Atheist Ireland submission on draft State report to UN on Civil and Political Rights

On 3rd May, Atheist Ireland attended a consultation at the Department of Foreign Affairs on the Draft Irish State Report to the United Nations under the International Covenant on Civil & Political Rights. We have also made a written submission that Government departments will consider as the State prepares its final report, and we will later make a Submission directly to the United Nations Human Rights Committee.

Ireland is due up before the UN Human Rights Committee at the end of the year and, under Article 40 of the Covenant, has undertaken to submit State Reports every few years. At the meeting later this year, the Committee will examine how Ireland has made progress in implementing the concerns of the UN in 2008.

In their Concluding Observations in 2008, the UN Human Rights Committee raised concern about the human rights of secular parents in the Irish education system. They stated that denominational schools were private and had adopted a religious integrated curriculum which denied parents access to a secular education for their children. They also raised the issue of the requirement of judges to take a religious oath. The human rights that the UN referred to were the right to freedom of conscience, the right to be free from discrimination, the rights of the child and the right to equality before the law.

At the consultation on the 3rd of May, Atheist Ireland raised the issues of the Irish Education system and the failure of the State to protect Covenant rights. In particular we raised the issue of recent Report from the Ombudsman for Children. We pointed out that the Ombudsman’s Report shows clearly that the regulatory framework has failed to protect the human rights of parents and children under the Covenant. We also raised the issue of Blasphemy and the requirement to take Religious oaths under the Constitution.

Here is the full written submission that we have made to the Government on the draft State report:

Atheist Ireland submission on draft Irish State report to UN on Civil and Political Rights, May 2012

1. Introduction
2. Article 2 and 26 of the Covenant
3. Article 18 Freedom of Conscience
4. Article 19 Freedom of Expression
5. Constitutional Convention
6. Conclusion

1. Introduction

1.1 The Irish State maintains that the rights afforded under the Covenant on Civil & Political Rights various Council of Europe Conventions are guaranteed under the Irish Constitution and secured with the European Convention on Human Rights Act 2003. This is simply not the case on the ground as the non-religious suffer discrimination and the abuse of their human rights.

1.2 In their concluding observations in 2008 the UN Human Rights Committee noted that “unlike the European Convention on Human Rights, the Covenant is not directly applicable in the State party. In this regard, it reiterates that a number of Covenant rights go beyond the scope of the provisions of the European Convention of Human Rights. (art. 2). The State party should ensure that all rights protected under the Covenant are given full effect in domestic law. The State party should provide the Committee with a detailed account of how each Covenant right is protected by legislative or constitutional provisions.”

1.3 According to the European Convention on Human Rights Act 2003, every organ of the state must perform its functions in a manner compatible with the European Convention. In order to seek an effective remedy under the European Convention on Human Rights Act 2003, it is expected that a complainant should ask the courts to interpret statues in a Convention compliant manner and, if that was not possible, to make a declaration of incompatibility. A declaration of incompatibility is not obligatory on the State and places no legal obligation on the State to amend domestic law. Consequently the European Convention on Human Rights Act 2003 does not provide an effective remedy to vindicate the rights of the non-religious in Ireland and it certainly does not protect the substance of the rights under the Covenant.

1.4 Ireland does not fulfil its legal obligation to protect and ensure an effective remedy to vindicate the rights guaranteed under the Covenant. General Comment No. 31 [80] Nature of the General Legal Obligation Imposed on States Parties to the Covenant (26/05/2004) states:

