Accountability and independence for public bodies designed to protect and promote equality and human rights

(Article reproduced from “Beyond 2015: shaping the future of equality, human rights and social justice” http://www.edf.org.uk/blog/?p=36975 )

Accountability for arm’s-length bodies is confused, overlap- ping and neglected, with blurred boundaries and responsibil- ities. A taxonomy would simplify and rationalise the structure of the state.1

Meanwhile

The Cabinet Office has tightened controls over and moni- toring of public bodies to improve accountability, including operating the new expenditure controls system that applies
to departments and NDPBs [non-departmental public bodies]: further work needs to be undertaken to establish the impact

of these controls, including on accountability.2

This paper argues that bodies with a role in holding the govern- ment to account, protecting the rights of the citizen or promot- ing equality or human rights should be sponsored, supported and accountable directly to Parliament and not to government departments or to ministers. In ‘Read before burning: Arm’s- length government for a new administration’, the authors suggest a new classification of such bodies:

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The guiding principle is that the classification is determined by the degree of freedom from executive control on appoint- ments, strategy, decisions and budget, which the body needs to be able to discharge its functions.3

Thus:

The first category is the constitutional bodies like the Electoral Commission, the National Audit Office and the Parliamentary Ombudsman. These are deliberately put at the greatest distance from ministers to preserve the independence which is core to their ability to perform their tasks and to protect them from ministerial interference in the exercise of their judge- ment. Their primary accountability is to Parliament rather than to the executive.4

The National Audit Office, the Electoral Commission and the Parliamentary and Health Service Ombudsman already report to Parliament. The Select Committee on Public Administration has recommended that the Information Commissioner and HM Inspectorate of Prisons should also report to Parliament.5 The author has had experience of two public bodies where such better arrangements should apply – the Equality and Human Rights Commission (EHRC) and the Independent Police Complaints Commission (IPCC).6 That experience is the basis of the arguments made here, although there are likely to be other good candidates for the enhanced status recommended.7

The EHRC has a distinctive constitutional role in Britain’s dem- ocratic system in holding the government to account. This was
the opinion of Parliament’s Joint Committee on Human Rights (JCHR) prior to the Commission’s establishment.8 The JCHR said that the EHRC has a similar role constitutionally to the Electoral Commission, the National Audit Office and the Parliamentary

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Commissioner for Administration.9 The EHRC also requires inde- pendence from government in relation to its structures, functions and the exercise of its powers as a requirement of the UN’s Paris Principles for National Human Rights Institutions.10 The EHRC also needs to be seen to be independent: without proper distance the EHRC might be perceived as less likely to take legal action against a government.

In June 2011, when the government was suggesting that
it might amend (reduce) the EHRC’s powers, Rosslyn Noonan, Chair of the United Nations International Coordinating Committee (ICC) (the international co-ordinating body for human rights commissions), wrote to the Home Secretary stating:

Given the particular constitutional place of national human rights institutions in the architecture of the State, it is critical that any amendment to their mandate, structure, powers and functions be carried out through a parliamentary process which is open, transparent and with opportunity for public submissions. Secondary legislation does not meet those criteria and places undue power over the EHRC in the hands of the Executive, whose compliance with human rights standards the EHRC is required to monitor.11

The Joint Committee for Human Rights took a similar view when it was considering the original proposals for the setting up the EHRC, stating:

… the standard model of NDPB accountability is [not] a suffi- ciently outward and visible guarantee of independence from the government to be appropriate to a national human rights commission (or indeed the proposed single equality body, whether or not integrated with a human rights commission).12

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In relation to the IPCC, the European Court of Human Rights, when assessing the independence of its predecessor, the Police Complaints Authority, and the nature of the government appoint- ment of board members (which follow the same model as the IPCC) said:

The Court also notes the important role played by the Secretary of State in appointing, remunerating and, in certain circumstances, dismissing members of the Police Complaints Authority. In particular, the Court observes that under section 105(4) of the Act the Police Complaints Authority is to have regard to any guidance given to it by the Secretary of State with respect to the withdrawal or preferring of disciplinary charges and criminal proceedings.

