Tag: 1937 constitution

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.

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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?

Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues.

Why these calls for the death penalty?

For reasons unknown, the reintroduction of the death penalty in Ireland has become something of a hot topic.

First, a recently retired and highly respected High Court judge calls for its reintroduction so that certain types of murderers “pay the price”. Then, John O’Keefe (Dean of Law at the Dublin Business School) agrees, referring to uncited research which apparently demonstrates the deterrent effect of the death penalty. His contribution is highly charged, with populist statements that range from the vague:

In truly civilised countries, murder means murder.

to the gung ho:

One thing of which we can be certain is that the murderer who receives a lethal injection is now deterred for good. It’s called permanent incapacitation and it always works.

He also raises the old chestnuts of criminals getting off on a technicality and enjoying greater comforts in prison than at home, and refers dismissively to “rehabilitation aficionadoes”.

Now, county councillors from Fianna Fáil and the Green Party have chimed in, despite their lack of a role in national matters concerning criminal justice or the constitution.

Speaking at the January meeting of the Mid-West Regional Authority in Ennis, Co Clare, Cllr PJ Kelly (FF) said that the fear of punishment for crimes among criminals no longer existed.

Mr Kelly said: “I believe that there will be a demand before long for the reintroduction of the death penalty for certain offences. I would support a public debate on the issue.”

Supporting Mr Kelly’s call for a debate on the matter, Cllr Brian Meaney (Green) said: “A debate on the reintroduction of the death penalty is something that would put the focus on the issue of crime and punishment.”

There is a moral argument against the use of the death penalty which people either agree with or they don’t. But many of those calling for its reintroduction do so in apparent ignorance of or disregard for our international obligations and recent history. The attitude of the European Union to the death penalty, for example, can be gleaned from the fact that it marks an annual European day against the death penalty.

The history of the death penalty in Ireland was neatly summarised by the Irish Times when reporting on Mr. Justice Richard Johnson’s comments:

The last person executed in Ireland was in 1954, when Michael Manning was hanged, with the sentence being carried out by English official hangman Albert Pierrepoint. No further executions were carried out and it was abolished in law in 1990.

The abolition of capital punishment is also a condition of EU membership and exists in a protocol to the European Convention on Human Rights, to which Ireland is a signatory.

The 21st amendment inserted [in 2001] a clause preventing the Oireachtas from reintroducing the death penalty without a further referendum. It was passed in a referendum held the same day as the first Nice referendum by 62 per cent of those who voted, with 38 per cent voting against the ban.

In summary:

  1. Executions by death penalty were possible in Ireland until 2001.
  2. The last execution carried out was in 1954.
  3. A public debate and national referendum on the death penalty was carried out within the last decade and resulted in an overwhelming majority of the Irish electorate agreeing to its abolition.
  4. Reintroducing the death penalty would require Ireland to leave both the European Union and the Council of Europe.
  5. Reintroduction of the death penalty would, instead, join us with a colourful club of nations.

There appears no serious reason for this debate to be held at the present time and, Mr. Justice Johnson aside, can only be explained by “law and order” politics.

Why abolish the Seanad?

Enda Kenny has caused quite a stir with his announcement that Fine Gael would, in government, hold a referendum within one year of entering office to abolish the Seanad, the upper house of Ireland’s national parliament.

The motivation for this announcement would appear to be a desire to recapture some media momentum from the Labour party, but it makes for an odd policy issue to focus on in an important speech. There are many areas of the Constitution which various lobby groups have pointed to as needing reform (such as childrens’ rights, abortion, women, religion, blasphemy, the requirement to hold referenda for European Union treaties), but each is far more complex and controversial. It would be more useful to see Fine Gael propose a more comprehensive approach to constitutional reform which might include a series of referenda or a ‘super-referendum’. Holding a single-issue referendum on the Seanad seems wasteful in itself, given that the stated aim of the measure is to save money.

Considering the position of the Seanad in the Constitution and the wide scope for reform without constitutional amendment, it is strange that Fine Gael have taken this approach. Unfortunately, the makeup of panels and the university elector system cannot be changed, but much else can.

One quick and easy reform would be to abolish the salary paid to senators and cap expenses at around €20,000. A large swathe of the Seanad is populated by politicians who failed to get elected to the Dáil or who are building a profile for an eventual Dáil run. Most of the rest occupy it as a part-time role. If the position carried no salary the Seanad would still be filled, without difficulty. There is also an honorific element to a Seanad seat which negates the need for a salary.

Immediate cost-savings could be realised and a longer programme of Oireachtas reform could then be developed – perhaps involving the Seanad in European affairs to a greater degree. Too often sectors of Irish society object to European Union legislation at the point of implementation, rather than at the point of debate. The Lisbon Treaty provides for a greater role for national parliaments in the development of EU law and the Seanad could fulfil a useful role in Ireland’s engagement with the EU.

Finally, while much is made of the political nature of many appointments to the Seanad, we should not turn our noses up at the potential to directly appoint parliamentarians. These can represent sections of society who are too geographically or politically scattered to elect one of their own to the Dáil, or individuals who voice opinions that should be heard but would never gain a Dáil seat. The Seanad also provides the opportunity to a Government to bring external expertise to the cabinet table, as happens one a more wide scale basis in some countries (the US being the most prominent example). Up to two government ministers can be drawn from the Seanad (though a senator cannot be taoiseach, tánasite or minister for finance) and with two Seanad seats currently unfilled, this theoretically allows for the government to nominate, for example, a businessperson, economist or academic to the Seanad and then bring them into the government.

These possibilities could, of course, be incorporated into a unicameral Oireachtas, but for now Fine Gael seem content to propose the abolition of the Seanad and the reduction in the number of TDs without proposing a more nuanced vision of how the Oireachtas should function.