“However the positive obligations on States Parties to ensure Covenant rights will only be fully discharged if individuals are protected by the State, not just against violations of Covenant rights by its agents, but also against acts committed by private persons or entities that would impair the enjoyment of Covenant rights in so far as they are amenable to application between private persons or entities. There may be circumstances in which a failure to ensure Covenant rights as required by article 2 would give rise to violations by States Parties of those rights, as a result of States Parties’ permitting or failing to take appropriate measures or to exercise due diligence to prevent, punish, investigate or redress the harm caused by such acts by private persons or entities. States are reminded of the interrelationship between the positive obligations imposed under article 2 and the need to provide effective remedies in the event of breach under article 2, paragraph 3. The Covenant itself envisages in some articles certain areas where there are positive obligations on States Parties to address the activities of private persons or entities. For example, the privacy-related guarantees of article 17 must be protected by law. It is also implicit in article 7 that States Parties have to take positive measures to ensure that private persons or entities do not inflict torture or cruel, inhuman or degrading treatment or punishment on others within their power. In fields affecting basic aspects of ordinary life such as work or housing, individuals are to be protected from discrimination within the meaning of article 26.]”

1.5 In a Document submitted to the European Court of Human Rights Application No. 35810/09 Louise O’ Keeffe Applicant v Ireland the Irish Human Rights Commission states:

“In the context of the present application this line of reasoning was clearly followed, as recorded in the Statement of Facts, insofar as the possibility of a remedy in tort for breach of the Applicant’s right to bodily integrity and privacy was sufficient to dispose of her claim against the State. Therefore, the issue became one based on the narrow concept of vicarious liability, rather than the possibly broader duty of the State to vindicate the fundamental rights of a child (such as the rights to bodily integrity, education and to be free of inhuman and degrading treatment) in the public education system. This in turn raises the question whether in fact the law of torts as applied in the High Court and the Supreme Court was adequate to protect the substance of the Applicant’s rights under the Convention, to the extent that the substance of those rights is purported to be protected under the Constitution.”

1.6 It is clear that the Irish Constitution is incompatible with Article 2 and 26 of the International Covenant on Civil & Political Rights as even the European Convention on Human Rights Act 2003 does not protect the basic human rights guaranteed by the Covenant.

2. Article 2 – Discrimination/Right to an Effective Remedy
Article 26 – Equality before the law

2.1 Article 40.1 of the Irish Constitution: Equality is protected under Article 40.1 of the Irish Constitution, however it is inconsistent with the principle of non-discrimination. The United Nations Committee on Economic, Social and Cultural Rights in their concluding observations in 2002 stated the following on Article 40.1:“16. The Committee regrets that the State party has not yet undertaken any measures with regard to the Committee’s 1999 recommendation concerning the inconsistency of article 40.1 of the Constitution on equality before the law with the principle of non-discrimination as set out in articles 2 and 3 of the Covenant.”

2.2 Article 40.1 of the Irish Constitution states: “All citizens shall, as human person, be held equal before the law. This shall not be held to mean that the State shall not in its enactment have due regard to differences of capacity, physical and moral, and of social function.”

2.3 The Irish Human Rights Commission in their Report to the UN under the UPR, recommends a Constitutional Referendum on Article 40.1 to proscribe discrimination.

2.4 The Constitutional Review Group Report 1995 recommended Constitutional change on discrimination to bring Ireland in line with international human rights instruments.

“A list of rights to be considered for express inclusion in the Constitution would include, in addition, to the un-enumerated rights already listed, the following which are contained in the international human rights instruments… A general right to non-discrimination on such grounds as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status (Articles 2 and 3 CCPR, Article 14 ECHR)… The General Right to non-discrimination should be contained in a revised Article 40.1.”

2.5 Since the Constitutional Review Group Report 1995 and the concluding observations of the UN Committee on Economic, Social and Cultural Rights, there has been no change to the Irish Constitution. Consequently there is no Constitutional guarantee of equality before the law with the principle of non-discrimination. This is incompatible with Article 2 and 26 of the Covenant and it undermines the right to freedom of conscience. There is no commitment to using the proposed Constitutional Convention to even examine this issue.

2.6 Article 44.2.3 of the Irish Constitution. Article 44.2.3 of the Irish Constitution obliges the state not to discriminate on the grounds of religious profession, belief, or status. This Article does not include philosophical convictions such as secularism.

