Direct Provision, Local Elections and Political Campaigning

RIAThere has been some developments in the last few hours as regards local election candidates and political campaigning in direct provision centres.  On April 23, Noel Dowling of the Reception and Integration Agency issued Circular 1/14 to all direct provision centre managers [see here: RIA Circular 1-14 of 23 April 2014] noting that there can be no display or distribution of party political leaflets, posters or circulars to residents. This did not prevent addressed literature from being delivered to residents.

On May 14 2014, Noel Dowling of the Reception and Integration Agency issued Circular 2/14 to all direct provision centre managers. This circular varies Circular 1/14 of April 2014 in one important respect:

Candidates who call into centres may be allowed to drop off election leaflets to bve picked up and read by residents if they wish. This material may be left in a suitable designated area of the centre such as the reception desk. Candidates may, if they wish, place on their leaflets their contact details or details of political meetings outside the centre to which residents can be invited.

You can see this full circular here: RIA Circular 2-14 of 14 May 2014

While this still denies asylum seekers the right to be canvassed by candidates for the local election in direct provision centres, at the very least it allows some information to be provided to asylum seekers in direct provision centres. Issues remain with this, I would argue that such a blanket ban on allowing asylum seekers receive (if they wish) election candidates is a disproportionate violation of freedom of expression  as protected under the Irish Constitution and the European Convention on Human Rights Act 2003. This development is due to KOD Lyons who had made representations on behalf of a client. A local election candidate in Cork, Donnchadha O’ Laoghaire (Sinn Fein), had brought the issue to national attention earlier this week. NASC, the Irish Immigrant Support Centre and the Immigrant Council of Ireland  noted the significant legal issues with the previous all encompassing ban on direct provision centres as “politically neutral” zones.

NASC, the Irish Immigrant Support Centre, has cautiously welcomed this development, stating:

RIA have stopped short of allowing canvassing in the centres. We continue to be concerned that the ban on canvassing essentially remains in place. It has to be noted that the Direct Provision Centres are the homes of asylum seekers whilst they are awaiting an outcome of their application.


Direct Provision, Local Elections and Political Campaigning

Pushing Their Luck? UK Counter-Terrorism Powers and David Miranda

David Miranda (Picture Credit: The Guardian)Stop and Search certainly was the hot human rights news story of last summer within the UK. Schedule 7 powers under the Terrorism Act 2000 allow for extended powers to stop and search, and even detain for up to nine hours individuals in the context of ports and airports, for the purpose of assessing whether they are linked to terrorism. That police powers should be extensive in this context might be thought relatively uncontroversial. After all, the potential to trap hostages in such a confined space was attractive to terrorist groups long before the 9/11 attacks displayed the potential of using civilian airliners as weapons. Continue reading “Pushing Their Luck? UK Counter-Terrorism Powers and David Miranda”

Pushing Their Luck? UK Counter-Terrorism Powers and David Miranda

Freedom of Information as a Human Right?

We are delighted to welcome this guest post by Jennifer Kavanagh. Jennifer is a Lecturer in Law at Waterford Institute of Technology and a PhD candidate at Trinity College Dublin.

fourcourtsThis blog seeks to assess the nature of information and expression rights in Ireland, the impact on the nature of the citizen as implied by the Constitution and the importance of access in the interpretation of democracy.

Over the past fortnight the position and philosophy of freedom of information in Ireland has come under the spotlight. It could be argued that the rasion detre for freedom of information has been undermined by viewing it as a revenue raising exercise and a financially punitive means of reducing access to information. Recent times have seen a debate over the scope of information subject to access and the fees for such access. However, one argument that has not entered into the evaluation of the current Freedom of Information Bill 2013 is the constitutional position of the citizen, the nature of freedom of expression and the need to access government information in a democracy.

The European Convention as per Article 10 expressly references the connection between information and expression by jointly protecting them in the construction of the right to expression. The importance of the receipt of information and the ability to express opinions are constructed as complimentary aims.

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and receive and impart information and ideas without interference by public parity and regardless of frontiers[1].

Through the interpretation of Article 10 the information right applies to government information.

When the Irish Constitution is reviewed for information and expression rights, the situation becomes murkier and less explicit. Under the terms of Article 40.6.1(i) the political speech right article makes specific reference to the ‘rightful liberty of expression’ as including the right to ‘criticise government policy’. When read in conjunction with Article 6.1, which terms the citizens as the final arbiters of government policy, it can be argued that the framers of the constitution envisaged a more engaged form of representative democracy than today. As stated by Hogan J in Doherty v. Referendum Commission,

It may thus be said, adapting freely the words of Holmes, that the theory of popular sovereignty for which Griffith argued and Pearse fought and Collins died and de Valera spoke and Hearne drafted and Henchy wrote and Walsh decided has become our own constitutional cornerstone[2]

Even though the Doherty case was in relation to balance speech in a referendum setting, the sentiments regarding Articles 6.1 and 40.6.1(i)  in Doherty illustrate the need for access to information in a democracy.

