Joint Committee On Human Rights Sixth Report


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

  It is crucial to establish a NHRC independent from the Committee. The Parliamentary Committee should be responsible for monitoring compliance with the Human Rights Act whereas the NHRC would focus primarily on public education. The Human Rights Committee should have a complementary relationship with the Human Rights Commission. The Commission could provide expert advice to the Committee on issues such as lobbying for policy and provide education and training on human rights. The NHRC will possess a greater number of staff, and so will be able to investigate many more inquiries, deal with more issues, facilitate more research and promotion of human rights. The commission would also be much better placed to bring legal proceedings.

  If the Committee decides to coordinate between the Commissions it will avoid unnecessary duplication. The Committee is a significant step forward in the discourse of human rights therefore it should remain active and consolidate the work of the Commission. CHRI feels the Committee as a source could be consulted on the appointment of the Commissioner and other members of the Human Rights Commission.

  It may be worth creating a Protocol or Memorandum of Understanding between the two bodies to make sure their work is not duplicated. Especially on matters such as promoting awareness of the importance of human rights and conducting enquiries. The New Zealand Commission holds meetings with MPs from each of the political parties to keep them informed of the latest developments related to human rights, and provides a forum for keeping the Ministry of Foreign Affairs in contact with grass roots views. In order to foster improved co-operation, the Commission drew up a Memorandum of Understanding with the Minister of Justice. It dealt with the provision of information and reports by the Commission to the Minister, consultation on budget requirements, quarterly meetings, responses to parliamentary questions, assistance to Cabinet Committees and consultation on proposals to change the Commission's statutory responsibilities.

3.   In what order of priority would you arrange the function of such a Commission?

  CHRI believes that the function of a UKHRC can be categorised as promotion and protection of human rights.

PROMOTION

  Promotion of human rights is not confined to informing civil society of their rights but also extends education and advice to public and private bodies. CHRI ardently advocates promotion before protection on the conviction that members of society need to be aware of their rights if they are to realise their rights have been violated.

  The key function of a NHRC is to foster a human rights culture in United Kingdom so that the citizens of United Kingdom understand the dynamics of human rights. This can be achieved by

    —  Educating civil society. The NHRC is tasked with promoting public awareness and understanding of the notions of human rights. This is not confined solely within educational institution but also encompasses professionals.

    —  Advise Parliament and Government. The NHRC must ensure that human rights standards are complied by all bodies. The Commission will possess a level of expertise, which can provide information, encouragement and promote good practise. Hence the Commission can monitor and advise on a whole range of issues such as compliance of the ECHR to the possible failure for refusing applications for citizenship. The Commission should also scrutinise legislation to ensure human rights commitment are being fulfilled

    —  Advise public and private bodies. To suggest and ensure that human rights standards are being complied with, as well as promoting best practices.

    —  Advice individuals who believe that their rights have been infringed. The Commission should provide expert advice to those whose rights have been infringed.

    —  Conduct and commission research. It is essential to commission or conduct research because it will contribute towards the development of human rights.

PROTECTION

  CHRI feels that the Commission should also have a protectorate role. The protectorate role may include functions such as;

    —  Enforce human rights. The Commission will be responsible for developing the human rights in the UK, hence they must be able to assist complainants and support their test case.

    —  Ability to investigate cases of human rights infringement. Investigation can only be fulfilled if the Commission can enter and search buildings or compel production of documents. The investigative power must be able to make recommendations which will resolve the complaints and also be able to assist the complainants seek remedy through courts.

    —  Initiate court proceedings. The Commission must be able to challenge policy or legislation in their own name if they believe it infringes the rights of civil society.

    —  Appear "amicus" in court. The Commission should present themselves to the court as neutral "expert opinion" when advising them on issues of human rights.

    —  Monitor the UK's compliance with international human rights obligation and advise the government of the effectiveness of their protection arrangements.

    —  Provide human rights training to those responsible for upholding human rights standards.

If you think that a Commission should examine a range of issues, to which issue or issues do you think that the Commission should give priority?

  CHRI recommends that the NHRC give priority to those rights embodied in the International Covenant on Economic Social and Cultural Rights and the International Covenant on Civil and Political Rights. This would enable the Commissions to look at the realisation of rights such as the right to health. However it must also be noted that NHRCs should interpret their mandates creatively to address evolving challenges to human rights.

4.   If a Human Rights Commission were to be established, should there be a single body with a jurisdiction extending to all parts of the United Kingdom, or separate bodies for England, Scotland, Wales and Northern Ireland, or both a United Kingdom body and bodies with territorial responsibilities?

