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Irish Left Review
Joined up thinking for the Irish Left

offsite link A Mayday Message: Brendan Ogle Fri May 01, 2015 11:48 | Irish Left Review

offsite link Progressive Film Club: Next Screening 23rd May, New Theatre Fri May 01, 2015 11:07 | Irish Left Review

offsite link Conference Convened by R2W Unions: Build an Active, Democratic, Principled Left Wed Apr 29, 2015 16:58 | Irish Left Review

offsite link A Statement in Spring, A Society in Winter Wed Apr 29, 2015 12:14 | Michael Taft

offsite link From Protest to Politics: How Can We Get a New Republic? Tue Apr 28, 2015 13:25 | Rory Hearne

Irish Left Review >>

Spirit of Contradiction

offsite link America’s Palestinians: Lessons from The American Indian Experience for Israel... Sun Mar 29, 2015 20:00 | Jerome Nikolai Warren

offsite link Spain is not Greece, or is it? Electoral prospects for the left in 2015. Thu Feb 05, 2015 19:00 | modulus

offsite link SYRIZA and Memnosyne Sat Jan 24, 2015 09:09 | CornetJoyce

offsite link Why the Workers’ Party Wed Jan 21, 2015 20:08 | Gavin Mendel-Gleason

offsite link “It’s boring but necessary”: An Interview with Jos Alembic (aka “Q”) o... Mon Jan 05, 2015 18:44 | Jerome Nikolai Warren

Spirit of Contradiction >>

Public Inquiry
Just another WordPress site

offsite link Martin gets it right – on Fianna Fail

offsite link Gardai and ‘threatening’ water protesters Anthony

offsite link Political buffoon Cowen still blaming others for his incompetence Anthony

offsite link The politicalisation of An Garda Siochana Anthony

offsite link Journalist Michael Clifford on Fianna Fail: Pt 2 Anthony

Public Inquiry >>

The Saker
A bird's eye view of the vineyard

offsite link THIS BLOG HAS MOVED TO A NEW LOCATION VINEYARDSAKER:

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offsite link Nemtsov murder: Putin warned about exactly this type of "false flag" two years ago VINEYARDSAKER:

offsite link DPR PM Zakharchenko presser 27/02/15 Economical and political future of DPR VINEYARDSAKER:

offsite link Breaking news: FALSE FLAG IN MOSCOW! VINEYARDSAKER:

The Saker >>

GuestPost - Fri May 01, 2015 16:33
We are pleased to welcome this guest post from Professor Donncha O?Connell, Head of the School of Law at NUI Galway. Voting no to marriage equality will have as much effect on surrogacy and other forms of assisted human reproduction as voting no to divorce had on rates of marriage breakdown and voting yes to(...)

We are pleased to welcome this guest post from Professor Donncha O?Connell, Head of the School of Law at NUI Galway.

Voting no to marriage equality will have as much effect on surrogacy and other forms of assisted human reproduction as voting no to divorce had on rates of marriage breakdown and voting yes to an abortion ban had on the numbers of abortions obtained by Irish women in the UK. Opponents of progressive social change seem to have scant regard for effectiveness in relation to the things that they oppose and, in this country, they have form.

If you really cared about things like the right to life of the unborn and the constitutional protection of indissoluble marriage you would have to view the period since the 1990?s as abjectly disappointing. Insufficient attention has been paid to the paradoxical role of socially conservative activists in accelerating progressive social change.

This is worth reflecting upon as we endure yet another constitutional referendum in which doom-laden predictions of a dystopian future are amplified in response to what is essentially a conservative (in the true sense) proposal to open the institution of marriage to persons of the same sex.

The hook on which opponents of marriage equality hang their opposition is, curiously, children?s rights. That is why the recent intervention by former President, Mary McAleese, was so powerful. In effect, she said that this referendum is all about children?s rights. It?s about the rights of children growing up gay as much as it is about the rights of parents who happen to be gay. She stole the ill-fitting clothes of the opponents of marriage equality and wore them very well.

 

So what do those of us who support the proposed constitutional amendment to allow for marriage equality fail to understand when, apparently, we fail to get the messages ? overt and subliminal ? of the No side?

Are we really being asked to vote No to aspects of the Children & Family Relationships Act, which is now law, by voting No to the proposed constitutional amendment?

These are not merely rhetorical questions and it is important that they are answered if only to engage with the core agenda of the opponents of marriage equality which is informed by a misguided faith in the Constitution as an instrument for the maintenance of social ideals that, frankly, don?t exist. Thus, in the past, we were asked to believe that banning abortion in the Constitution would prevent abortions and that banning divorce in the Constitution would prevent marriage breakdown. They were spectacularly wrong on both counts and they?re wrong again. Voting No to marriage equality will not end the thing that some people wish didn?t exist ? families in which loving, committed relationships exist between persons of the same sex and their children.

This time, the opposition is nuanced somewhat with concessions like ?why do you need marriage when you have civil partnership?? The irony that this point is now made by those who opposed civil partnership with some vehemence is not lost on many but it is also revealing in other ways.

The real animating factor in the opposition to marriage equality is the desire to maintain inequality. If the norm of marriage between persons of the opposite sex is not privileged in some respects, with those privileges denied to those in non-marital relationships, then marriage as an institution essential to the ordering of society is undermined. This ideal enshrined in the 1937 Constitution will, if the proposed amendment is passed, be extended to married couples of the same sex. It will still be possible, under an amended Constitution, to treat opposite-sex and same-sex couples who are not married differently. It remains to be seen whether a single persons? opposition to the amendment will emerge!

So what really lies at the heart of opposition to marriage equality is a narrow and aggressively exclusive vision of marriage. It is about staking a claim to a set of privileges and fighting hard to keep them. Anything that challenges this vision will be dismissed as an argument for ?the end of the world as we know it?. This is merely an echo from earlier referenda on other issues in which ?the world as we know it? had already ended with nothing to gain from constitutional resuscitation.

It might be comforting to vote against something that you do not like but cannot stop but it surely raises the question ? why bother? Is it the easy option to seek to enshrine ideals in the Constitution that are entirely at odds with social realities and hurtful to many citizens? Do we seem like better people by opting for high-minded fictions with a veneer of constitutional authority that fool nobody except the wilfully deluded or stubbornly hypocritical?

The marriage equality referendum on May 22nd provides us with an opportunity to align the lived realities of real people?s lives with a fairer constitutional vision in an honest and mature manner. If this is ?the end of the world as we know it? for some, perhaps this will not be the worst thing in the world for many.

Professor Donncha O?Connell is Head of the School of Law at NUI Galway. The views expressed in this piece are personal.

Cliodhna Murphy - Fri May 01, 2015 11:01
You are cordially invited to attend a workshop organised by the Maynooth University Research Cluster on Social Justice, Participation & Human Rights, in association with the Network on Power, Politics & Society, the Department of Law and the Department of Geography:   ?Social Movements & Political Alternatives to Neoliberalism: Lessons from Latin America for Irish(...)

You are cordially invited to attend a workshop organised by the Maynooth University Research Cluster on Social Justice, Participation & Human Rights, in association with the Network on Power, Politics & Society, the Department of Law and the Department of Geography:

 

?Social Movements & Political Alternatives to Neoliberalism: Lessons from Latin America for Irish Civil Society?

 

This workshop is aimed at social movement activists, political campaigners and representatives, trade unionists, community groups, and interested academics. The workshop will give participants an opportunity to hear from one of the leading voices on social movements and political change in Latin America, Professor Eduardo Silva. There will be dialogue on the lessons from Latin America for Ireland, as well as on what Latin American social movements can take from current struggles in Ireland and the European periphery.

