Joint Committee On Human Rights Written Evidence

9. Memorandum from ECONI[91]


General Comments

  1.  The Commission's effectiveness cannot be judged without reference to a range of other factors. The Commission is only one of a wide range of bodies—some predating the Belfast Agreement and some resulting from the Belfast Agreement—that have responsibility for the protection of human rights in the broadest sense. Consequently, assessment of the human rights regime in Northern Ireland must be taken in the round.

  2.  Assessment of the Commission's effectiveness is also difficult given the ongoing wider political situation that pertains in Northern Ireland. The absence of political stability, the ongoing community conflict, and the pervasive presence of paramilitary elements in Northern Ireland society have created a scenario in which the "normal" practice of human rights, such as was envisaged in the Belfast Agreement is extremely difficult to implement.


  3.  The greatest barrier to the effectiveness of the Commission remains the controversy over the extent to which the Commission adequately reflects and represents the community in Northern Ireland. The Agreement envisaged that the NIHRC would have "membership from Northern Ireland reflecting the community balance."[92] The potential sensitivity of the issue of representation was clear in the parliamentary debate surrounding the relevant clause in the Northern Ireland Bill.[93] The legislation which finally appeared incorporated this requirement but using a different form of words: "In making appointments under this section, the Secretary of State shall as far as practicable secure that the Commissioners, as a group, are representative of the community in Northern Ireland."[94]

  4.  The notion of what constitutes a group as "representative of the community in Northern Ireland" has been extremely difficult to define and the response from the Unionist community is an indication that the Secretary of State failed to meet this requirement in the eyes of a significant part of the community. While members of the Commission may reflect a balance of nominal religious affiliation, it is not clear that they represent a balance of political affiliation. The replacement of Angela Hegarty—a Commissioner clearly identified with the nationalist community—following her resignation, with four members one of whom is clearly identified with the Unionist community appears to be a de facto recognition by the Secretary of State of the failure of the initial appointments to meet the requirements of Section 68(3).

  5.  We have also had some concerns regarding the issue of representation inasmuch as the original body of Commissioners did not include any members of minority ethnic communities in Northern Ireland—a failure which has been recognised and put right. We have also been concerned that the Commission is weighted too heavily towards academics in the field of law and others whose background is in the law. While recognising that there must be a significant input from legal experts, it is also our contention that a Human Rights Commission is a fundamentally political entity and that, if a Human Rights Commission wishes to be seen as more than an entity for the technical regulation of legal requirements regarding human rights legislation, it must embrace as diverse a range of interests as possible.

  6.  A further concern in regard to the issue of representation concerns the lack of transparency in the selection process for members of the Commission[95] While we understand that the initial selection process is carried out according to the Nolan standards we believe that a number of names are put forward to the Secretary of State who has the final say. It is our view that this effectively undermines the credibility of the process of appointment. It is not, however, our contention that the appointment of Commissioners should not require a political input. On the contrary, our view is that there should be a greater level of political involvement in the process. However, that process should be transparent.

  7.  We have advocated a system whereby Commissioners would either be appointed or confirmed by a cross-community vote in the Northern Ireland Assembly. This would enable the Commissioners to set about their task with confidence that they have the broad support of the representatives of the community. It would also enable a public discussion in the Assembly of the values and beliefs that prospective Commissioners bring to the post. Similar models are successfully used elsewhere and we see no good reason for not pursuing a more transparent and accountable mechanism for appointment in Northern Ireland[96]

  8.  We would also advocate that the legislation should be modified to allow for the appointment of Commissioners from beyond Northern Ireland. Making use of skilled and respected men and women from many states contributed to the delivery of the Belfast Agreement and the implementation of many of its key requirements. We see no reason why the same should not be possible in relation to the NIHRC.


  9.  While the issue of representation has been used maliciously to undermine the work of the Commission and so to undermine the Belfast Agreement, we believe that there are fundamental issues at stake which impinge directly on the effectiveness of the Commission. In a recent report drawn up for the Organisation for Security and Cooperation in Europe it was argued that, "The greatest guarantee of the impartiality and fairness of national institutions is the selection of an Ombudsman or human rights commissioner widely respected across political, economic, social and cultural lines as wise, impartial, fair and someone who seeks the broadest guarantees of respect for human rights. The quality of the selection process ensures the quality of the candidate chosen."[97] Without confidence in the impartiality and fairness of the process to select Commissioners and the Commissioners so selected, no Human Rights Commission can be as effective as it should be.


