Human Rights in Ireland

Within its core obligations, the Fiscal Compact Treaty fails to secure basic values such as clarity and predictability. It omits express explanation of certain fundamental issues, which I want to clarify in order to inform debate on the document. This is a text rich in ambiguity. How that ambiguity will be resolved is critical. The ‘No’ side will cite the ambiguity as the space from which austerity will be imposed. The ‘Yes’ side will try to show the ambiguity is rooted in concessions to make the text weaker and more flexible. If we as a nation do vote yes, it should not be a passive yes. We often deride the referendum process – but it helps to stop and closely examine the text, to find out points of concern and act to defend our interests. If the referendum campaign identifies genuine concerns, the government must take steps to mark out our interpretations, to build support for our interpretations.

It is clear that the drafters, so long familiar with the self-contained, uniquely self-perpetuating universe of European Union Law, have been passive in dealing with some key factors which emanate from the fact that this intergovernmental treaty. Its terms and interpretation will be guided by the rules of general public international law. I believe there are key omissions and ambiguities in the document, which actually offer opportunities to both the ‘Yes’ and ‘No’ sides in the forthcoming referendum campaign. There are two pretty standard clauses you would expect to be in here, that are not.

(1)    A clause regulating withdrawal from or revocation of the Treaty

(2)   A clause regulating the ability of parties to lodge reservations or interpretive declarations Read Full Post »

In what was a surprise to most of the political establishment, the Taoiseach has just announced that the Government has decided to hold a referendum on the Fiscal Treaty. Speaking in the Dáil this afternoon Taoiseach Enda Kenny stated:

Throughout the process leading to this new Treaty, the Government has consistently said that the final text would be referred to the Attorney General for her advice as to whether a referendum was required to ratify it in Ireland. At this morning’s Cabinet meeting, the AG conveyed her advice that, as this treaty is a unique instrument, outside the European Union treaty architecture, on balance, a referendum is required to ratify it. On foot of this advice, the Government has decided to hold a referendum on this issue in which the people of Ireland will be asked to give their authorisation for the ratification of this treaty.

We here at Human Rights in Ireland had identified a number of possible reasons why a referendum might be required, centering mainly on the unclear demands of Article 3 of the Treaty, the potential for enforcement by the European Court of Justice and the conditioning of the disbursing of European Stability Mechanism funds on compliance with the Treaty’s terms. Read Full Post »

Supergrass. A word forever associated with Northern Ireland in the 1980s. A bit like crispy pancakes and Dallas, it was difficult to grow up in the province in the 1980s and escape exposure to the stream of supergrass trials (not that I’m claiming the exposure had as much immediate impact on my three-year-old self as, well, crispy pancakes). Read Full Post »

Supreme Court judgments are coming thick and fast at the moment as two of the members of the bench (Finnegan and Macken JJ.) are set to retire at the end of the month. Last Thursday alone five judgments were issued including one rejecting a constitutional challenge to the Criminal Law (Sexual Offences) Act 2006. In another of the judgments, the focus of this post, a constitutional challenge had greater success.

Damache v DPP [2012] IESC 11 centred on the constitutionality of s.29(1) of the Offences Against the State Act 1939, as amended by s.5 of the Criminal Law Act 1976. The appellant was initially suspected by the Gardaí of involvement in a conspiracy to murder Lars Vilks, a Swedish cartoonist who had depicted the Islamic prophet Mohammad with the body of a dog. The appellant was also suspected of making a threatening phone call to an individual in the US. Following approximately six months of investigation, the Gardaí decided to search the dwelling of the appellant and, under the terms of s.29(1) as amended, Detective Superintendent Dominic Hayes issued a search warrant for that dwelling. The warrant was issued on March 8^th 2010 and executed on the following day. Read Full Post »

Another Labour presidency; yet another polemic on non-“neutral” political speech seen as transgressing constitutional limits. In the course of her attempt to expand the traditional political boundaries of the office, Mary Robinson provoked a good deal of controversy – for example, in her meeting with the Dalai Lama, and her infamous handshake with Gerry Adams. The perceived limits of the presidential office are often assumed to be derived from the Constitution, but are often simply the product, at least in part, of contingent political customs and expectations. Last week’s controversy as to whether President Higgins was constitutionally entitled to express political views on privatisation goes to the core of the broader question of whether the Presidency is, as sometimes assumed, a non-“political” (as opposed to non-partisan) institution – and indeed, what, if anything, it might mean for a President to be politically “neutral”, in conduct and speech. Indeed, in one of the Prime Time debates during the recent election campaign, one of the few revealing questions asked of the candidates was whether they saw the Presidency as a “political” office (Michael D Higgins was one of the few candidates who said it was).