 

The workshop will include inputs from key civil society members and activists in Ireland. The aim is to improve our understanding of social movements and political transformation, and to develop greater dialogue amongst civil society activists engaged in challenging neoliberalism. It will also contribute to research into this area being undertaken at Maynooth University.

 

It will take place on Friday, 15 May 2015, from 10am to 4pm in the John Hume Boardroom (John Hume Building, North Campus, Maynooth University). If you would like to attend, please send an email to either rory.hearne@nuim.ie or john.reynolds@nuim.ie.

 

Further information about the workshop can be found at this link.

Fiona de Londras - Thu Apr 30, 2015 07:10
The editors of the Irish Yearbook of International Law welcome submissions for publication in the Yearbook. Articles should not be published or under consideration for publication elsewhere. An annual, peer reviewed publication, the Irish Yearbook of International Law is committed to the publication of articles of general interest in international law as well as articles(...)

IYILThe editors of the Irish Yearbook of International Law welcome submissions for publication in the Yearbook.

Articles should not be published or under consideration for publication elsewhere.

An annual, peer reviewed publication, the Irish Yearbook of International Law is committed to the publication of articles of general interest in international law as well as articles that have a particular connection to, or relevance for, Ireland. Articles are usually 10,000 to 12,000 words in length, although longer submissions will be considered. The Yearbook also publishes a small number of shorter articles and notes, which should not exceed 6,000 words.

Submissions, comprising a brief 100-word abstract, article and confirmation of exclusive submission, should be sent to both Professor Siobhán Mullally (s.mullally@ucc.ie) and Professor Fiona de Londras (fiona.de-londras@durham.ac.uk) by 30 June 2015. (Submissions are also accepted on a rolling basis).

Anyone wishing to review a particular title in the Yearbook?s book review section is also invited to contact the editors. Further information on the Yearbook (including style guide) is available at the IYIL website. The Irish Yearbook of International Law is published by Hart-Bloomsbury and is also available on HEIN Online.

Brian Tobin - Sun Apr 26, 2015 20:54
There are some notable similarities between the upcoming Marriage Equality Referendum and the Divorce Referendum of (almost) two decades ago, and I am not referring to the misleading ?No? posters that are again popping up in towns and cities throughout Ireland! In 1995, the Irish people were called on to vote in the Divorce Referendum(...)

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There are some notable similarities between the upcoming Marriage Equality Referendum and the Divorce Referendum of (almost) two decades ago, and I am not referring to the misleading ?No? posters that are again popping up in towns and cities throughout Ireland! In 1995, the Irish people were called on to vote in the Divorce Referendum and the majority (albeit a slim one) voted ?Yes? to divorce because they recognised the reality that some marriages can in fact irreparably break down over time and consequently lack the hallmarks of mutual love and commitment commonly associated with marriage. The electorate recognised that, in such circumstances, it would be more pragmatic (and humane) to allow the parties to divorce rather than force them to remain married to each other. The ?Yes? vote in the 1995 Divorce Referendum recognised and respected both the reality and diversity of family life in Ireland.

Fast forward two decades to 2015, and once again the Irish people are being called on to vote, this time in the Marriage Equality Referendum, to recognise another reality, the reality that stable gay and lesbian relationships can and do contain the essential features ordinarily associated with marriage. Given that a practically-minded Irish electorate voted almost twenty years ago to alter the Constitution so as to allow those married couples whose relationships lack the essential features of marriage to dissolve their union via divorce, one hopes that an equally pragmatic and fair-minded electorate will vote ?Yes? on 22nd May to allow same-sex couples whose relationships are, in essence, marriage-like, to acquire the option of entering into a civil marriage.

Those who argue that embracing marriage equality would be contrary to the Christian understanding of marriage would be wise to remember that Irish marriage law has been uncoupled from Christian morality since the successful outcome of the Divorce Referendum in 1995. This is not just because civil marriage is no longer necessarily ?for life?, but because Ireland operates a ?no fault? divorce regime whereby parties can divorce after a certain time period irrespective of any wrongdoing; Christian doctrine seemingly only permits the parties to a marriage to divorce on grounds of adultery. Thus, Irish marriage law has been progressive for quite some time because, by voting in favour of divorce in 1995, the electorate not only enabled the dissolution of marriage where appropriate, but the ability to divorce was extended beyond the confines of adultery. Similarly, the time has come once again for the Irish people to vote pragmatically. Voting in favour of marriage equality will enable the capacity to marry to be extended beyond a male-female union, and beyond the nebulous Christian understanding, as espoused by Dr. Thomas Finegan in the Irish Times (?Yes campaign is based on entirely flawed premises?, Opinion & Analysis, April 21st), that complementarity of the male-female sexes is what makes marriage special because ?this is precisely the kind of union oriented towards children and providing those children with both a mother and a father?. Dr. Finegan argues that this is what justifies the State?s support for heterosexual marriage.

Dr. Finegan?s ostensibly child-centred argument for State involvement in heterosexual marriage is not without merit, but it fails to take account of a contemporary child-centred argument in favour of State recognition of, and support for, marriage equality. It is an irrefutable fact of life that same-sex couples are having and raising children. The assisted reproduction provisions of the recently enacted Children and Family Relationships Act 2015 will further facilitate same-sex couples in that regard. There is no credible evidence to suggest that same-sex couples are any less capable than heterosexual couples when it comes to responsible childrearing. Surely the State has a contemporary interest in providing for marriage equality?

A final pragmatic justification for voting ?Yes?, if one were needed, is the fact that gay and lesbian couples are not seeking to destroy marriage ? far from it – they are seeking marriage equality because they wholly respect, and are eager to embrace, all of the positive things that marriage stands for. Voting in favour of marriage equality next month will allow gay and lesbian people who revere the institution of marriage as much as everyone else to finally share in its benefits and protections, and this can only serve to add to and strengthen the institution of marriage.

A pragmatic, compassionate electorate divorced marriage (no pun intended) from Christian doctrine as far back as 1995 in order to acknowledge and provide in law for the reality of marital breakdown in Ireland. Next month, the people of Ireland can do so again and create a more tolerant society where an institution that is revered by all is finally legally available to all.

Fiona de Londras - Thu Apr 23, 2015 19:22
Over the last few weeks, campaigning on Ireland?s marriage equality referendum has been taking place in earnest. While the ?yes? side entered the formal referendum campaign with a steady lead in the polls and has long been well organised, the ?no? side has emerged rapidly and, in some ways, chaotically, scoring successes along the way (for example,(...)

weddingringsOver the last few weeks, campaigning on Ireland?s marriage equality referendum has been taking place in earnest. While the ?yes? side entered the formal referendum campaign with a steady lead in the polls and has long been well organised, the ?no? side has emerged rapidly and, in some ways, chaotically, scoring successes along the way (for example, through amendment of the proposed Irish language text).

The ?no? campaign has certainly been gaining traction. This is not unusual in constitutional referenda, when the burden of establishing that the status quo ought to be changed lies firmly with the ?yes? campaign, as it should do. In some ways, the ?no? campaign may seem unstructured, disorganised and ad hoc; after all, it has no particular supra-structure to shape it as all major political parties support the referendum (which in itself is not at all unusual) and the Irish Association of Catholic Priests has elected to take a neutral position. Furthermore, the ‘no’ side seems to comprise everything from prolific letter writers, to the Iona Institute, to Bruce Arnold sending ?private study papers? (which appears to more or less be a structured ?letter?) to members of the Oireachtas, all raising such a range of arguments that they are difficult to address in a coherent way. These arguments include everything from the utter canard of assisted human reproduction and surrogacy (excellently dismissed by Conor O?Mahony here), to the bizarre suggestion that somehow children raised by married same-sex parents will not have grandmothers. However, in my view, the campaign against marriage equality?and the infrequently-articulated ?real? concern in many people?s minds?is not about children, or family, or even marriage; it is about the ‘specialness’ of heterosexuality.

