The Eagle: Trinity College Law Gazette

VOL 7, ISSUE 1

INSIDE THIS ISSUE A Victim’s Right to Legal Representation in Sexual Offence Trials: “Upsetting the Balance” (p. 17) EU Citizens Need Free Access to EU Laws (p. 25) Political Homelessness: Third Party Voting in the U.S. (p. 32)

Table of Contents Letter from the Editor (p. 2) Samantha Tancredi A Whole New (Legal) World: The Law and Covid-19 (p. 3) Olivia Moore Making (Up) the Grade (p. 5) Lucy Mockler Covid-19: Inequality and Disproportionality (p. 7) Demilade Adeniran An Insight into the Ongoing Struggle for Trans Rights in Ireland (p. 9) Michael Archer Australia Balancing the Scales Between Free Speech and the Right to a Good Name (p. 12) Matthew O’Shea Promising Progress: A Look at an LGBTQ+ Amicus Brief (p. 13) Samantha Tancredi Criminalising Non-Consensual Pornography (p. 15) Zoe Timmons A Victim’s Right to Legal Representation in Sexual Offence Trrials: “Upsetting the Balance” (p. 17) Emma Bowie A Convenient Marriage (p. 19) Ellen Hyland Assessing the European Green Deal (p. 21) Scott Murphy Diplomatic Immunity: A Lethal Weapon in International Law (p. 23) Eoin Gormley EU Citizens Need Free Access to EU Laws (p. 25) Katharina Neumann EU v Big Tech (p. 27) Orla Murnaghan A Recession, a Pandemic, Company Law Amendments, and September 21st Pub Sessions (p. 29) Rory Hearn Political Homelessness: Third Party Voting in the United States (p. 32) Dylan Krug

Letter

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Letter from the Editor Some of my most treasured memories are those spent with my friends, having a cup of coffee together and talking about everything under the sun. After returning to Ireland from six months spent at home in the United States, I could not wait for these special moments to return. The COVID-19 pandemic wreaked havoc on the world, and it robbed college students of normality, experience, and time. Selfishly, of course, I wished for all of those back and to resume life as it once was; however, self-isolating for two weeks and missing my friends from a closer distance certainly did not lend to this coveted normalcy. Instead, things continued to feel uneasy.

It is with that spirit that I am so excited to launch this first issue of The Eagle: Trinity College Law Gazette.

While we have been missing close ones or our old ways of life, we have also been learning and witnessing significant political and legal challenges that now fill the pages you see before you. The time we are in makes written word all the more essential and purposeful, connecting people together once more in a small, yet substantial way.

I hope you find that despite the unknowns and pains that have jointly comprised the past few months, us as students have not been left out to hang dry. We have been given an opportunity to do something about the reality we now confront.

As Editor in chief of The Eagle, I am humbled by a staff who wants to be engaged, wants to take the Gazette to the next level, and wants to explore the world as we know it. They define this concept I mentioend of “doing something” about our current reality. I could not think of a better time for The Eagle to take flight than in the now – amidst political chaos and international crises in conjunction with a widely supported push for progressive social change. How do we dissect everything going on? The Eagle serves to do so through writing.

I have always found such beauty in the power of words; as authors, we have the ability to create and to make people feel. When in doubt, turning to pen and paper will never lead you astray; it is a therapeutic drug of sorts.

In this difficult time, I saw a staff who took ideas and crafted them into the wonderful pieces in this issue, which I am exceptionally proud to publish.

Thank you to the Maples Group for their kind support in sponsorship and their dedication to our core mission—to provide an avenue for students to engage with political and legal topics and allow students this platform to speak their truths.

As The Eagle is quite conversational in nature, our goal is to make this gazette accessible and easily comprehended, regardless of one’s previous knowledge or interests. We appreciate your time in reading through the pieces and supporting our endeavors. We are so excited to continue to fulfill what we have in store for this year!

While it is not the same as chatting with friends over coffee, we hope the spirit of such remains through this issue.

All the best, Samantha Tancredi Editor in Chief

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All of the opinions expressed are that of the author and not of The Eagle.

Design and Cover by Samantha Tancredi

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A Whole New (Legal) World: The Law and COVID-19 Olivia Moore JS Law and Political Science The unprecedented Covid-19 pandemic has presented incredible challenges to governments around the world as they attempt to respond by adopting strict measures to prevent the spread of the virus. Ireland has been no exception. The government has endeavoured to respect citizens’ fundamental rights and freedoms, as well as equally to respect the rule of law, in the urgency of their response. This has undoubtedly been no easy task, as a very fine balance must be struck: stringent actions must be implemented for the protection of public health and society, yet human rights must not be infringed upon. All the while it remains vital that public trust and compliance be maintained.

And what tool more apt than the law to facilitate this balance? As life ground to a halt, legal development soldiered on. In fact, it did more than that - it actually acted as the standstill’s trigger. Throughout the timespan of the pandemic, we have experienced constitutional challenges, emergency legislation, special court procedures and so much more. A capsule look at some of the major legal progress from the past few months reflects the extraordinary nature of the times we live in, and their consequences in law.

Two emergency and absolutely remarkable Acts of the Oireachtas were enacted in March in response to the Covid-19 pandemic.

These were the Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020 (the first Act) and the Emergency Measures in the Public Interest (Covid-19) Act 2020 (the second Act). Both enacted record measures in terms of both restriction and intervention that, in any other context, would be seen as completely unacceptable in a democracy governed by the rule of law.

The first Act contained the framework for the lockdown measures in Ireland and broadly implemented emergency international law in the form of the WHO International Health Regulations (IHR) of 2005 (as amended in 2016). This included unparalleled restrictions on the free national and international movement of persons and freedom of assembly, including religious and secular life events and ceremonies. This legislation also imposed the complete shutdown of all retail outlets apart from food outlets, and contained enforcement mechanisms such as police powers for criminal prosecutions, fines, and possible imprisonment.

The second Act addressed the necessity of significant emergency financial and other regulatory interventions, in an attempt to alleviate the consequences of the lockdown enacted in the first Act. This included wage subsidy arrangements in order to continue employment for businesses disrupted by lockdown and enhanced social security payments for those “furloughed” as a result of lockdown. By extending the period of validity of certain licences, it even amended the Residential Tenancies Act 2004 that prohibited serving a notice of termination to tenants of a dwelling and prohibiting rent increases on dwellings for a period of three months.

And what tool more apt than the law to facilitate this balance?

As life ground to a halt, legal development soldiered on.

In fact, it did more than that it actually acted as the standstill’s trigger.

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Unsurprisingly, these restrictions and interventions were not duly accepted by all. Legal backlash prevailed in the form of the court case O’Doherty and Waters v Minister for Health and Ors, in which the two applicants, both former journalists, challenged the validity of these two Acts of the Oireachtas. O’Doherty and Waters claimed that this legislation and the manner of its enactment were repugnant to several Articles of the Irish Constitution, including the right to travel, the right to bodily integrity, and particular family rights.

The applicants relied on Article 40.3 of the Irish Constitution, which concerns the personal rights of the citizen.

It provides that the State guarantees “in its laws to respect and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen” and to, in particular, “by its laws protect as best it may from unjust attack” as well as vindicate the “life, person, good name, and property rights of every citizen”. It must be noted that the right to “bodily integrity” is seen as an unenumerated right under Article 40.3. The applicants also relied on Article 41 of the Constitution which concerns the Family, providing that the State identifies the family as “the natural primary and fundamental group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law”. The central argument of the applicants was that the first Covid-19 Act was a disproportionate attack on the personal rights of citizens under Article 40.3 and of the rights of the family under Article 41.

However, Judge Meenan of the High Court rejected these challenges, accepting that the rights in Article 40.3 and 41 were in fact engaged by the first Covid-19 Act. Firstly, both Covid-19 Acts contain preambles that refer explicitly to the Constitution and its influence on their enactment, namely “the constitutional duty of the State to respect and, as far as practicable, by its laws to defend and vindicate the rights of citizens to life and to bodily integrity”. This directly indicates Article 40.3, the Article in question. Furthermore, although the pandemic-induced restrictions have interfered with normal family life, this was not a breach of Article 41. The applicants were also deemed to have failed to reach any evidence-based threshold to support their claims. The High Court commented that the applicants “who have no medical or scientific qualifications or expertise, relied upon their own unsubstantiated views, gave speeches, engaged in empty rhetoric and sought to draw an historic parallel with Nazi Germany, a parallel which is both absurd and offensive.

Unsubstantiated opinions, speeches, empty rhetoric and a bogus historical parallel are not a substitute for facts...”

The Court concluded that O’Doherty and Waters had not made any arguable case in support of their claim that the first Covid-19 Act and its regulations were unconstitutional.

It is suggested that this case’s response to the stringent new regulations brought about by the exceptional climate set the scene against further criticism. Arguably the strongest and most condemning argument that can be made against new legislation – that it is unconstitutional – failed to be an accurate argument by which to revoke it. The new measures were effectively deemed constitutional, appropriate and ultimately necessary in the new Covid-19 environment; a final curtain on the counterargument of “sensationalism”.

And not only did the pandemic influence the content of the law – it also had a significant impact on the actual operation of Irish courts. Remote court hearings were quickly implemented online, and court rooms were adapted for in-person hearings in conformity with Covid-19 health requirements. Video conferencing and socially-distant physical trials have taken place in the Supreme Court and Court of Appeal. Meanwhile, many cases in the lower courts have been adjourned unless found to be urgent, and written judgments of all courts are now delivered by email to each party. The crisis is changing how the law is done in Ireland, and perhaps maybe will continue to do so in the foreseeable future.

It is indisputable that life over the last few months has been anything but ordinary, something clearly reflected in Irish law. The legal world has fought hard to keep pace with the rapid changes to regular daily life – be it law firms turning remote, online courts working off emailed documents, legislation drafted in record time, or constitutional challenges of unprecedented restrictions on our usual rights. A year ago, so many of these legal developments and new regulations would have been unfathomable. But, as they say, extraordinary times call for extraordinary measures.

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Making (Up) the Grade Lucy Mockler JS Law Editor’s Note: This article was written prior to the release of the Leaving Certificate results on September 7 2020.

The global health emergency caused by the Covid-19 pandemic has utterly transformed the world we live in.

Businesses and institutions have been forced to adapt to an online existence, with remote working becoming an ever more efficient and sustainable reality. While this may offer a practical solution to those with settled lives and careers, what lies ahead for our students?

The last few months have proved difficult for all students who have grappled with new modes of online learning. However, it is widely agreed upon that the students left in the most precarious position were those preparing for State examinations. It has been a tumultuous journey for the candidates of the 2020 Leaving Certificate in particular since it was announced on 8 May that the examination would be cancelled and the concept of “calculated grades” first emerged.

Briefly, calculated grades refer to the alternative marking system devised by the Department of Education. It entails the awarding of estimated percentage marks to students in each subject and is multifaceted. First, an estimated mark is provided by the subject teacher. Next, an “alignment process” within the school occurs, whereby students are ranked within their class groups according to these estimates. As a final step, a “standardisation process” is carried out by the Department.

The primary issue with the system is the potential for inequality. Not all candidates attend a conventional school. An increasing number of students choose to attend grind schools, and a further class of candidates, albeit a small fraction, are educated at home. To allow for the inclusion within the system of so-called “out-of-school learners”, the Department published a guide to calculated grades specifically for this group following the earlier release of the guide for schools.

The initial awarding of an estimated mark necessarily requires that the teacher involved rely solely on their professional judgement. A familial relationship with a student is therefore considered a conflict of interest and renders it inappropriate for that teacher to give an estimation. Such a conflict arose in the case of Elijah Burke.

Mr Burke, a home-schooled student from Mayo, launched judicial review proceedings against the Department of Education after it refused to accept estimated marks from his tutor, his mother, due to the fact that maintaining this would undermine the integrity of the calculated grades process.

The case went before Judge Meenan in the High Court. Mr Burke argued the exclusion of home-schooled students breached his rights under Article 42 of the Constitution. It was submitted on his behalf that there was an established constitutional right to be educated at home. Accordingly, home-schooled students should not be disadvantaged in comparison to students educated in schools in the obtaining of a calculated grade. Mr Burke sought not to challenge the lawfulness of the system, but rather the decision to exclude him from consideration for a calculated grade.

Among the arguments advanced on behalf of the Department was the fact that the scheme was an emergency response to the cancellation of the June examination and a temporary system. Mr Burke was said to be no worse off than others who may have been denied a calculated grade or received an unsatisfactory one. Such persons are entitled to sit the rescheduled examination which, subject to public health advice, will take place in November of this year.

Considerable emphasis was placed on the alleged adverse consequences which would result were the Department to supply an “independent” teacher to assess Mr Burke. The Department felt this would mark an unfair advantage as a “bespoke” service not enjoyed by all students. Furthermore, it was contended that the “body of credible evidence” Ms Burke possessed – including end-of-term assessments and mock papers in line with the

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traditional State curriculum – to facilitate the provision of a calculated grade to her son could not be deemed evidence from “an appropriate source”, due to the nature of their relationship.

