Examination of Witnesses (Questions 20-39)|
THURSDAY 28 NOVEMBER 2002
20. Can I just be quite clear about this, my
colleague Mr McNamara in his question to you was suggesting that
the Government would deprive you of funds to enable you to go
by way of judicial review, surely that would be a clear abuse?
They could not do that, they could not prevent you having a right
of access to court. Would it not be the case if you were prevented
from having access to information you needed for the purpose of
your function that you would have a strong case of irrationality,
at least you would in London in judicial review, and I would be
surprised if it was not the case in Belfast in judicial review?
(Professor Dickson) That may be the case, Lord Lester,
and that may well be tested in the near future. As regard funding
cases the Government does not say to us, you cannot spend money
on this particular case or that particular case. I think what
Mr McNamara might have been suggesting, it is certainly what I
am suggesting, is that our casework budget is so small that for
us to waste it on such needless test litigation would mean that
other people who have suffered serious human rights abuses would
not get the benefit of our assistance.
21. Chief Commissioner, could I ask a few questions
about your casework. Firstly, what does the Commission see as
the primary goal of its work in the courts through casework, third
party interventions and amicus, do you take symbolic, totemic
cases, as it were, to raise the awareness of human rights, or
is it a strategic, rather systematic process in which you seek
to influence the development of a body of Northern Ireland human
(Professor Dickson) I think it is more the former
than the latter, especially in the sense that while, of course,
we pay attention to the likely success of winning a case that
is only one factor we bear in mind. We often say to ourselves
that it would be important to raise this issue in the courts so
as to promote awareness of this human rights issue. Obviously
if we win the case then that will have an impact on the development
of Northern Ireland human rights case law. The real difficulty
here is that the budget of the Commission for casework is so small
that, as you know, from our last year's Annual Report we were
able to provide assistance for seven out of 54 applicants. There
is not a lot we can achieve with that kind of money.
22. I can see that very clearly, Chief Commissioner.
You did publish your case work criteria, the criteria you use
for deciding whether to get involved in litigation. Given the
very real scarcity of resources are there not difficulties in
(Professor Dickson) There are difficulties in prioritising.
The first difficulty is the legislation itself, Section 70 of
the Northern Ireland Act, which is worded identically to the equivalent
provisions in the anti-discrimination legislation both in Great
Britain and here, is particularly unhelpful in allowing the Commission
to decide what is or is not a case worth assisting. We have tried
to develop the statutory criteria in a way that does not open
us up to judicial review on the basis that we have fettered our
discretion in some way. We have taken legal advice on what our
criteria should look like. The criteria refer, as you know, to
our strategic plan and it often comes down to deciding whether
an issue is one that, for example, raises criminal justice concerns,
which is within our current strategic plan, or other concerns
which are within that plan. We do pay considerable attention to
that. We also take that on board when deciding to proceed by funding
the individual rather than by going to court in a different capacity,
either in our own name or as an intervener.
23. I am very interested in that area of, as
it were, how you decide which route to take once you have decided
to become involved in a case. I cannot myself at the moment see
what criteria you do use to make those decisions. Part and parcel
of how you do that will be how you perceive the relative impact
and the relative utility of the three methods now available to
you. Can you give us help about that? I appreciate we are talking
in an enormous amount of detail about a very small pot but we
are anxious to learn from your experience.
(Professor Dickson) There are two constraining factors
that we have to bear in mind when deciding which route to go down
as regards casework, one is that we have a duty under Section
70 to consider applications by individuals. We have to consider
every case in the same way against fixed criteria. The other one
is, if we decide to take a case in our own name we have to be
aware of the statutory limits on our power and if we did that
we could not rely on Convention rights. Rather bizarrely the Northern
Ireland Act precludes us, unless we are ourselves a victim, which
is very unlikely, from relying on Convention rights when taking
cases in our own name. As part of our next strategic plan we have
been developing a casework strategy which will address the kind
of issue that you have just raised, which for us would be the
best route to go down. Of course it is the case that from September
2000 to June 2002 we were deprived of the intervention route thanks
to the ruling of the courts, effectively our choice was to assist
individuals or to go in our own name. As I indicated, the limitation
on going in our own name is a serious one and remains so.
