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Human Rights in Ireland

offsite link Business Said Yes! To Marriage Equality ? But Will the Circle be Widened? Fri May 29, 2015 14:21 | Charles O'Mahony

offsite link Human Rights and Social Movements: the Right2Water case Fri May 22, 2015 12:13 | Ntina Tzouvala

offsite link The Embodied Subject: Northern/Irish Feminist Judgments Project Thu May 21, 2015 13:47 | Aoife O'Donoghue

offsite link O?Conaill on the ?Logic? of ?No? #marref Thu May 21, 2015 10:17 | GuestPost

offsite link ACJRD Criminal Justice Essay Competition 2015 Thu May 21, 2015 09:00 | Yvonne Daly

Human Rights in Ireland >>

Cedar Lounge
For lefties too stubborn to quit

offsite link Someone in government says something about the not being allowed to mention something controversy?bu... 19:01 Fri May 29, 2015 | WorldbyStorm

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offsite link Tipperary and the next election 07:03 Fri May 29, 2015 | irishelectionliterature

Cedar Lounge >>

Dublin Opinion
Life should be full of strangeness, like a rich painting


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offsite link For Some Vicious Mole of Nature: Making Sense of The Irish Bank Crisis 21:07 Fri Dec 26, 2014

Dublin Opinion >>

NAMA Wine Lake

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Charles O'Mahony - Fri May 29, 2015 14:21
  We are delighted to welcome the latest in a series of cross-posts by Dr Shane Darcy from the Business and Human Rights in Ireland Blog.  The Business and Human Rights in Ireland Blog is dedicated to tracking and analysing developments relating to business and human rights in Ireland. It aims to address legal and policy issues, as(...)


irelandrainbow_blog_263We are delighted to welcome the latest in a series of cross-posts by Dr Shane Darcy from the Business and Human Rights in Ireland Blog.  The Business and Human Rights in Ireland Blog is dedicated to tracking and analysing developments relating to business and human rights in Ireland. It aims to address legal and policy issues, as well as highlighting human rights concerns raised by the activities of Irish companies or multinational corporations based in Ireland. The blog is run by Dr Shane Darcy who is a lecturer at the Irish Centre for Human Rights, National University of Ireland Galway.

Ireland has voted overwhelmingly to extend civil marriage to same-sex couples. In doing so, it became the first country in the world to pave the way for the introduction of marriage equality by way of a public referendum. It was an historic occasion without question, hugely important for the LGBT community and for the advancement of human rights and equality more generally, and something to be very proud of.

Many factors contributed to the YES vote succeeding ? the commitment and enthusiasm of campaigners, a high voter turnout, the #hometovote phenomenon, social media, endorsements from all the political parties, as well as what might be an ever-growing support for human rights and equality more generally by people in Ireland. Another factor that is worth considering was the backing of the YES campaign by a number of businesses, both small and large.

Support for the YES side came from some of the world?s largest social media and technology companies, a great number of which have their European Headquarters in Ireland. This included Google, Microsoft, Facebook and e-Bay. Twitter also backed the YES campaign for marriage equality, with Stephen McIntyre, Managing Director Twitter Ireland explaining that:

Twitter is supporting a Yes vote because of our company?s commitment to inclusion and the strong business case for marriage equality. We encourage other companies to do likewise.

Ben & Jerry?s supported the YES side by rebranding one its ice-creams. The position adopted by many of these multinationals replicates the stance they have already taken regarding marriage equality in the United States, where dozens of companies have argued that recognition of same-sex marriage is a ?business imperative?.

It wasn?t just the large multinational companies though. Many small and medium sized enterprises backed the YES vote in Error! Hyperlink reference not valid., by fundraising for the campaign, hosting events or displaying YES posters. The Irish Business and Employers Confederation (IBEC) public stated that support for marriage equality was ?good for business, good for employees and good for Ireland?, although the Irish Small and Medium Enterprises Association (ISME) did not come out in favour of a YES vote. For smaller Irish businesses, backing the YES campaign was probably more a reflection of the outlook of owners and staff, rather than a conscientious business-orientated decision (although one small business did suffer for a recent stance against same-sex marriage).

GLEN, the Gay and Lesbian Equality Network, played a key role in getting business on board, with its Business for Yes campaign, and its broader Diversity Champions initiative. It has put forward the business case for diversity in the workplace based on organisational reputation, compliance and risk management, staff performance, retention and recruitment. David McWilliams argued that a YES vote would be good for the economy, given the ?strong correlation between tolerance and wealth?. And following the referendum, the Irish Examiner ran a lead story regarding Government plans to tap into the ?$200bn gay spend?. There is little doubt that there is a business and economic aspect to the issue.

For a narrowly focused campaigning organisation like GLEN, it would obviously seek to garner support from all quarters in order to advance LGBT equality. Making a business case for marriage equality seems to have made sense in the Ireland of today, but it is highly unlikely that it would have been endorsed by large multinational companies or business representative organisations a few decades ago. It is doubtful also whether such companies would promote LGBT rights so openly in other countries where they operate, and where homophobia is rampant and often institutionalized.

The multinationals which backed YES did so as very large and very public companies, for whom their brand recognition and public image are especially important. They were also backing the right horse to some extent. In a recent New Yorker article, Richard Socarides described the evolution of corporate support for LGBT issues in the United States, and how only a couple of decades ago, there were ?very few takers? for Bill Clinton?s gay rights initiatives, as compared with today. A majority of companies in Ireland chose not to take any position on the referendum.

This is not to say that business should not be recruited in the context of advancing particular human rights, but rather that the business approach to social issues is highly selective and subject to business realities. Amnesty Ireland, who firmly backed the YES campaign, have expressed their concern about overstating a business case for human rights:

the business case for respecting human rights is unclear. It is evident that ? abusing human rights can be very profitable for companies. Linking human rights with successful business also risks undermining the moral argument that businesses are a part of wider society, and should respect the Universal Declaration of Human Rights.

Companies which backed the YES campaign for marriage equality in Ireland have less than exemplary records in relation to other human rights, including privacy, data protection and the rights of workers in their supply chains. Business representative organisations have almost as a matter of course opposed increases in the minimum wage or enhanced protections for the right to collective bargaining and to strike. On LGBT issues, some companies have advocated for ?conscience clause? legislation, which could amount to legally permitting discrimination.

The relationship between business and human rights is a complex one, but few would question the view of the United Nations that companies have a responsibility to respect humans rights. When it comes to business promoting human rights and campaigners making the business case for certain rights issues, we need to be a little circumspect and aware of the limitations of these approaches. Glenn Greenwald has written of the exploitation of social issues, such as LGBT rights, for purposes of militarism and imperialism, and in the aftermath of the marriage equality referendum, it has been said that corporate Ireland will try to ?milk a YES vote shamelessly?.

The YES victory was a truly momentous day for Ireland, but we shouldn?t hold our breath in terms of expecting business to voluntarily embrace the full range of human rights and equality issues. The positive progressive image that may have been generated for companies which supported the marriage equality campaign should not deflect from the importance of ensuring that business respect for human rights and equality is a legal requirement, and not a business choice.

Ntina Tzouvala - Fri May 22, 2015 12:13
On May Day the Irish trade unions involved in the Right2Water campaign released a document entitled Policy Principles for a Progressive Irish Government. In my view, the document is of direct interest for the readers of this blog. This is both because of the sheer magnitude of the movement, but also because of the language(...)

