Response of the Northern Ireland Human Rights Commission to by pharmphresh34


									      Response of the Northern Ireland Human Rights Commission to
             the Consultation on Political Party Advertising

    1. The Northern Ireland Human Rights Commission (NIHRC) welcomes this
       opportunity to comment on the Electoral Commission‟s consultation paper on
       political party advertising.

    2. The NIHRC is a statutory body created by the Northern Ireland Act 1998, with
       a range of functions including those of reviewing the adequacy and
       effectiveness in Northern Ireland of law and practice relating to the protection
       of human rights;1 advising on legislative and other measures which ought to be
       taken to protect human rights;2 advising on whether a Bill is compatible with
       human rights,3 and promoting understanding and awareness of the importance
       of human rights in Northern Ireland.4

    The right to freedom of expression and the case for a Code

    3. There are likely to be concerns regarding how a code aimed at regulating
       political party advertising might infringe rights to freedom of expression.
       However, the NIHRC would point out that the right to freedom of expression,
       as defined in human rights law, is not absolute, and that in some circumstances
       it is entirely appropriate that limits are applied. Article 19(2) of the
       International Covenant on Civil and Political Rights (ICCPR) does indeed
       enshrine the right of everyone to

                  (…) freedom of expression [including] freedom to seek, receive and
                  impart information and ideas of all kinds, regardless of frontiers,
                  either orally, in writing or in print, in the form of art, or through any
                  other media of his choice.

         However, Article 19(3) of the same Covenant states:

                  The exercise of the rights provided for in paragraph 2 of this article
                  carries with it special duties and responsibilities. It may therefore be

  Northern Ireland Act 1998, section 69(1).
  Ibid, s.69(3).
  Ibid, s.69(4).
  Ibid, s.69(6).

           subject to certain restrictions, but these shall only be such as are
           provided by law and are necessary:

               (a) For respect of the rights or reputations of others;

               (b) For the protection of national security or of public order (ordre
                   public), or of public health or morals.

4. Similarly, the right to freedom of expression, to hold opinions and to receive
   and impart information defined in broadly similar terms by Article 10(1) of the
   European Convention on Human Rights (ECHR) is qualified by Article 10(2):

           The exercise of these freedoms, since it carries with it duties and
           responsibilities, may be subject to such formalities, conditions,
           restrictions or penalties as are prescribed by law and are necessary in
           a democratic society in the interests of national security, territorial
           integrity or public safety, for the prevention of disorder or crime, for
           the protection of health or morals, for the protection of the reputation
           or the rights of others, for preventing the disclosure of information
           received in confidence, or for maintaining the authority and
           impartiality of the judiciary.

5. Thus, while freedom of expression is an important concept in human rights
   law and perhaps especially so in relation to political discourse in a democratic
   society, it is clear that the main relevant United Nations and Council of Europe
   instruments recognise that a degree of regulation is permissible. The
   instruments agree that any such interference must be set out in law and serve
   one or more of a relatively brief list of objectives. While there are some
   differences between the two lists of grounds for regulating exercise of the
   right, the requirement of necessity, or in the ECHR formulation necessity “in a
   democratic society”, is a high test, to which we may add, from the European
   Court jurisprudence, that any interference must be proportionate to the harm
   that it seeks to prevent.

6. In the particular context of political expression, it is apparent that any restraint,
   and especially any prior restraint, on the freedom to impart information, even
   when applied to one individual or one small organisation, constitutes an
   interference with the corollary right of a much larger number to receive that
   information. There must be a very strong presumption in favour of allowing
   divergent political opinions to be expressed, in order to maintain the vigour
   and depth of political discourse.

7. A modern democracy needs to accommodate the expression of a very wide
   range of views, even extreme views that touch on such areas as the integrity of
   the judiciary or the legitimacy of the state itself, without it necessarily
   becoming justifiable for the state to intervene before or after the event. In
   relation to advertising the views of political parties it has, over the decades
   since the conclusion of the ECHR, become unthinkable that such grounds as
   defending the territorial integrity of the state would be found to justify
   banning, for example, the mere expression of opinions about the future

      constitutional status of Northern Ireland. While a democratic state would not
      be expected to tolerate explicit calls for armed insurrection, it would probably
      be disproportionate to criminalise calls for peaceful civil disobedience even
      where that involved breaking the law.

