the United Nations. He has made a number of recommendations concerning the staffing structure of the Commission and its resources, which we would largely endorse.

3.  THE POWERS OF THE COMMISSION

  3.1  In February 2001, in compliance with s. 69 (2) of the Northern Ireland Act 1998, the Commission made recommendations to the government on ways of improving its effectiveness, including its powers and duties[60]In a further display of its lack of commitment to the Commission, the government failed to respond until May 2002. Although its response to the Commission's recommendations concerning their powers is for the most part couched in positive language, we note that the majority of the Commission's recommendations are either not accepted, deemed to be unnecessary, or accepted only partially or subject to consultation.

3.2  Appointments[61]

  We have already commented on the appointments process (please see paragraph 2.5 above). The Commission wants to make two of its commissioners full-time[62]The government says it has already increased the number of commissioners by four and proposes that one of the existing commissioners should become a deputy chief commissioner. We tend to agree with the government that creating some full-time and some part-time commissioners post may bring about a situation where some commissioners are more equal than others. We note that Paul Hosking has made what seems to us to be sensible proposals for re-organising the staffing structures within the Commission[63]which would improve the Commission's resources and working practices and thus remove some of the pressure on the members of the Commission. We recommend that these changes are implemented—and financed—and that the Commission re-evaluates the situation once those changes have taken effect.

3.3  Impartiality

  The Commission wishes to see the impartiality and independence of its members made a statutory requirement. The government feels that ss. 75 and 76 of the Northern Ireland Act 1998 provide sufficient safeguards. However, s.75 only enjoins public authorities to have "due regard" to the need to promote equality of opportunity, while s. 76 only outlaws discrimination on grounds of religious belief or political opinion. The Commission's formulation, that each member shall "serve impartially and independently and shall exercise or perform his or hers powers, duties and functions in good faith and without fear, favour, bias or prejudice and subject only to the law," goes far beyond that. We are disappointed that, headed off at the pass by the government's response, the Commission itself is no longer pressing for this reform, which we consider to be important, especially in light of the concerns we have expressed elsewhere in this submission.

3.4  Review of Human Rights Policy[64]

  The Commission wants to be able to keep human rights policy in Northern Ireland under review, as well as law and practice. The government resists this proposal, although its grounds for doing so are not made explicit. The government has asked for examples of policy issues that are not covered by law or practice. An obvious example is the decision of the United Kingdom not to ratify the First Optional Protocol to the International Covenant on Civil and Political Rights, which would give people in the UK the right of individual petition to the United Nations Human Rights Committee, and indeed many other international human rights instruments that would benefit the people of Northern Ireland. That example perhaps explains the government's reluctance to allow the Commission to review policy matters. To do so would invite criticism of their political judgement, and would expose failings in their human rights policies not only in Northern Ireland but throughout the UK, thus indirectly highlighting the anomaly of having a human rights commission in one jurisdiction only. These all seem to us to be excellent reasons for extending the Commission's remit to include policy matters.[65]





3.5  Human Rights Act and Bill of Rights[66]

  The Commission wants an explicit power to keep under review the implementation of the Human Rights Act and the Bill of Rights. The government thinks this is unnecessary. The government's stance is disingenuous in light of the motion of censure of the Commission tabled in the Northern Ireland Assembly in January 2002 for allegedly acting ultra vires in relation to the Bill of Rights. The Commission has few enough resources, without having to waste time defending itself from challenges about its powers. If the government is of the view that the Commission already has these powers, we can see no harm in spelling them out on the face of the statute.

3.6  Reporting and External Assessment[67]

  The Commission has sought to be put under a statutory duty to report on whether its recommendations concerning its own effectiveness have been implemented, to make further recommendations, and to bring in outside assessors. The government prefers a more open-ended power. We tend to agree with the government's approach, subject to seeing the wording of the proposed amendment. However, we detect a degree of frustration on the part of the Commission that the government has, in more substantive areas of human rights, failed to seek, heed or implement its recommendations. According to the Commission's own review of its effectiveness, published in February 2001, the government did not consult the Commission about fast-tracking some aspects of the Human Rights Act, ignored its comments on the Freedom of Information Act and the Terrorism Act and its Codes of Practice, and only informed the Commission after briefing journalists on the government's plans regarding the Review of the Juvenile Justice Estate. Only in the case of the Immigration and Asylum Bill did the Commission receive the courtesy of a substantive, if unresponsive, reply to its concerns. The government should re-assess its attitude towards advice from the Commission.

