Category: Irish Law

Fáilte, IJLS!

| 1 Comment
| General, Irish Law, Legal Journals and Law Reviews

UCC Crest, via IJLS websiteAs prefigured here a little while ago, there is a new peer-reviewed Irish legal journal, the Irish Journal of Legal Studies. The publication of Volume 1, Issue 1, 2010 has just been announced on the journal’s homepage, and the contents of the first issue are as follows:

Sexual Violence: Witnesses and Suspects, a Debating Document by Mr Justice Peter Charleton and Stephen Byrne. From the abstract:

This article explores the rules of evidence and criminal procedure as they apply in sexual offence cases, in the context of recent empirical accounts of attrition rates in sexual offences, and having regard to the rights of the accused and the need to maintain a fair balance that limits the potential for injustice.

The Constitution and the Protestant Schools cuts Controversy: Seeing the Wood for the Trees by Eoin Daly. From the abstract:

This article argues that special financial arrangements for Protestant secondary schools, recently controversially withdrawan, constituted a species of constitutionally permissible, if not constitutionally required, accommodation of religion. This controversy also serves as a prism through which to view the broader limitations of the constitutional framework for the guarantee of religious freedom in the education context.

Managerialism in Irish Universities by Professor Steve Hedley.…

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May is the ICCL’s Know Your Rights Month!

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| Digital Rights, Irish Law, Irish Society, Privacy

ICCL Know Your RightsMay 2010 is the ICCL‘s Know Your Rights Month! The ICCL’s Know Your Rights public information project is designed to inform people in clear and accessible language about their rights under various key areas of the law in Ireland. There are two key projects. The first is a series of information packs covering key human rights areas: Criminal Justice and Garda Powers, Privacy and the European Convention on Human Rights. They are written in plain English, and will be updated regularly as the law changes, providing accessible and accurate information. As well as being available for download free of charge, they are also being distributed to libraries and citizens’ information centres nationwide.

The second key project is a series of roadshows to raise awareness of human rights and to help those giving advice on foot of the ICCL information packs. The first of these roadshow events will take place on Wednesday 19 May 2010, from 2:00pm to 4:00pm in the Community and Social Enterprise Centre, 8 North Mall, Cork. Those interested should contact the ICCL’s Joanne Garvey to reserve a place.

I am particularly impressed by the privacy pack, covering the following areas:

This morning‘s Today with Pat Kenny radio show on RTÉ Radio 1 featured a slot on protecting privacy which discussed the ICCL Know Your Rights campaign in general and the privacy pack in particular.…

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Economic Rights in the Drafting of the Irish Free State Constitution

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| Conferences, Lectures, Papers and Workshops, Irish Law, Irish Society, Legal Theory

UCC logoAt the Irish Jurisprudence Society (IJS) Symposium, the fifth paper is being delivered by Thomas Patrick Murray (UCD) on The Politics of Property and Principle: Economic Rights in the Drafting of the Irish Free State Constitution. It is a fascinating use of archival material to underpin a theoretical discussion of the deliberations of the committee drafting the IFS constitution concerning the possibilities of constitutional engineering to create economic constraints and guarantees. In particular, he compares various drafts of various committee members on various issues, and locates their perspectives in their life experiences, religious convictions, and political beliefs. His conclusion is that an initial radical draft of socio-economic rights fell foul of external vested interests and the belief-systems of the majority of the committee.

Murray shows that it is clear from the archives and memoirs that, at the outset, the drafting committee paid significant attention to the economic foundations of the emerging Free State. Although economic freedom was to be secured in the first instance through formal democratic mechanisms, the framers also canvassed a number of binding economic provisions for inclusion. In particular, their focus was upon the principle of economic sovereignty, concerning land (especially farm land) and other natural resources (especially for energy generation) and the right to free elementary education.…

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The Role of Rights in Furthering Democratic Decision-Making

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| Conferences, Lectures, Papers and Workshops, Irish Law, Legal Theory

UCC logoAt the Irish Jurisprudence Society (IJS) Symposium, the second paper was delivered by Dr Darren O’Donovan (UCC) who spoke on The Role of Rights in Furthering Democratic Decision-Making: The Fruitful Conflict between Deliberative Democrats and Critical Race Theorists. Many threads were interwoven into a fascinating cloth. Against the background of the protection of the rights of the travelling community, UK and ECHR case-law concerning the banning of veils and burqas in schools, and special needs education, he strove for participation as a principle for the implementation of rights and and the re-invigoration of a human rights culture. These practical considerations grounded an analysis of two competing perspectives, deliberative democracy as represented by Juregen Habermas and John Rawls, and critical race theory as represented by Iris Marion Young and Melissa Williams. His basic position is that law should be based on a realistic understanding of human behaviour, and that the consequential limits of the law should be properly appreciated. From the abstract:

In deliberative theory, the aim of law, and human rights in particular, is to remove coercion and inequality from democratic decision-making, so that the only influence is the force of the better argument. Much of the work of both deliberative democrats and their critics falls upon the possibility of this ideal consensus.