Lord Lester of Herne Hill
24. I wonder if I can probe that slightly more.
I quite understand that you are not a victim in terms of the Human
Rights Act and therefore you do not have standing in that sense
to make a claim, but there is nothing to stop your Commission
from bringing judicial review proceedings in your own name and
then in the course of that indicating the Convention rights have
not been properly taken into account, is there?
(Professor Dickson) That is, indeed, how we proceeded
in October 2000 when we took a case against the BBC in relation
to the broadcasting of an edition of Panorama. The judge in that
case did suggest that having gone into court on a judicial review
standing he then, as a public authority, became under an obligation
to deal with the convention points. Unfortunately the judge, despite
our best efforts, has not reduced that decision to writing in
any form. It remains unclear whether judges would adopt the same
attitude, especially in Northern Ireland. It is not always that
we have gone to court through judicial review in the first place.
25. Are you satisfied that your procedures and
criteria for funding cases are very clear and transparent?
(Professor Dickson) They are certainly very transparent,
we make no secret of that. They are widely known and distributed
and in our annual reports. Whether they are clear or notI
think they are clearlike many criteria they are often difficult
to apply to the facts of a particular case that is brought to
us. Most difficult of all is to know which weighting to give to
the answers to the various questions that we ask ourselves when
applying the criteria. There is certainly room for the criteria
to be reviewed again and, as I said, we have received advice from
counsel on this issue and the relevant committee of the Commission
is, in the very near future, reviewing its criteria and its overall
casework strategy with a view to feeding in to the Commission's
26. Ironically the smaller you pot the more
important it is to have detailed criteria. Do you agree?
(Professor Dickson) I would agree.
(Professor Hadden) There is a difficulty here, to
have a very strategic approach to choosing cases really does involve
a large amount of discretion for the Casework Committee in deciding
on which case to pursue. That is a discretionary guideline, what
do we as a Commission think would be a good strategic case to
take. On the other hand, from the point of view of the applicant
they probably would not like such a discretionary guideline or
criteria because they want to know that they are getting exactly
the same treatment as any other applicant for assistance. The
more you go down the strategic route the more your criteria have
to be discretionary. I am not sure that we have quite resolved
that conundrum yet.
27. That is why I prefaced most of this questioning
by asking which model you were applying, strategy or symbolism,
as it were. That is very helpful. May I return, I hope not too
intrusively, to the issue that Mr McNamara and Lord Lester have
raised which is that it is, it is appreciated there has been some
pressure in one particular instance about withdrawing funding
for a case, is this, without you, of course, giving me concrete
examples, the only time you felt under pressure or to what extent
are pressures placed upon the Commission in controversial cases?
Are they ever a factor?
(Professor Dickson) I think the main factor in our
casework is the budgetary consequences of casework. We need to
keep very close tabs on how much is being spent on our cases and
we try to insist upon the solicitors who receive assistance keeping
us well informed regularly as to the amount of money that has
been spent. We have been well overspent on our casework budget
since our inception, I think, and we are going have to go to the
Northern Ireland Office very shortly and explain that some special
procedure or mechanism is going to have to be put in place. I
am glad to say Mr Browne did promise greater flexibility on this
point. We are going to have to plead for some special understanding
of the difficulties we are under as regards the financial pressures
in casework, otherwise I do not think there has been pressure
on us to withdraw from cases. I think I am right in saying that.