Marriage is now pretty much the only thing that is ?special? about heterosexuality; it is the only institution from which the state expressly excludes people who are in same-sex relationships (the majority of whom identify as, and are perceived as being, gay or lesbian). With the exception of s. 37, which is being addressed, discrimination in employment is no longer possible; people who identify as LGBT exist in every profession, job and field of work. Discrimination in the provision of goods and services is prohibited. The Children and Family Relationships Act 2015 addresses questions of adoption and family form for same-sex parents and their children. Marriage is all that is left. Marriage is all that is now exclusively heterosexual.*

For me, this is what the marriage equality referendum is really about.

By voting ?yes?, one will signal that they do not believe that heterosexuality or opposite-sex attraction ought to have exclusive access to the constitutionally recognised and protected status of ?marriage?. By voting ?no?, one will indicate the contrary. That is not a matter that relates to the nature of marriage as a constitutional or legal question; it is one that relates to one?s belief about the nature of different sexual orientations.

The reality is that in deciding this matter by means of constitutional referendum, a minority population is asking the heterosexual majority to give up some of their privilege; to recognise their fellow citizens and inhabitants of Ireland as equally entitled to enter into the constitutionally-recognised institution of marriage. This is why the marriage equality referendum is correctly referred to as a referendum about human rights.

Numerous representatives of or adherents to the ?no? side argue that, as there is no ?human right to gay marriage?, this is not a referendum about human rights at all. They are right to say that Article 12 of the ECHR, for example, does not expressly protect a right to enter into same-sex marriage, although they neglect to note that it may be interpreted as doing so as a European consensus on marriage equality emerges. They also fail to mention, for example, the EU Charter of Fundamental Rights which purposefully does not limit the right to marry to opposite-sex couples. However, even beyond the potential of these texts, the fact that this referendum is about recognition means that it is inherently about rights.

The great British Idealist, T.H. Green, famously wrote that ?rights are made by recognition?. While not wanting to over-simplify his recognition thesis, for Green a right is dependent on ?a society of men who recognise each other as isoi kai homoioi?, i.e. as equals. The marriage equality referendum is almost as explicit an example of this as one can imagine; it is a minority community asking the majority to recognise them as equals by opening up the last zone of exclusion and giving full effect to their constitutional citizenship. This is why even people who, for political and feminist reasons, may have difficulties with the institution of marriage per se, have been so vociferous in their support of the ?yes? campaign; because they see that this is a referendum about more than marriage. It is, truly, about equality; equality of esteem, equality of access, equality of citizenship.

Marriage equality will not end homophobia; it will not, on its own, make Ireland an equal society. To achieve that requires far more than marriage equality and a far broader reform agenda. But a ?yes? vote on May 22nd would be a statement about the kind of country we want to be; do we want to be a state in which we recognise that sexual orientation is not an acceptable basis for any kind of exclusion, or do we want to maintain the exclusionary and unequal status quo?

People are entitled to vote however they wish on May 22nd; the nature of our system of constitutional change is such that the minority seeking emancipation from oppressive or exclusionary laws and practices permitted or mandated by the Constitution must subject themselves to the will of the majority. We must, as Green would say, request recognition as equals. However, when deciding how to vote it is important that we recognise that a ?no? vote involves more than ?merely? upholding an historical or ?traditional? conception of marriage. It is a decision of the electoral majority to maintain heterosexual privilege and to perpetuate inequality.

That is what this referendum is really about.

That is why it is fundamentally a question of human rights.

* Of course, gay and bisexual people can marry someone of the opposite sex. However, by describing marriage as exclusively heterosexual I mean that it is only possible, in Irish law, between one man and one woman expected to engage in a sexual relationship, i.e. that it is built on an expectation of ‘typical’ behaviour determined by heterosexual social norms.

Máiréad Enright - Tue Apr 21, 2015 18:11
Article 40.3.3 of the Constitution reads: ‘The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.’  We typically think of this as(...)

Article 40.3.3 of the Constitution reads: ‘The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.’  We typically think of this as an Article designed to prohibit abortion, while forgetting that the text of the provision is not  so limited. In Roche v. Roche the judges of the Supreme Court came to differing views about its application outside the abortion context. There are two approaches. Either we focus on the language, which is sufficiently broad to regulate all pregnancies, and not only those which it is immediately sought to terminate by abortion (see the judgment of Murray CJ). Or, we remember that there are specific reasons why this provision is in the Constitution in the first place – that it was sought to copper-fasten the existing statutory prohibition on abortion –  and do not permit it to regulate all pregnancies (see the judgments of Denham J, Geoghegan J, and also the decisions in AG v. X and Baby O, cited by Hardiman J. in his Roche judgment).  I think the latter is the better reading of the authorities, but the more expansive reading has tremendous force. For example in P.P. v. HSE, the Amendment was invoked by the High Court in a case in which it was sought to withdraw somatic care from a brain-dead pregnant woman. We know, also, from the June 2013 report into the case of Savita Halappanavar (and from the testimony of other women in the wake of that case) that the Amendment was considered binding in day-to-day practice in the management of inevitable miscarriage.

It is still not clear what the legal consequences of the more expansive reading have been for Irish maternity care, particularly in cases where there is disagreement between a woman and her doctors as to how her pregnancy should be managed. The National Consent Policy says:

The consent of a pregnant woman is required for all health and social care interventions.   However, because of the constitutional provisions on the right to life of the ?unborn”, there is significant legal uncertainty regarding the extent of a pregnant woman’s right to refuse treatment in circumstances in which the refusal would put the life of a viable foetus at serious risk. In such circumstances, legal advice should be sought as to whether an application to the High Court is necessary.

There has been very little guidance from the courts. I would instinctively argue that no constitutional issue should arise in cases where a competent woman wishes to make a healthcare decision which her doctors feel is unwise, but which cannot be construed as placing her foetus’ life at risk. We tend to forget that the unborn has only one right – the right to be born alive. In Baby O, the Supreme Court rejected the notion that the right to life of the unborn encompassed a right to be born safely, or a right of access to medical treatment to ensure the child, once born survives infancy. Where the risk to the foetus is a risk to its future health, for example, it is unclear whether a woman’s decision could be overridden. There is conflicting unreported High Court authority on this point, in cases of HIV positive pregnant women, as reported by Katherine Wade in this earlier blog-post.

It is certainly true that a barrister acting on behalf of the HSE in seeking to compel a woman to submit to unwanted medical treatment, will find it easier to make their case if they can suggest that the woman’s preferred course of treatment places the foetus’ life at risk. In getting to that point, cases are likely to turn on expert evidence. The level of risk required to invoke the right to life of the unborn may be quite low – for example in the 2010 case of Mother A, the relevant risk was of occurrence of uterine rupture during vaginal birth after C-section.  The risk of death of the foetus due to uterine rupture in such births is generally accepted to be small, and could not be analogised to the certainty of death involved in an abortion, for example.