In his judgement, Judge Meenan referred to the difficulty of devising a system that extends the same degree of fairness and anonymity as the Leaving Certificate. Ultimately, he based his decision on the principles laid down in State (Keegan) v Stardust Compensation Tribunal and O’Keefe v An Bord Pleanála, as endorsed by Judge Fennelly in Meadows v Minister for Justice. In that case, it was reaffirmed that a Court may not interfere with the exercise of administrative discretion, save where it is satisfied, in light of the relevant evidence, that such “is unreasonable in the sense that it plainly and unambiguously flies in the face of fundamental reason and common sense.”

Whilst acknowledging that it would be inappropriate for a conflicted teacher to give an estimated mark, the learned judge was clear that a student should equally not suffer for having been educated by a relative. He noted that the possibility of certain conflicts of interest was contemplated by those who drafted the respective departmental guides. He further noted that the contrast in the approach to conflicts for school students and out-ofschool learners was “very stark.” As regards the former, the conflicted teacher “may still need to assist in the process” by supplying factual information; as “appropriate arrangements” will further be made to provide the student with an estimated mark, the school student can therefore remain in the system. For the “out-ofschool” learner, no such accommodations are made.

Once a conflict of interest arises, the applicant will invariably be denied an estimated mark and excluded from the system.

The judge observed that in either setting, candidates, through no fault of their own, face a similar issue.

He therefore reasoned that both “should have the benefit of a similar solution”, and called the absence of such a practical result “patent unfairness”.

He rejected the idea that a non-conflicted teacher giving an estimate to an out-of-school learner is doing anything “materially different” from that of a non-conflicted teacher engaged in the same exercise in the school context. The former arrangement therefore confers no unique advantage to out-of-school learners, as the Department had previously suggested.

The contention that there was a dearth of “credible evidence” concerning Mr Burke was similarly dismissed.

The Court stated that a conclusion that evidence is not satisfactory can only be reached “when such evidence has been looked at” - which never occurred in the case at hand.

Sitting the replacement exams, tentatively scheduled for November, was not accepted as a remedy. The Court remarked that it would cause Mr Burke to delay the commencement of his degree course by one year, which would be detrimental to him.

By way of relief, an order of certiorari was granted - quashing the decision refusing to provide Mr Burke with a calculated grade. Furthermore, the Court granted a declaration that the refusal to provide such where the student is home-schooled by a parent and thus has a conflict of interest is “arbitrary, unfair, unreasonable and contrary to law.”

Speaking to RTÉ News, Mr Burke said that he was delighted by the outcome, for himself and for all other “out-of-school” candidates who had been overlooked by the new system. The judgement spells victory for those students in similar circumstances, and remedies the glaring faults within the system. However, with no previous record to go on, we still do not know how successful this “emergency response” will be.

There is remaining concern over whether high-achieving students will be marked down for significantly outperforming classmates and their school’s historic results record. Such questions are even more pertinent in light

Businesses and institutions have been forced to adapt to an online existence, with remote working becoming an ever more efficient and sustainable reality.

While this may offer a practical solution to those with settled lives and careers, what lies ahead for our students?

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of the recently documented calamitous effects of the standardising algorithm employed in the U.K. – arbitrarily downgrading results and depriving thousands of students of university places.

Education Minister Norma Foley assured students that the Irish system was different in that teacher estimations are most heavily weighted in the generating of any grade. Still, the “standardisation” process is a yet-unproven practice. A detail that has not been widely publicised is that there is no means of appealing a grade this year, merely the paper trail underpinning it. Billy Ryle, a guidance counsellor, has commented that this represents a fundamental denial of a candidate’s right to due process.

So how are we to ensure that Irish students do not fall victim to a grade-calculating algorithm and suffer the same distress as U.K. students? There is still time to act. In view of the empirical evidence from the U.K., it seems the Department would be wise to abandon the process of statistical standardisation and instead base grades entirely on teacher assessments. It has been suggested that it would be easier to cope with the resultant inflated grades than the public consternation of denying Irish students a place at third level.

With the improvised system not set to debut until 7 September, the significance of Covid-19 and calculated grades on the 2020 Leaving Certificate candidates remains to be seen.

Covid-19: Inequality and Disproportionality Demilade Adeniran SF Law Editor’s Note: This article contains references to racism and domestic abuse, which some readers may find distressing Death. Hand sanitiser. Face masks. Lockdown. Online lectures. Space on the bus.

This line summarizes what many would associate with the Covid-19 pandemic. Although people may differ on what keywords they would choose, most agree that the pandemic has had a decidedly negative effect on all.

However, it must be noted that COVID-19 has disproportionately affected specific groups of people whom this piece seeks to highlight.

One group disproportionately affected by Covid-19 are those living in Direct Provision centres. People living in these centres face infringement to their human right to health as a result of Covid-19 and consequential massive overcrowding issues. The very nature of these facilities makes it difficult for different families to social distance and therefore puts these already-vulnerable residents at an even higher risk. The Ombudsman has made strong comments relating to crowd control in these centres in its annual report, noting that “... the highly contagious nature of the virus, brings into sharp relief just how unsuitable and unsustainable it is to have three or more people in the same room as is the case in many Direct Provision centres, particularly those being used on an emergency basis...”

Currently, up to ten residents may share one room and one kitchen.

Most reading this article struggle to relate to such a reality. The morality of these centers is questionable, yet seemingly hidden from front page news. If people are denied their human rights, they are being treated as less than human; human rights are just that, rights, not privileges. If the legislature is treating the right to human health as a privilege, by affording varying levels of this right to those in Direct Provision, we call into question whether we respect rights as a country. And if we do not respect rights as a country, what precedent do we set for seemingly smaller rights violations locally?

Another disproportionality focuses on race. Black people and people of colour face prejudice at the hands of the legislature, which was of course relied heavily upon during the Covid-19 pandemic. Notably, people of colour

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are disproportionately affected by the Health Act 1947 (Section 31A - Temporary Restrictions) (Covid-19), henceforth “the Health Act.” Under these regulations, the Gardaí may arrest without warrant, and non-compliance with Gardaí instructions without a lawful excuse is now a criminal offence. Any offence is punishable by a fine of up to €2,500, up to six months imprisonment, or a combination of both. The implications of this will now be explored.

The aftermath of this law as implemented during Covid-19 may lead to an increased fear of the police if they abuse their wider powers of arrest to unfairly target Black people. When widening the powers of any authority, in this case, the police with their widening powers of arrest, we must look at the views of those whose powers are widened. We, for example, do not allow the legislature to make their laws and implement them too because they may make more favourable outcomes for themselves. Growing police powers may lead to furthering an agenda of institutionalised racism or leave room for prejudice in regards to Black people. Evidence of the institutionalised racism in the police force in Ireland can be found from research such as the “Afrophobia in Ireland” study, which details how the police fail to respond promptly to the calls for help from those from African descent: “Too terrified to do anything about it. Probably feels the Garda won’t investigate properly. And he is probably right.” “I rang police. They didn’t turn up.” The report goes further to detail how Black people feel that they suffer from disproportionate policing and that they have been threatened to be arrested “without just cause.”

This way in which the law disadvantages Black people when police’s powers of arrest are widened will surely continue far into the future. It is however, even more important that we do not allow the law to so disproportionately affect people during a pandemic as it may result in in a reduction in the levels to which Black people are reporting crime, or lead to Black people refraining from lawfully exercising or going out for necessary purchases for fear of being unfairly treated.

This legislation has the potential to breed a culture of fear amongst this group. The police may try to justify their actions in a similar manner to the MET police force, who, according to The Guardian, say that youths from an “African-Caribbean heritage” were more likely than whites to be knife-attackers than victims, and that stopping them more than white people was a crucial way to catch criminals and keep young people safe. This statement does not take into account the racial bias that leads police to investigate Black people before white people, which means that they will find Black people “causing trouble” in a proportionally higher number of cases. Police may assume that white children out of their homes are out for a justifiable reason, while those who are black may have a higher chance of being questioned. This idea follows on from the fact that Black people are more likely to be considered perpetrators of crime rather than victims. Although this legislation may bring comfort to some people, those from minority groups may well be brought unease by it.

Lastly, another group of people disproportionately affected by the pandemic is women. This was revealed when the initial lockdown occurred and children were studying from home. Women reported that the vast majority of home-schooling and household duties fell onto them, even if they were working full-time. Research conducted

by University of Arkansas professor Gema Zamarro highlighted this - as many as one third of working mothers in two-parent households reported they were the only ones providing care for their children. Being expected to perform the majority of the childcare duties in the home can affect the ability of women to their jobs to the highest standard or may add undeserved stress to their working environment. A panel of women,on the topic of how Covid-19 disproportionately affects women, which included academics such as Kathleen Lynch and Ebun Joseph, spoke on the disproportionate effect that women in higher education endured as a result of the virus. They discussed that in terms of furloughs and redundancies, women employed in higher education are more likely to hold the junior positions, meaning that they are less protected than those with senior positions. Another way in which

A group disproportionately affected by COVID-19 are those living in Direct Provision centres.

People living in these centres face infringement to their human right to health.

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women were disproportionately affected by Covid-19 was in terms of domestic abuse. Sarah Benson of Women’s Aid Ireland, discussed how abusive partners would cough on their wives in order to “weaponise” the virus and cause further distress. Calls to Women Aid reporting domestic abuse rose by 43 per cent compared to this time last year. That is similar to the figures shared by the UN on how domestic violence calls increased by 30 per cent in France, 33 per cent in Singapore and 25 per cent in Argentina. Women are also putting themselves more at risk of contracting the virus than their male counterparts,which again, points to the fact women are disproportionately affected by the virus. Per the Higher Education Authority 96 per cent of nursing graduates in Ireland are female while per the UN, globally women make up 70 pre cent of the workforce.

Racial Prejudice. Human rights violations. Sexism.

These are things that have made the pandemic that bit more difficult for some people. Please let us be mindful of it.

An Insight Into the Ongoing Struggle for Trans Rights in Ireland Michael Archer SF Law and Political Science Editor’s Note: This article contains reference to suicide, self harm and transphobia, which some readers may find distressing Until recently, Ireland was a homogenous society dominated by Catholicism. This affected every aspect of people’s lives, and very little was free from the interference of the Catholic Church. Ireland has since undergone seismic social changes as it gradually became a more secularised state. This has brought significant improvements in the quality of life for LGBTQ+ individuals. The marriage equality referendum in 2015 was indicative of just how far Ireland has come as a nation as we became the first country in the world to legalise same-sex marriage by popular vote. However, despite this overt shift in social progress, the rights of trans people still go unrecognised in Ireland.

Terms such as ‘non-binary’ are still absent in Irish law. Ergo, from a social perspective, the employment of correct terminology is imperative to clarify distinctions between gender identity, gender expression, sex and sexual orientation. TENI (Transgender Equality Network Ireland) emphasizes the importance of using appropriate terminology to respect individuals’ rights to self-identity. The term ‘sex’ can be defined as the “designation of a person at birth as male or female based on their anatomy or biology”. The term ‘gender identity’ refers to one’s deeply felt identification as a gender which may correspond to their assigned sex at birth. The manifestation of one’s gender identity is referred to as ‘gender expression’. Conversely, an individual’s ‘sexual orientation’ refers to their ‘physical, romantic or emotional attraction’ to another person. A ‘trans’ or ‘transgender’ person is someone whose ‘gender identity and/or gender expression differs from the sex assigned to them at birth.’ These terms strive to be as inclusive as possible.

Concomitantly, a non-trans person should be referred to as a ‘cisgender’ person. This is of great importance, because it acknowledges that everybody has a gender identity, helping to remove the stigma around trans identities by presenting them as equal to cisgender identities. The phrase ‘non-binary’ is used as a term for “gender identities that fall outside the gender binary of male or female”. Individuals under this umbrella-term may describe themselves in various ways, ranging from ‘gender fluid’ to ‘gender variant’. We must recognize and respect the gender identity of every single individual in our country, as nobody should feel less than another person.

People Page 10 The pitfalls of our legislation relating to trans people has taken a toll on the mental health of trans individuals in Ireland. There is a direct correlation between mental health issues and trans people, as indicated by the comprehensive LGBT Ireland Report (2016). This was a national study of the mental health of LGBTQ+ people in Ireland.

The study found that 70 per cent of 14- to 18-year-old LGBTQ+ people in Ireland had seriously considered ending their own lives in the past year, with transgender people found most likely to contemplate suicide. Indicative of the victimisation of LGBTQ+ people in Ireland, 75 per cent of people said they had been verbally abused. What is even more harrowing was the fact that 1 in 4 transgender people had been physically attacked in public. These problems have combined to prompt a myriad of mental health issues amongst trans people. These issues could undoubtedly be mitigated by making our current Gender Recognition Act more inclusive by accommodating the needs of ‘non-binary people as well as those under the age of 16. Unfortunately, numerous LGBTQ+-specific barriers exist in terms of access to mental health services in Ireland; this includes a dearth of understanding amongst mental health practitioners and a fear of misunderstanding amongst LGBTIQ+ people.

