S453-CAJ-FCNM-Submission-March
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S453 Submission from the Committee on the Administration of Justice (CAJ) to the Council of Europe Advisory Committee on the Framework Convention for the Protection of National Minorities on the 4th Report of the UK March 2016 The Committee on the Administration of Justice (CAJ) is an independent human rights NGO with cross community membership in Northern Ireland and beyond. It was established in 1981 and campaigns on a broad range of human rights issues. CAJ seeks to secure the highest standards in the administration of justice in Northern Ireland by ensuring that the government complies with its international human rights obligations. CAJ welcomed the opportunity to meet with a delegation from the Advisory Committee in Belfast earlier in the month. This written submission focuses on the following areas: Legislative and institutional developments affecting application of the Framework Convention in the domestic legal order: Treatment of treaty-based obligations Minority rights and vetoes in the Northern Ireland settlement Vetoes and misuse of the ‘good relations’ duty Threats to the Equality Duty – the ‘Equality and Good Relations’ Commission Defining sectarianism in law and baseline data Anti-poverty, austerity and structural adjustment Anti-poverty Strategy on the basis of objective need Austerity and the Stormont House and Fresh Start Agreements Policing and criminal justice Incitement to hatred legislation in Northern Ireland NI Stop and Search powers and ethnic monitoring Irish-English Bilingual Signage Bilingual signage and local authorities 1 1st Floor, Community House Tel – 028 9031 6000 Citylink Business Park Email – [email protected] 6A Albert Street, Web – www.caj.org.uk Belfast BT12 4HQ Legislative and institutional developments affecting application of the Framework Convention in domestic legal order Treatment of treaty-based obligations 1. As the Advisory Committee will be aware the general practice of the UK is not to directly incorporate treaties into domestic law. However, legislative changes to ensure compatibility with treaties are to take place prior to ratification and it has also been established as a principle of legal policy that, where possible, legislation should be interpreted compatibly with treaty based obligations. It is also the case that, as rightly set out by the NI Human Rights Commission, as a matter of international law the UK “is obliged to respect and protect all of the human rights in the treaties that it has committed to. That duty extends across all the relevant parts of government and parliament. For Northern Ireland it embraces not only [the UK Parliament at] Westminster but also the [Northern Ireland] Executive and the Assembly, as well as local government.”1 2. In CAJ’s experience however the binding nature of treaty-based obligations on public authorities is regularly misunderstood in Northern Ireland. At worst a position is taken that treaty-based obligations, not enshrined in domestic law, can essentially be ignored. For example, when CAJ in 2013 launched a research report, which included a case study on minority languages, the Chief Executive of the Equality Commission gave a formal response in which she stated: “The European Charter for Regional and Minority Languages does not oblige the [Equality] Commission and/or Public Authorities to promote any rights that derive from unincorporated international agreements...2” Whilst this position is mistaken it nevertheless appears to have significant implications on the Commissions approach to its functions, which include advising other public authorities. Incorporation of the ECHR 3. The 1998 Belfast/Good Friday Agreement, the main agreement of the NI peace settlement, took a different approach to general UK practice in that it guarantees certain rights would be incorporated into Northern Ireland law. 1 http://www.nihrc.org/about-human-rights/human-rights-law-and-standards. 2 Equality Commission for Northern Ireland Launch of CAJ’s report on Unequal Relations? Response from Equality Commission, 11 June 2013, page 10. 2 1st Floor, Community House Tel – 028 9031 6000 Citylink Business Park Email – [email protected] 6A Albert Street, Web – www.caj.org.uk Belfast BT12 4HQ Firstly the Agreement, itself a (UK-Ireland) bilateral treaty approved by referendum, provides that the UK must incorporate the ECHR into Northern Ireland law. 3 This commitment was legislated for Northern Ireland (as well as for Great Britain) under the Human Rights Act 1998. It is a matter of serious concern that the current UK government wishes to repeal the Human Rights Act and replace it with a ‘British Bill of Rights’ that would not fully incorporate the ECHR. In addition to the general regression in rights protection, such a move would also constitute a clear breach of the Belfast/Good Friday Agreement. Bill of Rights for Northern Ireland 4. The second element of the Belfast/ Good Friday Agreement was the commitment to legislate for a Bill