On May Day the Irish trade unions involved in the Right2Water campaign released a document entitled Policy Principles for a Progressive Irish Government. In my view, the document is of direct interest for the readers of this blog. This is both because of the sheer magnitude of the movement, but also because of the language the policy document chose to use, which predominantly focused on human rights. Hence, I will try to briefly present the basic axes of the release, which -importantly- are not final but still under consultation. Then, I will proceed to offer some thoughts on the emancipatory potential and on the possible limits of such a tactical choice.

The Policy Principles are structured around seven basic rights that in my understanding attempt to construct a view of societal organisation alternative to neoliberalism. Hence, we have (unsurprisingly) the Right2Water, which is accompanied by the right to jobs and decent work, to housing, the right to health, to debt justice, to education and the right to democratic reform. These rights are considered the core for a fair and democratic society and given the introduction of the booklet they are also seen as necessary for realising the aspirations of the 1867 and the 1916 Proclamations of the Irish Republic.

Following relevant debates in Ireland the Policy Principles envision the adding to the Constitution of an article (28 Section 4:2:1) that reads as follows: ?The Government shall be collectively responsible for the protection, management and maintenance of the public water system. The Government shall ensure in the public interest that this resource remains in public ownership and management.? Further, the document deploys language familiar to human rights lawyers (such as invocations of ?dignity?), but also uses the discourse of human rights in less conventional ways (for example, the question of debt management and debt restructuring is also linked to (human) rights). The silver line of the entire document is the idea that the only way to safeguard these rights is to ensure that the sectors in question (water, housing, education etc.) remain public and free, while receiving robust financial support thanks to progressive taxation.

To fully comprehend the significance of the Policy Principles it is essential to keep in mind how the deployment of a human rights discourse against neoliberalism was not a self-evident strategy. Indeed, in a recent (self-critical) article, Doutje Lettinga observed that after a 20-year period human rights are no longer the lingua franca of social movements. For example, both in Spain and in Greece human rights have not been central in anti-austerity struggles, while democracy, justice and anti-corruption appear to be much more popular in summarizing peoples? resistance to neoliberalism.[1]

Arguably, this is a useful and justifiable strategy. To begin with, since the Policy Document is intrinsically linked to the Right2Water campaign, it is reasonable to follow the same discursive devices as the original movement. But there are other more fundamental reasons to do so. Regardless of whether the language of human rights is going through an (existential) crisis or not,[2] it appears uncontroversial that they still bear a moral and rhetorical force capable of legitimising the political cause with which they are linked. (For an excellent example of this function see here). More specifically, human rights could provide a powerful discursive tool against the rationality of neoliberalism. Alston has argued, while resisting claims of World Trade Organisation (WTO) law scholars that there is a close link between human rights and rights enriched in international trade treaties, that:

?Human rights are recognised for all on the basis of the inherent dignity of all persons. Trade-related rights are granted to individuals for instrumentalist reasons. Individuals are seen as objects rather than as holders of rights. They are empowered as economic agents for particular purposes and in order to promote a specific approach to economic policy but not as political actors in the full sense and nor as holders of a comprehensive and balanced set of individual rights.?[3]

What is important here is that by recognising (or constituting) the intrinsic value of every human being human rights can operate as a powerful ?counter-force? to the narrative of ?necessary sacrifices? that legitimise aggressive austerity in the EU. The idea that politics and laws should protect and promote human dignity[4] introduces a morality that is arguably strange and even hostile to the rationality of neoliberalism, which unlike classical liberalism is based on the idea of generalised competition, which in turn means that the idea of ?losers? is deeply entrenched in it. Thus, human rights can provide anti-austerity struggles with a strong moral argument that is essential if they want to be persuasive and effective.

It is moreover argued that this synergy between human rights and social movements could also benefit human rights. This is because the rise of human rights after the 1970s also coincided to a significant degree with the professionalisation and definitely the NGOisation of human rights advocacy. In turn, this led to dubious links between major human rights NGOs and the imperial plans of powerful Western states. The notorious ?NATO keep the progress going? poster about the war in Afghanistan is just one incident in a long series of events that signify this ?unholy? alliance. If the paradigm of human rights is to be saved, then reclaiming it from the powerful and from white-collar professionals is the only way forward.

Nonetheless, there are some tensions or blind spots that require some attention. This is to the extent that the Policy Principles rest on the presumption that a robust legal and judicialised protection of socio-economic rights is the best way of countering neoliberalism. Without necessarily rejecting this idea, it is worth reflecting on its limits. To do so, I will not engage with Irish Constitutional law, but will rather try to provide an international and comparative law perspective. This is to the extent that the mere invocation of rights -powerful as it may be- does not resolve the issue of resources, which in turn is incorporated in the way socio-economic rights have been designed in international law.[5] This means that very few would deny the merits of full employment (indeed, neoclassical economics assume full employment in most their models), but consensus is thinner when it comes to actual measures for ensuring this full employment. Will full employment come as a result, for example, of an expansionary monetary policy (impossible in the current architecture of the Eurozone) or will free trade solve this problem? Does higher taxation result to a fairer society or does it strangulate private initiatives leading to higher unemployment levels? At the end of the day is the state the actor that should ensure these rights or should we trust the markets and the idea that if left alone they will deliver prosperity for most?

Richard MacAleavey has expressed in passing similar concerns in a very interesting contribution. To rephrase, human rights might provide a powerful rhetorical device against austerity, which can be morally convincing given its reliance on universalism. That said, it is difficult to see how their invocation will enable us to ?bypass? the actual political debate about how to realise these rights (or social goods, or aspirations, or even needs). The Policy Principles provide some glimpses to this debate (progressive taxation, establishment of co-operatives, the post-Keynesian idea of the state as the employer of last resort etc.) but they remain peripheral to the human rights discourse. After all, it is significant to keep in mind that relevant international human rights bodies have remained silent about privatisations as prima facie violations of such socio-economic rights. (See, for example, the stance of the Committee on Economic, Social and Cultural Rights regarding privatisations and the right to water or the rights of persons with disabilities).

At the end of the day, it is worth keeping in mind that the rise of human rights as a (meta)political discourse and the rise of neoliberalism coincide temporarily. This does not mean that there is necessarily a causal link between the two, but the argument that human rights have been ?a powerless companion?[6], unable to stop the neoliberal tide deserves careful consideration. Simultaneously, the ?golden age? of social-democracy cannot be said to be attributable to any kind of human rights advocacy – let alone to judicialised intervention.[7] The International Covenant for Economic, Social and Cultural Rights only came into force in 1976, when the social-democratic model was already trembling, while the UK, which constituted an exemplary case of this model, is notorious for its lack of entrenchment of such rights in domestic law.

The comments above do not intent to undermine in any way the significance of the Policy Principles. Indeed, in times when UK (and other) universities are dominated by the anxieties of the REF agenda, initiatives such as the Policy Principles enable lawyers to genuinely engage with society in a meaningful way and attempt to use our expertise to further just and fair social causes away from measurements and formalistic interactions with power.


[1] See also: A. Ishkanian and M. Glasius (with I. S Ali) Reclaiming Democracy in the Square? Interpreting the

Movements of 2011-12 LSE (September 2013) Available at:

[2] After a short period of glory, human rights are now being criticised both from the Left (a very ?thin? perception of justice, individualistic, links with Western imperialism) and from the Right (see for example the advertised intention of the UK government to repeal the Human Rights Act or the resistance of American conservatives to any conception of rights that goes beyond a narrow understanding of civil liberties).