This study underscores the need for progress in our country to protect the mental health of the LGBTQ+ community. Evidently, our law is failing people, especially those under the age of 18 and non-binary people who seem to be forgotten about.

Legislative developments have only occurred recently in Ireland. One inspirational figure who often goes unrecognised is Dr. Lydia Foy who spearheaded the transgender movement in Ireland over the past thirty years. Dr. Foy was born as a biological male but identifies as female. In March 1993, she requested a new birth certificate to show her female gender to the Irish Registrar General, which was refused. She took legal action and the High Court found the Irish state to be in breach of its obligations under the European Convention on Human Rights under Article 8 in 2007, for its failure to recognise Dr. Foy in her female gender and to provide her with an updated birth certificate. Dr. Foy’s case was settled in 2014 with the Irish government publishing the Gender Recognition Bill on the 19th of December.

On July 15 2015, the Irish government passed the Gender Recognition Act, which allows all individuals over the age of 18 to self-declare their own gender identity. Dr. Foy became the first individual to be recognised by this Act. The Gender Recognition (Amendment) Bill 2017 amended the Gender Recognition Act to provide a right to self-determination for those aged 16 and above, to introduce a right to legal gender recognition for those under the age of 16 and to ensure consideration of the status of non-binary persons in Irish law. However, the Bill was never signed into law and lapsed with the dissolution of the DĂĄil and Seanad in 2020. Currently, under the Gender Recognition Act, people aged 16 to 17 may have their gender recognised but they must go through a complicated application process to do so. This Act, despite being an extremely important piece of legislation reflecting a modernised Ireland, still retains its pitfalls. Under the Act, individuals aged 16 and 17 must obtain an order from the Circuit Family Court to exempt them from the minimum age requirement of 18. In accordance with section 12(4) of the Act, the Court may only grant an application to somebody aged 16 to 17 if: the individual has been granted the consent of a parent or guardian; and, in the opinion of a medical professional, the child is a) of a sufficient degree of maturity to make the decision; b) aware of the consequences of the decision; and c) has made the decision without duress or undue influence. The fact that the individual must be granted the consent of a parent or guardian to be considered mature enough to make the decision is completely ridiculous and hypocritical. Additionally, the child must also visit an endocrinologist or psychiatrist to certify that their decision concurs with the medical opinion of the other practitioner.

The difficulty that this section of the Act imposes on young people searching for clarity on their identities is

Unfortunately, numerous LGBTQ+-specific barriers exist in terms of access to mental health services in Ireland; this includes a dearth of understanding amongst mental health practitioners and a fear of misunderstanding amongst LGBTIQ+ people.

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incomprehensible. For example, the needs of non-binary people are not discussed in the Act. Between 2015 and 2017, 297 Irish citizens were granted gender-recognition certificates under the Gender Recognition Act; however, a mere ten of these applications were by 16- to 17-year olds. Notwithstanding the positive changes the Act has brought to the lives of those over 18, section 12(4) of the Act is a clear deterrent to trans people under the age of 18 to apply for a gender recognition certificate. It has been reported that the government are discussing the extension of gender recognition laws to children and non-binary people which would certainly be welcomed. This would assuredly help to mitigate some of the mental health issues which trans people face and any piece of legislation which would do this is crucial.

TENI have put in place a three-year-plan to attempt to mitigate the limitations of the Gender Recognition Act. TENI outlined four salient goals which it hopes to achieve in its ‘Strategic Plan’ from 2020-2023. One aim is to make TENI a tenable organisation “created by trans people for trans people”. They wish to ensure that trans people can access the services they need, and for these to be both “trans friendly and inclusive”. The organization seeks to assure that trans people are both celebrated and valued in Ireland and can enjoy the freedoms necessary to thrive.

Finally, TENI wants Ireland to move beyond trans discrimination to become a society free from the shackles of transphobia and oppression. Though, activism will only go so far and our Gender Recognition Act must be revised.

In order to assess Ireland’s legislation relating to trans people, we must compare it to the laws in other countries across the world. Transgender Europe (TGEU) published the ‘Trans Rights Europe and Central Asia Index 2020’ in May. This provides information on the legal situation in all 47 Council of Europe member states and five Central Asian countries. Shockingly, 31 of these countries require a mental health diagnosis before adapting gender identity documents. Not only does this contravene every individual’s right to self-determine their gender identity; it also relies on the farcical notion that being trans is a mental illness. In 2019, the WHO (World Health Organization) removed “gender identity disorder” from their manual of diagnoses, the International Classification of Diseases (ICD-11). “Gender identity disorders” have now been revised as “gender incongruence.” Despite this monumental step towards equality, 13 out of the 52 nations studied in the index still require sterility in legal gender recognition. It is unfathomable that so many countries still have legislation which condones such acts of barbarism against trans people. Moreover, only one country, Malta, provides full legal recognition to non-binary people, while only one other country, Denmark, provides partial legal recognition. Though it is apparent that our outdated legislation pertaining to trans people does not make us an anomaly, this is nothing to be proud of; we must look to other countries with progressive transgender legislation for inspiration.

Two of the most overt shortcomings of the Gender Recognition Act in Ireland are the lack of recognition of non-binary people, and the hurdles that those under 18 must surmount before being granted a gender identity change. To mitigate these problems, we should strive to adopt the approach of Norway, which, in 2016, began permitting autonomous legal gender recognition for people between 16 and 18.

Furthermore, children aged between 6 and 16 can change their gender identity with parental guidance. The Irish government should amend our Gender Recognition Act to reflect both of these amendments. Regarding our Act’s lack of recognition of non-binary people, countries such as Canada and India offer an ‘X’ on gender identity documents for gender-nonconforming individuals. Though this may seem insignificant for some, it is a revolutionary form of visibility and validation which must be adopted across the world.

It is undoubtedly true that Ireland still has a long way to go until society sees this change in full, but TENI’s ‘Strategic Plan’ is a monumental step in the right direction. No individual should have to endure such suffering. It is the responsibility of our government to ensure that all medical professionals are sufficiently trained on the cor-

Despite this monumental step towards equality, 13 out of the 52 nations studied in the index still require sterility in legal gender recognition.

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rect terminology to use, and that the general public are well informed about the struggles of trans people. It is my sincere hope that we can one day reach an all-inclusive Ireland, free from trans stigmatisation and discrimination.

Australia Balancing the Scales Between Free Speech and the Right to a Good Name Matthew O’Shea JS Law and Business Where should the line be drawn between protecting one’s right to a good name against another’s right to speak freely? The Australian state of New South Wales may have closed in on the answer.

The state has recently passed a suite of reforms on its defamation laws, modernising an area of law previously untouched since the early 2000s.

Defamation represents the area of civil law historically thought of as slander or libel, involving the utterance or publication of a false or damaging statement by one party about another. In Ireland, slander and libel are considered together under the Defamation Act 2009. Unique to this area of civil law is that trials for defamation may still be witnessed and decided on by a jury – both in Australia and Ireland – whereas the majority position in civil law tends not to include a jury.

The inclusion of a jury in defamation cases is one aspect which often makes for unusually high pay-outs of damages in cases of successful judicial actions. This can be seen in the relatively recent Australian case in which actor Geoffrey Rush was awarded a historic A$2.9 million in his case against the Daily Telegraph.

New South Wales’ reforms cover three core areas: i) the introduction of a “serious harm test” to weed out minor claims; ii) a “public interest defence,” emulating that of common law, as evidenced in Ireland; and iii) a clear aim to reduce the size of pay-outs made in defamation cases.

The first two elements above may not seem alien to the Irish version of the Act, given that there are already similar provisions in place in this jurisdiction to consider the level of harm caused by a defamatory comment, as well as respect given to the public interest of a certain publication allowing for otherwise defamatory comments to be made.

The third element above proposes a clarification on the ceiling on the level of damages that may be awarded for non-economic loss in a defamation case, which currently stands at A$421,000. This ceiling is by no means absolute, and as the Sydney Morning Herald reports, there are many cases in which the total damages awarded may indeed exceed it. The proposed reforms lean more towards clarifying how the ceiling works for non-economic loss, i.e., the damage done to one’s reputation as opposed to one’s loss of earnings.

These reforms were prompted by New South Wales Attorney General Mark Speakman, who described them as “a generational change in the way Australia’s legal system will protect reputations from serious harm while encouraging responsible free speech.” While there is currently no commencement date set for the reforms, it is reported that the other Australian states would have to introduce similar reforms in order to maximise its effectiveness.

Irish defamation law may benefit from taking inspiration from New South Wales’ reforms, particularly regarding the methods proposed for limiting the sizes of defamation pay-outs. This could be particularly noteworthy in light of the 2019 case, Kinsella v Kenmare Resources plc, in which an award of €9 million was initially proposed by the jury, only to be reduced by the Court to €250,000.

Page 13 People The introduction of a legislative cap on damages suffered to one’s reputation, rather than one’s earnings, may be an inventive way of combating Ireland’s reportedly growing “compensation culture”, where litigation is seen to be quite profitable for many civil litigants. Such a cap would effectively erase the need for judicial intervention in circumstances where a jury’s recommendation is unfeasible or inaccurate in proportion to the damage suffered.

Notwithstanding the merits of a cap, however, a fundamental aspect of our judicial system still remains: those who have suffered wrongs must see justice in the law. Thus, the balancing act continues, between affording citizens a strengthened right to free speech, whilst simultaneously protecting the rights of those same citizens to a good name and reputation before the law.

This would be aided by New South Wales’ first proposed reform of screening defamation cases, to weed out minor claims and focus largely on the more egregious cases. It is contended that such a screening system would ensure the right to a good name that Irish citizens enjoy, whilst simultaneously protecting the right of those same citizens to speak freely.

The line between these two conflicting rights is one which may spark great debate, and perhaps there is no perfect solution. However, it must be said that New South Wales, thanks to Attorney General Speakman, is rightly evolving with the times. After more than a decade since the enactment of the Irish Defamation Act, it may be time for Ireland to follow suit.

Thus, the balancing act continues, between affording citizens a strengthened right to free speech, whilst simultaneously protecting the rights of those same citizens to a good name and reputation before the law.

Promising Progress: A Look at an LGBTQ+ Amicus Brief Samantha Tancredi JS Law and Political Science The summer of 2019 sparked progress in the continued fight for equality for the LGBTQ+ community in the workplace in the United States of America. An amicus brief was signed by over 200 companies, through which they declare their dedication and support to all members of their given corporations. This landmark brief was inspired by three specific cases, all of which resulted in outcry and scrutiny after employees experienced workplace discrimination based on their sexuality.

Firstly, in Altitude Express v. Zarda (2020), a skydiving instructor named Donald Zarda was fired after he disclosed his sexuality to a female customer. According to Zarda, he had entrusted this customer with his personal information to reduce any awkwardness she may feel by being strapped so closely together for the dive. The woman subsequently told her boyfriend of Zarda’s sexual orientation who then issued a complaint to Altitude Express, resulting in Donald Zarda’s termination. In his complaint, he also accused Zarda of inappropriately touching his girlfriend, a notion which Zarda’s former partner William Moore completely discredited. Following this event, in September 2010 Donald Zarda filed a lawsuit claiming that Altitude Express “violated Title VII of the Civil Rights Act of 1964 by discriminating against him because of his sexual orientation.” Unfortunately, Zarda passed away in 2014. However, he posthumously helped achieve awareness and further equality for the LGBTQ+ community in the workplace as his case was decided in 2020 in his favor.

In R.G. & G.R. Harris Funeral Homes v. EEOC and Aimee Stephens (2020), a transgender woman was let go from

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her position at a Detroit funeral home in 2018 after disclosing that she was about to begin her gender transition.

The 6th U.S. Circuit Court of Appeals ruled in favor of Stephens and the Equal Employment Opportunity Commission (EEOC), relying on Title VII of the Civil Rights Act of 1964. Title VII protects transgender workers and states that religious beliefs cannot be used to justify discrimination in the workplace. However, after the decision, the funeral home filed an appeal, which garnered support from groups who oppose transgenderism.

The third named case is Bostock v. Clayton County (2020). Here, Gerald Bostock was fired from his job as a county child welfare services coordinator after participating in a gay recreational softball league, through which his employer learned of Bostock’s sexuality. The Second and Sixth Circuit courts relied on Title VII in providing that “[a]n employer who fires an individual merely for being gay or transgender violates Title VII. Title VII makes it ‘unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin,’” However, the Eleventh Circuit held that Title VII does not prohibit employers from firing employees based on sexual orientation, and decided that Bostock’s case be dismissed.

