New Rights for Human Rights Commission

Another NIO statement, this time on their response to the consultation on extending the powers of the NI Human Rights Commission – full response document here[pdf file]. The statement links this response to the St Andrews Agreement… but the consultation was announced in November 2005, and ended in February this year, and the process has been ongoing since 2001.. ANYway.. there is one main addition to the proposals the government made back in November 2005 – “the power to rely upon the European Convention on Human Rights when bringing judicial proceedings in its own name.”… we are, of course, already well catered for in terms of human rights protections.. Something for the conference to discuss no doubt.From the government’s response document[pdf file] – I’ve highlighted some areas that caught my attention.

Relying on Convention Rights in Judicial Review proceedings

7. The Commission has long believed that it should be able to rely on the European Convention of Human Rights when bringing Judicial Review proceedings itself. Our consultation document responded with the Government’s initial view that Convention rights were already adequately protected by allowing victims to take cases.

8. We have, however, carefully considered the arguments presented by the Commission and other consultees and we now believe that there will be value in allowing the Commission to rely on Convention Rights in certain cases. We can envisage circumstances in which it is more appropriate for the Commission to take a test case to clarify a point of law rather than relying on individual victims to do so.

9. Granting this power will not in itself create any new circumstances for litigation: the Commission will be empowered to bring cases only where there is already a victim, or potential victim, who would presently be able to bring a case themselves. We would not expect the Commission to bring such cases often; in the great majority of cases, we would still expect victims to bring cases themselves. The Commission will not be awarded any damages in such cases.

Investigations: New Powers and Safeguards

10. One issue that provoked a polarised response from consultees was our invitation for all parties to consider what form the new statutory investigatory powers should take; and what safeguards would be required to ensure that they were adhered to appropriately by all parties.

11. A number of respondents felt that there should be no extra powers for the Commission; whilst others felt that it should be able to compel evidence and access places of detention without any restrictions.

12. Having considered this issue carefully, we still intend to bring forward legislative provisions that will allow the Commission to compel evidence and to access places of detention as part of its investigations. It is also our intention that a number of safeguards should be put in place that apply to both the Commission and to public authorities. The purpose of these is not to frustrate or impede investigations, but to ensure that other considerations are also taken into account, and to ensure that those who are faced with requests for access or evidence are not able to simply ignore them.

13. We have examined developments in Great Britain, where the powers of the forthcoming Commission for Equality and Human Rights have been provided for by the Equality Act 2006. This Act contains a number of provisions that exempt information from being compelled if its release would have national security implications. Similar exemptions will be applied in Northern Ireland. We have also considered the human rights of those who might be placed in danger from the release of evidence, and will ensure that they are adequately protected.

14. In extending significant new powers to the Commission, the Government is seeking to enhance the contribution that it can make to the future protection of human rights in Northern Ireland. We therefore intend that these new powers will assist the Commission in being forward looking. The power to compel evidence, therefore, will only be used in the investigation of contemporary and future issues. Other bodies are better placed, and specifically mandated, to investigate historic issues.

15. One of the main concerns voiced by those who were sceptical of these new powers was the impact on the operational effectiveness of those who would be subject to their use. Specifically, there was concern that these new powers would duplicate the work of other bodies, and would unnecessarily disrupt the work of places of detention.

16. We intend to legislate for a revised investigations process in which there would be a requirement for the Commission to consult on terms of reference for its investigations. This will involve the Commission forwarding a clear outline of the purpose of its investigation to all relevant parties and will therefore help establish a channel of communication between the Commission and the bodies it is investigating.

17. There will also be a responsibility for the Commission to consider the work of other public bodies in order to avoid duplication of roles. The Commission will be required to consider whether an issue had been fully investigated by another body before carrying out an investigation. This is in line with a similar statutory duty that applies to the Chief Inspector for Criminal Justice for Northern Ireland.

18. It is also our intention to allow places of detention an initial period of fourteen days to appeal against the terms of reference if they are unnecessary, unreasonable or do not meet the statutory requirements that cover this power. However, it is not our intention to require the Commission to provide advance notice of any visit that it wishes to carry out. We have noted the comments from consultees that such a requirement would have been perceived as severely limiting this power.

19. It is also our intention to create two new criminal offences which will provide appropriate sanctions for those who fail to comply with the Commission’s new powers.

20. We are aware that there were mixed views on whether we should specify which places of detention should be able to be accessed by means of this new statutory power; or whether we should provide a more open definition that would allow the Commission to access ‘any place in which a person was being detained’. The Government’s view is that an open definition would present legal ambiguity and would leave the power subject to interpretation and challenge. We therefore intend to specify the categories of places of detention that can be accessed. These will include prisons; young offenders institutions; the juvenile justice centre; secure childcare accommodation; court cells; police cells;
immigration holding facilities; special facilities for those detained under terrorism legislation; and special facilities for those detained under mental health legislation. It is our view that this includes all relevant places of detention. However, we intend to provide for an order making power which will allow for the list to be amended, if necessary.

Making further recommendations

21. In the time that has passed since the Commission made its initial recommendations, it has remained of the view that there should be an explicit statutory requirement for it to make further recommendations regarding its effectiveness. Whilst we initially concluded that this was not necessary, as the Commission is able to make recommendations to the Secretary of State at any time, a number of consultation responses did highlight the perception that previous recommendations had not been progressed quickly enough by
Government. It was argued that recommendations needed to be given ‘explicit statutory weight’ as a result.

22. We are still of the opinion that the Commission can make further recommendations at any time. However, given that the Government is amending the original powers of the Commission, we do believe that it is right that the Commission is formally invited to comment on the effectiveness of these new powers. It is our intention, therefore, to place an additional statutory requirement on the Commission to make recommendations regarding the effectiveness of the new powers that are extended through this legislation, no later than two years following the date of their commencement.

Bringing Forward Legislation

23. When we launched our consultation process in November 2005, we stated that we would reconsider our initial proposals in light of the responses that we received. Our consultation document also stated that we would bring forward legislation to enact these proposals. We therefore intend to introduce legislation in the present Parliamentary session that will include provisions extending these significant new powers. The Government looks forward to the constructive debate that will accompany the passage of this legislation.[added emphasis throughout]

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