of Rights addressing the particular circumstances of Northern Ireland. The Bill of Rights was to incorporate rights additional to the ECHR and hence would constitute a vehicle to give domestic effect to minority rights protected by the Framework Convention. The NI Human Rights Commission discharged its mandate under the Agreement to advise on the content of the NI Bill of Rights in 2008. Public opinion polls have consistently demonstrated high levels of support for a Bill of Rights in Northern Ireland in Protestant and Catholic communities and beyond.4 Unionist parties have opposed the enactment of a bill of rights based on the Human Rights Commission’s advice. Despite calls to do so from UN and Council of Europe treaty bodies the UK government has not legislated for the NI Bill of Rights and has instituted a pre-condition, not contained in the 1998 Agreement, of ‘political consensus’ among NI parties before it will do so. 3Treaty Series No. 50 (2000) Cm 4705; the Agreement consisted of the British-Irish Agreement between the two sovereign states and the Multi-Party Agreement between participant political parties. The British-Irish Agreement (Article 2) affirms the solemn commitment of the UK government to support and implement the sections of the Multi-Party Agreement, which correspond to it. Paragraph 2 of the Rights, Safeguards and Equality of Opportunity section of this Agreement states: ‘The British Government will complete incorporation into Northern Ireland law of the European Convention on Human Rights (ECHR), with direct access to the courts, and remedies for breach of the Convention, including power for the courts to overrule Assembly legislation on grounds of inconsistency.’ 4 A Market Research Northern Ireland opinion survey published by the Northern Ireland Human Rights Commission in 2004 found that a large majority of respondents (87 per cent) would support a proposed Bill of Rights. Both, Protestants (87 per cent) and Catholics (85 per cent) were in agreement with the concept of having a Bill of Rights that reflects the particular circumstances of Northern Ireland (Progressing a Bill of Rights for Northern Ireland: An Update, Belfast: 2004); in July 2011 a poll of 1000 persons conducted by Ipsos MORI found 80%+ of respondents thought a Bill of Rights for Northern Ireland was important among supporters of all the main political parties (SF 88%, SDLP 86%, DUP 84%, UUP 83%, Alliance 81%) (in Human Rights Consortium ‘Bill of Rights for Northern Ireland, Overdue’ Belfast, 2011, page 3). 3 1st Floor, Community House Tel – 028 9031 6000 Citylink Business Park Email – [email protected] 6A Albert Street, Web – www.caj.org.uk Belfast BT12 4HQ Ministerial Powers to direct compliance with International Obligations 5. Under section 29 of the Northern Ireland Act 1998 (the main implementation legislation of the Belfast/Good Friday Agreement) the Secretary of State (a UK Minister) can direct that a NI Minister or department take any action within their powers if it is required for the purpose of giving effect to international obligations. The Minister can also direct that any action proposed by a NI Minister or department not be taken if it is incompatible with international obligations. This power, for example, could be invoked to compel NI ministers to contribute to UK treaty body reports on areas of competence. As the Advisory Committee will be aware a number of treaty-reports, including the current report, have not contained information on matters within the competence of the NI Executive. 6. In recent years local government in NI has been overhauled with the number of municipal authorities reduced from 26 to 11, with some new powers and safeguards being vested in the new Councils. Under s107 of the new legislation (the Local Government Act (Northern Ireland) 2014), the minister for local government5 has a similar power to the above to direct local councils to act compatibility with international obligations. Such powers could be exercised to enforce rights protected by the Framework Convention, in areas referenced later in this submission such as preventing funding by local councils of events likely to involve racist expression, and ensuring the provision for bilingual signage. The Advisory Committee may wish to: Reiterate the binding nature of the Framework Convention on public authorities; Seek assurances the ECHR will not be disincorporated from NI Law, and for progress on the Bill of Rights for Northern Ireland as a manner of ensuring incorporation of FCNM provisions in the domestic legal order; Advocate ministerial powers be exercised to ensure compliance with international obligations when required for the implementation of duties under the FCNM; 5 Currently under the NI Department of Environment, but scheduled to transfer to a new NI Department of Communities. 4 1st Floor, Community House Tel – 028 9031 6000 Citylink Business Park Email – [email protected] 6A Albert Street, Web – www.caj.org.uk Belfast BT12 4HQ Minority rights and vetoes in the Northern Ireland settlement 7.