More consultation on greater powers for Commission

The next step in a rather tortured consultation process has been announced by NIO minister David Hanson – Consultation on powers of the Northern Ireland Human Rights Commission, which the BBC have reported as “Rights body powers to be boosted”. It’s a process that began in March 2001, shortly after the Commission was established, with 25 recommendations from the Commission on what they thought they should be able to do. A couple of response documents, and clarification from the House of Lords, have resulted in some of those recommendations being withdrawn.. and 4 more were made in April 2004.. all 29 recommendations are included in the latest public consultation document[pdf file]. Of those 29 the government has recommended taking action on just 2, Recommendation 22 and Recommendation 24.From the NIO statement –

The Government has today published a consultation paper on its proposals for the powers of the Northern Ireland Human Rights Commission.

Commenting on the consultation, Political Development Minister, David Hanson MP, said: “The Government believes strongly in the importance of human rights and is committed to ensuring that the Commission has the right powers to enable it to carry out its duties effectively.

“The Government has assessed recommendations put forward by the Commission and is satisfied that it already broadly possesses the right powers to carry out its duties efficiently. However in two important areas, the right of access to places of detention and the power to compel evidence and witnesses, we agree that it is right to amend the Northern Ireland Act 1998 to make sure that the Commission can fulfil its existing functions properly.”

“The consultation will run until 8 February 2006 and I invite views on all aspects of the paper, but particularly on how these two powers should be implemented and how we can make sure that the right safeguards are in place.”

The two recommendations that the government is prepared to take action on are –

Recommendation 22

A new section 69(8A) should be inserted into the Northern Ireland Act 1998 which reads: “The Commission shall, in order to assure itself that human rights are being protected or to investigate any alleged violation of human rights, have access to all places of detention in Northern Ireland and to all places where persons are in the care of a public authority or of a person or body exercising functions of a public nature”.

And the government’s response –

51. The Government agrees that it is crucial for places of detention to be inspected to protect against abuses of human rights and to guard against unfounded allegations of abuse. Northern Ireland already has a range of inspection and oversight bodies with powers of access, which perform very important work in this area. However, the Government accepts that there will be times when the Commission can add value to the work of other agencies. As a consequence, the Government agrees that it is right to amend the Northern Ireland Act 1998 to give the Commission the power to access places of detention to assure itself that human rights are being protected or to investigate an alleged violation of human rights.

With some caveats..

52. The Government has listened to the views – many of them strongly held – both for and against additional investigative powers for the Commission, as set out in recommendations 22 – 24. It has also considered developments in Great Britain, where a Commission for Equality and Human Rights is being established; in Scotland, where a Human Rights Commission is being created; and looked at the position in other jurisdictions.

53. Given that there are other bodies, such as the Prisoner Ombudsman, Lay Visitors, the Criminal Justice Inspectorate and the Police Ombudsman, which have well established responsibilities in this area, the Government will need to ensure that there is a co-operative relationship between the Commission and other agencies. It is right that the Commission should carry out investigations into matters in the field of human rights that have not otherwise been properly addressed. It would not be right for the Commission to duplicate the work of other bodies, or to cause undue disruption of the services these bodies provide or to the places of detention they inspect and oversee. We will create appropriate mechanisms to make sure that there is a collaborative approach between the Commission and other bodies.

54. The recommendation is couched in very broad terms; the phrase ‘in the care of a public authority or of a person or body exercising functions of a public nature’ leaves open to interpretation the exact places to which the Commission will have access. The Government believes that there should be clarity about the scope of this power and is giving consideration as to how best to define in legislation the places, or types of place, to which the Commission will have access.

55. This is an important power and the legislation will need to include provisions to ensure that the Commission uses it appropriately. The Government would welcome views on what safeguards will be needed. The Commission could, for instance, be required to set out the terms of reference for any investigation, and allow those who manage the place to which they require access to comment on the terms of reference. The Commission could also be required to give a certain period of notice of a visit to the place to which it requires access. Another possible safeguard would be for those who manage a place to which access is required to be able to apply to a court to cancel the request on the grounds that it is unnecessary for the investigation or otherwise unreasonable.

Recommendation 24

A new section 69(8C) should be inserted into the Northern Ireland Act 1998 which reads: “For the purposes of conducting investigations under section 69(8), the Commission may require a person whom the Commission reasonably believes to be in possession or control of any information, document or thing that is relevant to an investigation being conducted by the Commission, (a) to furnish that information, document or thing to the Commission and (b), where appropriate, to attend before the Commission to answer fully and truthfully any question put to him or her by the Commission (other than a question the answer to which might incriminate the person) and (c), if so requested by the Commission, to sign a declaration of the truth of his or her answers to any questions put to him or her under paragraph (b)”.

The government’s response –

61. We agree that it is important that the Commission can carry out its investigations effectively. In normal circumstances, we would hope that the Commission will always receive co-operation from those it believes are in possession of relevant information. However, we accept that there may be times when information is not forthcoming and that consequently it is necessary for the Commission to be given the power to require that information be produced.

And, again there are caveats –

62. In giving such a power we will need to provide safeguards to ensure its use only in appropriate circumstances and in a proportionate and reasonable manner. We will also need to consider how it could be enforced.

63. It will be important to get the safeguards right. The Government would welcome views on what form the safeguards might take. The Commission could, for instance, be required to set out the terms of reference for its investigation, and allow anyone involved to comment on the terms of reference before giving notice to a person requiring them to provide information in their possession. Another possible safeguard would be for a person given a notice to be able to apply to a court to cancel the request on the grounds that it is unnecessary for the investigation or otherwise unreasonable.

64. There are certain areas, such as national security matters, in which it will be necessary to protect sensitive information, in the public interest. The Government wants to ensure that as far as possible, the Commission can access the information it needs to carry out its functions, consistent with protecting the public interest, and so it will be important that these areas are clearly defined.

65. The Government would welcome views on these proposals, particularly on how this power should be enforced; whether additional or alternate powers and safeguards to those set out above would be needed; and on whether certain categories of information should be exempt from this power, in the public interest.

Still no mention of a Northern Ireland Bill of Rights though..