3.7  Draft Legislation[68]

  The Commission would like to be able to comment on draft legislation for Northern Ireland at an early stage. The government rejects this proposal. Here is another example of the government drawing the teeth of the Commission, for no good reason. The government seems to prefer to rely on the advice of the Northern Ireland Office and the Joint Committee on Human Rights. While the former have knowledge of Northern Ireland and the latter have knowledge of human rights, the Commission has knowledge of both. The logic of failing to avail of the Commission's advice and expertise escapes us.

3.8  International Treaties[69]

  The government is doubtful about putting the Commission under a duty to advise them on the ratification of international human rights treaties because it would fetter the Commission's discretion. The obverse of a duty is a right. We support the Commission's claim to a right to be consulted on these issues.

3.9  Due Regard to be paid to Advice[70]

  The government resists the Commission's recommendation that it should have the due regard to advice from the Commission. Given the government's poor record in having any regard for some of the Commission's advice to date[71]it seems to us that only a statutory provision will suffice. We accept that the government is entitled to seek advice from many quarters, but a requirement that it pay "due" regard to the Commission's would neither inhibit its ability to do so, nor usurp its prerogative to make policies and laws. It seems to us that, if the government is not prepared to have due regard to the Commission's advice, it is not serious in its commitment to human rights or to the proper implementation of the human rights pledges in the Good Friday Agreement.

3.10  Power to give information and advice[72]

  Given the attempts that have been made to undermine the Commission by challenging its powers, we support the inclusion of a specific power to provide information and advice. Although the House of Lords ultimately ruled[73]that the Commission's power to act as amicus curiae was inherent, it took lengthy and expensive litigation and the third party intervention of the government and human rights NGOs to establish the point. Making the Commission's powers explicit in the Northern Ireland Act would avoid any repetition.







3.11  Power to bring proceedings in the Commission's name[74]

  The government is not prepared to allow the Commission to litigate in its own right, insisting that only victims of human rights violations should be able to do so. In view of the fact that the Equality Commission can legislate in its own name, there seems to us to be no rationale for depriving the Human Rights Commission of that power. We consider that the Commission needs this power in order to take cases involving classes of victims and where a victim would suffer disproportionately from the weight of taking a case in his of her own name.

3.12  Power to comment on UK reports to Treaty Bodies[75]

  The government sought views as to whether the Commission should have a power of be put under a duty to comment on the UK's reports to regional and international human rights bodies. In this instance, we favour a power, which would give the Commission a discretion over whether to comment or not. Since the Commission's primary remit is Northern Ireland, and given its lack of resources, it should be for the Commission to decide whether or not to prioritise such work in relation to any given report.

3.13  Power to consult other bodies[76]

  We support the Commission's proposal that it be given the power to consult with and meet appropriate bodies in the course of its work.

3.14  Right to be consulted about education matters and to monitor the curriculum[77]

  We do not accept that, because education is a devolved matter, the government cannot legislate in this area when it comes to ensuring that Northern Ireland, like the rest of the UK, complies with international human rights obligations. That is surely a reserved matter. However, it is of course appropriate for the government to consult the Northern Ireland Assembly and the department of education concerning this proposal. We see no need for the government to emphasise[78]the fact that the Northern Ireland authorities need not follow any advice they may receive from the Commission. On the contrary, in our view they ought to be placed under a duty to have due regard to any advice.

