Tag: 1937 constitution

“Conscience” and the marriage referendum

Each time an Irish government proposes to introduce new rights for gay citizens opponents call for the right of service providers to discriminate against those citizens. They call this a “conscience clause”, which is surely a misnomer but sounds better than a “permissible discrimination” exemption.

Strangely, this is an argument which it appears must be had repeatedly. I wrote about it at the time of the Civil Partnership Bill and that post applies equally to the marriage referendum. In short: the Equal Status Act prohibits discrimination against people on the basis of sexual orientation. It was introduced fifteen years ago and it does not include a “conscience clause” (there is a limited “ethos” exemption for schools run by religious organisations). A “conscience clause” was not permitted in the Equal Status Act or the Civil Partnership Act. Why should marriage be any different?

The religious beliefs of citizens also benefit from protections and the State should not offend against those rights. But the State is entitled to insist that businesses providing services to the public respect its equality laws. The difficulty with providing an exemption from equality legislation on the basis of religious beliefs is that it would allow the law of the State, applicable to all, to be subverted by the private beliefs and opinions of self-defining groups. Indeed, if a “conscience clause” were introduced, there is no reason why it shouldn’t protect political beliefs as well as religious beliefs.

Today William Binchy is concerned that gay couples might sue a church for refusing to perform a same sex religious marriage ceremony. This is a strange concern to have. I have yet to hear of divorced people suing churches for refusing to perform a marriage, for example, but the same principles apply. Even if Mr Binchy’s fear was realised, it would mean that civil marriages would have to be registered separately from religious ceremonies. This would not require churches to perform same sex marriages.

It is striking that calls for a “conscience clause” only seem to arise in the case of gay rights. One does not hear the Iona Institute and other groups opposing the marriage referendum advocating on behalf of bakers and stationers forced to provide services to single mothers, divorcees or atheists. If one were to introduce a “conscience clause” it would have to apply to all categories of persons who benefit from protection under the Equal Status Acts and would open the gates to a wide and unpredictable range of subjectively permissible discrimination that would entirely undermine the purpose of equality legislation. Any conscience clause limited to gay rights would, in itself, constitute discrimination.

Update on plain packaging

Further to my recent post about the submissions of the Law Society on plain packaging of tobacco products to the Oireachtas Joint Committee on Health and Children, the below letter was sent yesterday by a number of solicitors to that Committee.

Challenging court closures

A few years ago there were concerns, which sometimes resurface, that the Courts Service might close the District Court in Newcastle West and transfer its sittings elsewhere. The only logical venue would be Limerick city, which would raise a number of problems for the Courts Service, lawyers and their clients.

It appears unlikely, at least for now, and in the past year some areas have been added to the Newcastle West district. Court sittings have also been reorganised. Other districts have not been so lucky and have lost out on their local court house.

The West Cork Bar Association has recently been granted leave by the High Court to challenge the closure of the court in Skibereen.

The West Cork District Court area extends from Kinsale westwards as far as Castletownbere. In recent years, there has already been seven local courts closed by the Courts Service in the West Cork area, the most recent being Kinsale District Court which sat for the last time on December 19.

The West Cork Bar Association issued a statement yesterday saying solicitors were concerned court closures were seriously eroding access to justice for people living in the region. The organisation said that if more closures were allowed to proceed, the people of West Cork would face travelling long distances to Cork City to deal with district court matters, when under the Constitution, the State has to provide courts of local and limited jurisdiction.

Solicitors pointed out that vulnerable citizens, who require the urgent assistance of the district court, such as in a domestic violence situation, will find it much more difficult to access the help and protection they need.

I mentioned previously a High Court judgment which dismissed a challenge brought by solicitors in New Ross area against the temporary relocation of court sittings to Ardcavan. The challenge was on public interest grounds and on the basis that the move threatened the applicant’s right to earn a living.

In that case, the Courts Service argued that solicitors do not have locus standi (a legal interest) to challenge the closure. Mr Justice Hedigan rejected that argument:

I accept that as solicitors practising in the relevant area they have a strong interest in the decision sought to be quashed both in their own and their clients interest. The question is fairly posed “if they do not have locus standi – who does?” The fact their interest coincides with the public interest does not, it seems to me, alter anything. In my view, the applicants have the requisite locus standi to challenge the decision made.

However, in the New Ross case the transfer was originally intended to be temporary due to an “urgent need” where the courthouse was “unsafe or otherwise unusable” and therefore the challenge was dismissed. Mr Justice Hedigan’s decision obviously leaves the wider questions open:

  1. is a court closure an attack on the constitutional right of local solicitors to earn a living; and
  2. is a court closure an attack on the constitutional right of citizens to have access to justice?

We might get an answer from Skibereen.

Significant reforms of family law in 2014/15

Two important announcements have been made by the Government that will lead to reform of family law in Ireland:

  1. a referendum on same-sex marriage will be held in the first half of 2015;
  2. the Family Relationships and Children Bill will be enacted in advance of it.

