The process put in place to select the members of the new Irish Human Rights and Equality Commission goes substantially beyond the process reflected in the existing Human Rights Commission Act 2000 to ensure that those appointed are entirely independent of Government.  Heretofore, the members of the Human Rights Commission (and of the board of the Equality Authority) were essentially appointed by the Government.  In the case of the Human Rights Commission, there was a Selection Panel involved on previous occasions, but its role was less secure and robust than that envisaged for the new Commission.  In the past, the President of the HRC was appointed by the Government of the day without any independent involvement.

On this occasion, there was an extensive consultation process on the selection process, both by the Working Group that advised me on arrangements for the merger and by the Oireachtas Justice, Defence and Equality Committee.  The process of selecting all the members of the new Commission (including the Chief Commissioner) independently from Government by a Selection Panel appointed for that purpose was endorsed by the Oireachtas Committee and the Committee expressly welcomed the appointment of the five persons involved. 

The correspondence referred to from the Deputy High Commissioner is not legal advice; it provides preliminary comments and raises a number of possible issues for reconsideration in the process of drafting the Bill.  As such, it is part of the ongoing consultation process in relation to the establishment of the new Commission and the drafting of the necessary legislation.  These queries and recommendations require careful consideration and a response and I look forward to the opportunity to discussing these issues with her in due course. 

The competence and independence individually and collectively of the members of the Panel to undertake this task to the highest standards required by the Paris Principles is not in doubt either in fact or in perception.  I am both surprised and disappointed that the members of the Selection Panel should release a letter to the media only received in my office today without affording me or my officials an opportunity to respond to the letter nor to meet with them to clarify and discuss any matters of concern.  I have asked my officials to meet with them as early as is possible to discuss these matters and to provide such clarifications as are required.

27 July 2012

Additional material for editors

This is a comparative table of selection and appointment processes for ‘A’ status accredited National Human Rights Institutions in other jurisdictions. 

Key elements of the proposed selection procedure for the new Irish Human Rights and Equality Commission as set out in the General Scheme of the Bill are also included.  While circumstances and legal and administrative traditions are different in the different UN member states, making it difficult to assess the actual impact and application of legislation without having knowledge of those circumstances, it does seem clear that the proposed selection process for Ireland compares very well with the procedures in place for other NHRIs that have ‘A’ status in terms of independence from Government and building into the legislation a requirement to select a Commission that is broadly representative of Irish society with members that have relevant experience and expertise.

Country Status Appointments
Australia  A Governor General makes appointment.
  President and six Commissioners
Azerbaijan A (under review) Single Commissioner, elected by the Parliament, from among three nominees of the President.
Canada A Appointed by the Governor in Crown but may be removed at any by the GiC on address of the Senate and House of Commons.
  A Chief Commissioner and Deputy Commissioner full-time and not less than 3 or more than 6 other members either part-time or full-time.
Denmark A Danish Centre for International Studies and Human Rights comprises two bodies: The Institute for International Studies and the Danish Institute for Human Rights.  The Board of the DIHR has 13 members, serving in their personal capacity, for a 4 year period (may be appointed for 2 consecutive terms, or for further terms after lapse of 4 or more years):-
  · 6 appointed by the Council for Human Rights; at least 2 of whom must have an associated with the ethnic minorities or humanitarian organisations operating in areas of significance to ethnic minorities.
  · 2 each appointed by the Rectors of Copenhagen and Aarhus Universities and by the Danish Rectors’ Conference; at least 2 of whom must be related to the legal profession.
  · 1 selected by the staff of the Institute, following procedures in Companies Act.
Egypt A 27 members.  Founding Act is silent on selection process, but members are appointed by the Government.
France A The French "Commission Nationale Consultative des Droits de l’Homme" has ‘A’ status, conferred in 2007 & to be reviewed again in late 2012. There are now around 100 members, and membership is currently being renewed with new legislation limiting the number of members to 64. The Committee consists of the Ombudsman and 2 panels, selected by nomination by a committee consisting of Vice-President of the State Council of Chief Justices and the Court of Cassation and Court of Auditors, or by NGOs which are themselves selected by this Committee.
In addition and a deputy, senator and a member of the Economic, Social and Environmental Council chosen by the Prime Minister. All appointments are made by the Prime Minister.
Germany A Nine members, three nominated by the Human Rights Forum (appears to be an NGO), two by the Bundestag, one by the Federal Government and three independent persons (not clear how these are selected).
Greece A The Commission is made up of the following members:
  (a) The President of the Special Parliamentary Committee on Institutions and Transparency;
  (b) One representative of the General Confederation of Labour of Greece and one representative of the Supreme Administration of Unions of Civil Servants
  (c) Four representatives of non-governmental organisations  whose activities cover the field of human rights  expanded since 06 02 2003 to include two further NGO reps.
  (d) Representatives of the political parties recognised in accordance with the Regulations of Parliament.  Each party shall appoint one representative
  (e) [deleted]
  (f) The Greek Ombudsman
  (g) One member of the Authority for the Protection of Personal Data, proposed by its President .
  (h) One member of National radio and Television Council, proposed by its President
  (i) One member of National Bioethics Commission….. proposed by its President.
  (j) Two persons of recognised authority with special knowledge of matters of the protection of human rights, appointed by the Prime Minister.
  (k) One representative of the Ministries of the Interior, Public Administration and Decentralisation, of Foreign Affairs, of Justice, of Public Order etc……
  (l) Three Professors or associate professors of Public Law or Public International Law……..