We do not have any direct reported judgments from cases where the court has been satisfied that the foetus’ life is at risk. Following PP v. HSE, it can be said that the unborn has the right to all practicable medical intervention – even deeply invasive intervention –  necessary to facilitate its being born alive. ‘Practicable’ here means treatment which is neither futile nor contrary to the ‘best interests’ of the unborn – treatment which is not at the outer reaches of medical best practice. It is difficult to say what points a pregnant woman could advance to argue that she should not be subjected to deeply invasive treatment to secure the right to life of the unborn, or that she should be allowed to choose less damaging treatment which poses a greater risk to the foetus’ life. The best evidence that we have of the kinds of arguments which might be made comes from newspaper reports in the Mother A  case. A dispute arose between a pregnant woman and Waterford Regional Hospital when she refused to consent to a C-section, preferring a natural birth. The hospital argued that the woman’s pregnancy was so far along that her refusal was jeopardising the life of the unborn.The High Court had been asked to grant an order compelling the C-section, but the woman relented. In argument, Eileen Barrington SC for the hospital had argued that the relevant ‘clash of rights’ was between the woman’s right to refuse treatment and the right to life of the unborn. Assuming this has not been misreported, the argument suggests that the woman has constitutional rights which must be taken into account in ‘maternal-foetal conflict’ cases, even if her own life is not placed at risk by the pregnancy. But of course, there is no judgment because the woman relented in time. We can guess that a similar set of arguments was advanced in Ms. Y’s case in the High Court, when it was sought to subject her to an unwanted C-section (apparently one of the permissible modes of responding to a woman’s request for termination of a pregnancy under the PLDPA). It might be that the ‘Mother A’ argument is heartening because it may leave room to discuss and elaborate upon others of women’s rights than the basic right to life, but it is difficult to build on this observation without further information. ( P.P. v. HSE  is of very little use on this point because, at the time the decision was made, P was already brain dead and, in the court’s view, had no remaining interests except in respect of  ?the feelings of grief and respect? which others associated with her body.) The take-home message here is that the construction of maternal decisions as placing unborn life at risk can have significant consequences for women’s constitutional position.

If the 8th Amendment were repealed tomorrow, what effect would it have on the maternity care system? Not every case in which a woman’s preferences are overridden by the HSE is strictly an 8th case, or a maternal-foetal conflict case. We often talk about the ‘chilling effects’ which the 8th has on women’s access to abortion – doctors imagine some inchoate risk of prosecution and so do not provide legally mandated abortion services. We could argue that there is a parallel ‘chilling effect’ in terms of women’s choices around childbirth – HSE personnel imagine a constitutional duty to restrain meaningful forms of maternal choice, lest the foetus be placed at even the smallest risk. This imagined constitutional duty is, of course, a product of vernacular and not direct judicial interpretation. But even if the 8th were removed, some worrying structures would remain in Irish healthcare law, which may owe some of their origins to the 8th but are supported by other independent rationales. I will outline them briefly.

The first is apparent in the regulation of home births, challenged in Teehan v. HSE.  There are two main sites of regulation; a Memorandum of Understanding, or contract, between self-employed midwives and the HSE, and the Nurses and Midwives Act. The Memorandum provides that the HSE will not provide indemnity cover midwives who attend a home birth where the woman has previously had a C-section. The indemnity is a key site of control of independent midwives and women who prefer home birth, as the recent Philomena Canning case demonstrates. The Act provides in s.40 (not yet implemented) that a midwife who provides any service without insurance shall be subject to criminal penalties. In Teehan, O’Malley J. held that the HSE has extremely wide discretion in determining which maternity services to provide; as the party accepting the risk, it was for the HSE to decide which risks to insure. This is an interesting decision because O’Malley J. privileges institutional needs over individual choice without very much analysis. She dismisses the invocation of Article 8 ECHR via Ternovskycharacterising it as a decision about legal uncertainty, rather than as a more expansive decision about the mother’s entitlement to ‘a legal and institutional environment that enables her choice, except where other rights render necessary the restriction thereof. For the Court, the right to choice in matters of child delivery includes the legal certainty that the choice is lawful and not subject to sanctions, directly or indirectly’. She made no comment on s.40 of the Act because it was not yet in force – though arguably this is the kind of sanction which at least falls to be justified under Ternovsky.

The second is apparent in the negligence action in  Hamilton v. HSE.  In this case, Ms. Hamilton argued that a midwife had negligently broken her waters,  leading to a very traumatic birth by emergency C-section, with long-lasting psychological consequences.  The case, like all negligence cases, turns on judicial assessment of conflicting expert evidence. The court’s function is ‘merely to decide whether the course of treatment followed, on the evidence, complied with the careful conduct of a medical practitioner of like specialisation and skill to that professed by the defendant’, and not to determine whether best practice was followed. In part, that was why Ms. Hamilton’s action failed. However, there is an interesting section in which Ryan J. responds to the plaintiff’s contention that the midwife broke her waters without first seeking consent; whether Ms. Hamilton was assaulted. Paragraph 16 is instructive:

Mr Buckley challenged the plaintiff?s evidence that she was not told or warned about the ARM and that the midwife had simply carried out the procedure without preamble. Midwife Kelliher gave evidence that she had discussed the procedure with the plaintiff, she had with her the amnihook and had to get the plaintiff?s co-operation as to the position she was in for the procedure to be carried out. Mrs Hamilton would have seen the hook and would have known what was going to happen because of the sheet that was put under her in bed. Since, on the evidence, this was a routine procedure that Ms Kelliher was carrying out for the purpose of diagnosis to see if her fear of foetal distress was justified or not, it does seem strange that she would not have mentioned to the patient what she was going to do and have obtained her consent. The very fact that it was so routine suggests that the midwife would have done so. I am satisfied that the probability is that Midwife Kelliher obtained the plaintiff?s consent and informed her about the ARM that she was going to perform.

Given Ireland’s recent history of maternal deaths, there would be something to be said for forensic judicial attention to the extent to which labouring women’s voices are heard in maternity hospitals. AIMS’ recent research found that ‘while 67% of women [surveyed] agreed that basic consent had been sought during labour and birth, 52% of those surveyed did not receive information on potential implications to have or not have tests, procedures, treatments to assist with their decisions, and only 50% felt able to make an informed refusal during their labour and baby?s birth’. Consent requirements are an essential protection for women’s autonomy and must be taken seriously.

Both of these cases speak to a subordination of women’s autonomy to other concerns. The demands of insurance, and a reluctance to take the requirements of consent seriously, may provide a shield for defensive (some might say aggressive) maternal medicine long after the ‘de-constitutionalisation’ of pregnancy.

For further information see the Association for Improvements in Maternity Services (AIMS).

Charles O'Mahony - Mon Apr 20, 2015 10:29
The Annual Distinguished Lecture 2015, hosted by the School of Law at NUI Galway will, this year, be delivered by the Right Honourable Sir Declan Morgan, the Lord Chief Justice of Northern Ireland on the topic of ?The role of the judiciary in the vindication of human rights?. The event, which takes place in the(...)

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The Annual Distinguished Lecture 2015, hosted by the School of Law at NUI Galway will, this year, be delivered by the Right Honourable Sir Declan Morgan, the Lord Chief Justice of Northern Ireland on the topic of ?The role of the judiciary in the vindication of human rights?. The event, which takes place in the Aula Maxima (Lower) at 8pm on Friday 24th April, will be chaired by the Chief Justice of Ireland, Ms. Justice Susan Denham. It will be followed by a reception for attendees in the Staff Club, Quadrangle Building, NUIG.

Previous speakers in the Annual Distinguished Lecture series include: Professor Christopher McCrudden of Oxford University, Judge John T. Noonan of the US Court of Appeals for the Ninth Circuit, Professor Neil Walker of Edinburgh University, Baroness Brenda Hale of the UK Supreme Court, Mrs. Justice Catherine McGuinness of the Irish Supreme Court and Mr. Justice Nial Fennelly of the Irish Supreme Court.
The event is held on an annual basis to mark the end of the academic year and is open to students and graduates of the School of Law, NUIG as well as interested members of the public.