Both announcements are the responsibility of the Department of Justice where the Minister, Alan Shatter TD (FG; Dublin South) has a long-standing interest arising out of his significant, high-profile career as a family law solicitor. He, literally, wrote the book and has been calling for reform of many aspects of family law for decades. The Bill is not a comprehensive reform package, but does address some key issues.

The current situation in cases involving children where the core concern of the courts is their welfare will be updated to emphasise their “best interests”, as will be required by the new article 42A.4.1° of the Constitution once signed into law by the President (assuming that the Supreme Court appeal challenging the referendum result is unsuccessful). The wording of the Bill itself is not yet available, but the proposal to include legislative guidance on the best interests principle is particularly welcome. “Best interests” will

includ[e] the benefit of meaningful relationship with both parents, ascertainable views of the child, needs of the child, history of upbringing and care, religious, spiritual and linguistic needs, harm suffered or which the child is at risk of suffering, custody arrangements, capacity of applicants etc. [as well as considering] any family/domestic violence and its impact

Existing guardianship legislation provides little detail on the nature, obligations and powers of guardians and this will also be changed. In addition, the range of people who can become guardians will be expanded to provide greater opportunity for non-parents to obtain guardianship. This will particularly benefit non-parents who reside with a child as a spouse, civil partner or cohabitant of that child’s parent. It also envisages guardianship for non-parents who have cared for children where their parents or guardians were unwilling or unable to do so.

While principles concerning the voice of the child in family are established in practice the Bill will clarify those principles, for example by requiring that a child over 12 must be consulted in relation to guardianship, custody and access applications. 

The Bill includes limited provisions to deal with assisted reproduction and surrogacy. While assisted reproduction will not be fully regulated, the Bill will specify who the legal parents of a child are in a number of possible scenarios. The Bill will also prohibit commercial surrogacy arrangements.

There have been reforms to the law on children, cohabitants and civil partners in recent years but there has been little reform of the key questions of parentage, guardianship, custody and access. Part of the reason, it could be surmised, is an unwillingness to tackle such issues when a variety of alternative or new family arrangements have arisen but were considered too politically controversial to address, for whatever reason.

Between 2008 and 2011 very little happened that was not dictated by economic considerations and it is refreshing to see that, while those considerations still dominate, the current Government has evidently decided to tackle social issues as well.

More detail on the proposals should be available by the end of 2013 with the Bill being published and (it is intended) enacted in 2014. The Government has created a long run-up to the same-sex marriage referendum, which will allow significant time for debate, though the proposed legislation is unlikely to be available before 2015.

Why no separate vote on the abolition of the “one judgment rule”?

[Correction at end] Alan Shatter is concerned that RTÉ is not giving sufficient coverage to the upcoming referendum on the establishment of a civil court of appeal.

“I find it extraordinary that RTÉ on their six o’clock TV bulletin failed to make any mention whatsoever of the referendum being held to establish a court of appeal,” the Minister said.

He may be right, but it is not a constitutional amendment that was ever likely to generate much interest. If the Government genuinely wanted to ensure a high profile debate on the proposal it should not have scheduled the vote to take place on the same date as the referendum to abolish the Seanad . That proposal concerns politicians and inevitably most air time is consumed by them.

What is far more extraordinary is that the Government has tucked away in the court of appeal referendum an entirely separate amendment to the Constitution. This separate amendment would remove one of the “one judgment” rules from the Constitution (see section 5 of the Thirty-third Amendment of the Constitution (Court of Appeal) Bill 2013). It has nothing to do with the court of appeal, but we will vote on both amendments together.

The first I heard of the proposal was in Michael Williams’ article in the Irish Independent on 4 September 2013:

On October 4 next, as well as voting on abolishing the Seanad, we will consider a composite proposal, first to approve the establishment of a new Court of Appeal and, second, to remove a rule that when the Supreme Court makes a decision on a constitutional issue, only one judgment appears.

But, amazingly, the Government has limited our choice. We must vote for or against the package. We may not approve one part but not the other.

The one judgment rule (article 34.4.5°) arises when someone challenges the constitutionality of a law before the Supreme Court. Usually, the Supreme Court issues a majority judgment and other judges who sit on the particular case can supplement that judgment with comments of their own or, if they disagreed, can issue a dissenting judgment outlining why they took a different position. This is not the case with a constitutional challenge, when only one judgment may be issued and no others can be published which indicates the majority view.

"Where is my minority report?"
“Where is my minority report?”