  The United Kingdom consists of three very different legal, governmental and political jurisdictions. The culture and human rights approach taken by all four countries varies. CHRI supports not a single Commission but advocates four separate national human rights commissions, the existing Northern Ireland Human Rights Commission, a Scottish National Commission and the creation of Welsh and English Human Rights Commissions. With the recent devolution of powers to Scotland, Wales and Northern Ireland, it would be retrogressive to create a single commission for the whole UK. These commissions should be overseen by a smaller Human Rights Commission for the United Kingdom. A UKHRC would oversee general co-ordination of the separate national bodies. The UKHRC would also monitor the UK's international human rights obligations. Each national commission would have a slight difference in purpose depending on each national situation. Separate national NHRCs would benefit from a greater understanding of national circumstances and local challenges, and would be more accessible than a central body. CHRI envisages that the majority of resources would be put into the separate national commissions, whilst the UKHRC would be a much lighter body.

NORTHERN IRELAND

  As part of the Good Friday Agreement the creation of the Northern Ireland Human Rights Commission (NINHRC) was inevitable. The NINHRC must continue to exist, as this is one of the requirements of the United Kingdom's agreement with Ireland about the future of Northern Ireland. Northern Ireland has adopted its own standards of human rights illustrated by their own Bill of Rights and therefore any interference from England may disrupt the discourse on human rights and disturb the fragile relationship.

SCOTLAND

  Prior to the Human Rights Act 1998, human rights were already woven into the fabric of the devolution settlement—the Scotland Act 1998. As a consequence, the Scottish Parliament and Executive were already bound to comply with the ECHR. Nonetheless the impact of the ECHR led to 800 challenges in its first year. The legal jurisdiction, education and culture in Scotland is different to England and Wales and hence it was of little surprise when in December 2001 the creation of a Human Rights Commission for Scotland was announced. Justice Minister Jim Wallace believes that a Commission will help to foster a culture of human rights and promote a better and complete understanding of the ECHR.[63]

  The Executive plans to spend this year as a period of consultation on more detailed issues as well as discussing the potential of developing a distinct Scottish Bill of Rights. At the time of writing the consultation on the Scottish Human Rights Commission was due to finish in June 2003, with draft legislation to be completed by the end of the same year. The commission should be set up by December 2004.

ENGLAND AND WALES

  Many participants in the discourse about a NHRC advocate a single body encompassing both England and Wales. The main argument being that Wales is dependent on Westminster for the primary legislation and also shares the same legal and court system as England. However Wales has taken significant step forward distinctly related to human rights in education, health and housing and therefore it would be wise to discuss and consider the possibility for a separate Human Rights Commission for Wales.

WALES

  At present in Wales, issues of discrimination and equality are only dealt with by the Commission for Racial Equality, Equal Opportunities Commission and the Disability Rights Commission. However within these Commissions they are large gaps for example religious discrimination is not covered, by the CRE. Many fundamental human rights are not addressed by on the Commissions and because many of the cases are outside the remit of the Welsh Assembly no human rights can be ensured. The Assembly and public authorities need an external body that will monitor the human rights situation because without such an agency there is no point for individual victims of violation to come forward. It was recently claimed at a recent seminar that "Wales contains some of the most impoverished and socially excluded communities in Western Europe"[64] Wales's socio-economic position is fundamentally different to England, many of the human rights related problems they face can not be resolved due to the fact Westminster has retained authority.

  Language is intimately linked to minority rights. The case for a separate Welsh Commission is given considerable weight in the light of this. Not only would the commission be able to provide superior understanding of this issue, it could produce resources and receive complaints in Welsh.

  If a separate NHRC for Wales is supported it will be a positive step forward in fostering a human rights culture from promoting good standards to public bodies and providing information, to protecting human rights. The Welsh NHRC would provide independent advice to the Welsh Assembly on the implications on human rights of proposed legislation passed by Westminster. At present parliament may feel that it is not possible to have a separate Human Rights Commission for Wales but CHRI believes that England should give Wales the space to let human rights develop to the needs of the Welsh people. The blueprints of an NHRC should also include a plan for a future Welsh NHRC.

ENGLAND

  If there are to be separate national commissions in Scotland, Wales and Northern Ireland it follows there should be separate national commission for England. Often England is enlarged to the entirety of Britain, ignoring issues specific to the nation. CHRI recommends that England have its own national commission.

