Submission to Northern Ireland Human Rights Commission

Consultation on proposed Bill of Rights

1

The National Union of Journalists (NUJ) welcomes the opportunity to contribute a synopsis of its views as part of the NIHRC's consultation on a Bill of Rights for Northern Ireland. We also intend to make further submissions at a later stage of the consultation process.

2

The NUJ shares the view of a broad constituency that a comprehensive Bill of Rights, accompanied by effective implementation measures, and in the context of other developments, can play a valuable rôle in protecting and extending the human rights of all of the citizens of Northern Ireland.

3

As part of the wider trades union movement the NUJ naturally welcomes the Commission's willingness to consider, for inclusion in its recommendations to Government, a range of economic, social and cultural rights that for too long have figured as the poor relations in international human rights treaties. Further below, in line with long-standing NUJ policy, we set out a number of suggestions in this respect and endorse the calls from many quarters for formal recognition of these rights in any new Bill of Rights.

4

As the largest association of professional journalists in Europe the NUJ represents journalists throughout Britain and Ireland, with membership spanning all sectors of the media and communications industry, from print and broadcast journalism to the internet. The NUJ is also centrally concerned with Press freedom and with freedom of information. The Union's "Title Constitution and Objects" specifically cites:

  1. The defence and promotion of the professional and financial interests and the welfare of its members;
  2. The defence and promotion of the principles and practices of journalism with particular reference to the Union's code of conduct;
  3. The defence and promotion of freedom of the press, broadcasting, speech and information;
  4. The defence and promotion of trade union principles and organisation;
  5. The defence and promotion of equality of opportunity for all its members and staff and the elimination, industrially and professionally, of discrimination on the grounds of age, sex, race, colour, creed, illegitimacy, disability, marital status, or sexual orientation;
  6. The defence and promotion of peace, social justice and civil liberties;
  7. The establishment of out of work, benevolent and death benefits;
  8. The determination of all questions affecting the professional conduct of its members;
  9. Entering into agreements on the multiple sale of material the electronic databases and other forms of reproduction and uses of members' published and broadcast work including the collection and distribution of that income from such agreements.

Likewise the Union's Code of Conduct assigns a high priority to the upholding of freedom of the Press. In a number of cases the Union has demonstrated this concern and commitment by pursuing cases to the EHCR, with however, it has to be said, somewhat mixed results.

5

The NUJ believes that a free press and media is a cornerstone of a healthy democracy. At its best a robust and independent media can assist the citizen to hold public and private powers to account. Experience shows however that press freedom is a vulnerable achievement. It is beset by threats: from the excessive concentration of media ownership (a pronounced trend in Ireland as elsewhere); from direct and indirect political pressure exerted on broadcasters (broadcasting bans, the award or withholding of franchises); from the use of defamation law; and potentially also from the development of a law of privacy.

The NUJ believes therefore in the positive value of restating in the context of the proposed Bill of Rights the importance of the principle of freedom of the press and the conditions (notably an effective freedom of information regime) required for it to flourish.

Freedom of the Press and free expression

6

The NUJ notes that the approach of the European Convention to the issue of press freedom in Article 10 is to qualify the principle with a considerable number of limitations, affording the State a wide variety of defences on which to rely for violations of the right. The union believes that such a fundamental right deserves a more ringing endorsement, and ought not to be so heavily qualified in any Northern Ireland Bill of Rights.

The approach of the Bill of Rights to the issue of press freedom, as to other fundamental rights, ought to be animated by the libertarian principle proclaimed by Lord Atkin, at one of the darkest moments of the Second World War, in a celebrated minority judgment of the House of Lords: "In this country, amid the clash of arms, the laws are not silent." (Liversidge v Anderson). Nor should the freedom of the Press be lightly compromised on the official pretexts of civil disorder, community conflict or "states of emergency". Accordingly the NUJ commends the examples of either Section 16 of the South African Bill of Rights (Freedom of Expression) or the formula adopted by the Canadian Charter of Rights and Freedoms:

South African Bill of Rights
Section 16: Freedom of Expression

  1. Everyone has the right to freedom of expression, which includes:
    1. freedom of the press and other media
    2. freedom to receive and impart information and ideas
    3. freedom of artistic creativity; and
    4. academic freedom and freedom of scientific research.
  2. The right in subsection (1) does not extend to -
    1. propaganda for war;
    2. incitement of imminent violence; or
    3. advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

Canadian Charter of Rights and Freedoms
Sections 1 and 2:

  1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to [...]
    Such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
  2. Everyone has the following fundamental freedoms:
    . . .(b) freedom of thought, belief, opinion and expression, including freedom of the press.