Accordingly, the Court finds that the system of investi- gation of complaints does not meet the requisite standards of independence needed to constitute sufficient protection against the abuse of authority and thus provide an effective remedy within the meaning of Article 13. There has therefore been a violation of Article 13 of the Convention [the right to an effective remedy].13

The ‘Police Oversight Principles’ developed by police oversight bodies across Europe (and modelled on the Paris Principles) also recommend that police oversight bodies like the IPPC are accountable to parliaments and not to the executive.14

In 2014, Nick Hardwick, then Chief Inspector of Prisons, illustrated the problems with the current arrangements between independent inspectorates and their sponsors:

Told MoJ ministers & officials I won’t be reapplying for my post. Can’t be independent of people you are asking for a job.

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This was his response in a tweet after Chris Grayling (then Secretary of State for Justice) made public his decision not to renew Hardwick’s five-year contract after it’s expiry in July 2015.15

The Public Accounts Committee reviewed the issue of the independence of the criminal justice inspectorates in March 2015 and concluded:

There is a risk that the independence of the inspectorates
is undermined by the current arrangements for appointing Chief Inspectors and setting their budgets. Chief Inspectors were clear that the independence of how they conducted inspections was not in doubt. However, decisions on the appointment of Chief Inspectors, the length of their tenure, and the size of their budgets, are taken by the relevant secretar- ies of state responsible for the sectors under inspection, rather than by bodies independent of that responsibility, such as the Cabinet Office or Parliament. Current arrangements poten- tially pose a significant threat to inspectorate independence.16

and

Changes made by the Home Office to the publication arrange- ments for reports by the Chief Inspector of Borders and Immigration undermine his independence and have delayed publication of his reports. The Chief Inspector of Borders

and Immigration is in a unique position amongst home
affairs and justice inspectorates of directly inspecting his own sponsoring department, the Home Office. The independence of the inspectorate relies on the actions of the Chief Inspector, principally through preparation of well-evidenced and thor- ough reports. But this independence is undermined by current arrangements whereby the Home Secretary now decides when to publish his reports. Since the inspectorate was established

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in 2008, the Chief Inspector decided when to publish his own reports, but this changed from January 2014 to the Home Secretary in the light of legal advice sought by the Home Office on how to interpret the UK Borders Act 2007. Contrary legal advice suggests that the Home Office’s interpretation is neither the obvious nor the only interpretation.17

The IPCC: examples of the need for
greater independence
Immediately after the shooting of Jean Charles de Menezes
at Stockwell underground station the Chief Constable of the Metropolitan Police, Sir Ian Blair wrote a letter to the Home Office (the IPCC’s sponsor) stating that ‘the shooting that has just occurred at Stockwell is not to be referred to the IPCC and that they will be given no access to the scene at the present time’.18 Despite the fact that this refusal by the police to give the IPCC access was unlawful, the IPCC then had to enter into three-way negotiations with its sponsor (the Home Office) and the police before access was granted, leading to a delay of three days.

In the same case the Deputy Chair of the IPCC was summoned one early evening to see one of the three Permanent Secretaries of the Home Office to discuss the merits or otherwise of its decision to disclose crucial information the next day to the family of the deceased at a time when the media was awash with speculation and erroneous accounts of how Jean Charles de Menezes had died.19 The IPCC ignored the advice proffered but the fact that the Home Office felt it could take such a step creates its own difficul- ties and conflicts. It was, of course, this same Home Office that would later decide whether or not the Chair, Deputy Chair and other Commissioners would be re-appointed to their posts.

A last example from the IPCC, follows the investigation of the shooting of Azelle Rodney by the Metropolitan Police. It was clear to the IPCC that, for legal reasons, there had to be a formal inquiry

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into his death under the Inquiries Act 2005 (rather than merely an inquest). However, when the IPCC put this to the Home Office, the feedback from the sponsor unit (also in the Home Office) was that the IPCC was wrong about the law and that no formal inquiry was required.20

These examples suggest that there are two separate problems with the current constitutional arrangements. The first is that the government sponsors for these bodies are too closely concerned with the substance of what they do, rather than with ensuring financial and other procedural accountabilities. There is an obvi- ous conflict of interest in, for instance, the Government Equalities Office (the sponsor for the EHRC), having both a governance
and a parallel (and sometimes conflicting) policy role. Secondly, and more fundamentally, there will always be significant conflicts of interest between such bodies and their government masters because these bodies have a duty to hold government to account and in many cases, to litigate to ensure compliance.

