Age of Criminal Responsibility to rise to 18?

Although the Bill of Rights Forum is still in consultative mode, they’ve had their first controversial leak (subs locked), with the news of a proposal to push the age of criminal responsibility from ten up to 16, with a further view of raising it to 18. That would push NI out of line with England ad Wales and the island. According to the Irish News, no child in the Netherlands can be prosecuted for a crime under the age of 16. But in the Republic the age is 12 and in Scotland 8 years. Beyond all the concerns about youth violence that are prevalent at the moment (the brutal slaying of one Polish man and the serious injury against his friend in west Dublin) about youth violence, such a proposal would have massive implications in terms of deployment of resources to compensate for the fact that no criminal action could be taken against anyone under 16.

It also raises interesting questions as to how the various working groups are coming to their conclusions. The fact that Sinn Fein, by far the most pro a formalised Human Rights agenda has said that it only wants the age raised to 14 (as does Allliance) and not 16, begs the question, how did the group settle upon 16?

There’s some suggestion that the NGOs on the Working Group wanted a maximal 18, and there may have been a splitting of the difference between the two. Even so, any political party proposing 16 or 18 would likely find its electoral support drying up very quickly.

And it doesn’t just have to find clear approval from the Northern Irish parties – ie the people would be charged with finding non criminal systems and approaches to deal with youth theft, burglary and violence against the person. To be viable any bill of rights (as outlined in the Belfast Agreement) must be broadly enactable in the Republic as well, where, if anything, the antipathy towards a Bill of Rights is even more pronounced amongst politicians than it is in Northern Ireland.

When a consultation document outlining the possible role of an all island Charter of Human Rights, was distributed to over 100 organisations, just three submissions were returned (two of them from SF and the Alliance Party). Maurice Manning warned then, in no uncertain terms, that for any draft legislation to have the least chance of success, it must appeal to politicians.

On the face of it, that appeal seems to have fallen on deaf ears.

  • overehere

    I can hear “hoodies” everywhere cheering and raising a bottle of alcho-pops, while their girlfriends go and buy another set of hoop ear-rings !!

  • George

    How can you administer justice if someone who knows exactly what they are doing is exempt from a criminal charge?

    So a 17-year-old “child” could not be guilty of rape and would not appear on a sex-offenders’ list?

  • Gerry lvs Castro

    Sounds completely mad. Is this being proposed by the ‘bring back punishment beatings’ commitee?

  • mags

    This madness is indicative of the general thinking of this group – a group that was not monitored as a “public appointment”, whose make-up was entirely decided on by the Sect of State and on which elected representatives don’t have a majority or any type of veto.

    This group does not speak for me or for any right thinking person I can think of.

    The suggestion of raising criminal liability is indicative of a “rights” based society with absolutely no obligations. Is anyone seriously suggesting that a 15 year old doesn’t know the difference between right and wrong? Doesn’t understand that he or she is committing a crime? Doesn’t have the capability of understanding the consequences of the theft, violence or rape? This is a bad joke. I just hope the Sect of State has the good sense to put this rubbish where it ought to be – THE BIN.

  • steve48

    Can I first say Mick that none of this is “leaked” as all of the relevant material is available on the Bill of Rights Forum website.

    I take it that this information has come from the Children and young peoples working group. I sat on the criminal justice and victims group which also considered the issue. Certainly myself for the UUP and the DUP rep opposed the raising of the age of criminal responsibility to 16 and thence to 18. On this working group the SDLP and SF wanted the level raised to 16 and then to 18.

    It has to be said that I found much of the process to date being driven by a human rights industry intent on making a name for itself in creating what in their terms is the exemplar bill of the rights for the world. The idea that the NI Bill of Rights would be the document that the UN and others would turn to in order to set human rights standards around the world pervaded much of the industry thinking.

    Should the Bill of Rights as currently outlined ever be established with judiciable oversight then democracy in Northern Ireland is over and the rule of judges has begun.

  • willowfield

    Serious question: what would the advantages be of raising the age of criminal liability?

  • Mark McGregor

    The report is here. Relevant pages 30-36.

  • Grassy Noel

    What mags said…

  • BonarLaw

    I wonder if any of the main movers in this suggestion have ever been to a Youth Court? If they had they would see the level of amoral and casual criminality some of out under 18’s exhibit.

    Perhaps they have done society a favour- by moving from the “aren’t rights wonderful” propaganda to unber-liberal specifics I suspect they have only harmed the agenda of their industry.

  • willowfield

    Thanks for that link.

    It seems the only rationale given is that the current age of criminal responsibility (10) “is among the lowest ages in Europe” and has been “severly criticised” by the UN Committee on the Rights of the Child (CRC).

    Unhelpfully, the UN Committee “requires states to establish a minimum age below which children shall be “presumed not to have the capacity to infringe the penal law” but does not state what this age should be”, although “In a General comment on children and the justice system (February 2007) the Committee on the Rights of the Child stated that setting the age below 12 was “not internationally acceptable” and praised states with the “commendable high age of 14 – 16””.

    Despite “14-16” apparently being commended and defined as “high” by the UN Committee, this Bill of Rights group concluded:

    “Bearing in mind the international standards and the negative and long lasting implications of criminalisation the Working Group arrived at 16
    as the new age of criminal responsibility with a view that this would be progressively increased to 18.”

  • willowfield

    Of the x members of this particular working group, two were opposed to increasing the age to 16 (with a view to raising it to 18): Roy Beggs (UUP) and Jenny Palmer (DUP).