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The Security State and Constitutional Justice

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| Conferences, Lectures, Papers and Workshops, Irish Law, Irish Society, Legal Theory

UCC logoAt the Irish Jurisprudence Society (IJS) Symposium on Jurisprudence and Legal Theory at University College Cork, the first paper was delivered by Dr Shane Kilcommins (UCC), who spoke about The Security State and Constitutional Justice: the dangers of ignoring a ‘rights-based conception of the Rule of Law’ that ensures that ‘the majority cannot travel as fast or as far as it would like’. His paper traced the present history of penology from Michel Foucault to David Garland. Garland’s work sees the present as a time of the decline of the rehabilitative ideal, the (re)emergence of punitive sanctions and expressive justice, focus on the perspective of the victim, protection by (rather than from) the state, and the (re)emergence of the prison. In many ways, Irish criminologists can point to a similar development in Ireland: the ‘tooling up’ of the executive power of the state thanks to a hyperactive legislature wanting to be seen to be tough on crime.

Kilcommins’ key point however, is that we must not overstate this development, we must not be misled by the uniqueness of the present. He cites Michel Foucault: “we should have the modesty to say to ourselves that the time we live in is not the unique or fundamental or irruptive point in history where everything is completed and begun again”.…

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Referendum should thoroughly revise free speech clause

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| Blasphemy, Freedom of Expression, Irish Law, Irish Society

Celtic Biblical image, via poetheadPart 5 of the Defamation Act, 2009 (also here), which came into effect on 1 January this year, controversially makes blasphemy a criminal offence. In the view of the Minister for Justice, Dermot Ahern, the Constitution’s reference to blasphemy could not be ignored. It now seems that this reference might be removed. If so, the opportunity should be taken to revise the Constitution’s free speech clause in its entirety.

Stephen O’Brien reported in the Sunday Times last week that the Minister for Justice, Dermot Ahern, intends to propose an Autumn referendum to remove the offence of blasphemy from the Constitution (athiest.ie | Attracta | Dispatches | Guardian | Human Rights in Ireland | Human Rights World | Jurist | Bill Tormey | Volokh | William Quill). This was confirmed on Wednesday by Carol Coulter writing in the Irish Times (ABC | Catholic Lawyers | Iona | Sunday Times).

I have long argued that the protection of freedom of expression in the Irish Constitution is very puny indeed and ought to be replaced at the first opportunity. I argue in today’s Irish Times that a referendum to remove the offence of blasphemy from the Constitution would provide just that opportunity:

Referendum on blasphemy should revise free speech clause

The promised referendum to remove the reference to blasphemy from the Constitution should go further, and entirely revamp the very limited guarantee of freedom of expression … Deleting one objectionable word, rather than thoroughly revising the whole gruesome clause, would be equivalent to repairing a single broken slate on the roof of a house which needs complete refurbishment.

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Trouble in the Blog O’Sphere

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| Cyberlaw, Defamation, Defamation Act 2009, Freedom of Expression, Irish cases, Irish Law, Irish Society

Technorati logo, via TechnoratiIt all began innocently enough: just before Christmas, Sunday Times journalist John Burns wrote a piece lamenting the shortcomings of blogging in Ireland. Leading bloggers naturally begged to differ. A month later, the spat was picked up by Trevor Butterworth writing on Forbes.com, who noted that “it’s hard to think of a free country more suited to blogging than Ireland”. By the same token, it’s at least as hard to think of a country more given to litigation; and the point was illustrated by a story retailed almost en passant in Butterworth’s piece:

As one journalist told me, Ireland’s media is currently abuzz over a “confidential” legal settlement against a blogger, who allegedly had to pay almost $140,000 in damages for a libelous post, seen by few, swiftly purged from the site, and readily apologized for.

This was intriguing. By the end of the week, John Burns in the Sunday Times had the full story:

A blogger has agreed a €100,000 settlement after libelling Niall Ó Donnchú, a senior civil servant, and his girlfriend Laura Barnes. It is the first time in Ireland that defamatory material on a blog has resulted in a pay-out. … In December 1, 2006, a blogger who styles himself as Ardmayle posted a comment about the couple … Following a legal complaint, he took down the blog and in February 2007 he posted an apology which had been supplied by Ó Donnchú’s and Barnes’ lawyer … However, the pair subsequently issued separate proceedings.

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On This Day

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| Irish Law, Irish Society

Mairead Enright, on Human Rights in Ireland, writes:

These are special days in the history of Irish constitutional rights. On December 29, 1937 the Irish Constitution came into force, having been passed by a national plebiscite in July. The picture shows Eamon De Valera, architect of the new Constitution and then President of the Executive Council, standing with members of his cabinet at Government Buildings during the inauguration of the new Constitution. On December 28, 1960, the Oireachtas passed the Health (Fluoridation of Water Supplies) Act, 1960, which required local authorities to fluoridate public water supplies to reduce childhood tooth decay. Mrs. Gladys Ryan had a strong objection to the the fluoridation scheme and challenged the constitutionality of the 1960 Act. Her case; Ryan v AG [1965] IR 294, marks the origin of the doctrine of unenumerated rights in Irish constitutional law.

If you feel like celebrating these milestones, why not raise a glass of fizzy pop to the five young Ryans, whose parents – the case report tells us – ‘did not encourage their children to eat sweets, lollipops or ice cream, and [only permitted them] soft drinks … on Christmas Day.’

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