In the U.S., the High Court rules on whether discrimination in the workplace is based upon sexual orientation or gender identity by relying on Title VII of the Civil Rights Act of 1964. It relies upon the clause outlining the “[prohibition of] employment discrimination based on race, color, religion, sex, and national origin.” However, on the opposite side of the aisle, conservative Christian groups such as Alliance Defending Freedom advocate against LGBTQ+ rights and instead argue for courts to reverse the “expanding definition of sex discrimination.” It must be noted that there is no explicit federal law in place which outrightly bans discrimination in the workplace based on sexual orientation. As a result, many states have taken it upon themselves to compose this legislation. Conversely, in twenty-six states, it is legal for an employer to fire an individual due to sexual orientation.

That last statistic, as well as the three listed cases, act as the impetus for the amicus brief, which was signed by over 200 companies and submitted to the Supreme Court in June 2019. An amicus brief, also known as amicus curiae, translates to “friend of the court.” Essentially, a party who is not directly involved with a case may petition the court to file a brief on behalf of one of the named parties. Often, they serve to provide rationale to a greater public need and are used in cases of major public interest, such as a civil rights case. These briefs may also be used to raise awareness that may be integral to a court’s eventual decision. However, an amicus brief is solely a petition, and courts are in no way required to abide by what is entailed.

Thus, this amicus brief signed in 2019 by U.S. and international corporations contends that excluding sexual orientation and gender identity from federal civil rights law undermines the U.S.’s dominant business interests. The brief itself states:

It must be noted that there is no explicit federal law in place which outrightly bans discrimination in the workplace based on sexual orientation. As a result, many states have taken it upon themselves to compose this legislation.

“The 206 businesses that join this brief as amici collectively employ over 7 million employees, and comprise over $5 trillion in revenue. These businesses — which range across a wide variety of industries (and some of which are even competitors) — share a common interest in equality because they know that ending discrimination in the workplace is good for business, employees, and the U.S. economy as a whole.”

Signatures came from companies including Amazon, Apple, Facebook, Google, Nike, Bank of America, and JP Morgan, among many others. These big-name companies joining together to sign this amicus brief is a monumental moment for the LGBTQ+ community. As the Human Rights Campaign states, this brief “has more corporate signers than any previous business brief in an LGBTQ+ nondiscrimination case.”

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It is easy for large companies to put their names on a piece of paper and say they support a vulnerable community, but it is their actions that will truly tell their commitment to this ideal. However, the LGBTQ+ community’s response to the signings of this brief has been largely positive, with many detailing that they are not anti-business, but simply want to be included fairly within the workplace. They want to participate in the open market as much as the next person, and they want to be employed and reap all of the benefits they may sow. Being supported by major companies is a huge breakthrough, and it is a sign of positive change to come.

As a citizen of the United States, I am hopeful that businesses are truly waking up to the world we live in and understand the undertaking required of them to provide a fair workplace environment for all employees. We cannot live with inconsistency, and I am hopeful that with corporations backing this prospect, we will soon see a federal law banning sexual discrimination in the workplace.

Criminalising NonConsensual Pornography Zoe Timmons SF Law Editor’s Note: This article discusses sexual assault, which some readers may find distressing.

The phenomenon of image-based sexual abuse, commonly referred to as “revenge porn”, is a widespread issue, and one which highlights the concerning gaps in Irish law when it comes to gendered crime. It refers to the dissemination of intimate visual materials without the consent of the person being portrayed, often initiated by the breakdown of a relationship where one person threatens to leak sexually explicit material of the other. Admittedly, the idea that image-based sexual abuse is confined to instances of a spiteful ex-partner, sharing private material of the other in the name of revenge, is somewhat outdated. It also fails to consider those who have been targeted by strangers or hackers whose sole interest is gaining from the exploitation of others. Regardless of the perpetrator, the means of attack tends to be the same: the material is generally shared online, amassing thousands of views on social media platforms such as Facebook and Twitter, and quickly spreads beyond the grasp of the person portrayed. Image-based sexual abuse is vicious in its scope and proliferation, in the sense that material can receive hundreds of “hits” before the person portrayed even has any knowledge of the distribution.

Thus, the term “revenge porn” is misleading and has largely been abandoned by advocates and scholars alike, as the term fails to capture the severity of the crime, trivialising and minimising the heinous act in one fell swoop.

This can by no means be defined as pornography produced for entertainment purposes; images or videos exchanged during the course of a relationship being weaponized against someone is, by all definitions, sexual abuse.

Additionally, the phrase “revenge porn” has dubious origins. Professor Erika Rackley traces the term back to an infamous perpetrator of said crime: Hunter Moore, “the most hated man on the internet,” who, in 2010, launched a website dedicated to posting non-consensual sexually explicit material of unwitting women.

In a legal sense, revenge porn represents a total invasion of privacy and violation of data protection rights; however, on a more personal level, for those subjected to this form of exploitation, it carries with it shame and stigma. Having the most private, intimate parts of one’s life broadcast online can have devastating effects: it sees people, principally young women, robbed of their autonomy, their dignity, and their rights. The impact of such abuse can be long-lasting and far-reaching. Not only do they have to come to terms with their bodies being objectified by strangers online, but in certain cases, personal details including names and addresses are shared alongside the images or videos. People may face cyber-bullying, fear unemployment, or even experience being ostracized from friends and family. All too frequently, the onus is placed upon the person portrayed to scour social media and various websites in a desperate attempt to contain the spread of the content. Meanwhile, there are websites that are directly profiting from the non-consensual distribution of intimate material. Pornography sites such as PornHub

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have even refused to remove videos which have been flagged as non-consensual. Perhaps more abhorrent are the sites designed specifically to host such material, as mentioned earlier. There can be no doubt here that such a severe violation of rights is deserving of criminal punishment.

Unfortunately, the law has consistently failed to punish this insidious practice. The figures are alarming.

According to Women’s Aid, a charity dedicated to supporting women who have experienced abuse, the group received 561 disclosures of digital abuse in 2018 alone. Evidently, a large majority of these cases are not being reported to law enforcement as the law simply cannot adequately support those subjected to this kind of exploitation.

Even more alarming is the lack of legislation in Ireland specifically targeting image-based sexual abuse. The law inevitably lags behind the ever-changing landscape of technological advancements - and this is no exception. It is clear that this is one such area where the law must catch up, and quickly.

The current legislation in Ireland is limited in the protection it can provide, as there exists no specific offence for image-based sexual abuse to date. The courts instead resort to the Non-Fatal Offence Against the Person Act 1997 when prosecuting in such instances. Under Section 10(1) of the Act, it is an offence for someone to harass another “by any means, including by use of the telephone... persistently following, watching, pestering, besetting or communicating with him or her...” An important thing to note is that the legislation makes no reference to image-based sexual abuse. Another major flaw of the legislation is the requirement of persistence. The law fails to take into account how rapidly content can be spread these days; with one click of a button the most private facets of a person’s life can be shared across all corners of the internet. Why should one have to be repeatedly violated until legal action can be taken?

Needless to say, the legal protections currently in place are wholly insufficient. The relevant existing legislation is being stretched by the courts to fit cases of cyber-exploitation with lackluster results. The law’s inadequacies allow perpetrators to walk free, facing absolutely no repercussions or legal consequences for their actions, while survivors are left to pick up the pieces. There have been repeated calls for reform in this area, the general consensus being that the law must work to formally criminalise the offence of image-based sexual abuse, so that we can finally protect and bring justice to those most vulnerable.

The proposed legislative reform comes in the way of the Harmful Communications and Digital Safety Bill 2017, which has yet to be signed into law. The Bill creates an offence for “distributing intimate images without consent, or threatening to do so, with intent to cause harm.” Those liable for summary conviction face a Class A fine (€5,000), a prison sentence not exceeding twelve months, or both. If a person is found guilty prima facie, they may face a fine, or be imprisoned for up to seven years. The Bill encompasses a dual protection mechanism against image-based sexual abuse in that it also provides an offence for “taking or distributing intimate image without consent.” After all, the material is not only distributed without consent, it is often taken without consent too. Thus, the enactment of this Bill would herald a new era in the prevention and prosecution of cyber-exploitation.

If we are to bolster the legal protections for victims of cyber-exploitation, we must “ensure a gender-sensitive and victim- and survivor-centric approach” in any proposed legislation, according to a report issued by the National Women’s Council of Ireland. Indeed, a reform cannot be accurately described as such without real change being implemented alongside it. The law can be an effective tool to spur social change, and awareness of the context in which legislation is being created is essential in ensuring that the legislation itself does not further harm the survivor. We are failing those who have been targeted by cyber-exploitation at every turn, from the language we

In a legal sense, revenge porn represents a total invasion of privacy and violation of data protection rights; however, on a more personal level, for those subjected to this form of exploitation, it carries with it shame and stigma.

Page 17 Sex employ, to the laws we enact – or neglect to enact. It is high time that we enact specific legislation designed with the dual function of prosecuting the perpetrators of image-based sexual abuse, and protecting their victims.

A Victim’s Right to Legal Representation in Sexual Offence Trials: “Upsetting the Balance?”

Emma Bowie SF Law Editor’s Note: This article discusses sexual assault, which some readers may find distressing.

The “Belfast rape trial” of 2018 undoubtedly sparked a renewed public debate over the treatment of complainants in sexual offence cases. Criticism over aspects of the high-profile trial and its outcome prompted then-Minister for Justice Charlie Flanagan to commission a review of the available protections for vulnerable witnesses in the investigation and prosecution of sexual offences. The 141-page O’Malley Review, which was published by Minister McEntee last month, provides a comprehensive assessment of the current law and practices governing the treatment of witnesses in this jurisdiction. Some of its most notable recommendations include extending the right to anonymity, which currently only applies to defendants accused of rape, to accused persons in all trials for sexual assault offences, as well as implementing a government-sponsored programme of public education on the meaning and importance of consent.

However, the Review firmly rejects the suggestion that complainants in sexual offence cases should be entitled to independent legal representation throughout trial – a proposal that gained traction in the wake of the Belfast trial, in which the complainant was subjected to an eight-day-long cross-examination from four separate legal teams. Indeed, the Review Group found this suggestion to be incompatible with Ireland’s adversarial model of criminal justice. In this jurisdiction, the accused’s constitutional right to a fair trial co-exists with the State’s obligation to prosecute criminal wrongs in the public interest – an obligation which, in the context of sexual offence cases, encompasses a duty to vindicate the personal rights of those who have been victimised, as guaranteed by Article 40.3.1 of the Irish Constitution. These competing rights and obligations require the courts to consider a “triangulation of interests”: those of the accused, the victim, and the community at large. It is a delicate, and careful, balance to maintain.

At present, there are two situations in which victims of sexual offences are entitled to state-funded independent legal counsel. Firstly, complainants may be represented at the hearing of an application made by the defence under section 3 of the Criminal Law (Rape) Act 1981 to introduce evidence of a complainant’s sexual history into trial. In addition, section 19A of the Criminal Evidence Act 1992 permits complainants to be legally represented at a hearing to determine the disclosure of their counselling records to the prosecution or defence. These provisions are indicative of a shift, occurring over the past three decades, towards a criminal justice system which realises a victim’s procedural justice needs. The distinct and separate identity, rights, and interests of the complainant are recognised in the provision of independent legal counsel for these evidentiary hearings.

In addition to this symbolic value, the presence of separate legal representation for the complainant can minimise the risk of secondary victimisation. As Rape Crisis National Ireland (RCNI) note in their position paper, Previous Sexual History Evidence and Separate Legal Representation, many victims regard questioning related to their sexual history as an “invasive” experience, “a trauma just as devastating as the initial attack itself.” If a com-

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plainant’s barrister can challenge the grounds on which a defendant makes an application to adduce sexual history evidence, he or she can ensure that such evidence is admitted for its probative value alone, and not to discredit the credibility of the complainant. Furthermore, a comparative study conducted by Bacik, Maunsell, and Gogan into the laws relating to rape and their impact on victims in fifteen EU member states discovered a highly significant relationship to exist between the presence of a victim’s lawyer in the courtroom and the victim’s confidence when testifying, reducing animosity between victim and defence counsel. It follows that a legal representative can enable a complainant to give their best evidence, improving the overall quality of their testimony and enhancing prosecutorial efficiency. Separate legal representation for complainants in sexual offence trials appears to not only benefit the individual victim, but the criminal justice system in general.

The question that remains is: should a complainant’s right to independent legal counsel in this jurisdiction, which is currently operative in the limited circumstances of an evidentiary hearing, be extended further to include representation throughout the whole course of criminal proceedings? According to the 2014 National Rape Crisis Statistics, only 36 per cent of survivors who attended rape crisis centres reported sexual violence to a formal authority. Could the guarantee of an independent legal representative, from the reporting stage of an offence through to trial, enhance victims’ confidence in the criminal process, and in turn improve these strikingly low reporting rates?