    In favour were:

    Liam Larmour (Coalition on Sexual Orientation)
    Bronagh Byrne (Disability Action)
    Pip Jaffa (Parents [sic] Advice Centre)
    Lindsay Conway (Irish Council of Churches)
    Paddy Kelly (Children’s Law Centre)
    Sue Ramsey (Provos)
    Matthew McDermott (SDLP)
    Anna Lo (Alliance)

  • willowfield

    That should say “Of the 10 members of this group …”

  • Mike C

    It is perhaps slightly misleading to say that raising the age of criminal responsibility to 18 will result in those under 18 being let off free. What is envisaged is a child hearing system which involves the involvement of schools, parents, social workers and other professionals in addressing the reason behind the child’s criminal activity.

    that said I don’t agree with the proposal. I feel that in line with the Scottish system ciminal responsibility must remain especially for those most serious of offences.

  • steve

    Something similar was introduced to Canada and not to good results I might add. All it has seem to done in reality is encourage underage criminal activity as the penalties are minor and you turn 18 with a clean record

  • George

    The 2006 Criminal Justice Act in the Irish Republic may have raised the age of criminal responsibility from 7 to 12 but even then it put in an exception for children aged 10 or 11 who can be charged with murder, manslaughter, rape or aggravated sexual assault.

    This report doesn’t mention what you do with a 17-year-old serial rapist or cold-blooded murderer who in their eyes is not criminally responsible, never mind an 11-year-old.

    What do they mean when they say this type of person should be detained for the “shortest possible time”? How short is short?

    Why should someone be able to kill in cold blood on Monday and have a mitigating defence when it comes to sentencing of not being criminally responsible, but if they did the same thing on Tuesday one day older as an 18-year-old they would be treated completely differently?

    It’s basically saying, if you want to kill that f*cker do it today because if you’re caught you’ll be out in 2. If you do it tomorrow you’ll be out in 20.

    If you are not criminally responsible, then you always have a defence, regardless how heinous the crime. How that is a human right is beyond me.

  • willowfield

    Ridiculous to believe that a 15-, 16- or 17-year-old is not responsible for his or her criminal actions.

  • kensei

    I think 14 is a good number. People can say “well doesn’t a 14 year old know the difference between right and wrong” but they are ultimately still children: do they really understand the full force, and is putting them through the full criminal justice system going to help? If there is anyone that the system needs to work to rehabilitate rather than simply punish, it’s young people.

    Thing is though, I don’t believe this is at all appropriate for a Bill of Rights regardless. A Bill of Rights needs to protect fundamental rights – right to free speech, right to free trial, right to freedom of assembly etc which form the framework around which other laws are built. A strict enforcement of those rights might have big consequences, but there shouldn’t be that many of them, and they should be overly specific. It may or may not be worthy to have this a 16-18 but it seems to me the debate should be about a specific Bill for that, not the inappropriate place of a Bill of Rights.

    Also, Mick, the Republic is right to skeptical. It has a “Bill of Rights” – Bunreacht na hÉireann. We only need one because of the cack handed nature of the UK Constituion.

  • Do Gooder

    Interesting to see the comments in the Bill of Rights Forum Report…

    http://www.billofrightsforum.org/cyp_final_report.pdf

    Non Discrimination…
    “All members of the Children’s Working Group are agreed on the content of this provision however Roy Beggs, MLA (Ulster Unionist Party) is of the belief that the Equality Commission already sufficiently addresses non-discrimination and that immigration is an agreed matter which is therefore beyond the remit of the Working Group. On this point the Convenor of the Working Group reiterates the fact that the Bill of Rights is intended to be a long standing document and whilst immigration is currently an accepted matter this may not always be the case.”

    Best Interests of the Child…
    “All members of the Children’s Working Group are agreed on the content of this provision. Roy Beggs, MLA (Ulster Unionist Party) suggested that older children have responsibilities as well as rights and that the suggested provision might inhibit the ability of the Public Authorities to deal with anti social behaviour. The Working Group did engage in discussions early on in the process around balancing rights and responsibilities and chose to focus on protecting the rights of all children.”

    Family…
    “All members of the Children’s Working Group are agreed on the content of this provision however Roy Beggs, MLA (Ulster Unionist Party) believes that this right is incompatible with the ECHR which gives priority to parental rights. The Convenor explained that at the time of drafting the ECHR the rights of children had not yet been conceived and as such children no attention in the convention.”

    Education…
    “All members of the Children’s Working Group are agreed on the content of this provision with the exception of Roy Beggs, MLA, (Ulster Unionist Party) who felt that the provision went beyond the remit envisaged by the Belfast Agreement.”

    Healthcare…
    “All members of the Children’s Working Group are agreed on the content of this provision however Roy Beggs, MLA (Ulster Unionist Party) is of the belief that the provision goes beyond the remit envisaged by the Belfast Agreement and is concerned about the fiscal implications of such a provision.”

    Right to participate..
    “As above”

    Youth Justice…
    1 Every person under the age of eighteen years should be treated as a child for the purposes of the administration of criminal justice.
    5. No child under the age of 16 will be held criminally responsible. The Public Authority shall progressively increase the age of criminal responsibility to 18.
    Rationale
    In Northern Ireland the current age of criminal responsibility is 10 which is among the lowest ages in Europe a situation which has led to severe criticism from the United Nations Committee on the Rights of the Child (CRC)
    Bearing in mind the international standards and the negative and long lasting
    implications of criminalisation the Working Group arrived at 16 as the new age of criminal responsibility with a view that this would be progressively increased to 18.

    “All members of the Children’s Working Group are agreed on the content of this provision with the exception Roy Beggs and Jenny Palmer who are opposed to raising the age of criminal responsibility to 16 with progressive realisation to 18. Jenny Palmer was concerned that lowering the age of criminal responsibility would mean children who commit offences below this age do not have their offences recorded in a criminal record.
    It was explained that children who committed offences may not have a criminal record but their offences would be recorded elsewhere in educational, medical or social services records which would be accessible in a similar manner to current criminal records. Roy Beggs felt that whilst a review of youth justice policy may be needed to deal with particularly young offenders the Bill of Rights was not the appropriate place to address the issue since it does not fall within the remit envisaged by the Belfast Agreement.”