Biographical details of speaker and chairperson:

THE RT HON SIR DECLAN MORGAN
LORD CHIEF JUSTICE OF NORTHERN IRELAND
Sir Declan Morgan was educated at Peterhouse, Cambridge. He was called to the Bar in 1976 and took Silk in 1993. He was Senior Crown Counsel for Northern Ireland from 2002 until his appointment as a High Court Judge in May 2004. He was appointed to the Family Division in January 2007 and in September 2008 became one of two judges with responsibility for judicial review. Sir Declan was appointed Chairman of the Law Reform Advisory Committee for Northern Ireland in 2004. He was Chairman of the Northern Ireland Law Commission from April 2007 until his appointment at Lord Chief Justice of Northern Ireland in July 2009. Sir Declan is also Chairman of the Northern Ireland Judicial Appointments Commission. He is an Honorary Bencher of Middle Temple.

CHIEF JUSTICE SUSAN DENHAM
CHIEF JUSTICE OF IRELAND
Mrs. Justice Susan Denham was appointed the 11th Chief Justice of Ireland on the 25th July, 2011. Judge Denham was educated at Alexandra College, Dublin; TCD; King?s Inns and Columbia University, New York. She was called to the Bar in 1971 and became a Senior Counsel in 1987. As a barrister she practised on the Midland Circuit and in Dublin, and had a general practice with a specialisation in Judicial Review cases. Appointed a Judge of the High Court in 1991, in December 1992 she was the first woman appointed a Judge of the Irish Supreme Court. Judge Denham is a Member of the Royal Irish Academy since 2013. From 1996 to 2010 Judge Denham was Pro-Chancellor of the University of Dublin (TCD). She has been awarded honorary doctorates by Queen?s University Belfast, University of Ulster, UCD and DCU.

Date: Friday 24th April

Time: 8pm

Venue: Aula Maxima, NUI Galway

Liam Thornton - Mon Apr 20, 2015 08:38
Leonard Taylor is a PhD candidate at the Irish Centre for Human Rights, NUI Galway, Ireland. His research topic is on Catholicism and international human rights.  You can contact him l.taylor3[at]nuigalway.ie The following post highlights current debate at the United Nations, particularly at the recent 28th Session of the Human Rights Council on the situation(...)

Holy-See-(Vatican-City-State)-flagLeonard Taylor is a PhD candidate at the Irish Centre for Human Rights, NUI Galway, Ireland. His research topic is on Catholicism and international human rights.  You can contact him l.taylor3[at]nuigalway.ie

The following post highlights current debate at the United Nations, particularly at the recent 28th Session of the Human Rights Council on the situation in Northern Iraq and Syria as a consequence of the spread of ISIS(Islamic State of Iraq and al Sham or sometimes called ISIL, Islamic State in Iraq and the Levant). Religious minorities and ethnic groups are of particular concern and the Holy See has invoked the doctrine of a responsibility to protect. The following post assesses this option in light of the impasse at the Security Council. The proposal to establish an ad-hoc tribunal for Syria and potentially northern Iraq appears to be the next most reasonable step.

Since 2014, the rapid spread of ISIS forces across northern Iraq has led to a humanitarian crisis. Ethnic and religious minorities have been particularly targeted, including Christians, Kaka?i, Shabak, Turkmen and Yezidis, with thousands killed and many more injured or abducted. The litany of crimes committed seems to be endless and irrational. The list of human rights abuses and breaches of humanitarian law including unlawful killings, deliberate targeting of civilians, forced conversions, targeted persecution of groups and individuals on the basis of their religion or belief, acts of violence against members of ethnic and religious groups, as well as destruction of places of worship and cultural heritage sites. In October 2014, Special Adviser of the Secretary-General on the Prevention of Genocide, and Jennifer Welsh, Special Adviser of the Secretary-General on the Responsibility to Protect, on the situation in Kobane, Syria stated, ?this latest attack is part of a larger pattern of targeted violence committed by ISIL and other armed groups against religious and ethnic minority communities in both Syria and Iraq?. By 6 August 2014, an estimated 200,000 Christians and members of other ethnic and religious groups had fled from al-Hamdaniya, Ba?shiqa, Bartella, Tel Keif, and other towns and villages in the Ninewa plains before they were taken over by ISIL.

The international legal framework in Iraq amounts to an armed conflict of a non-international character involving ISIL and other affiliated armed groups, on one side, and Iraq army (ISF) and other armed forces, which support it, on the other. In Iraq military assistance is already underway by the United States, United Kingdom, Iran and others and appears to have the consent of the international community though not without debate. Similarly in Syria, it is a non-international armed conflict but in contrast to Iraq it remains in the main, isolated from the international community?s direct involvement.  

The Holy See and a Joint Statement

At the 28th Session of the Human Rights Council the Holy See with Russia and Lebanon and fifty other nations, including Ireland gave a joint statement on “Supporting the Human Rights of Christians and Other Communities, particularly in the Middle East” (Geneva, 13 March 2015).

In a follow up media briefing the Holy See ambassador, H.E. Silvano M. Tomasi stated: ?We have to stop this kind of genocide,? and continued, ?It will be up the United Nations and its member states, especially the Security Council, to determine the exact form of intervention necessary,? he said, ?but some responsibility [to act] is clear.? He suggested that an anti-ISIS coalition must include ?the countries most directly involved in the Middle East,? but also ?What?s needed is a coordinated and well-thought-out coalition to do everything possible to achieve a political settlement without violence,? Tomasi said, ?but if that?s not possible, then the use of force will be necessary.?

The Holy See Ambassador?s statement differed in tone to the Joint Statement which does not mention intervention or the noteworthy concern about genocide in the Middle East. The joint statement did say however: ?Christians are now especially affected. These days even their survival is in question?. It added this existential threat from Islamic State ?creates the risk of complete disappearance for the Christians?.

The Holy See offers two kinds of legitimacy to further collective action by members of the United Nations. Firstly, the Holy See can legitimately speak on behalf of many Christians in the Middle East, and secondly, the Holy See provides legitimacy to the doctrine of a Responsibility to Protect, by offering a historical basis in natural law and ?just war? theory, as a strong advocate for the doctrine.

The ambassador?s comment on genocide is not completely out of place. Speaking at the 28th Session of the Human Rights Council on 5th March 2015, the UN High Commissioner for Human Rights Zeid Ra’ad al-Hussein went so far as to suggest there were ?seemingly genocidal attacks on ethnic and religious groups? in Syria and Iraq by the ISIL movement. He further confirmed these concerns in his Report to the Human Rights Council (A/HRC/28/18, 13th March 2015).   A Security Council Open Debate co-ordinated by France on the 27th march, 2015 on ?Attacks And Abuses On Ethnic Or Religious Grounds In The Middle East?, gave states the opportunity to reiterate their concern about many of the issues highlighted at the Human Rights Council.

To respond to the situation in Iraq and Syria the question remains, even granting the impasse at the Security Council, about how to strengthen a case for the legality of humanitarian intervention to prevent international crimes, and secondly how that action might be further legitimised, with an ethical and moral argument.   There have been cases where humanitarian intervention has been invoked by states, for instance the NATO action in Serbia in 1998/99 but both the legality and legitimacy of the argument has been seriously questioned. Clearly there is a strong trend to retain all humanitarian interventions to within UN mandated missions rather than unilateral action. Yet, the use of a veto by some permanent members of the UN has been a significant barrier to furthering the UN’s goals.