General Comments

  10.  We believe that the question of the Commissions powers cannot be addressed without reference to the wider context of the Commission's credibility, the role of other bodies with human rights responsibilities, and the political context of Northern Ireland.

  11.   Given the concerns over the extent to which the Commission is or is not representative of the community, we believe that any extension of powers is inappropriate until this fundamental issue has been addressed. Inevitably, the greater the powers of the commission, the greater the potential controversy over the use of those powers in what are controversial issues. Until the Commission has the confidence of the whole community the exercise of increased powers might well have the effect of further undermining confidence.

  12.  As the government has noted in its response to the Commission's review of powers document, there are many other organisations tasked with the responsibility for protecting human rights in Northern Ireland. Not all of these bodies have the same kinds of powers and not all of these bodies are required to have the same kinds of powers to fulfil the remits they have been given. If existing agencies and structures are capable of addressing some of the issues that the Commission is not able to address, there is no requirement for more powers to be given to the Commission.

  13.  The experiment that is the Belfast Agreement is still in its early stages. The review of powers for the Commission built into the legislation[98] was premised on a different political scenario from that which has developed. Accordingly, it is our view that the Commission has been trying to fulfil its current obligations in an environment which is not conducive to its work. Until there is a greater degree of political stability and the Commission is able to fulfil its obligations in that environment over a meaningful period of time, it is inappropriate to expand the Commission's powers.

  14.  In an earlier document we made our response to The Government's Response to the Northern Ireland Human Rights Commission's Review of Powers Recommendations—A paper for Consultation. The following paragraphs are the text of that response.

Response to the Government's Consultation Paper

  15.  As an organisation we would want to broadly endorse the framework within which the government's response has been made. We endorse the view that most changes considered necessary can be dealt with at an administrative level and do not require legislative action. We endorse the government's position that the NIHRC is only one of a wide range of bodies which address issues of human rights and equality and that the NIHRC's task has to be seen in that wider context. We endorse the government's position that the NIHRC should, unless there are very strong reasons to the contrary, operate within the same framework as other Non-Departmental Public Bodies (NDPB). We endorse the government's position that the NIHRC must demonstrate the need for extra resources to fulfil its mandate rather than expanding its mandate and then expecting more resources.

  We are particularly pleased that the government has rejected Recommendation 11 demanding privileged access to draft laws and policies. In addition to the reasons offered in the government's response we also believe that this recommendation, if enacted, would undermine principles of democracy and, potentially, undermine the work of the Assembly. We believe that it is the business of the Executive and Assembly to bring forward legislative proposals and the business of the members of the Assembly to scrutinise those proposals and represent the views of the public. To give any NDPB privileged access the draft legislation would be unacceptable.

  17.  We are also pleased that the government has rejected recommendations 22, 23 and 24—particularly the latter two. In addition to the reasons given in the government's response we believe that granting powers of this nature would also raise serious new issues of accountability and control in relation to the NIHRC that would require a major change in the legislation.

  18.  On recommendations one and seven we accept that the government believes that the present arrangements are acceptable, particularly in the light of the appointment of additional Commissioners. However, we do believe that there are ongoing concerns in the area of the representativeness of the Commission, and consequently, the process by which the Commissioners are appointed. Both of these issues were debated during the parliamentary progress of the Northern Ireland Bill and that debate has continued following the establishment of the NIHRC, particularly within the Unionist community.

  Despite the role of the OCPA it seems to be the case—insofar as we can ascertain—that the Secretary of State makes the final decision on appointments. We believe that in the long term the aim should be to ensure that all appointments to the NIHRC are endorsed by representatives of the people of Northern Ireland through a cross-community vote in the Assembly. Recognising that this goal is not necessarily achievable in the present, we do believe that a public commitment to some such process would help to address some of the concerns felt by many in the Unionist community over the method by which Commissioners are appointed and the representativeness of the Commission.