    I wonder does the general public/ man/woman in the street agree with RBJ or the ‘great and the good’ Sec of State quango-like appointees?????

  • willowfield

    We only need one because of the cack handed nature of the UK Constituion.

    We don’t need one: we already have the Human Rights Act.

    The “cack-handed nature of the UK constitution” already provides that the Assembly cannot amend the Human Rights Act, nor can it pass legislation contrary to it.

  • “skeptical”

    Sceptical for Christ’s sake!

  • kensei

    The “cack-handed nature of the UK constitution” already provides that the Assembly cannot amend the Human Rights Act, nor can it pass legislation contrary to it.

    And if it did, it would be declared incompatible and hand around like a bad smell, legally still in force, until the Assembly or Parliament decided what to do about it. Unlike, you know, cack handed countries.

    Had forgot about the ECR. Surely then this is just a matter of giving local expression to it, then.

  • willowfield

    And if it did, it would be declared incompatible and hand around like a bad smell, legally still in force, until the Assembly or Parliament decided what to do about it.

    I don’t think so: an Assembly act could be struck down, I think – only an Act of Parliament can’t be struck down.

    Had forgot about the ECR. Surely then this is just a matter of giving local expression to it, then.

    There’s no need for “local expression” – the rights apply here … locally!

  • BonarLaw

    kensei

    “Had forgot about the ECR. Surely then this is just a matter of giving local expression to it, then.”

    No, that was done via the Human Rights Act. The BoR is totally unnecessary and, as we now see, driven by a political agenda of the unelectable.

  • George

    Kensei,
    now it’s not like giving [removed]I assume you mean this Bill of Rights).

    The Irish Republic has the ECHR Act 2003 (which brings in the ECHR at a sub-constitutional level) but can still have the 2006 Criminal Justice Act saying the DPP has a discretion to try to have children under 14 tried as criminally responsible in certain instances.

  • BonarLaw

    kensei

    “And if it did, it would be declared incompatible and hand around like a bad smell, legally still in force, until the Assembly or Parliament decided what to do about it. Unlike, you know, cack handed countries.”

    Wrong. Willowfield is correct about the status of an Assembly Act:

    Northern Ireland Act 1998

    “(1) A provision of an Act is not law if it is outside the legislative competence of the Assembly.
    (2) A provision is outside that competence if any of the following paragraphs apply…
    (c) it is incompatible with any of the Convention rights…

    Prety much like, you know, a non-cack handed country.

  • kensei

    Chekov

    Sceptical for Christ’s sake!

    Thanks for that. No, wait, actually I don’t give a flying fuck,

  • willowfield

    You don’t give a “flying fuck” about not being able to spell?

  • kensei

    willow

    There’s no need for “local expression\” – the rights apply here … locally!

    The ECR is fairly unpopular in England; certainly among the right wing press and the Tory Party. The suggestion a while back (from the Tories, I think) was removing it and replacing it a Bill of Rights that remained compatible but was perhaps a little more focused to prevent the wilder consequences of the Act and to hopefully be more accepted because it was framed in a manner that dealt with local concerns.

    I don’t really have a problem with the EU Human Rights provisions, but seems like a sensible enough suggestion especially if you are already committed to going through the exercise.

    George

    Seems sensible. The Constitution should have primacy, after all.

    Bonar Law

    Prety much like, you know, a non-cack handed country.

    More than happy to be corrected on that point.

  • kensei

    willow

    You don’t give a “flying fuck” about not being able to spell?

    I can assure you any academic work I’ve submitted or any articles or letters I’ve had printed or any docs I’ve written in work have had as few as I can possibly manage. But on the internet in between trying to get some work done? No, not really. I care even less when it’s an American spelling my browser corrected it to because I autofixed a typo.

    If I knew it pisses people off, hell, I’d do more just for fun.

  • willowfield

    Kensei

    Don’t know what you’re getting at in respect of the ECHR supposedly being “fairly unpopular in England”. The reality is that the rights apply in Northern Ireland and cannot be amended or contravened by the Assembly. Furthermore, there is no prospect of the HRA being repealed or amended at Westminster, notwithstanding previous ill-informed comments by some in England (which were quickly dropped).

    I don’t really have a problem with the EU Human Rights provisions, but seems like a sensible enough suggestion especially if you are already committed to going through the exercise.

    Not sure what this means, but I’m glad you don’t have a problem with human rights!

    Are you saying you don’t see a need for a “bill of rights” in NI (or for that matter ROI) additional to what we already have? If so, we are in agreement.

  • joeCanuck

    “I wonder if any of the main movers in this suggestion have ever been to a Youth Court? If they had they would see the level of amoral and casual criminality some of out under 18’s exhibit.”

    Well I’m not any sort of a mover, Bonarlaw, but I have attended Young Offenders Court (Canadian terminology) and what you say is perfectly true; ” some..” are scofflaws.
    There are huge numbers also who do stupid things as young folk are apt to do and, for a single relatively minor offence, I’m totally in favouro of having the slate wiped clean when they turn 18.
    In Canada, for serious offences such as rape and murder, a Judge can rule that the young person be tried as an adult.

  • George

    Kensei,
    I don’t really have a problem with the EU Human Rights provisions

    The ECHR has nothing to do with the EU, it’s a Council of Europe invention, although as an EU member you have to be signed up to the convention.

