At 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.

Murray the demonstrates that the committee’s sphere of action was quite bounded and indeed subject to influence from outside interests. The main interest of the provisional government was in maintaining social and political order and avoiding controversy. Countervailing economic interests featured too, especially the opposition of the farming lobby to any re-distribution of land. Moreover, the Catholic Church was unhappy with the socio-economic rights proposals, especially the provisions relating to education. The committee therefore kept the constitutional text to the bare minimum to ensure its success; controversial provisions were carefully curtailed; and established interests were assuaged. Murray concluded on this point, then, that, faced with the need to establish the legitimacy of the state, any innovation that might threaten established property-holders or any moral principle that might deny a hierarchical role for the Church was deemed ‘controversial’ and accordingly postponed.

But Muarry goes further. He argues that the members were not only constrained by various social boundaries, they were also necessarily constrained by their own boundaries of thought. In other words, various features of the prevailing discourse facilitated the diminution of the committee’s initial economic provisions. Most members of the committee were in thrall to the assertive Catholic-Nationalist ethos of early twentieth-century Dublin, and this prevailing ‘Irish Ireland’ discourse imposed significant limitations on the possibilities of embedding socio-economic rights in the constitution. Although those few members of the committee from outside of this political culture appear to have been more open to the lived experience of poverty and were more amenable to the substantive promotion of economic rights, their views did not prevail against the established discourse. Murray concluded on this point, then, that the pursuit of ‘Irish Ireland’ amounted to something very like an official othodoxy. Conversely, egalitarian discourses, envisioning a society based on principles of rational-legal equality and interdependent citizenship, came to be suppressed. Consequently, the committee’s initial economic rights proposals greatly watered down; prevailing ‘Irish Ireland’ discuorse meant this was not seen as wrong.

At 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”. Hence, in Kilcommins’ view, Ireland in the early 21st century doesn’t quite fit the Garland narrative; the position is much more nuanced and contradictory, with strong pulls in the opposite direction. For him, the Irish criminal justice is becoming more disaggregated and more contradictory. It is more principled but also more repressive, more instrumental but also more expressive. It continues to emphasise protection from the State, but increasingly also protection by the State. It embodies more authoritarianism but also more pluralism. It involves more monopolised criminal control but also more fragmentation and blurring of boundaries. In particular, for him, whilst legislation is more control-based along Garland lines, the courts are operating as a check on these developments:

The liberal ideology of legalism and constitutionalism has delivered, and continues to deliver, significant protections to those accused of crime that set some limits to the power of the State and the ‘tyranny of the majority’. Though discounted in crime control literature, it has a power and a reach that remains significant and real. Its embedded nature offers more than token resistance to newly emerging, more control orientated, orthodoxies. To dismiss it, or to afford it epiphenomenal status only (as ‘law in books’ or ‘paper rules’), is to neglect its capacity to check power and to offer sustained and dogged opposition to the creation of a ‘culture of control’ society.

Referring to Ronald Dworkin, he argued that the judiciary is by and large constrained by gravitational force of earlier decisions, so that the implementation of crime control legislation runs into a conflicting narrative of rights-based discourse. However, Kilcommins is realistic about the extent of this counter: it is not a complete response, and it is too easy to make complacent assumptions about the unity of law. Nevertheless, he concluded that we should still not close ourselves off from the continued appeal of constitutionalism, legalism, human rights, the internal logic of law, and judicial craft, all of which remain strongly imbricated in the cross-currents of the Irish criminal justice system.

Part 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. … The freedom of expression guarantee in the Irish Constitution is an example of the wrong way to protect free speech. The forthcoming referendum should replace it with something far better suited to the needs of a modern constitutional democracy.