(Ms Sloan) Not on a specific case because of the controversial
nature of the case but in terms of financial limitations what
we have had to do periodically is to stop taking new enquiries
because we simply did not have the capacity to deal with the number
of enquiries that were coming through. We have an assistant caseworker
who does much of the initial enquiry work, but that is only on
a temporary, short-term contract. That is part of the working
out of the Hosking evaluation and subsequent management change
process that we are going through, to look at how we can best
meet the demands on us for legal advice. That has been a financial
consequence, that we have had to periodically stop taking enquiries
and providing telephone advice.
28. Thank you very much.
(Professor Hadden) May I add other point, there is
an issue here between the methods of proceeding, if you are giving
assistance to a particular applicant the Commission does not have
as much control over the expenditure in the case as we would have
if we were taking the case in our own name. We cannot often make
strategic judgments as to whether this is a case worth continuing
to proceed with in terms of a strategic objective or is it one
that we should settle or withdraw from. In a case where we are
assisting other applicants then the legal advisers of that applicant
are more in control of the expenditure that is incurred rather
than the Commission itself. That is a concern.
Lord Lester of Herne Hill
29. Can I just follow that up, I have quite
a lot of experience of this as a legal adviser to some of the
equality agencies, that problem, I think, is increasingly dealt
with by those agencies by imposing fairly intrusive conditions
on members of my profession to make sure that they do not, as
it were, run away with cases without the funding agency keeping
careful control. I just wonder whether you have mechanisms in
place that enable you to ensure those who are funded are not,
as it were, moving outside the area that they should be?
(Professor Dickson) I think we do have such measures
in place. We have quite strict conditions of offer that we make
to solicitors and counsel when granting assistance. I think we
have had a bit of difficulty in receiving the information from
solicitors on a regular basis that we would like to have to enable
us to keep tabs on cases. We are taking steps to ensure that we
are better informed.
30. Do have you any system of in-house supervision
of those cases actively as they are on-going? Would you send somebody
to every court hearing or would that be just spending money twice,
as it were?
(Professor Dickson) Such are our limited resources
that we cannot always send a case worker, the main case worker
or the assistant, to the court hearing. That does not happen often
but it happens occasionally that that would be the case. The Casework
Committee tries to keep tabs on the money being spent on cases,
and the Chief Executive does likewise.
31. Can I ask you a related issue about the
procedures you have in place to prevent conflicts and indeed apparent
conflicts of interest and breaches of confidentiality, are there
particular difficulties in a case where the Commission are supporting
the case and might have to give evidence in it?
(Professor Dickson) We do have a confidentiality policy
which at the moment does not contain a particular clause on conflicts
of interest, that is something I want us to look at in the near
future. There is a potential for commissioners who are taking
decisions on cases having an interest in the case, whether for
the applicant or against the applicant. We try very hard to set
aside our interests and I hope we do that successfully. There
is also the point that is worth bearing in mind here, that the
Casework Committee given the nature of its function has been delegated
with the powers to perform by the full Commission, which means
that on occasions three commissioners, even two commissioners,
can take decisions on cases which bind the whole Commission. We
have been learning as we have gone along in our casework, as in
other areas, and we have now altered our procedures slightly so
that particularly controversial cases or rather cases where there
is serious dissent in the Casework Committee can go to the full
32. Finally about casework, Chief Commissioner,
thank you for your comprehensive answers so far, I was going to
ask you about the existence of any memorandum of understanding
with the Legal Aid Commission, you told Baroness Whitaker that
there is one. As you are aware we have taken some written evidence
as well as talking to you. We have received some evidence that
nonetheless there is sometimes a lack of coordination between
the Commission and the Legal Aid Department which can cause applicants
seeking funding to be delayed in bringing their actions. Is that
right? Are you confident that your memorandum has now dealt with
that problem or is it still an issue?
(Professor Dickson) The memorandum has been in existence
for some time. The controversial or difficult aspect of it is
that which, as has been mentioned earlier, requires the Legal
Aid Department, because of the Legal Aid regulations, to refer
matters to us because we are a facility available to grant assistance.