“Hate speech”

   8. Given that a mature democratic state will tolerate quite strong attacks on the
      institutions and legitimacy of the state, and given also the existence of civil
      (and, to an extent, criminal) remedies for defamation of individuals, it seems
      that the area where it is most likely that party political freedom of expression
      may still require a significant degree of restriction is that of assaults on the
      rights of groups, or of individuals on the grounds of their perceived group
      membership; what is sometimes termed “hate speech”.

   9. This Commission is concerned that the content of some political party
      advertising may fail to respect the fundamental and absolute right to protection
      from discrimination on grounds of race, ethnicity, colour or national origin as
      enshrined in Article 2(1) of the ICCPR, Article 2(2) of the International
      Covenant on Economic, Social and Cultural Rights (ICESCR) and (in relation
      to enjoyment of other ECHR rights) Article 14 of the ECHR. This submission
      concentrates on race and ethnicity because of contemporary political
      developments in this field. However the views expressed below regarding the
      need for a regulatory code would apply equally if other groups were targeted
      by political parties on grounds of, for example, religious intolerance, age,
      gender, sexual orientation, disability and so on.

   10. One of the most worrying developments in this regard has been the electoral
       success at local level of racist parties in other parts of the United Kingdom,
       and the damage they could potentially cause to the rights of ethnic minorities
       and certain categories of non-citizens such as asylum applicants and refugees.
       The state is not only permitted, but required by human rights principles to act
       against political expressions of racism. Article 4 of the UN International
       Convention on the Elimination of All Forms of Racial Discrimination
       (ICERD) reads:

              States Parties condemn all propaganda and all organizations which
              are based on ideas or theories of superiority of one race or group of
              persons of one colour or ethnic origin, or which attempt to justify or
              promote racial hatred and discrimination in any form, and undertake
              to adopt immediate and positive measures designed to eradicate all
              incitement to, or acts of, such discrimination and, to this end, with due
              regard to the principles embodied in the Universal Declaration of
              Human Rights and the rights expressly set forth in Article 5 of the
              Convention, inter alia:

              (a) Shall declare an offence punishable by law all dissemination of
                  ideas based on racial superiority or hatred, incitement to racial
                  discrimination, as well as all acts of violence or incitement to such
                  acts against any race or group of persons of another colour or

               ethnic origin, and also the provision of any assistance to racist
               activities including the financing thereof;

           (b) Shall declare illegal and prohibit organizations, and also
               organised and all other propaganda activities, which promote and
               incite racial discrimination, and shall recognise participation in
               such organizations or activities as an offence punishable by law;

           (c) Shall not permit public authorities or public institutions, national
               or local, to promote or incite racial discrimination.

11. The full implementation of the provision in 4(b) has long been resisted by
    those who say that banning organisations is not “the British way of doing
    things”. The treaty‟s supervisory body, the Committee on the Elimination of
    Racial Discrimination, has consistently expressed concern at the UK‟s
    restrictive interpretation of Article 4 and has suggested that there may be a link
    between the UK‟s stance and growing racial tensions. In its Concluding
    Observations of 2003 the Committee reiterated its concern

           …over the fact that the State party continues to uphold its restrictive
           interpretation of the provisions of Article 4 of the Convention. It
           recalls that such interpretation is in conflict with the State party’s
           obligations under Article 4(b) of the Convention and draws the State
           party’s attention to the Committee’s general recommendation XV
           according to which the provisions of Article 4 are of a mandatory
           character. In the light of the State party’s recognition that the right to
           freedom of expression and opinion are not absolute rights, and in the
           light of statements by some public officials and media reports that may
           adversely influence racial harmony, the Committee recommends that
           the State party reconsider its interpretation of Article 4.