[3] P. Alston ?Resisting the Merger and Acquisition of Human Rights by Trade Law: A Reply to Petersmann? 13 European Journal of International Law 815, p. 826

[4] That being said, it is important to keep in mind the uncertain origins of dignity in human rights law. Moyn has recently challenged the dominant Kantian narrative shedding like to the Catholic concept of dignity, which is closely linked to hierarchy: S. Moyn, Human Rights and the Uses of History (Verso,2014)

[5] Article 2 para 1 of the International Covenant of Economic Social and Cultural Rights reads as follows: ?Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.? International Covenant on Economic, Social and Cultural Rights 16 December 1966, United Nations, Treaty Series, vol. 993.

[6] S. Moyn ?A Powerless Companion: Human Rights in the Age of Neoliberalism? 77 Law and Contemporary Problems 147

[7] This is a point that surpasses the purpose of this brief contribution, but it is difficult to attribute this social-democratic turn to the judiciary. If anything, the Lochner era of the US Supreme Court hints that these changes took place despite the judiciary, rather than thanks to it.

Aoife O'Donoghue - Thu May 21, 2015 13:47
This report of the fourth workshop of the Northern/Irish Feminist Judgments Project is by Sandra Duffy, an LL.M. student in International Human Rights Law & Public Policy at University College Cork. ?The Embodied Subject? The fourth workshop of the Northern/Irish Feminist Judgments Project was held in Griffith College Dublin on the 13th and 14th of April 2015.(...)

WHB6t5xX_400x400This report of the fourth workshop of the Northern/Irish Feminist Judgments Project is by Sandra Duffy, an LL.M. student in International Human Rights Law & Public Policy at University College Cork.

?The Embodied Subject?

The fourth workshop of the Northern/Irish Feminist Judgments Project was held in Griffith College Dublin on the 13th and 14th of April 2015. The Project, headed by Aoife O’Donoghue (Durham), Julie McCandless (LSE) and Máiréad Enright (Kent), seeks to add an oft-missed perspective in Northern/Irish jurisprudence by inserting a feminist judge on the bench of the Court in question in each case, and having them write the judgment addressing the issues overlooked or under-considered by the judgments handed down in the case itself.

The theme of the Dublin workshop was ‘the embodied subject’. As with most feminist consideration of the state of embodiment ? especially that of women ? there is often as much to be found in the silences as in the words. What does the law make of women’s bodies? Where are the gaps in consideration? How does the law address, or not address, the experiences of transgender and queer women ? both in legislation, and in judicial opinion? Laws regulating the body, the physical self, can be blind to the social and psychological consequences they carry for the person thus regulated. If the law ? as in most of the cases covered during the weekend ? operates on a strict sex binary, where those female-assigned at birth are de jure considered female and those deemed male cannot be seen to be de facto female later in life, then the gendered experience of being a woman and experiencing one’s body is the square peg in the law’s round hole. Indeed, as Tanya Ní Mhuirthuile and Ivana Bacik ask in their judgment on Foy v An t-Ard Chláiritheoir, must sex assignation at birth be considered a statement of fact, or a rebuttable presumption?

The female sexed and gendered body forms an object for the law more often than its owner is deemed to be a subject and a participant in those laws. The selection of cases presented in this weekend displayed the judicial attitude to womanhood in all its forms, ranging from reproductive rights to gender recognition to adoption and ownership of one’s identity. The workshop also included cross-disciplinary talks from social scientists and activists which sought to place the question of law and the embodied subject into its fuller social context. The cases under consideration were McGee v Attorney General[1], McKinley v Minister for Defence[2], BJM v CM[3], Foy v An t-Ard Chláiritheoir[4], Barnes v Belfast City Council[5], Zappone and Gilligan v Revenue Commissioners[6], DPP v Tiernan[7], DPP v C[8], CC v Ireland[9], P.M.  v.  St. Vincent?s Hospital[10], and IOT v B[11].

These cases cover a broad spectrum of issues: the directly corporeal (BJM v CM, where the woman in question was treated as a body and nothing more by her ex-husband and the original judge) to the adminstrative (Zappone and Gilligan, two female spouses challenging an inequality in recognition and tax law) to the intersection of the civil right to privacy and the practical impact on health and family from denial of that right (Mc Gee v Attorney General). At times, the original judgments were considered to be broadly fair in their scope, in particular that of McKechnie J in Foy, where the rewriters found themselves in the curious position of being almost satisfied with the original opinion and looking for things to render it complete! Other cases, however, required fundamental change from the ground up. In Máiréad Enright’s opinion in McGee, she found herself breaking down the facts and circumstances of both the plaintifs, the McGee family, and the societal context in which the case took place. Máiréad questioned whether the right to use contraception was correctly identified as a right of the family unit, preferring to see it as a matter of individual privacy. The freedom to regulate one’s family planning could be considered to be a right of ’embodied conscience’ ? living one’s civil and political rights through bodily experience.

One particularly egregious original judgment was that in BJM v CM. After having married, BJM was shocked to discover his wife had seriously physical scarring from a bad accident. He claimed that this scarring was physically repulsive enough that he had been tricked into the marriage and that his consent could not be considered informed; therefore, he sought a decree of nullity. Appallingly, this opinion was carried and the Ms’ marriage was annulled. This left CM in a position where she and her family found their lives in upheaval and their seventeen-year household suddenly without legal rights. The feminist judges remarked in particular on the voicelessness of CM throughout the case. The whole proceedings centres around BJM: his feelings and his experiences. CM is reduced to an object over which men are arguing. Indeed, the original judge goes so far as to state that concealing her scarring was to conceal something of ‘the fundamental nature of the person’ akin to a psychiatric illness. CM did not, however, suffer any such irregularity in personality or emotions ? but due to her husband’s claimed lack of attraction to her, she was deemed defective enough that BJM could not have given informed consent to marrying her. She is regarded as her body and nothing more. The commentators also spoke about the lack of sexual identity of women before the Irish courts. The Madonna/whore dichotomy is very evident here; CM is either properly modest for not sleeping with BJM before marriage, or she is a dishonest fraud who sought to entrap a man before revealing her ‘dysfunctional’ self. Possibly she is both at once, but we cannot know what she herself was thinking because all the commentary on her life is coming from men ? male husband, male doctors, male judge. If the embodied female subject in Irish law has a nadir in terms of respect, BJM v CM may possibly be it.

The interdisciplinary panels interspersed through the delivery of judgments covered issues of women in Irish society ranging from the history of the women politically active around the 1920s in Ireland, to the struggle for women’s right to sit on a jury. They included stories of front-line activism, such as that of front-line campaigner Ailbhe Smyth, and a powerful story from leader of the Survivors of Symphysiotomy support group Mary O’Connor. Most unexpectedly enthralling was the presentation of social geographer Mary Gilmartin, who spoke on ‘Bodies, Borders, and Scales’. She spoke of how the way in which we organise and conceptualise our physical space in society is one of the instruments through which we experience our lives within that society. The hierarchy of our esteem for space, placing cities as centres of power, alienates those without access to such power; similarly, when we consider the world as a collection of ‘more important’ versus ‘less important’ areas, we assign identity to people based on the physical space which they occupy and weigh their existence as more or less relevant than our own. In this way the symbolic value of that person’s physical existence is linked to their assigned place in the world ? in Mary’s words, ?the body, in effect, becomes the carrier of the border.?