The EHRC: examples of the need for
greater independence
The EHRC suffered from similar pressures from sponsoring civil servants and ministers to those discussed above. Under the Labour government, the author’s experience was that sponsor ministers encouraged the EHRC to use its investigatory powers
in specific and particular areas.21 Although these suggestions were generally viewed as helpful and the resulting reports were important, they originated from the very same people who decided on the appointments and re-appointments of the board and the budget of the organisation as a whole. How happy would the government sponsors have been if the EHRC had refused their suggestions?

The EHRC was caught by budgetary restrictions at the begin- ning of the period of austerity in the public service immediately

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following the 2010 election of the Coalition Government. The government went further than many expected in imposing cuts
in the budget by assuming that the EHRC was merely another
part of the government and that the EHRC would be obliged to follow the recruitment freeze imposed by government on its own departments. Permission from the government had to be obtained before vacant posts could be filled and was only usually permitted by recruiting staff from elsewhere within the civil service. This of course raised issues of independence and also assumed that staff seconded or transferred from government departments would

be able to easily switch their loyalty to a body whose function required a critical assessment of fundamental government policies.22 This in turn created tensions with the United Nations Paris Principles.23 It also raised questions about whether such a restriction on recruitment was indirectly discriminatory (given the age and ethnic minority profile of the majority of civil servants) – a difficult issue for an equality body set up to promote greater fairness and diversity.

At the most fundamental level one of the EHRC’s primary functions was to promote human rights (and specifically the Human Rights Act 1998)24 but at the same time its most senior sponsor was the Secretary of State at the Home Department,
the Rt Hon Teresa May, whose party is on record as intending
to ‘scrap the Human Rights Act’.25 It was her department’s civil servants (as the sponsors) that had the job of helping the EHRC
to do its job, decide its budget, advise her on the appointment
or re-appointment of its Commissioners and Chief Executive. Crucially, they also had responsibility for authorising publication of the Commission’s formal review and report of the UK’s human rights record. Publication of the report was initially delayed in order to correct inaccuracies it contained – and in fact EHRC staff found civil servants very helpful in making suggestions to improve the content, and felt that the report was much better as a result

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of their input. The report was finally published in March 201226 and immediately met with detailed and hostile criticism from some sections of the media – criticism of both the report and the Commission itself.27

It is important that bodies that have a constitutional and democratic role in ensuring that other public bodies, including the government, comply with the law including human rights obligations are – and are perceived to be – completely independ- ent from any government influence. Parliamentary accountability would provide them with the appropriate independence to fulfil this role impartially.

Under the current arrangements, the Government depart- ment that sponsors such non-departmental public bodies
often has a policy role that overlaps with the work of the body
in question and ministers and officials often have a particular interest in the substance of that body’s work, not merely in
issues of governance and financial accountability. There are
no mechanisms to ensure that this does not lead to attempts at different levels to interfere or influence the independent body’s actions. There is a risk that the short-term agendas of government are given precedence over long term and necessary changes to the bodies being regulated or inspected.

Chairs, commissioners and chief executives that are appointed (and subject to re-appointment) by government28 can be pre- sented with real difficulties and conflicts of interest which, in
high profile or controversial cases, can cause considerable soul searching and do not always create the rights circumstances for independent decision making.

It is also likely that a more politically plural board would result from greater independence in the appointments process
as appointments would no longer be made by the majority administration and longer term consistency could be established. In addition, the EHRC had four different sponsor departments in

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its first few years merely because it had to follow its lead minister – the minister for equality – as she or he was relocated, and that minister also had a series of other, larger responsibilities which were attached to a series of different major departments of state.

It is important to note that in the United Kingdom the practice of reporting to Parliament is being effectively used elsewhere for human rights commissions. For instance, The Scottish Human Rights Commission reports directly to (but remains independ- ent from) the Scottish Parliament and has its budget set by the Scottish Parliament.

In England, the Office of the Children’s Commissioner has been made more accountable to Parliament in addition to increasing the powers of the office. However these changes stop short of making the Commissioner directly accountable to Parliament (rather than to a government minister).29

Conclusion

The new government after May 2015, however it is made up, should be encouraged to enhance the theoretical and practical independence of those bodies which promote and protect rights, remove the ability of the government to influence them ‘infor- mally’ and ensure that they are accountable directly to parliament. The review by the Public Bodies Review Team of the classifications of arm’s-length bodies and the report from the Public Accounts Committee provide a perfect opportunity to do this although
the specific legislation which creates those bodies will require significant amendment.