On the first point of strengthening the legal case, it is clear that under the UN Charter it is the Security Council which has the ?primary responsibility for the maintenance of international peace and security? (UN Charter, Article 24). The Charter also maintains that States must ?refrain in their international relations from the threat or use of force? (UN Charter, Article 2 § 4).  Yet the Charter makes two exceptions within Chapter VII to authorise the use of force. Article 42 enables the UN Security Council to authorise ?such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security? and Article 51 codifies a Charter-based justification in ?the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations?.  In both cases the UN Charter adequately provides legal backing to the use of force and provides the jus ad bellum justification required in cases of self-defence or to restore peace and security. However, a third possible exception to Article 2 § 4, described as humanitarian intervention, and indicated by the Holy See ambassador, is more controversial.

?Responsibility to Protect?

This idea of humanitarian intervention was developed to argue for a further customary law exception to Art 2 §4, and has been further progressed over the last decade through the idea of a ?responsibility to protect? (ICISS 2001: 17). This latter kind of intervention is firstly preventative and can act in theory to prevent international crimes against a civilian population. The idea of a ?Responsibility to Protect? suggests the existence of a state?s duty and obligation to protect its own population but where a state fails it opens the potential for the international community to respond, potentially with humanitarian intervention, including military intervention.

The 2005 World Summit unanimously affirmed a Responsibility to Protect (A/RES/60/1,16 September 2005) and went so far as to suggest the possibility of collective action ?should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity?. An earlier 2001 Report assessed the relevant decision making criteria for humanitarian intervention and concluded there were six: right authority, just cause, right intention, last resort, proportional means and reasonable prospects (ICISS 2001: 32-34.)   It defined the following criteria to provide a ?just cause? in order to halt or avert which includes: large scale loss of life, actual or apprehended, with genocidal intent or not, which is the product either of deliberate state action, or state neglect or inability to act, or a failed state situation.   Numerous Security Council resolutions have begun to include a responsibility to protect, which has further strengthened the argument that this idea may be growing in legitimacy as a course of action (see UN General Assembly, Implementing the responsibility to protect : report of the Secretary-General, 12 January 2009, A/63/677).

Furthering legitimacy

On the second point about how action might be further legitimised, with an ethical and moral argument, this ?just cause? justification found in a doctrine of a responsibility to protect parallels the position of the Catholic Church and is articulated in part by the Holy See Ambassador. The ICISS criteria summarises the long tradition of identifying the jus ad bellum argument to initiate legitimate warfare as located in the catholic ?just war? doctrine. In addition to legitimate self-defence and non-aggression (See Pius XII, 1944, Christmas Message §58 and Gaudium et Spes, Vatican Council II 1966: § 77-82), Pope Benedict (now emeritus) speaking at the United Nations in 2008 evaluated the ?responsibility to protect?: If States are unable to guarantee such protection, the international community must intervene with the juridical means provided in the United Nations Charter and in other international instruments. In a more recent 2014 speech given by the Vatican Secretary of State, Cardinal Pietro Parolin, stated ?the term ?responsibility to protect? encapsulates the Church?s teaching on legitimate defence and, consequently, the Holy See?s position in its capacity as an international juridical entity?. Further, it has been described as rooted in the ancient ius gentium as the foundation of every action taken by those in government with regard to the governed?.

This diplomatic prompting of the Holy See to apply a responsibility to protect based in its own moral tradition can be viewed as an effort to further legitimise the Responsibility to Protect doctrine and challenge resistance in the Security Council to follow through on the 2005 World Summit commitments.

Conclusion

In the absence of a Security Council resolution to act further to ?restore international peace and security? both to Northern Iraq and Syria, as a response to Islamic State ?seemingly genocidal attacks on ethnic and religious groups?, and with an impasse to refer Syria to the International Criminal Court (Iraq is not a party), the proposal by UN?s Independent International Commission of Inquiry on the Syrian Arab Republic to establish an ad-hoc tribunal for Syria appears to be the next most reasonable step as a non-military intervention (ICISS 2001: 21-24). This non-coercive and non-violent response could be extended in mandate to cover the crimes of non-state actors such as Islam State and extended to the territory of Iraq as well.

 

Bellamy, Alex J. (2006), Just Wars: From Cicero to Iraq (Cambridge: Polity).

ICISS, International Commission on Intervention State Sovereignty International Development Research Centre (2001), ‘The Responsibility to Protect: Research, Bibliography, Background: Supplementary Volume to the Report of the International Commission on Intervention and State Sovereignty’, (Canada: International Development Research Centre).

Kolb, Robert (2010), An introduction to the law of the United Nations (Oxford Hart Publishing).

Vatican Council II (1966), ‘Gaudium et Spes (Pastoral Constitution on the Church in the Modern World)’, Acta Apostolicae Sedis, 58, 1025-115

 

 

 

Yvonne Daly - Fri Apr 17, 2015 22:37
Where does one start to analyse six Supreme Court judgments (the Chief Justice concurred with the majority but did not issue a separate judgment), amounting to over 155,000 words, on a most fundamental rule of constitutional law and criminal procedure? This is not an easy task and what follows represents only an initial foray into(...)

Where does one start to analyse six Supreme Court judgments (the Chief Justice concurred with the majority but did not issue a separate judgment), amounting to over 155,000 words, on a most fundamental rule of constitutional law and criminal procedure? This is not an easy task and what follows represents only an initial foray into the many significant issues which arise within, and as a consequence, of this week?s Supreme Court decision in DPP v JC [2015] IESC 31.

 

The New Rule

The fundamental decision of the Court in DPP v JC [2015] IESC 31 is that the exclusionary rule set out in People (DPP) v Kenny [1990] 2 IR 110, and in operation in this jurisdiction for the past twenty-five years, is no longer to be applied (for more on the existing rule see my 2009 post). The Court, in a 4:3 majority verdict (Denham CJ, Clarke, O?Donnell and MacMenamin JJ in the majority; Hardiman, Murray and McKechnie J dissenting), overruled its own previous decision in that case and declared a new exclusionary rule in relation to unconstitutionally obtained evidence. The basic rule, though there is more to it than this (as discussed below), is that inadvertent breach of constitutional rights in the obtaining of evidence will not lead to the exclusion of that evidence at trial. Knowing, reckless or grossly negligent breaches of constitutional rights will lead to such exclusion, except in exceptional circumstances.

While O?Donnell J specified that the decision in JC applies only in the context of search warrants, Clarke J, who actually sets out the specifics of the new rule, was not quite as restrictive. He suggested that the new rule applies only where there is a question about the manner in which a relevant piece of evidence was gathered, as opposed to any question relating to the probative value of the evidence given the way in which it was obtained. All of this is to say that the decision here does not relate to cases where, for example, a confession statement is alleged to have been obtained through oppression or threats. In such a scenario the reliability of the statement may be tainted by the circumstances in which it was obtained, but the presence of stolen goods in an individual?s home, for example, is not altered by the constitutionality or otherwise of the search warrant executed by the gardaí in order to search that home.

The new rule is set out very clearly in the judgment of Clarke J, and he helpfully provides clear reasons for the inclusion of each individual aspect of this rule. The main elements of the new rule are as follows:

  • The onus is on the prosecution to establish the admissibility of all evidence.
  • If a claim is raised that evidence was obtained in breach of constitutional rights, the onus is on the prosecution to establish either (i) that there was no unconstitutionality, or (ii) that despite any interference with constitutional rights the evidence should still be admitted.
  • Where evidence is obtained in deliberate and conscious violation of constitutional rights (in the sense of knowing breach of rights) it should be excluded, except in exceptional circumstances.
  • Whether or not a breach of constitutional rights was deliberate and conscious requires analysis of the conduct or state of mind of the individual who actually gathered the evidence, as well as any senior official or officials within the investigating or enforcement authority concerned who was involved either in that decision or in decisions of that type generally or in putting in place policies concerning evidence gathering of the type concerned.
  • Where evidence was taken in breach of constitutional rights, but this was not deliberate and conscious, there is a presumption in favour of exclusion, which can be rebutted by evidence that the breach of rights was either (i) inadvertent or (ii) derived from subsequent legal developments.