  20.  We would also favour expanding the number of Commissioners—both full-time and part-time—and welcome the recent additions as a step in the right direction. While accepting the government's concerns over the expansion of the number of full-time Commissioners we would suggest that having a single full-time Commissioner places too much power in the hands of one individual since it is that individual who—of necessity—give most time to policy shaping and who is the public face of the Commission. Again, we would see this as a long-term aim which would only be effective once a mechanism for obtaining endorsement from elected representatives was put in place.

  21.  We believe that a more broadly based Commission—which the government is already moving towards—and a mechanism for requiring public endorsement of proposed appointments to the post of Commissioner would go a long way to addressing continuing concerns within the unionist community concerning the particular shape of the NIHRC as currently constituted, and would also address the Commission's aspirations as set out in recommendations one and seven.

  22.  We are opposed to recommendation 21 and are concerned that the government has accepted this recommendation. We believe that it is inappropriate for any public body to have such a specific role in shaping the educational curriculum. How, for example, might the NIHRC respond to a curriculum proposal or a delivery practice, which raised questions about the scope and nature of human rights? What authority would it be given to determine the content of the curriculum? Where would final authority for determining curriculum content lie—with the Department of Education or with the NIHRC? Where would final authority for teaching practice lie—with teaching staff or with the NIHRC? While we are happy that the NIHRC should be able to give advice on the content of the curriculum, alongside the many other bodies which the government notes have an interest in this area, we do not believe that it should be given a privileged role.

  23.  Finally, we would also want to make one general comment concerning the use of the Paris Principles as a means of assessing the role of the NIHRC. First, the Paris Principles apply to national human rights commissions. It is our contention that the NIHRC is not a national human rights commission, but a local or regional human rights commission and that, consequently, the Paris Principles do not apply. Second, the Paris Principles themselves do not take cognisance of the political dimension of human rights and the political role of human rights commissions. The government rightly notes in a number of instances that the NIHRC's status and role is intimately linked to the Belfast Agreement. This, and subsequent political debate concerning the implementation of the Agreement, is and should remain the primary point of reference for determining the NIHRC's status and role.


General Comments

  24.  As noted in paragraph 14 above our view is that the NIHRC must demonstrate the need for additional resources to fulfil its existing mandate rather than expanding its mandate unilaterally and expecting resources to be made available. In particular, the considerable time and energy that appears to have been expended on commenting on UK government reports to UN bodies, and attending UN committee meetings and conferences[99] seem to suggest either sufficient resources are available or that the Commission understands its remit differently from what appears to be the clear requirements of the Northern Ireland Act[100] This ordering of priorities is all the more surprising given that the assembly consulted the Human Rights Commission on the Regulation of Investigatory Powers Act 2000 (Amendment) Order (Northern Ireland) 2002 but as James Leslie, the Junior Minister, noted "The Human Rights Commission made no response."[101]

  25.  There are a number of other factors pertinent to this issue. First, a considerable part of the Commission's time and a considerable proportion of its human and financial resources in the first years of its existence have been taken up by the Bill of Rights consultation. However, this aspect of the Commission's work will come to and end and this should free up resources that will enable the Commission effectively to fulfil its remit[102] Second, the Commission notes that four members of staff of a total 14 are suffering from long-term illness[103] Given this serious situation it is difficult to evaluate adequately the appropriateness or otherwise of the Commission's financial resources. Third, at a time when there are multiple pressures on public expenditure in Northern Ireland we do not believe that the Commission should be given special treatment. The mechanism exists for the Commission to negotiate with the government if it believes it needs additional resources to fulfil its remit. This mechanism worked effectively in bringing additional funding for the Bill of Rights consultation process and should be maintained. Fourth, we do believe that if the government were to expand the number of Commissioners generally and those in full-time posts in particular, as recommended in paragraph 19 above, some increase in funding would be necessary.


