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Category: Human Rights

In the inugural Arthur Browne lecture, Prof Gráinne de Búrca says that EU anti-discrimination law is not really in decline

17 May, 201618 May, 2016
| No Comments
| Conferences, Lectures, Papers and Workshops, ECJ, Human Rights

Arthur Browne KC MP (1756-1805) (pictured left; see wikipedia | DNB) was a Regius Professor of Law in Trinity College Dublin, and a leading Irish lawyer and politician, at the end of the eighteenth century:

Browne was one of the most distinguished academic lawyers to teach in Trinity College, Dublin, perhaps the ablest. His writings are still worth reading; and not merely for their historic interest. His life reveals a lawyer of wide culture and compassion, who tried in the turmoil and cruelty of eighteenth century Ireland to reconcile opposition to popular violence and an attachment to the established state and church with opposition to arbitrary state power. His views on legal education and on many aspects of the law were enlightened for the time. Browne deserves a place in the history of Irish law, and not merely as the last Irish Prime Serjeant.

[Paul O’Higgins “Arthur Browne (1756-1805):
An Irish Civilian” (1969) 20 NILQ 255, 270].

The Irish jurist Arthur Browne was one the most gifted legal scholars of eighteenth-century Ireland; he was also an educator, an advocate, and a parliamentarian. Born in America of Irish parentage, Browne studied at Trinity College, Dublin, eventually becoming professor of civil law and publishing works on civil, admiralty, and ecclesiastical law at the turn of the nineteenth century.

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The spirit of Madison, and not his ghost

14 January, 201315 January, 2013
| No Comments
| Human Rights, Irish Law, Irish Society

James Madison, via WikipediaRights matter when their exercise is unpopular. It is easy to exercise a right when no-one else objects. It is when some-one else objects, and seeks to prevent its exercise, that the right to do so becomes crucial. This is particular so when the majority object, and seek to rely on the force of numbers to prevent its exercise. That is precisely when the right is at its most important, and most necessary. As Kearns P (Carney and Hogan JJ concurring) put it in Fleming v Ireland [2013] IEHC 2 (10 January 2013),

51. … If, accordingly, the plaintiff’s constitutional rights extend as far as the manner claimed, then the fact that she is exercising those rights in a manner and for a purpose which some might consider contrary to their own ethical, moral or religious beliefs – or even the prevailing mores of the majority – is irrelevant.

This is an extremely important holding as to the nature of constitutional rights. Fleming itself is a very sad and difficult case in which a Divisional Court of the High Court unanimously upheld the the ban on assisted suicide in section 2(2) of the Criminal Law (Suicide) Act, 1993 (also here) (see Paul McMahon on Ex Tempore | Conor O’Mahony on Constitution Project @ UCC).…

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Is The Rights’ Future writing’s future too?

6 October, 20106 October, 2010
| 2 Comments
| Human Rights

Conor Gearty, via his site.A perennial problem in academic writing is the lack of feedback along the way. Academics can run ideas by other academics and in class; works in progress can be presented at research seminars; and published papers can provoke published replies. In response, the original idea can be refined, and the process of iterative development can continue. One way to short-circuit the process is to publish ideas in early draft form on blogs and similar sites (and many of the posts on this site are well on their way to incorporation into academic articles). Conor Gearty (pictured right) has come up with a really interesting way to go further, a collaborative means by which he can garner, engage with, and incorporate significant online feedback on his writing during the course of the writing.

Moreover, what he will write by this means is very important: a book entitled The Rights’ Future in which he will consider nothing less than the future of human rights. In his view, they are

the only potentially radical and genuinely universal idea available to us in this post-socialist world of fear, money and lost souls. Too important to be left to lawyers but too subversive to be handed over to the politicians alone, human rights need the intellectuals, the workers and the streets if their model of a new kind of society has any chance of beginning to be built.

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Does the Irish Constitution prescribe a wall between Church and State?

27 October, 20098 November, 2009
| 5 Comments
| Human Rights

Image of mass cards, via Clerical Whispers blogThomas Jefferson wrote that the First Amendment to the US Constitution erected “a wall of separation between Church & State”. This doctrine of the separation of church and state is taken to work both ways: a secular government should not establish or endow a formal state religion, and religious exercise should be free of state interference. The Irish provisions on this issue are contained in Article 44 of Bunreacht na hÉireann (the Irish Constitution):

1. The State acknowledges that the homage of public worship is due to Almighty God. It shall hold His Name in reverence, and shall respect and honour religion.

2.1° Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen.

2° The State guarantees not to endow any religion.

3° The State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status. …

Section 99 of the Charities Act, 2009 (pdf) raises many questions for this Article. It provides

(1) A person who sells a Mass card other than pursuant to an arrangement with a recognised person shall be guilty of an offence. …

(3) In this section … “Mass card” means a card or other printed material that indicates, or
purports to indicate, that the Holy Sacrifice of the Mass … will be offered …

[and] “recognised person” means (a) a bishop … or (b) a provincial of an order of priests … [of the Holy Catholic Apostolic and Roman] Church …

In yesterday’s Irish Times, David Kenny – who is working on a PhD the place of religion in the Irish Constitution in the School of Law, Trinity College Dublin – considers the various issues that have arisen in a current challenge to the constitutionality of section 99:

Judgment expected soon on challenge to Mass card regulations

The High Court recently devoted four days to a case which explored the extent to which a particular religious practice could receive protection from the State.