12. The Human Rights Commission does not regard this consultation exercise as
    the appropriate forum to discuss the merits of outright prohibition of racist
    parties. However, it does wish to take this opportunity to make a case for
    some form of regulation that respects the premise of Article 4 of ICERD and
    thereby at least attempts to alleviate the harm caused by misleading and
    offensive material disseminated by political parties.

13. The Commission is of course aware that existing legislative measures could be
    applied to prohibit political advertising from inciting racial hatred, but it is
    clear that this legislation is limited in scope and has not been sufficient in
    blocking the dissemination of racist ideas. Even a cursory glance at the
    material issued by some political parties in the non-broadcast media indicates
    that offensive and misleading information is frequently issued. For example,
    the official website of the British National Party (BNP) contains an article
    entitled „Islam is the Menace‟ and argues that western civilisation is superior
    to Islamic civilisation. The website also promises that the BNP, if in power,
    would give preference in the job market to what it refers to as „native Britons‟,
    i.e. white British citizens, and suggests that unemployment in the UK is to be
    explained by immigration. Similarly the suggestion on the website is that

   problems in the health service would be greatly alleviated if there were fewer
   immigrants in the UK. Furthermore the website refers to a system of
   „voluntary resettlement‟ for „non native Britons‟, presumably a reference to all
   ethnic minorities who are in fact an integral part of the UK population. The
   Party is also well known for its stance on asylum applicants, all of whom the
   Party suggests are either „bogus‟ or could find refuge in states closer to their
   home countries. These views are of course not only to be found on the Party‟s
   website but are distributed in the form of leaflets, posters and flyers. All these
   ideas run very much counter to the universality of human rights and the
   principles of mutual respect and tolerance for diverse cultural, ethnic and
   religious traditions. In particular, they show disregard for Article 6(1) of the
   ICESCR under which “The States Parties to the present Covenant recognise
   the right to work, which includes the right of everyone to the opportunity to
   gain his living by work which he freely chooses or accepts, and will take
   appropriate steps to safeguard this right”. They also run counter to Article 12
   of the ICESCR under which “The States Parties to the present Covenant
   recognise the right of everyone to the enjoyment of the highest attainable
   standard of physical and mental health”. They are also offensive to the spirit
   of the 1951 Convention Relating to the Status of Refugees. Yet these human
   rights instruments express principles that ought to be at the centre of any
   democratic state.

14. The UN Committee on the Elimination of Racial Discrimination has also
    indicated strongly that a link exists between antagonism toward asylum
    seekers and support for extremist parties. In its Concluding Observations of
    2003, the Committee expressed concern “at reports of attacks on asylum-
    seekers. In this regard the Committee [noted] with concern that antagonism
    toward asylum seekers has helped to sustain support for extremist political
    opinions”. The Commission would also add that, when political parties are
    not regulated in terms of the information they provide and the unsubstantiated
    claims they make to the electorate, there is a real danger that minorities are put
    in a particularly vulnerable situation. Spurious claims such as those listed
    above clearly have the potential to cause substantial harm to immigrants,
    refugees, asylum applicants, non-citizens and ethnic minorities because they
    suggest that many of the UK‟s problems could be solved if these groups were
    not part of UK society.

15. Ethnic minorities in Northern Ireland have also suffered as a result of such
    campaigns. Here, there have long been links between certain Loyalist
    paramilitary factions and British-based neo-fascist organisations such as the
    National Front, Combat 18 and the BNP. More recently there has arisen a
    group calling itself the White Nationalist Party, which launched a campaign in
    order to prevent the construction of a Mosque in the Craigavon area. Posters
    and leaflets distributed by this Party suggested an inextricable link between
    Islam and terrorism. The Muslim community felt intimidated to such a degree
    that despite having secured planning permission for the construction it
    withdrew its plans for fear of attacks on worshippers and the Mosque building.