UNITED KINGDOM

  CHRI feels that the Human Rights Commission based in London should be called "United Kingdom Human Rights Commission" (UKHRC). The UKHRC will be endowed with superior status, which will not only fulfil national obligations but also the central functions of a UK body. The chairs of Northern Ireland, Scotland, England and Wales will also be members of the UKHRC alongside five additional commissioners. The UKHRC will be responsible for coordination between regional Commissions even though the Commissioners in each jurisdiction will be independent from the UKHRC. Efforts should be made to ensure that the commissioners are persons of distinction and have varied expertise in the human rights field. There should be a balance between men and women and racial backgrounds amongst the commissioners. CHRI feels separate territorial Commissions will give each jurisdiction a more personal touch, hence the work produced and carried out by each Commission will be more credible to civil society within each territory. We also believe that a separate arrangement would avoid distrust and resentment of London office by the civil service and civil society of each territory.

  Territorial jurisdiction exists in the Commonwealth. As well as State Commissions India houses a National Human Rights Commission, which has jurisdiction over all of India as well as state Commissions. Out of the 25 states in India only eight have state commissions. These Commissions are inadequately resourced and funded and hence their development has been slow and imperfect. Alternatively Canada illustrates an effective Federal and Provincial Human Rights Commissions system whereby they hold a Commission in each of the ten provinces.

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

  The UKHRC will be responsible for coordinating between the four territories. Not only will the four territories be autonomous and will have the freedom to develop in response to the situation of each territory but they should also be able to collaborate on national projects and share expertise with other Commissions. The UKHRC may initially encompass England and Wales whom will then be responsible for appointing a separate commissioner for Wales. UKHRC should co-ordinate its strategic plan with other bodies to avoid duplication.

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

  In particular:

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

  Each of the existing Commissions has special functions yet within these specialist functions there are gaps, which need to be addressed urgently. For example religious discrimination is not covered by the CRE. The function of a new NHRC will be to fill in the gaps left by other Commissions. Every existing discrimination body has different functions and objectives and CHRI feels that a NHRC should co-exist with these. The Human Rights Commissions will work especially on economic and social rights. There will also be more emphasis on national commissions and issues specific to the separate nations.

  Throughout the Commonwealth, nations have developed their Commissions according to the situation of the country. CHRI advocates that the single-issue bodies should not be merged into a single body. The dynamism in single-issue organisations, which have developed specialist expertise over time, would be lost in a multi-issue organisation.

  The co-existence of Equality and Human Rights Commissions has been very successful in the Commonwealth, most notably in New Zealand, where a Human Rights Commission successfully co-exists with the Health and Disability Services Commissioner, Children's Commissioner and a Privacy Commission.

  The South African Commission has a mandate which encompasses all fundamental human rights, but a separate Commission was established to monitor, investigate, research, educate, lobby, advise, and report on issues concerning gender equality. There are also separate Commissioners covering linguistic and cultural minorities and youth. The South African NHRC has committees on specific issues to draw in experts from academia and NGOs. The difficulties caused by the proliferation of Commissions, and shortage of resources, have led to proposals to create a single commission. [65]Thus CH RI recommends that the various commissions are adequately funded, furthermore they should work closely to ensure there is little duplication in their work. The relationship between the bodies should be monitored and kept under review to avoid this situation.

  Australian development of the Human Rights and Equal Opportunity Commission occurred in stages. The first Human Rights Commission was set up in 1981, prior to the appointment of separate Sex and Race discrimination Commissioners. The expanded Human Rights and Equal Opportunity Commission was formed in 1986. In the following five years the separate commissioners on race and discrimination were absorbed into the national commission. A Privacy Commissioner was appointed 1989. The resulting arrangement has been referred to as an "umbrella" model, where each constituent part retained its separate identity and its commissioner became part of the larger institution. [66]

  As the UKHRC will be one of a consortium of bodies in the UK with a human rights remit the UKHRC should co-ordinate its strategic plan with other bodies in order to avoid duplication. The relationship between these bodies could be dealt with in a Memorandum of Understanding. The Northern Ireland Human Rights Commission has agreed such a memorandum with the Equality Commission for Northern Ireland. The purpose of such a memorandum is to clarify the ways in which the various bodies will deal with matters which fall within the remit of both commissions. The memorandum has a view to enhancing the effectiveness of the two commissions and helping the general public understand how the two commissions function. The Northern Ireland memorandum does not preclude the NINHRC from working on matters which are also of concern for the Equality Commission, but the two commissions liaise closely to avoid duplication of effort and the waste of public of money. For example the NINHRC has decided to do very little work on racism as it is one of the core concerns of the Equality Commission. The creation of a memorandum could also be a starting point from which to develop a positive and constructive working relationship between the organisations. In their memorandum the Northern Ireland commissions pledged to co-operate with each other and agreed to work jointly on producing and sharing information, organising conferences and seminars and undertaking research. This cooperation is reinforced by regular contact between Chief Commissioners and Chief Executives, keeping Memorandum of understanding under review. The commissions also agreed to refer appropriate complaints. The circumstances of the commissions should be monitored, it may be that in time it would make sense for their relationship to become more cohesive as in Australia.

