“The Act provides that the Secretary of State may dismiss a Commissioner who in their opinion is unable, unfit or unwilling to perform their functions. The SCA is concerned that this ground, without further qualification of this discretion, may impact adversely on the security of tenure of Commissioners.
The SCA acknowledges that the EHRC reported that, while no Commissioners have ever been dismissed in the history of the EHRC, they have engaged the Government to seek changes to the Framework Document in order to provide for further safeguards against possible unfair dismissals of Commissioners.
The SCA emphasizes that in order to address the requirement for a stable mandate, which is important in reinforcing independence, the enabling law of an NHRI must contain an independent and objective dismissal process. The grounds for dismissal must be clearly defined and appropriately confined to those actions that impact adversely on the capacity of the member to fulfil its mandate. Where appropriate, the legislation should specify that the application of a particular ground must be supported by a decision of an independent body with appropriate jurisdiction. The dismissal must be made in strict conformity with all the substantive and procedural requirements as prescribed by law. It should not be allowed to be based solely on the discretion of the appointing authorities.
The SCA is of the view that such requirements ensure the security of tenure of members of the governing body and are essential to ensure the independence of, and public confidence in, the senior leadership of an NHRI. The SCA recommends the EHRC to continue advocating for appropriate amendments to ensure an independent and objective dismissal process of its members.”