  • Big Bird

    Sue Ramsey (Provos) **
    Matthew McDermott (SDLP)
    Anna Lo (Alliance)

    Posted by willowfield on Feb 27, 2008 @ 02:03 PM

    Willowfield (dick)

  • fair play

    Don’t know what you’re getting at in respect of the ECHR supposedly being “fairly unpopular in England”. The reality is that the rights apply in Northern Ireland and cannot be amended or contravened by the Assembly. Furthermore, there is no prospect of the HRA being repealed or amended at Westminster, notwithstanding previous ill-informed comments by some in England (which were quickly dropped).

    posted by willowfield

    To constitute a BoR, was part of the belfast agreement, and st andrews agreement, and is to include rights that are supplementary to the ECHR. The BoR will be introduced to westminister legislation, and will be implemented and enforced in conjunction with the HRA, and will include rights that take into account the “Particular circumstances” of ni.

  • BonarLaw

    fair play

    what are our “Particular circumstances” that allow our criminal under 18’s to avoid criminal liability? Why should a Buckfast sozzled scrote in Belfast be treated any different to his Glaswegian counterpart?

  • Turgon

    If the age of criminal responsibility were raised to 18 would people be able to drive and get married but not be criminally liable? What an excellently silly idea.

  • joeCanuck

    For some reason I am reminded of an apparently true case years ago. A judge was questioning a youngster to determine if he was competent to testify in, I think, a divorce/custody case.
    “Do you know what will happen if you tell lies?”, asked the Judge.
    “Yes”, said the kid, “Mom said we would win”.

  • Ken,

    I can see how your point stands. These recommendations have the virtue of being direct, to the point (and if they ever got to law) enforceable.

    As for the Bunreacht, try Chapter XII (fundamental rights), and tell me what’s in there that’s in the ECHR? For instance, Article 45.2 (under directive principles of social policy):

    The State shall strive to promote the welfare of the whole people by securing and protecting as effectively as it may a social order in which justice and charity shall inform all the institutions of the national life.

    These are not enforceable rights (unless the Supreme Court finds cause to pick a fight with the Government), in reality they are relatively passive guidelines for the Oireachtas.

    The truth is this territory is covered in both states with broadly similar acts of parliament translating the bits they wanted from ECHR into domestic law. This issue of a written versus an unwritten constitution is surely then, under these particular circumstances, a red herring?

    Which begs another question: what exactly is a bill of rights for? In the Belfast Agreement it was suggested it should address needs specific to Northern Ireland. In which case, what is the NI specificity around the issue of the ‘age of criminality’.

  • willowfield

    Fair play

    To constitute a BoR, was part of the belfast agreement, and st andrews agreement, and is to include rights that are supplementary to the ECHR. The BoR will be introduced to westminister legislation, and will be implemented and enforced in conjunction with the HRA, and will include rights that take into account the “Particular circumstances” of ni.

    Yeah, we know that already, but I’m still of the view that we don’t need a “bill of rights” additional to what we already have. What additional rights do we need that are “particular to the circumstances of NI”?

  • George

    Mick,
    These are not enforceable rights (unless the Supreme Court finds cause to pick a fight with the Government), in reality they are relatively passive guidelines for the Oireachtas.

    The Supreme Court can do absolutely nothing regarding Article 45 provisions. The Bunreacht states:

    “The principles of social policy set forth in this Article are intended for the general guidance of the Oireachtas. The application of those principles in the making of laws shall be the care of the Oireachtas exclusively, and shall not be cognisable by any Court under any of the provisions of this Constitution.”

    There are no fundamental rights in Article 45. As an Irish citizen, you cannot claim a breach of rights under Article 45 as you have none. They are merely used occasionally by the courts to illuminate other constitutional provisions such as “exigencies of the common good” in Article 43.

    The fundamental rights are enshrined elsewhere in the Bunreacht and the fact that so few Irish cases came before the ECHR over the years is evidence that virtually all ECHR rights were already covered by the unenumerated fundamental rights protected by the Bunreacht.

    The UK had no real human rights dimension to its law before the 1998 Act which is why there have been countless UK cases taken to Strasbourg.

    Ireland’s Constitutional provisions meant that very few Irish cases ended up at the ECHR as the Bunreacht had already generated an extensive human rights case law.

    Also, if the Bunreacht does happen to resist a right enshrined by the ECHR, then the ECHR cannot overcome this. It cannot be used to declare Irish law invalid.

  • Danny O’Connor

    What a crock of shi*e ,There used to be a saying that a camel was a horse designed by a committee.
    The people who are wanting to lower the age of consent to 16 because 16 year olds are mature enough to become parents themselves yet they will not be responsible for committing a crime that will be dealt with through the criminal justice system.You can drive a car at 17 but you wont be held accountable under the cj system if you kill someone by dangerous driving.
    Remember the toddler James Bulger who was tortured and murdered by other children.
    Ask yourself the question -at what age did I know right from wrong in any given situation?
    Kids are not all as stupid as people think.I can imagine the laughs of these kids who will be outside the law ,telling each other how much of a pushover their social worker is and how they get taken to the seaside for ice creams and generally pampered and told how it’s not their fault because they came from a poor family or some other reason.
    More ads in the papers”social workers , psychiatrists, and general do-gooders with no concept of reality required”

  • kensei

    will-oh

    What I was getting at was that the ECHR can be seem as illegitimate, particularly when Human Rights law is used to overturn controversial cases. Thus translating it into a local form has the benefit of hopefully giving more acceptance, and keeping more cases in local courts.

    There is also no guarantee that a Tory government in power will not seek to repeal the HRA.

    Mick

    As for the Bunreacht, try Chapter XII (fundamental rights), and tell me what’s in there that’s in the ECHR? For instance, Article 45.2 (under directive principles of social policy):

    I thought you’d bring that up :). As George said, there are no rights to be enforced. I think there may have been a Supreme Court ruling on it, but not 100% sure. Bunreacht could do with a bit of spring clean to my mind, particularly in an age where Ireland has lots of immigrants coming in it would be good to have a common point of reference for rights and responsibilities for everyone, much like how the US Constitution can be used.

    The truth is this territory is covered in both states with broadly similar acts of parliament translating the bits they wanted from ECHR into domestic law. This issue of a written versus an unwritten constitution is surely then, under these particular circumstances, a red herring?