  In March 2003 the British Council is due to publish research on the relationship between NHRCs with other equality bodies and human rights related institutions in Commonwealth Countries. This research will examine the effectiveness of single-issue institutions and the pros and cons of an integrated approach to such institutions.[67]

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

  Equality issues are inextricably linked to human rights but this does not mean that they should be excluded from the remit of NHRC. The domain of equality is vast and it is unlikely that all the Commissions will be embarking on an identical project. It will be more likely that the Commissions are carrying out similar research but with an effective coordinating committee, duplicity can be avoided and hence a minimum waste of resources.

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

(a)   How should its chair, members and key staff be appointed?

  The Commonwealth Secretariat states high quality members and staff as well as independence are absolutely crucial features of an effective commission. [68]The Commonwealth Secretariat further states the "Individual members should possess the requisite expertise, integrity, experience and sensitivity to adequately protect and promote human rights".[69] The Secretariat stresses that the Commission not only be independent but also successfully maintain public perception of independence.

  The Commonwealth Secretariat notes that:

    "Whatever the appointment process, the crucial requirements for appointees is that they are demonstrably politically neutral and persons of high integrity and standing. Without these characteristics, the office is unlikely to gain the confidence of the public." [70]

  The Commonwealth illustrates a wealth of different experiences and practices. For example, in Cameroon all commissioners are appointed by decree of the President. In Fiji members are appointed by the President on the advice of the Prime Minister following consultation with the Leader of the Opposition and the Sector Standing committee of the House of Representatives responsible for matters concerning human rights. In Malawi the ex officio members jointly select the other five commissioners from nominations submitted by reputable human rights NGOs following a public invitation for such nominations. The members of the Indian Commission are appointed for a fixed term by the President of the Republic, their names having been recommended by a committee which includes both the Prime Minister and the Leaders of the Opposition in both Houses of Parliament. Appointments made purely by a state executive will undermine the independence of the NHRC, and its ability monitor the government's actions impartially. The appointments process should be as transparent as possible, with the involvement of various groups from civil society. There are two possible appointment mechanisms the committee may like to consider. Appointments could be made by a panel consisting of representatives not just from the government but also of other parliamentary political parties and of civil society. The Chairperson could be appointed by the Human Rights Committee and should also be consulted on all other the key appointments. The Committee would ensure against bias due to its composition of members of different political parties. The appointment of all members of the commissions should be the sole responsibility of the Commission itself.

  Throughout the Commonwealth, the most successful NHRCs are those that are independent of politics. The Chair and key staff members should not be appointed on the basis of their political beliefs instead the composition of the UKHRC should be free of party politics. CHRI feels that the model of NINHRC where there is one full time Commissioner and 15 part-time Commissioners will be inadequate for UKHRC. The Commonwealth Secretariat advocates that the Commissioners should be full-time members. There are two possible models that could be adopted in relation to the composition of NHRC, the first being a full-time Chair being appointed and the Commissioners for each of the issues to be dealt by the NHRC. For example the Australian Human Rights and Equal Opportunity Commission is composed of a President and five commissioners, the Human Rights Commissioner, Race Discrimination Commissioner, Sex Discrimination Commissioner, Disability Discrimination Commissioner, and the Aboriginal and Torres Strait Islander Social Justice Commissioner.

  The commissioners at the Malaysian National Human Rights Commission are only in office for two years while the Malawian and Zambian Commissions have three-year terms. This is hampering the progress of the Malawi Commission because each time a new Commissioner is appointed the first year is used as an introduction, the second year is when they really begin the work and by the third year and final year the Commissioners are preparing to leave. The Commissioners should be appointed for a fixed five-year term with the possibility of reappointment at the end of each term, as they are in Cameroon and New Zealand. Any term less than five years will hamper the progress of the Commission. Members should serve long enough to hone their expertise and use their expertise for the benefit of the public. Commissioners in Australia and certain commissioners in Canada have terms of seven years. There should be the possibility of re-appointment for one additional term. It may be appropriate that the first commissioners are appointed for varying periods of time to ensure that their terms do not expire at the same time.