Considering the physical self to own within it the borders of one’s assigned societal identity brings with it another way to understand the experiences of LGBTQ subjects in law. Whether it be a challenge to the legitimacy of one’s marriage or the ability to live without constant worry of being revealed to be transgender, the lives of the queer and trans* community in Ireland have never been easy. The brave women at the centre of the Foy and Zappone and Gilligan cases know that they carry with them the borders imposed on them by society, and in challenging those borders in the courts they opened their lives up to scrutiny and invalidation. The LGBTQ rights campaigns have always involved the assertion of both physical and psychological identity by those involved: the law addresses them solely as the product of their physical bodies in deciding who they are and with whom they may form a family. From a feminist viewpoint, the right to be considered a person in possession of full and equal human rights is essential. The feminist and LGBTQ struggle overlap and intersect, and it is right that we should deconstruct thinking around queer bodies as we do around female-sexed bodies more generally.

In thinking about bodies and their effects and uses, the questions of sexual activity, reproduction, and sexual violence arise. While the third IFJP workshop, in University College Cork, had centred on ‘the mothering subject’, this workshop looked at the effects of sexual regulation in Ireland on the woman as an individual as opposed to the carrier/mother of a child. Contraception was spoken of in the McGee judgment, and Máiréad also gave a colourful account of the condom-smuggling trade over the border in the 1970s. Caroline Fennell and Louise Kennefick had written their opinion on the DPP v Tiernan case, in which a sentence for rape was challenged and questions related to the law of sentencing overall arose. The feminist judges took issue with the views of Finlay CJ in the case, noting that his judgment contained stereotyped views of women and drew distinctions between different circumstances in which rapes occur. They wished to focus more on the role and experience of the victim-witness as an autonomous actor in the trial process (leading them to consider, also, the propriety of using feminist principles to argue for retributive justice for a victim). Eilinóir Flynn and Sinéad Ring looked at another case involving sexual autonomy, that of DPP v C. This case was based on the law around consent to sexual acts. The judges gave a thoughtful, complex look at the idea of consent both per se and as it can be regulated/proven in court. Foremost, again, were the ideas of autonomy and agency of the consenting party. They also noted that discussions of consent, as in this case, can be very heteronormative ? just another way in which the embodied self finds itself playing a pre-determined role before the law.

The issue of corporeality is inseparable from the experience of being a woman in a sociolegal context. On a personal level, I took from this workshop a broader understanding of my existence before the law, along with the challenges of viewing the consequences of my own embodiment and that of others with a critical eye. From a wider perspective, being able to read a case with an eye to how the biological sex and true gender of the participants is an exercise which illuminates some repeating themes in Irish law: the body, the mother, the sexuality, the autonomy of choice.

[1]    [1973] IESC 2 (Máiréad Enright (Judge) & Emily Cloatre (Commentator))

[2]    [1992] 2 IR 333 (Joanne Conaghan (Judge) & Fergus Ryan (Commentator))

[3]    [1996] 2 IR 547 (Aideen Ryan & Katie Dawson (Judge) & Christine Ryan (Commentator))

[4]    [2007] IEHC. 116 (Tanya ní Mhuirthile (Judge) & Ivana Bacik (Commentator))

[5]    [2012] NICA 19 (Marie Fox (Judge) & Fiona Cooke (Commentator))

[6]    [2006] IEHC 404 (Fiona de Londras (Judge) & Siobhán Wills (Commentator))

[7]    [1988] 1 I.R. 250 (Louise Kennefick & Caroline Fennell (Judge) & Liz Campbell (Commentator))

[8]    [2001] 3 IR 345 (Eilionóir Flynn &  Sinéad Ring (Judge) & Anna Arstein-Kerslake (Commentator))

[9]    [2006] IESC 33 (David Prendergast (Judge) Cian O’Concubhair (Commentator))

[10]  [2003] IR 321 (Mary Donnelly (Judge) & Claire Murray (Commentator))

[11]  [1998] 2 IR 321 (Katherine O?Donnell & Claire McGettrick (Judges), James Smith (Commentator))

GuestPost - Thu May 21, 2015 10:17
We are pleased to welcome this guest post from Donnchadh O’Conaill (left). Donnchadh is a Lecturer in Metaphysics at the University of Leeds. In the autumn he will be moving to Helsinki to take up a postdoctoral position on The Epistemology of Metaphysics project. The referendum on same-sex marriage has thrown up a variety of arguments from(...)

Don Photo smallWe are pleased to welcome this guest post from Donnchadh O’Conaill (left). Donnchadh is a Lecturer in Metaphysics at the University of Leeds. In the autumn he will be moving to Helsinki to take up a postdoctoral position on The Epistemology of Metaphysics project.

The referendum on same-sex marriage has thrown up a variety of arguments from both sides, including empirically-based claims and discussions of specific points of law. Writing as someone from a philosophical background, I was more interested in the logical manoeuvrings on either side. The pattern of the debate has been for the No side to produce the wider variety of arguments; against appeals to equality, they have offered a number of reasons to justify the different treatment afforded to same-sex and opposite-sex couples. In what follows I shall discuss three arguments offered by proponents of a No vote.

The issue of surrogacy and the possible harms to children and surrogate mothers were prominently discussed in the final weeks of the campaign. By and large the Yes side have dismissed this as a red herring: there is at present no law covering surrogacy in Ireland, and the proposed constitutional amendment would not introduce one. Prof. William Binchy introduced a new twist on this worry. Rather than arguing that surrogacy should be prohibited, he suggested that a Yes vote could prevent a future government from introducing such a prohibition:

The syllogism that a court would confront is as follows: married couples have a right to procreate; married couples include two gay men, who can procreate only by means of a surrogate arrangement; therefore, a law restricting or, a fortiori, banning such an arrangement would be unconstitutional as it would prevent the gay men from procreating by the only means open to them (Irish Times, May 12th).

There is little philosophers like better than a good syllogism. Prof. Binchy?s isn?t a bad one, but I fear it is not the syllogism he needs. The first premise, that married couples have the right to procreate, has been questioned by Oran Doyle and Conor O?Mahony; certainly, it does not seem as secure as Prof. Binchy?s article might lead one to believe. But let us grant it, and let us assume also that this right extends as far as a right to access surrogacy if that is the only means by which a couple can procreate. Given the first premise, in the event of a Yes vote Prof. Binchy?s conclusion would follow. The trouble is that this conclusion has little to do with the result of the referendum. If married couples have the right to procreate, and if this right extends as far as a right to access surrogacy by those who cannot procreate in any other way, then this right must already be enjoyed by those heterosexual married couples who, for whatever reason, cannot procreate biologically and cannot adopt children. If Prof. Binchy?s syllogism holds true in the case of two gay men, then it seems it must hold true in the case of some heterosexual couples also. In that case, the hands of any future government have already been bound, regardless of the result of the referendum.

A more unusual argument was put forward by Prof. John A. Murphy, who described the proposed amendment as ?constitutional nonsense? (Irish Times, May 13th). He suggested that

if the referendum is passed, Article 41, heretofore unambiguously and exclusively heterosexual, will also recognise a homosexual couple ?as the natural primary and fundamental unit group of Society . . . a moral institution possessing inalienable and imprescriptible rights , antecedent and superior to all positive law?. Moreover such a couple will be guaranteed protection by the State ?as the necessary basis of social order and as indispensable to the welfare of the Nation and the State? (Article 1.2).

