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.

His collaborative process will involve “the intellectuals, the workers and the streets” in the writing of The Rights’ Future. Beginning this evening with a RIGHTS’ MANIFESTO on The Rights’ Future website, each week for the next three months or so, Gearty will publish a chapter of the book online in the form of a 2,000 word essay, which will probe the history of human rights, address their present state in the world and map out some of the possible futures that await this morally important but highly contested phrase. Each essay will be open to online discussion and debate; at the end of the week, Gearty will summarize the responses and the impact they have had on his thinking, and he will adapt and improve his original thoughts on foot of this engagement. The process will begin again the following Monday with the next 2,000 word essay.

This seems to me to be a fantastic use of the internet, replacing the loneliness of the cloistered ivory tower intellectual with the collaborative wisdom of crowds. It doesn’t quite go as far as sites like Wikipedia, but it is an excellent means to obtain real-time interaction with people who are genuinely interested in the issues. I wish I’d thought of it first; I will certainly be participating; and, depending on the way the site and debate develop, I will probably cross-post some of it here. Moreover, some version of this model will doubtless become a familiar means of writing in the future.

Thomas 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. …

The High Court will shortly give judgment in the case of McNally v Ireland, a constitutional challenge to section 99 of the Charities Act 2009. … If Mr McNally prevails, it will set a limit on the subtle elision of church and State and the favouring of religion. If he loses, the judgment will join those narrowing the scope of the discrimination guarantee as another indication that the State may constitutionally show significant favour to religion, even one particular religion. Mr Justice John McMenamin is expected to give judgment in coming weeks.

More background: Clerical Whispers blog here, here and here | Mass card sale ban challenged in court | Court fight begins on Mass card monopoly | Challenge to Mass card ban | Suspended priest’s name on Mass cards, court told | In Short – Judgment reserved in Mass card case.

The always-excellent Human Rights in Ireland blog has two wonderful posts on the case, one when it began, and the other picking up Kenny’s Irish Times piece, and Eoin O’Mahony (who has a comment below) has a very thoughtful discussion of this post.

I’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. …

If you want to know more about the Irish position on this issue, I’ve blogged about it briefly in a post on Terrorism and Speech as well as in my more general posts on Sedition. If you want to know more about the argument that counsel for al Bahlul is making, read all about it in the remainder of Fiona’s post. Welcome to the Blawg O’Sphere, Human Rights in Ireland – I am certain that you will rapidly establish yourself as the pre-eminent online forum for discussion of human rights issues in Ireland and abroad. Go n-éirí go brea leis an dea-obair!

The 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. The conclusion is that although there is still a need for a binding ex ante action at the European level aimed at safeguarding pluralism in this ever concentrating sector, the efforts of the Council of Europe and the judgments of the European Court of Human Rights are vital for awareness raising and stimulating debate.

In Ewa’s view, therefore, media pluralism should be given a far stronger voice in European debates than it currently enjoys, and one way to achieve this would be to strength its status as a right not only in the Council of Europe but also in the EU. For example, Article 11(2) of the EU Charter of Fundamental Rights provides that “the freedom and pluralism of the media shall be respected”, and Ewa’s compelling analysis of the cognate Article 10 can go a long way towards giving full effect to this provision. But this is not the only interesting piece in the journal. Indeed, this issue is a veritable Aladdin’s Cave of fascinating articles: Read the rest of this entry »

The 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. As my colleague Oran Doyle has pointed out, this means that

… unlike in ordinary constitutional litigation, a decision made under the Article 26 reference procedure without consideration of a particular issue cannot be reopened when that issue is brought to light by another aggrieved litigant. … The tenor of the court’s reasoning in several references suggests that the court is more likely to hold legislation unconstitutional when the effect of its decision is absolute immunity for legislation considered only in the abstract.

Admittedly, the reference procedure is imperfect (see, eg, Niamh Howlin “Shortcomings and anomalies: Aspects of Article 26″ (2005) Irish Student Law Review 26 (pdf)), but if it means that the odds are in favour of striking down the blapshemy provisions of the Defamation Bill, then bring it on!