    No. See George above.

    Which begs another question: what exactly is a bill of rights for? In the Belfast Agreement it was suggested it should address needs specific to Northern Ireland. In which case, what is the NI specificity around the issue of the ‘age of criminality’.

    I think it should be solely to elucidate fundamental rights. Otherwise it should be within the bounds of normal law. In which case, I’d see the exercise as putting a local flavour on the ECHR, and hopefully keeping things in the local courts. You might also want to collect up all the various anti-discrimination laws we have into a single bill.

    So I think the aim should be to have it fairly short, easily understandable, and read.

  • kensei

    I should add – the US Bill of Rights only runs to ten articles, and it’s exemplar. Aside from the 2nd, which I don’t like (I await one of the US posters calling me a slave). Look at the first:

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

    Two lines, but look how much it covers.

  • willowfield

    What I was getting at was that the ECHR can be seem as illegitimate, particularly when Human Rights law is used to overturn controversial cases.

    Do you think the ECHR is illegitimate?!

    If the ECHR can be seen as illegitimate, surely that is an argument for reducing the amount of human rights rather than creating more in a NI bill of rights!

    Thus translating it into a local form has the benefit of hopefully giving more acceptance, and keeping more cases in local courts.

    1. How would it be “translated into local form”? What would this mean?

    2. Cases are already heard in local courts: that was the whole point of the HRA.

    There is also no guarantee that a Tory government in power will not seek to repeal the HRA.

    There’s never any guarantee, but it is highly unlikely. Just like there is no guarantee that FF wouldn’t repeal the equivalent in the ROI, or the people wouldn’t amend the constitution to remove rights therein.

    I think it should be solely to elucidate fundamental rights. Otherwise it should be within the bounds of normal law.

    What do you mean by this?

    In which case, I’d see the exercise as putting a local flavour on the ECHR, and hopefully keeping things in the local courts.

    Things are already in the local courts with the ECHR, so what do you mean by “putting a local flavour” on it?

    You might also want to collect up all the various anti-discrimination laws we have into a single bill.

    That can be done anyway – indeed, I believe there were plans to do so – the Single Equality Bill. It wouldn’t be a bill of rights and it certainly wouldn’t be a short document as you suggest.

  • kensei

    will-argh

    Every time you post, I remind myself of this: http://xkcd.com/386/ and pull back.

    I think it should be fairly clear what type of document I envisage. The ECHR gives certain latitude to individual states, you might wish to specifically elucidate unenumerated rights you feel are appropriate to local circumstance, or ensure those that are cannot be applied in totally blanket fashion. This debate raged a while back in England about a year and a half ago, plenty of examples of the more wacky uses of the HRA, if you are interested google is your friend.

  • the US Bill of Rights only runs to ten articles

    I quite like the Bill of Rights and agree with you that these sorts of documents should be as concise, unambiguous and accessible as possible BUT it’s worth remembering that slavery didn’t end until 65 years after the Bill of Rights came into force (after it ended in autocratic Europe), and state mandated segregation didn’t end until 165 years after the Bill of Rights came into force.

    If the age of criminal responsibility were raised to 18 would people be able to drive and get married but not be criminally liable?

    Even more silly, the same people who are so gung ho about raising the age of criminal responsibility to 18 also are the first to demand votes at 16. So, on Planet NSPCC, 17 year olds can vote to start wars, but not to fight in them, or be held responsible for any war crimes they might commit during their prosecution.

  • DK

    Kensei,

    That quote of the first line of the US bill of rights outlines what our NI bill of rights should be. Instead of the bill trying to change existing law (e.g. the proposal to raise the criminal age to 18), it should be a framework to prevent future infringements (such as preventing the age of criminal responsibility being lowered below e.g. 13).

    So, to take a nice NI example, would a NI bill of rights enshrine the right to free assembly – only for the Portadown Orangemen to use it to overturn the parades commission and march down the Garvachy road?

  • willowfield

    Kensei

    I think it should be fairly clear what type of document I envisage.

    No: you haven’t explained how such a document would differ to what we already have, i.e. the HRA. You’ve talked about “translating the ECHR into local form” and having cases heard in local courts, but the whole idea of the ECHR is that it is universal, and under the HRA cases are already heard in local courts. Can you explain?

    The ECHR gives certain latitude to individual states

    Really? Such as?

    , you might wish to specifically elucidate unenumerated rights you feel are appropriate to local circumstance,

    Such as?

    or ensure those that are cannot be applied in totally blanket fashion.

    What does this mean? No right under the ECHR or HRA can be applied in a “totally blanket fashion”: all rights are conditional.

    This debate raged a while back in England about a year and a half ago, plenty of examples of the more wacky uses of the HRA, if you are interested google is your friend.

    Those examples were all shown to have been examples of stupid advice, e.g. the police who didn’t publish the photograph of a suspect – that was subsequently rubbished.

    But are you actually saying that a NI bill of rights should be less extensive than the ECHR? That could not be possible.

    DK

    That quote of the first line of the US bill of rights outlines what our NI bill of rights should be. Instead of the bill trying to change existing law (e.g. the proposal to raise the criminal age to 18), it should be a framework to prevent future infringements (such as preventing the age of criminal responsibility being lowered below e.g. 13).

    The NI Assembly is already prevented from legislating in contravention of the ECHR.

  • BfB

    Must be trying to copy the US model, where the libtards protect the criminals and attack the victims. Victims is the operative word here btw. How many instances of ‘victim’ appear in this little massage ?

  • kensei

    So, to take a nice NI example, would a NI bill of rights enshrine the right to free assembly – only for the Portadown Orangemen to use it to overturn the parades commission and march down the Garvachy road?

    No, the OO would retain the right to Free Assembly, just not right at that spot, right that particular time. Even in the US protesters can be funnelled to a particular point.