It is not entirely clear how Prof. Murphy?s argument is meant to proceed. On a literal reading, he is suggesting that if the referendum is successful, the homosexual family or a homosexual couple would itself become the primary and fundamental unit of society. This would be an outlandish result, but the idea that this is what would happen should the referendum be passed is based on a bizarre misreading of the constitution. Article 41 uses the term ?the Family?, which is an abstract singular term ? it does not refer to any particular family or to any group of families, but to the social institution of that name. At present under Irish law this institution includes married heterosexual couples raising their own children, married couples raising children they have adopted, and married couples who have no children. In the event of a Yes vote this institution would include homosexual as well as heterosexual couples. That is, homosexual families would be legally recognised as belonging to ?the natural and primary unit group of Society?. This is very different to saying that a homosexual couple would itself become this unit.

It may be that Prof. Murphy meant to express a different thought: that in the event of a Yes vote, the Family would include homosexual couples, but that it is ?grotesque nonsense? that such a couple could be among the fundamental units of society. This reading has the advantage of not attributing to Prof. Murphy the bizarre interpretation of the constitution I have just outlined, but as an argument against same-sex marriage it is scarcely in better shape. For Prof. Murphy owes us a reason for thinking that it is nonsense for a homosexual couple to be among the fundamental units of society. The fact that such a couple would be incapable of procreating or raising their own children would not suffice, given that numerous childless heterosexual couples already belong to the institution of the Family. Of course, one might say that such couples do not deserve any special constitutional status, but in that case the result of the referendum would again be irrelevant to one?s concerns.

The final argument I shall consider has been put forward by a number of advocates on the No side; it can be understood as concerning the meaning of marriage, or the relationship which is claimed to hold between marriage and procreation. A number of commentators have suggested that if same-sex marriage is legalised, this relationship would be weakened or even broken completely. Some critics have denied that there is any such relationship, but it is more interesting to assume that one does exist, and to inquire into what its nature might be.

Whatever the relationship between marriage and procreation is, it is surely not the case that the ability or willingness to procreate is a necessary condition for a couple to be married. Rather, the suggestion must be that the relationship between procreation and the social or legal institution of marriage holds in such a way that couples who are neither willing nor able to procreate can still marry. The problem is that on this understanding, it is hard to see how allowing same-sex couples to partake in the institution would weaken or break this relationship. The institution of marriage would still provide precisely the same opportunities and support for those who wish to procreate within it ? it would just be open to a slightly larger number of people who cannot (by themselves) procreate.

There are a number of possible responses available to the proponent of the procreative link, but the main one which has been put forward in the referendum debate is that marriage must be oriented towards procreation, even if it happens that procreation does not occur or is not biologically possible. For instance, Bishop Kevin Doran claims that ?What makes marriage unique is the orientation of this committed relationship to the procreation and care of children?. The suggestion is that same-sex relationships could not be oriented towards procreation, though they may share many other features with marriages. If this is correct, then it would simply be a category error to speak of same-sex marriage.

One interesting point about this argument, which has not to my knowledge been commented on, is that for someone who accepts it, the appropriate response to the referendum would not be to vote No, but to abstain on the grounds that the very idea of a popular decision on this issue makes no sense: it would be like deciding by vote whether or not 2 + 3 = 5. Leaving that aside, the orientation argument suffers from other problems. One is the danger of conflating the nature of the social or legal institution of marriage with the nature of particular marriages. It may be that the institution of marriage is oriented towards procreation (for instance, it may be because of the link between marriage and procreation that the State has a legitimate interest in supporting marriage). It does not follow from this that each individual marriage must itself be oriented towards procreation. The institution of the public library is oriented towards providing educational resources, or perhaps just entertainment, but people use public libraries for all manner of reasons, some of which have nothing to do with these noble goals.

Could it be argued that not only is the institution of marriage oriented towards procreation, but so too must any individual marriage? Maybe so, but again the trick is to spell this out in such a way that homosexual couples could not possibly be oriented towards procreation, but a heterosexual couple who are biologically incapable of procreation are. For example, Patrick Treacy & Rik van Nieuwenhove note that only heterosexual relationships ?can bring forth new life?, and that ?only this union is intrinsically fruitful in biological terms? (?The Integrity of Marriage?). But not all heterosexual relationships can be fruitful in this way. From the fact that only (some) heterosexual couples are capable of unassisted reproduction, it does not follow that all heterosexual couples deserve different legal treatment to any homosexual couples.

If there is a relationship between marriage and procreation, it would appear to concern the institution of marriage, and it is most likely a link such as the following: procreation and childrearing are the reason (or one of the main reasons) why marriage was established as a social institution and continues to enjoy legal status and protection. But while this is a plausible account of the relation between marriage and procreation, it tells us little about who is (or is not) entitled to avail themselves of this institution. And that, in effect, is what the referendum concerns.


Yvonne Daly - Thu May 21, 2015 09:00
The Association for Criminal Justice Research and Development (ACJRD) has announced an essay competition to encourage written work on the subject of Criminal Justice. There is a prize of ?200 for first place and a second prize of ?50. Both winning essays will also be published on the ACJRD website. The competition is open to(...)

The Association for Criminal Justice Research and Development (ACJRD) has announced an essay competition to encourage written work on the subject of Criminal Justice.

There is a prize of ?200 for first place and a second prize of ?50. Both winning essays will also be published on the ACJRD website.

The competition is open to all third level students (including post graduates), pupil or devil barristers and trainee solicitors.

The 2015 Competition theme is: ?An issue in need of reform in Irish criminal law or procedure?.

The competition closing date is June 30th 2015.

Further information, including the rules of the competition, is available here.

admin - Thu May 21, 2015 08:33
 We are pleased to welcome this cross-post from the Anti-Racism Network.  Articles such as the one published this week in the Irish Times ignore our existence, but we are here, and for every one of us calling publically for a Yes vote, there are many, many more. This week we have seen articles in the(...)

 We are pleased to welcome this cross-post from the Anti-Racism Network.

 Articles such as the one published this week in the Irish Times ignore our existence, but we are here, and for every one of us calling publically for a Yes vote, there are many, many more. This week we have seen articles in the Observer, in The Irish Times and in a new enterprise calling itself that speculate on how those in the migrant communities in Ireland who have citizenship will vote in the marriage referendum on Friday. The Irish Times, reprinting an article first published in the Observer last Sunday, pulls spurious figures out of the air: ?tens of thousands of Christian immigrants who have become Irish citizens? and even ?up to 200,000 immigrants? may ?help swing the vote in favour of No on May 22?. (??New Irish? Christians gather to vote No in referendum?, Monday 18th May). These articles paint a picture of African people in Ireland especially as one unvaried, homogenous group.