In the latest version of that memorandum the Legal Aid department
refers only those cases where the core issue is a human rights
issue. That still means that a number of cases are sent us to.
Often these are emergency applications for Legal Aid which the
Legal Aid Department tries to deal with within three days. Likewise
when we receive a referred application of that nature we try to
deal with it through our own emergency procedures which require
either an emergency meeting with the Casework Committee or telephone
contact between a caseworker and members of the committee. If
all else fails then there is the chairperson's action on the case.
That usually takes place likewise within three days of receiving
the application, although in our view not all emergency applications
actually satisfy our criteria for urgency. I do not think there
is lack of coordination, as you suggest. There are difficulties
caused by the Legal Aid regulations and we are still in contact
with the Legal Aid Department reviewing that particular clause
in the memorandum to try to make it less of an apparent obstacle
to applicants for Legal Aid.
33. Professor Dickson, if I may now move on
to legislative scrutiny, this Committee has now developed quite
a considerable expertise in scrutinising legislation and seeking
to influence and promote change in legislation where we see a
potential human rights conflict or abuse. I do not see any specific
reference or, in a way, not even implicit reference in your strategic
goals to this work. Where do you see legislative scrutiny in terms
of your priorities in the Commission? Further to that, who do
you seek to influence in so doing?
(Professor Dickson) In our latest discussion of our
next strategic plan we envisage the work on legislation and policy
being referred to the objectives related to the goal of identifying
serious human rights violations, the goal of protecting vulnerable
groups, the goal of international monitoring and the goal of promoting
awareness. Our objectives would relate to more than one strategic
goal. For example through our legislation and policy work we will
be promoting awareness within the Civil Service, within officialdom,
as to the need to proof legislation and policy against human rights
standards. Who are we seeking to influence? We are seeking to
influence the policy and law makers on all occasions, be they
Parliamentarians in London, be they MLAs in Belfast, be they the
officials who draft the secondary legislation, which is very common
in Northern Ireland. With some Government departments we have
a very good relationship, they send us all of the draft statutory
rules, they respond to our comments and very often they will give
us reasons why they are or are not changing their proposals.
(Professor Hadden) I think one of the issues certainly
on my mind is what the best way of influencing Parliamentarians
may be. Our practice so far has been to send all documents to
members of Parliament or members of the House of Lords who we
think may be interested. There is, perhaps, not sufficient follow-up
in that process and one of the things we are considering at the
moment is whether it would be desirable for us to have some kind
of parliamentary liaison officer who would act more proactively
in contacting members of Parliament and lobbying on issues which
we consider to be particularly important. A purely paper process
sometimes may not be as effective as direct contact although that,
of course, is a resource question, how much of our limited resources
should we be applying to that particular kind of involvement in
the legislative process. It is labour intensive, it is difficult
for us to decide on how much we should spend on that. A full time
member of staff could easily be absorbed full time in that kind
34. Thank you. As my question was related to
legislative scrutiny, I cannot see how you could possibly further
promote the interests of legislative scrutiny of human rights
by lobbying individual members of Parliament. Surely the question
here is how you work with Government and with the Assembly in
scrutinising legislation, not lobbying individual members. I find
it very puzzling to see how that could possibly fit into a legislative
(Professor Hadden) My answer to that is that I am
thinking in terms of legislation which is being proposed, particularly
in relation to Westminster legislation. The Northern Ireland contingent
is quite small and in order to ensure that legislative proposals
and our views on them in relation to human rights compliance are
taken seriously we do have to involve ourselves with members of
Parliament who can raise those issues. It is somewhat easier in
relation to Northern Ireland Assembly business because the channels
of communication are more direct. Particularly in relation to
dealing with legislation on a UK-wide basis it is quite difficult
for us to deal with the Westminster departments who do not have
Northern Ireland issues very high on their agenda. In order to
do that we do have to contact members of Parliament to ensure
these issues are raised in the relevant committees. I cannot see
there is any other way of doing that.