    But I’d certainly be happier if they were arguing on Constitutional rights, a la the US.

    willow

    Generally, don’t care.

    But are you actually saying that a NI bill of rights should be less extensive than the ECHR? That could not be possible.

    I think that isn’t strictly true. Not all rights contained in the ECHR are Absolute rights:

    http://www.oup.com/uk/orc/bin/9780199289349/davis_chap02.pdf

    The Convention secures different freedoms in different ways.
    • Absolute rights. The Convention aims to secure some freedoms by imposing duties on states
    that must be performed in all circumstances. In particular, the freedom must be secured even
    if there are strong public interests or rights of others that would be served or protected if the
    duty was not performed. The right not to be tortured, in Article 3, is the best example.
    • Limited rights. Some Convention Articles seek to secure a particular freedom by asserting it in
    general terms and then identifying the only circumstances in which it can be limited. Thus Arti-
    cle 5 asserts the right to personal liberty and then goes on to itemise the only circumstances
    in which it is legitimate to limit it, for example by imprisonment after conviction for an offence.
    • Restrictable rights. Articles 8, 9, 10 and 11 provide rights to private life, freedom of belief, free-
    dom of expression and freedom of association and assembly. In all four instances it is easy to
    think of examples in which, in order to protect the rights of others or to protect a public inter-
    est, it is perfectly proper and legitimate to use the law to restrict the exercise of these freedoms.
    This is recognised in the Convention. For example, there is no serious objection to restricting
    freedom of speech (especially of the media) in order to protect the fairness of trials (though
    there is likely to be major disagreement on precisely how extensive these restrictions should
    be). As we shall see, each of these Articles allows the freedom they deal with to be restricted
    if it is done lawfully, if the restriction serves a legitimate purpose and if the restriction is necessary and is no more than a proportionate burden on the individual affected.

    I think that leaves latitude on Restricted and Limited Rights.

  • BonarLaw

    kensei

    “Not all rights contained in the ECHR are Absolute rights”

    so are you saying our local add-on should grant absolute rights?

  • willowfield

    Kensei

    No, the OO would retain the right to Free Assembly, just not right at that spot, right that particular time.

    And how does that differ to the current position under the HRA?

    Generally, don’t care.

    About what?

    “But are you actually saying that a NI bill of rights should be less extensive than the ECHR? That could not be possible.”
    I think that isn’t strictly true. Not all rights contained in the ECHR are Absolute rights

    Yeah, I know – I already said above that they were all conditional!

    So – given that they are already conditional, how would a NI bill be less extensive than the ECHR?

    Could you explain what you mean by “translating the ECHR into local form”?

    And what is the “certain latitude to individual states” given by the ECHR?

    What “unenumerated rights” do you think need to be “specifically elucidated” in a NI bill of rights?

  • kensei

    Bonar

    so are you saying our local add-on should grant absolute rights?

    Not necessarily, though it’s an option – wiki suggests the UK did not ratify the discrimination Protocols. I was more thinking of making more clear where restricted rights end – certainly that would be relevant with regard to freedom of association.

    But to be honest, sorry I got into this one. I more have in mind something along the lines of the US Bill of Rights, which neither a Bill of Rights here or the ECHR really does; despite the HRA, they can still set ridiculous detention limits or keep DNA of people who haven’t been convicted or propose ID Cards. That suggests to me that whatever protections we have are insufficient or not working right. The US Bill of Rights is fairly straightforward but can kill things incompatible with it fairly quickly.

    I do think that even if nothing new was added if you could get what is currently in the ECHR into a from that is shorter and could be more easily disseminated then it would be a move forward. In the US, its Constitution is known, liked and people are protective of it. If we have a Bill of Rights, that’s where we should be. I don’t think it should be about what are in effect, policy proposals.

    willow

    I have no desire to spend the next 5 pages with you quoting every bloody line and going “Why? Why? Why?”. As I said, sorry I got into this, which is common when you appear. You might want to be a little more informed if you are going to have debates, though.

    And what is the “certain latitude to individual states” given by the ECHR?

    http://en.wikipedia.org/wiki/Margin_of_appreciation

    I’d suggest that if you have your own implementation of the ECHR, Strasbourg would be inclined to give more room.

  • willowfield

    Kensei

    I have no desire to spend the next 5 pages with you quoting every bloody line and going “Why? Why? Why?”.

    Nor me: which is why it would be useful if you took more time to explain your proposals so that others may understand them.

    I’d suggest that if you have your own implementation of the ECHR, Strasbourg would be inclined to give more room.

    The ECHR applies. Full stop. There is a margin of appreciation in how it is implemented in detail: that happens already in the absence of a bill of rights, so do you mean that a bill of rights should provide the detail of how some of the Convention rights are applied in Northern Ireland? That makes sense, I guess, but then surely you end up with a more complicated document, which is the opposite of what you seem to want? To do so would essentially mean taking existing case law, for example, and turning it into statute.

    You still haven’t explained what you meant about “localising” the ECHR and having cases heard in local courts (given that cases are already heard in local courts).

    Nor what “unenumerated rights” you think need to be “specifically elucidated” in a NI bill of rights. It would be helpful if you could provide some examples.

  • kensei

    willow

    I not a politician, I don’t have proposals. I have given examples above already and stated how I think I’m getting away from what I really want anyway. You are right that the HRA means cases are dealt with locally, I was talking out of my hat. It happens. Saying that the ECHR applies full stop is an essentially meaningless statement; otherwise there would be no need for lawyers and the world would have more rainbows and hand holding.