3.15  Right of access to places of detention etc[79]

  The government refuses to allow the Commission the right of access to places of detention and places where people are in the care of a public authority or of someone exercising functions of a public nature, on the grounds that this would cause confusion with the role of other bodies. We accept that there is a potential for some overlap, but where that may exist a Memorandum of Understanding with the relevant body could prevent any duplication. As the Commission points out[80]the powers it is seeking merely bring it into conformity with best practice as recommended by the United Nations. We anticipate that the Commission would only make use of such a power on rare occasions, but the very fact of it having such a power would enhance its effectiveness and its standing and thus indirectly promote adherence to human rights standards by the bodies in question.

3.16  Warrants to search premises[81]

  The Commission has provisionally decided to withdraw their recommendation that they have the power to apply for a warrant to search premises. We think they are wise to do so. If they are given sufficiently strong powers to obtain disclosure (please see paragraph 3.18 below), they should not need such a power.

3.17  Power of discovery[82]

  Possibly the most serious deficiency in the Commission's current powers is the lack of a power to compel discovery of documents of attendance at interviews by relevant persons, but the government has set its face against granting such a power. In doing so they are depriving the Commission of powers that are available to their counterparts elsewhere, for example in Ireland, and to other bodies such as the Local Government Ombudsman. In our view, failure by the government to reverse its response on this crucial matter will confirm our worst fears that the government is determined to turn the Commission into a paper tiger.

4.  THE COMMISSION'S RESOURCES

  4.1  The Commission is seeking a statutory requirement that it be given sufficient funding to enable it to carry out each of its functions effectively. The government is resisting this recommendation because it claims that the Commission is already "in the driving seat" financially[83]a statement which is clearly inaccurate. In reality, the government is drip feeding finance to the Commission, on a project-by-project basis which, as the Commission rightly identifies, curbs their independence.









  4.2  It cannot be good governance for a government to set up a body with statutory powers and duties but then to starve it of sufficient resources to enable it to fulfil those functions. The Commission has said from the outset that it is under-resourced, and the government has tacitly acknowledged that by increasing the Commission's baseline budget of £750,000 by a massive 74% in 2001-02[84]The Commission is also considerably less well funded than some of the similar bodies in Northern Ireland, such as the Police Ombudsman, with a budget of £6 million, and the Equality Commission, £7.5 million.

  4.3  Peter Hosking, the consultant who carried out the review of the Commission's effectiveness, concluded that the baseline budget of £750,000 per annum for the first three years needs to be doubled to £1.5 million[85]which is still a very modest amount when compared to the other bodies mentioned above. Indeed, the figure sounds too low to us. While we support the provision for an adequate budget for the Police Ombudsman and the Equality Commission, the Human Rights Commission's functions are at least as important as theirs, and it seems to us that it should enjoy a commensurate budget. Even a budget of £7 million or £8 million per year for the Commission would be negligible when set alongside the PSNI's budget of £642 million in 2001-02.

5.  THE BILL OF RIGHTS

  5.1  British Irish Rights Watch has made a detailed submission to the Commission concerning its draft Bill of Rights, a copy of which is included at Annex A.[86]

  5.2  Although the Commission consulted very widely within Northern Ireland, they failed to consult our organisation, which is based in London, despite being very well aware of our work and its relevance to the Bill of Rights.

  5.3  We do not consider the present draft Bill to be acceptable as it stands. Our two major criticisms of the draft Bill stem from this lack of any evident overview. The first criticism is that it is unclear from the draft whether the Bill is taking the European Convention of Human Rights as a starting point from which to elaborate a set of enhanced rights, that improve on the ECHR and go beyond it, or whether the ECHR is seen as a ceiling beneath which existing rights can be better articulated but above which it is not possible to venture.

  5.4  Our second criticism, which is crucial, is the confusion on the face of the draft between minority and majority rights. We understand that those drafting the Bill believed it was important to recognise the rights of the two main communities in Northern Ireland equally. Although we can understand the appeal of such an approach, we think it is mistaken. A Bill of Rights for Northern Ireland needs to be about, and for, everyone in Northern Ireland, not just Protestants and Catholics. Bills of Rights need not only to protect individuals from governments, but to protect minorities from majorities. This is perhaps particularly so in a democracy, where the majority have the final say in many important matters affecting the lives of the minority. It is therefore vital that a Bill of Rights draws a clear distinction between rights that apply to everyone in a society and additional rights that apply to minorities in order to protect, in essence, their identitiy and their right not to conform to the majority norms. Yet the draft Bill does not do this. It adopts many of the concepts included in the Framework Convention on the Protection of National Minorities, but—fatally, in our view—substitutes the notion of "members of communities" for that of minorities, thus at a stroke creating minority rights for the majority. This flaw is so grave, in our opinion, that unless it is rectified we will not be able to support the Bill of Rights because it will deepen the existing divides in Northern Ireland rather than helping to heal them.