Alternatively, the formula proposed by the CAJ in its submission to the Commission in its proposed draft Article 16 is to be commended for clarity and simplicity:

Subject to Article 26 [a general limitation clause, tightly drawn] every person has the right to freedom of expression. The right shall include the freedom to hold opinions, and to receive and impart information and ideas without interference and regardless of frontiers.

The NUJ believes that any limitation clause whether general, or specific to the exercise of Press freedom, should be as tightly drawn as it lies within the means of the Commission to devise, and that it should place a very heavy onus on the State wishing to rely upon it.

Freedom of Information, the Citizen's right to know

7

The NUJ favours a robust and wide ranging provision in the Northern Ireland Bill of rights committing the public authorities in Northern Ireland to the principles of freedom of information and open government. Such a provision should be a prelude to enabling legislation addressing the well-publicised shortcomings of the Freedom of Information Act.

The legislation should also examine ways of underpinning this by strengthening the protection extended to "whistleblowers" under current legislation. In virtue of the critical importance of a free flow of information to an effective Press a freedom of information regime should have a clear presumption in favour of disclosure or a citizen's access to information.

An Information Commissioner should have powers to compel disclosure on public interest grounds in matters of dispute, and in appropriate cases should be able to over-rule Executive ministers, as in the Freedom of Information regime in the RoI. The new police service, the prison service and security services should not enjoy any blanket exemptions from the reach of the FoI regime in Northern Ireland.

Nor should the private sector benefit from exemptions it would not enjoy in the home of Corporate power (North America) on the supposed pretext of "commercial sensitivity" or "commercial confidentiality". The United States, Canada, South Africa and the Republic of Ireland have shown the way towards a more advanced and more genuine freedom of information culture than the regime introduced by New Labour. A Northern Ireland Bill of Rights should promote the best international standards in this respect. A formula such as that adopted in the South African Bill of Rights offers a promising start on this road:

South African Bill of Rights
Section 32: Access to Information

  1. Everyone has the right of access to -
    1. any information held by the state; and
    2. any information that is held by another person and that is required for the exercise or protection of any rights.
  2. National legislation must be enacted to give effect to this right, and may provide for reasonable measures to alleviate the administrative and financial burden on the state.

An additional reason for pressing for a more advanced freedom of information regime than that envisaged for Whitehall is the importance assigned under the Good Friday Agreement to the North-South institutions, one of the pillars of the new system of government for Northern Ireland. It would be absurd if these institutions were to operate one policy North of the border and another South of the border. A Northern Ireland Bill of Rights should look in principle towards harmonising upwards, and to improving upon the regime in the RoI.

Open government

A related matter is the issue of open government. A dismaying trend, from a Press point of view, is the growing number of Assembly Committee sessions which meet and take decisions in closed session, excluding the press and public. The trend is paralleled in changes to local government in Britain which envisage a far greater number of decisions being taken by councils or mayors and council executive committees in closed session. This is a regressive trend which undermines the public's right to know what their representatives are doing or saying on their behalf. The NUJ in this as in other matters is in favour of letting the sun shine in on official decision making. The proposed Bill of Rights should underline the presumption in favour of decision making in public. This principle ought to inform any democratic machinery of government.

Protection of journalists' sources- respect for "private life"

Recent judgments in the Northern Ireland Court of Appeal (Moloney) and the English Court of Appeal (Bright) offer some hope that the judges are beginning reluctantly to recognise journalists' rights to protect their sources. These decisions, however, go against the traditional common law grain, and a long established tendency of the judges to side with the executive in these matters. The Moloney case centred on the construction of a narrow statutory provision. The Bright case was the first to reflect a reinterpretation of the tenets of the common law under the impact of Convention jurisprudence. They represent an uncertain victory. They can hardly be said to amount to a journalist's charter.

The NUJ would like to see, perhaps in regard to a revision of the European Convention's Article 8, and building on the ECHR's decision in the Neimeitz case, some formal recognition of the protection journalists are entitled to expect under the law in regard to respect for their professional activities as an aspect of their right to a private life.

It is no part of a journalist's job to gather evidence for the State. The Union believes, given the experience of its members in covering events in Northern Ireland for the last 30-odd years, and the willingness of the State to confiscate or compel the surrender of film, pictures or journalist's records to assist in judicial proceedings, that the professional rôle of its members will continue to be compromised until it is made clear that judges will not compel disclosure of journalist's confidential sources/records.