The proposed model in Ireland is set out across for comparison.    Selection by Government of a Panel of five independent persons with relevant expertise (process agreed following consultation with the Justice Committee of the Oireachtas (National Parliament)).  The Panel is then charged with selecting members of the Commission for appointment by the President following passing of resolutions to that effect by both Houses of the Oireachtas.  The Government to be obliged to accept the Selection Panel’s nominations save in case of exceptional circumstances.  Where for substantial and stated reasons in exceptional circumstances, the Government is unable to accept the nomination of a particular person, it shall communicate those reasons to the Selection Panel and to the person and shall invite the Selection Panel to make a new nomination to fill that vacancy.  The Selection Panel shall consider the Government’s reasons and unless it disagrees and wishes to make representations to the Government to have the matter reconsidered, the Selection panel shall amend its single recommendation by substituting a new nominee in place of the individual concerned. 
  The Founding Act will specify that details of the selection criteria for filling the vacancy or vacancies and the process to be used by the Selection Panel shall be published at the same time as applications are invited.
  It will also specify that the members of the Commission must broadly reflect the nature of Irish society, including the recommendation of persons as appear to the Selection Panel to be persons who have knowledge of, or experience in, issues relating to the experience and circumstances of groups who are disadvantaged by reference to gender, civil status, family status, sexual orientation, religion, age, disability, race (including colour, nationality, ethnic or national origin, or membership of the Traveller community.
Luxembourg A Twenty-one voting members, appointed by the Government.  The Government also has an observer who attends meetings but does not vote.  The members are independent persons, representative of civil society and chosen for their skills and their commitment to human rights, or more generally, in the field of social issues.
  Founding Act is otherwise silent on selection process.
New Zealand A Appointed by Governor General on the recommendation of the Minister for Justice.   6 Commissioners including a Chief Commissioner.
Commission for Civil Rights Protection  (Human Rights Defender)  A Single Ombudsman model.  Former Polish Ambassador to Austria.  Appointed by Parliament. 
Provedor de Justica A Single Ombudsman, appointed by the Parliament.  Act is silent on nomination process: 
Russia A The Commissioner is appointed to the post and dismissed from the post by the State Duma of the Federal Assembly of the Russian Federation by a majority vote of the total number of the deputies of the State Duma by secret ballot. The candidates to the post of the Commissioner can be nominated by the President of the Russian Federation, by the Federal Council of the Federal Assembly of the Russian Federation, by the deputies of the State Duma and by associations of deputies in the State Duma. The Commissioner is appointed to the post for 5 years and the same person cannot be appointed to that post for more than two terms in succession.
Scotland A Four person Commission, Chair appointed by the Monarch on the nomination of the Scottish Parliament and the other members appointed by the Parliament.  The Act is silent on the selection process. 
South Korea
 A The National Human Rights Commission of the Republic of Korea consists of eleven commissioners: Chairperson, three standing commissioners, and seven non-standing commissioners. All commissioners are appointed based on their personal capacity for a term of three years and can be reappointed for another term of three years. Minimum number of four commissioners shall be women.
  Some Commissioners are appointed by the President, one by the Supreme Court.  Not clear how others are appointed.  They include a Prosecutor and a Judge. 
El Defensor del Pueblo A Single Ombudsman model.  Appointed by Parliament.  Supported by two Deputies, appointed after obtaining Parliamentary approval, and a Secretary General.
UK (Great Britain only) A Appointments made by the Secretary of State.  Commissioners must have experience or knowledge related to a relevant matter or is suitable for other special reason.
  One Commissioner must be or has had a disability.
  One Commissioner must be appointed with the consent of the Scottish Ministers and one Commissioner must be appointed with the consent of the National Assembly for Wales.
  Not less than 10 or more than 15 individuals as member of the Commission.
  The Chief Executive of the Commission shall be a Commissioner ex officio.
  [Equality Act 2006]
  [Schedule 1]
Ukraine A Single Commissioner, appointed by the Parliament.