The introduction of independent and continuous legal representation could indeed have this effect, but not without simultaneously encroaching on the constitutional rights of the accused. While separate legal representation for victims is the norm in France, Germany, and other similar European jurisdictions, it should be noted that victims in these legal systems are entitled to seek compensation as civil parties to criminal proceedings. Under this inquisitorial model of justice, the judge actively investigates the facts of the case, controlling the examination of evidence, as well as the questioning of witnesses in court. Hence, a victim’s legal representative may, at the judge’s discretion, call witnesses on behalf of the victim, object to questions put to the victim by the defence or prosecution, and cross-examine the defendant, all without compromising the fairness of the trial. It would be constitutionally suspect to introduce such a model into our system of adversarial justice, in which the judge’s role is that of an impartial referee. As the O’Malley Review notes, introducing a third party into criminal proceedings would “upset the well-established balance” of the bipartisan court setting. It would require the defendant to guard against two accusers, ultimately undermining their right to be afforded “equality of arms” with the state - a procedural value which is inherent to the right to a fair trial under both Article 6 of the European Convention of Human Rights and Article 38.1 of the Constitution. Furthermore, a practical point observed by RCNI in their submission to the O’Malley Review is that the introduction of separate legal counsel for complainants would prolong trials by obliging the court to listen to the submissions and interjections of three parties, rather than the traditional two.

Moreover, arguments in favour of independent legal representation for complainants throughout trial often fail to acknowledge the multitude of existing safeguards under Irish law which protect victims from secondary victimisation and ensure that they are well informed of the trial process. Section 7 of the Criminal Justice (Victims of Crime) Act 2017, for example, which transposes EU Directive 2012/29 into Irish law, imposes significant obligations on An Garda Síochána to furnish a victim of an alleged crime on first contact with information relating

The question that remains is: should a complainant’s right to independent legal counsel in this jurisdiction, which is currently operative in the limited circumstances of an evidentiary hearing, be extended further to include representation throughout the whole course of criminal proceedings?

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to specialist support services, their right to legal aid and representation, and the role of the victim in the criminal justice process. Available procedural protections for victims of sexual crimes include the right to deliver evidence through a live television link, give a victim-impact statement at a sentencing hearing, and receive state-funded legal advice once charges have been brought against the accused.

While a right to independent legal counsel for complainants throughout trial may be constitutionally suspect and practically infeasible in this jurisdiction, our narrowly tailored model of legal representation can certainly be improved upon, without compromising the procedural equality of a criminal trial. The Criminal Law (Rape) Act 1981 could be amended to allow a barrister who represents a complainant at a hearing for an application to adduce sexual history evidence to continue to represent that complainant throughout any related questioning or cross-examination. The provision of separate legal representation which currently only applies to cases of rape and aggravated sexual assault, could also be extended to victims of all sexual assault offences. While we cannot tilt the balance of the criminal trial in favour of the prosecution, we can certainly ensure that our criminal processes are victim-orientated and committed to protecting the dignity, privacy and bodily integrity of all witnesses.

A Convenient Marriage Ellen Hyland JS Law and Political Science Editor’s Note: This article contains references to human trafficking, which may be distressing for some readers.

Jane Austen’s Pride and Prejudice transcends the cultural outlook of marriage at its time through the main character Elizabeth Bennet, who marries for love instead of wealth or status. Fortunately for women, this particular social norm has changed significantly over the past centuries, and people are not forced into loveless and potentially abusive marriages because of a fear of destitution. Austen’s characters are painted with a sympathetic brush: they are not seen as conning their prospective spouses, nor are they viewed as a burden on society for their decision to marry for a better quality of life rather than for love. Furthermore, the government does not involve itself in the affairs of the wedded couple, nor does it remove the benefits gained by the more impoverished spouse because of their intentions.

Whilst not a perfect parallel with the current status of those entered into “green card” marriages, coined marriages of convenience in Ireland, it is interesting to note how differently immigrants are interpreted through the same contemporary lens that sees the Bennet sisters as unlucky and desperate. In 2015, due to the Free Movement Directive passed by the European Parliament, the Minister for Justice and Equality was given the power to declare marriages which do not adhere to certain criteria as “marriages of convenience.” This is defined in the regulations as a marriage entered into for the sole purpose of “obtaining an entitlement” regarding the status of entry and residency for foreign nationals.

The regulations themselves are not outwardly ominous: the sole power that the Minister has after declaring a marriage of convenience is to “disregard” said marriage as a factor for the renewal of a residency card. Put simply, the regulations do not intend to interfere with the marriage itself, but with the benefits gained by the marriage.

This all changed in 2018 when a judgement by Justice Humphreys against a Pakistani man, S, found that a determination by the Minister of a marriage of convenience under the 2015 regulations rendered the marriage a nullity at law, or that it never legally existed at all. This gave the Minister the power to essentially throw the baby out with the bathwater - he could not only revoke the benefits to the marriage but could actually dissolve the marriage itself under the guise of immigration policy.

An appeal was partially allowed in 2020 where Supreme Court Judge McKechnie overruled this position in the case of M.K.F.S. (Pakistan) and A.F. and N.F.J. (an infant suing by and through his mother and next friend A.F.) v The Minister for Justice and Equality (2020). The judge stated that while the Minister for Justice and Equality clearly was not given the power in the regulations to render a marriage of convenience void, he left open the possibility for a

Sex Page 20 future court to determine whether marriages of convenience in general should be a legal nullity. Judge McKechnie stated that it would be more appropriate for the Court to decide the matter in a case where an annulment is being sought on those grounds.

It is not clear why this particular question was left unanswered. Judge McKechnie remarked in his judgement that there is no one way to view marriage, and even went so far as to say that “a great number of people marry for love, but it would be a naive view of the world to assume that this holds true for everyone.” He also cited a 2017 case, affriming that the religious dogma which described marriage with words such as “special”, “lifelong”, and “Christian” in the Irish courts of the 1980s must be overlooked, given the momentous referendums on divorce and same-sex marriage, and the general diversification of Irish culture in the past 40 years.

It was surprising that Judge McKechnie did not rule in favour of what he called the “first view of marriage”: that marriage at its core occurs when two consenting adults satisfy certain legal requirements, regardless of intention. On the other hand, marriages of convenience have never been a straightforward issue; they are a political minefield, and it can be safely assumed that debates regarding the topic are less about the sanctity of marriage and more about immigration. Judge McKechnie reluctance may be better understood through analysing the counter-arguments.

Marriages of convenience differ from other loveless or “non-traditional” marriages because they exist mainly to derive a public benefit from the institution. Those who marry for their parents’ satisfaction, for example, are not gaining anything from the state by getting down on one knee, but are only benefitting privately.

Restricting these benefits is why the 2015 regulations allowed the Minister to declare a marriage of convenience in the first place. Making an exception for marriages of convenience would make sense were it not for people such as Matt Murphy and Michael O’Sullivan, two best friends who married in 2017 so that Michael could avoid paying inheritance tax on his Stoneybatter home.

The men were featured prominently in the media, and in interviews they did not once deny the fact that the sole reason for their marriage was to be entitled to a tax exemption, a very public benefit. The two men were not in any legal trouble for this.

A more serious and unsettling reason why marriages of convenience are viewed with such scrutiny is Ireland’s current track record with human trafficking. In January of this year, the United States placed Ireland in the second worst category of countries ranked on their ability to combat human trafficking, making Ireland the single least-efficient country in Western Europe to tackle this issue. A report released in 2016 by the Immigrant Council of Ireland notes a disturbing trend of impoverished women with EU status being lured to Ireland to marry a man in order to secure immigration status for him. While this practice can be called alarming and predatory, it is not inherently tied to marriages of convenience. The same report also states that countries such as Latvia and Estonia, which criminalised marriages of convenience, only passed on their trafficking problems to other EU countries with more lenient laws.

Perhaps it would be prudent for the government to be less fixated on the intent behind marriages and more focused on reshaping what consent means where marriage is concerned. If a severely underprivileged woman is lured into the country to marry a man whom she does not know for the want of a better life, perhaps the issue is less about the immigration status of the man and more about the fact that a clearly desperate and pressurised woman is seen as autonomous and consenting in the eyes of the law when she marries him.

For now, the status of marriages of convenience is left like a coin spinning in the air, waiting for a future court decision to call it. If “heads” is declared, the court will follow England and decide that the intentions of the bride and groom do not matter. A decision such as this would appear to parallel the words of Judge McKechnie when he described Irish society as diverse and less fixated on Christian values. If the court lands “tails” up, it would follow

Marriages of convenience differ from other loveless or “non-traditional” marriages because they exist mainly to derive a public benefit from the institution.

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American custom and move towards a more patriarchal, intention-reliant view of marriage. All that is left now is to wait for gravity to take effect.

Assessing the European Green Deal Scott Murphy SS Law and Political Science The European Green Deal (EGD) is a framework of legislation, regulations, and targets introduced by the European Commission in response to the increasingly politicised climate crisis. Given that new European Commission President Ursula von der Leyen lauded the Deal as Europe’s “man on the moon moment”, the EGD policy framework deserves scrutiny.

The EGD provides a roadmap for the European Union’s (EU) transformation from a carbon-intensive economy to one with net zero emissions - that is, carbon emitted will equal carbon removed from the atmosphere by 2050.

Other central aims of the Deal include: achieving a 50-55 per cent reduction of greenhouse gas emissions by 2030, compared to pre-1990 levels (an increase from the previous aim of 40 per cent); creating an EU carbon border tax for exports from non-EU countries with less ambitious climate targets; establishing 2030 climate and energy targets for member states; and creating a Just Transition Fund worth €100 billion to ensure an equitable transition for workers in the fossil fuel sector.

So how should we conceive of the European Green Deal? Firstly, the introduction of a transcontinental, longterm climate plan is a positive step forward. An internationally coordinated response to tackling the climate crisis is essential due to its global nature. The Deal also improves on previous EU climate targets – in good part due to the millions of climate protestors who have demanded greater political ambition on this issue over the past two years. The EU’s intention to reshape every sector of the EU economy in light of environmental concerns is also a welcome development.

However, despite these positive steps forward, the content of the Green Deal has many of the same flaws as EU policies of old. These can be grouped into three main categories: climate action, climate justice, and ideological policy approach.

1: Climate action According to the Intercontinental Panel on Climate Change (IPCC), we must limit global warming to 1.5°C above pre-industrial levels, rather than 2°C as previously thought. Failure to do so will likely result in several hundred million more people being exposed to climate catastrophes such as severe droughts, crop failures, and extreme heat. Greenpeace has noted that the Green Deal target of reducing greenhouse gas emissions by 50-55 per cent by 2030, compared to pre-1990 levels, would be insufficient to meet even the 2°C target, let alone the 1.5°C. Rather, a 65 per cent reduction must be achieved by 2030 to meet the IPCC’s 1.5°C target. In light of this information, the EU’s targets seem reckless and portray a complete disregard for human and non-human life. Activist Greta Thunberg notably denounced the Deal’s targets as “surrender.”

2: Climate justice Climate justice refers to the view that climate change is not just an environmental issue but an intersectional one which is inseparable from social justice. Climate justice demands that climate action be taken in a way that protects those vulnerable to the effects of climate change and the transition to a green economy.

Two worrying aspects of the Green Deal for climate justice advocates are refugees and the Just Transition Fund. Climate justice necessitates wealthier nations welcoming in refugees who are displaced by climate catastro-

EU Page 22 phes and other humanitarian disasters. However, the EGD is largely silent on the matter of refugees and fails to challenge the EU’s approach to refugees, which has left thousands drowned in the Mediterranean Sea due to the EU’s inability to coordinate a compassionate response to the crisis.

The Deal’s Just Transition Fund is also a cause for concern. Proponents of climate justice argue that workers in the fossil fuel sector should be re-trained in sustainable, green jobs once fossil fuel industries are wound down.

While the Deal’s Just Transition Fund purports to set aside funds to do this, the EU’s market-based approach on this issue is worrying. Rather than investing in publicly owned renewable energy, the Green Deal encourages private businesses to decarbonise by allocating them Just Transition Funds. However, as has transpired previously in countries such as Romania, such money often never reaches workers in the fossil fuel sector, as it is hoarded by wealthy business owners, and thus new green jobs fail to materialise. The EU’s market approach leaves it uncertain as to whether fossil fuel workers, such as miners in Poland, will benefit from the Just Transition Fund.

3: Ideological approach The EU’s Just Transition strategy highlights a fundamental flaw of the Green Deal. The EU describes the Deal as a “new growth strategy” that will encourage private businesses to create a green, sustainable European economy.

Given that the neoliberal fascination with economic growth and the private control of natural resources is the predominant cause of the climate crisis, it is disappointing that the EGD then relies on neoliberal means in attempting to overcome the same crisis.

Institutional challenges Despite the inadequacies of the Green Deal, one outstanding question is to what extent the proposals of the Deal will be implemented in practice. A positive aspect of the EGD is that it includes a European Climate Law intended to create legal obligations for member states to comply with relevant targets. This law would allow the Commission to pursue Member States in the European Court of Justice (ECJ) in cases of noncompliance. A ruling from the ECJ ordering Member States to comply with climate targets would greatly strengthen the likelihood of Member States adhering to these targets.