  Successful NHRCs are characterised by the plurality of their composition. [71]The Paris Principle stress the importance of ensuring wide representation of civil society in the membership of NHRCs. Certain national human rights institutions in the Commonwealth place specific criteria on the backgrounds of their commissioners. The National Commission on Human Rights and Freedoms of Cameroon insist that its 20 members comprise of; three representatives of the government, two representatives of the supreme court, one representative from each political party, two representatives of the Bar, two lecturers in law, four representatives of religious denominations, one representative of the local authorities, two journalists of the official and private press, one representative of the Economic and Social Council and two representatives of women's organisations. In India the chairperson of the Commission is a former Chief Justice of the Supreme Court and three of the five Commissioners must have held office as a judge. The Canadian Commission composition includes three women and aims to reflect the nation's ethnic and religious diversity. Such policies are worth serious consideration. The Commonwealth Secretariat recommends that the members of national NHRCs should reflect the gender balance, the ethnic diversity of society and the range of vulnerable groups in their respective society. [72]A crucial selection criteria however must be excellent track records in the human rights field.

 (b)   How should its funding be provided?

  Finance is the key in determining the independent functioning and the effectiveness of the Commission. Throughout the Commonwealth, numerous Commissions have been hampered by financial constraints. It is important for the Commission to receive funding free from political interference. The Canadian treasury allocates approximately c$15 million to the Canadian Federal Human Rights Commission. Whereas the New Zealand and South African Commission receive their funding through the Ministry of Justice (this arrangement is causing concern). The UN handbook advises that the Commissions funds should not be linked to a government department. The Commonwealth Secretariat has advocated that nothing in the enabling law or in rules relating to fiscal autonomy should require the NHRC to act in accordance with the directives of the government. [73]The budget of the Commission will depend on jurisdiction; issues dealt with and the size. If the funding is inadequate than all the functions and effectiveness of the Commission will be compromised, thus undermining the objective of the NHRC.

  The financial resources can come from grant-in-aid funding, because this will allow a degree of autonomy over the allocation of their expenditure. While there is also the possibility that the Commission could receive sponsorships this may be seen as compromising the Commissions integrity. CHRI feels the Commission should keep itself open to alternative funding such as private sponsorship especially if the budget allocated to the Commission is minimal. The Commission may also attract funding through selling their materials and resources, however a word of warning is that the Commission function is to protect and promote the human rights of all the members of civil society, not just for the selective elite who can afford it.

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

  The Commonwealth Secretariat advises that a NHRC should report to Parliament, this would give Parliament the opportunity to deliberate over the report as well as to discuss the budget proposals. The NHRC should not be accountable to the government as this would not only compromise the Commissions integrity but identified priorities would change to reflect the government of the day. By being accountable to parliament the Commission would not reflect party politics.

  The Commonwealth Secretariat encourages the use of a parliamentary committee to examine annual reports. [74]The Commission could report annually to the Committee and when asked. The report should include an evaluation of all its functions including the resolution of complaints, the prevention of human rights abuses and its promotional and educational work. It may be appropriate for the Committee to then report to parliament. Parliament will already have contact with the Commission, as the Commission will advise on legislature. However it is crucial that once its report has been presented to Parliament, it should immediately be released to the press and the public. The report must also include budget for Parliament to debate, the Commission must be legally and financially accountable.

  Other members of the Commonwealth ensure accountability with minimum interference through a variety of methods. Both the Australian and New Zealand Commissions report to Parliament via Ministers. In New Zealand the report is discussed on the floor of the House, and by the Justice and Legal Affairs Committee. The Commission also reports regularly to Parliament's Health Committee. The Canadian government reports directly to Parliament. Whereas the South African Commission submits quarterly reports to the National Assembly and the President as well as submitting additional reports at any time. It bears no accountability to the Government, although the Minister of Justice answers parliamentary questions about its work.

  The UN advises that accountability must be a two way process, to government or parliament on one hand, and to the "constituency it was established to assist and protect" on the other.[75] The public should have a mechanism for monitoring the performance of the NHRC. The UN Handbook stresses that the commission's reports should be widely disseminated in order to aid transparency.

  The UKHRC may wish to enhance its capability by adopting the Australian Commissions procedure. The Commission evaluates their own performance and makes the outcome public. This necessitates identifying criteria by which the commission's effectiveness can be regularly measured. In this way it can adopt effective strategies and adapt to changing circumstances and opportunities. The NHRC should also undertake an annual strategic planning exercise to establish programmatic targets and goals.[76]

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

  CHRI feels that issues related to Northern Ireland should continue as they are and no attempts should be made to disrupt their progress. Scotland has evolved and is continuing to do so under the domain of devolution. Scotland has already decided in favour of a NHRC regardless of the position of England and Wales. It is therefore befitting that the Scottish Commission should be accountable to the Scottish Parliament. Even though CHRI is in favour of a separate NHRC for Wales, it may be the case that a separate NHRC for Wales may not come into force immediately with the UKHRC. But when Welsh NHRC comes into existence it should be accountable to the Welsh Assembly and to the United Kingdom's Human Rights Committee as well as receiving their funding in a similar method.