35. Resources. The Commission has made it clear
on a number of occasions that it considers its level of resourcing
inadequate, do I take it that that remains very much the position
(Ms Sloan) Very much so. We had our core budget set
for three years and, as you know, we are just awaiting the outcome
of the next Spending Review. We have not as yet been told how
that will affect our core funding. We are struggling, as I said
earlier, with the tension between maintaining our independence
and obviously our need and desire to be fully accountable in terms
of Treasury guidelines. We want to be accountable for our finance
but we do want to be able to make our own decisions as to which
investigation we will undertake or which consultant we will use
for evaluation if we want to undertake that. That level of scrutiny
is not helpful. I do not get the impression in recent months that
that is what the current Northern Ireland Office officials or
the ministers want for us. However, as I said before, 90% of our
core budget is required simply to open the doors. We do not have
any more than one full time member of staff responsible for each
of our statutory powers and duties, we are stretched to the limit.
Obviously, as Lord Lester said before, we have looked at that
to see how we can make the best use of our resources. We are operating
on a very tight budget, and compared to other organisations with
similar remits it is a small amount of money that we work with.
36. I wonder if I can ask you very directly,
is an effective Human Rights Commission viable in the long term
on current levels and current structure of funding?
(Ms Sloan) We would have to look very carefully at
how we prioritise our work and how we prioritise our resources
if we had to continue to work on the same level of core funding.
We have managed to increase our funding by about 60% each year,
during the second and third year, through supplementary funding.
I would be very surprised if we have to continue on £774,000.
It would be a serious challenge to our operation were we compelled
to continue on that level of funding.
Vera Baird: Thank you very much.
37. I want to pursue the question of the Bill
of Rights: following the suspension of the Assembly it was agreed
that the parties and the Government would look at all aspects
of the Belfast Agreement, in particular matters which arose from
it which centred around the Commission. The question is this,
have the Government been in touch with you about it, are the Government
in touch with you about their review of what is going to happen,
or any of the political parties?
(Professor Dickson) Neither government has been in
touch with us, Mr McNamara. We have had meetings with some political
parties which have led us to believe that the Bill of Rights and
the Commission are in some way being discussed during the interparty
talks, but we do not really know any details about that.
38. In their evidence to us the Evangelical
Allianceyou may not have seen this, it is a general point
they make"The apparent hostilities between the Commission
and elected representatives in the province have weakened its
effectiveness. The Commission does not present itself as underpinning
the political structures, but rather as undermining them. Set
up by the same Belfast Agreement that established the Assembly,
this is an incongruous position of usurping the elected and representative
political system that Northern Ireland lacked for so long. This
is not a tenable position for the Commission to maintain."
What would your observations be on that? What do you think gave
them cause to say that to us?
(Professor Dickson) My observations would be that
I do not recognise the Commission from that description. To suggest
that we are undermining political structures here is completely
inaccurate. We have worked very hard to arrive at an understanding
with the different political parties here. It has been more difficult
in some quarters than in others. We have sought to engage, in
particular with the Unionist parties, on human rights issues without
for a moment sacrificing our commitment to the international human
rights standards. Obviously because of the differences between
the parties here on rights issues and in particular on a Bill
of Rights for Northern Ireland there is a danger that whatever
we come up with on the Bill of Rights may meet with opposition
from one or more of the political parties. If the parties can
arrive at a consensus as to what should be in a Bill of Rights
for Northern Ireland we would be extremely pleased. If they can
do that in conjunction with the Commission's processof
course we have a duty to give advice to the Government on this
and in conjunction with the international experts and civic society
we are engaging withthen so much the better.
39. With regard to the international organisations,
to whom did you look for an interpretation of your proposed Bill
of Rights and why?
(Professor Dickson) So far we have not completed this
process. We have looked both to the Council of Europe's experts
and to the Office of the High Commissioner on National Minorities.
I should add we have also sent it to the United Nations in Geneva.