This would mark a significant break from previous EU climate targets, which have been all but ignored by some countries, including Ireland, with little retribution. While implementation will always be a challenge for transnational organisations, the European Climate law gives hope that the Deal’s targets will be implemented; however, this depends on how seriously the Commission takes the climate crisis going forward.

What should we make of the European Green Deal? On its face, the introduction of a comprehensive, EU-wide climate plan should be welcomed.

The Deal could also serve as a template for future transnational cooperation in addressing the climate emergency.

However, core aspects of the Deal are fundamentally flawed. The failure of EU targets to meet either 1.5°C or 2°C warming targets reveals the EU’s recklessness and disregard for human and non-human life. The EU’s refusal to address its approach to refugee crises, as well as its neoliberal, market-orientated approach to its Just Transition plan and cutting of emissions, will also disappoint proponents of climate justice. The EU’s new European Climate Law will hopefully facilitate a more aggressive approach by the European Commission in pursuing member states in cases of noncompliance, but based on previous EU climate targets, it remains unclear whether the Commission will do this with much vigour.

The EU’s new European Climate Law will hopefully facilitate a more aggressive approach by the European Commission in pursuing member states in cases of noncompliance, but based on previous EU climate targets, it remains unclear whether the Commission will do this with much vigour.

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In the midst of the 2008 financial crisis, then president of the European Central Bank, Mario Draghi, infamously said that the EU would do “whatever it takes” to save the euro. It is a shame that the EU cannot say the same for the planet and those who inhabit it.

Diplomatic Immunity: A Lethal Weapon in International Law Eoin Gormley JS Law and Political Science A foreign diplomat isn’t your typical Hollywood villain, but in the 1989 buddy-cop comedy Lethal Weapon 2 LAPD detectives Riggs and Murtagh found out that a foreign representative’s legal superpowers cannot be underestimated. The heroes’ initial attempt to foil a million-dollar drug cartel came to an abrupt halt when they discovered that the ring was run entirely by South African diplomats, immune from prosecution. The chargé d’affaires of the entire South African diplomatic mission, who was also the ringleader of the cartel, sneered at Riggs’ efforts to reprimand him: “My dear officer, you could not even give me a parking ticket.”

Whilst the movie’s dramatic gun fights and car chases trivialise the subject somewhat, the second instalment in the Lethal Weapon series nonetheless demonstrates the power of diplomatic immunity. Diplomatic immunity refers to the agreement between countries that foreign representatives of a state are not to be held to the laws of the state in which they are based. It exists to ensure that any diplomat sent as a representative in a foreign country is protected from unjust and politically motivated prosecution.

The Vienna Convention Diplomatic immunity has been practised by governments for centuries, but it was the 1961 Vienna Convention on international relations that formalised diplomatic immunity and brought it into the realm of international law.

Article 29 of the Convention states that a foreign diplomat “shall not be liable to any form of arrest or detention” and Article 31 states that “[a] diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State.” There are some exceptions, such as actions on private property or actions pertaining to a diplomat’s commercial practices outside of their work as a diplomat. However, in practice, these exceptions are quite limited - meaning that diplomats (and their families) remain virtually unaccountable to the law of the state they operate in. Section 5 of the Diplomatic Relations and Immunities Act 1967 enshrines in Irish law the full provisions of the 1961 Vienna Convention without exception, giving Irish-based diplomats this same freedom.

“Immunity is rarely waived” Though this is such a well-established practice in international law, it is not without its controversy. Public outrage is not so much targeted at diplomats avoiding petty offences such as parking fines, but concerns cases in which diplomats have escaped punishment for devastating crimes unrelated to their work. The most recent example of this was the death of nineteen-year-old Harry Dunne in England in August 2019. Anne Sacoolas, the wife of a U.S. diplomat based in the U.K., was driving on the wrong side of the road when she collided with Dunne who was riding his motorcycle at the time. Before she could be charged for dangerous driving, Ms Sacoolas was escorted out of the country on a U.S. Air Force plane. The U.S. government refused to honour the U.K. Government’s extradition request for her, on the grounds of her diplomatic immunity.

While Dunne’s parents continue to lobby the U.K. government to take action against Sacoolas and the U.S.

EU Page 24 government, U.K. Foreign Secretary Dominic Raab has insisted that there is no way to force the U.S. to comply with this extradition; even an Interpol Red Notice could not compel the U.S. to send Sacoolas to the U.K. for trial and rectify what Raab has described as a “denial of justice.” This is because the Vienna Convention states that the only way a diplomat can be tried for a crime is that if their home country formally waives the diplomatic immunity of the accused. The U.S. has thus far refused to waive the immunity of Sacoolas, and has instead decided to shelter her from prosecution.

A U.S. government spokesperson on the matter insisted that American authorities were working closely with the U.K. government but sought to remind the public that “[i]mmunity is rarely waived.” While this is true, there are many examples of governments choosing to waive immunity for diplomats who committed serious crimes.

In 1997, the Georgian embassy waived diplomatic immunity for a senior diplomat based in Washington whose driving while under the influence of alcohol caused a five-car pile-up and the death of sixteen-year-old Jovianne Walrick. The Belgian government did the same, waiving the immunity of an employee at its U.S. mission after he was charged with the killing of two men in Florida in 1989. However, states are in no way bound by this precedent; they will usually choose to protect their citizens, rather than allow them to be tried for their offences, no matter how serious the charge. The U.S., in taking the former approach, has spared Anne Sacoolas.

Drawing the line Events such as Harry Dunne’s tragic death raise the question of just how far diplomatic immunity should go. The broad language in the Vienna Convention means that offenders may walk free after committing even the most heinous of crimes, whether or not the offence is in any way related to Though this is such a well-established their work as a diplomat.

Providing for a narrowpractice in international law, it is not er wording in the Vienna Convention so that diplomats are only protected from actions related to without its controversy. Public outrage is their service as a diplomat may help lower the nega- not so much targeted at diplomats avoid- tive implications of blanket immunity.

However, states will be reluctant to accede the substantial priv- ing petty offences such as parking fines, ilege and protection their diplomats have under the Convention. This is not to but concerns cases in which mention how difficult it would be to get countries to agree on the precise point diplomats have escaped punishment for in which a diplomat is “too protected” from the law.

Therefore, it is likely that devastating crimes unrelated to their diplomatic immunity will remain a powerful legal tool, and national legislation will prove too weak to work. punish diplomats guilty of even the most reprehensible criminal offences. It certainly appears that Riggs and Murtagh’s job won’t be getting any easier any time soon.

EU Citizens Need Free Access to EU Laws How the EU Commission’s Breach of Our Right to Access Environmental Information Diminishes Access to Justice Katharina Neumann JS Law and Political Science In light of the 2019 EU declaration of the climate emergency, it is now more important than ever that European citizens have access to accurate environmental information. Facilitating easy access to environmental data encour-

Page 25 EU ages greater awareness of issues affecting the environment and increases public participation in decision-making.

Educating the population stimulates citizen activism to pressure industry, enabling a more sophisticated analysis of environmental impacts of products and services to ensure climate-friendlier manufacturing practices.

Institutions and world-leading conferences have shown the urgency of access to accurate information in the EU and in the wider world. In 1998 the Aarhus Convention was signed, ensuring access to information, public participation in decision-making, and access to justice in environmental matters. The Convention is one of the most important international environmental agreements to which the EU is a party, encouraging compliance through non-judicial means and providing for a compulsory state-to-state dispute settlement mechanism. It guarantees everyone the right to receive environmental information held by public authorities, including information on the state of the environment, human health and safety, policies or measures, the right to participate in environmental decision-making, and the right to challenge public decisions that are non-compliant with environmental law. One of the key mechanisms that facilitates compliance with the Convention is the Aarhus Convention Compliance Committee (ACCC), a non-judicial consultative body that is empowered to review the conformity of members with the Convention, amongst other things, based on communications with the public. The Committee issues its recommendations to the Meeting of the Parties, which is responsible for determining appropriate measures to ensure such compliance with the Convention by the party concerned. Thus, the ACCC gives both citizens and environmental organizations an independent and external means of addressing compliance with the Convention.

As part of the Aarhus Convention and its incorporation under EU law, the European Union sets an important example of providing access to information that strengthens the access to justice in environmental matters.

Disturbingly, despite the comprehensive and effective regulations of international law already in place, this crucial public access to environmental information is not always guaranteed. This was exposed by the recent legal action taken by two NGOs: Right to Know Clg and Public.Resources.org. The Irish NGO Right to Know Clg defends the rights of citizens to access information, to strengthen democracy and transparency, while the US-based not-forprofit public charity Public.Resources. org was established to make government information more broadly available. Together, both NGOs requested to view public safety standards, including the safety of toys, such as the composition of children’s chemical sets and the chemicals present in products such as finger paint.

These kinds of standards are agreed upon by a private body called the European Committee for Standardisation (CEN), which then sells the agreed standards for profit. Regarding the NGO’s complaints, the European Commission refused to give the requested information, disclosing that the standards could be purchased from the CEN and that, due to copyright issues, they were not available for gratuitous publication. Of course, this refusal is incredibly problematic: following the European Court of Justice in James Elliott Construction (C-613/14), harmonized standards, such as those requested by the two NGOs, or references to such standards, form part of EU law. Thus, in the commencing proceedings, the NGOs will argue that no copyright protection of these requested harmonized standards is possible because they are part of EU law. The standards lack originality and therefore do not benefit from copyright protection; and the EU commission did not actually demonstrate the alleged undermining of the commercial interest of the standardization organization. More importantly, however, as the NGOs put forward, the concepts of the rule of

The access to information and legislation is one of the most basic principles of our democratic society, an inherent part of the rule of law, which the EU commission is flatly denying in the case at hand.

Access to information is a widely-regarded international human rights norm.

EU Page 26 law and fundamental rights require free access to the laws of the European Union. They argued that the requested standards contained environmental information - in particular, information on emissions into the environment which therefore must be released under the Aarhus Convention.

Reviewing the facts of the case at hand, one must ask - how odd is it that EU citizens must pay for access to environmental information (which should be available for free and without restriction on re-use or dissemination) due to the fact that it forms part of EU law? How can we satisfy our duty as EU citizens when we cannot even access the laws that we agreed to adhere to? With the initialization of proceedings against the EU Commission, the two NGOs are drawing attention to an even wider problem than the “mere” denial of access to environmental information and the breach of the Aarhus Convention: to adhere to the law everyone needs to know what it is.

The access to information and legislation is one of the most basic principles of our democratic society, an inherent part of the rule of law, which the EU commission is flatly denying in the case at hand. Access to information is a widely-regarded international human rights norm. In fact, Article 19 of the UN Declaration on Human Rights and Article 11 of the Charter of Fundamental Rights both state that the right to freedom of expression includes not only freedom to “impart information and ideas of all kinds,” but also the freedom to “seek,” “impart,” and “receive” them “regardless of frontiers.” An earlier decision of the European Court of Human Rights (Magyar Helsinki Bizottság v Hungary) roots the right to access to information in Article 10 of the ECHR, holding that it includes “the right to receive and impart information and the right to freedom to hold opinions.” Access to information is also the prerequisite to the facilitating of access to justice, one of the most important fundamental rights that encompasses the core principles of democratic governance: participation, transparency, and accountability. Access to justice maintains peace within society, as it affords us a better alternative to violence in resolving personal and political disputes. It enables democracy to function as it gives life to our laws. It gives us the opportunity to amend and change our laws, and to speak up about injustices within the law. Informed debate is the lifeblood of democracy, and it is only possible if individuals of the public have access to information, enabling them to avail of the justice system.

By denying access to the requested information, it can be argued that the EU Commission is not only breaching the Aarhus Convention, but that it is also breaching international human rights norms for access to information. The overall mechanism involving the CEN suggests that those norms ensuring the rule of law are constantly disregarded. Justice must be served, and this mechanism must change in the upcoming General Court’s decision in the Right to Know and Public.Resources.org case against the EU Commission. EU citizens absolutely need free access to EU laws. We need access to environmental information as well as to all other kinds of information, to ensure that the right to access to justice is completely fulfilled.

EU v Big Tech Orla Murnaghan SS Law and Political Science When Germany assumed its Presidency of the Council of the EU in July 2020, its use of the phrase “European digital sovereignty” gained considerable traction across the continent. This particular manifesto point of Angela Merkel’s government, which references the growing importance of a coordinated approach in the EU’s struggle against the dominance of Big Tech, is more than a mere paying of lip service to Brussels.

President of the European Commission, Ursula Von Der Leyen - a self-professed “tech optimist” - has previously argued that technology can ultimately be a force for good. And while this statement undisputedly holds weight - with innovation making every facet of life more fun, convenient, and even safer - it seems that the EU is becoming increasingly aware of the encroaching influence held by a handful of American “Big Tech” companies in almost every sphere of the human experience. These tensions, bleeding through the cracks to become firmly embedded in every legislative action passed by the Commission, are in a much wider sense rapidly transforming

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the very nature of transatlantic relationships, for better or for worse.

