Tuesday, 29 May 2012

Is Freedom of Information a Human Right?

If I ask the government a question do I have the right to get an answer?

I said this week I’d write about personal liberty, but last week’s article on freedom of expression brought several queries about the right to have access to government information.  And with DfID Secretary of State Andrew Mitchell’s comments on the subject, when interviewed this week by Simon Pipe, it seems a good topic to cover immediately.

In another break from the usual I haven’t started with a quote from our Constitution.  Freedom of Information is not a right protected by the Constitution of St Helena, or by our law.

So if it is not in the constitution is it a human right?

The answer, according to the United Nations, is yes.

In its very first session in 1946, the United Nations General Assembly adopted Resolution 59(I), stating:

Freedom of information is a fundamental human right and ... the touchstone of all the freedoms to which the United Nations is consecrated.

Last year by the United Nations' Human Rights Committee reconfirmed this, saying:

The International Covenant on Civil and Political Rights embraces a right of access to information held by public bodies. Such information includes records held by a public body, regardless of the form in which the information is stored, its source and the date of production. ... the right of access to information includes a right whereby the media has access to information on public affairs  and the right of the general public to receive media output.

The International Covenant on Civil and Political Rights has been extended to St Helena so that means it covers us.

Freedom of information has been a right in the UK since 2000 and has been spread to over 90 countries around the world since Sweden's Freedom of the Press Act of 1766.  Yet it does not exist here, or in any of the UK’s Overseas Territories.

By the way, in case anyone is getting worried, Freedom of Information covers only government information, not personal details.  You private life remains that.  Only government information is made accessible.

So why do we not have protection here?

According to our Attorney General, when asked by the [HRCBC], the UK Freedom of Information Act 2000 has been dis-applied here because it is too complicated and unmanageable for a small island.  Instead the St Helena Government “works within the spirit of the UK legislation”.

He’s right that to implement the full UK legislation would require many committees and levels of bureaucracy, and probably would be unworkable here, but that doesn’t alter our right to the information or our need for that right to be formalised in our law.  Some other way must be found.  The view of the HRCBC is that this needs to be addressed.

So, to answer the original question, yes, according to the UN you should have a right to access government information, but our law and Constitution do not (yet) actually implement that right.


Can I say what I like, when I like?

The Constitution says that we have the right to freedom of expression but does that mean I can say what I like without fear of arrest or retribution?

The Constitution says (in Clause 17):

Except with his or her own free consent, no person shall be hindered in the enjoyment of his or her freedom of expression.  Which includes his or her freedom to hold opinions without interference, his or her freedom to receive information and ideas without interference, his or her freedom to disseminate information and ideas without interference (whether the dissemination be to the public generally or to any person or class of persons) and his or her freedom from interference with his or her correspondence or other means of communication.

So, it seems, if you disagree with something that your government or indeed a business or other institution is doing or proposes to do you have the right to say so. Nobody has the right to stop you from raising objections or concerns about their actions. You have the right to say or write what you believe even if you know it will be unpopular.  And if you want access to public information to help you put forward your case, nobody has the right to prevent you from having it.  If I think a policy adopted by government is stupid you have every right to express that opinion openly without fear of retribution.

One the face of it, then, you can say what you like when you like.  Except you can’t, and for some very good reasons . . . .

It is fundamental to our Constitution and legal system that we cannot infringe the human rights of other individuals.  We have a responsibility not to injure others, not to break the law, and not to incite others to do so. Therefore our right to freedom of expression is limited.

We can be prevented from expressing our views if it can be shown to be in the interests of protecting another’s human rights, safeguarding public health and/or safety, maintaining public order or in the interests of national defence. We are all protected from malicious damage to our reputations and from interference in our private lives.

So, for example, you cannot incite a riot.  You may hand out leaflets which argue for a change in the law (e.g. the de-criminalisation of Cannabis) but you must not encourage others to break the law while it is still in force. And if you want to publicly claim someone is corrupt or accuse them of a crime, you need proof.  Your right to free speech is limited by their rights.

Also you may have actually signed away your right to criticise.  (This is the “Except with his or her own free consent” bit.)  Your contract of employment, for example, may say you cannot publicly criticise your employer.  If you do so they can sack you for breach of contract.  So before you go public with your grievance, check your contract.

Is it OK to be refused a Job because I am different?

Does the Constitution protect me against discrimination?

Our Constitution is the “top law” on St Helena.  It sets out how our government is made up, how our island must be run and how our government must treat us.  All our Ordinances are required to be consistent with it, and any that aren’t are “overruled” by the Constitution.

The Constitution says (in Clause 5)

“... every person in St Helena is entitled to the fundamental rights and freedoms of the individual, that is to say, has the right, without distinction of any kind, such as sex, sexual orientation, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, age, disability, birth or other status, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following...”

Therefore we should all be treated equally regardless of whether we are male or female, “gay” or “straight”, black, white, brown or pink, born here or not. It does not matter what language we speak, which faith we follow (if any) or if we “able bodied” or physically or mentally impaired. Nor does it matter how young or old we are or whether we want an airport or we don’t. WE ARE ALL EQUAL in that the government or the law cannot treat us differently to each other.

For example you cannot be taxed at a higher rate for being against the airport, or given a longer prison sentence for the same crime because you are over 60. In fact these examples sound ridiculous, which is an indication of how well, in some respects, our rights are protected.