It is of historical and political interest that the one judgment rule was not in the original 1937 Constitution but was introduced in 1941 during the transitional period when the Oireachtas could amend it without holding a referendum. The history of the 1941 amendment is set out in the report of the Constitutional Review Group (1996):

[The provision] seems to have been inserted as a direct result of the decision of the Supreme Court in In re Article 26 and the Offences Against the State (Amendment) Bill 1940 [1940] IR 470. In this very sensitive case, the Supreme Court upheld the constitutionality of the Offences Against the State (Amendment) Act 1940 (which provided for internment) a few months after the High Court had pronounced that similar legislation was unconstitutional. Chief Justice Sullivan commenced the judgment of the court by announcing that it was the ‘decision of the majority of the judges’ and as Chief Justice Finlay was later to state in Attorney General v Hamilton (No 1) [1993] 2 IR 250:

This was apparently seen to indicate a dissenting opinion which, it was felt, could greatly reduce the authority of the decision of the court and, we are informed, and it is commonly believed, led directly to the additional clauses by the Act of 1941 in both Article 26 and Article 34.

This is borne out by Mr de Valera’s comments in the Dáil during the debate on the Second Amendment of the Constitution Bill (82 Dáil Debates 1857-9):

From an educational point of view, the proposal [for separate judgments] would, no doubt, be valuable, but, after all, what do we want? We want to get a decision … The more definite the position is the better, and, from the point of view of definitiveness, it is desirable that only one judgment be pronounced … [and] that it should not be bandied about from mouth to mouth that, in fact, the decision was only come to by a majority of the Supreme Court. Then you have added on, perhaps, the number of judges who dealt with the matter in the High Court before it came to the Supreme Court, as might happen in some cases. You would then have an adding up of judges, and people saying: ‘They were five on this side and three on the other, and therefore the law is the other way.’

What is important is legal certainty as to the judgment, which may affect fundamental issues. It was also suggested that the one-judgment rule allows the Supreme Court to provide the legislature with certainty without any of its members becoming the subject of political criticism and, possibly, pressure. Moreover, certainty would not be provided by a three-to-two judgment where at any time in the future a judge might change his mind on a fundamental issue.

It can be seen that there is a debate to be had about the one judgement rule. The 1996 Review Group considered it and their report outlines four pages of argument either way. Most arguments were in support of abolishing the rule and the argument for keeping the one judgment rule was as follows:

1 it is the decision of the majority of the Supreme Court which really counts and only uncertainty is created by allowing the publication of dissenting opinions

2 the publication of dissenting opinions serves only to weaken the authority of the court’s pronouncement and impair its persuasiveness.

Ultimately, the Review Group was in favour of what the Government now proposes: to remove the one judgment rule in constitutional challenges before the Supreme Court. (The referendum will not remove the one judgment rule in the case of article 26 references by the President, and indeed the 1996 Review Group failed to reach consensus on that point.)

There are clearly reasonable arguments in favour of removing the one judgment rule as is now proposed and the Government could credibly argue that this is a “tidying up” referendum which is merely implementing a recommendation made in 1996 (by a Review Group, it could be noted, established by Fine Gael and Labour when they were last in office).

But the one judgment rule can hardly be thought of as a pressing issue. Why has the Government not taken the opportunity to consider the operation of the article 26 reference power of the President, to which the one judgment also applies, and consider wider reform of the law on constitutional challenges? After all, one of the reasons for establishing a civil court of appeal is to free up the Supreme Court so that it can devote its time to constitutional issues.

Paul McMahon says that while there are positive aspects to the one judgment rule it appears to be a “disproportionate restriction on judicial free speech”. But Michael Gallagher makes the point I alluded to already:

There is certainly a good case for deleting 26.2.2 and 34.4.5, but this is pretty arcane stuff to be putting to the people in a referendum. Any such proposal would surely have to be part of a reform package if it was to generate much interest from the electorate, especially given the ‘referendum fatigue’ noted by Theresa Reidy in her post here on 2 July.

Furthermore, there are existing forums to consider such wider reform. The 1996 Review Group considered almost all aspects of the Constitution, including constitutional challenges in the Supreme Court, and made recommendations for reform. The current Government established a Constitutional Convention albeit one which, despite the grand title, has a limited remit and is ordered to consider a specific list of limited issues, few of which are particularly pressing.

It is peculiar that the current Government has embarked on a series of referendums on constitutional reform which are separate from the Convention. Why are some issues to be considered by the Convention and others not? Why are some amendments proposed, presumably on the basis of recommendations almost 20 years ago, whereas others are put through a fresh round of consideration?

The most important current question is, however: why is the abolition of the one judgment rule not proposed in a separate bill and subject to a separate vote?

One might reasonably be in favour of abolishing the one judgment rule, but the manner in which the amendment is being proposed raise is significant and worrying:

  1. it is included in legislation to establish a court of appeal and although the issues are entirely separate and unconnected they will be voted on as a package;
  2. the government parties do not appear to be making any reference to the proposal in their referendum campaign;
  3. there is little or no debate on the issue.

One might wonder if this is the future of constitutional amendments in Ireland: small “tidying up” measures being tucked into larger reforms, with no government or political attention being drawn to them, no real debate and no option to vote separately on each issue.