2.7 Prof Gerry Whyte has stated that: “The primary purpose of the guarantee against discrimination is to ensure the freedom of practice of religion. Any law which by virtue of the generality of its application would by its effect restrict or prevent the free profession and practice of religion by any person or persons would be invalid having regard to the provisions of the Constitution, unless it contained provisions which saved from such restriction or prevention the practice of religion of the person or persons who would otherwise be so restricted or prevented.”

2.8 Despite the above and the European Convention on Human Rights Act 2003 there is no commitment from the Irish State to ensure that the non-religious are equal before the law without discrimination and have the right to an effective remedy in practice and in law.

2.9 Recommendations:

• Give full effect to the human rights under the Covenant in domestic law.
• Amend Article 44, on Religion, to explicitly give equal protection without discrimination to religious and non-religious philosophical believers.
• Amend Article 40.1 on equality before the law with the principle of non discrimination.
• Remove the references to all authority coming from the Holy Trinity and our obligations to our divine Lord Jesus Christ (preamble); powers of government deriving under God from the people (6); the homage of public worship being due to Almighty God and the state holding his name in reverence (44); and the glory of God (closing line).

3. Article 18 – Freedom of Conscience

3.1 Religious Oaths – Under the Irish Constitution the President, judges and members of the Council of state are required to swear a religious oath. This is contrary to Article 18, Article 2 and Article 26. There is no option of taking a declaration. These religious oaths in the Irish Constitution are incompatible with the obligations of the State under the Covenant.

3.2 Recommendations:

• Remove the requirement for the President, judges and Council of State to swear a religious oath in the presence of Almighty God (Arts 12, 31, 34), and for the President and judges to ask God to direct and sustain them (12, 34).
• Replace these with a single neutral declaration that does not reveal any information about the person’s religious beliefs.

3.3 Education – Since the comments of the HRC in 2008 nothing has changed on the ground for minorities in the Irish education system. The Draft State Report does not deal with the comments of the Human Rights Committee in relation to the integrated curriculum and the failure of the state to protect the human rights of those parents seeking secular education for their children.

3.4 Opting out of religion in Irish schools is a theoretical illusion. The state has not put in place non-discriminatory exemptions or alternatives that would accommodate minorities. The state has no legal power to ensure that the state curriculum is delivered in and neutral and objective manner. In addition to this there is no access to an effective remedy to vindicate the human rights guaranteed under the Covenant.

3.5 Irish schools are not considered ‘organs of the state’ within the meaning of the European Convention on Human Rights Act 2003. Therefore the Irish courts are not obliged to interpret rights in a manner consistent with the European Convention or any judgement at the European Court of Human Rights. There is no effective remedy in Ireland to vindicate the human rights under the covenant of those parents that seek secular education for their children.

3.6 The Irish State absolves itself of the responsibility to educate and delegates this responsibility to private bodies and institutions. In essence private bodies and institutions (the majority are religious bodies) have control over the practical application of the human rights of minorities in the Irish education system and are not accountable to the courts for those human rights.

3.7 Human Rights in Irish schools are a theoretical illusion as no practical application is given to them on the ground. The Education Act 1998 has failed to protect to rights of children and their parents from discrimination. The recent Report on School A from the Ombudsman for Children shows clearly that the Ombudsman and the Dept of Education have not got the legal power to protect the human rights of children and their parents.4

3.8 New VEC Community Schools – The Irish State has informed the UN that these schools are Interdenominational. Minorities are still responsible for the supervision of their children if they opt them out of religious formation and ceremonies.

3.9 The Dept of Education has confirmed that the education for Catholic children in these schools will be on a denominational basis and exactly the same as they received in denominational schools. There is no legal guarantee that the curriculum will be delivered in an objective, critical and pluralistic manner.