Google, Facebook, Apple and Amazon - sometimes collectively referred to as “GAFA” (which is, ironically, also the Irish word for “obsessed” or “preoccupied”) - have become the latest subjects of interest for European Competition Commissioner, Margrethe Vestager. The Danish Social Liberal politician has made no secret of her agenda to “clamp down” on the activities of these technological behemoths, quickly becoming the poster child for the EU’s crusade to modernise its competition laws for the digital age. Perhaps most notably has been her issuance of fines for breaches of said laws against these companies, including among them a hefty $1.7 billion sum issued against Google in 2019 for an “abusive” online advertisement strategy.

However, Vestager has maintained throughout her tenure that fines alone will not be enough to deter the supremacy of GAFA, which enjoy near ubiquity in their usage throughout Europe and the wider world, with their astronomical profits surging year on year. For example, social media platform Facebook had around 2.4 billion active users by December 2019, even in light of the Cambridge Analytica findings. Meanwhile, Google’s parent company Alphabet reported a net income of $6.8 billion and a $41 billion revenue in its first quarter of 2020 alone - figures which were described as “relatively strong” in terms of the company’s performance.

And so the argument held by some critics goes that these companies are simply so rich that they can afford to pay these significant fines, without taking too much of a hampering to profits. This is perhaps most pertinent - and controversial President of the European Commission, Ursula - when allegations of breaches of EU data protection laws are raised; further Von Der Leyen - a self-professed “tech optimist” - hindering the EU’s ability to ensure adequate data prohas previously argued that technology can tection standards from these Big Tech companies is the ultimately be a force for good. And while this law that states that, under GDPR, each Member State’s statement undisputedly holds weight - with EU national data protection authority may only issue fines innovation making every facet of life more fun, of up to €20 million, or 4 per cent of said company’s annual revenue. This there- convenient, and even safer - it seems that the EU fore puts a limitation on the principle of deterrence for the is becoming increasingly aware of the EU in instances of illegal data handling encroaching influence held by a handful of over, some national

by GAFA. Moredata protection auhave been American “Big Tech” companies in almost every thorities flagged as understaffed and underfunded in their ability to clamp down sphere of the human experience. on such activity, as necessitated under the GDPR’s “One Stop Shop” mechanism. This has perhaps been true, most notably, in the case of Ireland’s Data Protection Commission. The debate has led some public figures to call for a more centralised European data protection authority with the necessary teeth to investigate these complaints. In short, there are some who maintain that the EU and its Member States are by and large falling behind on the policing of Big Tech activity, in terms of both market and privacy standards.

The twin judgements delivered in Ireland v Commission and Apple Sales International and Apple Operations Europe v Commission at the General Court of the European Union last July may perhaps be perceived as a win for Big Tech in Brussels. The “Apple tax” case made headlines across the world when it was determined that the Commission had not “succeeded in showing to the requisite legal standard” that Ireland had offered special treatment to the tech giant in terms of tax advantages. At stake in the case was €13.1 billion in tax revenue, leading writers at the Irish Times to dub it “the world’s biggest-ever antitrust decision”. Following the judgement, Vestager said that her team “will carefully study the judgment and reflect on possible next steps.” Of course, the Commission may decide to appeal the judgement, but this could take up to three years to see to fruition - and there is no guarantee that the highest court in the EU, the European Court of Justice, will determine the outcome any differently.

EU Page 28 But the EU is getting notably more creative in its approach towards quelling the growing power of these tech giants. In the wake of the Apple tax case, the Commission announced that it was investigating the possibility of triggering Article 116 of the Treaty on the Functioning of the European Union (TFEU) - a provision that, to date, has never been used. The usage of this Article would allow the EU to circumvent the need for unanimity when voting on taxation issues, replaced instead by the weighted qualified majority voting mechanism. In essence, this means that the smaller Member States, especially the ones that have been criticised for having too low corporate tax rates, would be silenced as the EU pushes forward with its agenda for greater corporate tax harmonisation across the bloc. The Irish government is reportedly opposed to this measure, which would see many Big Tech companies based in Dublin and Cork pay higher rates of tax to the Revenue Commissioners under the EU’s 25-point Tax Action Plan. However, it remains questionable whether Big Tech companies’ presence in Ireland would turn solely on a rise in the current 12.5 per cent rate: the EU is regarded as the world’s biggest market with five hundred million customers, and a European base to expand operations will continue to be vital to maintain said companies’ presence within the bloc.

Furthermore, even with these corporation tax measures, the EU has come to the conclusion that these Big Tech companies are simply not paying their fair share - and are even forcing the hand of representatives in Washington on the issue. Talks of a worldwide “digital tax” have begun at the Organisation for Economic Cooperation and Development (OECD), but efforts were stalled in July as the United States announced it was walking away from the multilateral deal. This followed claims from U.S. trade representatives stating that the EU and other countries were trying to “screw America” by introducing said tax on its companies - most notably affecting, of course, GAFA. However, the EU has announced that, should digital tax talks fail, by the end of 2020, the Commission will begin to formulate its own plans for an internal, EU-wide digital tax. This move is clearly to be seen as a new line of defence against GAFA’s encroaching dominance, and the pressure has been felt by America: the hegemonic state announced recently that it would hold off on its tariffs imposed on France in response to the European power’s unilateral decision to enact a national digital tax, in hopes that an agreement at the OECD can be reached by the end of the year.

The general consensus of the EU appears to be that the world can be tasked with clamping down on Big Tech’s dominance, with or without the participation of their parent state.

Concludingly, although the campaign concerning GAFA is far from over, so far the battle has been stacked in favour of the EU. It seems that Big Tech has come to the realisation that compliance with EU measures will be a necessary evil should they wish to continue expanding their reach into the biggest market in the world. And, of course, the EU is not “against” the presence of Big Tech in Brussels; rather, it wishes to ensure that these corporations are taxed and governed equitably in light of EU principles and GDPR standards. However, we should not view the Commission as a sort of “moral authority” in this process, as it certainly is not without its own shortcomings among Europeans. It will nonetheless be worth monitoring these developments as the EU moves to reform online competition laws with its plans to introduce the Digital Services Act by the end of 2020. Meanwhile, the world waits with bated breath for the Commission’s decision on Google’s application to acquire health device company FitBit in December. Will the EU achieve its prized “digital sovereignty”? Perhaps. It will ultimately depend on how quickly the Commission can keep up with the latest technological developments, and the companies setting this agenda.

Furthermore, even with these corporation tax measures, the EU has come to the conclusion that these Big Tech companies are simply not paying their fair share - and are even forcing the hand of representatives in Washington on the issue.

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A Recession, a Pandemic, Company Law Amendments, and September the 21st Pub Sessions Rory Hearn SS Law It’s official - we’re back in a recession. Not long after it was announced that Australia entered into a recession on September 2nd, Ireland followed suit in and by a gross domestic product (GDP) contraction of 6.1 per cent negative growth in the economy for the second quarter of 2020, hitting headlines on September 7th. Amidst the throes of another seismic event - the Covid imbroglio - companies have particularly fallen under the spotlight, unexpectedly animating Irish company law in 2020. In this article, partners Mr. Ruairi Rynn of William Fry, who has been a part of the firms Restructuring and Insolvency team for over a decade, and Ms. Ashling Walsh of Ronan Daly Jermyn, who heads up the Insolvency and Restructuring Department, give their take on how Irish company law has and will respond to the challenges that business owners and directors will face in these tumultuous times. They discuss everything from provisions in the Companies Act 2014 to the introduction of the Companies (Covid-19) Act 2020, which has been developed in tandem with the evolving Covid environment.

RTE’s Six One and Nine O’ Clock News regularly portray companies attempting to remain solvent in spite of the pandemic. So, an appropriate point of departure is enquiring whether there has been a commensurate rise in insolvencies, liquidations or examinerships that have resulted therefrom in commercial practice. Surprisingly, this rise doesn’t seem to have materialised as of yet. In an interview with The Eagle, Ms. Walsh said: “I have certainly seen an uptake on giving insolvency advice, but [Ronan Daly Jermyn] haven’t seen a significant number of insolvencies. I expect that you will see that towards the end of this year and in 2021.” Similarly, Mr. Rynn stated in this regard that “thankfully from an economic perspective, we haven’t seen a particular uptake in liquidations or examinerships.

To nuance this point – the ingredients for trouble are there, and [William Fry] do expect that there will be a need to restructure many of those businesses in due course, as some of them will simply not be able to survive.”

On the foregoing point of restructuring, the recently drafted Company (Covid-19) Bill 2020 sought to amend the examinership process by extending the time needed for the commencement of a winding up of a company from the usual 100 days to 150 days, and also increase the debt threshold needed by a creditor to petition the court to have a company wound up from €10,000 for individual creditor debts and €20,000 for aggregate debts to €50,000. As Mr. Rynn further explained: “I sit on the Insolvency Subcommittee of the Company Law Review Group (CLRG) and worked on the recent report. The 2020 Act does have one restructuring element in it in terms of examinership.” But what is the rationale behind this new aforementioned element? According to Mr. Rynn, “if a company went into examinership 100 days ago, how can they know what [their financial situation] will look like in 100 days’ time? You don’t know where it will be in 150 days, but the extra 50 days gives you a bit more scope.”

Mr. Rynn explained that given that “there is a recognition that an examinership is too expensive and complex, the government is looking at potential rescue or restructuring processes for small and medium enterprises (SMEs).

One can run an examinership through the Circuit Court rather than High Court, but practically it hasn’t reduced costs enough and the process is as burdensome in the Circuit Court as in the High Court. So there is within Government circles work underway to look at a potential alternative process for SMEs.” A topic that company law students will be well-acquainted with (or should be before exam season!) is what

Law Page 30 Thomas Courtney has coined as “one of the most far-reaching reforms introduced by the (2014) Act” - directors’ duties. These onerous duties, which are put on a statutory footing vis-a-vis section 228 in Part 5 Chapter 2 of the Companies Act 2014 (hereinafter referred to as the CA 2014), are expected to be adhered to by company directors, reflecting Ireland’s culture of professional and sophisticated business acumen. The 2016 Court of Appeal Re Walfab Engineering decision exacerbated these duties in that such duties are not affected or limited by economic troubles.

Given that SMEs are visibly in economic trouble caused by the pandemic, will Courts continue to make decisions of Walfab’s ilk, or be more lenient with directors who may inadvertently breach their duties in the running of their business, given the impact that Covid is having on their financial situation? Mr. Rynn said: “I wouldn’t interpret the Walfab decision as one that prohibits or discourages directors from deciding that a company should try to trade it way out of difficulties, I think the Heffernan Kearns case on reckless trading is quite clear on that - if you (as a director) think there is reasonable basis that the company can survive through trading through its difficulties, directors are well-entitled to do that.”

In the 2008 recession, cases arose whereby company directors delayed in paying monies to Revenue and traded with said monies as a going concern. Equally, cases arose whereby directors did not pay, or failed to remit employee taxes, such as PAYE or VAT, to the Revenue Commissioner. Such actions became synonymous with a finding of directors having acted recklessly or fraudulently within the meaning of section 610 CA 2014. Existing precedent in cases such as PSK Construction in 2009 and Toomey Leasing (Appleyard) from 2016, and also section 610 of the CA 2014 catches directors acting recklessly or fraudulently if they have averted or put monies out of Revenue’s reach.

Will the same happen in this recession? Mr. Rynn commented that “in terms of reckless and fraudulent trading, the reported cases that students are aware of are pretty much the only cases there are! The Appleyard case was the most recent reckless trading case which set the bar pretty high, frankly. On the basis that the bar is quite high, I don’t foresee a large glut of these cases as they didn’t happen too much previously.” Revenue calls these taxes “fiduciary taxes”. A company or employer collects the VAT or income tax on behalf of Revenue. The Revenue Commissioner has since allowed tax payers to “warehouse” Covid-19 related tax obligations until next year (2021). This facility extended to business owners does not extricate, but provides some breathing room from their company’s tax obligations at this difficult time. However, Mr. Rynn warned that “if [a company] utilises fiduciary taxes to fund its business, it is in potentially tricky territory. Frankly in practice, it is not that uncommon for it to happen. Whilst it is something that could be the basis for a [restriction or disqualification] application, it doesn’t come up that often.”

In light of the foregoing observation, Mr. Rynn pointed out that “the Office of Director of Corporate Enforcement (ODCE) have issued guidance on how restriction (section 819 CA 2014) and disqualification (section 839/842 CA 2014) applications made against directors will be viewed by the ODCE in light of Covid.” Academic books stress the point that liquidators are obliged to bring restriction applications against directors of insolvent companies vis-a-vis section 683. But what about the small-business owner who is trading bona fides, and may become insolvent due to the effect Covid has had on their business? “In the majority of cases, the liquidators will recommend (in their report to the ODCE) that no action is taken against the director of the insolvent company, and the ODCE will relieve the liquidator of that obligation. So whilst Walfab can look stark, the test is, have you acted honestly and responsibly in the discharge of your [directorial] duties? You will find most people do.”

