Protecting human rights or the state?

In the first of a two-part series on the embattled Six-County Human Rights Commission, UNA GILLESPIE explains why nationalists are unimpressed by the Commission's performance to date and outlines the changes necessary to secure the implementation of a satisfactory human rights agenda.

What confidence can nationalists have left in the Human Rights Commission given the revelations of the last few months? This month, we have seen the resignation of a fourth Commissioner, Patrick Yu, and the publication of a damning report by the British Joint Parliamentary Committee on Human Rights and the revelation of the breaches of the Commission's independence by the then RUC and the role of the Chief Commissioner in that debacle.

These events came after the previous resignations in September 2002 of two respected Commissioners, Inez McCormack and Professor Christine Bell, and the resignation the previous year of Angela Hegarty.

They also came following controversy over the attitude of Chief Commissioner Brice Dickson towards the parents and children of the Holy Cross primary school. Professor Dickson visited the Ardoyne road on a morning when the abusive protest was nearing its suspension, met with the protestors from Glenbryn, defended their right to protest and ignored the besieged children and their parents. His attitude then has illuminated his behaviour regarding the Holy Cross protest since.

The latest revelations come after the NIO rejected the majority of the 25 recommendations from the February 2001 Review of the Commission's powers. The major issue that review and a subsequent independent review undertaken by Peter Hosking from the United Nations emphasised was that the Commission was restricted by the lack of power [a] to compel witnesses and documents [b] to take cases in it own name and [c] to have unimpeded access to certain institutions.

A long list of issues and events has added urgency to the need to review the entire role and remit if the Commission and to ensure speedy interventions to rebuild damaged confidence and ensure the vigorous defence and protection of human rights of all people.

Nationalists viewed the Human Rights Commission established under section 68 of the NI Act 1998 as a fundamental element of the Good Friday Agreement. The report from the British government's Joint Committee on Human Rights, however, has brought into focus and into the public arena the fissures that have been appearing in the Human Rights Commission for a long time.

The report examined the work of the Commission under a number of headings:

Independence and impartiality
The appointments process
Funding and resources
Powers and functions
Effectiveness.

The report by and large reflects the concerns of a number of organisations that gave evidence to the committee during its deliberations. Must damning was probably the evidence given by Christine Bell and Inez Mc Cormack. The list of issues that they outlined is as follows:

The government's lack of commitment to ensuring that the Commission lives up to the vision set out in the Agreement of a Commission: "It has been our experience that paper commitments to human rights which are not implemented, also stand to undermine both the Agreement and human rights protection generally."
The failure of the Commission to establish a clear focus and strategic direction.
The Commission was routinely ignored by government departments and other public bodies.
The lack of powers for the Commission for many of its core functions and a lack of investigative powers.
The entire process of the consultation on and formulation of a draft Bill of Rights for the North as outlined in the Good Friday Agreement. The Commission from the outset was deeply divided over the approach to be taken to a Bill of Rights and there was a lack of coordination over this project internally.
The fact that core funding is provided by the NIO and additional finance has to be applied for to the NIO: "It in effect gives the government direct control over what projects should be carried forward and the shape in which they are carried forward."

An example of the latter point was submitted as evidence. A letter in May 2002 was sent from a employee in the NIO to the Commission regarding applications for funding for investigations. It read: "Ministers are content, in principle, to provide the funding for the investigations into the inquest system and controversial deaths. However, they have a genuine concern that this work must not prejudice future legal proceedings or cut across work being done by others, including the international judge... Release of the £30,000 associated with these investigations is therefore conditional upon your supplying further particulars and agreeing with us in advance the terms of reference for these reviews so that we can satisfy Ministers that no such problems could arise."

Bill of Rights undermined

Other organisations had listed the problems with the Bill of Rights process. Sinn Féin, in its submission, stated that the Commission's consultation document "actually diluted specific guarantees of the Good Friday Agreement in relation to equality and parity of esteem. The Human Rights Commission also promoted a more minimal approach to the interpretation of the Framework Convention for the protection of national minorities."

In his submission, Professor Chris McCrudden, Chair of Human Rights at Lincoln College, Oxford, outlined the core problems with the Bill of Rights process, summing up: "There is now, however, a significant degree of consensus, that the NIHRC's document is not the way forward. This is not surprising. The document is the product of a radically divided NIHRC... Documents of the kind that the Commission was mandated to produce need to be visionary, technically authoritative, politically astute and comprehensive. The Commission's document is unfortunately none of these. In large measure, the chorus of criticism to which the document has been subjected is justified. It is sloppy, rushed, internally inconsistent, technically unconvincing and lacking any coherent vision."

He also outlined some of the other core problems with the Bill of Rights, namely:

Failure to consider the relationship between the Bill of Rights proposal and existing equality legislation
No clarity about the potential legal status of such a Bill
The issue of the protection of Minorities: "The NIHRC document, over the dissent of some members, apparently, has interpreted the Convention protection of 'minorities' as encompassing protection of communities of identity more generally and views this protection as therefore equally applicable to majority identity communities."
No attempt to define what the conflict in the North had been about: The Commission has not attempted to define "the particular circumstances of Northern Ireland".
The consultation documents does not adequately address the relationship between equality, identity and socio-economic rights.

In order to address the problems around the Bill of Rights, Professor Mc Crudden makes a recommendation that was later reflected in the recommendations from the Joint Committee:

"A fresh start is necessary. It seems unlikely that the Commission will be able to achieve what is necessary. The Commission should recognise that fact... an alternative process for progressing the project must be devised... the bare bones of such a process are clear: the establishment of a forum outside the Commission, with participation from the Northern Ireland political parties and civil society, under an independent chair, advised by an expert secretariat. The results of any consensus that emerged over time would then be presented by the NIHRC to the Secretary of State as its advice as envisaged by the Belfast Agreement."

Independence and representativeness

A major issue for the Joint Committee and a number of organisations that gave evidence was the representativeness of the Commission and its independence. Sinn Féin, in its submission, said: "The HRC is unrepresentative in composition of wider society and is therefore unbalanced in terms of community background, gender and religious balance. Presently the composition is skewed towards a majority of those from a unionist background, a matter further compounded by the recent appointment of a unionist politician.'

The issue of representation and appointment of Commissioners has highlighted the lack of independence of the NIO appointments procedure and compounded by the fact that a criterion for appointment does not include the necessity to have any human rights knowledge or experience. An example of the lack of representativeness occurred with the resignation of Angela Hegarty from the Commission. After a long delay, one Catholic female commissioner was replaced by one Protestant female, one unionist politician, one male Catholic and Patrick YU from the Northern Ireland Committee for Ethnic Minorities, who later resigned his post.

For nationalists, the appointment of the UUP's Chris Mc Gimpsey was a clear signal that any vestige of independence of the Commission had been wiped away. Later evidence has come to light to prove that that has been the case.

It is too early to know how the Human Rights Commission will respond to the recommendations from the Joint Committee, but one thing is certain. Unless drastic action is taken to remedy the situation to ensure that the Commission fulfils the letter and spirit of the Good Friday Agreement then we will have to stand by and watch another pillar of the Agreement collapse in on itself because of political interference, lack of championship of human rights and the failure to honestly address the issues of the conflict and inequalities and human rights abuses.