PS: Given that polling day on 4 October 2013 includes a referendum on Seanad abolition it is ironic that the only Oireachtas debate on the abolition of the one judgment rule that I could find was in the Seanad (Senator Ivana Bacik; Senator Averil Power).

[Correction] The speech of the Minister for Justice, Alan Shatter, when introducing the Bill did of course note the proposal in the following terms, but did not address why it is included in the court of appeal Bill rather than in stand-alone legislation:

It is my strong view that justice is best served by giving the Judiciary the freedom, where they so desire, to give judgments, including minority judgments, on important matters concerning the constitutionality of our laws. For the time being, this reform, in line with the review group’s recommendation, is limited to the Article 34. Therefore, if the referendum is carried, both the court of appeal and the Supreme Court will be able to issue multiple judgments in cases involving challenges to the constitutionality of laws, in the same way as in all other cases that come before them.

Oaths: at best embarrassing and at worst offensive

Eamon de Valera
Renowned Irish expert on oaths.

When giving evidence in an Irish court or being sworn in as a juror, why is the default oath still religious? In fact, why is an oath required at all? Over 20 years ago, the Law Reform Commission recommended that oaths were not required and should be abolished but their report has largely been ignored.

Irish law generally requires that evidence be given viva voce (ie. live in court) and, according to Murdoch’s Legal Dictionary, the purpose of that requirement is “to ensure that such evidence is true by the provision of a moral or religious and legal sanction against deliberate untruth”. The oath used in Irish courts calls upon the Christian god to witness that evidence is true. As an alternative, a solemn affirmation can be used which doesn’t involve any religious element.

The Law Reform Commission, in its 1990 report on oaths and affirmations, describe the oath as “security for the truth”, the historical reasoning being that human self-interest creates a conflict in the mind of the witness, necessitating that evidence be supported “by the indispensable security of the fear of an avenging God.” But, as Mary Kotsonouris, in her memoirs of her time as a District Court judge, rightly notes:

[T]hose who tells lies without qualm are not going to be put off by the prospect of doing so with their hand on the Bible or the Koran. Ironically, it is the witnesses who ask to affirm rather than swear who show that they are the ones taking the idea of religion seriously.

The oath used in Ireland involves repeating the following while having a hand on a copy of the bible:

I swear by Almighty God that the evidence I shall give shall be the truth the whole truth and nothing but the truth.

A similar oath is used when juries are sworn in. The statutory law on oaths, which originates in the 1800s, provided for a procedure of inquiring into the faith of the witness and formulating an oath which would be appropriately binding on his or her conscience. The most common alternative to the oath is the affirmation:

I do solemnly, sincerely and truly declare and affirm that the evidence I shall give shall be the truth, the whole truth and nothing but the truth.

But it is likely that the religious oath precedes the evidence given by the majority of witnesses in Ireland. Ireland is around 87% Roman Catholic and while no statistics on oaths are available, I would be surprised if 13% of witnesses opted for the affirmation.

There are many reasons why the oath is unsatisfactory and the Commission’s report concluded that many forms of oath are “at best embarrassing and at worst offensive”. The most significant objection is the risk that a juror might be prejudiced against a witness who affirms or who refuses to take the oath. This Commission report noted that this risk was identified by lawyers across many jurisdictions.

Aside from the people “who tell lies without qualm” referred to by Kotsonouris, what of the atheist who gives evidence on oath? Section 3 of the Oaths Act 1888 closes the loophole, at least in so far as terrestrial consequences are concerned: the fact that the witness does not have any religious belief or has beliefs contrary to the oath will not affect the validity of the oath.

The Commission report suggested that the oath is a formality to be “rattled off” and which has no special significance even for Christians; that “it has become a technical adjunct to the law of perjury, “more a genuflection performed out of habit than a ceremony sacred or significant to the law”.” A report of the New South Wales Law Reform Commission is quoted which suggests that the evolution of Christian beliefs in the modern era and the move away from belief in hell and damnation has meant that, even for devout Christians, the oath is deprived of much of its force. In addition, the swearing of an oath in judicial proceedings is contrary to the beliefs of some Christians on the basis of scripture.

The oath is, therefore, an empty formula. So what’s the point?

It would surely be more logical for the affirmation to be the default and, in the interests of efficiency if nothing else, only form of words used. After all, it should be sufficient that evidence given in a civil court be subject to civil law. One could go further and abolish oaths and affirmations entirely, something suggested by Kotsonouris.

The offence of perjury is lying to the court. While it may also be a sin, it is a crime. If, instead, a judge was obliged to tell all witnesses individually, including the police, of their obligation to tell the truth, to inform them of the penalties for perjury and to ask if they understood, it might take a little longer, but it might also put the fear of God – and of punishment – into some liars, while removing a cause of scandal to the pure heart.