General comment

  26.  We believe that it was a mistake to task the NIHRC with the responsibility for advising the government on a Bill of Rights. In relation to other key areas of reform the government established time limited Commissions of experts whose recommendations were then implemented by other bodies established for that purpose. We believe the Bill of Rights consultation would have been better served by splitting responsibility in the same way. This would have allowed the government to draw on a wider range of expertise to evaluate the issue of a Bill of Rights for Northern Ireland. It would also have allowed the NIHRC to focus on the tasks given to it by the legislation without having to expend considerable time and energy on the Bill of Rights consultation

The consultation process

  27.  We have found the NIHRC open and accessible throughout the process of consultation. However, we note that there has been a fundamental flaw in the process in that political representatives have played little role at any stage. It is only now that this failure is being put right. Given that debates about rights are essentially political debates and that the NIHRC owes its existence to the Belfast Agreement this was a serious misjudgement.

The consultation document

  28.  The Bill of Rights consultation document was deeply flawed. Professor Christopher McCrudden's comments summarise the problem: "Documents of the kind that the Commission was mandated to produce need to be visionary, technically authoritative, politically astute, and comprehensive. The Commission's document is, unfortunately, none of these. In large measure, the chorus of criticism to which the document has been subjected is justified. It is sloppy, rushed, internally inconsistent, technically unconvincing, and lacking any coherent vision. A fresh start is necessary. It seems unlikely at the time of writing, that the Commission, presently constituted, will be able to achieve what is necessary. The Commission should recognise that fact and devise, in co-operation with all the relevant political actors, an alternative process for progressing the project."[104]

  29.  Some specific problems with the document should be noted. First, the document contained numerous policy prescriptions both explicit (for example, voting age, method of election) and implicit (for example, the transfer procedure). It is our view that any attempt to usurp the legislative authority for an elected body is questionable but to do so in Northern Ireland threatens to undermine the very Agreement that led to the establishment of the Commission in the first place. As the minister with responsibility for human rights at the Northern Ireland Office, Des Browne, noted "We should not use rights to undermine the democratic process. Having only just devolved power there, it would be ironic if we were to tie the hands of Stormont by handing over some of their responsibility to the courts, which we would do if we drew the line in the wrong place."[105]

  30.  Second, the document has interpreted "the particular circumstances of Northern Ireland" in the widest possible way without recognising that this in itself is part of the debate about the scope of a Bill of Rights for Northern Ireland that it is not in the power of the Commission to determine.

  31.  Third, in relation to some of the "particular circumstances of Northern Ireland" the Commission has failed to add anything to the debate. This is most clearly seen in Section 12 "Rights to Freedom of Thought, Expression, Information and Association" (p 77-78). That issues surrounding freedom of association and freedom of expression are fundamental in Northern Ireland should be clear. In a society that cannot agree on flags, anthems and marches, some means of addressing the principles underlying how we deal with these problems would seem to be critical. Yet the Commission sees no need to elaborate on the European Convention in these areas. If, as is suggested, the Commission believes that the Congestion as interpreted by the European Court is sufficient (p 78), then the Commission's justifications for supplementing the Convention in other less significant and less contentious areas are called into question and therefore require substantial additional justification.

  32.  The Commissions proposals for the way forward on the Bill of Rights consultation will be discussed at a forthcoming conference on December 2, 2002. It is our hope that the Commission will aim to move on from the existing consultation document rather than trying to salvage it.

The Bill of Rights process—The way forward

  33.  We believe that our suggestion that the Bill of Rights process should be the work of a separate time limited Commission, as suggested in paragraph 26 above, represents the best way forward, but we realise there would be political difficulties in establishing such a Commission. There are, however, a number of key issues that must be addressed in taking forward the Bill of Rights process successfully.

  34.  First, the NIHRC must operate within the limits of the Belfast Agreement rather than developing its own agenda. There must be a debate on the meaning and implication of a Bill of Rights that focuses on "the particular circumstances of Northern Ireland." The NIHRC does not have the authority to interpret this as it pleases.

  35.  Second, there must be a recognition that the fundamental context of the existence of the NIHRC and any proposed Bill of Rights is the Belfast Agreement. The NIHRC is not an independent body in the sense that its existence and remit derives from the Belfast agreement and its role must be measured against the Agreement. There must be a clear understanding of the role of the NIHRC and the Bill of Rights in the context of the Belfast Agreement.

