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 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
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.
CHRI feels that the Commission should also have
a protectorate role. The protectorate role may include functions
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
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
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.
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.
Prior to the Human Rights Act 1998, human rights
were already woven into the fabric of the devolution settlementthe
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.
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.
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.
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
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.
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
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?
(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.
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. 
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
(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?
(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. The
Commonwealth Secretariat further states the "Individual members
should possess the requisite expertise, integrity, experience
and sensitivity to adequately protect and promote human rights".
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." 
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. 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. 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. 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. 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
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.
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.
(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
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.
The Commonwealth Secretariat has recommended
members of NHRCs be accorded a rank and salary comparable to that
of senior judicial officers.
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.
The Commission for Racial Equality has an annual budget of £17.8
million, with 16 commissioners. The
Disability Rights Commission has a budget of £12.05 million
and 15 commissioners.
The Equal Opportunities Commission has an annual budget of £8,845,350
for fourteen commissioners and staff of between 100 and 130.
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?
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".
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
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.
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.
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
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".
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.
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
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.
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
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
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
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
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.
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
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
Spencer, S and Bynoe, I supra note 4 p 50 Back
Spencer, S and Bynoe, I supra note 4 p 48-49 Back
Commonwealth Secretariat, supra note 1, p 14 Back
Ibid., p 14 Back
National Human Rights Institutions Manual, Commonwealth Secretariat,
1993, p 20 in Spencer, S and Bynoe, I supra note 6 p 54 Back
Commonwealth Secretariat, supra note 1 p 14 Back
Commonwealth Secretariat, supra note 1 p 15 Back
Commonwealth Secretariat, supra note 1 p 15 Back
Commonwealth Secretariat, supra note 25, p 28 Back
UN National Human Rights Commissions, 1995, in Spencer, S and
Bynoe, I supra note 6 p 56 Back
Commonwealth Secretariat supra note 1, p 27 Back
Spencer, S and Bynoe, I supra note 4 pp 161-172 Back
Commonwealth Secretariat supra note 1 p 13 Back
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
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
Annual Review 2000-2001 Executive Summary p 7 The Disability Rights
Commission works in England, Scotland and Wales only Back
Statement of Accounts www.eoc.org.uk/EOCenq/EOCas/AboutEOC/statementofaccounts.pdf
visited 6.2.03 Back
National Human Rights Institutions, 1995, para 185 Back
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
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
Spencer, S and Bynoe, I supra note 4 p 51 Back
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
Pityana, N supra note 11 Back
Spencer, S and Bynoe, I supra note 4 p 58 Back
Spencer, S and Bynoe, I supra note 4 pp 58-59 Back
Spencer, S and Bynoe, I supra note 4 p 52 Back
Spencer, S and Byonoe, I supra note 4 p 61 Back