3.10 In a Submission to the Forum on Patronage and Pluralism the Principals of these VEC schools state “that the separation of one subject in the curriculum – religious education – from all others, allocating it to the beginning or end of the school day is, we believe, educationally and philosophically suspect in the context of primary education.”

3.11 The Government claims that these New VEC Schools respect all religions and none. This simply is not the case as a recent document released under the FOI Act clearly shows that the state is breaching the human rights under the Covenant of parents who seek secular education for their children.

3.12 These schools believe that the convictions of secular parents are philosophically suspect. That does not constitute respect under Article 18 of the Covenant and consequently parents cannot ensure that the teaching of their children is in conformity with their convictions.

3.13 Access to schools without religious discrimination – In Ireland over 90% of primary schools are private religious schools as under the Irish Constitution the state ‘provides for’ education as opposed to ‘provide education’. There is no parallel system of non-denominational state schools. The Equal Status Act 2004 permits religious discrimination in access to schools.

3.14 On 15th March at the UN under the UPR Ireland rejected a recommendation to eliminate religious discrimination in access to education. The State claimed that they were opening up more non-denominational schools in Ireland. As it stands now there are no non-denominational schools registered with the Dept of Education so it is difficult to understand how the State could be opening up more. The Report from the Forum on Patronage and Pluralism states that there are no non-denominational secular schools in Ireland. We do not understand why the Draft State Report to the UN Human Rights Committee is claiming that the state is opening up more non-denominational schools. No denominational involvement in the governance of a school does not necessarily mean that a school is non-denominational.

3.15 In the State Report to the UN it is claimed that “religious freedom is a core element in our system at primary and secondary level.” This is simply not the case as the religious integrated curriculum and the discrimination that minorities suffer in the education system undermines human rights. These rights are freedom of conscience, the right to be free from discrimination, the rights of the child and the right to equality before the law.

3.16 Forum on Patronage and Pluralism – In the State Report (para 161 page 51) the Government refer to the Forum on Patronage and Pluralism. The Interim Report from the Forum was issued on the 17th of Nov 2011. Unfortunately this Report will not change anything on the ground for minorities as it did not deal with the failings of the Irish Constitution. It speaks about introducing protocols and non-statutory guidelines when secular parents want access to their human rights in practice and in law and the right to an effective remedy to vindicate their rights under the Covenant.

3.17 Recommendations

• Remove Section 7 3 (c) of the Equal Status Act 2000 to ensure that children have a guaranteed access to educational establishments without discrimination of any kind.
• Remove Section 12.4 and 37.1 of the Equality Acts which permit schools and hospitals to discriminate on the grounds of religion.
• Ensure that all children have equal access to a basic moral, intellectual and social education in schools (Art 42.3.2) and not one just permeated by religious values.
• Amend Section 15 of the Education Act 1998 to ensure that the curriculum in all schools is delivered in an objective, critical and pluralistic manner. Ensure that the rights of those parents seeking secular education for their children are recognised.
• Enact legislation to ensure that a common ethics course is an integral part of all B.Ed and Graduate Diploma programmes in the colleges for student teachers based on human rights and equality and also in accordance with the Toledo Guiding Principles.
• Reform the Governance of state funded teacher training colleges to remove the authority of religious bodies.
• Amend Section 40 of the Teaching Council Act 2001 to ensure that teacher education and training complies with Ireland’s obligations under the European Convention and the FCPNM.

4. Article 19 – Freedom of Expression – Blasphemy

4.1 Part V of the Defamation Act 2009 establishes a criminal offence which includes a prohibition of publishing or uttering blasphemous matter. Ireland introduced this law despite having informed the Venice Commission in 2007 that in general the legislation already in place provided adequately for these matters.5 The Council of Europe Commission on Democracy through Law (“Venice Commission”) called upon COE member states in 2008 to repeal their respective legislation on Blasphemy and that the offence of blasphemy should be abolished (which is already the case in most European States) and should not be introduced.