The final recommendation by the Commission report was as follows:

Having reviewed all these factors, and in particular having regard to our conclusion that the oath offers little or no greater security for the truth than a statutory affirmation, the Commission considers that the potential prejudice to witnesses and jurors who choose to affirm, together with the great attraction of providing for a universal and simplified procedure which would place all persons on an equal footing, weighs in favour of the abolition of the oath generally.

This recommendation, that the oath be abolished and replaced by a modified affirmation, has never been implemented. For now, the oath is another aspect of public life in Ireland which remains theistic by default.

Thankfully, this can be changed by any reform-minded government. The oath required of a judge before taking office is, however, a different matter. Article 34 of the Constitution sets out the text of the declaration:

In the presence of Almighty God I, [judge’s name] , do solemnly and sincerely promise and declare that I will duly and faithfully and to the best of my knowledge and power execute [my] office … without fear or favour, affection or ill will towards any man, and that I will uphold the Constitution and the laws. May God direct and sustain me.

This oath does not involve swearing on the bible and merely states that it is made “in the presence” of God, calling upon him to “direct and sustain” the judge. Nevertheless, many categories of citizen might reasonably object to taking such an oath. Article 34, however, provides that any judge who declines or neglects to take this specific oath “shall be deemed to have vacated his office.”

More on court reporting of indecent material

In response to my post about sections 14 and 15 of the Censorship of Publications Act 1929, TJ McIntyre points out that it would be interesting to test the restriction on court reporting against the decision of the Supreme Court in Irish Times v. Ireland [1998] 1 IR 359. That case concerned balancing the constitutional right of the public to know what happens in courts against the right of an accused to a fair trial but the judgment is highly significant to court reporting generally.

In the Irish Times case, Hamilton CJ stated:

While the public nature of the administration of justice and the constitutional right of the wider public to be informed of what is taking place in courts established by the Constitution are matters of public importance these rights must in certain circumstances be subordinated to the interests of justice and the rights of an accused person which are guaranteed by the Constitution.

It is difficult to see what right could be asserted by someone defending section 14 of the 1929 Act against an Article 34 challenge, although Article 40 does say that the publication of indecent matter is an offence which shall be punishable in accordance with law. The offence of blasphemy, also mentioned in Article 40, is contained in section 36 of the Defamation Act 2009 which the then Minsiter for Justice was at pains to stress had to be preserved due to a “constitutional obligation”. Given that the 2009 Act does not deal with publication of indecent matter, one could speculate that the Minister was perhaps aware of section 14 of the 1929 Act and of the opinion that it partially satisfied the constitutional obligation to provide for an offence of indecent publication. Arguably, if the then Minister’s reasoning is accepted, sections 14 and 15 of the 1929 Act must  be retained unless and until Article 40 is amended.

O’Flaherty J, also in the Irish Times case, was of the opinion that freedom of the press is guaranteed under Article 40 “and that the protection in the constitutional provision is not confined to mere expressions of convictions and opinions.” The Supreme Court does not appear to have considered the 1929 Act (despite considering a variety of other laws), but it is hard to see how section 14 be reconciled with O’Flaherty J’s comments.

The purpose of reporting restrictions and in camera rules relied on today are of a different nature than the one contained in section 14 of the 1929 Act. O’Flaherty J noted:

While [various] enactments authorise the exclusion of members of the public, the entitlement of bona fide representatives of the press to attend such trials is preserved. Where a trial involves offences of a sexual nature, while the press may attend, legislation requires that when they report, they must do so in a way that safeguards the anonymity of the parties.

He refers to section 20(3) of the Criminal Justice Act 1951 which allows a judge to exclude the public from criminal trials for offences which are, in the opinion of the court, of an indecent or obscene nature. This sounds like a legislative enactment of the practice referred to by Dr Keating in the Free State era, when judges might invite members of the public to leave a courtroom in the interests of “respect”.

One would have assumed that in a case where section 20(3) of the 1951 Act is invoked and members of the press remain they are free to make accurate reports on the proceedings once parties are not identified. It is hard to see the point in excluding members of the public in those circumstances, if they can subsequently read the indecent or obscene details in a newspaper. However, if a reporter is present in a case in which section 20(3) is invoked and the trial judge is of the opinion that the details of the case are indecent or obscene, it would seem logical that there would be stronger grounds for a prosecution under section 15 of the 1929 Act, but I’m not aware of this ever happening.

Does anyone know more about the 1929 Act?

Irish Courts have duty to override religious objections of parents to protect welfare of children

The judgment of Mr. Justice Gerard Hogan in Temple Street v. D & Anor, published yesterday, makes for dramatic reading. It is not often that a sitting of the High Court occurs in the private residence of a judge at 1 a.m., but it is not the first time that the Irish medical profession has made emergency court applications when treating Jehovah’s Witnesses.