It is common, as Irish people know, for migrants to be seen as stereotypes rather than as we really are, in all our diversity. The media tries, in articles like this, to pigeon hole us, the ?New Irish?, in a particular way that does not truly reflect who we are. We in the migrant communities in Ireland are diverse and our paths to this country and our experiences before and during our journey here were also many, and have shaped how we live our lives now, in the present. Some of us are Christian, some Muslim; some of us are of no religion, some atheists. Some of us are straight, some LGBT. Some of us have come here to escape persecution and threats to our lives and the lives of our families because of our political views, our ethnicity, our gender; to flee the slow death of poverty, to escape war, to make a better life for ourselves and our families, and some of us to escape persecution because we are LGBT.
That is why this referendum is about more than same-sex marriage for those of us who are calling for a Yes vote in the migrant communities. Voting Yes on Friday is about opening up to the other who may be different to you or me. It is about overcoming suspicion of anyone who doesn?t behave or look like ?us?. Racial and ethnic minorities in this country know what it feels like to be discriminated against and held suspect because of our skin colour, our accent, our way of life, our religion. Voting Yes will help this country that is now our home to move away from the intolerant Ireland that was not a place for non-white people, and closer to a future where we can all be accepted as we are.
To show that many of us in the migrant communities, LGBT and straight, support Yes for Equality, a number of us came together to make a video with Anti-Racism Network Ireland (ARN) calling for a Yes vote on Friday. Articles such as the one published this week in the Irish Times ignore our existence, but we are here, and for every one of us calling publically for a Yes vote, there are many, many more.
In common with all citizens in Ireland, for those of us who can vote the referendum this is our chance to define the country we want to live in. Let?s go and vote, but let?s vote for the future, not for the past
admin - Thu May 21, 2015 08:00
Good Morning. In case you missed any of it, here is some of the best recent expert legal commentary in favour of a ‘yes’ vote in Friday’s marriage equality referendum. Fergus Ryan on what the referendum is not about. Fiona de Londras on why marriage equality is a human rights issue. Ursula Kilkelly on why a vote(...)

Good Morning. In case you missed any of it, here is some of the best recent expert legal commentary in favour of a ‘yes’ vote in Friday’s marriage equality referendum.

Meanwhile, we at HRinI send all our appreciation (and hopes for a celebration on Saturday) to our friends, family and colleagues who have advocated for a ‘Yes’ vote during a very difficult campaign. 

Colin Murray - Tue May 19, 2015 18:44
In the spring of 2014 efforts to enact same-sex marriage legislation in the Northern Ireland Assembly suffered another setback. Undeterred, QueerSpace, a support group for the LGBT community in Northern Ireland, celebrated its 16th anniversary with an event pushing for reform of the law. Gareth Lee, a volunteer at QueerSpace, ordered a cake for the(...)

gay_cake_reuters-640x480In the spring of 2014 efforts to enact same-sex marriage legislation in the Northern Ireland Assembly suffered another setback. Undeterred, QueerSpace, a support group for the LGBT community in Northern Ireland, celebrated its 16th anniversary with an event pushing for reform of the law. Gareth Lee, a volunteer at QueerSpace, ordered a cake for the party bearing the slogan ?Support Gay Marriage? from Ashers Bakery. When his order was subsequently rejected and his money returned on the basis that the message offended against the religious beliefs of the bakery owners, the McArthur family, these seemingly innocuous facts exploded into the ?Gay Cake? case which has gripped public debate in Northern Ireland for the last year.

The controversy shows no signs of abating with today?s decision by the highly-experienced District Judge Isobel Brownlie that the refusal to make the cake did amount to direct discrimination on grounds of sexual orientation. Unsurprisingly the McArthur family have described themselves as ?exhausted? by events. Lee is likely equally drained, but has been much less willing to discuss his feelings about the case in the press. The disparity in coverage of the two parties has led to any number of myths growing up around the case which this article attempts to address.

The case didn?t involve ?setting up? a small bakery known for the political beliefs of its owners. Ashers is a multi-outlet business with a workforce of over sixty which does not maintain an overtly religious affiliation in its stores. It just happened to be the most convenient bakery for Lee to use. Nor does Lee?s desire to protect his privacy, or the support his action has gained from the Equality Commission for Northern Ireland, indicate that the McArthur family are being persecuted by a shadowy agency of the state.

Ashers? case has a superficial appeal which has been exploited by political parties in Northern Ireland which draw upon a religious support base (see the immediate reaction by the TUV?s Jim Allister that the decision marked ?a dark day for justice and religious freedom in Northern Ireland?). People do not like to feel that they may be compelled to deal with others they would ordinarily choose not to engage with by virtue of legislation. This week?s marriage referendum mean that the decision has attracted considerable attention across the island.

But women, disabled people, gay people and certain racial and religious groups have long been subject to stigma and disadvantageous treatment by virtue of characteristics over which they have no control because of prejudices within sections of society. These specific characteristics are therefore protected to enable individuals to go about their day-to-day lives without facing obstacles that other people do not have to face. Legislation of the same character exists in the Republic of Ireland (the Equal Status Act 2000) and in other parts of the United Kingdom (the Equality Act 2010).

Lee just wanted to buy a cake for an event. He wanted to pay the same £36.50 Ashers would have charged anyone else in those circumstances. The graphic he wanted on his cake was not unlawful and didn?t violate any of Ashers? terms and conditions. The bakery?s refusal left him feeling like ?a second-class citizen?; it fundamentally undermined the idea that he could live his life as an equal member of the community in Northern Ireland. In these circumstances it should come as little surprise that Lee has not courted media attention. The case, at its root, is about the ability to do the banal and ordinary things in life without these activities becoming the subject of public opprobrium. Rather it was Ashers, in accepting and then refusing to fulfil the order, without making any efforts to get a third party to make the cake and thereby spare the consciences of the McArthur family, who dug in to their position. Victimhood, it seems, sells buns.

Yesterday?s judgment comes in two parts. The first is an admirably clear exposition on discrimination law relating to sexual orientation and its purposes (Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006). Ashers? defence was that making a cake with a ?Support Gay Marriage? message upon it could be construed as their supporting gay marriage. But simply because a printer produces signage for a political campaign this doesn?t imply any support for that campaign (as seen in this episode of Moone Boy). The issue for the Court when direct discrimination is claimed is whether the protected criteria (sexual orientation) was the basis of the unfavourable treatment. As there was clear evidence that purchasers were gay, or associated with gay people, and that this was Ashers? reason for refusing trade, Judge Brownlie?s decision was an entirely straightforward application of law to the facts. This evidence cut through the need for extensive discussion of comparators which often feature in discrimination cases.

The second part of the decision is devoted to the 1998 legislation relating to fair treatment on the basis of political beliefs (the Fair Employment and Treatment (Northern Ireland) Order 1998). The relevant parts of this legislation are intended to protect expressions of political opinion in Northern Ireland and to prevent opposition to a political position being used as a basis for a business refusing to deal with an individual. This legislation is specific to Northern Ireland and is designed to tackle the long history of sectarian efforts to restrict political engagement, but can clearly encompass a campaign for legislative reform such as the introduction of same-sex marriage. Ashers? contention (regarding the first head of the claim) that they refused to act in a way which could be construed as backing the campaign for gay marriage established that its managers appreciated that a political campaign was at issue. Again, the application of the law was therefore straightforward, as Judge Brownlie notes at paragraph 62 of her judgment:

They were contracted on a commercial basis to bake and ice a cake with entirely lawful graphics and to be paid for it. The Plaintiff was not seeking support or endorsement. Whilst the graphics were contrary to their genuinely held religious beliefs, the provisions of the 1998 Order allow for no exceptions in these circumstances.

Had Gareth Lee lost on this head of the claim, he would still have won the case. But it is this part of the judgment that has attracted the most adverse attention, with people drawing lurid analogies between the case and a black bakery owner being obliged to provide a cake supporting the KKK. Such a case, requiring an individual to provide a service in furtherance of hate speech would exceed the protections of political opinions provided in law. No one, as Judge Brownlie points out, is obliged to print out a message which would breach the criminal law.

In sum, this case is not a new development or a sudden judge-led extension of discrimination law in Northern Ireland. It marks a reasoned application of well-established legislation. The direct-discrimination element of the decision in the Ashers case cannot be distinguished to the UK Supreme Court?s 2013 decision in Bull (in which the Court found that Christian guest-house owners had discriminated against a same-sex couple in refusing them a double-bedded room).