The Constitution trusts in the power of argument and debate and reasoned discussion and, again, the informed citizenry of which I spoke, who will discharge their civic responsibility to inform themselves in their own interests, that of their neighbors and that of their country.[3]

The Cullen v. Toibin[4] judgment may also indicate that there is a limited unenumerated right to official information.

It was not until the promulgation of the Freedom of Information Act 1997 that a concrete legislative right was placed in the hands of the citizen to access information, both personal and in the public interest.

The 2003 Act made regressive steps regarding access rights, the most controversial of which related to upfront fees for access regarding public information queries. This position seems set to remain in the current Freedom of Information Bill 2013. Even though vociferous comment has been made regarding the proposed fee structure, the consideration of the constitutional and human rights dimension of the debate has not been heard. The current level of the debate in Ireland focuses on the chilling effect of fees, especially the framework that was championed by the current Minister for Public Reform until it was sidelined two weeks ago in a rather public climb-down.

The rights discourse surrounding the ability of citizens to access government information has been sidelined. Indeed, the application of fees to accessing public interest information would reasonably create a chilling effect on the amount of information sought. Yet, the application of fees to requests for such information could be interpreted as impeding the rightful liberty of expression to ‘criticise government policy’ as indicated under the provisions of Article 40.6.1(i).

The recognition of freedom of information as a human right, in line with Article 10, as part of the Irish Constitution would establish the right to information as a powerful tool against the concepts of information asymmetry, legal corruption and influence selling which has been consistently highlighted in many international reports on corruption and transparency.

It is important to remember that freedom of information is not just about accessing government information but regularising the citizen – government relationship. Fostering the amount of democratic supervision, which the citizens themselves may carry out, and moderating the influence of perceived ‘insiders’ in the corridors of power can improve this relationship. Therefore the Constitutional Convention should be strongly urged to consider this as part of the summary of other amendments that may be deemed necessary to modernise the Constitution.

In conclusion, with the importance of an adequate right to access, the human rights aspect of freedom of information has to be included in any further consideration of this issue. The link between official information and the democratic relationship between politicians and citizens needs to be placed as a cornerstone of political reform and not as a means of revenue creation for the State.

[1] Article 10.1 European Convention on Human Rights

[2] Doherty v. Referendum Commission [2012] IEHC 211, paragraph 23

[3] ibid paragraph 24

[4] [1984] ILRM 577

Freedom of Information as a Human Right?

Freedom of Expression and Reductio ad Hitlerum

Today the Court of Appeal for England and Wales handed down one of the most important decisions on freedom of expression in recent years – a decision which allows us to consider the boundaries of the right and the restrictions upon it (whether under the Communications Act 2003 in the UK or under Article 40.6.1.i of the Constitution of Ireland)

In November 2008 Jon Gaunt (pictured left), one of the UK’s best known “shock jock” radio hosts interviewed Michael Stark, the Cabinet Member for Children’s Services at Redbridge London Borough Council, on the subject of a proposal before the Council to prevent smokers from becoming foster parents because of the potential harm passive smoking could do to children. Within moments, the interview became a tirade as Gaunt taunted the councillor, calling him in short order a ‘Nazi’, an ‘ignorant pig’ and a ‘health fascist’. Continue reading “Freedom of Expression and Reductio ad Hitlerum”

Freedom of Expression and Reductio ad Hitlerum

South Park: 'Religious Defamation', Freedom of Expression & Human Rights

Spoiler AlertThis post contains some  spoilers to the South Park episodes “200” and “201”. In Ireland and the United Kingdom South Park airs on Comedy Central. Comedy Central has not aired the episode “201” in Ireland or the United Kingdom. The episode “201” has been uploaded (illegally) onto a variety of sites.

HRinI has discussed extensively  the issue of criminal blasphemy in Ireland, over the last few months, see, here, here, here, here, here and here. Contributors to these posts noted Ireland’s hypocrisy on the issue, and the threats which this legislation posed to freedom of expression. The popular Comedy Central show South Park celebrated its 200th episode recently. In typical South Park fashion it dealt with number of pressing (and not so pressing) issues. A central focus of both the 200th and 201st episodes (as it was in the episodes Cartoon Wars: Part I and Cartoon Wars: Part II) revolved around the religious prophet Muhammad and the controversy regarding depicting him in human form. A number of groups who did not want to be ridiculed (celebrities and persons with red hair),  sought Muhammad’s ‘goo’ which they believed would  make them impervious from public ridicule or criticism.  In the South Park Universe, Muhammad is part of the Super Best Friends, a group of religious figures (plus one) who help those in need. The group consists of Jesus Christ, Buddha, Muhammad, Krishna, Joseph Smith, Lao Tzu, Moses and a character called Sea Man. The Super Best Friends were introduced to the South Park Universe in 2001, and as the picture to the side shows, there was no controversy for depicting an image of Muhammad (to the right of Jesus). However, with the publication of the Danish Cartoons and the resulting violence (see here, here, here, and to view the controversial cartoons see here), Comedy Central refused to air the image of Muhammad. Continue reading “South Park: 'Religious Defamation', Freedom of Expression & Human Rights”

South Park: 'Religious Defamation', Freedom of Expression & Human Rights