ANALYSIS: If the human rights commission is under the thumb of the executive it might as well not exist
IN THE coming months, the Government will be faced with the task of appointing a new Irish Human Rights Commission, 10 years after it was set up. This presents the Government with an opportunity to demonstrate its commitment to the principles of transparency and accountability the Coalition parties espoused during the election campaign.
The commission has its origins in the Belfast Agreement, though human rights commissions have been a feature of many states in recent decades. The 1998 Belfast Agreement committed both states to setting up human rights commissions, but it is fair to say that many members of the Government were less than convinced of the need for it. Despite that, then taoiseach Bertie Ahern said the Irish commission would be “a model of its kind for Europe”, taking as its starting point the UN’s Paris Principles and creating rather than following standards of best practice.
The 1993 Paris Principles to which he referred lay down guidelines for national human rights institutions. These include ensuring its members are representative of the social forces involved in the protection and promotion of human rights: NGOs, trade unions and concerned social and professional organisations; universities and qualified experts; and parliament.
The legislation as eventually passed stated that the members of the commission should be qualified for the task and “broadly reflect the nature of Irish society”. An independent selection committee was formed under the chairmanship of TK Whitaker, and it put forward eight names to the State.
In an early indication of the low tolerance of the State for independent bodies with a monitoring role, the then government rejected most of the names and sought to substitute its own eight. Following much controversy, including the threat to resign of the first president of the commission, former Supreme Court judge Donal Barrington, the government relented and expanded the commission from eight to 14, to include most of the committee’s nominees along with its own.
However, this independent process was not followed through, and when Barrington later resigned on health grounds his successor, Maurice Manning, was nominated by then minister for justice Michael McDowell, without an open advertisement, despite the commission seeking one (its members stressed this meant no criticism of Manning). Subsequent appointments to the commission have also been less than totally transparent.
These episodes illustrate the central problem with organisations like the commission: why should a government set up an institution whose function is to critically examine its activities on a truly independent basis, and give it the resources to do so? And, if forced for local or international diplomatic reasons to set up such a body, would the temptation to restrict its independence not be overwhelming?
The fact that the commission falls under the remit (and the financial control) of the Department of Justice, the very department it is most likely to examine critically, illustrates this. Officials in that department have been heard to complain bitterly about the fact that a body it funded criticised State policy on the use of Shannon by US military aircraft, as the commission did in a report on rendition. Manning has rightly appealed repeatedly for it to be directly answerable to the Oireachtas, rather than the executive in the form of the department.
The commission suffered a further blow to its independence in 2008 when the then government cut its funding by 23 per cent, thus reducing its ability to carry out much of its mandate. However, even before this, it was not fulfilling some aspects of that mandate to an appreciable extent, especially those relating to the carrying out of inquiries and exercising its legal right to take cases on behalf of people claiming a denial of their human rights.
Perhaps its mandate is too broad. NUI Galway academic Donncha O’Connell has argued in another context that the role of the Ombudsman should be strengthened and given constitutional status, reporting to an Oireachtas committee and thus providing a specialist inquiry service to the Oireachtas. It could be extended to take in the inquiry remit of the human rights commission and to examine complaints about individual human rights abuses.
Despite the problems, the commission contains many experts in human rights law (though it is rather short on people with experience of active campaigning on human rights issues) and Manning has established both a national and international profile as its president.
But the commission does not appear to use well the considerable expertise it contains. It is very rare that individual commissioners, who include some of the leading experts in their area, are asked to contribute to public interventions made by the commission. The public may well wonder what they do. Especially as, since the cutbacks, much of its activity seems to be the issuing of statements by its president and chief executive.
This situation will get worse if the new commission is allowed be a continuation of the old. Both parties now in Government vociferously opposed the cuts to its budget and the even greater cuts to that of the Equality Authority, which led to the resignation of its chief executive, Niall Crowley. They demonstrated at least a verbal commitment to the independence of such bodies.
They now have an opportunity to demonstrate that commitment by setting up a transparent process for the appointment of a new human rights commission. It is not a question of money. It does not have to have 14 members. They do not even have to be paid, or can be paid less than the €15,000 received by current members. It does not have to have a full-time president, and not one paid a High Court judge’s salary. Its chief executive can also be remunerated modestly.
But if it is let become a body of Government nominees, under the thumb of the executive, to be trawled around international meetings by the Department of Foreign Affairs to show how good we are at doing human rights, it might as well not exist at all.
CAROL COULTERis Legal Affairs Editor