So can I be refused a job on the grounds that I am female or disabled?

Despite all of the above, the answer is: Yes.

If you work for government you are protected both by the constitution and the Government’s own employment policies, which expressly forbid discrimination

But it’s different if you work in the private sector.

If you work in the private sector the Constitution does not protect you, because the Constitution only applies to acts of government. Relationships between private citizens, or between companies and others are not protected by the constitution.  That is left to local legislation.

So does local legislation protect me from discrimination?

It should, but there are gaps.  The new Employment Ordinance (which is so current it’s not yet in force) does not protect private sector employees from discrimination, except possibly when it comes to unfair dismissal. It will still be perfectly legal to pay women less than men, to refuse to employ someone because they follow a different faith or because they are too old, too fat or just were/were not born here.  If you work for an enlightened employer they may have employment policies that protect you, once you are employed.

When the HRCBC raised this with government we were told that we do not need such legislation because things like that do not happen here. I’d welcome your views.  Have you been discriminated against in employment?  If you have, please contact me – in confidence – with the details.

Monday, 14 May 2012

The Rights Sandwich

Why do we already have some rights, but not others?

Last week’s article explained that, although we all have various human rights, not all of these rights are absolute.  Even our right to life has exceptions.  This week we will look at the types of rights we already have, and those we are waiting for.

Our human rights fall into three different categories, and each category builds on the previous one, rather like making a sandwich: first you need the bread; then the butter makes it easier to eat; and the jam makes it more much more enjoyable.

The Bread. Sometimes referred to as our First Generation rights, these are our fundamental civil and political rights, such as the rights to liberty, to freedom of expression and to not suffer discrimination. Our First Generation rights provide us all with protection against government and others interfering in our lives.  These are fundamental to our lives, just as the bread is fundamental to our sandwich.

First Generation rights should be the most simple to enforce. Where our civil and political rights are threatened, we should expect to have recourse to a court of law and a legal remedy to stop it.

The Butter.  Our Second Generation rights are our economic, social and cultural rights, such as freedom of religion and the right to have work and to have housing. They are sometimes described as “aspirational” rights – things we should expect but are not as vital to our lives.  A sandwich with only bread will keep us alive but the butter makes it easier to eat.

For example, we cannot demand that our government provide us all with a job and a home.  That would be impractical.  Some governments can afford to do that, and when they can they should, but ours currently cannot, though we can expect that our government won’t actively prevent us from having these. Economic, social and cultural rights are more of a statement of intent – our government should help us to achieve these things. 

These rights are not enforced by law. They are usually monitored through reports made by countries to the United Nations.  

The Jam.  Once we have the bread we need, and the butter we want, we can start to consider the jam: our Third Generation rights. These can be thought of as rights to enjoy our lives.  They cover subjects such as peace, personal development and a satisfactory environment. Like economic, social and cultural rights, Third Generation rights are difficult to enforce because they, too, relate to human aspirations, rather than fundamental needs.  We want jam on our sandwich, but we can’t demand that it’s provided.

So how is St. Helena doing on the Human Rights Sandwich?

In St. Helena most of our fundamental rights are included in our Constitution, but our Constitution only controls how the Government behaves.  Our Constitution does not control what happens between, businesses and private individuals, so these issues need to be covered by local legislation.  Our government is working on it, but not all of this legislation is in place yet.  In St. Helena, therefore, our bread is only partly baked! And we have to finish the bread before we focus on the butter and the jam.

In December 2011 ExCo gave its full backing to the adoption of the Human Rights Action Plan for St Helena. Over the next three years the Human Rights Capacity Building Committee will be working with St Helena Government, Civil Society groups and individuals to produce a perfect loaf!

If you have any questions about Human Rights please contact Catherine on 2133 or email humanrightsoffice@cwimail.sh

Next week  What is discrimination?

The Right to Life

 Do we have a right to life?

The short answer is yes and no...

Human rights are simply the rights we have because we are human. It does not matter who we are or what we are, where we were born, where we live, our colour, race, religion, whether we are rich or poor or any other status. We are all equally entitled to our human rights without discrimination. However despite the fact they have been ours from birth most of us could not list those rights nor are we fully aware of when they are been violated and what we can do it they have been. As a result we are also often unaware that we have violated the rights of others.

That said you would think that our most basic right – the right to life would be protected without question or qualification. Our Constitution (Clause 5) says

“...every person in St Helena is entitled to the fundamental rights and freedoms of the individual, that is to say, has the right, without distinction of any kind, such as sex, sexual orientation, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, age, disability, birth or status, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following-

(a)  life, liberty, security of the person and the protection of the law.” 

So yes we clearly have a right to life protected by the law. However there is a qualification to that right and it is explained by the phrase in bold above subject to respect for the rights and freedoms of others and for the public interest.

Therefore we can put our right to life at risk if we commit a violent act which puts others lives at risk, resist lawful arrest, or take part in a riot, insurrection or mutiny. This is because by our actions we are potentially violating the right to life of other people.

We also have the right to chose to put our life on the line if we chose to join the armed forces.

Do we have a right to life – yes but only so long as we respect the rights of our fellow human beings to their life.

This is the first in a series of articles which aim to explain our rights, our responsibilities to protect the rights of others and what we can do if we believe our rights have been violated.