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We are very pleased to welcome this guest post from Anthea McTeirnan, journalist and reproductive rights activist. These are the remarks that she delivered to the Action on X public meeting in the Gresham Hotel on Tuesday the 21st of February.

Why must men always fight their battles for control on the bodies of women?

Why can’t women be trusted to make the right choices? Why shouldn’t women be trusted to make the right choices?

We are the experts. We make our choices with careful thought, with intelligent consideration. Sometimes with sadness, sometimes with relief – but always with responsibility.

Our bodies are just that. They are our bodies. It is not a cliché – it is a fact.

We have argued over women’s reproductive rights for so long. The putative womb of Irish women has been kicked around our courts and debating chambers as men in wigs have bickered over whether women in Ireland are fit or capable of making our own decisions.

We have not yet decided whether they are. Read Full Post »

A Fianna Fáil senator, Averil Power, has published a bill which would prohibit discrimination against teachers on grounds of sexual orientation. Having enacted and maintained the current provisions in force during its years in office, the party seems to have performed an about-turn on this issue: leader Micheál Martin said: “As a republican party, a commitment to fighting discrimination in all forms is a core value for Fianna Fáil.”

The bill is conceived of as a partial corrective to the controversial, broad exemption currently provided for denominational schools in employment equality law.  Section 37 of the Employment Equality Act 1998 exempts denominational schools from the scope of the prohibition on employment discrimination where such discrimination is “reasonable” in relation to the need to “maintain the religious ethos of the institution. This is a vague formulation, to say the least, and its scope is unclear. The exemption is not explicitly confined to discrimination on religious grounds. At minimum, it is considered to allow schools to discriminate in favour of coreligionists. This is not, however, confined to teachers with a role in religious instruction, as there is no explicit requirement that the relevant form of discrimination should be necessary to an  “occupational” function, specifically. This may derive from the idea that a religious ethos is meant to pervade the whole of a school environment, and so can legitimately command deference from all school employees. It appeals to teachers’ role in in communicating, promoting and even personifying a school’s peculiar set of values: in John McGahern’s terms, teachers in Ireland were traditionally conceived of as the “second priesthood”.[i]

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Last night I attended and spoke at a public meeting organised by Action on X, a lobbying and campaigning organisation established to pressurise the government into introducing legislation for the X Case (Attorney General v X [1992] 1 IR 1), which is now 20 years old. As readers are likely to know, there is currently (yet another) Expert Committee considering options in light of X and of the ECtHR decision in A, B & C v Ireland and they are expected to report in four months’ time. In the meantime, the technical group in the Dáil made up of ULA and independent deputies will today initiate a bill to legislate for X, which will be debated in private members time on April 18 and 19. In this post I want to outline briefly the case for legislation and highlight the unconscionability of a 20-year legislative vacuum in light of the decision of the Supreme Court. Read Full Post »

Judges in England and Wales have long been sensitive of the boundaries of their authority under the Judicial Review jurisdiction. Lord Hope recently sought to highlight the limits of the judicial role in the Axa Insurance (2011) case, by contrasting it with the focus of Parliament (at [49]):

While the judges, who are not elected, are best placed to protect the rights of the individual, including those who are ignored or despised by the majority, the elected members of a legislature of this kind are best placed to judge what is in the country’s best interests as a whole.

Today the High Court provided a nuanced judgment in a judicial review action brought over the raise in university tuition fees to a maximum of £9000 which will be introduced in September 2012. Although the claimant teenagers (Katy Moore and Callum Hurley, pictured above left) were unsuccessful in their bid to have the Court quash the Higher Education (Higher Amount) Regulations 2010 which introduced the fees, the judges did recognise that ministers had failed to fully carry out some of their Public Sector Equality Duties (PSEDs), which require that consideration be given to whether the decision to increase tuition fees had a disproportionate (and hence, potentially indirectly discriminatory) impact on protected groups within society. Read Full Post »