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

  It is vital that this body is not hindered from the outset by being financially unable to carry out its tasks. Numerous Commonwealth commissions have been continually hampered by financial constraints. The National Commission of Women in India for instance, has had to struggle to gain sufficient financial support. IPPR had estimated the cost of the Commission to be in the region of £2.8 million but that is now also considered to be inadequate.[77]

  The Commonwealth Secretariat has recommended members of NHRCs be accorded a rank and salary comparable to that of senior judicial officers.[78]

  The budget of the Northern Ireland Human Rights Commission was set at £750,000 for the first year. This was felt to be inadequate and severely limiting. The Scottish Human Rights Centre has estimated the budget of the Scottish Human Rights Commission at £5 million.[79] The Commission for Racial Equality has an annual budget of £17.8 million, with 16 commissioners. [80]The Disability Rights Commission has a budget of £12.05 million and 15 commissioners.[81] The Equal Opportunities Commission has an annual budget of £8,845,350 for fourteen commissioners and staff of between 100 and 130.[82] From these figures CHRI estimates the English NHRC have an annual budget of roughly £17 million, considering that the English population is roughly four times that of Scotland. The Welsh Commission should have a budget of around £1 million. The UKHRC should have an annual budget around £1 million as it will be a much smaller co-ordinating body.

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

MANDATE

  The Paris Principles heading of Competence and Responsibilities paragraph 2, states that "a national institution shall be given a broad a mandate as possible". The UN Handbook reaffirms "an institution with a broad mandate and independent status will, by definition, possess a greater capacity to acquire and synthesise information and, thereby, to develop sophisticated opinions on human rights matters for transmission to those able to effect substantial change".[83]

  The Commission's mandate should include but not be limited to international and regional human rights treaties to which the UK is party. CHRI feels that the UKHRC should comply with its regional obligation to European Convention on Human Rights and its protocols as well as its international obligation and commit to the Paris Principles. CHRI submits that the UKHRC should take a broad definition of rights when it carries out its functions. It is also particularly important to include those instruments that protect economic, social and cultural human rights as the recent incorporation into UK law of the European Convention on Human Rights guarantees individual's civil and political rights only. By taking cases which involve economic, social and cultural rights the commission can give content to and clarify these rights. The UKHRC should not restrict itself to "hard" laws but should promote what would be considered "soft" laws, for example the UN Declaration on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities. Furthermore, by including both sets of rights and adhering to the principle of indivisibility and universality, the UKHRC can become an example to future commissions. The NHRC must strike a balance between addressing systemic violations and individual complaints. The NHRC must have the power to provide effective remedies for human rights violations.

  Mandates of Commonwealth Human Rights Commission vary greatly. The Canadian Commission refers to no international standards at all but to the Canadian Human Rights Act. On the other hand the Australian Human Rights and Equal Opportunity Commission's statute lists seven specific international instruments that Australia has ratified, whereas the New Zealand statutes refer to the international instruments in general.[84] The Ugandan Commission has left the term human rights undefined and hence giving the Commission a potentially broad mandate. Arguably its jurisdiction extends not only to those rights protected by the constitution but to all regional and international instruments regardless of whether they are signatory or not.[85]

  It is argued that relying on international standards is advantageous as they provide a benchmark against which a commission can measure legislation or administrative practices. The commission may also secure reforms that prevent later censure by international monitoring bodies.[86] Furthermore reference to international standards would reinforce the international rule of law. As Margaret Mulgan argued that it is "highly desirable" that a link with the UN Human Rights instruments exists and that the institution be "clearly recognised as exercised within that context." She argues "It is that link which makes explicit the role of a national institution for the promotion and protection of human rights, by giving some content to the "human rights" mandate by establishing the institution's primary role as overseeing the implementation by universal standards".[87]

  Where mandates are broad it will be necessary for commissions to draw up a strategic plan to identify priorities. The South African Commission undertook a strategic planning exercise by organising a national human rights conference which brought together civil servants, NGOs, academics, human rights experts and lawyers. This resulted in a statement which became an important source of policy for the commission.[88]

  As there is no UK Bill of Rights, parliament needs to pass legislation, which will outline the powers and remit of the UKHRC. It his central for the newly created UKHRC to be innovative and as effective as possible. The NHRC created will have the option to pick and choose from best practices of the Commonwealth.