Basically, while the Kenny rule operated on a rationale of protectionism ? if constitutional rights are breached the evidence will be excluded (except in extraordinary excusing circumstances) ? the new rule under JC operates on a rationale of deterrence ? evidence will not be excluded if it was obtained in inadvertent breach of constitutional rights. This is partly achieved through the determination that the term ?deliberate and conscious? relates to the state of mind of the person obtaining the evidence (and/or any relevant senior officials) rather than his/her actions.

 

?Deliberate and Conscious?

One might have thought that in boldly overruling the Kenny case, as the majority of the Supreme Court has expressly done in JC, it might have been better to avoid this particular turn of phrase altogether, as its meaning has been so contentious over the years since People(AG) O?Brien [1965] IR 142 and on through Kenny. Indeed, the ?deliberate and conscious? formulation is not fully accurate in terms of the new test emanating from the Court in JC as Clarke J clarifies (at para 5.14) that the concept of ?inadvertence? for the purposes of the rule does not include recklessness or gross negligence. O?Donnell J concurs with this view. Accordingly, evidence obtained in knowing, reckless or grossly negligent breach of constitutional rights will be excluded, except in exceptional circumstances. So, ?deliberate and conscious? breach of rights also includes reckless and grossly negligent breach of rights, which the everyday meaning of ?deliberate and conscious? might not readily impart.

What will the impact of a ?deliberate and conscious? breach of rights, within the meaning of the JC rule, be? It seems that a garda who knows he holds an invalid search warrant will obtain evidence that will later be excluded; a garda who is subjectively reckless, in the sense that he knows there is a risk that the warrant he holds may be invalid, will obtain evidence that will later be excluded; and, a garda who takes an objectively unreasonable risk that the warrant he holds may be invalid which falls so far below the standard of care that he ought to take in executing a warrant that it amounts to gross negligence, will also obtain evidence that will later be excluded. Only a garda who has no idea that the warrant he holds may be invalid will obtain evidence that can be admitted. The exact operation of this rule in practice obviously remains to be seen in individual, subsequent cases. But, it seems possible to me that the outcome could be something of a reversal of the practice which has come about since People (DPP) v Balfe [1998] 4 IR 50 of operating O?Brien and Kenny as alternative rules: O?Brien applying where there is an error on the face of the warrant, and usually admitting the relevant evidence; and Kenny operating where there is a deficiency in the authorisation of the warrant or its legal value and generally resulting in the exclusion of evidence.

If evidence is to be excluded now in circumstances involving gross negligence on the part of the gardaí, the O?Brien approach may in fact become the stricter one. In cases where the Kenny rule has led to exclusion of evidence in the past, gardaí have often not known at all that there was any difficulty in the way in which they had obtained or executed a given search warrant. Indeed, this was the case in Kenny itself, where the manner in which the warrant was obtained had been long-established and the difficulty therewith was only adverted to at trial. However, in O?Brien-type cases, the difficulty in the warrant is usually visible on its face ? an incorrect address, for example, as in O?Brien itself, or in the more recent case of DPP v Mallon [2013] IECCA 29. In those types of cases, will the newly-expressed rule now require that gardaí check their warrants for the correct information before executing them? Surely a failure to do so could, and should, be viewed as reckless, or at least grossly negligent. Will these errors, previously viewed as mere typographical errors, now take on a greater significance?

 

Unconstitutionality derived from subsequent legal developments

Outside of issues relating to the mens rea of the gardaí in obtaining and executing warrants, a notable aspect of the new rule is the notion that evidence ought to be admitted where its unconstitutionality arises as a result of a subsequent legal development. This matter is directly related to the facts of JC itself (indeed, perhaps one could argue that other statements on inadvertence etc are obiter dictum as this is the real issue at play in JC ? though for the record I doubt such argument would find traction). JC?s dwelling was searched under the authority of a search warrant issued under s 29 of the Offences Against the State Act 1939, and he was arrested by gardaí who had entered his dwelling on foot of said warrant. He was thereafter detained and questioned by gardaí and made a number of inculpatory statements. Section 29 was declared unconstitutional in the case of Damache v DPP [2012] IESC 11 between the execution of the warrant at JC?s dwelling and his trial before the Circuit Criminal Court in Waterford. As s 29 warrants were now viewed as unconstitutional, the Circuit Court judge effectively found that there had been no authority in the warrant to allow the gardaí to enter his dwelling and thereafter effect an arrest. Accordingly, and because there was no evidence to support any claim that the gardaí had entered the dwelling on foot of any other legal power, the accused was in unlawful custody at the time when he made the inculpatory statements, which were therefore inadmissible. Under the Kenny rule, this was absolutely the correct outcome of the circumstances which arose before the Circuit Criminal Court, and indeed all members of the Supreme Court in JC accepted that the judge had properly applied the Kenny rule.

Under the new rule as enunciated in JC, the statements obtained in a case such as the instant one would be admissible as although s 29 warrants are now invalid and could not be used to gain entry to a dwelling from the date of the Damache decision onwards, they were valid at the time of execution at JC?s dwelling. This, in my view, is worrying, to say the least. The constitutional difficulty with s 29 was that it allowed for warrants to be authorised by senior gardaí who were involved in the investigation for which the warrant was deemed necessary. This, as the Supreme Court found in Damache, provided no independent oversight of garda conduct and inadequate protection for the rights of citizens.

Section 29, accordingly, was struck down for good reason: independence and impartiality are essential to the integrity of the criminal process, and were not provided for by the s 29 procedure. The notion then that because it was viewed as good law at the time of the execution of a specific warrant, largely because no case had yet made it to the Supreme Court to test its constitutionality, should allow for evidence obtained thereunder to be admitted at a trial arising after it has been declared to be bad law, undermines the Supreme Court declaration of unconstitutionality and, indeed, draws the relevant trial court into acting upon evidence obtained in breach of the Constitution. Although the gardaí in the relevant circumstances were unaware of the unconstitutionality, as it had yet to be declared, a later trial court admitting and acting upon the evidence obtained does so knowing that such evidence was obtained in what are now viewed as unconstitutional circumstances. Surely this brings the administration of justice into greater disrepute than any alleged frustration of prosecution by the strictness of the Kenny rule.

 

The Strictness of the Kenny rule and Intellectual Honesty

In his dissenting judgment, McKechnie J points to an evidential gap in JC in terms of statistical information showing that the Kenny rule has led to significant frustration of prosecutions in the twenty-five years of its operation. While O?Donnell J (in the majority) listed examples of real scenarios in which the Kenny rule has applied, McKechnie J looking at each of those in turn suggests that in fact in each of those scenarios the outcome was either favourable to the DPP or unknown, such that they do not illustrate a significant difficulty with the rule to the level necessary to involve the Supreme Court in overruling its own previous decision, which should only be done for the most compelling reasons (as per The State (Quinn) v Ryan [1965] IR 70).