  36.  Third, the NIHRC must recognise that the Bill of Rights is a political document and that, therefore, debate concerning the Bill of Rights must fully engage the political parties in Northern Ireland and the British Government. There must be a recognition of the complex relationship between the political process and the human rights process. The two cannot be conflated, but neither can they be separated.

  37.  Fourth, the NIHRC must resist the temptation to assume that bigger is better. As the minister with responsibility for this issue, Des Browne, has commented: "Any proposal must be analysed closely by all the participants in the process to ensure that it is precise, enforceable and answers a real need."[106]

  38.  Fifth, the NIHRC must be open to the possibility that the most effective way to create a human rights culture in some circumstances is to reject the notion of a Bill of Rights entirely. As Jeremy Waldron, Professor of Law at Columbia Law School argues, "there is no necessary inference from a right-based position in moral or political philosophy to a commitment to a Bill of Rights as a political institution."[107] Instead, Waldron argues that legislation by a representative assembly is a form of law making which is especially apt for a society whose members disagree with one another about fundamental issues of principle.

  39.  Taken together these strands reflect the need to engage with the idea of a Bill of Rights at a political and a philosophical level. In the absence of that we cannot progress further than the current proposals which represent an unrealisable and incoherent wish list.

  40.  In our view the Bill of Rights proposals should be premised on the conviction that the best hope for our future together as a community lies in our ability to negotiate the nature of our society through the political process. Consequently, the Bill of Rights should not be overly prescriptive. Instead, the Bill of Rights should be a statement of principles allied to an affirmation of the central role of the political process in elucidating, debating and legislating the particularities of rights on the basis of those principles.

91   ECONI is a faith-based organisation which seeks to apply the Christian principles of peace, justice and reconciliation to all aspects of life in Northern Ireland. Back

92   Belfast Agreement, Rights, Safeguards and Equality of Opportunity: Human Rights Paragraph 5. Back

93   House of Commons Hansard, Volume 317, 27 July 1998, Columns 55-62. Back

94   Northern Ireland Act 1998 Section 68(3). Back

95   We note that Des Browne, now the minister with responsibility for human rights, expressed concerns over the transparency of the proposed appointments process during the parliamentary debate on the Northern Ireland Bill: "I have reservations about the lack of transparency in the appointments process as set out in clause 54, but we will no doubt return to that matter in Committee." House of Commons Hansard Volume 316, 20 July 1998, Column 857. Back

96   Examples of this include Latvia where the Human Rights Ombudsman is appointed by the Parliament and the United States where justices of the Supreme Court are nominated by the President but have to be confirmed by Congress. Back

97   Organisation for Security and Cooperation in Europe: Office for Democratic Institutions and Human Rights, Ombudsman and Human Rights Protection Institutions in OSCE Participating States (OSCE Human Dimension Implementation Meeting October 1998, Background Paper 1) p 12. Back

98   Northern Ireland Act Section 69 (a)-(c) Back

99   Listed on the Commission's website and in the NIHRC Annual Report 2002 pp 54-56. Back

100   Northern Ireland Act 1998 Section 69. Back

101   Northern Ireland Assembly Hansard 1 July 2002. Back

102   According to the NIHRC Annual Report 2002 (p 61) the expenditure on the Bill of Rights consultation was £367,825, the second highest element of expenditure after staff costs. By contrast expenditure on investigations totalled £16,393. Back

103   NIHRC Annual Report 202 p 19. Back

104   Christopher McCrudden, "Not the Way Forward: Some Comments on the Northern Ireland Human Rights Commission's Consultation Document on a Bill of Rights for Northern Ireland". (Paper given at a conference at the Human Rights Centre, Queen's University, Belfast, on Saturday, 8 December 2001, on a Bill of Rights for Northern Ireland.) Back

105   House of Commons Hansard, Northern Ireland Grand Committee 27 June 2002 Column 010. Back

106   House of Commons Hansard, Northern Ireland Grand Committee 27 June 2002 Column 011. Back

107   Jeremy Waldron, Law and Disagreement (Oxford, OUP 2001) p 212 Back

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