DRAFTING LEGISLATION AND SCRUTINISING POLICY AND PRACTICE

  On 2 October 2000, the Human Rights Act 1998 came into force, which incorporates the European Convention of Human Rights into national law. All legislation (past or present) must be compatible with the convention. The Human Rights Act requires courts to interpret all law to confirm with the convention and requires public authorities to act in compliance with the convention. This would have two advantages, firstly it may lead to the codification of human rights principles into domestic law, secondly it raises the awareness of the lawmakers about international treaty obligations and human rights norms. The CHRI submits that a UKHRC be empowered to advise on the compatibility of policies with the state's international human rights commitments and with human rights standards, especially those that have not yet been incorporated into domestic law and which are therefore difficult to enforce through the courts. The NHRC should be able to advise the government on to ensure that economic social and cultural rights are not adversely affected by economic policies. A human rights commission is well placed in making such judgements, as it brings its experience of dealing with the practical implications of legislation through its advice, complaints and inquiry functions.[89] An "official" body such as a human rights commission can carry much more weight in this context than NGOs, as it is more likely to be able to engage with other public bodies when calling for greater adherence to domestic international human rights standards.

  Many Commonwealth NHRC's are obliged to ensure governmental compliance with international standards and their own national legislation. The Fiji Human Rights Commission is mandated to promote better compliance with standards laid down in international human rights instruments and to encourage ratification of international human rights instruments by the state and, where appropriate, to recommend withdrawal of reservations entered to those instruments. It also advises the Government on its reporting obligations under international human rights instruments, and without derogating from the governments responsibility for preparing those reports, advises on the content of those reports. The Fijian commission publishes guidelines for the avoidance of acts or practices that may be inconsistent with or contrary to human rights. The National Human Rights Commission of India studies treaties and other international instruments on human rights and makes recommendations for their effective implementation. The Malawi Human Rights Commission is obliged to study the status and the effect of legislation, judicial decisions and administrative provisions on the protection and promotion of human rights, and to submit the reports, with recommendations or observations as the Commission considers appropriate. The South African Human Rights Commission requires relevant organs of the state to report annually on measures they have taken towards the realisation of the rights in the Bill of Rights. Organs must provide information on housing, health care, food, water, social security, education and the environment. The South African Commission itself must submit quarterly any findings of a serious nature to the President. The New Zealand Commission has a statutory responsibility to report to the government on whether any existing Act, regulation, government policy or administrative practice was incompatible with the 1993 Human Rights Act.

  Commonwealth Human Rights Commissions are experienced in scrutinising and drafting legislation. The Indian Human Rights Commission drafted a Bill to replace India's 1984 Prison Act, and conducted a review of the Terrorist and Disruptive Practices (Prevention) Act 1987. The review led the commission to recommend in 1995 that the law should not be renewed. The recommendation was accepted. The Australian Commission worked closely with the government in drafting its 1992 Disability Discrimination and took NGO views into account when preparing recommendations to government on the draft UN Convention on the Rights of the Child. The Australian Commission is regularly asked for its opinion on draft legislation, although apparently never by the immigration department.[90] The South African Commission similarly advises government in drafting equality legislation. The UKHRC should be able to make recommendations and assist the drafting process in as many areas as possible if it is to be truly effective in it protection role.

  National human rights commissions are an effective means of promoting and protecting economic and social rights standards. India, New Zealand, and Australia are among those which have tackled economic and social rights. The Australian Commission conducted an inquiry into homelessness and effects on young people, relying on the (then) Declaration of the Rights of the Child and the ICCPR as the yardstick against which it measured the adequacy of housing provision. The Indian Commission has focused on child labour and has undertaken a project to prevent congenital mental disabilities resulting from malnutrition. The South African Committee has a statutory duty to monitor the implementation of socio-economic rights, such as access to housing, and requires each government department to submit periodic reports on their periodic reports on their progress. It can subpoena Ministers to ensure that their departments comply.[91]

  Some commissions, notably in South Africa and Australia, have set up Advisory Commissions comprised if NGOs and other representatives from civil society to advise the commission in its work. This is a worthwhile strategy for the UKHRC to adopt, thereby drawing on the expertise of local NGOs and international NGOs with a relevant focus. In 1991 the New Zealand Commission worked with NGOs in the preparation of a mental health report in a study on housing issues, and in its work on prisons and on refugees. Its statute requires it to "consult and co-operate with other peoples and bodies concerned with the protection of human rights".

ENFORCEMENT OF RECOMMENDATIONS

  The enforcement powers of Commonwealth national human rights commissions vary immensely. Some commissions enjoy quasi-jurisdictional powers while others can only make recommendations.