4.2 The UNHRC in their General Comment No. 34 stated that Blasphemy laws are incompatible with Article 19 of the Covenant. Despite this Ireland introduced a Blasphemy law in a country where the non-religious are second class citizens and do not enjoy the right to equality before the law without discrimination or the right to an effective remedy to vindicate their human rights.

4.4 The following information on Blasphemy was written by Prof David Nash of Oxford Brookes University for inclusion in Atheist Ireland’s submission.

Part V of the Defamation Act 2009 is a new law which defies almost all past precedent. It does not incorporate principles of English Common Law nor does it incorporate conventional hate crimes legislation. Therefore Ireland cannot claim margin of appreciation in seeking to maintain this law. Blasphemy law is a species of libel with no real rules of evidence or proof. Likewise it is an offence for which the Mens Rea assumptions of guilt are, and always have been very difficult to establish. An inclusive blasphemy law, which Ireland’s law seeks to be, is inadequate for protecting religions in conflict with one another, or apostates from more established forms of religion.

Blasphemy laws are arguably against Article 14 of the ECHR.This was recognised by the UK House of Lords Select Committee on Religious Offences (2003.) The legal criterion for recognition as a religious group is problematic and poorly defined. It is not inconceivable that an extended blasphemy law potentially enshrines religious protection for the act of blasphemy and does not protect society from its ramifications.

Particular Problems with the Blasphemy Provisions of the Defamation Act of 2009 include wording that is citing elements of degree to enact the offence, and the attempt to establish legitimate defences contain poorly defined concepts. The law of is substantially unwanted (there was no demand for it before its introduction), poorly drafted and contains innumerable legal and procedural problems. Ireland’s stance on the matter runs counter to what is occurring in other western countries and how its own actions no longer occur in isolation and convey signals to the rest of the world. This opinion is shared by the United Nations special Rapporteur on Freedom of Religion and Belief (Prof Heiner Beilefeldt).

4.5 Recommendations

• Irish Constitution: Amend Article 40.6.1 to remove the offence of blasphemy.
• Remove Section 36 and 37 of the Defamation Act 2009 (blasphemy offence).

5. Constitutional Convention

5.1 The Government has announced a Constitutional convention for Ireland. It has been
announced that the initial issues that this Convention will deal with are as follows: Review of the Dail electoral system; Giving citizens the right to vote at Irish embassies in Presidential elections; Provision for same-sex marriage; Amending the clause on the role of women in the home and encouraging greater participation of women in public life; Increasing the participation of women in politics; Removing blasphemy from our Constitution.

5.2 The Government does not intend to include civil society bodies in the Convention. It is unclear what, if any, subsequent topics will be selected for this Convention. It is clear that the State is not rushing to ensure that the basic human right to equality and non discrimination is enshrined in the Irish Constitution. The Constitutional Review Group Report in 1995 recommended change in Article 40.1 to bring it into line with our international obligations but this is not on the agenda of the Convention. The Irish State will continue to discriminate against the non-religious and treat us as second class citizens and deny access to an effective remedy to vindicate our human rights under the Covenant.

6. Conclusion

6.1 In Ireland equality before the law and equal protection of the law without religious discrimination is not guaranteed to the non-religious. There is no effective remedy to vindicate the human rights guaranteed under the Covenant. The Irish Constitution does not protect the non-religious from discrimination on the grounds of religion. This religious discrimination has undermined the basic right to freedom of conscience for the non-religious.

6.2 Ireland has failed to take measures to secure the human rights of the non-religious despite having agreed to guarantee human rights to all within its territory. It is clear that the Irish Constitution is incompatible with the human rights guaranteed under the Covenant and the rights guaranteed under the European Convention on Human Rights and Fundamental Freedoms. Human rights in Ireland are a theoretical illusion and not realizable in practice as the state is not committed to taking measures to ensure that these basic human rights are enjoyed by all.