Endnotes

1. Public Administration Select Committee (2014). Who’s accountable? Relationships between Government and arm’s-length bodies. PASC.

2. Skelcher, C. et al (2013). Public Bodies Reform by the UK Government 2010–2013:

Initial Findings. Shrinking the
State. Research Paper 1, p.9. University of Birmingham and University
of Sheffield.

3. Institute of Government, July 2010, p. 55.

4. Op. cit., p. 56.

5. Public Administration Select Committee (2014), Op. cit.

6. The author was previously the Group Director, Legal and was General Counsel of the Equality and Human Rights Commission from 2007 to
2012. He was the Deputy Chair of
the Independent Police Complaints Commission until 2007.

7. Such as the Chief Inspector of Prisons, the Children’s Commissioner and others.

8. Joint Committee on Human Rights, Eleventh report of session 2003–04, 2 April 2004, and Sixteenth report session 2003–04, 21 July 2004.

9. Ibid, Eleventh report, paragraphs 113–143 and Sixteenth report, para- graphs 44–52.

10. OHCHR (1993). Principles relating to the status and functioning of national institutions for protection and promo- tion of human rights. Office of the High Commissioner for Human Rights.

11. Equality and Human Rights Commission (2011). Parliamentary briefing: Public Bodies Bill Committee stage, House of Commons, September 2011. EHRC.

12. Joint Committee On Human Rights, Sixth report of session 2002–03.

13. Khan V UK, 12 May 2001, paragraphs 47 and 48.

14. European Partners Against Corruption/European contact-point network against corruption (2011). Police Oversight Principles. European Partners Against Corruption.

15. The Guardian, 2 December 2014.

16. Public Accounts Committee (2015). Inspection in Home Affairs and Justice, recommendation 1.

17. Ibid, recommendation 2.

18. The Daily Telegraph, 8 November 2007, the letter (‘Letter from Sir Ian Blair to Sir John Gieve following
the shooting of Mr Jean Charles de Menezes’) is available on the Home Office National Archive website webarchive.nationalarchives.go.uk.

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19. IPCC (2007). Stockwell Two:
An investigation into complaints
about the Metropolitan Police Service’s handling of public statements following the shooting of Jean Charles de Menezes on 22 July 2005. IPCC.

20. The public inquiry was sub- sequently held finding that the shooting was unlawful and implicitly criticising the IPCC’s initial investi- gation. See The Azelle Rodney Inquiry report, 5 July 2013, available at http:// azellerodneyinquiry.independent.gov. uk/docs/The_Azelle_Rodney_Inquiry_ Report_(web).pdf. A police officer

has been charged with murder and the trial is pending (The Independent, 30 July 2014).

21. The then sponsor minister suggested three inquiries and these became the EHRC’s first three inquir- ies: Sex Discrimination in the Finance Industry, Race Discrimination in the Construction Industry and Recruitment and employment in the meat and poultry industry.

22. For instance, the EHRC’s assessment of the government’s financial decisions and the extent that they properly took into account the public sector equality duty: EHRC (2012). Section 31 Assessment of the Spending Review.

23. ‘2. The national institution shall have an infrastructure which is suited to the smooth conduct of its activities, in particular adequate funding.
The purpose of this funding should
be to enable it to have its own staff and premises, in order to be independent of the Government and not be subject to financial control which might
affect its independence.’ (OHCHR, 1993, Op. cit).

24. Section 9, Equality Act 2006.

25. For example, ‘Tories to Scrap the Human Rights Act’, 30 September 2013, BBC (www.bbc.co.uk/news/uk-poli- tics-24338921) and ‘Home Secretary Theresa May wants Human Rights Act axed’, 2 October 2011, BBC (www.bbc. co.uk/news/uk-politics-15140742).

26. Equality and Human Rights Commission (2012). Human Rights Review: How fair is Britain? An assess- ment of how well public authorities protect human rights. EHRC.

27. ‘It’s time to shut down this factory of meddling and nincompoopery’, Daily Mail, 6 March 2012.

28. The government does not appoint- ment the CEO of the EHRC but has a veto over appointments made by the board of commissioners.

29. Schedule 5, Children and Families Act 2014.

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