    I don’t believe setting out fundamental rights on discrimination or laying out more clearly restrictions on current rights more clearly is necessarily complicated nor do I think it can take the place of more detailed legislation: it isn’t really the point of it. I think there may be a little value in setting these things down ourselves in terms of having more control of exactly where the bounds are, as opposed to Europe, but also simply a wider value in simply setting in our own words and having people more aware of them, particularly with regards to a sense of civic responsibility and belonging. I’m very much a small-r republican, and given the chances of a codified constitution is slim to none short of a United Ireland, this gives a chance to fill some of the gap. I don’t agree with using the process to present potentially worthy proposals that are policy rather than fundamental rights.

    You might disagree with some or all of that, but I think it’s fairly clear. I have no desire to debate the relative merits of a codified vs uncodified constitutions or Britain vs the US or Ireland: we simply won’t agree.

  • Nice cartoon ken. Must show that to my nearest and dearest.

  • willowfield

    Saying that the ECHR applies full stop is an essentially meaningless statement; otherwise there would be no need for lawyers and the world would have more rainbows and hand holding.

    No: what I meant is that the ECHR applies whether or not we have a bill of rights. The bill of rights will make no difference to that.

    I don’t believe setting out fundamental rights on discrimination or laying out more clearly restrictions on current rights more clearly is necessarily complicated nor do I think it can take the place of more detailed legislation: it isn’t really the point of it.

    So you’re saying the bill of rights should just reiterate what is already the law, but in a more general way?

    I don’t agree with using the process to present potentially worthy proposals that are policy rather than fundamental rights.

    Nor me.

  • kensei

    Sammy

    Missed this one.

    I quite like the Bill of Rights and agree with you that these sorts of documents should be as concise, unambiguous and accessible as possible BUT it’s worth remembering that slavery didn’t end until 65 years after the Bill of Rights came into force (after it ended in autocratic Europe), and state mandated segregation didn’t end until 165 years after the Bill of Rights came into force.

    I know, but when I look at the US, I think that every time they’ve made a complete balls up like segregation or slavery, one of the reasons they’ve been able to pull away and correct it is the respect and faith held for their Constitution. The ideas within are so powerful and so eloquently expressed that eventually they force change.

    If we ever do get a United Ireland, the aim should be to produce a Constitution that every Irishman is as proud of as the US is of theirs. Bunreacht is a good document, but I don’t think it has the same sort of importance the US Constitution does there, nor is it as elegant.

  • My son is making his First Confession next week – the age of reason for sin is recognised to be at about 7 or 8. Most parents will tell you that at about a year old, when kids are crawling, they start to look over their shoulders before attempting to open cupboards or drawers in the kitchen. By the age of two they know the only correct answer to a parent saying “what are you doing?” is “Nothing!”.

    Raising age of criminal responsibility to 16 or 18. Total crock. By all means have special court procedures to take account of their situation, and take account in sentencing of their age and degree of neglect by parents, but to pretend they aren’t responsible beggars belief. Usual suspects support it to.

  • kensei

    So you’re saying the bill of rights should just reiterate what is already the law, but in a more general way?

    No. I think it should state a right that can kill bad law, without necessarily going into detail. And bear in mind that Rights tend to relate to the relationship between the state and the individual.

    Mick

    Nice cartoon ken. Must show that to my nearest and dearest.

    I am not responsible if you flick all day through xkcd at random 🙂 Some great ones in there.

  • George

    Kensei,
    Bunreacht is a good document, but I don’t think it has the same sort of importance the US Constitution does there, nor is it as elegant.

    The 71% of this island’s population who live with it as the base law of their country law might differ with you on that one.

    It’s a document that has served our country well, taking the best from many other constitutions, including the American one.

    The Australians looked at it in detail when considering their own constitution, while South Africa has also borrowed from it.

    It is the only constitution in Europe that was able to be interpreted in a way that guaranteed its people had a right to vote in referendums on things of national importance such as the Lisbon Treaty.

    And even though it was written as far back as 1937 it pretty well covered the fundamental rights of the ECHR.

    We like it just fine and would be loath to see the northern tail wail the Irish dog.

    Especially, if this criminal responsibility at 18 Bill of Rights mularkey is anything to go by.

  • willowfield

    Kensei

    No. I think it should state a right that can kill bad law, without necessarily going into detail.

    How would that differ from the NI Act 1998 which provides that a law contrary to the HRA is not law.

  • kensei

    The 71% of this island’s population who live with it as the base law of their country law might differ with you on that one.

    It’s a document that has served our country well, taking the best from many other constitutions, including the American one.

    Don’t get shirty. I like Bunreacht. I don’t disagree it’s a good document and it has been amended sensibly.

    But I don’t think it’s a complete classic. As Mick points out, there is a fair bit of clutter left over from the politics of the time. It mentions the Trinity and Jesus. I believe there are Jews and Muslims among others in Ireland now, George. Oh and sexism. It is by no means as eloquent as the US Constitution. And the Senate could do with reform, which would require Constitutional amendment, AFAIK.

    We like it just fine and would be loath to see the northern tail wail the Irish dog.

    Are you saying that Bunreacht could not be improved on? Are you equally suggesting that Unity wouldn’t be an appropriate time to try and do it? You don’t believe that would help the cohesion of a new state?

    Especially, if this criminal responsibility at 18 Bill of Rights mularkey is anything to go by.

    I don’t believe I was suggesting anything like that, and I don’t believe that there’d be much support. I’ll be shocked if this isn’t killed.

  • George

    Kensei,
    It mentions the Trinity and Jesus. I believe there are Jews and Muslims among others in Ireland now

    Indeed there are and their rights to free practice of religion are covered by Article 44. But does their presence in Ireland mean Ireland is no longer a Christian country? Should it? Do you think there would be a majority for removing the Christian God from an all-island Constitution?

    Personally, I doubt there is a majority in favour of removing a Christian God from an all-island Constitution.

    “Oh and sexism. It is by no means as eloquent as the US Constitution. And the Senate could do with reform, which would require Constitutional amendment, AFAIK.”