The full text of a possible alternative is available here. The cases referred to in the piece are:

• Murphy v Independent Radio and Television Commissions [1999] 1 IR 26; [1998] 2 ILRM 360 (Supreme Court held that free speech is fundamental both for personal development and as a foundation of democracy);
• Corway v Independent Newspapers 1999] 4 IR 485; [2000] 1 ILRM 426; [1999] IESC 5 (30 July 1999) (Supreme Court held that the common law crime of blasphemous libel was too uncertain to give content to the constitutional crime);
• Mahon v Post Publications [2007] 3 IR 338; [2007] 2 ILRM 1; [2007] IESC 15 (29 March 2007) (Supreme Court asserted that the right of a free press to communicate information without let or restraint is intrinsic to a free and democratic society); and
• Dillon v DPP [2007] IEHC 480 (4 December 2007) (High Court held that section 3 of the Vagrancy (Ireland) Act 1847 infringed constitutional protections of speech).

It 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. It is understood that the €100,000 settlement was agreed shortly before the case was due before the High Court.

Indeed, there had been quite a detailed report at the time in the Sunday Independent; and in the last week, many blogs have pored over the story.

There’s nothing new in online defamation; the same basic legal principles apply online as they do offline; the medium may change, but the legal consequences of the message remain the same. Read the rest of this entry »

Today’s Irish Times carries two interesting interlinked reports. The first is about yesterday’s Press Council seminar in Cork, the second is about TV3’s exposure of Brian Lenihan’s illness, which – unsurprisingly – was one of the issues discussed at the seminar.

First, yesterday’s seminar in Cork:

Media’s role vital to liberty, says Dunne

Freedom would mean less without a free media, entrepreneur Ben Dunne told a seminar organised in Cork yesterday by the Press Council of Ireland. … He condemned the broadcast of the Brian Lenihan story on TV3 on December 26th, saying that it “crossed a line it did not need to cross”. However, he added that TV3 was not the only offender in relation to breaches of privacy.

Another speaker, Data Protection Commissioner Billy Hawkes, told the seminar that the phenomenal development of the internet posed challenges to traditional ideas of privacy and data protection. …

Tightening privacy laws is a recipe for “non-accountability, secrecy and duplicity”, the seminar was told by Paul Drury, managing editor of the Irish Daily Mail, who added that he was wary of any proposal to legislate for heightened privacy.

Paul Drury will be very well aware that TV3’s revelations of Brian Lenihan’s illness could make privacy legislation more likely, even though the Minister himself seems remarkably phlegmatic about it:

Lenihan says he was rushed into telling children about cancer

Minister for Finance Brian Lenihan has told a local newspaper [the Community Voice newspaper in Blanchardstown] he was rushed into telling his children about his cancer diagnosis on St Stephen’s Day because TV3 had decided to run the story. …

Mr Lenihan said while he did not see what public interest was served between St Stephen’s Day and the new year by TV3 broadcasting the story, he did not intend to lose sleep over it.

Update: Three quick comments. First, thanks, Damien, in the comments below, for pointing me towards the Examiner report on the seminar Dunne slates TV3 for lack of fairness. Second, I couldn’t agree more with Noreen’s comment below that ” the notion that there is supposed to be some kind of journalistic obligation to keep politicians’ secrets is deeply unsettling. It’s in the nature of the media to report the news about public officials. If you’re a journalist, it’s called doing your job”. And, third, there is more about Brian Lenihan’s interview with the Community Voice in a story in today’s Irish Independent.

In today’s Irish Times, Mary Minihan writes:

Complaints to BAI over TV3 cancer disclosure

The Broadcasting Authority of Ireland (BAI) has received 70 e-mails complaining about the TV3 news broadcast on St Stephen’s Day disclosing the cancer diagnosis of Minister for Finance Brian Lenihan. …

Meanwhile, Minster for Social and Family Affairs Mary Hanafin said she and her Government colleagues were “appalled” at the way the story was disclosed. …

You read it here first folks. Now, in today’s Irish Times, Michael Foley (School of Media, DIT) writes:

Lenihan broadcast could lead to privacy law rethink

ANALYSIS: TV3 had no more than a rumour about Brian Lenihan’s health, and no attributable source. …

Unlike journalists, politicians like rules, and the Minister for Justice has already warned he will revisit his privacy proposals if the media does not behave. The insensitive invasion of a popular politician’s privacy might be just the example he needs.

Expect to see lots of references to this piece as the clamour for privacy legislation begins to grow.

Update: have a look at John McGurk’s thoughtful posts on the issue.

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.’