In this case, concerning Baby AB, the medical evidence presented to Hogan J. was that a blood transfusion “was clinically necessary and urgent and all possible alternatives had been exhausted.” Hogan J., referring to issues of religious belief, stated:

A secular court cannot possibly choose in matters of this kind and, of course, a diversity of religious views is of the essence of the religious freedom and tolerance which [the Constitution] pre-supposes. Nor can the State be prescriptive as to what shall be orthodox or conventional in such matters, for, as Jackson J. put it in a noted US decision concerning the Witnesses, West Virginia Board of Education v. Barnette:

“…if there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion or force citizens to confess by word or act their faith therein.”

It probably suffices for present purposes simply to say that the right of a properly informed adult with full capacity to refuse medical treatment – whether for religious or other reasons – is constitutionally protected: see, e.g., Fitzpatrick v. FK (No.2) [2008] IEHC 104, [2009] 2 I.R. 7.

However, the person at issue (AB) was a minor and Hogan J. relied on Article 42.5 of the Constitution to grant an order allowing the blood transfusion to take place. Article 42.5 provides:

In exceptional cases, where the parents for physical or moral reasons fail in their duty towards their children, the State as guardian of the common good, by appropriate means shall endeavour to supply the place of the parents, but always with due regard for the natural and imprescriptible rights of the child.

This requires a failure in moral duty on the part of parents, so the conclusion is that adherence to a particular religious belief may, in so far as the State or society is concerned, constitute such a failure. Hogan J. said that:

the use of the term “failure” in this context is perhaps a somewhat unhappy one, since there is no doubt but that CD and EF, acting by the lights of their own deeply held religious views, behaved in a conscientious fashion vis-à-vis Baby AB. The test of whether the parents have failed for the purposes of Article 42.5 is, however, an objective one judged by the secular standards of society in general and of the Constitution in particular, irrespective of their own subjective religious views.

He concluded that the Court has “a jurisdiction (and, indeed, a duty) to override the religious objections of the parents”.

The judgment is likely to be of interest to opponents of greater recognition of the rights of the child in the Constitution, particularly those who fear greater State opportunities to override the rights of parents.

For more, see the Human Rights in Ireland blog and the Irish Times.

Economic traitor!?

Senator Dan Boyle wants to amend the Constitution to provide for an offence of “economic treason”. The phrase is an effective political barb, recently thrown at Brian Cowen by Eamon Gilmore in a clearly political exchange, but what does it actually mean?

 

The Execution of Guy Fawkes
Lessons from the past in dealing with traitors?

The ordinary offence of treason is punishable by a life term in prison. Deputy Gilmore and Senator Boyle appear to refer to alleged mismanagement of national affairs by the government. Senator Boyle has not gone to the effort of defining the offence with sufficient precision to understand what is actually proposed and the question arises as to why primary legislation cannot be drafted to introduce whatever nebulous offence he has in mind.

What existing aspect of constitutional law bars the creation of a new offence? Or, indeed, what deficiency exists in the current laws that requires a new law? On the evidence of the draft bill, these questions do not appear to have been considered.

The draft provision states:

Economic treason shall consist of actions that result in reputational damage for the country, an unacceptable economic cost, or a loss of economic sovereignty for the State.

The lack of precision suggests that any reputational damage done to the country (what is the country? why not the State?) constitutes an offence. Likewise, any circumstances leading to an unacceptable economic cost could constitution treason. And what, politics aside, constitutes “a loss of economic sovereignty”? The various European Union treaties ratified by the State involved some loss of economic sovereignty; are all taoisigh since Jack Lynch guilty?

Well, of course, those events happened in the past. However, the draft Article 49.3 suggests one constitutional problem which Senator Boyle wishes to overcome. It provides:

Nothing in this section shall preclude the drafting of legislation, applying these definitions retrospectively.

If this provision is to be interpreted as intending that a criminal offence of retrospective effect could be enacted, Article 15.5.1 prohibits it.

The Oireachtas shall not declare acts to be infringements of the law which were not so at the date of their commission.

One might suggest that Senator Boyle’s Article 49.3 be amended to provide that nothing in the Constitution shall preclude retrospective effect. That option is not available. Article 7 of the European Convention of Human Rights provides:

No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed.

Not only has Ireland signed and ratified the Treaty, the Government gave it direct effect under Irish law in the European Convention on Human Rights Act 2003.

It would appear, then, that the proposed amendment takes Deputy Gilmore’s soundbite and proposes to paste it into the Constitution, without any serious thought as to the possibility or consequences of doing so. It is not a serious proposal and one can only see it as a purely political stunt.

Blawg Review #264

Today is National Famine Commemoration Day, which marks the Great Famine in Ireland. It is more a day of sombre reflection than celebration, but forms the hook on which I hang this: my first time hosting Blawg Review.

Ed in Toronto's Ireland Park
The ever-dedicated Blawg Review editor marked the day with a visit to Toronto's Ireland Park

The Great Famine looms large in Irish history. It remains an issue, evidenced by the report in today’s Irish Times that there were “raised eyebrows at the absence of any representative from the British embassy” at a commemoration ceremony. Recently, controversy also erupted over plans to hold an auction of Famine artefacts. The collection to be auctioned appears to have survived thanks to the document retention policies of Irish lawyers.