    Is this what you find sexist:

    “the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.

    The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.”

    An open constitutional interpretation would mean that if a man’s life is within the home he would be the mother.

    Or is it the constitutional protection of the family itself that you find sexist?

    Again I doubt if you would get a majority on this island in favour of removing that one.

    If you want to talk about sexism, the only mention of women in the US Constitution is the amendment giving them the vote.

    Are you saying that Bunreacht could not be improved on? Are you equally suggesting that Unity wouldn’t be an appropriate time to try and do it? You don’t believe that would help the cohesion of a new state?

    What I am saying is that the Republic would constitute over two-thirds of any new State. It would be the dominant partner, demographically, economically and politically.

    I don’t believe I was suggesting anything like that, and I don’t believe that there’d be much support. I’ll be shocked if this isn’t killed.

    While I fully accept that you don’t stand behind this crazy idea, these type of things aren’t new.

    Lots of other ones have been floated over the years from north of the border that make me very wary.

    The Irish State works, economically, politically, culturally and socially, as it is.

    We can attract people and investment from all over the world the way we work now and need a good excuse and reasoned arguments to change it.

  • kensei

    Indeed there are and their rights to free practice of religion are covered by Article 44. But does their presence in Ireland mean Ireland is no longer a Christian country? Should it? Do you think there would be a majority for removing the Christian God from an all-island Constitution?

    Ireland may be a Christian country, but I don’t think the State should be picking sides on God. Ever. I think the United Irishmen would have drafted something closer to America’s, I think it’s closer to a true Republican ideal and as an Irish citizen I think that’s what we should pursue. Of course, I’d have to get the agreement of a majority.

    I don’t think there would be a majority if you merely had an amendment to remove it, but it would carry if packaged with other things. Like if you had a new Constitution for a unified state.

    An open constitutional interpretation would mean that if a man’s life is within the home he would be the mother.

    Or is it the constitutional protection of the family itself that you find sexist?

    Nope. But the fact you are twisting yourself in knots to have the father as the mother says to me it’s outdated. Moreover, it carries no force and is therefore redundant.

    Again I doubt if you would get a majority on this island in favour of removing that one.

    Oh, I believe you could probably carry that one with ease.

    If you want to talk about sexism, the only mention of women in the US Constitution is the amendment giving them the vote.

    The US Constitution is also imperfect however it does tend to prefer “the people”. It was also drafted in less enlightened times.

    What I am saying is that the Republic would constitute over two-thirds of any new State. It would be the dominant partner, demographically, economically and politically.

    It wouldn’t be “a partner”. The state would be unitary. All equal. Of course, during the drafting process the politicians of the Republic would likely carry more weight with a bigger mandate, and nothing could pass without a majority of those in the 26 counties. I’m not suggesting something unacceptable to the South, simply something acceptable to all citizens of the new state, and it should be the best shot we are capable of in the 21st Century and we should strive to make people as proud of it as America is of theirs.

    While I fully accept that you don’t stand behind this crazy idea, these type of things aren’t new.

    Lots of other ones have been floated over the years from north of the border that make me very wary.

    The Irish State works, economically, politically, culturally and socially, as it is.

    We can attract people and investment from all over the world the way we work now and need a good excuse and reasoned arguments to change it.

    Until recently, the Republic has been a fairly mono-cultural state. The defining points of Ireland and Irishness have been straightforward and relatively static. We are moving into an age where there is an influx of new immigrants that is going to change those dynamics and force Ireland to confront issues and problems she has largely avoided until now. The Constitution can act as an important reference point for all citizens, regardless of creed, race, gender and the rest. This goes doubly if you inherit almost a million people unsure of their allegiance.

    Bunreacht guarantees basic rights and the functioning of the state well, and will continue to do so in the future. But can it act as a rallying point in the way the US Constitution does? Does already occupy that position? I’m not so sure it does. So sensible updating and amendment might help it fulfil that purpose. I wonder if that needs to be done organically form the founding of a state, though, so in the event of unity seems an appropriate point.

  • George

    Kensei,
    Ireland may be a Christian country, but I don’t think the State should be picking sides on God.

    I’m not particularly pushed either but I think this is one constitutional change you’d have difficulty getting through, even in an overall package. I reckon there is a majority north and south in favour of having God in.

    Nope. But the fact you are twisting yourself in knots to have the father as the mother says to me it’s outdated. Moreover, it carries no force and is therefore redundant.

    A Constitution is a living document and judges do this type of thing all the time. Look at the amount of rights they pulled out of the unenumerated hat.

    But the Constitutional Review Group agrees with you and has suggested the following change:

    “The State recognises that home and family life gives to society a support without which the common good cannot be achieved. The State shall endeavour to support persons caring for others within the home.”

    In the end, this wouldn’t affect rights (as they have proved themselves to be limited under this provision already).

    Until recently, the Republic has been a fairly mono-cultural state. The defining points of Ireland and Irishness have been straightforward and relatively static.

    I think that is an easy view to take. The changes over the last 50 years south of the border have been huge. Maybe they only started appearing to the outside world in the 80s and 90s but the changes were happening thick and fast for 20 years before that.

    It’s probably just that the changes of the last decade have dwarfed them. After all, Ireland has taken in more immigrants per capita in the last four years than the UK has in the last 40.

    It will be interesting to see how it holds up to looking after the rights of what are called the “New Irish”.

    If it fails to do so then a major overhaul will be inevitable. We will know in the coming years.

    Bunreacht guarantees basic rights and the functioning of the state well, and will continue to do so in the future. But can it act as a rallying point in the way the US Constitution does? Does already occupy that position? I’m not so sure it does.

    We don’t do rallying as well as the Americans, I agree, but I do think it is treasured to a much higher degree than you might think.

    Perhaps one problem is that Irish people aren’t as aware of its provisions and importance as Americans seem to be of theirs.