As mentioned above, the decision in Balfe in 1998 has allowed for courts to distinguish, in general terms, between cases where there was an error on the face of the warrant (where evidence obtained could still be admitted) and those which were issued without fulfilment of a statutory pre-condition or in the absence of jurisdiction (where evidence had to be excluded). This dichotomy was, surprisingly, not given any real acknowledgement or subjected to any analysis by the Court in JC. The majority judgments seemed eager to view the Kenny rule as an absolute rule of exclusion which has been operating in an overly strict manner. While this might well be true, and indeed I have previously characterised that rule as one of the strictest (if not the strictest) in the common law world (Daly, YM Police and Judicial Functions: Recent Developments in Criminal Procedure (2011) 1 Criminal Law and Procedure Review 35), the reality is that, at least since Balfe, O?Brien and Kenny have been operating as alternatives, thus providing the courts with an ?out? from the strictness of Kenny and, to some extent, mitigating its hard edges.

It might be argued that there is a danger in providing courts with an ?out? such as this, as it might give rise to contrived reasoning and the drawing of questionable parameters in order to avoid the application of the strict Kenny rule. It is perhaps more intellectually honest to operate a less strict rule through the application of clear principles than it is to create artificial dichotomies in order to circumvent the application of a strict rule.  In New Zealand where the prima facie rule of exclusion operated in a comparatively strict manner to our Kenny rule, there was some evidence of distortion of rights at the ?front-end? so as to avoid the ?back-end? remedy of exclusion (see Optican, Scott ? ?Front-End?/?Back-End? Adjudication (Rights Versus Remedies) Under Section 21 of the New Zealand Bill of Rights Act 1990? (2008) 2 New Zealand Law Review 409). Such distortion of the definitional parameters of constitutional rights has not been a feature of the jurisprudence under Kenny in Ireland, though the dichotomy between O?Brien-type cases and Kenny-type cases might be viewed as an artificial one.

While on the subject of intellectual honesty I might mention at this juncture my firm view that the use of s 23 of the Criminal Procedure Act 2010 in the JC case is highly inappropriate and the acceptance of the majority that an appeal under s 23 lies to the Supreme Court on the facts of this case is, with all due respect, astonishing. It seems to me that s 34 of the Criminal Procedure Act 1967 would have provided a much clearer avenue of appeal for the DPP and would not have necessitated the linguistic acrobatics performed by the majority on s 23 in order to allow the appeal. I will say no more here on this matter as this post is already entirely too long! That, and (many) other matters, will have to wait for another day.

Cliodhna Murphy - Fri Apr 17, 2015 11:31
This post originally appeared as a guest column in the Immigrant Council of Ireland’s daily epaper, Immigrant News.  Heralded by the UK Home Secretary, Theresa May, as ?an historic milestone? which brings the UK ?closer to consigning slavery to the history books?, the UK Parliament adopted the Modern Slavery Act on 26 March. The Act brings(...)

Theresa May3This post originally appeared as a guest column in the Immigrant Council of Ireland’s daily epaper, Immigrant News

Heralded by the UK Home Secretary, Theresa May, as ?an historic milestone? which brings the UK ?closer to consigning slavery to the history books?, the UK Parliament adopted the Modern Slavery Act on 26 March.

The Act brings together and simplifies the existing UK law on slavery and trafficking and also contains a number of important innovations, including potential life imprisonment for traffickers, asset confiscation rules and a new Anti-Slavery Commissioner. Victims of trafficking are provided with a statutory defence in order to ensure that they are not inappropriately criminalised, and provision is made for ?Reparation Orders? to be awarded by way of compensation. Also introduced is a requirement for large companies to annually report on efforts to identify and address modern slavery in their supply chains.

The Act has been broadly welcomed, including by campaigning groups such as Anti-Slavery International. The legislation also reflects developments in the case law of the European Court of Human Rights in Strasbourg, which requires States to put in place an effective regime for deterring, investigating and punishing slavery, servitude and forced labour.

The most contentious aspect of the legislative process was the failure of the Act to reform the migration status of overseas domestic workers in the UK to better protect this group. The terms of the ?overseas domestic workers visa? ties these workers to their employer, with specialist NGOs such as Kalayaan arguing that this in itself creates conditions ripe for slavery and severe exploitation.

Slavery in Ireland

While the scale of the issue in the UK may be larger, it is beyond doubt that a significant problem of slavery and trafficking exists in Ireland. The Immigrant Council of Ireland has long advocated for and represented victims of sex-trafficking, in particular, while the Migrant Rights Centre of Ireland has produced reports on the trafficking and labour exploitation of those in the domestic work sector and cannabis production.

In 2012, the High Court case of Hussein v Labour Court and Younis vividly demonstrated the gaps in individual rights protection created by the intersection of Irish employment and immigration rules. Mr Younis had been required to work for seven days a week for a number of years and was paid ?what amounted to pocket money?, but was told by the High Court that he could not pursue the employer for breaches of labour law as he was an undocumented migrant.

In the wake of the Hussein decision, a number of changes were made to the Irish system to deal with the injustices which had been highlighted. Forced labour is now a crime, under the Criminal Law (Human Trafficking) Act 2013. In addition, the Employment Permits (Amendment) Act 2014 means that undocumented migrants who are undocumented through no fault of their own may pursue their employer for outstanding remuneration. However, these piecemeal amendments do not constitute an anti-slavery code along the lines of the Modern Slavery Act 2015.

 

Should Ireland seek to emulate the Modern Slavery Act?

As academic Judy Fudge has noted, it is difficult to criticise the Modern Slavery Act, as ?no one is ?for? slavery?. However, there are a number of reasons why the Irish government would be best to concentrate reforming energies elsewhere, rather than seek to simply emulate the approach taken in the UK Act.

First, the Act?s main focus is on the criminalisation and prosecution of slavery and trafficking offences rather than redress for victims, although the protection of victims was strengthened somewhat during the process due to pressure from campaigners. It also fails to address the obstacles faced by migrant workers, in particular, to seeking redress through the ordinary employment law system – a ready-made system designed to protect employment rights so that exploitation does not reach the severity of slavery, servitude or forced labour. These obstacles are practical (including cuts to legal aid) and legal (illegality of the contract of employment of most undocumented migrant workers).

Second, there must be question marks over the effectiveness of legislation seeking to address labour exploitation and trafficking, in the broader context of ever-tightening immigration rules and the devaluing of migrants? contribution to the labour market and the economy. The Modern Slavery Bill stands in counterpoint to the increasingly hostile environment for migrants being created in the UK, including through restrictive changes to family reunification rules, imposing reporting requirements for landlords where they believe that a tenant may be undocumented, and the continued government refusal to acknowledge the vulnerabilities created by tying domestic workers to their employer.

Overall, the Modern Slavery Act contains some significant changes which may assist those who suffer the worst forms of labour and sexual exploitation. However, it does not address the root causes of such treatment and certainly will not make a difference to most migrant workers enduring the everyday indignity of low wages, poor working conditions and limited access to employment redress mechanisms.

So what should Ireland do?

From this perspective, rather than trying to ape the UK modern slavery package, Ireland would be better to undergo two, more fundamental, reforms (quite aside from a fundamental review of our trafficking framework, which was argued for in this newspaper by Nusha Yonkovo last week).

The first would be to further change the Employment Permits regime to fully legalise the employment contracts of all undocumented workers and thereby provide equal access to labour rights. Although this may seem radical in the Irish context, most European countries (the UK being a notable exception) provide a certain minimum level of employment protection for all workers, notwithstanding their undocumented status.

The second is to pursue the long-awaited comprehensive reform of the immigration system, providing on a statutory footing for secure and durable statuses, family reunification, and access to public services. The legal recognition of migrants? contribution to the Irish economy and society is a vital, if intangible, element of tackling ?modern slavery?.

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