The collection was held by Stewart and Kincaid, a Dublin law firm that acted on behalf of landlords in the 1840s. Thousands of letters were sent to the law firm by rent collectors and sub-landlords explaining why their tenants had not paid, and by clergymen asking for compassion to be shown to starving parishioners. The documents were stored at another Dublin law firm until a decade ago when it is said they decided to throw them out as they were not relevant to the business.

The auction takes place tomorrow and while there are demands that the Irish government purchase the collection, the State’s current financial position suggests the papers might be more likely to cross the Atlantic.

Silver screen law

While Hollywood has occasionally concerned itself with the bellicose aspects of Irish history, there has been little dramatisation of the Great Famine. There is, however, Death or Canada, a docudrama which aims to tell “the compelling tale of how in 1847, the British Colony of Canada gave refuge to tens of thousands of Irish famine victims, who in turn were responsible for the building of North America as we know it today.” I missed it when it was broadcast on RTÉ but, having viewed the website, the IP lawyer in me can’t help but wonder if the logo used constitutes a State emblem and, if so, whether government consent was sought for its use.

On the topic of intellectual property and the movies, it seems that Iron Man 2 is “the most expensive movie ever made about an intellectual property dispute.” Maxwell Kennerly argues that the armoured suit at issue is not patented, but rather the subject of a trade secret. Unfortunately, I can’t read either post as I have yet to see the film and don’t want to prejudge the dispute.

Constitutional moments

Here in Ireland, there currently appears great interest (at least in media circles) in new constitutions and Second Republics. The debated deficiencies in the Irish constitution make an interesting contrast with that of the UK, which is thought to have worked well in producing a government from the “hung parliament” that the British electorate returned.

Fiona de Londras argues that calls for a new Irish constitution are misguided and that, really, what we need is greater awareness of the 1937 Constitution, along with amendments to it.

Instead of ushering in a ‘new republic’ or ‘renewed republic’ by means of a new Constitution, we ought, I [say], to try to re-imagine our relationship with the State and to become more deeply engaged with the Constitution that we have.

However, Ferdinand Von Prondzynski disagrees and sees our constitution as being tainted by:

undercurrents of 1930s fascism, or at any rate the Mediterranean version of it as found in Salazar’s Portugal with state-sponsored corporatism; the particular ethos of the Roman Catholic church at the time (which was anything but progressive or liberal); the kind of rural idyll for what de Valera called a ‘frugal society’; and a view of women that saw them as homemakers subservient to the male population.

The UK doesn’t have a written constitution, but constitutional and rights-related issues are equally topical in that jurisdiction since the Conservative/Liberal Democrat government announced its coalition agreement. Charon QC says that the British “system of law and justice is creaking, underfunded, under developed and is not really meeting the needs of all in society”, but that the new coalition government has not got off to a bad start, with their programme for government including many law reform elements, such as a “freedom bill”. Henry Porter is more forthright:

One of the great pleasures of last week was hearing Jack Straw speaking on the Today programme in that patient, reasonable way of the true autocrat, and suddenly realising that I never have to pay attention to him again. Nor for a very long time will I have to listen to Mandelson, Campbell, Clarke, Smith, Reid, Falconer, Blunkett, Woolas or Blears: they’re history and the New Labour project to extend state control into so many areas of our lives is incontestably over.

The coalition results from what they refer to as a “hung parliament” in the UK. This is the default arrangement in Irish politics, where coalitions are an established and often unfortunate part of governance. Now that the UK is flirting with European-style coalition government, it might also consider the introduction of a written constitution.

Of course, written constitutions do not necessarily result in fewer troubles: the unresolved issues of blasphemy and abortion in the Irish Constitution receive attention from Eoin O’Dell and Brook Elliott-Buettner, respectively.

Quis custodiet?

The Guardian has launched a new legal section including an already-excellent selection of blog posts from its Guardian Legal Network. It has devoted a good deal of attention to a big US story combining law and politics: President Obama’s nominee for a vacant Supreme Court seat. It is unfortunate that the sexuality of the nominee is an issue but, more so, it is quite bizarre that a photograph of the young Elena Kagan appears to have sparked such speculation.

Elena Kagan
The face that launched a thousand blawg posts

The incident, which has shades of The Contender, highlights to Irish eyes the level of scrutiny, professional and political, which surrounds judicial appointments in the US. The highly politicised appointment process may be alien to Irish lawyers, but there is something impressive about the fanatical examination of a nominee’s record on particular legal issues.

Our judicial appointments system is superficially independent but remains political and although the process is far less politicised than in the US, it is still “shrouded in mystery“. Edward McGarr discusses one of the long-running issues in the Irish judiciary: the lack of independent oversight. It seems a judicial council might finally be on the way, but:

What complaints will it receive? Possibly not all it should.