  The UN advises that, as a minimum, commissions should monitor the outcomes of their recommendations and publish them. While it is acknowledged that the publicising of commissions' findings and recommendations could itself be, and has been a powerful agent for change, practice shows that recommendations frequently get ignored. For instance the National Human Rights Commission of India indicated through its successive Annual Reports that the government failed to act on its recommendations in many cases. It has therefore suggested that there be a statutory requirement that its recommendations receive "full and faithful consideration."

  Advice will not always be accepted. The New Zealand Human Rights Commission's advice has been accepted in relation to corporal punishment in schools, the reintroduction of the death penalty and the treatment of mental health patients, but not the treatment of refugees under emergency procedures instituted during the Gulf War.[92]

  There are a number of options to consider to ensure that the Commission's recommendations are not ignored. The government, for instance, could be given a mandatory timeframe in which it has to respond. National Human Rights Commission of India sends a copy of its inquiry report together with its recommendations to the concerned Government or authority who shall, within a period of one month or such further time as the Commission may allow, forward its comments on the report, including the action to be taken. CHRI submits that, where a timeframe is given, it should neither be too short as to elicit a superficial reaction nor too long to diminish the impact of the recommendations. If the government fails to respond within the timeframe however, it should provide reasons as to why it is not complying with the commission's recommendations. In situations where the government fails to comply with recommendations, the UKHRC could initiate legal proceedings to enforce its decisions.


63   Justice Minister Jim Wallace made the announcement for the creation of the Human Rights Commission on 10/12/01 during a speech to teachers and pupils at Gourock High School at the launch of Inverclyde Education Authority's Human Rights Charter Back

64   A Human Rights Commission in Wales? Seminar held on 29 January 2001 at the Council Chamber, Temple of Peace, Cardiff by Luke Clements and Sarah Spencer Back

65   Spencer, S and Bynoe, I supra note 4 p 50 Back

66   Spencer, S and Bynoe, I supra note 4 p 48-49 Back

67   http://www.britishcouncil.org/governance/jusrig/CHRCactivity.htm Back

68   Commonwealth Secretariat, supra note 1, p 14 Back

69   Ibid., p 14 Back

70   National Human Rights Institutions Manual, Commonwealth Secretariat, 1993, p 20 in Spencer, S and Bynoe, I supra note 6 p 54 Back

71   Commonwealth Secretariat, supra note 1 p 14 Back

72   Commonwealth Secretariat, supra note 1 p 15 Back

73   Commonwealth Secretariat, supra note 1 p 15 Back

74   Commonwealth Secretariat, supra note 25, p 28 Back

75   UN National Human Rights Commissions, 1995, in Spencer, S and Bynoe, I supra note 6 p 56 Back

76   Commonwealth Secretariat supra note 1, p 27 Back

77   Spencer, S and Bynoe, I supra note 4 pp 161-172 Back

78   Commonwealth Secretariat supra note 1 p 13 Back

79   Based on the fact Scottish Children's Commissioner has a budget of £1.5 million and the Scottish Human Rights Centre envisages four human rights commissioners Back

80   Commission for Racial Equality Accounts 2000-01 at www.cre.gov.uk/pdfs/accounts01.pdf accessed 6.2.03. The CRE only works in England Back

81   Annual Review 2000-2001 Executive Summary p 7 The Disability Rights Commission works in England, Scotland and Wales only Back

82   Statement of Accounts www.eoc.org.uk/EOCenq/EOCas/AboutEOC/statementofaccounts.pdf visited 6.2.03 Back

83   National Human Rights Institutions, 1995, para 185 Back

84   The seven international instruments include the International Covenant on Civil and Political Rights, the Declaration on the Rights of Mentally Retarded Person, the Declaration on the Rights of Disabled Persons, the ILO Discrimination (Employment and Occupation) Convention, the Declaration on the Elimination of all Forms of Intolerance and of Discrimination Based on Religion or Belief, the Convention on the Rights of the Child, the Declaration on the Rights of the Child Back

85   Hatchard, John, New Breed of Institution: The Development of Human Rights Commission in Commonwealth Africa with Particular Reference to the Ugandan Human Rights Commission p 12 Back

86   Spencer, S and Bynoe, I supra note 4 p 51 Back

87   Mulgan, M 1993 "Implementing international human rights norms in the domestic context: The role of the national institution" Canterbury Law Review Vol. 5, in Spencer, S and Bynoe, I supra note 6 p 52 Back

88   Pityana, N supra note 11 Back

89   Spencer, S and Bynoe, I supra note 4 p 58 Back

90   Spencer, S and Bynoe, I supra note 4 pp 58-59 Back

91   Spencer, S and Bynoe, I supra note 4 p 52 Back

92   Spencer, S and Byonoe, I supra note 4 p 61 Back


 
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