Emergency legislation

The NUJ is committed to the repeal of the Prevention of Terrorism act and to various other items of Emergency and Official Secrets legislation under cover of which the Government has imposed gagging orders on newspapers and threatened prosecution of journalists (Geraghty and Harnden are further examples of this). The NUJ notes the UN special rapporteur's report in July of last year denounced the use of gagging orders (as in the Shayler affair, from which the Bright case sprang) and condemned the Government for attempting to use laws to force journalists in Northern Ireland to hand over their notes. The special rapporteur, Abid Hussein, had this to say:

The special rapporteur considers the use of the Official Secrets Act to prosecute journalists and writers, as well as the existence of the D notice committee [now the defence advisory committee] to be incompatible with media freedom.

In backing journalists who stand over the confidentiality of their sources he added:

As provided by the European Convention on Human Rights, a journalist should not be used as a source for investigating authorities. . . Undertakings of confidentiality have to be absolute, since otherwise the information would never have reached the public domain.

Trade Union Rights

8

The NUJ has been at the forefront of campaigns in defence of Trade Union rights in the UK and in the RoI for many years. It has backed the efforts to obtain legally enforced union recognition in the UK and welcomes as a modest, but insufficient, advance the new procedures in place to facilitate union recognition. It believes however, that the bulk of anti-union legislation from the Thatcher-Major era still in place in the UK continues to act as a straitjacket on union freedom to organise and to take effective action in defence of members' interests. As previous cases have shown and as the recent NATFHE case underlined, the ECHR's record on trade union rights has not been a particularly helpful one to the trade union movement. The NUJ believes therefore that any Northern Ireland Bill of Rights should look elsewhere for inspiration.

Northern Ireland suffers from major social inequalities and sectarian divisions. Trade unionists have an important rôle to play in assisting in tackling these but their ability to do so, or to intervene credibly in the workplace or society at large depends to some extent on a widespread acceptance of their ability or authority to speak or to act on behalf of organised workers. The positive anti-sectarian influence they can exercise on their members, for example - through initiatives such as Counteract - or their input into anti-poverty work - NIAPN is an example - will depend in part on the standing they enjoy as effectively representative of their membership. It is important therefore that the rôle of the trade union movement is underpinned by measures permitting them to discharge their key responsibilities effectively. The current industrial relations "settlement" does not provide the framework to allow this. The Northern Ireland Bill of Rights should therefore, in the NUJ's view, provide a positive recognition for the rôle of union organisation, comparable to the official recognition given them in the South African Bill of Rights:

South African Bill of Rights
Section 23: Labour relations

  1. Everyone has the right to fair labour practices.
  2. Every worker has the right -
    1. to form and join a trade union;
    2. to participate in the activities and programs of a trade union; and
    3. to strike.
  3. Every employer has the right -
    1. to form and join an employers' organisation; and
    2. to participate in the activities and programs of an employers' organisation.

    [The NUJ does not believe that the current "labour relations" regime in the UK gives effect to a worker's right to strike, pace the decisions of the ECHR, or the recent English Court of Appeal decision in RMT v London Underground, 16 February 2001), further proof, if proof were needed, that judges become tone deaf to "rights" where workers interests are concerned.]

  4. Every trade union and every employers' organisation has the right:
    1. to determine its own administration, programs and activities;
    2. to organize;
    3. to bargain collectively;
    4. to form and join a federation.

    [The NUJ believes that the current "labour relations" regime in the UK is completely at variance with the rights underwritten in Section 23 (4) (a), (b) and (c).]

The NUJ believes that such a recognition would win the loyalty and support of large numbers of working people for the core of shared human rights values a Bill of Rights is intended to promote. Conversely, a failure to recognise the specific status of workers as workers, and to extend the protection of the Bill of Rights to their organisations, carries the risk of confirming the perception that the proposed Bill of Rights is primarily concerned with the "rights of others", "their rights", not "our rights". Recognition of the type accorded workers' organisations in the South African Bill of Rights would, it is to be hoped, provide a directive framework for the repeal of a variety of measures that effectively negate workers' rights to organise and to take effective action in their interests.

The UK government has ratified the 1961 European Social Charter, and has signed (but not yet ratified) its updated successor the 1999 Revised Social Charter. It is legally bound by, or committed, to protecting the rights contained in these documents and these include economic and social rights and include quite detailed labour rights.

There are 31 articles, a large number of these articles are petitions for workers but also include rights to information and good housing etc. The NUJ believe these articles should be included in the Bill of Rights Northern Ireland and would help protect the social, economic and trade union rights of working people. The information is contained in the small blue book Revised European Social Chapter from the Directorate of Human Rights. The Council of Europe in Strasbourg publishes it.