Though I don’t hold such lofty aspirations as a seat on the Irish Supreme Court, I am glad to know that, should the opportunity ever present itself, my humble undergraduate results are unlikely to be pored over by the blawggers at the Wall Street Journal, of whom Jess Bravin informs us that Kagan got her worst grade, a B- in torts.

She did marginally better in Criminal Law, with a B, and managed a B+ in Administrative Law. For the rest, it was all A or A-, except for passing ungraded courses in Accounting and Copyright.

A tenuous Irish theme got me the job of hosting this Blawg Review, so, given my Limerick location, I can hardly miss the opportunity to throw in another such theme by reproducing Madeleine Begun Kane‘s Kagan limerick.

Obama’s What???

“Obama’s Katrina,” they say.
“Obama’s H. Miers,” they pray.
To the wingnuts give thanks
For reminding the ranks
Of the many ways Bush went astray.

The future is … ?

The rather terrifying way in which we may be sleepwalking into a potential dystopian future was highlighted by two issues covered in blawgs this week: Facebook’s privacy practices and the rise of “personal genomics”.

David Post, in response to an op/ed in the New York Times by Bernard Kouchner entitled “The battle for the internet”, writes that

the Net is an astonishing achievement with the potential, only partly but tantalizingly realized to date, to become a true milestone in the history of human communication and a possibly unstoppable force for the spread of liberty and freedom around the globe.

He says that the internet is “under siege” and that work must be done to keep it open. He differs, however, with Kouchner as to what the threats to the internet are. It is clear that, like Google, Facebook now intends to become “the internet” for many of its users and as ever, the threat may come from governments and large corporations rather than extremist groups.

The manner in which it changes privacy policies and settings has come under fire and the EU’s Article 29 Working Group (Brussels-speak for the European group of privacy regulators) says that these changes are unacceptable. However, Benn Parr argues that protecting privacy is up to users, not Facebook; though he does agree that the changes should have been better communicated. He is surprised that the media has “pile[d] up” on Facebook over the privacy issue, but surely such pressure merely reflects the fact that the site has gained such critical mass that, like Google, it has become the establishment and must expect such critiques.

(By the way, like everything these days, the Irish National Famine Memorial Day has a Facebook page.)

Google’s CEO, Eric Schmidt, famously said:

If you have something that you don’t want anyone to know, maybe you shouldn’t be doing it in the first place.

Which sounds suspiciously like the “innocent have nothing to fear” defence, excellently filleted by Eoin O’Dell.

Businesses scared of the internet might be tempted to shut down access to social media sites like Facebook, but David Donoghue gives some advice to them about adopting a realistic social media policy. This may be of interest to Irish journalists, who recently underwent a period of public introspection when the unconfirmed death of one of the country’s most popular radio presenters became the subject of twitgossip (twossip?). The controversy resulted in plans to introduce a social media policy in the country’s largest broadcaster.

While the online sphere is increasingly regulated by private enterprise, it is refreshing to see this creative workers’ rights protest, staged in the lobby of a hotel, proceed without being shut down or silenced by the hotel’s management (though one expects they were taken by surprise by this all-singing-all-dancing troupe of protestors) (from Waging Nonviolence).

21st Century privacy concerns won’t be online-only: Dan Vorhaus outlines recent developments in direct-to-consumer genetic testing and asks whether regulation is on the way. He says that the debate has long existed as to whether “individuals are capable of handling their own genetic information” and concludes:

Tests once predominantly available only to early adopters capable of seeking them out online will now begin to appear on the shelves of thousands of neighborhood drugstores nationwide. To a greater degree than ever before, genetic testing will soon be available to mainstream America (and subject to the impulse buy). And that, for better or for worse, may be all that it takes to convince some regulators that the time for action is finally at hand.

As with Facebook, there is a gap between theory and reality, between policy and consumer action. These products, whether they be Facebook’s instant personalisation service or chemist shop genetic tests, are flooding the market. Thought as to how they should be regulated struggles to keep up. Meanwhile, Ted Hennessy discusses the scarily-titled Genetic Information Non-Discrimination Act 2008 in the context of employment law. On this side of the pond, we similarly regulate the use of genetic data, but have tucked such regulation away in less exciting secondary legislation.

Of course, genetic discrimination is merely a veiled, sophisticated form of old-fashioned discrimination, in relation to which Bill Egnor makes some very good points as he notes the difference between immigrants of colour in the US and Irish illegals, who might pass below the radar.

It is the obvious problem with uneven enforcement that makes this law so pernicious. Who does an immigrant look like?

Such double standards are not unknown in Ireland, where Eastern European and non-European immigrants are called “non nationals”, but English, French, American and German residents are referred to by their nationality. And here, of course, Irish immigrants in the US are known as “undocumented“.

IFSC Famine Memorial
Still undocumented?

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