In a July 7th Dáil speech, Tánaiste Leo Varadkar spoke of an ensuing “wave of insolvencies”. Has this wave occurred since then? Ms. Walsh said to expect more coming into 2021. She notes that “Deloitte issued a report a couple of

It’s official - we’re back in a recession.

Not long after it was announced that Australia entered into a recession on September 2nd, Ireland followed suit in and by a gross domestic product (GDP) contraction of 6.1 per cent negative growth in the economy for the second quarter of 2020, hitting headlines on September 7th.

Page 31 Law weeks ago where they said the insolvencies for the last 6 months were about 273, and for the whole of last year (2019) there were 568, so the number of liquidations hasn’t risen that significantly…there’s a 12 per cent decrease in insolvencies for the first 6 months of this year and that’s because we were in lockdown from March onwards, so in a way there hasn’t been any real increase [in insolvencies].” Ms. Walsh drew attention to the Banking Federation website where one will see there has also been a moratorium (a postponement or embargo on an action) put in place - generally, but not exclusively - from bank enforcement. Said moratoriums are effective until the end of September 2020. One would assume that banks are avaricious about chasing companies for loan repayments, but is that the case right now, given moratoriums have been put in place? Ms. Walsh responded: “I think that banks feel that this pandemic isn’t of a particular borrowers making, so the banks feel that they want to assist (SMEs) in the first instance.”

Whilst banks may be cognisant of companies financial difficulties, what about another “big player” on the Irish financial scene – the Revenue Commissioner, colloquially known as the tax-man? There is a long-imbued policy desire in Ireland to protect the Revenue Commissioner, which was arguably exacerbated by the IMF bailout. This policy point was recently explicated by now-retired Justice Mary Laffoy’s 2015 Supreme Court JD Brian decision, which was reversed by sections 92 and 98(d) the Companies (Accounting) Act 2017. What was the effect of said Act? It guaranteed the Revenue Commission payment as a preferential creditor, notwithstanding the fact it may fall behind a fixed charge holder in the section 621 CA 2014 statutory order of priorities in a liquidation scenario.

Moreover, the common law duty that a director owes a duty to creditors upon insolvency seen in Re Fredrick’s Inn was purported to be put on a statutory footing in Part 1 Head 9 of the Company’s (Covid-19) Bill 2020. In responding, Mr. Rynn said “The JD decision was certainly fixed very quickly - how often do you see the government legislate so quickly!” Although said Bill is published on the Oireachtas website, “that duty didn’t make it into the Company (Covid-19) Act 2020 in the end – it’s not in recent CLRG report and didn’t end up finding its way into the legislation…but what you are saying is right; pre-Covid, there has been a clear policy decision in this country which pre-dates the bailout. The ‘Revenue preference’ was in the Companies Act 1963 and probably its precursors as well.” That begs the question: will struggling companies still have to quiescently pay the Revenue Commissioner?

Ms. Walsh explained that she understands why perhaps “the Revenue has had a light touch recently in terms of enforcement”.

Speaking on the issue of Revenue Sheriffs, she pointed out there is a moratorium on Sheriff activity across the country, meaning that Revenue have instructed Sheriffs not to “seize goods if the company is not in a position to pay its debts.” She also indicated that she has not seen many Revenue petitions (to have companies wound up) in the High Court recently.

It cannot be gainsaid that it is worth putting a question mark over how economical the Revenue and Banks will be in their lenient enforcement coming into 2021.

The news cycle has captured two narratives surrounding Government supports for companies during Covid-19 that are difficult to reconcile with each other. On one hand, the public sentiment expresses dismay and seeks “support, not sympathy”. On the other hand, the Government has rolled out schemes over the summer months, namely the July stimulus and Restart Grant Plus schemes, and also a €16 million package for pubs ahead of their tenuous 21st of September re-opening date. Nevertheless, there is a panoply of events brewing; with two preeminent Irish voices present in Europe as of 2020 - Mairead McGuinness and Paschal Donohoe - the resurgence of Brexit talks in early September and the return of a recession, the trajectory of Ireland’s financial landscape

On one hand, the public sentiment expresses dismay and seeks “support, not sympathy.” On the other hand, the Government has rolled out schemes over the summer months, namely the July stimulus and Restart Grant Plus schemes, and also a 16 million Euro package for pubs ahead of their tenuous 21st of September re-opening date.

Politics Page 32 and how companies will continue to deal with the pandemic remains uncertain. Will the vestiges of an austerity Government come back to haunt us? The coming months will ineluctably result in – to borrow from Judge Barrett’s 2016 Director of Corporate Enforcement v Walsh decision – “a financial maelstrom.”

Political Homelessness: Third Party Voting in the United States Dylan Krug JS Biological and Biomedical Sciences In the upcoming 2020 American presidential election, it is important to remember that a vote for Joe Biden is a vote for Donald Trump. Joe Biden is stealing votes from the rising presidential candidate Kanye West, thereby spoiling the election by splitting the results in Trump’s favor.

Now, this case is not a genuine one to be made, notwithstanding the fact that it contains obvious falsehoods.

The assumption that all Biden votes would be cast for West if Biden were absent from the race is conjecture: the premise that a vote for one candidate is, in reality, a vote for another candidate, is false. Democrats and Republicans are not often targets of this attack, but it has grown common in recent American political discourse: namely, this argument has been used against third party candidates, such as 2016 Green Party presidential candidate Jill Stein.

There appears to be a preoccupation with the idea of the entire political race boiling down to just two candidates, a clear choice - when in reality, the idea that a country with over 240 million eligible voters could be cleanly and totally represented by only two candidates is ridiculous. The American public encompasses an extremely broad political spectrum that cannot be fully realized in a two-party system, yet third party candidates are often treated as “spoilers”– candidates who “take away” votes from candidates with similar ideologies. This is best understood through the case study analysis of the 2016 U.S. presidential election.

The language used to talk about spoiler candidates is detrimental to voter integrity as it assigns ownership of the votes to the candidates, rather than the voters. For example, popular American news sources published arguments resembling those such as “by voting third-party you are taking votes away from Hillary Clinton” - which was a false allegation used to convince potential third-party voters to vote Democrat. The concept of possession is essential to deconstructing this argument - Clinton does not have any votes; rather, votes are cast for her by voters. It is the responsibility of a candidate to promote their platform: it is the duty of the voter to then decide which platform best represents his or her belief, desires, and needs. The implication that Clinton is entitled to a vote, and that any other casting of said vote is equivalent to robbing Clinton, is backwards.

The foundation of the American political system is rooted in a candidate representing their constituents. If a candidate

The concept of possession is essential to deconstructing this argument Clinton does not have any votes; rather, votes are cast for her by voters.

It is the responsibility of a candidate to promote their platform: it is the duty of the voter to then decide which platform best represents his or her belief, desires, and needs.

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wants votes, they have ample opportunity to earn them. After the Democrats lost in 2016, they were quick to claim that Stein “took votes away from Clinton.” However, a CBS News exit poll in Michigan affirmed that the majority of those who opted for the Green Party would not have voted for Clinton. When Green voters were asked how they would have voted in a strictly two-person race, 61 per cent would not have voted, 25 per cent would have voted for Clinton, and 14 per cent would have voted for Trump. This is evidence against the claim that all or even most third-party votes would go to the most ideologically aligned major party. It is not accurate to say that Stein cost Clinton the election; if Clinton could not appeal to Stein’s voters, then should that not be noted as a failure of the Clinton campaign?

Generally, a two-party political structure has some advantages: less ideologies, factions, and agendas to appease. Yet, this political structure often reduces U.S. political discourse to the “lesser of two evils.” Under this framework, politicians do not have to represent citizens’ interests; rather they must simply be the “lesser evil.” That is not democracy; that is a hostage situation. For instance, if a progressive individual “votes blue no matter who,” Democrats feel no pressure to progress the party or to listen to their constituents. Instead, Democrats need only appear to be better than the Republican alternative to count on a large base of unenthusiastic progressive voters.

Third parties may better represent these voters - yet, even as their needs go unaddressed, many will still continue to vote Democrat. Swing voters, especially moderates, are pandered to by both parties at every election cycle, as they actually threaten to withhold votes if they are not sufficiently appeased.

In order to hold political parties to a higher standard than the “lesser evil,” some political strategists recommend holding votes hostage by voting third-party, independent, or not at all. Sometimes this will result in the success of a party you oppose, but if you are not willing to sacrifice an election to prove your importance to a party’s power, then you have no leverage to petition them to change. Your vote is your most powerful weapon.

The 2020 presidential election may not be the time to make this point. Some reports say that Trump is a uniquely dangerous president who would cause more harm in office than a Biden presidency, especially on issues like environmentalism and LGBTQ+ rights.

Harm reduction is a persuasive argument against voting third party, and in some instances the best possible choice one can make is voting for the “lesser evil.” Even so, should politics not be about more than just harm reduction?

One of the factors that drives people to vote third-party is the controversial rhetoric used by leaders in the Democratic Party.

During an interview with Charlamagne Tha God, Democratic nominee Joe Biden said, “If you have a problem figuring out whether you’re for me or for Trump, then you aren’t black”. Biden expresses extreme confidence that he is the better alternative for Black Americans. However, it must be acknowledged that Biden helped to write the Violent Crime Control and Law Enforcement Act of 1994 which greatly contributed to America’s mass incarceration crisis by subsidizing prison construction and cracking down on non-violent drug offenses. This disproportionately affected Black and Latino communities.

Biden was also previously accused of being against court-ordered bussing, a policy that sought to end racial segregation in schools. Biden’s comments could be reflecting a general entitlement amongst Democrats with regard to

The fundamental issue facing the third-party voter is they do not want to vote for the “lesser evil,” but for a candidate they can believe in.

For Green Party members, voting for Biden over the Green candidate Howie Hawkins is not settling for a less-ideal platform that is still largely representative; it would mean sacrificing one’s own core values.

This is obvious when comparing the two platforms.

Politics Page 34 the Black vote, despite enacting policy that some say has actively harmed the community. Signaling support on an issue is not enough - enacting policy change is what is necessary to truly represent Black constituents.

The fundamental issue facing the third-party voter is they do not want to vote for the “lesser evil,” but for a candidate they can believe in. For Green Party members, voting for Biden over the Green candidate Howie Hawkins is not settling for a less-ideal platform that is still largely representative; it would mean sacrificing one’s own core values. This is obvious when comparing the two platforms.

Biden’s environmental plan calls for 100 per cent renewable energy by 2050, while Hawkins’ is by 2030. In December, Biden’s climate action plan was given an “F” (75/200) by the Sunrise Movement, an organization pushing political climate action. The movement said that it needed “to see more details, and more overall ambition from former Vice President Joe Biden” as his plan failed to meet their criteria for preventing long-term climate disaster.

This pales in comparison to Hawkins’ vision of an “Ecosocialist Green New Deal,” a policy plan intended to totally restructure the U.S. into a sustainable economy with particular focus on displaced fossil fuel workers.

In terms of healthcare, Biden has repeatedly said he would veto a Medicare-for-all bill. He believes in expanding the Affordable Care Act and people’s access to affordable healthcare. Hawkins supports universal health care and has a comprehensive plan to pay for the Medicare-for-all and his Ecosocialist Green New Deal on his website.

Hawkins has policy goals that members of the Green Party enthusiastically support, while Biden has apparent “half-measures.”

Progressive congressional freshman Alexandria Ocasio-Cortez understands the policy divide between progressives and moderates. She admits that “in any other country, Joe Biden and I would not be in the same party, but in America, we are.” The spectrum of beliefs in the Democratic Party is vast and results in a lack of policy focus.

Thus, some concern has been voiced that the progressive promises made by Democrats may only be intended to sway progressive voters for the election and will not be reflected in governance. As Hillary Clinton famously said, “there is a public position and a private opinion”.

The Green Party is unlikely to achieve federal power in the near future, but as an American voter I find it important to fight for candidates who represent my beliefs rather than to settle for a “lesser evil.” Like so many Americans in my generation, I consider myself to be politically homeless, not feeling represented by either major party. As it stands, the parties have no incentive to change as long as the politically homeless continue to provide their begrudging support. The most potent political statement one can make may not be by voting Democrat or Republican, but instead by voting for someone who actually represents them.

Editor in Chief Samantha Tancredi

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Public Relations Officer Zoe Timmons Editorial Board Demilade Adeniran, Dylan Krug, Ellen Hyland, Emma Bowie, Eoin Gormley, Kat Neumann, Lucy Mockler, Matthew O’Shea, Michael Archer, Rory Hearn, Scott Murphy

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