International Covenants

9

When people talk about an international "Bill of Rights" or a European "Bill of Rights" they mean to include civil, political, economic, social and cultural rights (at the international level - the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights; at the European level, the European Convention on Human Rights, which is largely civil and political, and the European Social Charter, which is largely socio-economic). The NUJ argues that the logic of this requires that the Bill of Rights for Northern Ireland should have all of these rights.

There is however no commitment per se in the Good Friday Agreement, or by anyone since, to ensure that the BoR must include the whole gamut of rights. The case as argued above has made clear the importance to include (a) good international and regional practice and (b) the particular circumstances of Northern Ireland, which in the view of the NUJ, CAJ and many others, requires a more holistic approach to the rights debate in the future than we have ever had in the past.

Culture and Identity

10

The richness and diversity of culture in Northern Ireland and the ability of working people to make a living from their creativity and to protect its integrity when in use, is important to ensure the continuation of this richness. Such creators as writers, journalists, authors, musicians, photographers, illustrators, cartoonists, actors and film directors are under threat from corporate greed. Authors' rights/copyright and moral rights defence against the essentially corruptive power of huge media companies in the digital era.

NUJ general secretary John Foster said that, for authors' rights/copyright to be fully protected from companies greedy for supposed riches from ownership of "intellectual property" in the internet era, changes in UK law were essential. The exclusion of staff from copyright ownership had to end and all authors' rights, economic and moral, must be deemed "inalienable" so that they could not be removed even by signing a contract - because the contract itself would be illegal.

Copyright is of major importance to all journalists. The developments within the media, website, internet and digitalisation have given greater emphasis to the importance of this subject.

For too long it has been simply seen as a freelance issue. While it is obviously important to freelance journalists it is also a fundamental issue for all creators. The big multi-national media companies understand that their future is linked to their control and ownership of copyright of all creators - writers, journalists, authors, musicians, actors and film directors.

We believe that those whose talents skills and abilities are responsible for the creations in all spheres of the media should benefit from their work and talents.

Arne Ruth, now professor of journalism at Stockholm University, argues that ownership of copyright by individual journalists, staff or freelance and of all disciplines, is one defence against the essentially corruptive power of huge media companies in the digital era. "Properly controlled, electronic media can be used to distribute the power of the media corporations. It can complete the process that began with the printing press and confirm the right of everyone to obtain information and protect their work."

"Fundamentally creators' rights are workers' rights are democratic rights," argues Philip Jennings, general-secretary of Union Network International, a worldwide combine of communications and commerce unions. Philip Jennings realised these rights were more disrespected in the UK than anywhere else in Europe, UNI will support the endeavours of authors' organisations to "protect and promote" their members' copyright, especially in digital media - although he proffers a reminder of access problems that barred the internet, for better or worse, to the "half of the world's population that has never made a phone call".

The NUJ with other creators' organisations argue for a change in legislation to make copyright a human right as proclaimed in Article 27 (2) in the Human Rights Declaration of the United Nations:

Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author

and in the Berne Convention the relevant Article (6bis) reads as follows:

  1. Independently of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honour or reputation.
  2. The rights granted to the author in accordance with the preceding paragraph shall, after his death, be maintained, at least until the expiry of the economic rights, and shall be exercisable by the persons or institutions authorised by the legislation of the country where protection is claimed. However, those countries whose legislation, at the moment of their ratification of or accession to this Act, does not provide for the protection after the death of the author of all the rights set out in the preceding paragraph may provide that some of these rights may, after his death, cease to be maintained
  3. The means of redress for safeguarding the rights granted by this Article shall be governed by the legislation of the country where protection is claimed.

The USA, UK, Ireland and several other copyright countries have been allowed full membership of the Berne Convention, even though their legislation and legal practices concerning moral rights does not live up to either the wording or the spirit of the Berne Convention.

Conclusion

The following is a list of points, which the NUJ believe should be included in the Bill of Rights Northern Ireland:

  1. Freedom of speech.
  2. Freedom of the press and media.
  3. Protection for whistle-blowers.
  4. Freedom of assembly.
  5. Trade union rights.
  6. Freedom of information.
  7. The public's right to attend all meetings of public bodies.
  8. An end to emergency legislation.
  9. Equality for all.
  10. The right to work free from threat of injury or death.
  11. Authors' rights/copyright and moral rights.
  12. International Covenants should be included in the Bill.

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