The last sentence of Article 40.6.1(i) of the Constitution provides that the publication or utterance of blasphemous material shall be an offence. In Corway v Independent Newspapers [1999] 4 IR 484 (SC), the Supreme Court declined to give any effect to the constitutional clause in the absence of a statutory provision, but that decision will be of little help in any Article 26 reference. Rather more recently, in R (on the application of Green) v The City of Westminster Magistrates’ Court [2007] EWHC 2785 (Admin) (05 December 2007) (discussed on this blog at the time), a Divisional Court of the English High Court held that it was the prevention of imminent public disorder probably which ensured the compatibility of the English common law offence of blasphemous libel with Article 10 of the European Convention of Human Rights:

[17] … The Article 10(2) basis for the crime of blasphemous libel is best found, as it seems to us, in the risk of disorder amongst, and damage to, the community generally.

The key question will be whether the influence of the Convention will mean that the Court will take a similar approach to the Constitution. Let us assume that it will. Section 36 of the Bill provides that

(2) … a person publishes or utters blasphemous matter if—
(a) he or she publishes or utters matter that is grossly abusive 10 or insulting in relation to matters held sacred by any religion, thereby causing outrage among a substantial number of the adherents of that religion, and
(b) he or she intends, by the publication or utterance of the matter concerned, to cause such outrage.

(3) It shall be a defence to proceedings for an offence under this section for the defendant to prove that a reasonable person would find genuine literary, artistic, political, scientific, or academic value in the matter to which the offence relates.

Subsection (3) is a welcome saver, but the main question will be whether subsection (2) is constitutional. There is a large gulf between the outrage envisage by the subsection and the risk of public disorder envisaged by Green. If that case is right, then this provision must be questionable under the Convention; and if a similar approach is taken under the Constitution, then this provision must also be of dubious constitutionality. I will therefore await with great interest both the President’s decision and any subsequent decision of the Supreme Court. Of course, even if she decides not to refer either Bill, a constitutional challenge is likely the first time any of the controversial provisions are invoked. Either way, therefore, the blasphemy provisions of the Defamation Bill will get their day in court.

Shami 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. More generally, the Irish Council for Civil Liberties (ICCL) was formed in 1976 for reasons similar to those which motivated the 1934 letter writers; and – as I have already noted on this blog – it too is one of the organisers of a forthcoming conference on the state of civil liberties in Ireland.

Were it not for such organisations, more of our civil liberties would be eroded by stealth. What liberties we still have we owe to their vigilance. So, what are you waiting for? Get involved: click on the links in this post; click on one of the buttons in the right-hand column; or find your own way to begin to contribute. Lest they perish, we must all do our bit to protect our civil liberties, human rights and fundamental freedoms.

In July 2008, Ireland was examined by the UN Human Rights Committee under the International Covenant on Civil and Political Rights. The report is here (scroll down to the Irish section, click on the E in the right-most column – so far as I can tell, the UN server won’t accept a deeper link, unfortunately), and I’ve discussed aspects of it here. In July 2008, the Free Legal Advice Centres (FLAC), the Irish Council for Civil Liberties (ICCL) and the Irish Penal Reform Trust (IPRT) submitted an excellent shadow report (pdf) to the Human Rights Committee; and they have now come together again to organize a follow-up event to raise awareness of the Committee’s recommendations on Ireland.

It will be held on Monday, 6 April 2009, at the Radisson SAS Hotel, Golden Lane, Dublin 2.

For further information and to book your place, contact Edel at FLAC; and watch out for further conference updates here.
Read the rest of this entry »

On 10 December 1947, the UN General Assembly (resolution 217 A (III) (pdf)) adopted and proclaimed the Universal Declaration of Human Rights after a long drafting process. Since 1950, by way of commemoration of that event, that date has been International Human Rights Day. That makes today the sixtieth anniversary of the UDHR, and the day upon which the UN begins a year-long commemoration of the Declaration, with events planned throughout the year. The UDHR is now available in over 360 languages including Irish, making it the most translated document in the world. According to the UN’s Human Rights Day website:

Th[e] theme for 2008, “Dignity and justice for all of us,� reinforces the vision of the Universal Declaration of Human Rights (UDHR) as a commitment to universal dignity and justice. It is not a luxury or a wish-list.