16. The Human Rights Commission does not agree with the view reflected in the
    Electoral Commission consultation paper that decisions expressed at the polls

       would provide a sufficient disincentive to parties from spreading misleading or
       offensive material. The outcome of elections by definition reflect the views
       and interests of majorities, and when minorities (particularly minorities so
       small as to lack any real political influence) stand to be adversely affected, as
       would happen in the case of election of far-right racist candidates, special
       preventive measures are needed for their protection.

   17. It may be argued that all political parties make claims regarding the potential
       affects of opposing parties‟ policies on certain groups within societies or
       certain services provided by Government. Thus claims made about the effects
       of immigration and asylum policy might be seen as just one example of the
       legitimate interplay of political ideas. However, the view of this Commission
       is that statements and policies which claim that social and economic problems
       are a result of the very presence of a group or groups of individuals in the
       country, and which attack and undermine the principle of equality, ought not
       to be permitted in political advertising.

   18. The Commission is of course not suggesting that the absence of regulation of
       such political advertising is the sole cause of racial attacks and tensions.
       However, it is our view that the absence of regulation makes it easier for those
       with racist and xenophobic views to communicate false information to the
       population, and this can, particularly in times and areas of economic
       deprivation, allow scapegoating of ethnic minorities and increase the potential
       for racial tensions.

The practicalities of operating a code

   19. The consultation paper expresses concern at the practicalities of having a code
       in place to regulate political advertising. The paper draws attention to the
       difficulties in securing agreement or „buy-in‟ from all parties. The
       Commission‟s view is that a code, even if self-regulatory, would go some way
       in sending out a message to the electorate and to political parties in terms of
       what claims and types of propaganda are considered unacceptable in the
       context of a liberal democracy. Such a code would not need to be agreed by
       all political parties and indeed the paper is correct in pointing out that securing
       such agreement from the almost 300 registered parties in existence today
       would be extremely difficult. However, it would be vital for at least the major
       political parties, across the ideological spectrum, at national and regional level
       to agree to such a code for it to be effective not only in terms of regulation but
       equally in terms of the message sent out to the electorate on what is and is not
       acceptable in the political arena. The Commission hopes that these parties will
       recognise the need to regulate the content of political advertising when it
       espouses the ideas noted above.

   20. However, it does indeed appear that the existing Code primarily intended for
       commercial advertising cannot be easily applied to political advertising as it is
       much too broad in scope. That Code would not necessarily solve the
       particular problems identified in the submission. This, however, is not an
       adequate reason for abandoning the idea of a regulatory code for political
       advertising altogether. Such a code ought to address the specific problems

   associated with political advertising. As a minimum, the code ought to
   prohibit advertising that seeks to vilify one particular segment of society.

21. In terms of who ought to be responsible for interpreting and applying the
    Code, the Commission‟s view is that with its existing regulatory functions the
    Electoral Commission is the obvious body, but that if another agency were to
    be given the task, this ought to be an independent body, suitably resourced
    with considerable expertise in domestic and international human rights law.

22. The paper also seeks views on the how the code would regulate political
    advertising. Should all non-broadcast political adverts be subject to regulation
    before they are communicated to the public? Or should the regulation operate
    as it does with commercial advertising whereby the regulation body can act on
    complaints received only after publication? The Commission understands the
    problems associated with the first option: a pre-clearance scheme. This would
    demand all involved parties (political advertisers, the regulatory body)
    working to tight deadlines, and any prior restraint approach may be seen (and
    will certainly be presented by those restrained by it) as an unacceptable
    infringement on the right to freedom of expression. With the second option,
    when a complaint is upheld, the electorate can be alerted to the misinformation
    it has received and an opportunity will also be provided for other public
    figures and interested parties to express their views regarding the political
    advertising in question. The Commission would stress however, that this
    option would also demand that the electorate is well informed on how to make
    a complaint and that the procedures are as accessible as possible.

                                  Northern Ireland Human Rights Commission
                                                              Temple Court
                                                            39 North Street
                                                          Belfast BT1 1NA

                                                                       March 2004


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