  5.5  Although the draft Bill contains an excellent section on children's rights, it goes into so much detail that the Bill is seriously out of kilter. In our view, a Northern Ireland Bill of Rights should not be seen as the terminus of the development of human rights legislation for Northern Ireland, but as the start of the process, with scope for further bills on children's rights, women's rights and so on.

  5.6  We were surprised that the draft Bill did not tackle the issue of contentious parades.

  5.7  It is not clear to us what mechanism the Commission intends to adopt in order to take the Bill of Rights forward. We know that the Commission had received many submissions in response to the first draft, some of it conflicting. Rather than seek to resolve these conflicts itself, we suggest that the Commission seeks the advice of a panel of academics with expertise in drafting bills of rights in other countries. The Commission should not be afraid to go back to the drawing board where necessary, nor should it worry if the second draft looks very different from the first. For its part, the government should provide all necessary resources to ensure that the final draft is a model for other jurisdictions and countries, and should commit itself to enshrining the eventual bill in law.

November 2002





51   Exemplified in Equality group is lopsided warns Trimble, by Mervyn Pauley, News Letter, 11 October 2000. Back

52   House of Commons, 20 November 2000. Back

53   House of Lords, 11 December 2001. Back

54   Please see section two below. Back

55   Please see section four below. Back

56   Section 68(3). Back

57   Principles relating to the status and functioning of national institutions for protection and promotion of human rights, United Nations, A/RES/48/134, 20 December 1993, Principle 1. Back

58   These numbers are based on the perceived cultural affiliations of members, rather than their personal religious beliefs. Back

59   Chris McGimpsey, about whom we intend no personal criticism in making this observation. Back

60   Report on Effectiveness: Northern Ireland Human Rights Commission Report to the Secretary of State required by s. 69 (2) of the Northern Ireland Act 1998, February 2001 [Report on Effectiveness]. Back

61   Ibid, recommendation 1. Back

62   Ibid, recommendation 7. Back

63   The Northern Ireland Human Rights Commission: An Evaluation of its Powers, Effectiveness and Structure, Peter Hosking, April 2001, pages 55-57, and recommendations 10-14, page 59. Back

64   Report on Effectiveness, recommendation 2. Back

65   Ibid, recommendation 8. Back

66   Ibid, recommendation 9. Back

67   Ibid, recommendation 10. Back

68   Ibid, recommendation 11. Back

69   Ibid, recommendation 12. Back

70   Ibid, recommendation 13. Back

71   Please see paragraph 3.6 above. Back

72   Report on Effectiveness, recommendation 14. Back

73   In re the Northern Ireland Human Rights Commission, House of Lords, 20 June 2002, [2002] UKHL 25. Back

74   Report on Effectiveness, recommendation 17. Back

75   Ibid, recommendation 18. Back

76   Ibid, recommendation 19. Back

77   Ibid, recommendations 20 and 21. Back

78   The Government's Response to the Northern Ireland Human Rights Commisson's Review of Powers Recommendations, May 2002 [Government Response], paragraph 82. Back

79   Report on Effectiveness, recommendation 22. Back

80   Ibid, page 40. Back

81   Ibid, recommendation 23. Back

82   Ibid, recommendation 24. Back

83   Government Response, paragraph 32. Back

84   Ibid, paragraph 31. Back

85   The Northern Ireland Human Rights Commission: An Evaluation of its Powers, Effectiveness and Structure, Peter Hosking, April 2001, Page 53. Back

86   Annex A not printed. Back


 
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