Moreover, as Judge Brownlie takes pains to point out, this application of the law on direct discrimination in circumstances of refusal of a service because of the purchaser?s links to a gay cause were specifically envisaged by the Office of the First Minister and Deputy First Minister following the enactment of the 2006 Regulations. As the consultation response produced in 2008 by Ian Paisley and Martin McGuinness? Office stated:

In respect of ?Christian businesses? ? the Government is firmly of the view that any person or organization which opens a business to the public ? has to be prepared to accept the public as a whole no matter how that public is constituted.

It ill befits the DUP to plead ignorance to the reach of this legislation and to decry its impact upon Ashers, as they have done for the last year (whilst pushing for the introduction of a new ?conscience clause? in discrimination legislation). If from Lee?s perspective the ?Gay Cake? case (a description certain to leave future generations puzzling over the sexuality of baked goods) is about the ability to engage in ordinary activities without discrimination, for the McArthur family the judge?s overriding message should be that individuals remain under an obligation to abide by law even if they disagree with it. A conscience clause will not ?address? such situations, it will simply lead to gay people facing circumstances in which they can be refused goods or services without warning.

The McArthurs? efforts to cite reasons of conscience for refusing the law could be styled as a form of civil disobedience, but doing so might well over-egg a refusal of service that has resulted in a £500 compensation order. This is not persecution as a result of belief. The law in Northern Ireland should and does (in line with Article 9 ECHR) protect people?s ability to hold Christian beliefs (or, at least, particular interpretations of biblical texts), but it does not advance the substance of those beliefs in such a way as to disadvantage those who do not hold them. Stripped of all of the hyperbole, there could only be one outcome in this case. If the decision is appealed, and the sorry saga continues, these fundamental features of the law in Northern Ireland are not going to change.

GuestPost - Mon May 18, 2015 09:44
We are pleased to welcome this guest post by Professor Michael Doherty, Maynooth University. Whenever a suggestion is made to strengthen the collective bargaining rights of trade unions in the workplace, the cry that ?the multinationals won?t wear it? is never far behind. However, Ireland currently has the weakest legal protection for collective bargaining (the(...)

We are pleased to welcome this guest post by Professor Michael Doherty, Maynooth University.

Whenever a suggestion is made to strengthen the collective bargaining rights of trade unions in the workplace, the cry that ?the multinationals won?t wear it? is never far behind. However, Ireland currently has the weakest legal protection for collective bargaining (the rights of workers to have trade unions or representative groups negotiate terms and conditions of employment on their behalf) in the Western world. Even in the USA, employers can be forced to negotiate with trade unions if certain conditions are fulfilled, under laws dating back to the 1930s.

The Industrial Relations Amendment Acts 2001-2004 attempted to address this issue. The Acts allow a trade union, which represents members in a workplace where the employer refuses to bargain with the union, to get a legally binding order from the Labour Court in respect of specific issues related to terms and conditions of employment. The Acts, in section 5 (2), however, explicitly prohibit the Labour Court from ordering that collective bargaining take place.

Up until 2007, this legislation was becoming more and more frequently used by trade unions. Research I carried out showed that unions were taking actions under the legislation mostly against non-union indigenous employers in relatively low-pay sectors, like retail and security (again, indicating the ?threat to US multinational investment? argument has always been misplaced). The research also showed that the Labour Court, in its decisions, was effectively ?bench-marking? employers against comparators in the sector in question, and refusing union claims where the employers were in line with the ?going rates?.

However, in 2007, the Irish Airline Pilots Association (IALPA, a branch of IMPACT) sought to negotiate with the airline Ryanair about various issues on behalf of members. Ryanair, as is its policy, refused to negotiate with the union and, as a result, the union invoked the procedures under the Acts. When both the Labour Court and the High Court found against it, Ryanair appealed to the Supreme Court, where its complaints about the Labour Court?s operation of the legislation were upheld. The case was remitted to the Labour Court for re-hearing, but the re-hearing never took place.

It is this 2007 Supreme Court decision, as well as a 2012 recommendation by the International Labour Organisation (ILO), that Part 3 of the just-published Industrial Relations (Amendment) Bill 2015 seeks to address (the Bill, in Part 2, addressees the fall-out from the McGowan decision on Registered Employment Agreements). First, the Bill (section 23) provides a definition of ?collective bargaining? for the purposes of the legislation. The Government has chosen neither to adopt the definition previously proposed by the Labour Court, nor the ILO definition, but to provide for ?voluntary engagements or negotiations? between employers and unions with the object of reaching agreement regarding working conditions or terms of employment.

Secondly, unions cannot take claims under the legislation where an employer does engage in collective bargaining, not with a union, but with a group of workers in the organisation (known as ?excepted bodies?). This was a key factor in the 2007 Ryanair decision. The company argued that it did bargain with workers on terms and conditions of employment, via its Employee Representative Councils. IALPA argued that these Councils were a ?sham?, and the Labour Court agreed, finding that the Councils were organised and controlled by the company and did not engage in collective bargaining. The Supreme Court, however, left open the question as to whether the Ryanair process did, in fact, amount to collective bargaining, but gave little guidance as to how this would be determined. The new Bill (section 23) now explicitly obliges the Labour Court to have regard to the extent to excepted bodies are ?independent and not under the domination and control of an employer?. Factors such as the manner of election to, and financing and resourcing of, such a body; the frequency of elections to such a body; and the length of time the body has been in existence will need to be considered by the Labour Court. Furthermore, where an employer asserts to the Labour Court that it does engage in collective bargaining with groups of employees (but not a trade union), the employer must satisfy the Labour Court that this is the case.

Thirdly, the new Bill (section 26) explicitly requires the Labour Court, in examining whether to make a recommendation to improve the pay and conditions offered by any employer, to look at ?the totality of remuneration and conditions of employment of comparable workers employed in similar employments?, whether or not such workers are unionised. This, as indicated above, has generally been the Court?s approach in any case, but the Bill also requires the Court to have regard to the sustainability of the employer?s business in the long-term.

Finally, concern had been expressed by commentators, and the ILO, about possible victimisation of workers seeking to invoke the provisions of the legislation. The legislation will be used, by definition, in workplaces where the employer refuses to negotiate with a trade union (as, of course, is the employer?s right). This could result in workers being fearful of coming forward to the Labour Court in order to give evidence on whether or not collective bargaining actually occurs. The new Bill (section 25) seeks to address this by allowing senior trade union officials to make a statutory declaration to the Labour Court setting out the number of union members who are employed by the employer and are party to the dispute, without identifying individuals, and the Labour Court can examine the veracity of this declaration. The Bill also (section 30) beefs up protections for individuals who are victimised as a result of providing evidence, assistance or information to the Labour Court in the course of its investigation into whether a trade dispute exists. Section 6(2) of the Unfair Dismissals Act 1977 is amended to include dismissal of such individuals as being unfair, and provision is made to allow individuals to apply to the Circuit Court for interim relief pending determination of the unfair dismissal claim.

The new Bill is a big step forward in protecting the rights of trade union members working for employers who refuse to negotiate with the union. It may also be useful to unions to use as a ?springboard?; to demonstrate to non-members in a particular workplace the value of unionisation. However, some key matters of interpretation remain.