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New kids on the block

11 September, 200911 September, 2009
| 1 Comment
| Blogging, Human Rights, Irish Law, Sedition

Fiona de Londras, via UCD law school websiteI’ve just discovered the wonderful new(ish) blog Human Rights in Ireland, a group blog about – well, the clue is in the name – human rights issues in Ireland and Irish scholarship about human rights more generally. With apologies for the nkotb title, I can say without fear of contradiction that there’s lots of great stuff there; one piece in particular caught my eye, by Fiona de Londras (pictured above left):

Terrorist Propaganda or Political Speech?

In Ireland we are quite accustomed to our freedom of expression being significantly limited where that freedom is abused. This results from the express limitations in both Bunreacht na hÉireann (the Irish Constitution) and Article 10 of the European Convention on Human Rights. International law also prohibits propaganda to war as our colleague Michael Kearney has explained and examined in detail in his book The Prohibition of Propaganda for War in International Law (2007, OUP). In the United States, however, the constitutional protection of free speech (First Amendment), while not absolute, is certainly broader than is the case in Ireland or indeed under the ECHR. This makes the appeal argument by counsel for Al Hamza Ahmad Suliman al Bahlul—the only person currently in Guantánamo Bay to have been convicted of an offence relating to the ‘War on Terrorism’—all the more interesting.

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FoE in the EHRLR

8 August, 200916 November, 2015
| 3 Comments
| Blasphemy, Censorship, criminal libel, Defamation, ECHR, EU media policy, Freedom of Expression, Human Rights, Legal Journals and Law Reviews, libel tourism, Sedition

EHRLR cover, via ECHR BlogThe current issue of the European Human Rights Law Review ([2009] 3 EHRLR | table of contents (pdf) | hat tip ECHR blog) contains a wonderful piece by my colleague Dr Ewa Komorek entitled “Is Media Pluralism a Human Right? The European Court of Human Rights, the Council of Europe and the Issue of Media Pluralism” [2009] 3 EHRLR 395.

Here is the abstract (with added links):

The need for pluralist media stopped being purely a national concern a long time ago and thus it has for decades been subject to scrutiny by the Council of Europe and the European Court of Human Rights. Media pluralism has always come to their agenda as a prerequisite for freedom of expression guarded by Article 10 of the European Convention of Human Rights. It is important to distinguish the two ‘faces’ of media pluralism: internal (which may also be called content pluralism or diversity) and external (or structural). This article focuses on television broadcasting and argues that while the Court of Human Rights has essentially been successful in safeguarding internal pluralism, the protection of structural pluralism proved more difficult to achieve by means of the Court’s case law. This prompted the Council of Europe to step in and attempt to fill the gap with regulatory proposals.

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Another twist in the tale of the Defamation Bill

17 July, 200925 July, 2013
| 13 Comments
| Blasphemy, criminal libel, Defamation, Defamation Bill 2006, Freedom of Expression, Human Rights, judges

Áras an Uachtaráin = Residence of the President of Ireland, via the President's siteThe saga of the Defamation Bill, 2006 is not over yet. Article 26 of Bunreacht na hÉireann (the Irish Constitution) allows the President, after consultation with Council of State, to refer a Bill to the Supreme Court for a determination of its constitutionality. President McAleese has chosen to convene the Council of State to advise her on the qustion of whether to refer not only the (controversial) Criminal Justice (Amendment) Bill, 2009 (an unsurprising move) but also the (equally controversial) blasphemy elements of the Defamation Bill, 2006 (which has come as a great surprise). (See Belfast Telegraph | BreakingNews.ie | Bock the Robber | ICCL | Irish Emigrant | Irish Independent | RTÉ news | Irish Times | PA | Slugger O’Toole. Update (18 July 2009): see also Irish Examiner | Irish Times here and here | Irish Independent | MediaWatchWatch).

There have been 15 such references to date. If the Court holds that a Bill is unconstitutional, the President must decline to sign it; whilst if the Court decides a Bill is constitutional, the President must sign it into law, and the resulting Act is immune from constitutional challenge in the future.…

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The power of letters

24 February, 2009
| 1 Comment
| Censorship, Conferences, Lectures, Papers and Workshops, data retention, Human Rights

Front page of today's Guardian, via the Guardian's siteShami Chakrabarti, director of Liberty (the National Council for Civil Liberties), has an editorial letter published in today’s Guardian which begins:

Sir – 75 years ago today, in a Britain strained by economic crisis and social unrest, and in the long shadow of international conflict, the birth of the National Council for Civil Liberties was announced in a letter to this newspaper.

Little has changed. As is reported elsewhere in the same edition, students from the University College London Student Human Rights Programme, have prepared a report setting out the current assaults on liberty in the UK, under the suitably Orwellian title of The Abolition of Freedom Act 2009. It was prepared for this weekend’s forthcoming Convention on Modern Liberty (organised by the UK’s leading human rights campaigners, including Liberty and the Guardian) and it makes for chilling reading.

The situation is equally as grim in Ireland. Today’s Irish Times carries an article by Elaine Byrne on a forthcoming report prepared by her for Transparency International on serious shortcomings which have weakened the quality of Ireland’s democracy. The same edition carries an article on the financial costs associated with the forthcoming data retention regime being challenged by Digitial Rights Ireland.…

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Hi there! Thanks for dropping by. I’m Eoin O’Dell, and this is my blog: Cearta.ie – the Irish for rights.


“Cearta” really is the Irish word for rights, so the title provides a good sense of the scope of this blog.

In general, I write here about private law, free speech, and cyber law; and, in particular, I write about Irish law and education policy.


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