The use of the term ?voluntary engagements? in the definition of collective bargaining is odd, to say the least, and not one that is familiar in similar laws elsewhere. Much was made in the Ryanair decision of the ?ordinary dictionary definition? of collective bargaining. A cursory look at some dictionary definitions of ?engagement? indicates the barristers will be digging out their OEDs in the not-too-distant future. How this is construed by the Courts will be extremely interesting. It would be preferable if this term were simply removed from the legislation, in line with international norms. It would also be preferable if the legislation included a duty to bargain ?in good faith?, and obliged the employer to disclose certain information to trade union or worker representatives (as per sections 181 and 182 of the UK Trade Union and Labour Relations (Consolidation) Act 1992).

Secondly, the ability of the Labour Court to establish if a non-union bargaining is genuinely independent will, ultimately, be the fundamental determinant of the success, or otherwise, of the law in protecting worker and trade union rights. Where an employer can demonstrate that it does carry on engagements (that word again?) or negotiations with the object of reaching agreement regarding wages or other conditions of employment with a group of workers, the procedures under the legislation cannot be invoked. A law on paper that can be circumvented by employers applying pressure (lawful or otherwise?) to their workforce to surrender employment rights will remain just a paper exercise.

Finally, it is somewhat disappointing, if unsurprising, that the legislation is not to apply where the number of workers party to the trade dispute is ?insignificant? having regard to the total number of workers employed by the employer (section 24 of the Bill) unless ?exceptional and compelling? circumstances exist. If collective bargaining is a fundamental right, as it clearly is under international and European law, it is not clear why I should be denied the exercise of my right just because I am in a minority in my workplace. Fundamental rights are not suspended at the office, or factory, entrance.


Professor Michael Doherty is Head of the Department of Law at Maynooth University.

GuestPost - Mon May 18, 2015 09:21
Human Rights in Ireland welcomes this guest post on the marriage equality referendum and children’s rights from Prof. Ursula Kilkelly. Ursula is Dean of UCC School of Law and an international expert in rights of the child. Debate on the proposed constitutional amendment introducing marriage equality into Irish law has been dominated by its potential(...)


Human Rights in Ireland welcomes this guest post on the marriage equality referendum and children’s rights from Prof. Ursula Kilkelly. Ursula is Dean of UCC School of Law and an international expert in rights of the child.

Debate on the proposed constitutional amendment introducing marriage equality into Irish law has been dominated by its potential impact on children. Claims have been made that children have a right to a mother and a father which will be violated by granting same sex couples the right to marry. It has been argued that the extension of marriage to same sex couples will redefine the family under the Constitution with consequences for children?s interests and rights, especially in the creation of families through surrogacy, donor assisted human reproduction (DAHR) and adoption. This post responds to these assertions while arguing that in fact the adoption of marriage equality will strengthen children?s rights in Ireland.

Marriage grants no right to have children, regardless of gender or sexual orientation, and confers no entitlement to create a family through adoption, surrogacy or DAHR. Indeed, family law matters concerning children are determined by what is in the best interests of the child and this will not change with marriage equality. Adoption law requires that the welfare of the child is the paramount consideration and Irish law was recently strengthened so that the child?s best interests are paramount in guardianship, custody and access matters. In addition, the Children and Family Relationships Act 2015 requires the courts to have regard to a range of factors or circumstances relevant to the child and his/her family when making decisions in this area, in a measure that will mean an even greater focus on the child?s interests in such decision-making. Although the 2015 Act includes some measures designed to protect information as to the child?s identity when born through DAHR, comprehensive legislation governing surrogacy and assisted reproduction is long overdue. This is clearly necessary to protect the rights of all children born in this way, whether their parents are married or unmarried, heterosexual or same sex couples. Despite its importance, the need for a comprehensive regulatory and legislative regime for surrogacy and D/AHR exists independently of any constitutional proposal for marriage equality.

International human rights law recognises the importance of parents to children and their development. However, no right to a mother and a father has been recognised either by International or by Irish law. Rather, what international law protects is a child?s right to respect for family life and family relationships. This is particularly evident from the case-law of the European Court of Human Rights given effect in Irish law in the European Convention on Human Rights Act 2003. This makes clear that family life ? the existence of close personal ties which can be based on biological and/or social relationships ? is worthy of legal protection under Article 8 of the European Convention on Human Rights.

The Convention on the Rights of the Child (CRC)? adopted by Ireland and 192 other states ? reflects the importance of the family to children noting in its Preamble that a child ?should grow up in a family environment, in an atmosphere of happiness, love and understanding?. The CRC refers interchangeably to ?parents? and ?legal guardians? and makes no reference to ?marriage? or ?married parents?; it does not mention ?fathers? at all and refers to ?mothers? only in the context of pre and postnatal care. Importantly, the terms ?family? and ?family environment? are repeatedly mentioned throughout the Convention and, in provisions like Article 5, the CRC adopts an inclusive approach to the family, incorporating a range of family forms including the extended family community. The CRC acknowledges that some children cannot be cared for by their birth or biological parents for a multitude of legitimate reasons (which have nothing to do with the children themselves) and it is implicit in the Convention that no one particular family type can fulfil children?s needs.

The CRC recognises the right of the child as far as possible to know and be cared for by his/her parents, while also providing for the right of the child to maintain contact with them. However, the CRC cannot be used to assert that every child has an absolute right to be raised by his/her birth, biological or genetic parents. Again, the emphasis here is on providing protection for the child?s family relationships, rather than entitling the child to be reared only by his/her biological mother and father. The child?s right to identity (of which genetic identity is just one part) although important, is distinct and separate from the question of who provides the child with family care. What is important to children?s well-being ? and frequently to children themselves – is not simply who their biological or birth parents are, but the quality of the care, support and security that they receive in their families in the here and now. Research increasingly shows that the quality of children?s relationships with their carers is what affects children?s lives and life chances.

We know that for various reasons marriage often (although clearly not always) provides the stability that children need to develop and grow with confidence. Its legal protections set it apart from other forms of relationship recognition and registration, including civil partnership which in Ireland ignores children altogether. Civil marriage is an important commitment, undertaken by those who desire formal, public endorsement of their relationship and it confers important legal protections to the parties. While it has been deemed legitimate in certain circumstances to treat a married couple different from an unmarried couple, it is not permissible to discriminate against children on the basis of their parents? marital status. Although the unjust concept of ?illegitimacy? has been abolished, children in non-marital families ? including but not limited to children whose parents are a same sex couple – continue to experience inferior treatment under the law. Although the Children and Family Relationships Act 2015 makes it easier for guardians to be appointed to children in such situations, it remains the case that their relationship with their parents does not attract the same legal protection as children born to married parents. It follows therefore that rather than undermine children?s interests and rights, the adoption of marriage equality would represent further progress to equalise the position of all children. In particular, it would offer children the benefit of the legal protections that marriage affords regardless of whether it preceded or succeeded their arrival into the relationship. For children, none of these things matter.

Despite the changing nature of the Irish family, we continue to idolise marriage as if it were the only family form in existence and the only way to provide children with the love and security that they need. The irony is that notwithstanding the pledge of the Irish Constitution, Ireland has never fulfilled its promise to protect the family and our dismal record in the protection of the rights of children is known worldwide. If Ireland were a truly child-friendly state we would ensure by law that all children are entitled without discrimination to respect for their family relationships. We would put in place a legal regime that respects and protects children equally regardless of their different circumstances and the diversity of their families and that protects children?s rights regardless of how they were conceived and to whom. And we would permit those who wish to do so to marry and separately, set the bar high for everyone ? regardless of gender or sexual orientation ? with the legal responsibility to support, protect and nurture children.

Human Rights in Ireland >>

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